Climate Change,Human Rights,and Extraterritorial Obligations

The Concept of Jurisdiction

Let us begin with existing interpretations of international human rights law on extraterritorial obligations. According to the “territorial” interpretation, states can only bear human rights-based responsibilities in relation to persons who reside within their territory. This view remains the traditional interpretation, and states continue to act under it. ⁸ The basis of this territorial interpretation lies in the so-called “jurisdiction clauses” present in most instruments, specifying that states ought to realize the human rights of all persons subject to their jurisdiction. Most prominently, the International Covenant on Civil and Political Rights (ICCPR) explicitly mentions “territory”: “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant.” ⁹

The main challenge to the territorial interpretation comes from an ambiguity in the term “jurisdiction.” This term has one sense in general international law and another in international human rights law. ¹⁰ In general international law, “jurisdiction” refers to a state’s legal authority and competence to establish and enforce rules within a given territory. General international law regulates states’ jurisdiction by a principle of non-intervention: states cannot exercise jurisdiction within the territory of another state unless there is some permissive rule to the contrary. In international human rights law, “jurisdiction” refers to the threshold link between a state and the rights-bearer which triggers the responsibility of the state. In other words, while “jurisdiction” in general international law delineates the rights of states with respect to one another, “jurisdiction” in international human rights law delineates their obligations with respect to persons. ¹¹ Thus, these two senses of “jurisdiction” are different concepts with different functions. While they often overlap, this is not necessary. A state which illegally invades a foreign territory lacks “jurisdiction” from the point of general international law. Nevertheless, this state must respect human rights within that territory and, thereby, has “jurisdiction” from the point of view of international human rights law.

Given this distinction, there is no reason internal to international human rights law to limit states’ obligations to their territories. Even the ICCPR has been given an extraterritorial interpretation. The Human Rights Committee reads the phrase “within its territory and subject to its jurisdiction” disjunctively, thereby rejecting the equation of jurisdiction and territory. ¹² Residing within the territory of a state is not necessary to establish jurisdiction for the purposes of the ICCPR. In fact, while it remains contested which conditions must be met to establish jurisdiction, it is now uncontroversial to offer extraterritorial interpretations of human rights treaties. ¹³ The question is not whether jurisdiction applies extraterritorially, but which conditions trigger extraterritorial jurisdiction.

The Three Models of Extraterritorial Jurisdiction

Thus far, human rights practice has developed three models of extraterritorial jurisdiction, the “spatial,” “personal,” and “causal” models. These models do not exclude one another, and each sets a sufficient condition to establish jurisdiction. In the spatial model, a state has jurisdiction under international human rights law when it has effective control over an area. ¹⁴ This conception of jurisdiction applies to the territory of a state, but it may also apply to areas outside its territory. In some instances, a state may hold de iure effective control over a space outside its territory under international law, such as a state’s ship, an embassy, or a military base. Moreover, a state may hold human rights-based responsibilities in this model even if it holds unlawful yet de facto effective control over a space. For example, as the ICJ has ruled, even if the Israeli military occupation of Palestinian Territory is illegal under international law, Israel is still responsible for human rights violations under international human rights treaties. ¹⁵

In the personal model, a state holds jurisdiction under international human rights law when it has effective control over a person. ¹⁶ This effective control may take place territorially or extraterritorially. For example, a state may hold legitimate authority over a person abroad through its diplomatic or consular agents. But a state may hold de facto effective control over a person when, for example, its agents illegally detain a person abroad. ¹⁷

UN-treaty bodies, as well as the European and Inter-American systems, have recognized the personal and spatial models for decades. ¹⁸ But since 2017, the IACtHR has developed a third, “causal” model, according to which a state holds jurisdiction when it has effective control over activities which pose a reasonably foreseeable risk to the enjoyment of human rights outside its territory. In its Advisory Opinion OC-23/17, the IACtHR offered a new jurisdictional test:

