Rethinking Adjudicative Jurisdiction in International Law

Abstract

The contribution of national courts to international law has long been doubted in the international law literature. As an aspect of the state’s power to prescribe, courts have been conceived as organs that merely apply the state’s laws, which may give effect to an international law norm. According to this conception, national courts merely apply and operate within the state’s national legal system and rarely have a direct contribution to international law. However, in enforcement proceedings for international arbitral awards, arising at the intersection between the law of state immunity and the law governing the enforcement of arbitral awards, a number of cases challenge this interpretation. In this area, adjudicative jurisdiction may be emerging as a specific manifestation of the state’s enforcement jurisdiction –– that is, the power to induce or compel compliance with a state’s laws. In view of the lack of clarity regarding the lawful scope of a state’s enforcement jurisdiction in international law, which is arising increasingly in a globalized world where jurisdictional disputes cross territorial borders, the approach put forward in this study may be useful for uncovering potential state practice which may crystallize as customary international law. This article seeks to draw attention to this practice, illustrating how a conception of adjudicative jurisdiction as enforcement jurisdiction is not only timely and useful, but also potentially reflective of emerging state practice. It sets some normative foundations for how such an approach may be defensible and identifiable, thereby proposing that this topic is worthy of further exploration.