EXTRATERRITORIAL JURISDICTION IN INTERNATIONAL RIGHTS-BASED CLIMATE LITIGATION

Abstract

The article is dedicated to the phenomenon of international rights-based climate litigation which concerns responsibility of states for the breaches of human rights in cases relating to scientific data on climate change, climate policy, national climate legislation and (or) international climate law. The purpose of the article is to analyze the legal arguments of parties as well as of international human rights courts and quasi-judicial bodies concerning the possibility to apply extraterritorial jurisdiction of states in climate cases. The author considered several cases brought before the Court of Justice of the European Union (People’s Climate case and Biomass case), the European Court of Human Rights (Verein KlimaSeniorinnen Schweiz case and Duarte Agostinho case), the Inter-American Commission on Human Rights (the Inuit and Athabaskan cases), the United Nations Human Rights Committee (Daniel Billy case) and the United Nations Committee on the Rights of the Child (Sacchi case). The author tried to answer one of the main questions: is it possible to recognize a state’s jurisdiction over persons, with the aim of invoking its responsibility for failure to take mitigation and adaptation measures to combat the effects of climate change, if those persons are neither its nationals nor residents, in other words, are within the territorial jurisdiction of another state? The article refers to the novel concept of ‘effects-based’ / ‘control-over-the-source’ / ‘impacts’ jurisdiction. The author concludes that there are opposite comments on the extraterritorial jurisdiction in rights-based climate litigation: some scholars argue that restrictive approach to extraterritorial jurisdiction possess serious risks for future climate litigation at international courts and human rights bodies; others are of the view that departure from the traditional ‘control over the victim’ concept of extraterritorial jurisdiction may pose dangers to the current international legal order.