In its recently published Advisory Opinion on “The Environment and Human Rights” of 15 November 2017 (in EJIL: Talk! summarized here; on its potential diagonal effect see here), the Inter-American Court is the first human rights court to recognise a new extraterritorial jurisdictional link based on control over domestic activities with extraterritorial effect. This post explains how the conclusions of the Advisory Opinion specifically on the first question recognise a new extraterritorial jurisdictional nexus (1) and argues that despite certain welcome developments (2), the Inter-American Court failed to give a comprehensive guideline as to the limits of the jurisdictional link (3).
1. Summary of the new jurisdictional test
In its advisory opinion, the Inter-American Court had to answer the question whether a State Party has jurisdiction under Article 1(1) of the Pact of San José over a person situated outside the territory of that State Party if his or her human rights have been violated as a result of damage to the environment or of the risk of environmental damage that can be attributed to that State party.
This is the first occasion the Inter-American Court faces the question of the extraterritorial applicability of the American Convention on Human Rights. Therefore, the Court examined the case law of the Inter-American Commission on Human Rights, the European Court of Human Rights and other treaty regimes and confirmed the Convention’s extraterritorial applicability, recognising two alternative bases of extraterritorial jurisdiction: effective control over territory or persons. However, the Inter-American Court did not stop here and accepted a third jurisdictional link “when the State of origin exercises effective control over the activities carried out that caused the harm and consequent violation of human rights” (para. 104(h)). The Inter-American Court widens extraterritoriality by establishing a new jurisdictional link that departs from the criteria for extraterritorial jurisdiction of effective control over territory/persons: it is based on the factual – or, as the Court formulates, “causal” – nexus between conducts performed in the territory of the State and a human rights violation occurring abroad (paras. 95, 101-102). While the European Court of Human Rights (ECtHR) vaguely recognised that “acts of the Contracting States […] producing effects […] outside their territories can constitute an exercise of jurisdiction within the meaning of Article 1” (e.g. Al-Skeini), it has never applied it as a standalone basis to establish the State’s extraterritorial jurisdiction.
The Inter-American Court elaborated the new jurisdictional link by applying the general international principle of due diligence (see its traditional concept in Trail smelter or Corfu Channel cases), while broadening its content. Doing so, the Inter-American Court followed the numerous recommendations of UN treaty monitoring bodies, requiring the States not only to respect human rights abroad, but to prevent third parties from violating human rights in other countries, if they are able to influence these third parties (e.g. CESCR, General comment Nos. 14, 15, 24; CRC, General comment no. 16 or HRC, Draft General comment No. 36).
2. The Advisory Opinion’s importance
The new jurisdictional link is arguably broader than any other extraterritorial jurisdictional nexus used before. Some intervenants in the advisory proceedings warned against such a broadening of the existing case law (e.g. Argentina). We might remember that this is similar to what the ECtHR has carefully struggled to avoid, fearing a “cause-and-effect” notion of jurisdiction (see Bankovic). However, this is not exactly the jurisdictional link that the Advisory Opinion constructs. The new nexus does not bring under the State’s jurisdiction “anyone adversely affected by an act imputable to a Contracting State, wherever in the world” as the ECtHR feared, but the State would incur responsibility for the failure to exercise its due diligence within its territory.
With the new jurisdictional link, the Court opens the door to extraterritorial jurisdiction in various scenarios where a State is factually linked to extraterritorial situations, without physical control over territory or persons, and where it has the knowledge on the risk of wrongful acts and the capacity to protect due to its effective control over activities within its territory. It is enough to think of the proposed jurisdiction of multiple States over migrants at high seas (here), that of the home State for the extraterritorial violations by multinational companies (here) or that of the State of nationality over its nationals seeking diplomatic or consular assistance against human rights violations (see the inadmissible precedents here or here).
