Open UKLSR Volume 1(2) - Uklsa

90
Al Skeini and Others v United Kingdom
that extraterritorial jurisdiction applies. In Bankovic, the Court considered the
complaints of civilians arising from death, injury and other losses following the
bombing of Belgrade by NATO aircraft in 1999 during the war in Kosovo. The Court
held that jurisdiction was essentially a territorial matter, and created a general rule
that the physical territory of a contracting state would provide the boundaries of its
Article 1 obligations in most circumstances. The Court recognised the existence of
several exceptions developed in its case law, including military occupation and
transfers of power arising from the consent, invitation or acquiescence of the
government of a state. In those exceptional situations the test would be one of whether,
first, the state could be considered to have effective control of an area, and second,
whether the state exercised public powers that would normally be exercised by the
government of the occupied state.
In addition, the Court acknowledged that in order for the Convention to fulfil its
purpose of ensuring human rights protections within the territories of all Council of
Europe states, it was necessary for extraterritorial jurisdiction to apply throughout the
espace juridique of the Convention. In other words, a contracting state would remain
liable for breaches of its Convention obligations even if the breaches occurred in the
territory of another contracting state. If this were not the case, the Court reasoned, a
vacuum of liability would exist within the legal space of the Convention. The
emphasis on the notion of espace juridique in Bankovic supported a restrictive
interpretation of Article 1, limiting the commitment of contracting states to respecting,
protecting and enforcing remedies for violations of human rights only within the
territorial boundaries of the Council of Europe states.
III – Judgment of the Court in Al Skeini
The Court in Al Skeini had to consider the extent of the United Kingdom’s jurisdiction
in a region of Iraq administered by the Coalition Provisional Authority from May
2003 to June 2004 under the responsibility and control of the United Kingdom, whose
troops were deployed in the same area. Six applicants alleged violations of their rights
under the Convention arising from acts attributable to the British armed forces. In
considering the general rule that jurisdiction under Article 1 was essentially territorial,
the Court identified three categories of exceptions to the rule: a state agent exception;
an effective control exception; and an exception based on the concept of espace
juridique.
The first category provides that jurisdiction may be established outside of the territory
of a contracting state through the “authority and control” of a state agent. 8 Existing
examples included: the authority and control held by diplomatic and consular agents;
the authority and control implicit when a non-contracting state gives its consent for
some or all of the public powers of its government to be exercised by a contracting
state; and the authority and control arising where the use of force by an agent of a
contracting state brings an individual under the control of its authorities. The second
category covered situations where jurisdiction may be established as a result of
military action, such that a state is in “effective control of an area” outside of its
territory. 9 The definition of “effective control” appears to have been left deliberately
broad by the Court, leaving scope for further refinement based on future factual
8 Al Skeini and Others v United Kingdom (n 1) 133.
9 Al Skeini and Others v United Kingdom (n 1) 138.