Evaluating Systemic Mitigation Cases under International Human Rights Law Using the Dworkinian Concept of Layers of Intention.

This Article looks at the emergence of systemic mitigation cases, a subset of climate litigation in which plaintiffs use international human rights law to argue that states are in breach of their positive obligations to protect human rights by failing to take more aggressive emission reductions. These systemic mitigation cases are premised on an evolutionary interpretation of human rights treaties, which takes into account the realities of climate change. The soundness of such evolutionary interpretation is assessed using the Dworkinian concept of multiple intentions, whereby human rights treaties are explained to embody not one monolithic intention by treaty parties, but rather, layers of intention at differing levels of generality which may come in conflict. The evolutionary interpretation being advocated in systemic mitigation cases, while consistent with some intentions, is also in conflict with others. This Article focuses on the conflicts, particularly in relation to the evolutionary interpretation of a state's extraterritorial jurisdiction and a state's due diligence obligations, to explain the shortcomings of the current approach, especially in relation to the developing world context. This Article further suggests how these conflicts may be managed to enhance the potency of systemic mitigation cases. [ABSTRACT FROM AUTHOR]