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Prescriptive Jurisdiction and Enforcement Jurisdiction in International Law Essay


Even though parliament can reprimand any action through its local regulation, global law does not allow the State to impose its rule outside its land. For instance, Saudi Arabian (SA) law states that infidelity is a felony that is punished by stoning to death.

This rule is applicable only in Saudi Arabia (Dupuy & Kerbrat 2010, p. 64). It cannot be applied in other places even if a citizen of Saudi Arabia was found committing adultery.

This takes us to the earliest code in the Lotus case, which says that a State cannot apply its rule in any shape in the land of another nation unless there is a global tradition or principle allowing the State to do so (Dixon 2007, p. 87).

The UK-Netherlands accord of 1991 can serve as an example, where UK got approval from Netherlands before indicting two Libyans charged with the Lockerbie intimidation (Shaw 2003, p. 23) Therefore, a jurisdiction centers deeply on the power to prescribe (Sweeney 2007, p. 50) in addition, this is what the paper will focus on.

A state’s jurisdiction in the modern international system refers to its power to control the actions of individuals and property. Again, jurisdiction can be either civil or criminal (O’Keefe 2004, p. 736). Jurisdiction in real terms is not a universal concept that is; its meaning is not common to all people.

The ancient activities of states and doctrinal inscriptions enables people comprehend that jurisdiction is broadly categorized into two major forms, that is, prescriptive and power to enforce.

In the criminal context, jurisdiction to prescribe refers to the power of the state to invoke its criminal law in arbitrating certain actions. Jurisdiction to enforce on the other hand refers to the power of the state to employ criminal law practically through its criminal justice system that is, arresting (police), arbitrating (courts) and correcting (Amerasinghe 1994, p. 14).

Whereas jurisdiction to prescribe might be extra-territorial, the power to enforce is strictly territorial. This implies that any state cannot take its criminal justice system (CJS) to another state since this might be considered intrusion.

In case a state would wish to prosecute its citizen abroad, it has to issue an arrest warrant to the foreign state and urge the same state to assist in arresting the culprit. It is therefore evident that the power to prescribe and the power to enforce are not compatible at all (O’Keefe 2004, p. 740).

Jurisdiction to prescribe and the power to enforce are rationally self-sufficient. However, the two forms of jurisdictions are intertwined. The state has the authority to make laws as long as they benefit the public. The same laws are not applied universally since environments are different.

Laws apply well where they originate since the procedure employed in making them is logical. For prescriptive authority, utilization of force to implement an opinion is more realistic inside state boundaries than outside. When it takes place outside state boundaries, the possibility of inter-state disagreement is inevitable.

A state in the international system may decide to punish its citizen or a resident of another state in case its interest is in danger (Simma & Paulus 1999, p. 21) This brings about hostilities among states, which may cause wars.

International law allows a state to issue an arrest warrant even when the suspect is not available in the state, what is referred to as arrest in absentia. The best example is the mutatis mutandis case that applies to individuals based on citizenship, flaccid personality and service in the military.

States have rights to prescribe laws according to the internationally established standards (Lawson & Bertucci 1996, p. 69) Through this, the rule of law is guaranteed in the international system. The implementation of prescriptive authority based on a jurisdictional nexus instituted after execution of the offence is a type of ex post facto criminalization.

This is disgusting because a substantive public criminal proscription and its subsequent castigation are applied to the offender only after execution of the impugned behavior. It is not a matter of following a proficient public process (O’Keefe 2004, p. 743).

Enforcement jurisdiction pertains directly to the use of coercive authority. Between the two forms of jurisdiction, Enforcement type is the narrowest. This implies that it survives only when the criterion for prescriptive authority exist (Domingo 2003, p. 54).

Enforcement Jurisdiction is applicable only with respect to people, belongings, or behaviors. The connection between the two forms of laws is comprehensible. A state cannot implement enforcement jurisdiction unless it subscribes to prescriptive jurisdiction (Brownlie 2008, p. 38).

A good example that elucidates this connection is the Canadian Criminal code, which states that the state can exercise authority over any individual within Canada. An individual can be impeached whether in a foreign state or in his own country as long as he/she committed an offence.

Judges Higgins and Kooijmans categorize this type of jurisdiction accurately. Prosecuting an individual present in the state is termed as ‘in personam’. Prosecution of an individual who sought refuge to another state is termed as ‘in absentia’ (O’Keefe 2004, p. 755). The decision to implement international law uniformly is meant to bring peace and tranquility in the global society.

List of References

Amerasinghe, C 1994, The Law of the International Civil Service, 2nd edn, Vol. 1, Clarendon Press, Oxford.

Brownlie, P 2008, Principles of Public International Law, 7th edn, Oxford University Press, Oxford.

Dixon, M 2007, Textbook on International Law, 6th edn, Oxford University Press, Oxford.

Domingo, OR 2003, The New Global Law, Cambridge University Press, New York.

Dupuy, MP & Kerbrat, Y 2010, Droit international public, 10th edn, Dalloz, Paris.

Lawson, E & Bertucci, ML 1996, Encyclopedia of human rights, 2nd edn, Taylor & Francis, New York.

O’Keefe, R 2004, “Universal Jurisdiction, clarifying the basic concept”, Journal of International Criminal Justice, Vol. 2, no. 3.

Shaw, MN 2003, International Law, 5th edn, Cambridge University Press, Oxford.

Simma, B & Paulus LA 1999, “Symposium on method in International Law: The Responsibility of Individuals for Human Rights Abuses in Internal Conflicts: A Positivist View”, American Journal of International Law, Vol. 93, no. 302.

Sweeney, B 2007, “Combating Foreign Anti-competitive Conduct: What Role for Extra-territorialism?” Melbourne Journal of International Law, Vol. 8, no. 35.

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IvyPanda. 2019. "Prescriptive Jurisdiction and Enforcement Jurisdiction in International Law." March 28, 2019. https://ivypanda.com/essays/prescriptive-jurisdiction-and-enforcement-jurisdiction-in-international-law/.

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