Revue Européenne du Droit
Which method for penal harmonization?
Issue #2


Issue #2


Luis Arroyo Zapatero

21x29,7cm - 186 pages Issue #2, Spring 2021 24€

1. Traditional shortcomings of comparative criminal law for harmonization

In the age of globalization, a qualitative leap in the content and methodology of comparative law, particularly with regard to policy on crime, is indispensable. However, this issue remains difficult, due to the significant political discontinuities, and in particular the two World Wars, which directly affected the academic proponents of comparative law, traditionally French and German. The ensuing drama was captured by the President of the French branch of the Société de législation comparée, Jean Paulin Niboyet, during the February 19, 1949 session: “Berlin was a formidable competitor for us: there were two institutions there, with extremely learned men at their head, who ensured that works of great value got published, and who had magnificent libraries: an institute of comparative public law and an institute of comparative private law. They were driven out of Berlin. It is up to us to ensure that Paris becomes the main centre of comparative law in Europe” 1 . The objectives have also become more complex. Two modern classics such as Zweiger and Kotw could until recently claim that traditional comparative law scholarship aimed at being referred to in the process of drafting new law or for the elaboration of technical-legal concepts that would contribute to scientific knowledge 2 .

The processes of international legal harmonization are very recent. They began with the League of Nations and then multiplied within the United Nations, with harmonization instruments addressing multiple legal issues. In the field of human rights, the Universal Declaration of 1948 has slowly found its regional reflections, with European and American courts and, in a more limited way, at the global level. In the field of criminal law protection of common international interests, the process came to a halt before giving rise to what should have been the first standard of harmonization: an International Criminal Court, with its own laws on crimes and international procedures. However, since the end of the Cold War, the process of international harmonization of criminal law has been faster and more extensive than usually claimed.

It is no exaggeration to say that more than a fifth of criminal law is now harmonised at an international level, amounting to 30% in the European Union, with harmonized first principles in addition to the principle of mutual recognition. However, the harmonization that has been achieved at a global level has historically been driven by diplomats rather than lawyers, and in particular comparative lawyers, although some brilliant players managed to combine diplomacy and the law. Suffice it to mention the role of René Cassin and Hartley Shawcross in the drafting of the Universal Declaration of Human Rights, the Convention for the Prevention and Punishment of the Crime of Genocide or the European Convention on Human Rights. Among politicians, the first woman to preside successfully over an international organization deserves to be remembered and praised: Eleanor Roosevelt. But in these international efforts, there was little theory.

Until the 1900s, efforts were only geared towards modernizing and extending the lex mercatoria, so relevant and so easy to use, taking into account the fact that the unification of private and commercial law on a global scale facilitates international commerce. However, in criminal matters, the problems are quite different, totally subject to the sovereignty of the State, which is indeed most clearly reflected in the national currency and the criminal code.  Nevertheless, criminal matters were already on the international academic agenda before 1914, especially in legal scholarship, with the multiplication of international congresses on penitentiary issues since the beginning of the 19th century 3 .

The first major leap forward was taken on the initiative of Franz von Lizst in Berlin, where he compiled a gigantic collection of penal codes which he sought to compare in order to induce their essence (Vergleichende Darstellung des deutschen und des ausländisches Strafrechts (1905 – 1909)). Five years earlier, in 1900, the first International Congress of Comparative Law was held in Paris, where Raymond Saleilles and Edouard Lambert proclaimed that comparative law should be the scientific tool of the rapprochement of civilizations and the development of international law through the elaboration of a common law of humanity, significantly supported by the Société de Législation Comparée, created in 1869 4 . At the beginning of the 20th century, John Henry Wigmore founded in Chicago the Comparative Law Bureau of the American Bar Association (1906), with an intense activity of translations and publications of works on criminal law and criminology 5 .

For their part, academics set in motion a powerful movement under the banner of the International Association of Penal Law, under the leadership of Von Lizst of Berlin, the Dutchman Van Hammel and the Belgian Adolph Prins, which succeeded in bringing together criminal lawyers from all the countries of continental Europe and building up a broad overview of criminal law principles and institutions, even though the war meant Germany’s practical disappearance from international life. As Ignacio Berdugo pointed out, almost everything that was subsequently implemented was the result of this gigantic scientific effort 6 .

This effort was given a new impetus with the creation of the League of Nations, which put international legal cooperation on the agenda, including the establishment of the International Court of Justice and of the International Labor Organization. The aim was to build a world government that would prevent wars and pave the way for progress 7 .