When transboundary harm or damage occurs, a person is under the jurisdiction of the State of origin if there is a causal link between the action that occurred within its territory and the negative impact on the human rights of persons outside its territory. The exercise of jurisdiction arises when the State of origin exercises effective control over the activities that caused the damage and the consequent human rights violation. ¹⁹

This model of extraterritorial jurisdiction applies in contexts of transboundary damage to the environment which impairs the enjoyment of human rights. In these contexts, states can be held responsible when two conditions are met. ²⁰ First, there must be a causal link between the conduct of a state and a significant harm to human rights outside its territory. This causal link is established when the state has effective control over the activities which cause the transboundary damage, even if the state does not have effective control over the victims or area in which they reside. Second, states can only be held responsible when the relevant harm is “reasonably foreseeable” in accordance with available knowledge and evidence.

Climate Change and Extraterritorial Jurisdiction

Which of these models best suits the context of climate change? To answer this question, let us examine the climate jurisprudence of the ECtHR. In KlimaSeniorinnen v. Switzerland, the ECtHR reasoned that the adverse effects of climate change undermine human rights; therefore, states have positive obligations to reduce their greenhouse gas emissions. ²¹ On this basis, it ruled that Switzerland’s insufficient reduction targets violated the rights of the plaintiffs, a group of elderly Swiss women. On the other hand, the ECtHR also ruled in Duarte Agostinho and others v. Portugal and 32 Other States that these obligations do not extend extraterritorially. ²² In this case, six Portuguese youth brought 33 European states to court for their failure to mitigate climate change. However, unlike in KlimaSeniorinnen, the plaintiffs did not reside within the territory of the states they sued (with the exception of Portugal). For this reason, the ECtHR rejected their claims. The ECtHR acknowledged that states control public and private activities whose emissions impact human rights outside their territories. Nevertheless, the ECtHR only accepts the personal and spatial models of jurisdiction, which do not fit this case. Only Portugal has effective control over these Portuguese youth, even if other European states can impact their human rights. Therefore, for the ECtHR, even if all states have positive obligations to reduce their greenhouse emissions, when they fail to do so, people who reside outside their territories cannot make a claim against them.

In contrast, in Sacchi v. Argentina, the Committee on the Rights of the Child (CRC) relied on the IACtHR’s causal model to evaluate the extraterritorial obligations of states in the context of climate change. ²³ The CRC found that climate change poses a substantial risk to the rights to life, food, housing, water, as well as cultural rights. This transboundary harm can be traced to states because they have effective control over activities which emit greenhouse gases. In other words, there is a causal link between a state’s actions or omissions and a substantial transboundary harm to human rights. Moreover, this impact is “reasonably foreseeable” due to the development of our best available climate science. Thus, the CRC concluded that states may be responsible for violating the rights of children outside their territories when they fail to take appropriate measures to mitigate climate change. In its own 2025 advisory opinion on climate change, the IACtHR confirmed that its causal model applies to climate change. ²⁴

In other words, if the causal model of jurisdiction holds, then a state’s failure to take adequate steps to sufficiently reduce their greenhouse gas emissions makes them accountable to persons outside their territory. But if the causal model does not hold, then only a denizen can make a claim on said state. Most international bodies agree that states have justiciable obligations to reduce their greenhouse gas emissions. But because they have different models of jurisdiction, they disagree on who can use litigation to influence climate policy.

From the point of view of justice, the ECtHR’s restrained approach is problematic. ²⁵ It limits the ability of the most affected by climate change to influence global climate action. Rights-based litigation has proved a critical tool for civil society to hold its states accountable for climate inaction. However, in the absence of extraterritorial obligations, courts will not serve all equally. If each person can only enforce their rights against their own country, and if not all countries contribute equally to climate change, then not all persons can equally enforce their rights. The Portuguese youth sued 33 European states because Portugal is disproportionately vulnerable to climate change yet has lower emissions per capita than other European states. Worse, this approach blocks climate litigation from the Global South under the ECHR, aggravating the unequal power between Europe and its former colonies. As its Duarte ruling puts it, “accepting the applicants’ arguments would entail an unlimited expansion of States’ extraterritorial jurisdiction under the Convention and responsibilities under the Convention towards people practically anywhere in the world. This would turn the Convention into a global climate-change treaty.” ²⁶ To critique this approach, let us turn to philosophical conceptions of human rights to excavate the normative commitments behind human rights practice and defend the causal model.

