Extraterritorial human rights obligations of states for transboundary climate harm: a brief look at recent developments

The determination of territorial jurisdiction for transboundary climate harm presents a significant legal challenge in climate change litigation as evidenced by recent cases decided by the European Court of Human Rights (ECtHR) and the Committee on the Rights of the Child. While it is widely accepted that states have extraterritorial human rights obligations under certain circumstances, the transboundary impacts of climate change give rise to novel jurisdictional issues. This contribution seeks to highlight these issues and explore how the relevant human rights bodies have dealt with them.

On 9 April 2024, the Grand Chamber of the ECtHR issued the much-awaited judgments in three climate change cases, including Duarte Agostinho and Others v. Portugal and 32 Others. The six young applicants in this case claimed that Portugal and 32 other state parties of the European Convention on Human Rights violated several articles —specifically Articles 2, 3, 8, and 14—by failing to take sufficient and timely measures to combat the adverse impacts of climate change. The applicants also relied on other relevant international frameworks, such as the Convention on the Rights of the Child (CRC) and the Paris Agreement, to support their claims.

The European Court in Strasbourg declared the Duarte Agostinho case inadmissible based on two grounds. The first was the failure to exhaust domestic remedies, which the Court used to declare the complaint against Portugal inadmissible. The complaint against the other 32 respondent states was found inadmissible due to a lack of territorial jurisdiction. Territorial jurisdiction not only determines the scope of human rights obligations of states but also is one of the main admissibility requirements in human rights complaint procedures, including the ECtHR. Only individuals subject to the state’s jurisdiction, which can be territorial or extraterritorial, can bring a complaint against that state.

The applicants argued that the novel and exceptional transboundary impacts of climate change serve as a basis for extraterritorial obligations of states. The Court agreed with the applicants’ argument that states have control over the activities within their territories that contribute to greenhouse gas emissions and there is a certain causal link between those activities and the transboundary human rights impact. The Court also acknowledged the fact that climate change poses an existential threat to humankind and requires an urgent response from states. The Court, however, found “that these considerations could not in themselves serve as a basis for creating by way of judicial interpretation a novel ground for extraterritorial jurisdiction or as justification for expanding on the existing ones” (para.195).

A similar issue was raised in 2019 in the case of Chiara Sacchi et al. v Argentina before the UN Committee on the Rights of the Child by a group of 16 children from 12 states, including the prominent climate activist Greta Thunberg. The applicants claimed that the respondent state violated several articles of the CRC, including those on the rights to life and health, by failing to take adequate measures to prevent or mitigate the adverse impacts of climate change. The respondent state, Argentina, contested the admissibility of the case on several grounds, including the lack of territorial jurisdiction concerning the authors who are not nationals or residents of Argentina. The Committee noted that the “communication raises novel jurisdictional issues of transboundary harm related to climate change” (para.10.4). Although this case was also declared inadmissible for failure to exhaust domestic remedies, the Committee’s reasoning regarding extraterritorial obligations departs from that of the Strasbourg Court. While acknowledging that extraterritorial human rights obligations need to be interpreted strictly, the Committee asserted that in the context of transboundary damage caused by climate or environmental issues, the principles used to establish jurisdiction can be different (paras 10.3 & 10.4).

Approaches to extraterritorial obligations of states: suitable for climate change?

Human rights monitoring bodies have developed several approaches or models to establish extraterritorial obligations of states. One of these is the ‘power or effective control approach’, according to which a state’s extraterritorial obligations will be engaged when it has effective control over territories outside of its national borders or it exercises power or authority over individuals outside of its territory through its agents. Another model is the ‘reasonable and foreseeable effect approach’ or what some scholars call the ‘functional approach’, which extends the extraterritorial obligations of states to situations where their actions within their territories have a ‘reasonably foreseeable’ extraterritorial impact. In addition, the exterritorial obligation of states is triggered when the obligation in question has a global nature, as is the case for the duty to cooperate.

However, these approaches arguably are not equipped to deal with the unique transboundary issues climate change gives rise to. The power or effective control model, in its strictest form, requires some sort of authority or control over the territory or a person affected by the action or omission of the state. In other words, according to this model, the extraterritorial obligation of states presupposes this power or control or authority relationship. It is difficult, if not impossible, to establish the extraterritorial obligations of states using this model without establishing this relationship. In the context of climate change, states seldom have such authority, at least not in all territories or persons affected by climate harm.

The relatively broader model, the functional approach, requires the harm to be reasonably foreseeable at the time of the (in)action, which in turn requires a causal relationship. It is not often easy to establish causation in the context of climate change where the link between the action or omission and the resulting harm is not clearly evident. This is not only because various actions by different states cumulatively contribute to climate change but also because climate change by its very nature entails gradual changes that occur over an extended period, which further distorts the thread that connects the (in)action and the harm. Hence, it is difficult to discern whether a certain harm is attributable to the actions of a given state.

