Reparation for Climate Change: The Successes and Limits of Litigation

Preface

We are in a climate crisis. The gravity of the situation has been clear at the latest since the publication of the reports of the sixth assessment cycle of the Intergovernmental Panel on Climate Change (IPCC).^1,2,3,4These reports show that achieving the Paris Agreement’s aim of limiting global warming to 1.5°C⁵ is essential to avoid irreversible impacts to ecosystems and society, but also that this aim is becoming increasingly elusive because of insufficient climate action across the world.

The natural and physical sciences have already provided all the information needed to recognize the urgency of climate mitigation and adaptation.^1,2,3,4However, the lack of effective climate action — which is manifest from the fact that current climate policies set us on a path to about 3.2°C rather than 1.5°C of global warming,⁴ ie more than twice as much as the Paris temperature limit — shows that new developments are necessary on the level of society, including new developments in legal research and practice. The 2015 Paris Agreement is a legally binding international treaty and has thus introduced a legal dimension to climate mitigation. This provides the basis for the emergence of varied climate litigation cases, as highlighted in the present breakthrough compilation of contributions on this topic.

The contributors to this book encompass world-leading experts in this field, including the editors, Helen Keller, former judge at the European Court of Human Rights and professor at the University of Zurich, as well as Corina Heri, assistant professor at Tilburg University. The authors of the main chapters display versatile expertise in this emerging field at the interface between legal and climate research.

The topics addressed in this volume reach from the assessment of risks and the valuation of climate-related harms (first part) to rights-based climate — Seite 10 —X Preface

litigation (second part), perspectives on reparations for climate-related harms (third part), and litigation against corporate actors (fourth part). These are all essential questions for citizens, legal actors and stakeholders worldwide.

To conclude, it is important to note that all people are affected by the climate crisis. As shown in the latest IPCC assessment, all regions of the world are displaying changes in impactful weather and climate extremes.^1,6This affects both rich developed countries such as Switzerland, which faced recent heatwave deaths due to human-induced climate change and crumbling mountains due to thawing permafrost, as well as small-island developing states threatened in their long-term subsistence due to sea level rise and increasing coastal impacts, among others.

This book comes at the right time and makes an incredibly important contribution, both to climate and legal research, and ultimately to society. I congratulate the editors and the authors on such a groundbreaking publication!

Zurich, 31 July 2025

Prof. Sonia I. Seneviratne

ETH Zurich, IPCC Working Group I Vice-chair — Seite 11 —XI

Acknowledgments

The making of this volume, like all edited volumes, took a village. We would like to thank the many members of that village, including each and every one of the authors as well as the supportive team at sui generis, especially Maxim Staehelin. Particular thanks go to the team in and surrounding the Climate Rights and Remedies Project (CRRP) at the University of Zurich, who provided support for the editing and proofreading of the chapters: Hazhar Jamali, Viktoria Gurash, Pranav Ganesan, and Cora Schaller. They also contributed to the success of the conference underpinning this volume, which was held at the University of Zurich on 11–12 April 2024, mere days after the KlimaSeniorinnen judgment was issued. The timing of this conference felt particularly fitting given that the CRRP would not have existed without the generous support of Ursula Brunner. Our profound thanks go to Dr. Brunner — the prominent environmental lawyer, legal academic, expert, and, together with Cordelia Bähr, initiator of the KlimaSeniorinnen case — for making our research project, and this book, possible.

We also warmly thank the Helmuth M. Merlin Stiftung and the Open-Access Publication Fund of the Universitätsbibliothek Zürich for their generous contributions to making this book available as an open-access volume.

Zurich and Antwerp, 31 July 2025

Helen Keller and Corina Heri — Seite 13 —XIII

Biographies

Editor biographies

Prof. Dr. Helen Keller holds a Chair for Public Law and European and Public International Law at the Faculty of Law of the University of Zurich. She currently serves as a judge at the Constitutional Court of Bosnia and Herzegovina. Previously she served as the judge in respect of Switzerland at the European Court of Human Rights and as a member of the UN Human Rights Committee.

