Beyond Territoriality: Symposium on Jurisdictional “Hooks” for (Extraterritorial) Human Rights Obligations – Post Agostinho Learning Moments for Extraterritorial Jurisdiction in Human Rights Law, Using a Public International Law Perspective

[Charlotte E. Blattner is senior researcher and lecturer at the Institute for Public Law, University of Berne. She specializes in public international law and climate law, and is the author of Protecting Animals Within and Across Jurisdiction (OUP).]

Introduction

For some time now, the European Court of Human Rights (ECtHR) has been widely accused of its “erratic and unprincipled” case law on extraterritorial jurisdiction, to the point that this would threaten its role as a human rights guarantor. The issue recently came to a head with a new wave of climate change cases brought to Strasbourg, notably in the Duarte Agostinho case. Earlier decisions by other international adjudicatory bodies suggested that the Court should have taken a leap of faith in the Agostinho case and established jurisdiction for foreseeable “human rights-curtailing” effects on foreign territory if there is a direct and causal link to domestic actions or inactions. Voices from within academia, though generally supportive of the idea that the Convention rights should be effectively protected including through an expansion of its jurisdiction, warned that following its international counterparts with an effects-based principle would render the ECtHR’s case law even more erratic and unprincipled. Following this warning, in its ruling delivered on 9 April 2024, the Court erred on the side of caution (though not necessarily on the side of principle), and, as some would argue, to the detriment of effective human rights enjoyment.

Settled as the issue may appear for now in Strasbourg, extraterritorial human rights obligations (ETOs) are bound to plague human rights law (HRL) going forward. This is because, as this post hypothesizes, HRL suffers from deeper shortcomings in the design and basic features of extraterritorial jurisdiction. Drawing on jurisdiction in public international law (PIL) more broadly, this piece discusses three options to remedy the issue of extraterritorial jurisdiction in HRL: (i) shifting the burden of proof for a jurisdictional link; (ii) doing away with jurisdiction in HRL; and (iii) reconceptualizing it to bring about a dense net over overlapping jurisdictions.

Climate Change Cases Are About More Than Climate Change

The Court faced a double burden of establishing an adequate jurisdictional link to adjudicate at least some dimensions of the global phenomenon of climate change and determining whether and to what extent State parties are obliged to effectively reduce “their” (sic!) greenhouse gas (GHG) emissions as part of their human rights obligations. Of the three climate-related cases decided by the Grand Chamber, the Duarte Agostinho case placed an additional burden on the judges to determine whether climate-related threats and damages incurred by people in one State fall under the jurisdiction of the State where GHGs giving rise to these effects emanated. 16 Portuguese children claimed that their home state, along with 32 other states, exercised a significant degree of control over their rights to life and privacy threatened by anthropogenically produced heatwaves and forest fires, by governing their land and resources in a GHG-heavy manner and extracting or importing undue amounts of fossil fuels. Following a long line of erratic, confusing, and unprincipled judgments about extraterritorial obligations (ETOs), often in the context of overseas military operations, active hostilities, and occupation, the Agostinho case was seen as an opportunity for the Court to establish a “novel set of circumstances which force(s) the Court to give renewed consideration to the meaning of jurisdiction.”

Extraterritorial Jurisdiction at the Strasbourg Court

At the ECtHR, jurisdiction is understood to be “principalement territoriale” (para. 98). The few accepted instances of extraterritorial jurisdiction tend to be narrowly defined by reference to “control” (paras 133-140; compare HRC, para. 10). The Court recognizes “special features” giving rise to an exercise of jurisdiction by a state in broadly three cases: (i) “effective control over an area” (para. 103), (ii) “State agent authority and control” (paras 547-572); and (iii) “specific circumstances of a procedural nature”, such as opening domestic proceedings (para. 330). Overseas military operations, security actions on foreign soil, and consular or diplomatic personnel exerting control over others abroad are) thus all part of the Court’s few “low hanging fruits” of accepted extraterritorial jurisdiction.

The trickier cases and the ones that carry the bigger potential to contribute to the full realization of human rights, namely domestic actions involving no physical presence on foreign territory but producing significant “human rights-curtailing” effects there. Examples include everything from cross-border shootings through unmanned aerial vehicles, to digital surveillance activities on foreign territory, to large-scale anthropogenic pollution causing human rights violations abroad. These cases matter, since today – more than ever – seemingly orderly and innocuous actions like using the internet, making investments, furthering one’s economic prosperity, and so on, can directly and tangibly compromise the lives of people elsewhere on the planet.