Charles Beitz’ Practical Conception

From the point of view of the practical approach, the humanist elucidates the concept of moral or natural human rights, rather than political or legal human rights. Even if it were true that we have certain moral rights in virtue of our humanity, it is an open question whether these rights are the same rights captured in international human rights law and its surrounding practice. ³⁸ As Allen Buchanan puts it, the humanist conception must presuppose that legal human rights “mirror” moral human rights, but this assumption does not hold up to scrutiny. ³⁹ In other words, if our goal is to guide the practice, then our theories must originate from and speak to the practice. This intuition lies at the core of the “practical” conception of human rights.

In his The Idea of Human Rights, Charles Beitz articulates a paradigmatic version of this approach. ⁴⁰ Beitz begins his practical conception by sketching an outline of the existing discursive and political practice of human rights. ⁴¹ According to Beitz, this practice emerged in the period following World War II. The practice exists within the structures of the global political order, involving international institutions like the United Nations, NGOs (i.e., Amnesty International), states, and individuals. This practice contains a “doctrine” enshrined in the International Bill of Rights, as well as complex implementation mechanisms meant to realize this doctrine at domestic and international levels. In Beitz’ view, the purpose or “central concern” of this practice is “to protect individuals against the consequences of certain actions and omissions of their governments.” ⁴²

From this sketch, Beitz abstracts a “two-level” model containing three elements. (1) Human rights norms safeguard underlying “urgent individual interests” against “standard threats” to which these interests become vulnerable “under typical circumstances of life in a world composed of states.” ⁴³ (2) These norms apply “in the first instance to the political constitutions of states.” ⁴⁴ States have the “primary” or “first-level” responsibility to respect, protect, and fulfill human rights. (3) Human rights are “matters of international concern.” ⁴⁵ Should a state fail to discharge its primary responsibilities, through lack of will or capacity, appropriately placed and capable “second-level” agents, whether international institutions and courts, foreign states, or NGOs, have pro tanto reasons to hold them accountable, interfere, assist, or merely name and shame.

Does Beitz’ conception allow for extraterritorial obligations? Beitz’ two-level model could allocate extraterritorial obligations of cooperation and assistance in the second level. However, Beitz rejects the extraterritoriality of states’ primary responsibilities to respect, protect, and fulfill human rights. For Beitz, states’ primary responsibilities are directed towards populations within their territory. He calls his two-level model a “state-centric” model, among things, because “human rights apply in the first instance to states, in the sense that the protections guaranteed by human rights are supposed to be achieved, for any state’s residents, by means of the laws and policies of that state.” ⁴⁶ Elsewhere, he clarifies that the “beneficiaries” of states’ protections are its citizens and residents. ⁴⁷ In other words, when states bear a primary responsibility to respect, protect, or fulfill human rights, the bearers of these rights must be individuals who reside within the state.

Samantha Besson on Human Rights as Normative Relationships

Beitz’ skeptical conclusions regarding extraterritoriality run into a major problem. Beitz’ reconstruction of the practice mostly focuses on the inception of the UN system, especially the drafting of the International Bill of Rights. However, as I already showed, human rights practice has overtime evolved beyond the territorial interpretation of human rights-based obligations. UN-treaty bodies, the ICJ, and the regional courts, all reject restricting states’ primary responsibilities to its denizens.

Samantha Besson has developed a non-humanist conception of human rights sensitive to this shift towards extraterritoriality. ⁴⁸ Following the political tradition tracing back to Hannah Arendt, Besson conceives of human rights as rights which protect the conditions of equal status in a political community. ⁴⁹ These rights are both moral and legal, grounding first-order domestic obligations on states to respect, protect, and fulfill these human rights, as well as second-order international obligations to ensure first-order obligations.

