Beyond Territoriality: Symposium on Jurisdictional “Hooks” for (Extraterritorial) Human Rights Obligations – Human Rights Relationships Across Borders in the Triple Planetary Crisis

[Sara L. Seck is the Yogis & Keddy Chair in Human Rights Law at the Schulich School of Law, Dalhousie University, where she is also the Director of the Marine & Environmental Law Institute.]

The intertwined global ecological and social crises of today have implications for the framing of human rights obligations that cross borders. We are living in a time of planetary crisis increasingly described as the Anthropocene era. However, not all humans contribute equally to planetary crisis, nor are all humans equally harmed by it, nor equally at risk of future harms. The United Nations Environment Programme (UNEP) describes the interconnected ecological challenges of the time as the triple planetary crisis of climate, nature loss, and pollution and waste, with grave implications for human rights of the most vulnerable who are also the least responsible. To move beyond the ‘universal we’ understanding of the human that pervades framings based on the Anthropocene, alternate terminology, such as the Capitalocene, is sometimes proposed. Related racial capitalism critiques of climate responses have a particular poignancy in elucidating the struggles of those sacrificed by the take-make-waste fossil-fuel economy.

The interconnected ecological realities of today and their intertwined social dimensions provide a stark contrast to the territorially bounded nation state that is invoked by the word ‘extraterritorial’, whether in relation to the exercise of jurisdiction or the extent of human rights obligations. ‘Extraterritorial’, as the binary opposite of ‘territorial’, invokes the fiction of the bounded autonomous state, mirroring ‘liberal man’. Rich states often pretend to be bounded autonomous beings, erecting border walls (whether real or performative) to keep climate migrants (refugees) out while at the same time refusing to take responsibility for their failure to reduce the greenhouse gas emissions that collectively cause the climate harms that migrants flee. Yet, however states may imagine themselves, ecological systems have never respected the fiction of territorially bounded sovereignty, as evident from the ease of movement of non-human species across borders, such as migratory birds or marine mammals. Unfortunately, toxic substances also move with ease across state borders, accumulating in the food chain and human bodies even in remote parts of the world.

As I have argued elsewhere, conceptualizing human rights obligations across borders in relation to environmental harms as extraterritorial is not helpful, and even creates confusion. It is better to adopt a relational approach to legal analysis that deliberately draws attention to the nature of the relationship at issue to which an obligation may attach. In short, rather than focusing on the question of where to draw a hard line between territorial and extraterritorial obligations of a state, a relational approach asks how a state is acting, and whether relationships arising through state actions give rise to responsibilities.

As powerfully explored by Karen Knop 30 years ago, while it is common to analogize the state to an individual, the individual (male) of liberal thought surrounded by solid impermeable boundaries that protect its autonomy is a very different individual from that put forward by feminist theorists. Among the diversity of feminist approaches are strands that propose a view of the state as surrounded by permeable boundaries and infused with an ethic of care. This includes environmental stewardship and so is of particular relevance to analysis of both state obligations and business responsibilities in relation to environmental and climate justice, topics I have explored inspired by the work of Knop and others.

A relational approach flows easily if the starting point is international environmental law, rather than international human rights law. For example, physical border crossing movements of hazardous substances (such as air or water pollution) from a state of origin that impact the territory of a second state are generally understood as transboundary. This idea is reflected in Principle 2 of the Rio Declaration, often referred to as the “do-no-harm-principle”, and mirrors terminology used by the International Law Commission in the 2001 Draft Articles on the Prevention of Transboundary Harm from Hazardous Substances. The second half of Principle 2 of the Rio Declaration speaks of activities undertaken within the borders of the originating state that cause harm to areas beyond the jurisdiction of any state – this might be better described as harm to the global commons. Accordingly, international environmental law’s “do-no-harm-principle” is clear that state obligations exist to prevent both transboundary and global commons harms.

The application of a relational approach in the context of transnational corporate environmental human rights accountability is less obvious but equally fruitful. The starting point of Rio Principle 2 is the sovereign right of states to exploit their natural resources in accordance with their own environmental and developmental policies. Rio Principle 11 provides that environmental standards in developing countries need not be as stringent as those in developed countries. Yet, if understood through a human rights lens as an environmental justice issue, a home state of a transnational enterprise investing in a host state has an obligation to regulate transnational corporate conduct so as to prevent environmental harms and protect the human rights of vulnerable groups, and an obligation to enable remedy through access to home state judicial organs. Host states, invoking a bounded autonomy view of the state, could protest that this unilateral extraterritorial home state regulation and adjudication infringes their sovereignty over natural resources, while reluctant home states could use concerns over extraterritoriality as an excuse for failing to regulate or adjudicate these harms. A relational approach would avoid framing these scenarios as raising extraterritoriality concerns, and instead adopt terminology that draws attention to the relationships at issue, such as ‘transnational’ regulation. After all, transnational or multinational corporate enterprises are not typically described as extraterritorial corporations. As explored by Caroline Omari Lichuma in this symposium, the relational approach extends well to human rights and environmental due diligence legislative initiatives. Moreover, it could inform the reach of corporate due diligence understood as a direct obligation under international law, as advocated in this symposium by Gamze Erdem Türkelli.

