Reparation for Climate Change: The Successes and Limits of Litigation

2.Legitimacy of Institutions and Perceptions of (Procedural) Justice

a.Potential of the Judicial System to Redress Climate Change

In the model scenarios, we have assumed that the courts seized can award compensation for climate-related damage to a certain extent. The chapters have shown how variable prospects for a favorable remedial award for plaintiffs depend on the court and legal system in question. Prospects are shaped by substantive and procedural law at national and international level. Rules — S. 370 —of evidence also play an important role — flexibility in adjusting the burden of proof and the standard of the required proof of damage based on special features of climate litigation is highly consequential. Finally, courts have different traditions of awarding damages. While the Anglo-American world is used to spectacular amounts of (punitive) damages being awarded, particularly in class action proceedings, European courts are much more cautious, frequently lacking a tradition of punitive damages awards. The practice of the ECtHR on Art. 41 ECHR likewise indicates that the award of damages and satisfaction is rather restrained in the European context, although exceptions are of course possible, especially as concerns demonstrated pecuniary damages.⁸ Domestically, high damages could result from civil or commercial liability for climate damage; however, plaintiffs are confronted with other hurdles there — for example, difficulties in proving causation or the existence of concrete emissions limits for corporate actors.⁹

This brings us to the question of what role national and international courts should play in the compensation and reparation of climate-related damage. We start from the following premises: The impacts of climate change — and related damage — will become more frequent and more evident in the coming years. This includes the impacts of both gradual and sudden-onset events. Incidents of extreme weather events as well as drought, crop failures and the growing risk of flooding will become apparent both nationally and transnationally. In certain parts of the world, the financial damage will assume gigantic proportions. Extreme weather events will hit people, communities and countries hard, resulting in non-economic damage to individuals, communities and the environment itself.¹⁰ The damage will also be felt economically, in terms of damage eg to income and physical assets and even, for some small island states, their whole territories.¹¹ This understanding of damage is broad, and intentionally so: by supporting critical legal engagement, the present volume goes beyond the boundaries of current conceptualizations of “Loss and Damage” within international climate negotiations.¹²

b.Landslide in Blatten as an Example

To illustrate this, we present the figures from an extreme event that hit close to home for us. We refer to the landslide in Blatten, a village in the valley of Lötschental, Switzerland, that took place in 2025. This event was well documented and the manner in which it was handled also sheds light on the response capacity of an economically and politically stable, highly developed country if there is sufficient political will to mobilize the required resources.

The Blatten landslide occurred on 28 May 2025. Fortunately, residents and livestock were evacuated from the village some days earlier. The event was preceded by several rockfalls and landslides in the region. The debris and ice masses from the event buried 130 houses in Blatten as well as the local church, destroying around 90 percent of the village. An initial estimate by Swiss private insurers puts the insured losses at around CHF 320 million.¹³ Most of this relates to buildings and household contents, with many cases involving total losses. A total of around CHF 260 million was lost in destroyed property and household contents, while a further CHF 60 million was lost due to business interruptions and damage to motor vehicles.

This damage is enormous, even for a developed country. Upon closer examination, however, it appears that the impact of the landslide was limited by several factors. Firstly, mountain areas in Switzerland are closely monitored. These geological, seismic and meteorological measurements require a complex infrastructure. It was only because of this infrastructure that the authorities were able to detect the impending landslide and evacuate the village. Thanks to this data and the preventive measures taken by the authorities, all but one casualty was avoided.¹⁴ Secondly, the federal and cantonal authorities were quick to assuage the evacuees’ concerns about compensation payments, with the federal Parliament authorizing immediate disaster relief funding.¹⁵ Meanwhile, insurance companies promised to provide “pragmatic and unbureaucratic” assistance.¹⁶ This attitude reassured the displaced population. At the same time, it is difficult to predict whether this same generous — S. 372 —attitude will prevail in relation to future disasters, especially if they occur more frequently, or how victims abroad would fare under similar circumstances. For example, during the ICJ’s 2024 climate hearings,¹⁷ Barbados argued that the progression of climate change will render certain types of losses prohibitively expensive and therefore basically impossible to insure, economically decimating climate-vulnerable countries.¹⁸ A third limiting factor here was the fact that insurance coverage against natural hazards is high in Switzerland. In 22 of 26 cantons, building insurance is mandatory by law. In the canton of Wallis, where the Blatten landslide occurred, insurance is voluntary, but coverage nevertheless remains high.¹⁹ Therefore, damage from this landslide was almost entirely covered by private insurers.

