State responsibility for human right violations in cases of transboundary environmental harm: A new concept of extraterritoriality regarding the application of international human rights treaties?

Abstract

The paper provides an in-depth analysis of the issue of extraterritorial application of human rights treaties in the specific context of transboundary environmental harm. The classic criteria for extraterritorial jurisdiction established through the landmark judgments of the European Court of Human Rights are revisited and compared with the extensive extraterritoriality threshold introduced by the Inter-American Court of Human Rights in its 2017 advisory opinion on environment and human rights. The author examines the features, requirements and limits of the new extraterritoriality threshold which is based on the effective control over intraterritorial activities that result in extraterritorial human rights' violations. The paper attempts to offer arguments for perceiving the new extraterritoriality threshold as a general standard of international human rights, as well as to examine whether it represents a (mis)interpretation of the duty to prevent transboundary environmental harm as a well-established rule of international environmental law. The author also discusses the prospects of expanding the application of the new jurisdictional threshold to other areas not necessarily linked to environmental degradation.

Keywords

• extraterritorial jurisdiction
• transboundary environmental harm
• human rights
• effective control
• inter-american court of human rights
• european court of human rights