Different grounds for climate change liability: can tort lawyers draw inspiration from rights-based climate litigation?

Abstract

Tort law and human rights law represent two distinct legal frameworks that have been deployed in climate change litigation. Historically, early climate cases were predominantly grounded in tort law; however, a more recent and significant trend, referred to by some scholars as the 'rights turn', has seen a surge in rights-based claims. Despite the fundamental differences in their origins, objectives, policy considerations, scope, and available remedies, these two areas of law also operate within a comparable liability framework. The present study analyses the key challenges that have traditionally hindered tort-based climate litigation, including issues of justiciability, standing, defining compensable harm, establishing unlawful behaviour, and proving causation. By examining landmark cases from different parts of the world, the paper questions how the shift toward rights-based litigation may introduce novel legal strategies and frameworks to address these very challenges in tort-based litigation, ultimately reshaping the landscape of climate litigation. © 2025 Walter de Gruyter GmbH, Berlin/Boston.