The BVerfG and the ECJ face a new challenge: climate change litigation in light of the extraterritorial protection of fundamental rights?

The BVerfG’s decision on the Klimaschutsgesetz and the CJEU’s judgment in the Carvalho case give rise to a series of novel considerations regarding not only climate litigation, but the protection of fundamental rights in an extraterritorial dimension. Starting from an overview of the two abovementioned decisions, it is worth assessing which procedural tools are currently available to preserve the right to life and, more generally, the inviolable rights of human beings at an “ultra-national” level. An understanding of their shortcomings will lay the basis for a reflection upon new procedural mechanisms that may ensure the extraterritorial protection of fundamental rights.

Are all fundamental rights justiciable extra-territorially?

Most share the opinion that the challenges that we are called to address today have a transnational dimension that is shedding a clear light on the limitations of national constitutional orders. What appears to be less clear, however, is the role that national constitutions may play to preserve fundamental rights, even beyond national borders. As the BVerfG suggested, it is conceivable that duties of protection that arise from fundamental rights also place the State under an obligation vis-à-vis complainants who live outside the national territory and who have no citizenship links. If this is the case, then fundamental rights enshrined in national constitutions have an extraterritorial dimension, which needs to be guaranteed by the State and can be preserved by the constitutional court. The problem, however, is to define which fundamental rights may produce binding effects outside the national territory, and, subsequently, which fundamental rights are justiciable under this view.

Extra-territorial application of fundamental rights and the constitutionalization of foreign policy

According to a traditional understanding, foreign policy is a crucial expression of State’s sovereignty, which faces very few constitutional limitations. National constitutions are mainly concerned about establishing whose power it is to conduct foreign affairs and sometimes they set out very broad aims, but they are generally not interpreted as imposing actual legal obligations on State powers. The idea of extra-territorial application of fundamental rights enshrined in national constitutions challenges this common understanding and calls for further reflection on the way we conceive the relation between gubernaculum and iurisdictio in the field of foreign affairs. Acknowledging that constitutionalism entails a partial juridification of foreign policy and developing feasible ways to make it justiciable are two important steps towards ensuring the full normativity of national constitutions and ultimately strengthening the commitment of States to human rights, sustainability, and peace.