This example also allows for reflection on the kind of damage redressed. We have characterized the damage in question here as “enormous.” However, it needs to be emphasized that the quantified damage figure mentioned above is an underestimation. That is because the figures in question concern only damage to property, and not the damage caused to the natural landscape. A swathe of mountain forest was destroyed by the landslide, with the Army called in to remove trees that had been torn down by falling ice and rubble.²⁰ Areas such as two-kilometer-long river landscape along the river Lonza, which was designated as a floodplain of national importance,²¹ and the meadow above Blatten, which was used recreationally, were also destroyed. All this damage is difficult to quantify and is not included in the above calculation.

Last but not least, the affected population suffered difficult-to-quantify non-economic loss and damage.²² Losing one’s home means more than just losing a house and the surrounding land. The evacuees had to leave behind many of their cherished possessions. Cultural assets such as the church and — S. 373 —the graves of relatives have been irreparably destroyed, and a close-knit local community has been displaced and scattered. Whether, where and in what form the village of Blatten can be rebuilt are still open questions at this stage (end of June 2025).

This example also highlights how, despite our growing understanding of the relationship between global warming and disaster risks, the former complicates the predictability of the latter events. Before this natural disaster, Blatten was not designated as a risk area on the Canton of Wallis hazard map. An area is considered a risk area if a natural disaster could occur there at least once in 300 years.²³ A mountain and glacier collapse such as the one that occurred on 28 May 2025 was considered an event with a significantly lower probability of occurrence. Experts disagree about the extent to which climate change and the consequent shrinking of permafrost contributed to this disaster.²⁴ While it will probably remain difficult to quantify the exact role of climate change in this event, it seems increasingly certain that the thawing of permafrost and changes in rainfall will lead to an increase in the frequency of such extreme events.²⁵

It is currently unclear whether affected persons will initiate litigation against national authorities or insurers in connection with the landslide in Blatten. The generous financial compensation offered to the affected persons and the Swiss population’s traditionally low propensity to take legal action in such constellations are likely to speak against it. However, reparations-related issues such as those highlighted by this disaster and its aftermath are sure to concern courts across different jurisdictions and areas of law in the future.

c.Competition for Increasingly Scarce Resources

Since we are living in a time of multi-present global crises in which state resources are scarce, rich and poor countries alike will increasingly be faced with dilemmas: Should we invest in protection against the negative effects of climate change, or arm ourselves? Are we preparing for the next pandemic, — S. 374 —or do we want to promote climate-neutral energy? Should we invest in biodiversity, or take measures to adapt to climate disasters? Of course, these choices are not always binary: for example, avoiding climate breakdown simultaneously helps to avoid the resulting threats to international peace and security, and the IPCC has noted that climate change drives a rise in zoonotic diseases, meaning that climate action can also contribute to pandemic management.²⁶ Nevertheless, countries are faced with the question of how they should allocate scarce resources in light of necessary trade-offs. This decision is often of a political nature, and the corresponding decisions are easier to make at the domestic rather than at the international level, where consensus has been demonstrably difficult to achieve. Under these circumstances, poorer states are hit harder than richer ones. This is true in relation to many situations of global crisis. In the climate context, however, there is a particularly bitter aftertaste: those countries that have historically emitted the least GHG will be hit hardest by climate change.²⁷