The efforts of the League of Nations during the first ten years were first of all a response to the need to eliminate insofar as possible the divergences between national legislations which were likely to prevent co-operation between States in the fight against crime, by unifying the legal frameworks, in particular the differences regarding rules of extradition and the double criminality principle, relating to criminal acts detrimental to the interests of nations, such as counterfeiting currency, trafficking of women, drug trafficking, slavery, piracy, obscene publications and even terrorism, the latter through a Convention adopted in 1937. In the same year, a proposal was made for the establishment of an international criminal court to protect international peace. In addition to these proposals for the unification of groups of offences, a long list of proposals was drawn up on general criminal law issues such as the harmonization of the concepts of justification and self-defense, of state of necessity and recidivism, and, complementing the existing proposals on conditional sentences and conditional release, the successful formulation of the incorporation of security measures into the codes. In reality, it was more a question of a “topical” harmonization of some institutions than a unification of criminal legislation, although this terminology had not yet been formulated (by Theodor Viehweg).

2. Scope and limits of the vertical harmonization: the Nuremberg disputes on ‘conspiracy’

However, the common law that the comparatists aimed to create above national laws would be mainly developed by people non-affiliated with the movement 8 . This was in particular the case of the first ‘unified’ global law: the London Statute (the ‘Statute’) for the creation of the International Military Tribunal, with its list of crimes and its complementary jurisdictional details. The Statute defined the four crimes to be punished and some principles that amounted to the greatest legal innovation in the history of humanity: the criminal responsibility of the leaders of the countries that committed the atrocities and not just of the States as such, therefore overcoming the impunity of the heads of States and governments, the irrelevance of each country’s national legal treatment of crimes against humanity and the rejection of impunity for atrocities committed by superior order. All this constituted a unified corpus in which a single clause gave rise to frictions between legal cultures: the autonomous criminalization of conspiracy. Its genesis shows the difficulties that arise when comparatists do not participate in the efforts of harmonization of criminal law.

The ‘conspiracy’ clause had great strategic value for the Americans, but this idiosyncratic theory of ascription of liability, stemming from the common law, was neither acceptable nor understandable from the perspective of continental law. It was not only an “issue of legal cultures”, since the aim was to apply to participants and lesser accomplices of certain crimes the sanctions reserved to the perpetrator of an accomplished crime, irrespective of the degree of responsibility of the crime and irrespective of whether the crime was accomplished or was merely attempted. This issue is not irrelevant, but for the American strategy it was utterly fundamental.  

It is worth recalling the profound divergences that existed between the British, the Soviets and the Americans as to the attitude to be adopted with regard to the punishment of the main war criminals. The former favored a “political” solution, that is to say what they called “summary executions” which would affect up to 50 Nazi leaders – which the Soviets multiplied by 100 – although this may have been a joke from Stalin to Churchill at a bilateral meeting in Moscow in October 1944 following the Quebec meeting, for when Roosevelt was informed of this, Churchill also said that Stalin had pointed out that in his view there should be no executions without trial 9 . For his part, F.D. Roosevelt did not want to take the risk of a “lawyer’s” solution, the outcome of which would risk to harm the victory. But his closest advisers, former prosecutors, warned him against the so-called “political” solution, both in principle and because of the risk that the American people – who did not experience the Nazi atrocities on their soil – would reject mass executions as being barbaric.

On the contrary, they thought that the trial would be a way of presenting to the American public the reasons why they had to sacrifice their children in Europe for the second time in two generations. Henry L. Stimson, Secretary of War and former Secretary of State, Judge Samuel Rosman, Special Advisor to the President, and Attorney General Biddle were of this opinion. To persuade Roosevelt, Stimson presented the idea of incorporating ‘conspiracy’ into the trial charges as particularly effective. He pointed out that at the beginning of the century, when he had to argue as prosecutor of the Southern District of New York against companies involved in tax evasion and sugar smuggling on the East Coast (and, incidentally, against strikes and trade unions), the impunity of business leaders ended only when they began to apply the first economic criminal laws that included the former British concept of conspiracy. From that moment onwards, prosecutors did not limit themselves to punishing the lowest ranks of the organization, i.e., the employees who handled the sugar shipments, but could also prosecute the managers and the companies themselves. With presidential authorization, they took this alternative system to London, calling it the “conspiracy + criminal organization trial system” 10 .