Dr. Corina Heri is an Assistant Professor of Constitutional and Administrative Law at the University of Tilburg. She was previously the co-lead of the Climate Rights and Remedies Project at the University of Zurich (2020–2024).

Author biographies

Prof. Dr. Sonia I. Seneviratne is Professor for Land-Climate Dynamics at ETH Zurich. Her research focuses on climate extremes and land–climate interactions. Prof. Sonia Seneviratne was an author on several reports of the Intergovernmental Panel on Climate Change (IPCC). She was recently a lead author of the IPCC Special Report on 1.5°C global warming (2017–2018) and a coordinating lead author of the sixth assessment report of the IPCC (2018–2021).

Dr. Francesca Leucci is a Project Scientist at the Institute for European Tort Law of the Austrian Academy of Sciences in Vienna and Project Assistant at Graz University. She was previously a Lecturer in Environmental Law and Economics of Regulation at Wageningen University, Netherlands. She holds a Ph.D. in Law and Economics from the Universities of Rotterdam, Hamburg and Bologna, and an LL.M. from the College of Europe in Bruges. Her research focuses on remedies for ecological damage. She is also a Lead Author of the IPBES Report on biodiversity-inclusive spatial planning (2025–2027).

Prof. Arden Rowell is a Professor of Law at the University of Illinois at Urbana-Champaign. She works at the intersection of environmental law, risk regulation, and law and behavior. She is the co-author of The Psychology of Environmental Law, A Guide to U.S. Environmental Law and A Guide to EU Environmental Law.

Prof. Dr. Alberto Monti is Full Professor of Comparative Law with tenure at the University School for Advanced Studies IUSS Pavia, Italy, where he is also Delegated Vice Rector for Quality Assurance and Head of the Legal Sciences — Seite 14 —XIV Biographies

Research Group. He has extensive experience in legal practice and he is also an international legal Consultant for the Organisation for Economic Cooperation and Development (OECD) Financial Affairs Division.

Pranav Ganesan is a PhD candidate and research assistant at the University of Zurich working on the Climate Change and Remedies Project, which researches anthropogenic climate change and the ways in which the law, and specifically human rights law, can respond to it. He holds degrees from the National Law Institute University, Bhopal (B.A. LL.B. [Hons.], 2020) and University of Oxford (BCL, 2021).

Dr. Jannika Jahn is a Senior Research Fellow at the Max Planck Institute for Comparative Law and Public International Law in Heidelberg, Germany. She has served as a legal expert for the Consultative Council of European Judges (CCJE) of the Council of Europe and is an Associate Fellow at Maastricht University. She is also an associate editor at the Verfassungsblog.

April Williamson is the Science and Law Lead and Senior Legal Associate at the Climate Litigation Network. She has co-authored her chapter with Joe Udell (Legal Associate at the Climate Litigation Network) and Filippo P. Fantozzi (Legal Associate at the Climate Litigation Network).

Joe Udell is a Legal Associate at the Climate Litigation Network and the Assistant Editor of The Cambridge Handbook on Climate Litigation. He co-authored his chapter with April Williamson and Filippo P. Fantozzi.

Filippo P. Fantozzi is a Legal Associate at the Climate Litigation Network. He co-authored his chapter with April Williamson and Joe Udell.

Prof. Dr. Charlotte E. Blattner is Associate Professor for Administrative and Environmental Law at the Institute for Public Law, Université de Lausanne, Switzerland, and an associated researcher at the University of Bern’s Oeschger Centre for Climate Change Research (OCCR), where she heads the research group Climate Change and the Law: Challenges in Practice and Legal Theory. She holds a doctoral degree from the University of Basel and an LL.M. from Harvard Law School.

Dr. Jason Rudall is Assistant Professor of Public International Law at Leiden University, the Netherlands. He has also been Visiting Professor of International Law at Nagasaki University, Vermont Law School, the Riga Graduate School of Law and the Université Catholique de Lille. In addition to his academic activities, he has worked with international organizations, NGOs and law firms, as well as being involved in investor–state arbitration cases.