While the Court does not distinguish between State actions and omissions that cause an adverse extraterritorial effect (e.g. para. 103), the most important novelty is to expect from States not only negative, but positive obligations in an extraterritorial situation. In other words, if a company operating in State A causes transboundary environmental harm that adversely affects an individual’s life and physical integrity in State B, then the individual is within A’s jurisdiction. This makes sense under due diligence as far as State A failed to take reasonable steps to protect individuals abroad from human rights violations, i.e. it had the capacity to protect and the knowledge on the risk of the wrongful act. However, the devil is in the details: the question whether the new jurisdictional link would place a reasonable or unbearable burden on States depends on its limits.
3. The lack of comprehensive guideline
The Inter-American Court however fails to give a comprehensive guideline and adopts an unqualified formulation of the new jurisdictional nexus, while it should have determined its limits for the sake of legal certainty. The limits are understood as the minimum threshold of the seriousness of the human rights violations, the scope of the affected rights and the nature of the factual/causal link.
Firstly, the Advisory Opinion refers to “significant” or “serious” adverse impact on the environment abroad as a consequence of the State’s failure to exercise due diligence, but it is not clear what gravity the human rights violation shall reach. The Advisory Opinion only focuses on the right to life and the right to personal integrity, and concludes that “any damage to the environment that may entail a violation” of those rights (para. 140). Beyond referring to the usual case-by-case analysis, the Court could have set a minimum threshold, similarly to the fourth report of the ILC Special Rapporteur on the protection of the atmosphere, who held that there must be a minimum level of environmental degradation to be able to amount to a human rights violation: “[t]he assessment of that minimum standard is relative and depends on the content of the right to be invoked and all the relevant circumstances of the case, such as the intensity and duration of the nuisance, and its physical or mental effects”.
Secondly, it is unclear whether the State’s non-compliance with its due diligence can establish its extraterritorial jurisdiction with regard to only the most important rights such as the right to life and the right to personal integrity or any rights under the American Convention. The general wording of the cited conclusions implies such a broader view. This could be problematic especially regarding economic, social and cultural rights under Article 26 of the Convention which require from the State a duty of progressive realisation and where the threshold of due diligence is different for each member State. Shall the Court look at the threshold of ECOSOC rights in the State of origin or in the State of the occurrence of the harm? Can “serious” adverse impact on the right to property in State A by activities under the effective control of State B performed within its territory instigate the extraterritorial jurisdiction of State B? The range of affected human rights opens a series of new questions that the Advisory Opinion should have addressed.
Thirdly, the Inter-American Court should have given a guideline as to the required factual/causal link, especially as to the required proximity. The Advisory Opinion merely speaks about a link of causality (paras. 101, 103), “possible” significant harm (para. 189) or “plausible” factors of the risk (para. 180). Referring merely to “causality” might be an oversimplification to describe the often complex factual link between the State’s omission and its extraterritorial consequences, especially in case of a multiplicity of States contributing to the human rights violation. Causation is linked to questions of foreseeability and proximity or direct harm. Other monitoring bodies have applied certain tests to better identify this link: the European Court of Human Rights required “direct and immediate link” in Article 8 cases; “direct and immediate cause” (Andreou); “sufficiently proximate repercussions” (Ilaşcu); “real and immediate risk” (Rantsev); while the HRC’s Draft General Comment No. 36 provides for “a [direct], significant and foreseeable impact on the right to life of individuals”. In one paragraph, the Advisory Opinion does refer to such a threshold of “real and immediate risk” (para. 120), but only with respect to the protection of the right to life. To serve legal certainty, and in conformity with the Court’s intention to interpret cases of extraterritorial jurisdiction restrictively, as an exception (paras. 81, 104(d)), the minimum proximity of the factual/causal link should have been formulated as a threshold criterion of the new extraterritorial nexus. In other words, the unlimited formulation by the Inter-American Court does not explain how causality can be interpreted as an exceptional situation of extraterritorial jurisdiction.
While the construction of the jurisdictional link based on due diligence is a welcome development that other universal and regional human rights bodies might follow, its limits are still unclear. Now it is up to the applicants – individuals, NGOs and perhaps States Parties? – to exploit the potential of the new jurisdictional link and define its limits.