Open UKLSR Volume 1(2) - Uklsa

UK Law Students’ Review – 2013 – Volume 1, Issue 2
scenarios. With regards to the third category, the Court reiterated the concept of
espace juridique, relying essentially on the same grounds as Bankovic, namely that
there should be no legal vacuum in the jurisdictional reach of the Convention within
the territory of the Council of Europe member states. 10
IV - Beyond Bankovic
In Al Skeini, the Court reasserted the territorial basis of jurisdiction found in Bankovic,
stating that the establishment of further exceptions would be highly dependent on the
particular case. The Court stated:
“In each case, the question whether exceptional circumstances exist
which require and justify a finding by the Court that the state was
exercising jurisdiction extraterritorially must be determined with
reference to the particular facts.” 11
At first blush, one might conclude that Al Skeini does not depart substantially from the
basic principles in Bankovic, but it is the way in which the above three categories
were applied to the facts of Al Skeini which suggests the Court had in mind an
approach which extends beyond previous cases. The Court in Al Skeini arguably
created a fourth category of extraterritorial jurisdiction.
In its conclusions, the Court held that the United Kingdom had taken on some of the
“public powers” which would normally be considered sovereign to Iraq. 12 The Court
continued to reason that:
“In particular, the United Kingdom assumed authority and
responsibility for the maintenance of security in South East Iraq.
In these exceptional circumstances, the Court considers that the United
Kingdom, through its soldiers engaged in security operations in Basrah
during the period in question, exercised authority and control over
individuals killed in the course of such security operations, so as to
establish a jurisdictional link between the deceased and the United
Kingdom for the purposes of Article 1 of the Convention.” 13
The passage cited above stands out because it is shows how the Court’s reasoning
cannot be easily reconciled with a strict-edged approach to the three categories that
were identified earlier in its judgment. Instead, the judgement suggests that the Court
approached the test for jurisdiction by using a broad assessment of the overall degree
to which a respondent state has adopted another state’s public powers, within which
lies a consideration of the role of state agents in exercising authority over individuals
and a consideration of the control of a state over the territory in question. These
considerations may be better understood simply as particular aspects of the overall
question of public power. In this sense a jurisdictional link between the applicants and
the respondent state might be established on the basis of an overall assessment of
‘public power’ attributable to the contracting state. Thus, jurisdiction might exist in
situations where it is not established that the applicant was under the authority and
10 Al Skeini and Others v United Kingdom (n 1) 141.
11 Al Skeini and Others v United Kingdom (n 1) 132.
12 Al Skeini and Others v United Kingdom (n 1) 149.
13 ibid.
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