Biographies XV

Dr. Viktoriya Gurash holds a PhD in Social Law from the Ivan Franko National University in Lviv (Ukraine) and an LL.M. in Public International Law from Leiden University (Netherlands). She previously served as a case-processing lawyer at the European Court of Human Rights in Strasbourg.

Dr. Yusra Suedi is a Lecturer in International Law at the University of Manchester. She holds a PhD in Public International Law from the University of Geneva. Yusra has worked for the United Nations Office in Geneva, the International Law Commission, the Institut Du Droit International, the International Labour Organization Administrative Tribunal and the International Court of Justice.

Dr. Usha Natarajan is a Senior Lecturer at the University of the West Indies Faculty of Law, Senior Fellow at Melbourne Law School, and Visiting Professor of International Law at the Geneva Graduate Institute. She was at the American University in Cairo from 2010 to 2020. Prior to academia, she worked with the United Nations in Asia and the Pacific including at UNDP, UNESCO, and the World Bank.

Dr. Linnéa Nordlander is an assistant professor at the Faculty of Law at the University of Copenhagen. Her research focuses on how human rights law can be used to enhance and enforce states’ mitigation commitments to reach the Paris Agreement temperature goal. She also researches climate change loss and damage and its links with human rights. Prior to joining the University of Copenhagen she worked with human rights research and direct engagement at the Raoul Wallenberg Institute for Human Rights and Humanitarian Law in Lund, Sweden.

Prof. Dr. Sara L. Seck is Professor of Law and holder of the Yogis and Keddy Chair in Human Rights Law as well as the director of the Marine & Environmental Law Institute at Dalhousie University in Canada. Together with the late Meinhard Doelle, she edited the Research Handbook on Climate Change Law and Loss & Damage (Edward Elgar 2021)

Dr. Hazhar Jamali is a postdoctoral researcher at the University of Zurich. He conducts research on the topic of climate change litigation. He obtained his PhD in International and European Law from Palacký University.

Prof. Dr. Valentin Jentsch is Tenure Track Assistant Professor of Corporate Law at the University of St. Gallen in Switzerland. His research interests include corporate and capital market law as well as fundamentals of the private law system. He is also affiliated with the Department of Business and Tax Law of the Max Planck Institute for Tax Law and Public Finance in Munich.

XVI Biographies

Prof. Dr. Josephine van Zeben is Provost of Education and Academic Staff Development at the European University Institute (EUI) and professor of Transnational Law at the Florence School of Transnational Governance (EUI) in Florence, Italy. She is co-editor-in-chief of the journal Transnational Environmental Law and series co-editor of the Transnational Environmental Law book series (both Cambridge University Press).

Univ.-Prof. Dr. Monika Hinteregger is professor of civil law in the Department of Civil Law, Foreign Law and Private International Law at the University of Graz. During her career, she has held various academic positions, including President of the University Senate, Head of Department, Head of the Centre for European Private Law, and Chair of the Faculty Board. She has also served as Deputy Director of the Institute for European Tort Law of the Austrian Academy of Sciences and the University of Graz, as well as a board member of the European Centre of Tort and Insurance Law (ECTIL). She is also a board member of the Austrian Lawyers Association (ÖJT).

Judge Larisa Alwin is an Appellate judge in the Amsterdam Court of Appeal in the Netherlands.

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Table of Abbreviations

AAL Average Annual Loss

ACHR American Convention on Human Rights

ACtHPR African Court on Human and Peoples’ Rights

AOSIS Alliance of Small Island Developing States

APA Swiss Act on Administrative Procedure

App Application

AR4 Fourth Assessment Report of the IPCC

ARSIWA Articles on the Responsibility of States for Internationally

Wrongful Acts

Art Article

ATS United States of America Alien Tort Statute

AU African Union

BGB German Civil Code

BVerfG German Bundesverfassungsgericht

BVerfGE Official bulletin of case law of the German

Bundesverfassungs gericht

BVerwG German Bundesverwaltungsgericht

C Celsius

CBDR-RC common but differentiated responsibilities and

respective capacities

CBDRRC-NC common but differentiated responsibilities and

respective capacities, in the light of different national circumstances

CHF Swiss Francs

CJEU Court of Justice of the European Union

CNJ Brazilian National Council of Justice

CO2 carbon dioxide

CO2e carbon dioxide equivalent

COP Conference of the Parties

COSIS Commission of Small Island States on Climate Change and

International Law

CRC Convention on the Rights of Child

CRPD Convention on the Rights of Persons with Disabilities CRRP Climate Rights and Remedies Project