Questions would nevertheless arise as to the nature and legitimacy of this transnational regulation, as well as the existence of an obligation to regulate transnationally on the facts: is the aim of the regulation to ensure that enterprises with a real and substantial connection to the regulating state are applying equally stringent human rights and environmental rules in their operations in foreign states that may (or may not) lack regulatory capacity? Might this be undertaken in order to comply with the (home) state duty to protect human rights from violations by transnational business enterprises within state jurisdiction or control? Have the views been sought from those in the host state that the transnational regulation is designed to protect, so as to avoid any inadvertent overreach?

A different (hypothetical) example arises where the regulating state contemplates enacting legislation designed to keep its own citizens from purchasing products originating from foreign states with less stringent environmental or human rights policies The motivation for such legislation might be to comply with the state duty to protect human rights in relation to climate change through regulation and adjudication of transnational business value chains. For example, the consumption patterns of its citizens may exceed its fair share of the global carbon budget, and a failure to reign in the excessive greenhouse gas emissions arising from the overconsumption patterns of its citizens may place the state in a position of violating the human rights of those in climate vulnerable states. Alternately, the regulating state may be trying to address its citizens’ overconsumption of forestry products out of concern that their overconsumption is destroying carbon sinks that are essential for climate mitigation. While any trade measures would have to comply with the WTO, the point is that it is not helpful to describe these measures simply as ‘extraterritorial’ – although from the perspective of the exporting state they may be seen as such. More appropriate terminology might be to view these as initiatives designed to address common concerns of humankind – mirroring the terminology of the climate regime.  Whether to see this type of regulation as compliance with an extraterritorial obligation (human rights & climate), or violation of an extraterritorial obligation (to not infringe sovereignty of other states) differs depending on one’s perspective. Either way, the term ‘extraterritorial’ is not helpful.

The (unilaterally) regulating state in the above two examples may be doing so out of a sense of obligation under international human rights law, informed by international climate law. It is nevertheless important to scrutinize such measures to ensure that they truly are designed in response to obligations under international law, including an obligation not to cause or contribute to human rights violations arising from climate change. The concern is that they may be neo-colonial initiatives that punish producers in developing countries for failing to meet the environmental standards of the regulating developed state, a concern specifically flagged by Rio Principle 11 that would simultaneously violate Rio Principle 12 as an unjustifiable trade restriction. Careful relational scrutiny can ensure that international solidarity and international cooperation are driving regulatory responses to global ecological crisis without exacerbating social crises especially in developing states that bear the burden of planetary crisis yet have not historically benefited from the fossil fuel economy that is its cause. 

There are encouraging signs in the climate context that relational expressions of transboundary harm are being called into play to describe the spatial dimensions of human rights obligations, such as in the Sacchi decision of the Committee under the Optional Protocol of the Convention on the Rights of the Child.  While ultimately inadmissible due to a failure to exhaust local remedies, the Committee carefully describes the novel issues raised as involving transboundary climate harms distinct from questions of extraterritorial human rights jurisdiction (Sacchi et al paras 10.4-10.5). Unfortunately, the same cannot be said for the jurisdictional analysis of the European Court of Human Rights (ECtHR) in the recently released decision in Duarte Agosthino. The image of the state as a bounded autonomous individual dominates the ECtHR’s analysis of jurisdiction which is stuck in the realm of territoriality vs extraterritoriality as enunciated in previous ECtHR jurisprudence. As a result, the ECtHR fails to grapple with the reality that, however inconvenient it might be for states that wish to evade their common concern responsibilities, environmental challenges like climate change have consequences for human rights both within and outside the territory of emitting states. Just as there is no bright line between human rights and the environment, so too is there no bright line dividing territoriality and extraterritoriality. Moving forward, it is crucial that advocates do not fall into the seductive trap of simplicity created by the binary territorial versus extraterritorial distinction. International cooperation and solidarity in solving interconnected global ecological challenges is essential and attention to relationships of responsibility within and across borders in a key piece of the puzzle.