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International Law

Sacchi v. Argentina

Committee on the Rights of the Child Extends Jurisdiction over Transboundary Harms; Enshrines New Test

The existential threat of climate change has spurred creative litigation strategies in countries and forums around the world.1×1. See Climate Change Litigation Databases, Sabin Ctr. for Climate Change L., http://climatecasechart.com/climate-change-litigation [https://perma.cc/ZU8M-PF3H], for a partial list of cases bringing environmental claims in courts worldwide. With recent international frameworks such as the Glasgow Climate Pact disappointing in their breadth and commitments,2×2. See, e.g., Ben Abraham & Jocelyn Perry, Good COP, Bad COP: After the Mixed Results of COP26, What’s Next?, Just Sec. (Nov. 24, 2021), https://www.justsecurity.org/79313/good-cop-bad-cop-after-the-mixed-results-of-cop26-whats-next [https://perma.cc/D9CH-S6E3] (“From a scientific perspective, COP26 fell short.”); Editorial, COP26 Has Achieved More than Expected but Less than Hoped, Fin. Times (Nov. 14, 2021), https://www.ft.com/content/fdbf574a-1294-4595-ab8a-ba11d42538d0 [https://perma.cc/BTY2-S8BW]. activists are increasingly turning from negotiated agreements to court systems, hoping to compel action from states and corporations responsible for the growing climate crisis.3×3. See, e.g., Jessica Bateman, Why Climate Lawsuits Are Surging, BBC Future Planet (Dec. 7, 2021), https://www.bbc.com/future/article/20211207-the-legal-battle-against-climate-change [https://perma.cc/W6ET-LYEP]; In Battle Against Climate Change, Courts Become a New Frontier, UN Env’t Programme (May 28, 2021), https://www.unep.org/news-and-stories/story/battle-against-climate-change-courts-become-new-frontier [https://perma.cc/C4KB-B2YM]. Litigants have been fighting in national jurisdictions from New Zealand to Nigeria to instill recognition of the right to life and a healthy environment protected from climate change.4×4. See Sara C. Aminzadeh, Note, A Moral Imperative: The Human Rights Implications of Climate Change, 30 Hastings Int’l & Compar. L. Rev. 231, 233–38, 245 (2007) (surveying cases in domestic courts worldwide). For a critical perspective on the ability of courts to counter climate change, see generally Eric A. Posner, Climate Change and International Human Rights Litigation: A Critical Appraisal, 155 U. Pa. L. Rev. 1925 (2007). Recently, in Sacchi v. Argentina,5×5. No. CRC/C/88/D/104/2019 (Oct. 8, 2021). the Committee on the Rights of the Child (CRC) held that states have extraterritorial jurisdiction over harms caused by carbon emissions, though it ultimately found the petitioners’ communication inadmissible due to their failure to exhaust remedies.6×6. Id. ¶¶ 10.7, .21. Though the decision has been lauded for expanding the jurisdiction of human rights law, such a doctrinal shift may give rise to unintended consequences in other areas of international law.

In Sacchi, sixteen children brought suit before the CRC, which acts as an adjudicatory body for the Convention on the Rights of the Child7×7. Adopted Nov. 20, 1989, 1577 U.N.T.S. 3. (“the Convention”).8×8. Sacchi ¶ 1.1; Introduction to the Committee: Committee on the Rights of the Child, U.N. Off. High Comm’r for Hum. Rts., https://www.ohchr.org/EN/HRBodies/CRC/Pages/CRCIntro.aspx [https://perma.cc/VL73-7EAU]. An Optional Protocol to the Convention9×9. Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure, adopted Dec. 19, 2011, 2983 U.N.T.S. 131 [hereinafter Optional Protocol]. (“the OP”), to which forty-eight countries are state parties,10×10. Status of Ratification Interactive Dashboard, U.N. Off. High Comm’r for Hum. Rts., https://indicators.ohchr.org [https://perma.cc/5FHH-X58A] (select “Optional Protocol to the Convention on the Rights of the Child on a communications procedure” from drop-down menu to see map of state parties and signatories). allows individual children to submit communications to the CRC alleging violations of their Convention rights.11×11. Optional Protocol, supra note 9, art. 5. The Sacchi petitioners brought suit against five countries — Argentina, Brazil, France, Germany, and Turkey.12×12. Communication of Petitioners ¶ 30, Sacchi.