Finally, while the duty to cooperate is self-evidently essential to address climate change, as it stands today, it is not concrete enough in international law to be claimed and applied in human rights complaint procedures. It certainly is not (yet) suitable to establish territorial jurisdiction. Hence, the transboundary harm related to climate change calls for a distinct and more tailored approach to the extraterritorial obligations of states.

A novel approach for a novel issue?

This, the need for a unique approach to establishing extraterritorial obligations, is what the CRC Committee acknowledged in the Sacchi case. The Committee stressed that the novel transboundary harm issues climate change presents justify a departure from the principles established in the previous case law, which primarily relied on the power or effective control model. Hence, drawing on the 2017 Advisory Opinion of the Inter-American Court of Human Rights (IACHR) on the Environment and Human Rights, the Committee adopted certain conditions that need to be met to establish jurisdiction for transboundary climate harm, as discussed below.

I. Effective control over the action or omission

As the CRC Committee and the IACHR reiterated, effective control is essential to establish extraterritorial obligations of states. However, in the context of climate change, what matters is effective control over the actions that cause the transboundary harm (sources of emissions), not effective control or power over the territories where the violation/harm occurred or over the person affected by the harm, respectively. This is predicated on the assumption that the state is able to regulate the source of emissions. On the basis of these principles, the Committee concluded that the respondent state, in this case, has effective control.

II. Reasonably foreseeable harm

Indeed, not all transboundary harm that is caused by the actions over which a state has effective control would give rise to extraterritorial obligations of the state. In Sacchi, the CRC Committee stressed that “…the alleged harm suffered by the victims needs to have been reasonably foreseeable to the State party at the time of its acts or omissions” (para.10.7). In determining whether this condition is fulfilled, the Committee considered the fact that the respondent state has signed the relevant UN climate change documents, i.e. the Framework Convention on Climate Change in 1992 and the Paris Agreement in 2016.  These instruments recognize the harmful effects that states’ actions, particularly those that cause carbon emissions, and the failure to regulate those actions have on the climate. Hence, it can be reasonably deduced that the state has known about this harm for decades.  The Committee also took into account the existing scientific knowledge on transboundary climate harm, which the state is or should be aware of.

III. Causal link between the (in)action and the transboundary harm

The third condition requires that there needs to be a causal link between the action or omission of the state in its territory and the transboundary environmental or climate harm. The difficulty in establishing causation in the context of climate change lies in the collective nature of the causes of climate harm. Regarding this, the CRC Committee retorted that “…the collective nature of the causation of climate change does not absolve the State party of its individual responsibility that may derive from the harm that the emissions originating within its territory may cause to children, whatever their location” (para.10.10). While this is true, in principle, it still does not alleviate the difficulty in establishing that cause-and-effect relationship and the reasoning of the Committee in this regard lacks clarity.

Both the Inter-American Court and the CRC Committee noted that the causal link between the actions or omissions of the state and transboundary harm incurred is determined by taking into account the specific circumstances of the case and the severity of the harm.  In the Sacchi case, the Committee found that the impact of climate change on the life, health, and culture of the children concerned constitutes significant harm for the purpose of establishing jurisdiction. Overall, the Committee concluded that the applicants and the alleged harm fall within the territorial jurisdiction of the respondent state.

Conclusion

As climate change human rights litigation is gaining momentum, human rights monitoring bodies have to navigate uncharted waters in addressing the novel legal issues and challenges climate change raises. One of these legal issues is the determination of territorial jurisdiction for transboundary climate harm. Transboundary climate harm presents unique questions or challenges that the principles established in previous cases might not be able to fully address. While the recent developments from the ECtHR, on the one hand, and the CRC Committee and the IACHR, on the other hand, seem to acknowledge this fact, they reached different conclusions.

It is important to recognize that if existing approaches are not fully equipped to address the challenges and questions posed by climate change, human rights monitoring bodies need to adopt new approaches “by way of judicial interpretation” in order to accommodate the novel and urgent demands of climate change. In cases where there are no precedents to rely on, it is up to these bodies to set precedents and provide interpretive guidance. Human rights frameworks are also specifically designed to allow for such dynamic interpretation. The CRC Committee appears to recognize this need, whereas the ECtHR seems more hesitant to push the boundaries. The Court’s reluctance can be partly explained by its concern that adopting an expansive interpretation carries the risk of turning the exception of extraterritorial application of human rights obligations into a rule (para 206). However, establishing more tailored and detailed standards for determining jurisdiction is the most reasonable recourse to avoid creating a legal vacuum while still recognizing the restrictive nature of extraterritorial obligations of states.

Overall, despite the recent development highlighted in this contribution, unanswered questions remain when it comes to the determination of extraterritorial obligations of states for transboundary climate harm. Some of these questions could be potentially answered by the cases and the interpretative documents that are currently under development, including the forthcoming advisory opinion of the International Court of Justice on the obligations of states in respect of climate change.