Open UKLSR Volume 1(2) - Uklsa

92
Al Skeini and Others v United Kingdom
control of the respondent state, and it is not established that the territory on which
they were said to have suffered their grievance was under the authority and control of
the respondent state.
V - A Functional Approach to Jurisdiction
This brings us to the thoughtful remarks of Judge Bonello, who has since retired from
the Court. Advocating a broader approach to the extraterritorial obligations of
contracting states, Judge Bonello made the point that states who have signed up to the
immutable principles which underlie the fundamental functions of the Convention
ought to be willing to do their utmost to work towards the supremacy of the rule of
human rights law wherever they can, not just on an à la carte basis on their home turf.
An alternative approach would be based on the functionality of the powers
attributable to a state:
“States ensure the observance of human rights in five primordial
ways: firstly, by not violating (through their agents) human rights;
secondly, by having in place systems which prevent breaches of human
rights; thirdly, by investigating complaints of human rights abuses;
fourthly, by scourging those of their agents who infringe human rights;
and, finally, by compensating the victims of breaches of human rights.
These constitute the basic minimum functions assumed by every state
by virtue of its having contracted into the Convention.
A “functional” test would see a state effectively exercising
“jurisdiction” whenever it falls within its power to perform, or not to
perform, any of these five functions. Very simply put, a state has
jurisdiction for the purposes of Article 1 whenever the observance or
the breach of any of these functions is within its authority and
control.” 14
The comments of Judge Bonello reward close reading, especially as he goes on to
deal with a number of the potential barriers to a functional approach that were raised
during the case. Against the problem of indivisibility of human rights, the Judge
argues that a state need not enforce all of the rights in the Convention merely because
extraterritorial jurisdiction has been established. A finding of extraterritorial
jurisdiction may obligate a state to enforce certain human rights, but under a
functional approach, a state would only be obligated to enforce the human rights
which it is in a position to ensure. For example, although the United Kingdom as an
occupying power in Iraq might not be in a position to ensure rights to education under
Protocol 2 Article 1, it may very well be in a position to enforce Article 3 rights to
freedom from torture.
Judge Bonello admits a streak of idealism to his approach, but contends that adopting
such an approach is preferable to giving in to the seductive rhetoric of “human rights
imperialism.” 15 The United Kingdom government had argued earlier in the case that
imposing extraterritorial jurisdiction would involve putting the United Kingdom in
the position of a human rights imperialist. But as the Judge hinted, if a state is
14 Al Skeini and Others v United Kingdom (n 1), Judgment of Judge Bonello, 10-11.
15 Al Skeini and Others v United Kingdom (n 1), Judgment of Judge Bonello, 37.