When the American delegation arrived in London on 4 April, it found that the British rejected any kind of legal solution and stuck to the so-called “political” solution, but the presentation of the alternative of the so-called criminal “conspiracy + organization” system was gaining ground. However, on 12 April, Roosevelt’s death occurred without anything being decided with the British and the Soviets. At the same time, the London War Cabinet accepted the American proposal, which it considered a good compromise between a trial and summary executions. Washington then sent a committee to London, chaired by Judge Rosenman, who was retained by the new President Truman, and Secretary of War Stimson. But anything could still happen. The President, who promised Stalin that he would let the Soviets take Berlin, was no more, and tensions that could shake the alliances were beginning to arise. The liberation of the Buchenwald concentration camp on 11 April, that of Bergen Belsen by the British a day later, and finally that of Dachau by the Americans on 24 April put an end to the tergiversations. The photographs attesting to the committed atrocities made the headlines and American citizens could now understand what they had fought for and believe what the Soviets had been denouncing since the summer of 1944, when they liberated Majdanek and the three other camps in the East, as well as Auschwitz in January 1945. The Allies themselves discovered the Struthof-Natzweiler camp in France at the end of November 1944.

For the Americans, the notion of conspiracy, which appears in the Statute itself as a sub-section and with a subsidiary character, was the key concept for reaching the major war criminals. Thus, it became possible to prosecute even the most difficult characters to charge, such as Schacht and von Papen, who seemed to have confined themselves to witnessing the beginnings of the dictatorship. This is why Prosecutor Jackson, in his opening speech of the act of indictment, argued for it as an autonomous crime. However, the court rejected the American interpretation out of hand and applied the ordinary criteria of perpetration and complicity. Against the charge of complicity it stated that the last paragraph of Article 6 of the Statute “was not intended to add a separate offence to the crimes previously enumerated… Therefore, the court will henceforth neglect the charge of conspiracy… 11 .

It is interesting to look at an extreme moment in the adoption of a policy of radical unification and universalization of criminal law, and to show the limits of a hierarchical and vertical imposition of idiosyncratic institutions of a State or legal culture. Thus, the ascription of the crime of conspiracy radically collapsed in front of the wall of astonishment of Henri Donnedieu de Vabres and even of the Soviet judges 12 .

None of the judges clarified his position, perhaps because the reference to “other legal cultures” avoided a substantive discussion over the differences between the ‘conspiracy’ clause in US and continental law. In fact, there were in the great circle in London and later in Nuremberg some lawyers with strong comparative law pedigrees. Among the judges were Henry Donnedieu de Vabres and Nikichenko, both of whom had written books on international criminal law. The former had already published Les principes modernes du droit pénal international in 1928, as had the Soviet substitute judge A. Trainin, author of La défense de la paix et du droit pénal, before the war and again during the war. Among the people involved with the respective teams, but without sufficient decision-making capacity, were Hersch Lauterpacht, a refugee at the University of Cambridge since the late 1920s and professor of international law, and Raphael Lemkin, a refugee in the United States. The former had very good relations with the English group and especially with the American Attorney General Jackson, thanks to whom, in addition to the concept of ‘war of aggression’, the development of the concept of crimes against humanity and the future declaration of human rights became a hot issue. The latter contributed to the decisive systematization of Nazi laws and regulations and to the first appearance of the concept of genocide, which was included in the text of indictment as presented by Jackson, whom he had already met in Washington, but without achieving greater results due to the American concern about the possible consequences for the system of racial discrimination in the United States. The concept and its protagonist were to flourish when the Genocide Convention was drafted in 1948. Philip Sands presented an excellent account of these two jurists in his East West Street, which uncovers the true genesis of the most relevant criminal concepts of our time: crimes against humanity and genocide 13

