Reparation for Climate Change: The Successes and Limits of Litigation

Hazhar Jamali

Chapter 9: Interim Reflection

The past decade has marked a significant shift in the global response to climate change, with rights-based litigation emerging as a powerful tool to hold governments and corporations accountable for environmental harm.¹ Courts at national and international levels have begun to recognize the legal obligations of states and private actors to mitigate climate change and protect human rights.² The contributions analyzed in this part all touched upon the notion of “success” in various climate change cases. Williamson, Udell and Fantozzi delved into the success and impact of climate change litigation in national jurisdictions, including the Netherlands,³ Germany,⁴ and Belgium.⁵ Jahn provided a detailed analysis of the German Constitutional Court’s (GCC) decision in the Neubauer case,⁶ and reflected on when and how a case can be regarded as “successful” for litigants. Next, Blattner examined the KlimaSeniorinnen judgment of the European Court of Human Rights (ECtHR), addressing the intricate details of how the case was strategically pursued from beginning to end, and shedding light on its outcome. However, while the legal victories in these and many other climate cases are often celebrated, their broader impact remains a subject of critical inquiry. In other words, important questions persist regarding the limits and potential of a rights-based approach in addressing — S. 198 —climate change. Against this backdrop, it is essential to question what success means in climate litigation, identify gaps in current legal frameworks, and consider the evolving role of courts in addressing the crisis of climate change. This reflection chapter shall do just that.

1.Success in Climate Litigation: A Multidimensional Analysis

The notion of success in climate litigation is inherently complex and multidimensional, requiring an evaluation that moves beyond the simplistic binary of legal victory or defeat. Success in this context should be understood not only through a legal lens but also from a socio-political perspective. Each of these dimensions plays an important role in determining the effectiveness of litigation as a tool for climate governance and accountability. A court ruling in favor of plaintiffs does not automatically translate into meaningful policy change, while an unsuccessful case does not necessarily mean that the litigation project was a failure given that it may have sparked broader public engagement with the regulatory challenge and meaningful discourse on solutions. Examining the notion of success in climate litigation requires a detailed reflection on its immediate legal outcomes, the broader regulatory shifts they provoke, and their ability to generate societal awareness and pressure for climate action.

Legal success often provides the most immediate and tangible indication of climate litigation’s effectiveness. A court decision recognizing state or corporate responsibility for climate harm is typically viewed as a victory. This is illustrated by the cases discussed in the chapters within this section, and many more climate change cases across different jurisdictions.⁷ Most of these climate change case victories have challenged government climate policies, whether in relation to the rights of children,⁸ indigenous communities,⁹ or older¹⁰ or even future generations.¹¹ They have resulted in changes to policy and law as explained by the authors in their contributions (eg adoption of more ambitious emission reduction targets).¹² Such outcomes call for immediate — S. 199 —and direct regulation or amendment of laws in order to remedy existing lacunae. Nevertheless, closer scrutiny is warranted as changes in law or regulation do not always result in substantial policy impact. As Jahn argues, court decisions often prompt legislative and administrative changes but do not always translate into immediate or substantive policy shifts. The GCC climate decision¹³ illustrates this challenge. The ruling mandated clearer reduction pathways and strengthened intergenerational fairness. Although legislative amendments followed, their implementation remains questionable and subsequent lawsuits (based on the GCC’s findings in the Neubauer case) have so far largely failed to hold the government accountable or compel stronger action.¹⁴ Thus, evaluating the broader regulatory and indirect impact of climate change cases is essential to maximize the effectiveness of a rights-based approach to climate change when a lawsuit is dismissed or its direct regulatory impact is very tangible.

Elsewhere, Peel and Osofsky have created a framework suggesting that climate litigation’s effectiveness should be measured through not only its direct regulatory impacts (as discussed above), but also indirect ones.¹⁵ Indirect impacts include how judicial decisions stimulate public engagement, mobilize civil society, and empower various stakeholders. This is clearly illustrated by the KlimaSeniorinnen judgment, which, as Blattner argues, has inspired stakeholders — such as farmers — to initiate additional domestic climate lawsuits and has encouraged broader public activism demanding stronger climate protections. Indeed, these indirect effects significantly shape the trajectory of direct regulatory response. For example, although the Swiss government initially opposed the European Court of Human Rights’s (ECtHR) ruling — both chambers of the Swiss parliament even passed a declaration advising the government against compliance and claiming the Court had exceeded its authority¹⁶, considerable public pressure and media coverage eventually led the government to adopt a softer tone and proceed with some policy and legislative reforms. These have been acknowledged by the Council of Ministers, albeit along with a recognition of ongoing shortcomings.¹⁷ Similar patterns have emerged in other jurisdictions. Studies indicate that media and political attention following the Urgenda judgment notably shaped public — S. 200 —discourse on climate policies.¹⁸ In fact, and as argued by Williamson, Udell and Fantozzi, the Urgenda judgment has been a driving factor behind many other climate change cases in different jurisdictions.

