Al-Skeini: A Search for a Balanced Approach to Extra-Territorial Jurisdiction

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.