Abstract:
This paper provides a critical analysis of the majority decision in Al-Skeini and a comparison with
Judge Bonello’s functional jurisdiction approach. It looks at the majority’s test for extra-territorial
jurisdiction in respect of Article 1 of the Convention and the deficiencies with this test. It then
compares it to Judge Bonello’s approach and his attempt at a fairer approach. It also looks at the
current presumption of jurisdiction and the burden of proof resting with the applicant. It then
considers Judge Bonello’s proposal to reverse this burden in certain circumstances before
comparing the two approaches. In considering the deficiencies with both the majority’s and Judge
Bonello’s approaches, it offers an alternative approach that potentially addresses the heart of Judge
Bonello’s concerns without going that step too far.