Toward Effects-Based Extraterritorial Jurisdiction in Human Rights Law?

The issue is currently coming to a head in climate change litigation. The Inter-American Court on Human Rights (IACtHR), eight human rights treaty bodies, and the African Commission on Human and Peoples’ Rights have all interpreted their respective instruments to establish extraterritorial jurisdiction for effects produced abroad if they manifested as a direct consequence reasonably foreseeable for domestic actors. A similar line of argument might be expected from the International Court of Justice (ICJ) in its Advisory Opinion on obligations of States in respect of climate change, owing, among others, to the recently recognized human right to a healthy environment. Also domestic courts, such as the German Constitutional Court, have accepted that it is “conceivable in principle that states must take action against the adverse effects of climate change vis-à-vis complainants living in Bangladesh and Nepal as part of their obligation to protect”.

The Strasbourg Court in principle recognizes that “acts of the States Parties performed, or producing effects, outside their territories can constitute an exercise of jurisdiction within the meaning of Article 1 of the Convention” (para. 185). The precise contours of these effects have been challenged time and again, resulting in what now seems to be an erratic and unprincipled assemblage of jurisdictional confusion. Notably, to date, the Court has in no case accepted that effects alone, even if a foreign State has control over them, are sufficient to establish its jurisdiction in the absence of a State’s physical presence. Academics have long criticized this and proposed a more effective test of “functional” or “impacts” jurisdiction, with variants differentiating between negative and positive obligations, or actions and omissions. Even from within the Bench, judges have lamented, as Judge Bonello did in Al-Skeini v. UK, that “it would be an imposture to claim that, ah yes, that State had authority and control, but, ah no, it had no jurisdiction” (para. 12). It is precisely this narrow view on jurisdiction that “push(es) the Court to an extremely isolated position worldwide and thus discredit(s) its role as a human rights guarantor in Europe,” as Judge Pinto De Albuquerque warned ( para. 2).

From within academia, more and more voices caution against expanding extraterritorial jurisdiction through impacts/effects – or at least for it to be done in an unprincipled manner. Besson points out that the turn toward effects-based jurisdiction in human rights law (HRL) overlooks that a relation of jurisdiction must be established between the alleged duty-bearing State and the right-holder. What is needed, she argues, is effective control, not over the source of harm or the events giving rise to the harmful effects, but over the right-holder. Focusing on the capacity to harm alone “risks diluting the relational specificity of human rights and of their correlative duties, and eventually undermining international human rights law’s capacity to protect.” Similarly, Raible argues that an effects-based principle in HRL wrongly forces us to accept that “can implies ought.” As a consequence, duties are placed on actors that might not or cannot fulfill them. And while the capacity to act may be a necessary condition for jurisdiction, Raible explains, it is not a sufficient one. What is needed instead, she argues, is a more principled understanding of jurisdiction, one which more precisely identifies who is owed what and by whom.

… not in Strasbourg

In its ruling in Agostinho, the Strasbourg Court disagreed with the applicants that any of its exceptional bases of extraterritorial jurisdiction should apply (para. 181 ff.) It also explicitly rejected the idea that climate change cases should be of such a special nature as to warrant an extension or a new basis of extraterritorial jurisdiction (para. 195). It dismissed both positive obligations and state capability to impact individuals’ situations abroad as grounds for an extraterritorial reach of its human rights guarantees (paras 199 and 205). Doing so would “lead to an untenable level of uncertainty” and “turn the Convention into a global climate-change treaty” (para. 208). Instead, it emphasized that it is control over actual persons (rather than their interests) that operates as a threshold link (para. 205). In a refreshingly grounded manner, the Court reminded us that “the major sources of GHG emissions are in fields such as industry, energy, transport, housing, construction and agriculture and arise in the context of basic human activities within a given territory” (para. 207). And concluded from this that “combating climate change through the reduction of GHG emissions at source is chiefly a matter of exercise of territorial jurisdiction” (para. 207). The Court was well aware of the fact that in doing so, it would take a fundamentally different jurisdictional route to what we’re observing in IHRL (para. 212).