For Besson, human rights-based responsibilities are directed duties towards the rights-holder. Human rights name a “normative relationship” between duty-holder and rights-holder. Based on the “jurisdictional clauses” of human rights treaties, she defines the relevant normative relationship not in terms of citizenship or residency, but jurisdiction. However, Besson does not conflate “jurisdiction” as rights of sovereignty under international law with “jurisdiction” as responsibility under international human rights law. As she herself notes, the latter concept delineates the threshold link between a state and a person which triggers human rights-based responsibilities. For Besson, the substance of this link lies in “de facto authority” or “effective, overall and normative power or control (whether it is prescriptive, executive, or adjudicative).” ⁵⁰ Authority is not brute force, but power which aspires for legitimacy. Therefore, a state has human rights-based obligations towards a person only if it has authority over them.

Besson’s theory partly aims to explain (and/or justify) the jurisprudence of the ECtHR. ⁵¹ Following the judgments of the ECtHR on extraterritorial obligations closely, she argues that we can abstract a general pattern: to trigger human rights-based responsibilities, we must first establish a jurisdictional link, a relationship of de facto authority between duty-bearer and rights-holder. Effective control over a person or over the area in which they reside, correspondingly, both reach this threshold link. As such, her view moves beyond Beitz’ practical conception by extending states’ primary responsibilities to all persons subject to their effective control, whether they reside within or outside their territory.

For Besson, thus, the personal and spatial models of extraterritorial jurisdiction hold; however, like Beitz, Besson rejects the causal model. She explicitly critiques this model for breaking the normative relationship between duty-bearer and rights-holder. ⁵² In her view, the interpretation of jurisdiction coming out of Inter-American jurisprudence mistakenly sets the jurisdictional link between state and rights-holder as effective control over the source of the harm to the person, not over the person herself. She does not deny that states do have an obligation to prevent transboundary harm when have they have effective control over said harm. But she argues that this obligation derives from standards of due diligence in general international law and international environmental law, not international human rights law. If we confuse these sources of obligations, we fail to see that human rights-based obligations operate against a background normative relationship between duty- and rights-holder. Since this model is necessary to allocate extraterritorial obligations in the context of climate change, Besson’s theory justifies and predicts the Duarte ruling of the ECtHR which restricts states’ human rights-based obligations to mitigate climate change to its own borders.

Human Rights as Associative Rights

In my view, Beitz and Besson rule out the causal model of extraterritorial jurisdiction because they presuppose that human rights are “special” rather than “general” rights—in particular, they are associative rights. This assumption underlies most thinkers in the political conception of human rights. As Jean Cohen puts it, summarizing this tradition:

Human rights thus are not rights one has in a pre-political state of nature: rather one has them by the virtue of political association – i.e. they pertain to contingent social relationships. They are associational rights, activated by the presence of and membership in specific socio-political institutions and they impose constraints on these institutions, and on those acting in their name. ⁵³

In this conception, human rights are rights which hold in virtue of membership to a state. They set limits to how a state can treat a person qua members and make this treatment a matter of international concern. For Beitz, we have these rights in virtue of our residency within a state’s territory. They are not moral or natural rights, but sui generis rights which emerge in the political context of the modern state-system. While Besson often describes human rights as a sub-set of universal moral rights, their legal nature entails restrictions to the scope of obligations. Besson links them to relationships of jurisdiction, thereby conceiving of human rights-based obligations as associative obligations. For her, states owe us human rights-based obligations in virtue of being subject to their effective control, whether we reside within or outside its territory.

Beitz and Besson seem to hold this presumption because they set their methodology in direct opposition to the humanist conception of human rights. Non-humanist conceptions assume that if we conceive of human rights as holding in virtue of our humanity, then they must be moral or natural rights, and, thereby, irrelevant to international law and politics. From this presumption, they conclude that if we examine the concept of human rights as it operates in our existing practice, we will see that human rights are associative rights. Hence, Beitz inducts his theory from the early years of the UN system, while Besson from the European system.