This book should be complemented by Guillaume Mouralis’ very recent one, Le moment Nuremberg, which is the most original essay regarding Nuremberg and which pays particular attention to the typology of jurists, the racial question and its reflection on both sides of the Atlantic, and the legacy of Nuremberg 14 . There was also a special group, since a good group of German exiles belonging to the Frankfurt School had joined the universities in New York and had even been able to “transfer” the Institute for Social Research there. Its most qualified members joined the team of the CIA’s predecessor, the OSS, being tasked with explaining to the high military commanders that in Germany they were not only facing a dictatorship but also a full totalitarian National Socialist State. Thus, we find Otto Kirchheimer, Herbert Marcuse and Franz Neumann as instructors of the American intelligence service. The latter, author of Behemoth : The Structure and Practice of National Socialism, in 1942, a political and social theory of Nazism, 10 years before the book by Hannah Arendt, did his PhD in criminal law with Max Ernest Mayer, a disciple of Hugo Sinzheimer, and was a specialist in labor law in Weimar and an advocate of German trade unions and the Social Democratic Party until his persecution in 1933, which led him to the London School of Economics with Harold Laski, where he studied for a second PhD, now in sociology, and then to Columbia University. However, the highest American official, who was very active in the Nuremberg team, was in favor of the Nazis being judged according to German law and the German courts 15 .

A comparative analysis of the term “conspiracy” and its meanings could have been very useful. In the continental conception, conspiracy includes in the provided sanction for the crime the participation in the phase of design and agreement for the execution, this latter phase not initiating the commission of the crime. If the offense is actually committed, the penalty for the offense committed absorbs the conspiracy. The penalty for complicity in continental law is lower than that for perpetrators and co-perpetrators. Thus, for example, the successive Spanish codes from 1822 were more or less liberal depending on whether they punished conspiracy for all crimes or only for the most serious ones. However, whatever the period, the penalty was always lower than in case of perpetrated or attempted crime. In the American conception, the function of the clause was to incriminate with the most serious penalty (the penalty applicable to the main perpetrator of the committed crime) all contributions from the moment of conception and agreement, whether or not the crime was actually carried out 16 .

It is clear that the two clauses were not functionally equivalent. However, even among comparatists, the doctrinal debate on functional equivalence had not yet emerged. But it would certainly be necessary today to take these different effects or functions into account in judging the many U.S. economic criminal laws that tend to be applied extraterritorially. Those laws undermine international legal cooperation in such a way that it would be easy to cooperate in punishing acts with severely disproportionate penalties or even non-punishable acts. The assessment of this functional equivalence should precede any judicial cooperation between the European Union and the United States. At present, the criminalization of conspiracy with disproportionate penalties is also used to seek the cooperation of the accused to surrender to the prosecutors 17 .

After the beginning of the Cold War, with the recent adoption of the Universal Declaration of Human Rights and the Genocide Convention, the international legislative activity of the United Nations was reduced and limited to matters far removed from human rights and criminal matters, with the exception of the approval of the International Covenants on Civil and Political Rights in 1966. The two most relevant objects of harmonization were the Declaration of Human Rights of the Council of Europe and the American Declaration of Human Rights, with their respective Courts and Tribunals, through which a great deal of harmonization waq produced. First by their own normative texts and then by the effect of their application through case law. Conventional action and its systematic and programmed application has been the most powerful harmonizer of standards. It is especially the case in criminal matters, where it has limited the excess of the punitive power of the State and has given a powerful support to the evolution of comparative law. The jurisprudential category of the “national margin of appreciation,” which intervenes in the application phase of the Convention and is the meeting point between universality and sovereignty, has been particularly fruitful.

3. New paths for international harmonization in the era of globalization

After the fall of the Berlin Wall, globalization became visible and material forces emerged that required harmonization in some areas. The most urgent of these was the fight against corruption and organized crime, which was followed by others.

It is precisely in addressing the question of the fight against international corruption, fortunately at its beginnings in the small and experienced group of States that make up the OECD, that one can see the difficulties in bringing together the rules of countries with very different legal cultures and, at times, very different principles. The solution to avoid a foreseeable impasse requires a double “invention.” On the one hand, harmonizing the rules of the different countries, avoiding the nominal unification of categories by identifying those that provide a functional equivalent in each country. On the other hand, as opposed to the traditional attempt to standardize all offences and penalties from the very beginning of the drafting of the convention, the system put in place innovates with a mechanism that we can reductively call “monitoring” of implementation by each party to the convention.

This innovation, relating to the concept of functional equivalence, appears with Marc Pieth and is based on the notable modifications produced in the theoretical construction of comparative law over the last few decades. In particular, the combination of traditional Anglo-Saxon legal realism with the systemic functionalism that has permeated all German sociological, and legal criminal science over the last few decades. It is especially in private and commercial international law that the traditional legal principles built by the comparatists have been overtaken by functionalism through the construction of international institutions and norms on the basis of the comparison, not of principles and names, but of functions and their equivalence.

