INTRODUCTION

Trail Smelter is the first decision in which state responsibility for transboundary environmental harm was recognized. Long before scholars started talking about globalization, the facts of Trail Smelter demonstrated how inextricably linked people are despite the national borders separating them. The Trail Smelter arbitration is a prominent part of international law's response to transboundary environmental harm, but how does international law respond to transboundary or extraterritorial human rights violations?

The international human rights conventions' treaty organs have developed a complex body of jurisprudence on this question, which seeks to respond to the main problem in cases of transboundary or extraterritorial human rights violations, namely, that state obligations arising from international human rights conventions are limited to securing the convention rights to persons under the states' jurisdiction. Article 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), for example, states that “the High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.” The (extra)territorial scope of states' obligations under human rights conventions, thus, depends on whether a member state was exercising jurisdiction over the victim when the violation took place.

For at least two reasons, Trail Smelter, although involving a transboundary harm, can have only limited value in efforts to interpret the requirement of state jurisdiction in the context of international human rights law.