Understandable as this may be considering the critique of its previous take on extraterritorial jurisdiction and the dangers of taking it to extremes in climate change cases, it is regrettable that the Court did not seize this opportunity to develop a jurisdictional approach to extraterritoriality that is both conceptually more robust and normatively well grounded. Regarding the latter point, it is predictable that the applicants in the Agostinho case will have a hard time accepting its narrow view on jurisdiction when in the sister case KlimaSeniorinnen, the Court showed much more attentiveness to the specificities of climate change in substance. With a view to states’ margin of appreciation in fulfilling their positive obligations in the context of climate change, the Court held that “climate protection should carry considerable weight in the weighing-up of any competing considerations. Other factors militating in the same direction include the global nature of the effects of GHG emissions, as opposed to environmental harm that occurs solely within a State’s own borders, and the States’ generally inadequate track record in taking action to address the risks of climate change” (para. 542). Functionally speaking, this weight could also have been given to climate protection with a view to jurisdiction.

Jurisdiction in PIL and HRL – Same But Different?

For people outside HRL, the question of whether effects give rise to jurisdiction seems a no-brainer, for some 100 years ago, the Permanent Court of International Justice had already answered this question in the infamous S.S. Lotus case. Could Monsieur Demons, a French lieutenant on watch duty of the French steamer S.S. Lotus, which had collided with the Turkish steamer S.S. Bozkurt, be tried by Turkey for the death of eight Turkish nationals by Turkey? France insisted it could not, since the S.S. Lotus flew under the French flag and the effects felt aboard the Turkish steamer were neither intended nor by themselves legally relevant. The Court acknowledged that the “two elements [of origin and effects] are, legally, entirely inseparable, so much so that their separation renders the offence non-existent.” Rather than accepting the resultant void as lawless space, the Court held that “(n)either the exclusive jurisdiction of either State, nor the limitations of the jurisdiction of each to the occurrences which took place on the respective ships would appear calculated to satisfy the requirements of justice and effectively to protect the interests of the two States.” This marked the birth of the effects principle in public international law (PIL), which today underpins and contributes to the effective functioning of criminal, banking, competition, and private international law.

So how is it that extraterritorial jurisdiction is firmly accepted and practiced in economically dominated fields of law, leading to a dense and overlapping net of jurisdiction? How come that in HRL, where such “wide and overlapping jurisdictional claims” are all the more desirable and necessary to ensure the full realization of human rights, jurisdiction is understood narrowly and handled in an inconsistent manner? These questions cannot be answered by examining treaty language, jurisdictional links, and case law alone. Across PIL and HRL, extraterritorial jurisdiction seems to be radically different. The following chart outlines the basic differences in schematic fashion, which I elaborate on below.

Let’s start with the historical emergence. In PIL, extraterritorial jurisdiction arose when states first sought to expand their economic and political power abroad, such as through diplomatic missions or military forces employed abroad. Debates about the extraterritorial reach of human rights obligations, by contrast, relatively recently emerged as a response to gaps in protection faced by people in problematic cross-border relations.

Relatedly, the normative provenance of extraterritorial jurisdiction differs in PIL and HRL. The normative provenance of extraterritorial jurisdiction in PIL can be traced back to geopolitical and economic interests. In HRL, it is human-centered cosmopolitan conception of justice.

Accordingly, the interests underlying jurisdiction differ, too. In PIL, states exercise extraterritorial jurisdiction mostly in self-interest. In HRL, as Ryngaert would put it, there is a latent common and selfless interest that drives the question of whether jurisdiction reaches across state borders.

The directionality of jurisdiction differs in PIL and HRL. Under the law of jurisdiction, states resort to extraterritorial jurisdiction to expand their jurisdictional reach. So the directionality is outward and operates horizontally. Looking at ETOs, the directionality is outward, too, but not horizontal. If you will, we have States, IGOs, NSAs on the “supply side” and individuals, interest groups, and NGOs from state A on the “demand side”, which makes this a diagonal relationship. In public international law, by contrast, such disputes usually take place among and between states (see also on this relationship Agostinho, para. 212).