Also in 1978, at a large meeting at the Institute of Foreign and International Criminal Law in Freiburg organized by Hans Henrich Jecheck, Marc Ancel declared that until then the only, albeit valuable, fruit of comparative criminal law had been elements of criminal policy. The other contributions did not show that the opposition between arguments of principle and utility has been overcome. But it is Marc Ancel himself who claimed: “many modern comparativists advocate the example of the functional method which, instead of starting from the text or the institution in order to deduce the logical consequences, tries to start from the problem itself which requires a solution from the jurist” 18 .

The beginning of the process of creation of the OECD Anti-Bribery Convention coincides with the moment of maturity of the penal harmonization in the European Union. It is among its protagonists that the greatest impulse to the theory and practice of harmonization will occur, on which Mireille Delmas-Marty led the great collective work called “Les chemins de l’harmonisation 19 , in which she built a theory of harmonization, that she enriched powerfully both in its foundation and in its scope during her years at the Collège de France. 20 Her general theory includes at least three key elements: harmonization with the primacy of human rights and by way of hybridization, national margin of appreciation 21 , and the trilogy of actors, facts and processes of international harmonization. These are the foundations of modern comparative law. During the seminars on the paths of harmonization, an element that Marc Pieth addressed in the process of elaboration of the OECD convention was examined, but it did not receive the importance it deserved, neither in the academic commentaries on the successive anti-corruption conventions, nor in the general reflection in comparative law. It is useful to revisit the issue, as we are on the eve of the discussions about two major international conventions on climate change and the protection of human rights against multinational corporations.

4. Harmonization and systemic comparison: the criterion of functional equalence. The value for future conventions on criminal law

At the end of the 1990s, as globalization gained momentum, there were major and serious international corruption scandals involving large companies (even including criminal contributions to foreign officials as expenses in their accounts), but also several economic crises linked to massive corruption in some regions, like the Asian crisis of 1997, meant that the fight against corruption was becoming a collective necessity for economic progress and, under the impetus and competitive experience of the US Foreign Corrupt Practices Act of 1977, led the OECD to take the initiative for an international Anti-Bribery Convention. In a first phase, only recommendations to Member States were issued, but then a real convention was adopted to harmonize both the most basic definition of bribery of foreign public officials by exporting companies and to establish the basic elements of criminal prosecution 22 .

The drafters of the Convention, conscious of the fact that they were acting in a universe of very different legal cultures, rejected the unification of the texts, but adopted a system of basic ideas that the parties must implement in their respective national legislations, according to a number of indicative criteria, all inspired by the principle of functional equivalence of the different measures.

The Convention defines the target offence, bribery of public officials, and requires States to reflect such an offence in their national criminal law, including by detailing the forms of perpetration and participation, as well as the acts of conspiracy or attempts to commit the crime, and requires that sanctions be applied similar to those applied pursuant to national law to the bribery of local officials. It also proclaims that each State must adopt the necessary legislative measures, in accordance with its own legal principles, to establish the liability of legal persons for corruption offences.

It generally provides for effective, proportionate and dissuasive criminal sanctions, comparable in seriousness to the offences of bribery of one’s own public officials, which in the case of natural persons include a prison sentence sufficient to allow for judicial cooperation and extradition. In addition, it requires countries to provide for the seizure and confiscation of the proceeds of the act of corruption or to provide for pecuniary sanctions of “comparable effect.” It calls for civil and administrative sanctions to be provided for in addition to the main sanctions.

States undertake to regulate the exercise of their jurisdiction to prosecute corruption offences, whether committed at home or abroad, and to prosecute both nationals and foreign persons. They also undertake to review their system of jurisdiction to ensure its effectiveness and undertake to provide for judicial cooperation in criminal matters and, in the case of legal persons, civil and administrative cooperation. They also undertake to review their system of jurisdiction to ensure its effectiveness and correct it accordingly, and to establish a limitation period appropriate to the time needed for investigation and prosecution. The State party is also obliged to apply the offence of money laundering in cases of bribery of foreign public officials by nationals.

It also includes provisions relating to corporate accounting standards, precluding practices that conceal corruption, whose violation must result in civil, administrative or criminal liability with effective, proportionate and dissuasive sanctions. Finally, it excludes the concept of double criminality with regard to these offences, as well as the application of bank secrecy principles, for the purposes of judicial cooperation. It allows for an extradition for mere participation and obliges States to prosecute their own nationals if they do not grant extradition. Finally, Article 12 of the Convention establishes the obligation for States to submit to “systematic supervision” (monitoring and follow-up) to promote the full implementation of the Convention 23 .

