Exploring the boundaries of international law
Exploring the boundaries of international law

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Exploring the boundaries of international law

4.2 Types of jurisdiction

A distinction is made between prescriptive jurisdiction and the jurisdiction to adjudicate and to enforce (Figure 3).

Figure 3 Types of jurisdiction

A state has prescriptive jurisdiction to enact laws that are applicable to individuals, property and events, both within and outside its territory. National laws are able to bind its nationals abroad and may be applicable to certain events or conduct abroad that affect the state asserting jurisdiction. For instance, a state may legislate for crimes that occur abroad which it considers a threat to its security or to its economic interests. It is this type of jurisdiction to which the second part of the excerpt from the Lotus judgment refers.

Example of prescriptive jurisdiction: treason in the United Kingdom

In the UK the offence of treason may be committed by any person who owes allegiance to the Crown, wherever the act of treason took place.

The jurisdiction to adjudicate (the power to hear and settle legal disputes) and the jurisdiction to enforce (the power to ensure compliance with legal commands) are territorially limited. In practice, this limits prescriptive jurisdiction as a state cannot enforce its prescriptive jurisdiction within another state; the operation of the police and the courts system are limited to the territory of the state. It is this type of jurisdiction to which the first part of the Lotus Judgment refers. A state cannot in the absence of permission exercise prescriptive jurisdiction outside of its territory. However, there are some rare occasions where states agree that this should occur.

Example of adjudicative jurisdiction: the UK/Netherlands Agreement 1999 permitted the trial of the two Libyan Lockerbie bombing suspects by a Scottish court, according to Scots law, in the Netherlands.

You will look at this case in more detail in Section 4.3.1 of this course.

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