Extraterritoriality and Climate Change Jurisdiction

Natalie L Dobson is Assistant Professor at Utrecht University School of Law, Department of International and European Law, The Netherlands.

• 1. Introduction 1. Introductory Remarks: The Dilemma of Ambitious Unilateral Climate Protection 2. Focus of this Study: The EU as a Provocative Climate Leader 3. Conceptual Parameters: Unilateral Jurisdiction and ‘Extraterritoriality’ 4. Structure and Approach of this Book PART IREGULATING TO PROTECT THE GLOBAL CLIMATE: OBLIGATIONS AND RIGHTS2. The Obligation to Regulate: The Open International Legal Framework for Climate Protection 1. Introduction 2. An Imperative to Act: Climate Change as a ‘Common Concern of Humankind’ 3. The Open International Legal Framework for Climate Protection 4. Conclusion 3. The Right to Regulate: Jurisdiction and Extraterritoriality in Theory and Practice 1. Introduction 2. Unilateral Jurisdiction 3. Types and Bases of Jurisdiction 4. ‘Extraterritoriality’ and the Law of State Jurisdiction 5. Extraterritoriality in Practice: The EU’s Ambitious Climate Policy 6. Conclusion PART IIJURISDICTIONAL BASES AND LIMITATIONS IN LEX SPECIALIS REGIMES4. Regulating Emissions from Foreign Production Processes under WTO Law 1. Introduction 2. Locating the ‘Extraterritorial Element’ in a Trade Law Context: Foreign Production Process Requirements 3. Non-discrimination and the Foreign Carbon Footprint: A De Facto Limitation 4. Justifying Prima Facie Violations: An Implied Jurisdictional Limitation? 5. Conclusion 5. Regulating Emissions from International Maritime Transport under the Law of the Sea 1. Introduction 2. ‘Extraterritoriality’ and the Division of State Powers under the Law of the Sea Regime 3. Territorial Limitations on Port State Jurisdiction in the Law of the Sea Convention? 4. Competing Responses to International Maritime Emissions: IMO and EU Measures 5. Conclusion 6. Regulating Emissions from International Aviation Transport under International Civil Aviation Law 1. Introduction 2. Roles and Agreements under International Civil Aviation Law 3. Limitations on Unilateral Environmental Entry Conditions under the Chicago Convention 4. Competing Responses to International Aviation Emissions: ICAO and EU Measures 5. Conclusion PART IIILEX GENERALIS: THE CRYSTALLISATION OF ‘CLIMATE CHANGE JURISDICTION’ UNDER CUSTOMARY INTERNATIONAL LAW7. The Classical Principles of State Jurisdiction under Customary International Law 1. Introduction 2. A Legal Basis to Legislate under the Classical Jurisdictional Principles 3. The ‘Substantial Connection’ Requirement 4. Conclusion 8. Exploring the Basis of ‘Climate Change Jurisdiction’ under Customary International Law 1. Introduction 2. Relationships between the Classical Principles in the Context of Climate Change 3. The Territorial Presence of Goods and Services Creating the Carbon Footprint 4. The Effects-Doctrine and Environmental Harm 5. The Protective Principle and Climate Change as a Threat to Vital State Interests 6. The Universality Principle and Climate Change as a Common Concern of Humankind 7. Conclusions: Constructing the Substantial Connection Requirement in the Context of Climate Change PART IVJURISDICTIONAL LIMITATIONS AND ‘CONSIDERATE DESIGN’9. Jurisdictional Limitations: The ‘Considerate Design’ Approach 1. Introduction 2. Jurisdictional Limitations as a Second-Order Inquiry 3. The Sources of Jurisdictional Restraint: Custom, Comity and General Principles 4. Exploring the Conditions on Jurisdictional Design under International Law 5. Proposed Regulatory Tool: The ‘Considerate Design’ Approach 6. Conclusion 10. Applying the ‘Considerate Design’ Approach: Opportunities and Challenges 1. Introduction 2. Considerate Design and Jurisdictional Restraint: Respect for Competing Standards 3. Considerate Design and Equity: Common but Differentiated Responsibilities and Respective Capabilities 4. Conclusion 11. Concluding Remarks

Essential reading for anyone who wishes to gain insight into the role and limitations of State jurisdiction in the context of climate change.