But if human rights are associative rights, states’ obligations must be restricted. For associative rights only bind members of the relevant relationship. For example, in virtue of their familial relationship, parents owe their children certain care they do not owe their neighbors’ children. By analogy, in virtue of being under their jurisdiction, states have obligations to respect, protect, and fulfill the human rights of persons subject to their authority which they do not owe all human beings. But when a state holds effective control over the source of a harm to a person’s enjoyment of human rights, not over the person herself, the person lies outside the relevant association, whether citizenship, residency, or authority. Thus, the causal model of extraterritorial jurisdiction does not conform to the concept of human rights in the existing practice. It is a category-mistake. Or so does the argument go.

The Fidelity Requirement

The non-humanist conceptions of human rights proposed by Beitz and Besson may seem rather tempting. Beitz and Besson rightly assert that a conception of human rights must take the practice as its starting-point. Philosophers of human rights, in the humanist and political traditions, nowadays widely accept the so-called “fidelity requirement.” ⁵⁴ This requirement demands that a philosophical conception cannot radically depart from human rights practice and must offer a theory which practitioners can recognize and identify as their own. This requirement focuses philosophical reflection on the relevant target concept, the concept of human rights in practice, rather than some other concept like natural rights.

Their mistake, however, lies in the step from the fidelity requirement to the associative nature of human rights. As Cristina Lafont observes, we can develop a practice-based conception of human rights which rejects that human rights are associative. ⁵⁵ For, as Beitz claims, the distinctive feature of the existing practice lies in the fact that human rights are matters of international concern. The innovation of this regime rests on the allocation of back-up responsibilities to the international community whenever states fail to discharge their primary responsibilities within their jurisdiction. But, as Lafont argues, we cannot explain this feature of the practice if we take human rights as associative. For associative rights only bind parties to the relevant relationship. So, if human rights were associative, they could only bind the state under whose authority the rights-holder resides. Human rights could not ground back-up responsibilities. In other words, if human rights are a matter of international concern, they must be universal, rather than associative.

In response to this objection, one may claim that human rights can be both associative and a matter of international concern if we grant a wider meaning to the concept of “association” than membership in a state. For example, the European Union is not a state, and yet, all European citizens have certain associative rights in virtue of their membership to this supranational legal community. ⁵⁶ Similarly, non-humanists may say, “We grant that human rights cannot be like constitutional rights, which emerge from a domestic legal order. Human rights are special rights which emerge from a special world-order. The United Nations Charter and the International Bill of Rights created a global regime which claims both states and individuals as subjects. As such, states never exercise authority over persons in isolation. States belong to a larger legal and political regime which regulate their relationship to the persons subject to their authority. As such, in this regime, states bear the primary responsibilities to respect, protect, and fulfill the human rights of persons subject to their authority, while the international community has back-up responsibilities to ensure the satisfaction of those primary responsibilities. The grounds of these back-up responsibilities lie in the normative salience of an emerging, global association to which all human beings and states belong. In this respect, human rights are associative.” ⁵⁷

The Purpose of Human Rights

Fortunately, even if we accept the response of the non-humanists, we can show that the internal norms of this unique, global regime require recognizing the causal model of extraterritorial jurisdiction. To follow the practice, we cannot focus on revisable features, but fixed points, like its purpose. ⁵⁸ Now, philosophers, both in the humanist and political traditions, have attributed various purposes to human rights. James Griffin says that the role of human rights is to “protect normative agency.” ⁵⁹ For Beitz, they protect the urgent interest of individuals from standard threats in a modern state-system. ⁶⁰ For Joseph Raz, they set limits for the sovereignty of states. ⁶¹ For Allen Buchanan, the purpose of international human rights law is to limit the sovereignty of states for the sake of individuals, ⁶² to secure the minimal conditions for a good life and to affirm the equal status of all human beings. ⁶³