The petitioners alleged that the state parties’ acts and omissions regarding climate change caused the petitioners harm and violated their Convention rights.13×13. Id. ¶¶ 254–259; see Convention on the Rights of the Child arts. 6, 24, 30, Nov. 20, 1989, 1577 U.N.T.S. 3. The sixteen minors, including activist Greta Thunberg, suffered through heat waves, wildfires, and drought;14×14. Communication of Petitioners, supra note 12, ¶¶ 97–111. had medical problems exacerbated by air quality;15×15. Id. ¶¶ 112–114. and had their indigenous practices threatened.16×16. Id. ¶¶ 134–158. The petitioners alleged that, because the five countries had not reduced their fossil fuel emissions “at the ‘highest possible ambition,’”17×17. Id. ¶ 20. they were “recklessly causing and perpetuating life-threatening climate change.”18×18. Id. ¶ 24. The petitioners asked that the countries acknowledge climate change as a human rights crisis and amend their laws to ensure emissions are brought down to the lowest possible level.19×19. Id. ¶ 33.

Before reaching the merits, the CRC considered whether the communication was admissible. The petitioners contended that they surmounted two key procedural hurdles. First, they argued that their claim fell under an exception to the normal requirement that petitioners exhaust domestic remedies.20×20. Id. ¶¶ 309–318. Other grounds of admissibility necessitate that the communication be timely and not “manifestly ill-founded.” Optional Protocol, supra note 9, art. 7(f)–(h). The petitioners claimed that attempting to pursue domestic remedies in all five national jurisdictions would have been “unduly burdensome[,] . . . unlikely to bring effective relief, and . . . unreasonably prolonged.”21×21. Communication of Petitioners, supra note 12, ¶ 311. Respondents argued that the exhaustion requirement was not satisfied and that petitioners must “effectively demonstrate[]” that remedies were insufficient.22×22. Response of Argentina at 38, Sacchi; see also Reply of Brazil ¶¶ 13–24, Sacchi; Observations of France ¶¶ 58–73, Sacchi; Statement of Germany at 6–7, Sacchi; Observations of Turkey ¶¶ 3–13, Sacchi. State parties also noted, in their separate briefs, which mechanisms of their own legal systems could have heard comparable claims of environmental harm.23×23. See, e.g., Response of Argentina, supra note 22, at 39–42.

The petitioners also argued that all sixteen petitioners fell under the jurisdiction of all of the respondents.24×24. Communication of Petitioners, supra note 12, ¶¶ 242–243. They relied on extraterritorial jurisdiction, which can, under certain conditions, extend the human rights obligations of countries outside their territorial boundaries.25×25. See id. ¶ 243. The petitioners argued that the harms caused to them were judicable because acts of the state parties had effects felt outside their territories: “A state’s jurisdiction . . . follows when its acts or omissions . . . cause foreseeable cross-border effects.”26×26. Id. This principle of effects jurisdiction, according to the petitioners’ communication, enshrined jurisdiction over the sixteen petitioners because the states’ failure to stop emissions led directly to the petitioners’ harms, and that failure was within the “effective control” of the state.27×27. Id. ¶¶ 242–243, 248. As the petitioners noted, effects jurisdiction requires a finding of causation: it must be shown “that the state’s wrongful conduct caused or contributed to the violation.”28×28. Id. ¶ 244. The petitioners relied on the Inter-American Court of Human Rights’s (IACHR) Advisory Opinion on the Environment and Human Rights,29×29. The Environment and Human Rights, Advisory Opinion OC-23/17, Inter-Am. Ct. H.R. (ser. A) No. 23 (Nov. 15, 2017). which held that jurisdiction extends to “individuals outside [a state’s] territory who are harmed . . . from foreseeable transboundary environmental damage.”30×30. Communication of Petitioners, supra note 12, ¶ 248.

