Revisiting Extraterritoriality after Al-Skeini: The ECHR and Its Lessons

On July 7, 2011, the European Court of Human Rights, sitting as a Grand Chamber, handed down two long-awaited judgments on the subject of the extraterritorial reach and scope of the European Convention on Human Rights (ECHR). In both Al-Skeini v. United Kingdom and Al-Jedda v. United Kingdom, the underlying issue was whether or not the United Kingdom was bound by its treaty obligations under the ECHR with regard to its military presence in Iraq. Al-Skeini involved the joined claims of six Iraqi nationals whose relatives were killed while allegedly under U.K. jurisdiction in Iraq; they claimed a lack of effective investigation into the deaths under Article 2. In Al-Jedda, a dual Iraqi-U.K. citizen challenged the lawfulness of his three-year detention in a British-controlled detention facility in Basrah City, Iraq. Both cases touch on the pivotal issue of U.K. jurisdiction over persons in Iraq, though the paths taken in the analysis of each case diverge from the outset. For Al-Skeini, the critical calculus was determining the existence of Article 1 jurisdiction, from which all ECHR obligations follow, while Al-Jedda’s inquiry focused primarily on the presence of attribution, without which no international responsibility could lie. Because of its greater bearing on Article 1 jurisdiction, Al-Skeini will be the primary focus of attention here. This Article seeks to comprehensively examine the Court’s treatment of extraterritoriality by tracing the history of provisions relevant to the issue as well as its evolving jurisprudence, including these recent landmark cases.