In democratic states, it is widely accepted that fundamental decisions on major financial expenditures should be made by the legislature, given the democratic legitimacy enjoyed by the legislative branch and the deliberative nature of its decision-making process. In this context, it is no secret that the protection of global goods that are threatened by creeping destruction find it hard to compete for priority as a budgetary issue. Judges in different jurisdictions have noted that political officeholders tend to focus on re-election and therefore find it difficult to implement medium and long-term measures that would be necessary to protect the environment and the climate.²⁸ The relatively short timeframe of the decision-making process, on the one hand, and the longer time period over which solutions need to be implemented, on the other, play a supporting and sometimes dramatic role. In other words, the temporal urgency of a short-term situation, like armed conflict, a pandemic or a financial crisis, can drastically overshadow the need to combat climate change.²⁹ Proposals for stringent legal obligations in the field of climate protection are likely — S. 375 —to be rejected for the reason that they would be too disruptive to legal regimes designed with other issues in mind.³⁰ At the national level, the disruptive nature of climate change regulation is all the more visible.³¹

Climate lawsuits typically arise under these conditions, which simultaneously illustrate the difficulty faced by the courts in formulating an appropriate and legitimate response. Even in a legal environment where it would be possible to award large amounts of damages, the question arises as to whether the courts should do so, or whether this would expose them to the criticism of being activist.³² In view of the ongoing multiple planetary crises³³ and the need to set priorities, this accusation appears justified at first glance. However, it glosses over the principle that it is precisely the task of courts to protect other legally enshrined interests, such as for example human rights obligations or tort law duties of care. On closer inspection, courts in this situation are doing exactly what they were created for: applying the law, dispensing justice in a disputed area and awarding compensation for damage.

d.The (Limited) Role for Courts

Even if we assume in principle in this volume that the courts have an important and supporting role to play when it comes to providing reparation for climate change, three questions arise. First, are courts equipped for this task? Second, would courts break down at a certain point due to the scale of this task? And third, how great is the effect that climate judgments can have on combating the climate crisis? The various chapters provide differentiated answers to the first and third questions. We see a disparate picture of damage calculations depending on the area of law at the national level (civil, commercial, insurance law or state liability) or at the international level (reparations as a consequence of state responsibility for breaches of [customary] international law or human rights law). We are a long way from having uniform standards for calculating damages, and in our view there is a great need for — S. 376 —action here. The courts would be well served by a code of conduct or best practices to record and quantify climate-related damage.

Various authors within this volume comment on the third question when they discuss the meaning of “success” in climate litigation. A persuasive case has been made to the effect that success, broadly understood, does not hinge on plaintiffs’ victory or an award of damages. Quantifying all aspects of success is empirically nearly impossible, of course. But even a case that the plaintiffs lose at first glance can be understood as a minor success, for example because the court makes a groundbreaking interpretation that can also lead to clarifying obligations or inform plaintiff victories in subsequent litigation.³⁴ Success is often a result of incremental legal developments in case law and can emerge over time: for example, a case’s level of success or impact may be perceived differently twenty years after the judgment is handed down, as opposed to five years later.³⁵ The perception of a groundbreaking judgment will vary depending on its effective implementation, the outcome of follow-up cases and the long-term impact of the case in its own and other jurisdictions.³⁶ In this regard, there is a great need for research about the ramifications of climate rulings. This volume is only a first step in this direction.