For our purposes, I do not need to choose one particular account. Human rights may have multiple functions, like a Swiss knife, and different features may correspond to different functions. As James Nickel observes, human rights seem to be “polyfunctional” and resist a single description for its function, unless it is rather abstract. ⁶⁴ All I need is to point out how, regardless of which purpose we attribute to human rights practice, no description of its function(s) can miss that its beneficiaries are all human beings. The Preamble to the Universal Declaration of Human Rights (UDHR) affirms that the member states of the United Nations “have pledged themselves to achieve, in cooperation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms,” and latter adds that among the ends of the UDHR is “to secure [the] universal and effective recognition and observance [of human rights and fundamental freedoms].” ⁶⁵ The historical innovation of this global regime rests precisely on its universality. Unlike other international regimes such as the Westphalian system, or the European, Ottoman, and Qing empires, this regime aims to protect all human beings, rather than particular religious, racial, cultural, or ethnic groups. ⁶⁶ Put simply, this practice exists for the sake of humanity.

From the Purpose to the Constitutive Standard of Universal Protection

This purpose, I argue, grounds the causal model of extraterritorial jurisdiction. When an object is defined in terms of what it is for, this purpose gives rise to what Christine Korsgaard calls “constitutive standards,” norms which apply to a thing simply in virtue of its being the kind of thing that it is. ⁶⁷ For example, the concept of a knife refers to a tool for cutting. For this reason, a good knife is sharp, a deficient one is not. When I deliberate about which knife to buy, I can evaluate them by their sharpness, a standard constitutive of knives. Practices set for the sake of ends have the same normative structure. Since they have a purpose, they have constitutive standards which determine their excellence or deficiency. As such, when practitioners evaluate their practice, they appeal to the end of the practice. For instance, the practice of medicine aims at health, so guidelines for whether to provide a procedure to a patient should depend on whether it improves the patient’s health, not the physician’s wealth.

Since human rights practice characterizes itself by its purpose, human rights practice gives us certain constitutive standards in light of which to evaluate and critique itself. If a certain arrangement of the practice fails to achieve this end, it is thereby deficient. Now, this practice is the kind which prescribes certain behavior to certain agents. The practice has discursive, political, and legal elements, working at domestic and international levels, and involving individuals, governments, NGOs, and international organizations. For our purposes, let us focus on states and international human rights law. After all, the main mechanism through which the practice achieves its end is the allocation of responsibilities to respect, protect, and fulfill human rights to states through international law. It follows that we can assess the allocation of responsibilities within international human rights law in light of the purpose of the practice.

Since this purpose centrally includes the universal enjoyment of human rights, it is a constitutive standard of the practice that an allocation of responsibilities must protect the rights of all human beings. In a world where some human beings enjoy this protection while others do not, the practice is not performing its function well. If an allocation of responsibilities left the interests of some human beings unprotected from standard threats, we should judge this allocation deficient and in need of correction. It would be like an unsharpened knife incapable of cutting.

From Universal Protection to the Causal Model of Jurisdiction

I argue that this constitutive standard of universal protection requires that international human rights law recognize the causal model of extraterritorial jurisdiction. To make my case, assume for the sake of argument that we reject the causal model of jurisdiction and accept, at most, the personal and spatial models. In this picture, states only bear human rights-based responsibilities towards persons under their effective control or who reside in an area under their effective control. However, they do not bear responsibilities when they have effective control over the source of a foreseeable risk to the enjoyment of human rights.

Reconsider the case of transboundary pollution already discussed: a state S₁ shares a border with some other state S₂, where I live. S₁ has effective control over various factories near the border, and the air pollution coming from those factories across the border significantly hinders my ability to lead a healthy life. Since this is not a case of bad luck, but has a human cause and solution, human rights practice should give me the ability to enforce my human rights against the perpetrator. Now, against which state can I make a claim? S₁, and not S₂, has effective control over these factories. Since ought implies can, I cannot hold S₂ responsible, assuming it has done everything within its power to protect me from this pollution. But if we deny the causal model of extraterritorial jurisdiction, I cannot hold S₁ responsible either. Thus, I cannot hold anybody responsible. In this allocation of responsibilities, I am left unprotected from this deprivation of my ability to lead a healthy life. In other words, without a causal model of jurisdiction, human rights practice will suffer from an open gap in the protection of universal human rights. Therefore, if the practice is to conform to its own norms, it must admit the causal model.

