Climate Litigation, Extraterritoriality of Human Rights and the German Constitution

Abstract

Constitutional obligations can bind the authorities of a state not only in relation to their own citizens but also to people living abroad. The extent of this ‘extraterritoriality of human rights’ has been the subject of much debate. Recent decisions by German courts, in particular the Constitutional Court, have begun spelling out the reach of this obligation for German authorities. In 2020, citizens from Bangladesh and Nepal turned to the Constitutional Court, submitting a complaint, alongside German individuals, on the insufficient and weak climate policy of the German government. As part of its subsequent landmark decision, the Constitutional Court surprisingly upheld the admissibility of the complaints by non-German nationals living outside of Germany. The Court confirmed that greenhouse gas emissions emanating from Germany could potentially give rise to a duty to protect people abroad from the adverse effects of climate change, based on the fundamental rights protection provided under the Basic Law. However, the Court dismissed the complaints on substantive grounds. It established that – should extraterritorial obligations exist – these would differ from domestic obligations in both content and standard of review. Yet, the Court fell short in establishing a suitable standard for assessing a breach of the duty to protect in an extraterritorial context.