State parties disputed the petitioners’ assertion of jurisdiction. Argentina argued that the exercise of extraterritorial liability should be “highly restrictive”31×31. Response of Argentina, supra note 22, at 33. and that in the present case there was “no proof of the causal link . . . that could be attributable to the [state party].”32×32. Id. at 34. France argued that extraterritorial jurisdiction requires the state to wield effective control over the territory on which the petitioners reside,33×33. Observations of France, supra note 22, ¶¶ 35–37. and Germany argued that the collective nature of climate change renders the establishment of jurisdiction impossible to prove.34×34. See Statement of Germany, supra note 22, at 5.

The CRC found the petition inadmissible.35×35. Sacchi ¶ 11(a). While it granted that there was valid jurisdiction exercised by the five state parties over all sixteen petitioners, it ultimately decided that the petitioners had failed to exhaust domestic remedies.36×36. Id. ¶¶ 10.14, .21. On the exhaustion issue, the CRC acknowledged an exception when domestic remedies “have no prospect of success” but ruled that this bar was not met in Sacchi.37×37. Id. ¶ 10.17. In decisions addressing the claims against each state party, the CRC addressed possible recourse under domestic laws of the five state parties38×38. See, e.g., id. ¶ 10.15; Sacchi v. Brazil, No. CRC/C/88/D/105/2019, ¶ 10.15 (Oct. 8, 2021). and ultimately faulted the petitioners for failing to bring a claim in any domestic courts.39×39. See, e.g., Sacchi ¶ 10.20.

Nevertheless, the CRC found that the state parties had jurisdiction over all of the petitioners.40×40. See id. ¶ 10.14. The standard test for determining extraterritorial jurisdiction requires state control over the petitioners,41×41. Fons Coomans & Menno T. Kamminga, Comparative Introductory Comments on the Extraterritorial Application of Human Rights Treaties, in Extraterritorial Application of Human Rights Treaties 1, 4 (Fons Coomans & Menno T. Kamminga eds., 2004). but the CRC diverged from that framework and instead relied on the petitioners’ proposed causality-based test set out in the IACHR’s Advisory Opinion.42×42. Sacchi ¶¶ 10.5–.7. Following that test, the CRC declared that victims of transboundary environmental damage, including damage caused by climate change, were within the human rights jurisdiction of states emitting greenhouse gases if the petitioners’ harms were caused by the act or omission of that state and were “reasonably foreseeable” consequences of the emissions allowed by those states’ policies.43×43. Id. ¶ 10.7. The CRC then concluded that it was “generally accepted” that greenhouse gas emissions contribute to climate change and that “climate change has an adverse effect” on individuals beyond any emitter’s territory.44×44. Id. ¶ 10.9. On foreseeability, the CRC noted that each “[s]tate party ha[d] known about the harmful effects of its contributions to climate change for decades.”45×45. Id. ¶ 10.11.

In Sacchi, the CRC contended with a case representing the explosion of human rights law’s predominant control-based test of extraterritorial jurisdiction. In its decision, the CRC evolved its jurisprudence — it dispatched with the dominant “authority and control” test and instead recognized jurisdiction over harms directly caused by cross-border emissions. Future human rights litigants may be buoyed by the expansion of jurisdiction present in Sacchi, but a larger shift to effects-centric jurisdiction risks an overall expansion of international jurisdiction that powerful states may appropriate to justify increased interventionism.