After proclaiming in the preamble to the Convention that its objective is to achieve functional equivalence in the application of the Convention by different States, it already states in the first official commentary of the negotiating conference itself, in general terms, that “This Convention seeks to assure a functional equivalence among the measures taken by the Parties to sanction bribery of foreign public officials, without requiring uniformity or changes in fundamental principles of a Party’s legal system.”

The Convention does not require that legal persons be criminally liable (Article 2), as this issue was not uniformly treated in most States at that time. However, it does require that, in addition to prosecuting offences committed by natural persons inside and outside companies, the State should have a serious system of civil or administrative liability. The monitoring of the implementation of the Convention verifies that the systems of civil or administrative sanctions for legal persons are functionally equivalent, i.e., that they have deterrent effects and are as effective as the criminal justice system. In particular, the scope of criminal liability of natural persons acting within and on behalf of legal persons committing acts of corruption should be reviewed (Recommendation 2009, Appendix 1, Good Practice Guidance, paragraph B).

It appears that harmonization implies the clear identification of types of behavior that are intended to be prohibited at the international level, such prohibitions being transposed in each case by the national legislator, both for cases of perpetration and for cases of participation, preparation and attempts to commit the crime. The indication relating to sanctions (Article 3.1) deserves particular attention, as it emphasizes the idea that criminal sanctions must be “effective, proportionate and dissuasive” and that, in the case of the responsibility of natural persons, they must be sanctions comparable or equivalent to those applicable to the bribery of local public officials and should include deprivations of liberty sufficient to enable effective mutual legal assistance and extradition (Article 3.1). In addition, it requests the exclusion of allegations of unjustified circumstances which could prevent prosecution, such as prescription, limitations on extradition, such as the undue requirement of double criminality in this case. Moreover, when referring to sanctions relating to the confiscation of illicit profits, it argues that there may be other legal consequences such as those of a monetary nature which are not fines and which have a comparable effect. Accounting rules (Article 8) should in turn exclude all mechanisms which encourage corruption, such as parallel off-book accounting, misidentified records, non-existent expenditure registers or the recording of unidentified liabilities, all of which are offences deserving the application of effective, proportionate and dissuasive civil, administrative or criminal sanctions.

Therefore, the need for harmonization is not limited to the normative level, but extends to the jurisdictional level, to the requirement of an effective application of the normative system at the procedural level, both at national level and at the level of international judicial cooperation (Article 4). As Mark Pieth points out, the concept of functional equivalence is not simply a formula for accepting all national variations but calls for certain minimum requirements 24 .

It would certainly be desirable for States that provide for criminal liability of legal persons to provide some guidance to avoid the confusing and messy regimes which exist in some countries and which tend to led to impunity, either for companies or for the directors of companies who actually commit the offences, if not for both.

This whole system of harmonization and legislative transposition through “equivalent measures” and with “effective, proportionate and dissuasive sanctions” ends with a provision that establishes a control and monitoring system aimed at identifying the rules and their transpositions, their legality and their application to cases that arise over time, and the evolution of their legal treatment by governmental and judicial authorities. This is traditionally called focusing not only on “Law in Books” but also on “Law in Action.” These terms do not come from continental law, but it was a good metaphor for the need for not only a nominal but also a substantive or material examination of laws 25 , because the issue is not only to discover possible errors in the enacted legislative measures, but also to identify errors in the effective functioning of the whole system, one could also say, in his implementation 26 . It is deplorable that subsequent anti-corruption conventions (Inter-American, of the Council of Europe and of the United Nations) have not reiterated the guiding idea of functional equivalence, but the fact remains that their respective control and monitoring bodies operate in the same way as the OECD.

Furthermore, the assessment of functional equivalence in European legislation is also taken into account through directives, where States have, in their transposition, a margin of discretion which must be subject to limits through functional equivalence. It is always an attempt to ensure, as stated by Cesare Predrazzi, that “the prince cannot decide arbitrarily on his religion or his system of responsibility or, better still, impunity.”

