Climate Change and the Extraterritorial Reach of the State Duty to Protect

The constitutional debate on climate change has been growing as a result of both the introduction of constitutional clauses on the protection of the environment and the increase of climate litigation against states’ governments. National courts have delivered important decisions on the obligation for states to take climate action, namely on mitigation and adaptation measures. A key and yet unclear issue is whether states have a constitutional duty of protection also vis-à-vis the environment outside their jurisdiction. The German Constitutional Court had a chance to address it in the Neubauer case, but evidently chose not to take a stand. This chapter investigates the (extra)territorial scope of the state duty of protection under the constitution against environmental impairments caused by climate change. Drawing from the Neubauer case, this chapter outlines the different implications of mitigation and adaptation measures abroad and argues that an extraterritorial duty to protect seems conceivable only in respect to mitigation measure. In the last decades, the progress in the environmental protection under international law prompted constitutional changes.