The dominant approach to extraterritorial applications of a state’s human rights obligations requires control over persons or territory outside its national borders.46×46. Jurisdictional obligations in human rights treaty adjudication dictate to which individuals a contracting state owes rights. The terms of jurisdiction depend on the precise language of the treaty. See Coomans & Kamminga, supra note 41, at 1–3, for a discussion of jurisdictional bases among the largest human rights treaties. Human rights jurisdiction normally includes individuals within a state’s territory but can be extended extraterritorially in exceptional situations which conform with traditional international law bases of extraterritoriality. Dominic McGoldrick, Extraterritorial Application of the International Covenant on Civil and Political Rights, in Extraterritorial Application of Human Rights Treaties, supra note 41, at 41, 44–45. One subset of cases in which human rights obligations have been extended extraterritorially involves situations in which a state exercises effective control over a location outside of its territorial boundaries, as in belligerent occupation, armed conflict, or the running of a detention center overseas.47×47. See Coomans & Kamminga, supra note 41, at 3. This logic likewise extends to when state agents exercise effective control over persons overseas through arrest or abduction.48×48. See id. at 4. A line of related cases follows Soering v. United Kingdom,49×49. App. No. 14038/88, 11 Eur. Ct. H.R. 439 (1989). which involved the extradition to the United States of a suspected murderer who might have faced the death penalty.50×50. Id. ¶¶ 11–15. While the United Kingdom had no authority over the prosecution, the European Court of Human Rights (ECHR) ruled that the United Kingdom nevertheless could not take an action that would have “produced effects abroad”51×51. Maarten den Heijer & Rick Lawson, Extraterritorial Human Rights and the Concept of “Jurisdiction,” in Global Justice, State Duties 153, 173 (Malcolm Langford et al. eds., 2013). contrary to Jens Soering’s human rights.52×52. Soering ¶ 82. Soering represents an edge case for the control-based framework for jurisdiction where the applicant was within the control of the state party but was at risk of human rights violations occurring outside of that control.

This control-based approach to jurisdiction stems from and is compatible with traditional justifications for human rights law. State sovereignty and jurisdiction are closely linked,53×53. Rick Lawson, The Concept of Jurisdiction and Extraterritorial Acts of State, in State, Sovereignty, and International Governance 281, 281 (Gerard Kreijen et al. eds., 2002). and the human rights obligations of states can be conceptualized as a component of effective or legitimate governance.54×54. See John Tasioulas, Human Rights, Legitimacy, and International Law, 58 Am. J. Juris. 1, 9–10 (2013). The extension of jurisdiction extraterritorially covers individuals for whom the sovereign state can no longer guarantee those rights, thus ceding some of its authority over that individual to another state.55×55. Lawson, supra note 53, at 282. It therefore stands to reason that the encroaching state must then bear the burden of upholding the human rights of that individual — in international law, “control entails responsibility.”56×56. Id. at 297 (emphasis omitted). It is also true that the control-based framework makes clear just what rights the controlling states are responsible for upholding: their human rights obligations extend only so far as their authority over persons.57×57. See id. at 295.

Several lines of extraterritorial jurisdiction cases, however, have shown the limitations of the “control” framework. One category of cases involves shootings of individuals by state agents outside state territory: in Andreou v. Turkey58×58. App. No. 45653/99 (Jan. 27, 2010), https://hudoc.echr.coe.int/eng?i=001-95295 [https://perma.cc/4J2K-7893]. and Brothers to the Rescue,59×59. Case 11.589, Inter-Am. Comm’n H.R., Report No. 86/99, OEA/Ser.L/V/II.106, doc. 6 rev. (1999). the ECHR and IACHR, respectively, formulated a conception of control that brought the victims of extraterritorial shootings under the “authority” of the relevant state.60×60. Andreou ¶ 25; Douglass Cassel, Extraterritorial Application of Inter-American Human Rights Instruments, in Extraterritorial Application of Human Rights Treaties, supra note 41, at 175, 177; see also Christina M. Cerna, Extraterritorial Application of the Human Rights Instruments of the Inter-American System, in Extraterritorial Application of Human Rights Treaties, supra note 41, at 141, 156–59. In Kovačić v. Slovenia,61×61. App. Nos. 44574/98, 45133/98, 48316/99 (Oct. 3, 2008), https://hudoc.echr.coe.int/fre?i=001-88702 [https://perma.cc/D9PW-5R3V]. the applicants fell under Slovenia’s jurisdiction by virtue of financial regulations that affected their foreign assets.62×62. Cf. den Heijer & Lawson, supra note 51, at 179. In a line of cases similar to Kovačić, in which people outside a state’s territory were brought under its jurisdiction by virtue of state “executive or adjudicatory” policy, the ECHR did not address the issue of jurisdiction or control at all in its decisions, but simply assumed that the actions of the state brought those outside its territory under the jurisdiction of the court.63×63. Id. at 179 & n.116; see also Big Brother Watch v. United Kingdom, App. Nos. 58170/13, 62322/14, 24960/15, ¶ 272 (May 25, 2021), https://hudoc.echr.coe.int/eng?i=001-210077 [https://perma.cc/EN3Q-RRYK] (ruling that victims of the United Kingdom’s mass-surveillance program living overseas were within the United Kingdom’s jurisdiction). Scholars have argued that these cases show how the control-based test was “rather unworkable” in ECHR caselaw.64×64. See den Heijer & Lawson, supra note 51, at 182.