However, caution must be exercised when analyzing individual cases. Focusing solely on high-profile cases risks overlooking routine or less visible climate litigation, which may provide different insights into what constitutes success or effectiveness. This is especially true for cases in the Global South, where litigation outcomes may differ from high-profile cases in the Global North. For instance, in Colombia, despite having a robust legal framework for climate change, a persistent challenge lies in the ineffective implementation and enforcement of relevant statutes and case law.¹⁹

Consequently, the notion of success in climate litigation should be understood broadly. Beyond immediate judicial outcomes, the broader social and public impacts of litigation must also be considered. Even when courts rule against plaintiffs or when governments resist climate commitments, litigation can significantly mobilize public support, raise climate awareness, and enhance accountability efforts. Indeed, Blattner highlights this as a primary objective of strategic litigation, emphasizing systemic change not only through courtroom victories but also by influencing public narratives and galvanizing activism.

2.Gaps in Current Legal Frameworks

Identifying gaps in current legal frameworks for climate litigation is essential to understanding the limits of rights-based climate litigation. While litigation has been an important tool in establishing climate accountability, existing legal structures are often ill-equipped to address the complexity of climate change, particularly in the areas of enforcement, jurisdiction, corporate responsibility, and the integration of scientific evidence into legal reasoning.

One major gap in climate litigation is the enforcement of court rulings. Even when courts rule in favor of plaintiffs, governments and corporations frequently resist compliance or implement only minimal or limited changes. This can be highlighted by high-profile cases like KlimaSeniorinnen²⁰ but also — S. 201 —in the Global South (eg Chile, Ecuador) where we have seen that states have been unwilling or unable to implement courts’ prescribed remedies.²¹

However, this does not mean that states are always unwilling to address human rights violations caused by climate change. Instead, a key challenge for states lies in balancing climate mitigation measures with economic considerations and individual freedoms. This is precisely what Jahn argues in her analysis, explaining that the GCC ruling recognized that nearly all aspects of daily life contribute to carbon emissions, making it difficult to implement strict reduction policies without impacting economic growth or restricting other fundamental rights. This reflects a broader dilemma in climate litigation: how can states fulfill their climate obligations without disproportionately burdening certain social groups or economic sectors? The challenge is not just about compliance, but also about ensuring fairness in the distribution of climate mitigation responsibilities while maintaining economic stability and protecting individual rights.

The extraterritorial application of human rights remains another major challenge in climate litigation, as courts are generally reluctant to hold states and corporations accountable for cross-border emissions and environmental harm.²² Since climate change is inherently a global issue, its impacts are not confined to national borders, yet most legal systems operate within strict territorial limits. This was evident in the Duarte Agostinho case before the ECtHR, where Portuguese youths sought to hold multiple European states responsible for their contributions to climate change.²³ The case was dismissed partly due to the question of extraterritorial responsibility, as states argued that they could not be held responsible for the human rights of individuals beyond their borders, illustrating the difficulty in addressing shared but diffused responsibility across multiple jurisdictions.

This problem is especially acute in regions like Africa, which face some of the most severe climate impacts despite contributing minimally to global emissions. Most major emitters are not located in Africa, yet the continent — S. 202 —bears a disproportionate share of the consequences.²⁴ At the same time, limited jurisdictional reach prevents many affected communities from seeking legal redress. The African Court on Human and Peoples’ Rights can only hear cases from individuals in a handful of states, restricting access to climate justice and allowing both state and corporate actors to evade accountability.²⁵ Without stronger regional and international mechanisms for adjudicating transnational climate claims, climate litigation remains constrained by jurisdictional gaps, leaving many vulnerable populations without legal remedies for environmental harm.