Due to these dynamics, the burden of proof to make the case for a jurisdictional link in PIL usually lies with states. In HRL, by contrast, individuals, interest groups, and NGOs face the burden of showing a sufficient link of actions to a state. This is especially problematic, considering that these actors have a different capacity to cover the costs of lengthy legal proceedings and access to legal knowledge about how to win a case.

Probably the biggest divergence between PIL and HRL concerns the nature of jurisdiction. The jurisdictional limits determined by international law operate in an ultima ratio manner. The norms of international law do not provide an optimum level of regulation but require that states meet minimum standards when they exercise jurisdiction in cross-border scenarios. The minimum standards of the law of jurisdiction manifest as prohibitory rules like the duty not to intervene in the domestic affairs of another state. They can also take the form of positive, permissive rules on which states can base their extraterritorial jurisdiction. However, large, the law of jurisdiction does not require states to legislate extraterritorially. Jurisdiction in HRL is radically different in nature. The question of extraterritorial reach is not one of jurisdiction, determining as Raible criticizes, a sufficient prima facie connection. It is not by chance that the discussion about extraterritorial jurisdiction in HRL takes place under the name of extraterritorial obligations. Jurisdiction, in other words, is used as a shorthand for obligation in this context.

Jurisdictionally speaking, the most likely outcome in PIL is that there is an incompatible positive conflict of jurisdiction, i.e., where two or more states assume jurisdiction over the same case. Looking at HRL, by contrast, the biggest risk is that we have a negative conflict of jurisdiction, i.e., no state assumes jurisdiction over a human-rights-relevant case.

Jurisdictional Learning Moments for HRL?

It’s clear that jurisdiction in PIL and HRL cannot readily be compared since they are governed by different treaties, abide by different principles, and hence follow different interpretations of jurisdiction. Nonetheless, considering recurring debates about ETOs and the limited likelihood that they’ll be settled in the near future, it seems worthwhile to explore if there are any “learning moments” from this comparison (see also here). By way of conclusion, I briefly outline three options that may contribute to remedying the lamented issues of jurisdiction in HRL.

First, regardless of the outcome of a decision about jurisdiction, the burden of proof should be shifted. Rather than having individuals, interest groups, and NGOs facing the exclusive burden of proving a jurisdictional link, it should be states, who are after all under a duty to respect, protect, and fulfill human rights, to show why in a specific case, they should be under no such obligation. This should especially be the case for information asymmetries and systemic patterns of violations.

Second, we could simply do away with jurisdiction in HRL. The above comparison has shown that rather than merely differing in reach and interpretation, jurisdiction serves two completely different functions in these areas. In PIL, jurisdiction makes the prima facie case for a state’s authority to regulate. In HRL, jurisdiction is used as a shorthand for obligation. It immediately defines the substantive issues and operates in compulsory and exclusive fashion. Though this is of course intended due to the rights-based nature of HRL, the effect is that states handle jurisdiction in an evasive manner. This issue comes to a head in the mentioned climate change cases. Precisely in those instances, where no one seems to act on foreign territory in a direct, physical sense, but where domestic actions directly and foreseeably cause effects abroad that are relevant from a human rights perspective and control (broadly speaking) is lost, adjudicatory bodies should openly discuss the substance of the law rather than hiding behind a conceptually weak idea of jurisdiction. Hence, carrying this to extremes, it seems fair to ask if HRL would not be better off without the concept of jurisdiction.

Third, and as an alternative to the second suggestion, HRL might want to use PIL as a model and introduce jurisdiction as a proper concept, such that jurisdiction makes a prima facie case for a state’s authority that is not necessarily compulsory and exclusive, but which may overlap with another state’s jurisdiction. In this case, the principles determining who is owed what and by whom are second in order, following the primary jurisdictional ones. A nod into this direction can be seen in the ECtHR’s endorsement of the applicants’ position in the Agostinho case that “the issue of jurisdiction should be separated from the question of (…) actual responsibility for the impugned violations of the Convention” (para. 178). Taking this separation of jurisdiction and substance to extremes, one could adopt theories of concurrent jurisdiction from PIL or use a more sophisticated framework of common but differentiated responsibility. Doing so may complicate things at first sight, but it may also lead to more coherence in international law (due to the apparent counterparts in PIL), and gradually get HRL to sensibly soften its antiquated territorial conception of jurisdiction.