Sacchi dealt with a scenario where no finding of state control over petitioners could credibly be argued: fossil fuels driving extreme weather are not state agents who bend the Sacchi petitioners to their authority.65×65. Even leading advocates for the expansion of human rights jurisprudence to cover harms caused by climate change agree as much. See John H. Knox, Essay, Climate Change and Human Rights Law, 50 Va. J. Int’l L. 163, 204 (2009). Instead, the CRC set out a test, adopted from the IACHR’s Advisory Opinion, wherein direct and foreseeable causality supplanted the control requirement.66×66. Sacchi ¶ 10.5; Advisory Opinion OC-23/17, Inter-Am. Ct. H.R. (ser. A) No. 23, ¶ 101 (Nov. 15, 2017). In that advisory opinion, the IACHR itself made a marked leap in doctrine from its own caselaw: its previous cases had followed the “subject to its authority and control” test for extra-territorial jurisdiction. Advisory Opinion, Inter-Am. Ct. H.R. (ser. A) No. 23, ¶ 79. The CRC in Sacchi justified its new causality test by noting that the control-based jurisprudence was “developed and applied to factual situations which are very different to [Sacchi].”67×67. Sacchi ¶ 10.4. If adopted uniformly, this causality-based framework for jurisdiction would bring many more plaintiffs into the human rights system. It also, in the context of cases such as Andreou, Brothers to the Rescue, and Kovačić, presents a more logically sound basis for jurisdiction.

However, a shift to a causality-based test presents two key challenges under international legal frameworks. First, it is unclear how an exercise of jurisdiction through cross-border effects fits into or is supported by general justifications of international human rights law.68×68. Cf. Allen Buchanan, Why International Legal Human Rights?, in Philosophical Foundations of Human Rights 244, 244 (Rowan Cruft et al. eds., 2015). The sovereignty-based justifications that reflect human rights as a “contract between a state and its citizens”69×69. Marc Limon, Human Rights and Climate Change: Constructing a Case for Political Action, 33 Harv. Env’t L. Rev. 439, 473 (2009); see also Sigrun I. Skogly & Mark Gibney, Economic Rights and Extraterritorial Obligations, in Economic Rights 267, 274 (Shareen Hertel & Lanse Minkler eds., 2007). and those over whom it acts as a stand-in government encompass situations different from the doctrine envisioned in Sacchi, where a state’s actions may pass through attenuated lines of control and stretch across the globe with no agents present.70×70. Cf. Austen L. Parrish, The Interplay Between Extraterritoriality, Sovereignty, and the Foundations of International Law, in The Extraterritoriality of Law 169, 179 (Daniel S. Margolies et al. eds., 2019) (“Extraterritorial regulation . . . has become a feature of a world system that downplays territorial sovereignty.”). Moreover, the IACHR in its opinion relies on several principles of international law that govern state-to-state relationships and attributions of responsibility.71×71. See Advisory Opinion, Inter-Am. Ct. H.R. (ser. A) No. 23, ¶ 97; Michael G. Faure & André Nollkaemper, International Liability as an Instrument to Prevent and Compensate for Climate Change, 26 Stan. Env’t L.J. 123, 144–45 (2007). The court cited the international law principles that states must not allow their territories to be used for acts that harm the rights of other states and that states must not deprive other states of the “ability to ensure that the persons within [their] jurisdiction . . . enjoy and exercise [treaty rights].”72×72. Advisory Opinion, Inter-Am. Ct. H.R. (ser. A) No. 23, ¶ 101; see also id. ¶ 97. But these principles of horizontal rights between states do not adequately justify why a state’s obligations extend to individuals across its border whose rights it derogates.

