Bird's-eye view and worm's-eye view: towards a defendant-based approach in transnational criminal law

While the classic approach to transnational law provides a valuable tool for identifying the legal frameworks governing transborder occurrences, it falls short of covering all relevant aspects of transnational criminal law (TCL). This article argues that criminal law – unlike other areas of law– is fundamentally a state-oriented concept, leading to unique problems when implemented across state borders, especially for the individual facing penal power. A theoretical concept of TCL must therefore not only map extensions of state powers from high above, but also look for the individual's position in the possibly overlapping normative orders on the ground. The current predominant bird's-eye view must be modified according to the worm's-eye view. In doing so, the specific features and resulting problems of TCL will emerge. From this modified point of view, a main challenge is the establishment of a globally recognised coordination scheme, which will protect the legal position of individuals – particularly defendants – affected by states exercising their ius puniendi across borders.

Journal/Publisher: Transnational Legal Theory

Publication type: Article

Number of pages/Page range: 117-140

Language/s (content): English

Date of publication: 20-07-15

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Full name Sabine GLESS

Current occupation Management Committee and Contact Point

University/Institution University of Basel

Address Peter Merian-Weg 8 Postfach

Postal code 4002

Telephone +41 (0)61 267 28 73

Fax +41 (0)61 267 25 48

Email sabine.gless@unibas.ch