In short, any future draft international convention on criminal matters must take account of this presupposition of the treaty definition of the object of the prohibition, the protective measures and the conditions of functional equivalence of the mechanisms provided for measures. We are witnessing the acceleration of several trends supporting the protection through criminal law of the common goods of humanity: the environment and the prevention of the climate crisis, the protection of human rights against their violation by multinational companies and the global protection of health against the risks of epidemics, which reaches the new governance of the World Health Organization, and the insurance against certain forms of counterfeiting, fraud, hoarding, etc.On the problem of the crime of ecocide, there is a very elaborate proposal for an international convention prepared by an international group of lawyers led by Laurent Neyret, which reflects well to the experiences of the OECD Anti-Bribery Convention 27 . Naturally, the definition of concepts and measures is more detailed, but they correspond more to functional elements than to a unifying objective. It is clear that more than 20 years have passed since the OECD Convention and therefore they promote the idea of a criminal liability of legal persons. The system can be modulated with other clauses and it is very likely that the wording can be further synthesized, and the requirements can be reformulated with the adoption of functionally equivalent measures. The second proposed convention for environmental crimes is, in general, more difficult, which is perhaps exacerbated by its international hypothesis, apart from the fact that it deals with harmonizations of measures that it might be more appropriate to first enact in States themselves.


