The Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights, and the legal Commentary to them, are incredibly rich and progressive materials for which the drafters, including Margot Salomon (whose EJIL:Talk! post on the Maastricht Principles can be found here), deserve all credit. The space allotted to me is too short to discuss the entire document. Therefore, I have decided to limit myself to making two ‘jurisdictional’ observations: one relating to the link between the concepts of human rights jurisdiction and state responsibility, and the other relating to the link between human rights jurisdiction and the principles of jurisdiction under public international law.
(1) It is remarkable that the Maastricht Principles do not draw a direct link between concept of human rights jurisdiction and the concept of state responsibility. The Commentary to Principle 11 (the principle that concerns state responsibility) explicitly states in this respect that ‘[t]he question of state responsibility is distinct from that of jurisdiction as defined in Principles 9 and 10’ – but then does not go on to indicate how both questions actually differ from each other. As a result, Principles 9 and 10 on jurisdiction seems to be floating in mid-air, although they may clearly animate the conditions under which states incur responsibility, as in fact elaborated on in the remainder of the Principles. In my view, there is a clear link between the notions of jurisdiction and state responsibility, and the drafters may have wanted to address it. If there is a sufficiently proximate link between an individual – wherever (s)he may be located – and an act of a state, that individual will fall within the jurisdiction of that State, and the state will incur state responsibility for its act vis-à-vis the individual, provided of course that the act amounts to a violation of a legal obligation (in our case, a human rights obligation).
That being said, the drafters’ choice to separate both concepts might possibly be explained by their identification of two sorts of extraterritorial obligations: (a) obligations relating to the acts and omissions of a State, within or beyond its territory, that have effects on the enjoyment of human rights outside of that State’s territory; and (b) obligations of a global character that are set out in the Charter of the United Nations and human rights instruments to take action, separately, and jointly through international cooperation, to realize human rights universally. Arguably, only individuals to whom the extraterritorial obligations under (a) are owed, fall strictly speaking within the jurisdiction of the state; these are typically obligations to respect and to protect. Individuals to whom extraterritorial obligations under (b) are owed, may not fall within the jurisdiction of the state for lack of a close connection between the individuals and the state; nonetheless the state may, on the basis of the duty of international cooperation, have a ‘global’ obligation to fulfill with respect to these individuals. Margot Salomon’s piece mainly relates to the latter sort of obligation (Principles 28-35; Margot was probably the main drafter of this part of the Principles).
(2) Commentary (3) to Principle 8(a) duly notes that the concept of jurisdiction in the field of human rights law ‘should not be confused with the limits imposed under international law on the ability of a state to exercise prescriptive (or legislative) and enforcement jurisdiction.’ Still, Principle 25, which elaborates on the state’s duty to protect, ‘recalls the classic bases for allowing a state, in compliance with international law, to exercise extraterritorial jurisdiction by seeking to regulate conduct that takes place outside its territory’, as the Commentary rightly has it. These bases are however not conceived of as permissive principles – the classic understanding in the law of jurisdiction – but formulated in obligatory terms: ‘States must adopt and enforce measures to protect economic, social and cultural rights through legal and other means’, in a number of circumstances of states having a territorial, personal, or other link with the harm or the harmful conduct. This obligation to exercise extraterritorial jurisdiction is basically grounded on (1) the nexus between the state and the individual (see the concept of jurisdiction) mediated via a nexus of an intervening actor – typically a corporation – with both the state and the individual; (2) the erga omnes character of human rights obligations (Commentaries (8) and (9)). Apparently, in the drafters’ view, the combination of a nexus and the nature of the protected good strengthens the lawfulness of state jurisdictional assertions, and even transform such assertions into state obligations.
This is an innovative approach that may be in need of further reflection. It is not entirely novel, however, as outside the field of human rights law, legislators and courts have relied on the combination of nexus and nature for the purpose of justifying the exercise of jurisdiction. It has been accepted for some time that universal jurisdiction might/shall attach with respect to some international crimes (‘nature’), at least if the offender is present on the territory (‘nexus’). And recently, the European Court of Justice upheld a Directive submitting (foreign) aircraft departing from or arriving at an EU airport, to the European emissions trading scheme in respect of all air-miles between the EU and the non-EU airport, on the (explicit) ground that departing from or arriving at an EU airport was a sufficiently close territorial nexus, and on the (implicit) ground that international negotiations to counter climate change had failed (this relates to the nature of the protected good). [See Directive 2008/101/EC of the European Parliament and of the Council of 19 November 2008 amending Directive 2003/87/EC, OJ (2009) L8/3, recital 25 in particular; ECJ, Case C-366/10 Air Transport Association of America and Others v Secretary of State for Energy and Climate Change (‘ATA’), Judgment of 21 December 2011.] (see the EJIL:Talk! post by Jacques Hartmann on this issue). One is left to wonder if a shift in the law of jurisdiction is not taking place, across various fields of the law, including human rights law, a shift that premises the exercise of jurisdiction not only on the classic nexus criterion, but also – and perhaps crucially – on the global values that such exercise may further.