CSDDD Corporate Sustainability Due Diligence Directive CSRD Corporate Sustainability Reporting Directive

CUP Cambridge University Press — Seite 18 —XVIII Table of Abbreviations

DETEC Swiss Federal Department of the Environment, Transport,

Energy and Communications

ECB European Central Bank

ECHR European Convention on Human Rights

ECJ European Court of Justice

ECtHR European Court of Human Rights

EIOPA European Insurance and Occupational Pensions Authority EPA United States Environmental Protection Agency

ESRS European Sustainability Reporting Standards

EU European Union

EUR Euro

EWHC England and Wales High Court

GBP British pound sterling

GCC German Constitutional Court

GHG greenhouse gas(es)

GNP Gross National Product

GWP Global Warming Adapter

HRC United Nations Human Rights Committee

IACtHR Inter-American Court of Human Rights

ICC International Criminal Court

ICCPR International Covenant on Civil and Political Rights

ICERD International Convention on the Elimination of all Forms of

Racial Discrimination

ICESCR International Covenant on Economic Social and

Cultural Rights

ICJ International Court of Justice

ICSID International Centre for Settlement of Investment Disputes IFRS International Financial Reporting Standards Foundation ILC International Law Commission

ILM International Legal Materials

IPCC Intergovernmental Panel on Climate Change

IPRG Swiss Federal Act on Private International Law of 18 December

1987, SR 291 (Bundesgesetz über das Internationale Privatrecht) ISSB International Sustainability Standards Board

ITLOS International Tribunal for the Law of the Sea

IWG Interagency Working Group

KSG German Klimaschutzgesetz

L&D Loss and Damage

LC Lugano Convention

MPEPIL The Max Plank Encycl opedia of Public International Law — Seite 19 —Table of Abbreviations XIX

MPF Ministério Público Federal (Brazilian Public Prosecutor’s Office) NDC Nationally Determined Contribution(s)

NECP National Energy and Climate Plan

NGO non-governmental organization

OAS Organization of American States

OECD Organisation for Economic Co-operation and Development OHCHR Office of the High Commissioner for Human Rights

OUP Oxford University Press

OVG Higher Administrative Court (Germany)

PCA Permanent Court of Arbitration

PCIJ Permanent Court of International Justice

PFAS per- and polyfluoroalkyl substances

R$ Brazilian Reais

RDS Royal Dutch Shell

SCC Social Cost of Carbon

SFDR Sustainable Finance Disclosure Regulation

SKCC South Korean Constituti onal Court

SRF Schweizer Radio und Fernsehen

TCFD Task Force on Climate-Related Financial Disclosures UDHR Universal Declaration of Human Rights

UK United Kingdom

UKHL United Kingdom House of Lords

UKSC United Kingdom Supreme Court

UN United Nations

UNCC United Nations Compensation Commission

UNCLOS UN Convention on the Law of the Sea

UNDP United Nations Development Programme

UNDRIP United Nations Declaration on the Rights of Indigenous Peoples UNEP United Nations Environment Programme

UNFCCC United Nations Framework Convention on Climate Change UNGA United Nations General Assembly

UNHCHR United Nations High Commissioner for Human Rights UNRIAA Reports of International Arbitral Awards

UNTS United Nations Treaty Series

US United States of America

USC United States Code

USD United States dollar s

VCLT Vienna Convention on the Law of Treaties

VSL Value of a Statistical Life

WIM Warsaw International Mechanism for Loss and Damage