At this point, the second question in particular should be addressed. The limits of a court’s power can be illustrated with the following example. Let us assume, as set out in scenarios 6 and 7, that a court is confronted with an interstate case concerning serious damage that is causally linked with climate change. This court then awards the claimant state eg 50% of the amount of damage claimed as compensation, the payment of which is to be spread over the next five years. The compensation payable per year would correspond for example to 5% of GDP, ie more than most Western countries currently spend on armaments. Would such a ruling be implemented? Would it lead to such strong resistance in the defendant state that disregard of the judgment would be supported by a broad public? The open disregard of court rulings is a serious and real problem in a political environment in which constitutional structures and the rule of law are increasingly eroding. This brings us to the question of whether compensation for damage caused by the climate crisis should be enforced through the courts at all. Without wishing to be pessimistic, it is essential to deal with a situation in which the legal — and therefore also the judicial — options for compensating for climate damage are no longer effective because the scale of the — S. 377 —damage exceeds the economic capacity of the respondent state to compensate. The world has experienced similar situations in recent years: examples could include the economic ramifications of the COVID-19 pandemic, financial crises, or bailouts to major banks such as Credit Suisse. States may simply not have the means to compensate for these harms. Some states have accordingly argued for debt forgiveness in order to free up funds to deal with climate change.³⁷ Others, as mentioned above in respect of Barbados, have noted that climate change will render certain types of losses uninsurable and therefore irrecoverable in vulnerable states.³⁸ Barbados’s argument, by noting the limitations of climate reparation, underscores the importance of highly ambitious mitigation and adaptation measures and the provision of support to vulnerable countries.

Where mitigation and adaptation fail to avoid climate-related impacts, states will likely resort to emergency law and state-sponsored insurance solutions. It could very well be that resorting to such solutions in certain contexts will prove necessary because the traditional compensation route would overburden the parties involved. At the same time, failing to avoid and prepare for impacts and comply with preventative, due diligence and protective obligations means accepting irreparable harm, which in turn can potentially destabilize democratic resilience by placing democratic institutions and their legitimacy under stress.³⁹ In this regard, it seems to us that neither researchers nor the international community have metabolized the lessons about dealing with major systemic shocks that stood to be learned from eg the COVID-19 pandemic. Here, too, we see a great need for further research.

e.Temporal Perspectives

A second overarching topic concerns temporal perspectives on climate change and climate litigation.⁴⁰ The climate crisis is characterized by three features: it is global, intergenerational and accumulative. These three attributes often also apply to other environmental problems, eg the threat to the ozone layer, the preservation of biodiversity or the handling of PFAS (per- and polyfluoroalkyl — S. 378 —substances). In the case of the climate, they apply more acutely because many climate-damaging processes have been promoted over decades. The global economy had (and largely still has) an interest in continuing the use of fossil fuels. For decades, the links between GHG emissions (from the combustion of fossil fuels) and climate change were denied — which highlights the problematic role of climate research sponsored by private actors.⁴¹ As a result, we have lost valuable decades in the transition to a carbon-neutral economy. This highlights the serious consequences of a lack of independence in research. After all, using fossil fuels adds convenience to many areas of life, so there is little incentive to reduce it. The prime example of this is air travel. As Arden Rowell explained in chapter 3, here we see a phenomenon that can be described as social acceptance or deliberate ignorance of climate-damaging behavior. Although we all know that flying is highly damaging to the environment and climate, we do it anyway; we play down the damage it causes, emphasize its centrality to private or economic interests, or regard it as unavoidable. The harsh reality is impossible to ignore: we live in a “fossil modernity.”⁴² Transitioning to a climate-neutral economy is therefore not easy and the efforts to do so are often argued to involve excessive costs. The accumulative effect also raises difficult questions. GHG emissions accumulate in the atmosphere, with the carbon-intensive industrial activity of the 20th century laying the foundations for the high level of CO2 concentration in today’s atmosphere. Added to this are current emissions and the destruction of carbon sinks (eg through deforestation). Accumulation is linked to global and intergenerational injustices: future generations will bear the burden of previous generations’ emissions, much like the global South suffers from the historical emissions caused primarily by the global North. These economic, scientific, historical and psychological aspects are also important in a legal context. First of all, these points are central to the question of who has committed injustice, breached duties of diligence or disregarded human rights, and with what actions or omissions.

