In an interdisciplinary perspective, the Cluster of Excellence “The Formation of Normative Orders” at Goethe University in Frankfurt/Main, explores conflicts, processes and procedures involved in the formation of normative orders. Inspired by this, the studies in its Research Area 3 – “The Plurality of Normative Orders: Competition, Overlapping, Interconnection“– focus on three main problems which show fundamental importance for current conflicts in a globalizing world: 1. The plurality of especially nongovernmental institutions and modes that constitute normativity; 2. The establishment and defence of international security; 3. The legitimation and justification of supranational orders. The research project „The Formation of Transnational Criminal Law Regimes“ applies those questions and approaches to emerging normative orders in the field of international criminal law and security since the early 19th century. Against this background we want to to present and discuss theoretical and empirical approaches as well as recent research and case studies on developments and manifestations of transnational legal interaction concerning international and political crime as well as dissidence and resistance, security regimes, extradition, political asylum, and police co-operation in the 19th and 20th century.
The formation of transnational criminal law regimes, which were shaped in international treaties, national law, international expert discourses and various state practices, constitutes a promising field of research for normative plurality and the formation of normative orders in trans- and international perspective. International criminal law serves as an example for competition, overlapping, and interconnection of normative orders. High-profile cases like that of the US-whistleblower Edward Snowden or the Wikileaks activist Julian Assange give an example for the relevance and difficulties of transborder prosecution in a globalizing world. Still today they show that the normative basis like the state practice in international criminal law is characterized by numerous ambivalences, regime-collisions and conflicts. Contractual agreements have priority over national law; police and political demands prevail over the rule of law and individual rights. Generally, transnational criminal law regimes prove to be fragmentary and show little normative standardization. Their specific and problematic structure can not only be regarded as the result of contemporary and current developments and constellations but rather can be traced back to historical developments. On the one hand, these can be considered as deeply rooted in the idea of the sovereign state since the French Revolution that has treated jurisdiction as a state prerogative. On the other hand, economic transactions, commerce, migration, political activities and crime evoked a growing demand for transnational cooperation that also affected the field of criminal law.
An intensification of transnational activities triggered constructions of international and political crime – or the labelling of political dissidence and resistance as such – that were perceived as a fundamental common threat to society and political orders. Such cross-border security threats functioned as a “Justification Narrative” for the establishment of transnational criminal law regimes, which were shaped in normative discourses, practices and media, like international contracts, cooperation of police and prosecution agencies as well as in expert discourses and the transfer of expert-knowledge within international networks – not only among the continental European states, but also among the Anglo- and Latin-American jurisdictions. However, this resulted in ambivalent normativity, legal pluralism, fragmentation and “regime collisions” between the various normative orders (for instance, domestic codes, transnational agreements, and extradition treaties).
Research in the field of normativity within transnational criminal law activities has been done from various angles and academic disciplines. Since September 11, we can observe a shift on the state-based reactions to terrorism and political violence especially from the field of political science that primarily focused on contemporary developments. Furthermore, concepts of international relations like the “Regime Theory” provided valuable theoretical tools for further research in historical perspective. Especially the interdisciplinary security studies have developed a wide range of theoretical and methodical approaches to deconstruct transnational interactions in pursuit of a variable security concept. Also in the context of the Cluster of Excellence new methods and concepts like that of “Human Security” or the role of “Justification Narratives” within the formation of normative orders have been discussed. Furthermore, in the interrelated field of historical criminal research various topics that affect transnational criminal law regimes have found scholarly interest. In this context, the function of “international crime” as a trigger for intensified cooperation and standardization has been evaluated. But particularly the normative potential of practices not decisively regulated in domestic/national criminal law mostly remains a gap in scholarly analysis.