This argument resembles the humanist argument given earlier in its appeal to the universality of human rights. However, it avoids the criticisms made by defenders of the practical conception because it meets the fidelity requirement. It proceeds from the function or purpose of human rights practice to a constitutive standard by which to evaluate and critique it from within. It does not argue from controversial conceptions of human dignity or natural law. If it offers a revision to human rights practice, it argues for these revisions from reasons which practitioners themselves could endorse as their own, that is, the end of the practice. While this argument may not persuade the skeptic about human rights in general, it does bind those who believe in human rights but remain skeptical about extraterritorial obligations. This is the current position of many powerful governments who want the international reputation of the human rights project without having to care about people who cannot vote for them. But this argument shows this position to be normatively unstable. Once a state accepts the undisputed norms of international human rights law, like the responsibility to respect human rights within its territory, it must also accept the end of human rights practice as its own. And if it accepts its end, the universal enjoyment of human rights, it must also accept its extraterritorial responsibility to respect human rights everywhere.

Enjoying Rights as Rights

One could object that we could close this “open gap” without human rights-based extraterritorial obligations through other legal sources of environmental obligations. Samantha Besson herself offers such an alternative account. ⁶⁸ For Besson, states have obligations to respect, protect, and fulfill human rights under international human rights law, as well as obligations to prevent transboundary harm under general international law. However, she warns us not to confuse these two types of obligations and their sources, as the causal model of jurisdiction does. The former are directed duties which presuppose a normative relationship of effective control between duty-bearer and rights-holder, while the latter are non-directed duties. In the case above, since I am not under the effective control of polluting state S₁, S₁ has obligations to prevent transboundary harm under international law, even if, strictly speaking, this obligation is not directed to my human rights. Nevertheless, if S₁ satisfied this obligation, I would not suffer from transboundary pollution. Moreover, if S₂ satisfied its human rights-based responsibilities, absent extenuating circumstances, I could enjoy the highest attainable standard of health. In other words, for Besson, the allocation of human rights-based extraterritorial obligations is not necessary to protect me.

However, in my view, this allocation does not allow me to enjoy the highest attainable standard of health as a right. Rights involve the ability to make a valid claim within a certain normative practice. ⁶⁹ For this reason, as Henry Shue observes, to enjoy a human right, it is not sufficient to attain the object of the right. ⁷⁰ To enjoy it as a right, certain institutional arrangements must exist which empower the right-holder to make a claim against some duty-holder to satisfy their duties. For example, I must be able to bring the state to a domestic or international court which can enforce my rights. Even if I enjoy the highest attainable standard of health, in a society governed by a benevolent dictator, I do not thereby enjoy the human right to health. Similarly, in Besson’s proposed allocation of international legal obligations, I would enjoy the highest attainable standard of health, but I would not enjoy the human right to health. The problem lies in that even if my neighboring state refrained from pollution, I would lack the institutional power to hold them accountable. I would be healthy, but deprived of agency. This allocation, therefore, fails to secure the universal enjoyment of human rights as rights.

The right to a clean and healthy environment, like other human rights, entails access to justice. As the IACtHR affirms, climate damage is by nature transboundary, and, in this context, “the guarantee of access to justice involves the legal standing of people and entities that do not reside in the State’s territory.” ⁷¹ Rights-based climate litigation enables us to materialize our valid claims into policy and, thereby, to express our political agency. For this reason, even if states reduce their greenhouse gas emissions, unless I can hold them judicially accountable, I cannot enjoy my right to a clean and healthy environment as a right. The institutionalization of human rights-based extraterritorial obligations in the context of climate change serves to reaffirm the agency of those affected by climate change.