Another key gap in legal frameworks is the integration of scientific evidence into climate litigation. Courts primarily rely on legal precedents and statutory interpretation, yet climate science is constantly evolving, making it difficult to establish fixed legal standards for climate responsibility. Cases like Neubauer and KlimaSeniorinnen have heavily relied on scientific reports from the Intergovernmental Panel on Climate Change and other expert bodies. However, courts often struggle with how to weigh and apply scientific findings within a legal context, leading to inconsistent rulings. A clear example of this challenge is the 2024 appeal ruling in Milieudefensie et al v Shell, where the Dutch Court of Appeal partially overturned the earlier decision requiring Shell to reduce its emissions by 45% by 2030.²⁶ The court argued that while climate science demonstrates the urgent need for emissions reductions, there is insufficient consensus to impose such a specific target on Shell as a matter of binding legal obligation. This reflects a broader issue: some courts accept scientific projections as a valid basis for climate-related legal duties, while others dismiss them as speculative or lacking legal certainty. Thus, the lack of standardized legal methodologies for integrating climate science into judicial reasoning contributes to fragmented rulings and uncertain legal precedents. Establishing clearer legal frameworks for evaluating scientific consensus, probability thresholds, and risk assessments would improve the credibility and consistency of climate litigation, ensuring that courts can effectively adjudicate responsibilities in the face of an escalating climate crisis.

Overall, while climate litigation has made significant progress in establishing accountability for climate inaction, current legal frameworks still — S. 203 —contain substantial gaps that limit its effectiveness. Strengthening enforcement mechanisms, clarifying jurisdictional authority in transnational cases, improving corporate liability standards, and integrating scientific evidence more effectively are all critical areas that require further inquiry and reform. Without these improvements, despite being an important tool in addressing the urgent challenge of global climate change, litigation risks falling short of its full potential.

3.The Evolving Roles of Courts in Climate Justice

The role of courts in climate governance has undergone a profound transformation, with growing recognition of climate change as a human rights issue. This shift enables individuals and communities to challenge state policies that threaten fundamental rights. This recognition is particularly important considering the legal limitations in Global North jurisdictions — such as the lack of explicit recognition of the right to a healthy environment in instruments like the European Convention on Human Rights. These gaps highlight the crucial role courts play in interpreting existing rights expansively to address climaterelated harms. This judicial function becomes even more critical in regions like Africa, where structural inequalities and limited access to justice present additional barriers to enforcing environmental and human rights protections.

Courts have also played an important role in shaping state responsibility in the face of the climate crisis. One of the most notable defenses states have used is the “drop in the ocean” argument, which claims that a single state’s emissions are negligible compared to global totals and that national-level mitigation efforts will have little impact.²⁷ Historically, this argument has been invoked to contest the justiciability of climate cases and to argue that courts should defer to political and diplomatic solutions. However, courts have increasingly rejected this reasoning, affirming that every state has an independent duty to take meaningful action to reduce greenhouse gas emissions.²⁸ This shift reflects the judiciary’s evolving role in interpreting the law in a way that ensures that climate action is recognized as a legal duty rather than a discretionary policy choice.

The willingness of courts to impose binding climate obligations on governments also signals a departure from traditional judicial restraint. Historically, courts have been reluctant to intervene in policy matters, often deferring to legislative and executive branches. This is still sometimes the case, as for example recently the Swedish Supreme Court rejected a climate change lawsuit while emphasizing that policy decisions are the domain of the legislative and executive branches.²⁹ However, climate litigation is changing this dynamic by compelling governments to adopt more ambitious policies as we have seen in many other successful climate change cases, like the Urgenda judgment.³⁰

Thus, the increasing role of courts in climate governance highlights the evolving nature of climate litigation as a crucial mechanism for accountability, policy change, and public engagement. While legal victories in climate cases demonstrate the power of a rights-based approach, the broader impact of litigation extends beyond judicial rulings to shape public discourse, mobilize activism, and influence regulatory frameworks. However, significant gaps remain in enforcement, jurisdiction, and the integration of scientific evidence into legal reasoning, underscoring the limitations of current legal frameworks. Courts are becoming key actors in addressing climate change, yet their effectiveness hinges on overcoming structural challenges and ensuring that legal interventions translate into meaningful climate action. As litigation continues to evolve, a multidimensional understanding of success — one that includes legal, political, and societal effects — remains essential in assessing the role of courts in advancing global climate accountability.