Id.
The PCIJ continued: “[A]ll that can be required of a State is that it should not overstep
the limits which international law places upon its jurisdiction; within these limits, its title
to exercise jurisdiction rests in its sovereignty.” Id. The PCIJ ultimately determined that
the commencement of criminal proceedings in Turkey against a French national for an
action taken outside Turkish territory did not come in conflict with principles of
international law. Id. at p. 32.
Reflecting on the Lotus case, the UN International Law Commission report says: “the
Court distinguished between the exercise of jurisdiction by a State outside its territory
and the exercise of jurisdiction by a State within its territory with respect to persons,
property or acts outside its territory. The Court indicated that States have broad
discretion with respect to the exercise of jurisdiction in the latter sense[.]” Annex V, pp.
230-231 (emphasis added). The situation before the Commission reflects the latter
situation.
The report explains that later decisions (after the Lotus decision) have helped shape
“principles of jurisdiction which may be asserted under contemporary international law in
order to justify the extraterritorial jurisdiction of a State[.]” Annex V, p. 231. While a
few of these principles could be asserted by the Commission to defend its authority to
investigate violations of human rights of Filipinos, the one that most clearly applies here
is the effects doctrine.
The report describes the effects doctrine as “jurisdiction asserted with regard to the
conduct of a foreign national occurring outside the territory of a State which has a
substantial effect within that territory. This basis . . . does not require that an element of
the conduct take place in the territory of the regulating State.” Annex V, para. 12. This
principle squarely applies to the investigation currently before the Commission.
The Commission clearly has the authority to investigate the acts that have been raised in
the petition.
IV. The Commission Has The Authority To Address All Of The Prayers For Relief.
BHP Billiton challenges the Commission’s authority to address prayers for relief one and
five. Specifically, the company is challenging the Commission’s authority to:
Conduct an investigation into the human rights implications of climate change
and ocean acidification and the resulting rights violations in the Philippines, and
whether the investor-owned Carbon Majors have breached their responsibilities to
respect the rights of the Filipino people. [Prayer 1]
Notify the investor-owned Carbon Majors and request submission of plans on
how such violations or threats of violation resulting from the impacts of climate
change will be eliminated, remedied and prevented in the future. [Prayer 5]
5