The following considerations illustrate how important time is for the assessment of legal questions. Which actors were expected to know that they — S. 379 —were acting in a climate-damaging way, starting from what point in time? At what point in time do we assume a degree of scientific certainty about climate change, meaning that the negative effect of GHG emissions could no longer be denied, and legal responsibility began?⁴³ And: what of intergenerational considerations? Framing mitigation in terms of how we should use up our “remaining carbon budget” allows us to see that each additional ton of CO2 we deem permissible to emit comes at great expense to future generations, interfering in advance with their fundamental freedoms.⁴⁴

The time dimension is also central to calculating the damage caused, not merely because reparations would only be owed for damage linked with wrongful emissions, but also because of how time controls the framing of the gravity of the wrongful act, the importance of the obligation breached and the degree of willful intent.⁴⁵ Would a court be brave enough and methodologically equipped to comment on future damage, and what kinds of reparations would it then order, eg financial awards, legislative changes, or technologysharing obligations? Thorny questions also arise within climate policy about trade-offs to be made between climate-related measures: what if local adaptation is prioritized over mitigation because of concerns about other states’ recalcitrance regarding climate mitigation? How exactly can a state, especially a powerful one, be prevented from acting in self-interest and abandoning its mitigation commitments?⁴⁶ And what should courts in other jurisdictions make of uncertainties introduced, for instance, by the US’ decision to cease implementation of its NDC under the Paris Agreement and contributions to the Green Climate Fund?

For the courts, many of these issues take the form of questions of evidence. The parties will rely on various expert opinions. Engagement with scientific knowledge in judicial decision-making processes is nothing new. However, this inclusion has taken on a new dimension in climate lawsuits. The dialogue between politics and science is institutionalized in the IPCC.⁴⁷ Given the high level of scientific and political consensus around the findings — S. 380 —made in these reports, the courts are well advised not to contradict them, and so far, we know of no recent national or international climate case in which the court has gone toe-to-toe with the IPCC.⁴⁸ Instead, the courts generally rely on the expertise of the IPCC when it comes to understanding the physical science basis and impacts of climate change.⁴⁹ The manner of engagement with experts, however, can trigger pushback: for example, the ICJ’s decision to hold a closed hearing with IPCC experts in preparation for its advisory opinion proceedings led to concerns about “phantom experts.”⁵⁰ Meanwhile, the ECtHR’s reluctance to use its powers to consult scientific experts in environmental cases, including in the KlimaSeniorinnen case, has also received criticism.⁵¹

Time plays a role here: the current status of the latest IPCC report is always a time-bound synthesis of the available data on climate change. However, its forecasts are subject to uncertainties, its findings are expressed in ranges that encompass several different possible scenarios, and the state of the underlying science can change within a few years. Notably, however, this usually results in findings that the extent and magnitude of climate change impacts are even more severe and urgent than previously estimated, and not less so.⁵² Still, without normative determinations about historical responsibility and engagement with expert evidence on individual states’ climate measures, climate science from the IPCC cannot help courts with all of the complexity arising in climate cases.

Finally, the temporal dimension of climate damage litigation raises difficult questions of justice. The law can only make amends for unjust, reprehensible or unlawful acts to a modest extent. We know this from dealing with the past in cases of great injustice, such as the commission of genocide or serious war crimes, colonialism and apartheid. No court judgment, not even the individual criminal conviction of wrongdoers, can undo disasters and the — S. 381 —injustices associated with them. The legal judgment obtained is always only a partial solution to a larger social reparation or transitional justice process, which in many situations will continue for generations. This recognition is not intended to deny the role of law and justice in the reparation process: climate change is also a legal problem whose solutions can be judicially enforced. However, expectations of judgments must not be exaggerated. Climate cases will be confronted with problems of time, causation, attribution of (shared) responsibility and the irreversibility of certain climate processes. Despite all these difficulties, the successes described in this volume give us cause for optimism. Climate litigation can bring about attention, legal clarity, more just solutions and reparation, meaning that it can be expected to continue contributing to efforts to tackle the global climate crisis.