Too Big to Remedy? What Climate Cases Tell Us About the Limitations of Law
As the European Court of Human Rights (ECtHR or the “Court”) considered the human rights impacts of climate change for the first time, its initial climate cases issued an invitation to think beyond the specific issue of climate change and to interrogate key aspects of how the Court deals with systemic or societal problems. While the Court’s ruling in Verein KlimaSeniorinnen Schweiz and Others v Switzerland presented much-discussed innovations in terms of the admissibility and merits of climate cases, the ‘tail’ end of the judgment – the remedial findings – has not received sufficient attention.
Here, the Court had a particular opportunity to respond to the structural nature of climate change. Its deferential remedial conclusions relate to the Court’s understanding of reparation and its own role, which in turn shape its willingness to open its remedial toolbox. This article interrogates the remedial options available in climate cases, focusing particularly on the KlimaSeniorinnen case to re-examine the idea that some issues are simply too extensive or too complex to receive scrutiny – or a remedy – from a human rights institution such as the ECtHR.
The climate cases trickling into the ECtHR’s docket, and especially the three cases recently ruled upon by its Grand Chamber, raise novel substantive questions. Does inadequate mitigation or adaptation action by states violate rights under the European Convention on Human Rights (ECHR)? How should causation and shared responsibility be understood? And which ECHR rights are affected? The KlimaSeniorinnen case, decided on April 9, 2024, clarified a number of these issues in a leading judgment that spelled out new victim status and standing rules, regulatory obligations, and procedural rights in the face of climate change.
What KlimaSeniorinnen did not do, however, was accede to the applicants’ remedial requests. As a result, this case – taken together with the inadmissibility decisions that flanked it – issues an invitation to think beyond climate change, and to interrogate key aspects of how the Court deals with systemic or societal problems overall. This includes overarching questions about whether the Court’s remedial toolkit and its practice on remedies are fit for purpose.
The present article will focus particularly on the Court’s remedial practice. It contends that many of the same kinds of concerns shape both remedial decisions (‘tails’) and the admissibility (‘heads’) of cases. That is because considerations tied (implicitly or explicitly) to issues of subsidiarity, democratic legitimacy, backlash, incrementalism, and docket control shape the Court’s approach in these contexts, as they do other aspects of its case law. When it comes to remedies (understood here broadly, in the sense of ‘reparations’ in the general international law sense), these can appear as an afterthought in the Court’s practice. Ingrid Nifosi-Sutton poignantly describes the Court’s remedial practice as ‘hardly known for being innovative or progressive.’
This is particularly true in the Court’s environmental case law, which has ‘greened’ existing ECHR rights in response to environmental harms. Prioritising a declaratory finding, the Court tends to leave the implementation of judgments to states under the supervision of the Committee of Ministers, often deciding not to make an Article 41 award and only very rarely deciding to order individual and general measures (consequential measures).
Precisely these dynamics played out in the KlimaSeniorinnen judgment. The ‘tails’ of the Court’s judgments (paying homage here to the title of this special issue on the ‘Heads and Tails’ of judgments by the Court) deserve more attention. Beyond lending a judgment its ‘bite’, they give the Court an opportunity to influence the implementation of its findings, provide a standard for holding states accountable, and send signals that can travel even beyond the Council of Europe system. This is especially true where consequential measures are concerned; here, differentiating the available options sheds light on what the Court can in fact do, and helps unpick the concerns raised against using this power.
To understand what the ECHR system offers in terms of reparation, the present article focuses on the structural issues raised in the Grand Chamber’s climate cases, and especially in KlimaSeniorinnen. Although much has been written about the admissibility and merits issues in these cases, even before the Court issued its rulings, less attention has been focused on what happens once the Court finds a Convention violation, and more specifically if it finds that the failure to sufficiently mitigate greenhouse gas (GHG) emissions has violated ECHR rights.
The Court’s remedial toolbox is ample: it ranges from binding declaratory judgments, to just satisfaction under Article 41 oriented around the principle of restitutio in integrum, to individual measures and general measures, including those ordered within and outside a pilot judgment procedure. This toolbox does have its limits: it does not include, for example, domestic courts’ ability to order punitive damages, EU-style daily penalty payments for non-compliance, or the Inter-American Court of Human Rights’ practice of creating community development funds to compensate for collective harms.
The Court also cannot invalidate domestic laws, and does not differentiate its remedial orders into the five types proposed under general international law as codified in the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA), namely, restitution, compensation, satisfaction, and cessation and non-repetition. A typology similar to the ARSIWA’s is reflected in the UN’s 2005 Basic Principles and Guidelines on the Right to a Remedy and Reparation, which refer to restitution, compensation, rehabilitation, guarantees of non-repetition, and satisfaction.
By contrast to general international law, the ECtHR’s approach can appear rather undifferentiated. The Court has made clear that awarding ‘sums of money to applicants by way of just satisfaction is not one of the Court’s main duties’, and it also rarely orders consequential measures. However, this does not mean that it has nothing to offer victims of an ECHR violation. Its declaratory judgments can be understood as promoting cessation, restitution, and non-repetition; likewise, its just satisfaction awards provide restitution and compensation for pecuniary and non-pecuniary damage.
The present article will use the KlimaSeniorinnen case to re-examine the idea that some issues are simply too extensive or too complex to receive scrutiny – or a remedy – from a human rights body such as the ECtHR. The article situates the Court’s remedial possibilities alongside different types of ‘successes’ that can be envisioned in ECHR climate cases, and explores both the limitations and the potential of the Court’s remedial approach.