Second, a radical expansion of extraterritorial jurisdiction, while presenting a boon for actors such as the Sacchi petitioners, may present thorny ripple effects. Jurisdiction in international human rights law is tied to other international law bases of jurisdiction,73×73. Sarah Joseph & Adam Fletcher, Scope of Application, in International Human Rights Law 119, 119 (Daniel Moeckli et al. eds., 2d ed. 2014). so the extra-territorial expansion in Sacchi, if widely accepted by practitioners and jurists, could bleed into other aspects of the law. Historically, extra-territorial jurisdiction has been a tool used by colonial powers to protect their citizens overseas.74×74. See generally, e.g., Richard S. Horowitz, Protégé Problems: Qing Officials, Extraterritoriality, and Global Integration in Nineteenth-Century China, in The Extraterritoriality of Law, supra note 70, at 104 (discussing imperial powers’ use of extraterritorial jurisdiction in Qing China to shield their own citizens and dignitaries). More recently, powerful states on the international stage have attempted to levy effects-based jurisdictional concepts to extend their power inside the borders of states whose economic policies produce unwanted effects in the former’s home economies.75×75. See Christopher Staker, Jurisdiction, in International Law 289, 298 (Malcolm D. Evans ed., 5th ed. 2018). This argument is particularly prominent in antitrust law. See Péter D. Szigeti, In the Middle of Nowhere: The Futile Quest to Distinguish Territoriality from Extraterritoriality, in The Extraterritoriality of Law, supra note 70, at 30, 38–39; Najeeb Samie, The Doctrine of “Effects” and the Extraterritorial Application of Antitrust Laws, 14 Law. Ams. 23, 25 (1982); see also Parrish, supra note 70, at 169. Scholars have viewed these exercises of jurisdiction critically,76×76. See Parrish, supra note 70, at 173, 178–79; cf. Szigeti, supra note 75, at 38. See generally Roger P. Alford, The Extraterritorial Application of Antitrust Laws: The United States and the European Community Approach, 33 Va. J. Int’l L. 1 (1992). but the expansion of human rights jurisdiction through Sacchi could reverberate and justify those interventionist actions.

The CRC made a decisive step in Sacchi away from a single, inflexible framework for jurisdiction toward a more responsive test. Though that test is not binding precedent on any future court, it may reflect a growing realization that, in the age of ever-more globalization, “individual human interaction and personal cause and effect no longer respect traditional concepts of sovereignty,”77×77. Limon, supra note 69, at 473; see also Ezgi Yildiz, Extraterritoriality Reconsidered: Functional Boundaries as Repositories of Jurisdiction, in The Extraterritoriality of Law, supra note 70, at 215, 223. and that the realities of climate change necessitate increased responsibility-sharing across the globe.78×78. See Limon, supra note 69, at 475; see also Sigrun Skogly & Mark Gibney, Introduction to Universal Human Rights and Extraterritorial Obligations 1, 1 (Mark Gibney & Sigrun Skogly eds., 2010). For future human rights litigants hoping to obtain similar results, the path forward is uncertain. Greater reliance on the Sacchi and IACHR tests may provide important avenues of relief for those most affected by climate change but may also promote a conception of broader causality-based jurisdiction that leads to interventionism.