First, that the obligations to respect and ensure human rights require States to abstain from impeding or rendering more difficult other States’ compliance with the obligations of the Convention. Notwithstanding the general scope of this proposition, its legal basis, as discerned from footnote 194, are the Committee on Economic, Social and Cultural Rights’ General Comments 14 and 15.
Second, that for the purposes of the American Convention, 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 persons outside its territory.
This is confusing. Although the conditions for the extraterritorial application of the Convention were said to be exceptional, the Court effectively conflates the extraterritoriality threshold with the obligation to prevent transboundary damage. In other words, by relying solely on the obligation to prevent transboundary damage (now part of the Convention’s portfolio), the Court rendered the extraterritorial threshold nugatory in practice. Pursuant to paragraph 101 above, the question remains whether the same is applicable regarding the positive obligation to ensure.
Paragraph 103 adds to the existing complexities by declaring a sine delicto regime in the American Convention when human rights are affected by significant environmental transboundary damage. It reads:
“Therefore, it is possible to conclude that the obligation to prevent moj database environmental transboundary damage is an obligation recognized by international environmental law, by virtue of which States can be held responsible for significant damage caused to persons located outside their territory as a result of activities originating in their territory or under their authority or effective control. It is important to highlight that this obligation does not depend on the lawful or unlawful character of the conduct causing the damage. This is because States are obliged to repair promptly, adequately and effectively, transboundary damage resulting from activities undertaken in their territory or under their jurisdiction. This obligation is independent from the question of whether the activity in question is prohibited or not under international law. In any case, there must always be a causal link between the damage caused and the act or omission of the State of origin in respect of activities within its territory or under its jurisdiction or control”.
The introduction of this new regime in the American Convention is done by reference to the ILC Articles on the prevention of transboundary damage resulting from hazardous activities, and paragraphs 181 to 184 of ITLOS’ A/O on the “Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area”. Strikingly, neither text provides legal authority for the Court’s invention. In particular, paragraph 181 in ITLOS’ A/O makes it clear that in:
“order for the sponsoring State’s liability to arise, it is necessary to establish that there is damage and that the damage was a result of the sponsoring State’s failure to carry out its responsibilities”.