  1. The reconciliation of Europe was still far away, in particular that along the famous Franco-German axis, see, Luis Arroyo Zapatero, “Soixantième anniversaire de la Société Internationale de Défense Sociale, 1949-2009: L’esprit des temps”, Cahiers de Défense Sociale, 2009-2010, p. 11 et seq.
  2. See, K. Zweigert, Konrad, H. Kötz, Einführung in die Rechtsvergleichung auf dem Gebiete des Privatrechts, Band I und II, Tübingen JCB Mohr, 1984 (1st ed of 1969), p. 51.
  3. On the evolution of criminology, see L. Arroyo Zapatero, “Las tres pasiones de las Ciencias penales”, Criminalia, 2020, p. 96.
  4. See, B. Fauvarque-Cosson, “Deux siècles d’évolution du droit compare”, Revue internationale de droit comparé, Vol. 63 N°3,2011. pp. 527-540; Marc Ancel, Utilité et méthodes du droit comparé. Eléments d’introduction générale à l’étude comparative des droits, Neuchâtel, Editions Ides et Calendes, 1971, p. 17.
  5. See, L. Arroyo Zapatero, “Las tres pasiones de las ciencias penales”, op. cit.
  6. See, I. Berdugo Gómez de la Torre, El movimiento de política criminal tendente a la unificación legislativa, Madrid 1976:
  7. See, M. Ancel, Utilité et Méthodes du Droit Comparé, Ides et Calendes, 1971,  p. 22 et seq.
  8. See, M. Delmas-Marty, Le relatif et l’universel. Les Forces imaginantes du droit, 1, Seuil cit. infra, p. 36 and 37.
  9. See, T. Taylor, The anatomy of the Nuremberg Trials, A. Knof, 1982, chapter 4.
  10. See, B. F. Smith, The American Road to Nuremberg, The documentary record 1944-1945, Hoover Institution Press, Stamford 1982, p. 98 et s.; Stimson 586 ; T. Taylor, The anatomy of the Nuremberg Trials, op. cit.
  11. See, J.-B. Herzog, Nuremberg. Un échec fructueux?, LGDJ, Paris 1975, p. 99.
  12. See, H. Donnedieu de Vabres, Le procès de Nuremberg, Cours de Doctorat, p. 247 et 254. This is also explained by the American judge Francis Biddle, see J. Owen, “Nuremberg. Evil on trial”, Hedline Review, 2006, p. 316; H. L. Stimson et M. Bundy, On active service in peace and war, Harpers, 1948 ; B. F. Smith, Reaching Judgment at Nuremberg, Andre Deutsch, 1977; Susan Mary Twist, Retrospectivity at Nuremberg:  the nature and limits of a schmittian analysis, University of Central Lancashire, 2012 ; S. Cordini, “Delitos de organización: los modelos de “conspiracy” y “asociación criminal”en el Derecho interno y en el Derecho internacional”, Revista Derecho Penal y Criminología, Vol. 38, 2017, pp. 75-120. The complexity of the different legal approaches in the European Union is analyzed in J. Pradel, Droit pénal comparé, 3. ed., Dalloz, 2008, p. 72 et seq.., p. 117 et seq.
  13. See, P. Sands, Retour à Lemberg, Albin Michel, 2016 (see, in original English version, P. Sands, East West Street, Weidenfeld & Nicolson). See on this issue, L. Arroyo Zapatero, Delitos contra la humanidad y genocidio: genética de dos conceptos en Philippe Sands, Calle Este-Oeste,, 2017; Raphael Lemkin, Axis Rule in occupied Europe, Carnegie End., 1944 ; H. Lauterpacht, An International Bill of the Rights of Man, 1945 ; A. Tisseron, La France et le procès de Nuremberg. Inventer le Droit international, preface by Annette Wieviorka, Les Prairies ordinaires, 2014.
  14. See, G. Mouralis, Le moment Nuremberg, Presses de Sciences Po, 2019, esp. pp. 53-57.
  15. See, Neumann, Marcuse, Kircheimer, Im Kampf gegen Nazideutschland, edited by Raffaele Laudani, Institut für Sozialforschung, Campus, Frankfurt, 2016, p. 585 et seq.
  16. M. Barbero Santos, Política criminal en España, Túcar, 1977.
  17. On the current approach of conspiracy, s. Carsten Momsen/Sarah Lisa, “Conspiracy als Beteiligungsmodell”, Zeitschrift für Internationale Strafrechtsdogmatik, ZIS 3 and 4, 2019, p. 182 and p. 243 ; Santiago Cordini, « Delitos de organización: los modelos de ‘conspiracy’ y ‘asociación criminal’ en el Derecho interno y en el Derecho internacional », Revista Derecho Penal y Criminología, Vol. 38, 2017, Bogotá, Universidad Externado de Colombia, pp. 75-120.
  18. M. Ancel, Le droit pénal comparé en tant que moyen de recherche dans le domaine de la politique criminelle, in H.H. Jescheck G. Kaiser, Die Vergleichung als Methode der Strafrechtswissenschaft und der Kriminologie, Dunker&Humblot, Berlin 1980, p. 91.
  19. M. Delmas-Marty, M. Pieth, U., Sieber (dir.), Les chemins de l’harmonisation pénale. Harmonising criminal law, Société de Législation Comparée, Paris, 2008.
  20. See the inaugural lecture : M. Delmas-Marty, Etudes juridiques comparatives et internationalisation du droit, Fayard, Paris, 2003 then, Les forces imaginantes du droit, I : Le Relatif et l’Universel, Paris, Seuil, 2004, II; Le pluralisme ordonné, Paris, Seuil, 2005, III ; La refondation des pouvoirs, Paris, Seuil, 2006, IV; Vers une communauté de valeurs, Paris, Seuil, 2011.
  21. M. Delmas-Marty, M.-L. Izorche, “Marge nationale d’appréciation et internationalisation du droit. Réflexions sur la validité formelle d’un droit commun pluraliste”, Revue internationale de droit comparé, Vol. 52.4, 2000, pp. 753-780.
  22. See, M. Pieth, L. A. Low, P. J. Cullen (eds.), The OECD convention on bribery: A commentary, Cambridge University Press, 2006, p. 14 et seq. and on the principle of functional equivalence, p. 37 et seq.
  23. See, M. Pieth, L. A. Low, P. J. Cullen (eds.), The OECD convention on bribery: A commentary, op. cit., p. 37 et seq.; M. Delmas-Marty, M. Pieth, U., Sieber (dir.), Les chemins de l’harmonisation pénale. Harmonising criminal law, op cit., p. 231; V. Mongillo, “Harmonization within the European Union”, in A. Fiorella, Corporate criminal liability and compliance programs, volume II, Towards a common model in the European Union, Jeunes editions de Naples, 2012. M. Pieth, The Responsibility of Legal Persons, in the OECD Commentary, op. cit., p. 2 et seq.
  24. See, La Convention OECD sur la corruption transnationale, op. cit., p. 39.
  25. See in this regard, M. Ancel, Utilité et méthodes du droit comparé, op. cit., p. 101.
  26. For an overview of relevant elements to be analysed in this regard, see, C. Fijnaut y L. Huberts (ed.) Corruption, Integrity and Law Enforcement, Kluwer, La Haye, 2002, p. 11 et seq.
  27. See, L. Neyret, Des ecocrimes à l’ecocide – Le droit pénal au secours de l’environement, préf. de Mireille Delmas-Marty, Bruylant, 2015.
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Luis Arroyo Zapatero, Which method for penal harmonization?, Aug 2021, 7-13.

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