Extraterritoriality in International Law: The Case of EU Climate Protection

Abstract

While the international climate regime has recently taken considerable strides, the post-Paris era leaves states with much discretion as to the ambition of their climate change policies. Over the past years, this pervasive ‘ambition gap’ has led the European Union (EU) to take provocative unilateral steps across various policy fields, seeking to reduce the carbon footprint of goods and services consumed in its territory. To level the playing field, such measures also target foreign production processes, effectively engaging actors outside of the EU. This gives rise to fundamental questions about the territorial limits of states’ jurisdiction to respond to climate change as a common concern of humankind. This research analyses cross-cutting issues in the fields of world trade law, the law of the sea, international civil aviation law and importantly, the customary international law of state jurisdiction. In doing so it proposes an overarching analytical framework for the contested issue of ‘extraterritoriality’ in international law, and applies this in the emerging field of climate change. It is argued that there is considerable support in international law for climate protective measures with an ‘extraterritorial element’. What is needed, however, is an increased focus on the applicable jurisdictional limitations. It is this aspect that offers a window for the mitigation of overregulation and the prevention of unacceptable infringements of the sovereignty of other states. In light of the diffuse state of the law on this point, this study proposes a ‘considerate design’ tool to assist legislators in aligning individual measures with general principles of international law. From a functional perspective, this approach is intended to facilitate a better balance between regulatory autonomy, development needs and the protection of common concerns.