Restoring the agency of climate survivors becomes especially important given the coloniality of climate change. ⁷² Because of the colonial history behind the Industrial Revolution, while elites in the Global North have historically driven climate change, vulnerable communities in the Global South disproportionally bear its burdens. As a result, those most affected by climate change do not reside in the territory of polluting states. Furthermore, this same colonial history has rendered the institutions of global governance highly ineffective at addressing the climate crisis. These communities suffer a double injustice: not only are they most affected by climate change, but they also have the least decision-making power in international politics. In this context, the institutionalization of extraterritorial obligations would enable people in the Global South to pursue transnational rights-based litigation against states in the Global North. This litigation would serve not only to pressure states to adopt urgent climate action, but also, to secure reparations for loss and damages. Beyond material remedies, it would address the unequal and unfair distribution of power over our changing climate by giving survivors a stance.

A second alternative source of environmental obligations to human rights is tort law. ⁷³ In paradigmatic tort cases, A seeks remedies from B because B has breached a duty of care which causes personal or material damages to A, ⁷⁴ such as when Ana sues Benito for hitting her car with his. Indeed, plaintiffs around the world have sued governments and fossil fuel corporations for breaching duties of care. Analyzing climate change through the lenses of tort laws has two aims: on the one hand, to raise the cost of fossil fuels for governments and corporations in order to incentivize the green transition; on the other, to restitute climate survivors for loss and damages. ⁷⁵ Moreover, addressing climate change through tort law rather than human rights law appears to avoid raising the problematic issues of extraterritorial jurisdiction. As I argue, in order for human rights practice to address the issue of climate change, it must move beyond the territorial, state-centric conception of human rights which dominates the practice. In contrast, the duties of care at the heart of tort law do not limit themselves to the borders of a state. For example, in the high-profile case Luciano Lliuya v. RWE AG, a Peruvian farmer sued the German energy company in a German court, requesting material compensations proportionate to RWE AG’s contributions to climate change for the potential damages to his property from a nearby melting glacier. ⁷⁶ In a 2025 judgment, the Higher Regional Court of Hamm dismissed Lliuya’s claims because they did not recognize a concrete danger to his property; however, the judgment also recognized that, in principle, actors can be materially liable for their contributions to the climate crisis.

While I welcome the development of these tort cases, I doubt that tort law can replace human rights law as a source of extraterritorial climate obligations, either for states or corporations. First, while Luciano Lliuya v. RWE AG does not appeal to human rights doctrine, other landmark, successful tort cases very much do. For example, in Urgenda v. The Netherlands and in Milieudefensie v. Royal Dutch Shell, Dutch courts ordered the Netherlands and Shell, respectively, to reduce their greenhouse gas emissions. ⁷⁷ In both cases, the Dutch courts found that failures to mitigate climate change constitute a violation of the duty of care found in national tort law. However, the courts interpreted this duty of care in light of human rights instruments, like the European Convention of Human Rights or the UN Guiding Principles on Business and Human Rights. In their view, failures to mitigate climate change amount to a tort because of its risk to human rights. Given the already existing jurisprudence on climate change and human rights, I suspect that tort cases will rely on, rather than replace, human rights-based litigation.

Second, the climate litigation movement should appeal to human rights for political reasons. Transnational tort cases will likely achieve material remedies for loss and damages related to climate change for individual plaintiffs. Nevertheless, this movement has other political goals beyond material remedies, such as transforming public opinion and inspiring mass mobilization in favor of climate action. In modern political discourse, the concept of human rights serves not only as a lingua franca for international relations, but also, it sets the minimal standards of legitimacy for institutions. The mainstream public had historically imagined climate change as a technical issue for scientists and diplomats to solve. But as the most affected by climate change began to contest the insufficient policies of governments and corporations through human rights-based litigation in the 2000s, they reframed the climate crisis as an issue of basic justice. As we continue to contest the paralysis of corporations, domestic governments, and international organizations before the climate crisis, human rights serve as an irreplaceable discursive tool to raise awareness, stress urgency, and pressure power to act. Transnationalizing human rights-based climate litigation enables global deliberation to flow freely. As this vision of climate change as an issue of basic justice gets a grip on the imagination of the global publics, it will become increasingly difficult for corporations and governments to justify their inaction. This discursive pressure may also have material consequences by strengthening the demands of Global South countries for the Global North to fund climate change mitigation, adaptation, and loss and damages in international fora.