States’ obligations under special environmental regimes
Posted: Tue Feb 18, 2025 5:28 am
Perhaps sensing the potentially overbroad consequences of its construction of ‘jurisdiction’ — or perhaps because of that — the Court went on to comment on States’ obligations under special environmental regimes.
The Court recalled that the Cartagena Convention, as part of UNEP’s initiative to tackle the accelerated degradation of the oceans through regional treaties, establishes a special regime for the prevention, reduction and control of marine pollution within its jurisdictional area.
The Court made clear that “the exercise of jurisdiction by a State under the American Convention does not depend on the relevant conduct being performed in a delimited geographic area.” What is relevant is that the “State is exercising authority over the person” or that “the person is within the effective control of that State”. Thus, the fact that the environmental obligations in those areas are conducive to the protection of human rights is not necessarily tantamount to the exercise of jurisdiction under the American Convention (paras. 89-94).
Here the Court correctly distinguishes between the relevant primary norms at stake and the question of the extraterritorial application of the American Convention as governed by Article 1.1. Its subsequent approach however raises room for concern.
States’ obligations to prevent transboundary environmental damage
By drawing from decisions of the ICJ, the Court recognised the obligation on moj database American States not to allow their territory to be used against the rights of third States, as well as to use all available means to prevent activities taking place in their territory or in any area under their jurisdiction causing significant environmental damage against third States.
The following paragraphs detail the Court’s position on the extraterritorial application of the American Convention in cases of environmental damage:
“The obligation to respect and ensure human rights requires States to abstain from impeding or rendering more difficult the compliance of the obligations of the Convention by other State parties. The activities undertaken in the jurisdiction of one State party shall not deprive other States of their capacity to ensure that persons under their jurisdiction enjoy their rights under the Convention. The Court considers that States have an obligation to avoid transboundary environmental damage that may affect the human rights of persons outside their territory. For the purposes of the American Convention, it is understood that the person whose rights have been breached fall within the jurisdiction of the State of origin if there is a causal link between the facts occurring in its territory and the violation of the human rights of person outside its territory” (Emphasis added) (para. 101).
The Court recalled that the Cartagena Convention, as part of UNEP’s initiative to tackle the accelerated degradation of the oceans through regional treaties, establishes a special regime for the prevention, reduction and control of marine pollution within its jurisdictional area.
The Court made clear that “the exercise of jurisdiction by a State under the American Convention does not depend on the relevant conduct being performed in a delimited geographic area.” What is relevant is that the “State is exercising authority over the person” or that “the person is within the effective control of that State”. Thus, the fact that the environmental obligations in those areas are conducive to the protection of human rights is not necessarily tantamount to the exercise of jurisdiction under the American Convention (paras. 89-94).
Here the Court correctly distinguishes between the relevant primary norms at stake and the question of the extraterritorial application of the American Convention as governed by Article 1.1. Its subsequent approach however raises room for concern.
States’ obligations to prevent transboundary environmental damage
By drawing from decisions of the ICJ, the Court recognised the obligation on moj database American States not to allow their territory to be used against the rights of third States, as well as to use all available means to prevent activities taking place in their territory or in any area under their jurisdiction causing significant environmental damage against third States.
The following paragraphs detail the Court’s position on the extraterritorial application of the American Convention in cases of environmental damage:
“The obligation to respect and ensure human rights requires States to abstain from impeding or rendering more difficult the compliance of the obligations of the Convention by other State parties. The activities undertaken in the jurisdiction of one State party shall not deprive other States of their capacity to ensure that persons under their jurisdiction enjoy their rights under the Convention. The Court considers that States have an obligation to avoid transboundary environmental damage that may affect the human rights of persons outside their territory. For the purposes of the American Convention, it is understood that the person whose rights have been breached fall within the jurisdiction of the State of origin if there is a causal link between the facts occurring in its territory and the violation of the human rights of person outside its territory” (Emphasis added) (para. 101).