Reparation for Climate Change: The Successes and Limits of Litigation

Part Five The Successes and Limits of Litigation

Helen Keller and Corina Heri

Chapter 19: Synthesis

1.Preliminary Remarks

The preceding chapters have discussed various options and methods for reparation for climate change, as well as the gradations of success to which this type of litigation can lead. Relating their analyses to the model scenarios set out at the beginning of the volume,¹ the contributors have examined litigation efforts in a variety of legal areas — from corporate cases, to the work of human rights courts, to advisory proceedings under general international law, to domestic constitutional law proceedings. In doing so, they have mapped the difficulties of ensuring reparation for climate-related impacts, within but also beyond international climate law’s loss and damage framework. They have shown that different adjudicators take different approaches to reparations, ranging from declaratory judgments to hands-on remedial orders, and that the impact of the corresponding rulings can vary widely across contexts and systems.

The use of the model scenarios, while by no means covering every type of potential climate case, was intended to provide common ground, allowing authors to converse with each other across different fields of law and different disciplinary backgrounds. Authors were encouraged to write about the strength of arguments or present critiques of approaches taken by the litigants in (predominantly) hypothetical scenarios. Our attempt to encourage the authors to engage with the model scenarios and analyze them using approaches from their specific field of expertise was only partially successful, in the sense that some model scenarios attracted more engagement than others. This reflects the draw of recent practice, and the fact that these scenarios approximate major recent developments in climate litigation. For example, scenario 1, which is based on the KlimaSeniorinnen case at the European Court of Human Rights (ECtHR),² received more attention than scenario 4, which concerns a hypothetical Communication before the Committee on Economic, Social and Cultural Rights. This is to some extent attributable to the fact that the ECtHR’s high-profile judgment in KlimaSeniorinnen was issued — S. 368 —mere days before the conference that gave rise to the present volume, coupled with the attention directed at this Court in light of its ability to issue binding judgments.

Looking towards the future of climate litigation, it is certainly possible that cases reflecting the other, hypothetical model scenarios might arise. For some scenarios, related real-life cases even arose during the writing of this book.³ In any case, discussions concerning these scenarios can be used as heuristic tools to facilitate further developments in compensation models. This could help to further develop the available mechanisms, drawing inspiration for efforts both through and beyond the current Loss and Damage funding framework.⁴ For instance, fund solutions such as the one that exists for oil pollution damage at sea in the context of international shipping⁵ would also be conceivable for particular types of climate-related damage. In addition, we are convinced that, in the future, courts will not only rule on climate cases concerning the improvement of climate protection measures, but that there will also be an increasing number of legal proceedings aimed at restricting or reshaping climate protection measures, or in other words just transition cases.⁶ Since climate protection measures tend to involve restrictions on other rights (property rights, personal freedoms, land use rights, etc.), these lawsuits will also keep courts busy.

Litigation strategies for securing an award of climate-related damages necessarily vary from jurisdiction to jurisdiction. In terms of arguments, however, it is safe to generalize that courts will award damages where it is established that there is quantifiable damage, an injured party, a responsible perpetrator and culpable conduct, which is causally linked to the damage incurred. Admittedly, in the area of civil liability, deviations from this model are possible. For example, operators of certain hazardous facilities may face strict liability for damage resulting from their activities, ie liability regardless of fault.⁷ In most instances of climate litigation, however, courts and litigants face several — S. 369 —major challenges when it comes to damages awards: GHG emissions were and are (at least in many areas of life) not regulated strictly in the same way as traditionally hazardous pollutants typically are, and their impacts are global and accumulative instead of localized. Climate change cannot be attributed to a single causal event; rather, we are all “to blame” for it (albeit in globally, regionally and interpersonally unequal ways). Since climate change is intergenerational, multifactorial and transnational, courts can only find solutions if they are creative and, for example, interpret standards of care and due diligence in light of the climate crisis or reject arguments that a given polluter is only contributing inconsequentially, in the sense of a “drop in the ocean.”

Against the background of the rich and varied chapters contained in this volume, which discuss the mechanisms, methods and meaning of reparations for climate change, the present synthesis emphasizes two overarching issues which, together, represent two main areas requiring further attention going forward. The first is the question of legitimacy, concerning both institutions as a whole and applicants’ perceptions of (procedural) justice within a given set of proceedings. The second, and equally important issue, concerns temporality. This synthesis chapter concludes by looking to a jurisdiction that did not receive particular attention within the remainder of the present volume, but which has delivered promising rulings on climate-related harms and reparations in recent years, namely Brazil. Examining recent developments in Brazilian climate litigation, the synthesis chapter concludes that while climate-related reparations through litigation are by no means selfevident, barriers to climate litigation can be overcome. This will lead us to an outlook at the international level. In an era where climate law issues are being brought before regional human rights courts, the International Tribunal for the Law of the Sea (ITLOS) and the International Court of Justice (ICJ), it is pertinent to ask what we can expect from the rulings and opinions of these bodies concerning the issue of damages.