The KlimaSeniorinnen applicants had requested the Court to order the Swiss Government to adopt a legislative and administrative framework doing its ‘fair share’ to comply with the Paris Agreement’s 1.5°C warming limit. Specifically, they asked the Court to specify the required emissions reductions (net negative emissions by 2030, including a 60% domestic cut compared to 1990; net zero by 2050; and emissions removal efforts, all within a binding time limit).
However, the Court did not order such general measures. Instead, it noted that ‘the Convention system is not intended to become the venue where national policies to combat global warming are decided’ and that ‘the setting of reduction targets and concrete mitigation measures requires specific knowledge and is not within the competence of the Court.’ The Swiss Government had also argued that any general measures, if adopted, should concern only procedural shortcomings in domestic access to justice, and not GHG mitigation.
Understanding why this was the case, and what alternatives were available to the Court, is the aim of this piece. This means that, first, it is necessary to explore the role of general measures, especially in environmental and climate cases. The KlimaSeniorinnen request must be understood against its wider background. In its past environmental case law, the Court has not favoured general measures, deferring instead to the Committee of Ministers’ supervision of the execution of judgments. KlimaSeniorinnen offered a welcome opportunity to reconsider this, given that consequential measures can give extra ‘bite’ and clarity to judgments.
Admittedly, this argument may be seen as contradicting empirical findings about state compliance with the Court’s remedial orders, which have found that compliance with general measures orders is worse than compliance with just satisfaction awards. However, this piece is premised on additional research indicating that general measures orders do in fact improve and speed up compliance with the Court’s judgments. Compliance with these orders depends on several variables, including the nature of the cases in which they are ordered; however, this factor will affect compliance regardless of whether a general measures order is made.
General measures orders have a meaningful role to play concerning structural, entrenched, or complex problems. They lead to an enhanced supervision procedure by the Committee of Ministers, and (especially for high-profile cases like KlimaSeniorinnen) they send strong signals about what is expected from states. What could a general measures order have entailed in KlimaSeniorinnen? The applicants’ request would have placed the respondent state under a concrete obligation of result. Still, this would have left the state considerable discretion to choose how to put this into practice.
Alternatives could have included phrasing the order as an obligation of conduct, refraining from setting clear reductions goals and instead ordering the state to do its ‘fair share’ to stay below the Paris Agreement’s 1.5°C target, or requiring the introduction of a carbon budget and an adequate regulatory framework. The Court could also have opted for a more minimalistic approach, for example stating that Switzerland must meet the reductions goals set out in its Nationally Determined Contribution or domestic climate legislation.
Linking the order to the best available climate science would have narrowed the scope of acceptable state action and ambition. The scientific evidence shows a sizable gap between the emissions reductions promised by states and those actually needed to keep warming at a ‘safe’ level. Existing resources and models can calculate the necessary reductions for individual states while taking into account historical emissions and development levels. The Court, however, was anxious not to recommend any one methodology, instead deferring to the state’s margin of appreciation.
The outcome of KlimaSeniorinnen and future climate cases before the ECtHR cannot be understood without looking at their wider institutional context. The idea that climate cases are too complex or too difficult to be remedied through human rights litigation has some truth to it. No judgment from the Court will singlehandedly overcome the collective action problems and global inequality at the root of climate inaction, nor can it provide a definitive and just global emissions reductions model or rewrite states’ climate legislation.
At the same time, the Court can find human rights violations in this context, despite the phenomenon’s novelty and complexity; it can apply legal tests to scientific evidence; and it could also order reparations. The main question is whether – within the institutional and conceptual constraints in which the Court operates – it will consider it prudent to do so, i.e., whether such an order will be seen as furthering the implementation of its judgment, enjoy legitimacy, or perhaps have unintended negative consequences.
Similar concerns shape both remedial decisions (‘tails’) and the admissibility (‘heads’) of cases before the ECtHR. These include the Court’s subsidiarity, legitimacy, and possible backlash; the idea that incrementalism and proceduralism represent valid (or at least anti-controversial) approaches; and the procedural efficiency concerns wrapped up in the Court’s efforts at docket control.
Remedial vagueness or silence is not necessarily an appropriate expression of subsidiarity. The Court’s approach to reparations has long been the subject of emphatic separate opinions from Judges contesting their colleagues’ reluctance to draw obvious remedial conclusions from their findings. There is a parallel here between remedial and admissibility issues: both the ‘heads’ and the ‘tails’ of these cases can declare an issue too big for the Court to handle.
In climate cases, individual and public interests in fact overlap, domestic actors seek guidance about the demands of international law, and structural change is clearly needed. Where the Court fails to make clear indications of what is required by its judgments, it may open the door to narratives about its supposed ‘judicial overreach’ based on interpretations of those same judgments as going far beyond what they actually require. More elaborated remedial findings are thus in the interest of the Court itself, in addition to the interests of applicants.
Going forward, the ECtHR’s Judges must develop an approach to reparations that is more than an afterthought. Different types of remedial outcomes can follow once climate cases succeed on their merits. A merely declaratory finding that unambitious or ineffective emissions reductions violate human rights law represents a success in and of itself, cementing previous domestic interpretations of the ECHR and sending a clear signal about the need for action.
However, the Court had different options for providing reparation in KlimaSeniorinnen, which already offer an opportunity to critically evaluate and better understand its remedial approach. Exploring these alternatives can shed light on the institutional and conceptual constraints that shape the Court’s decisions, and point the way towards more effective climate adjudication in the future.