Homeopathic Globules for Environmental Lawyers

When my children were still small and occasionally got scrapes on German playgrounds, I was often offered small white globules by concerned parents. “Arnica”, they whispered to me, “helps immediately!” I always declined in a friendly but firm manner. I would have gladly allowed my children the quick distraction of the sugar in the homeopathic globules. But I didn’t want to be associated with superstition and didn’t want to teach my children something stupid.

I feel the same way about human rights-based climate lawsuits. I heartily grant every environmental lawyer who is rightly desperate in the face of the climate crisis a little sugar-sweet illusion of “climate justice”. Nevertheless, the widespread belief in climate lawsuits seems to me to be no less unfounded and in some respects even more harmful than the belief in homeopathic Arnica pills.

Unsuitable courts

The belief in climate lawsuits is unfounded because the courts, as institutions aimed at individual justice, are neither institutionally nor intellectually suitable for dealing with the incomparably complex climate crisis and for guiding the major societal and global transformation required.

Independence and reputation

In an almost homeopathic misjudgement, climate action advocates often believe that the courts are in a good position to provide relevant impetus for global climate protection. The independence of the judges and the reputation of the courts are the main purported arguments in favour of climate litigation. Independence is supposed to ensure long-term orientation beyond lobbying influences, while the special reputation of the courts is supposed to guarantee the enforcement of ambitious judicial climate protection requirements. None of this seems plausible.

China, Russia and the Arab world

In any case, promising climate lawsuits can only be filed in the comparatively small part of the world that has an independent and sufficiently effective judiciary. It is not only in China, Russia or the Arab world – to name just the most important countries and regions in terms of climate policy – that climate lawsuits cannot be expected to have any effect.

The German Federal Constitutional Court and climate planning

But even in constitutional democracies, climate lawsuits can achieve at best homeopathic results. The decision of the German Federal Constitutional Court, which was celebrated in the international climate action scene, has been translated into paper by the German federal legislature with almost provocative nonchalance and speed. Switzerland will be able to fulfil the comparatively less demanding requirements formulated by the ECtHR in its most recent ruling with similar ease. Contrary to what is often assumed, long-term planning is not a problem for politicians as long as they can project painful cuts sufficiently far into the future. In this respect, the decisions of the German Federal Constitutional Court and the judgement of the ECtHR are so far no more than a further contribution to climate protection planning, which in many respects already seems illusory.

No concrete consequences: speed limit / nuclear power plants

In a realistic assessment of its own limits, the German Federal Constitutional Court has at the same time resisted any concrete derivation from its demand for climate protection (critical of the limited consequences of the decision: Groß). Even the obligation to introduce a speed limit on German motorways, which is comparatively easy to justify in terms of content and constitutional law, was rejected by the court. In Karlsruhe, there is evidently sufficient awareness that such concretisations in a democracy based on the separation of powers are not a matter for the courts and can quickly become dangerous for the judicial reputation tapped by the climate plaintiffs. If the example of the speed limit does not seem plausible enough, just imagine if the Federal Constitutional Court had ordered the continued operation of German nuclear power plants with a view to constitutionally mandated climate protection.

Shell judgement

Beyond Germany’s borders, there is also the occasional court ruling on climate protection that seems to demand more than just planning. However, even these decisions cannot serve as a model. The most famous and far-reaching of these decisions is the judgement of the Rechtbank Den Haag in the Shell case. In this judgement, the Dutch court ordered Shell to reduce its CO2 emissions by 45% by the end of 2030 due to an alleged breach of its general duty of care under civil law as defined by human rights. The court expressly included the emissions generated by Shell’s customers in the reduction obligation.

In legal and political terms, the judgement seems to me to be unjustifiable and highly dangerous. It is also unlikely to have any practical effect on climate protection. Shell subsequently appealed the judgement, removed the words “Royal Dutch” from its name and relocated its headquarters from the Netherlands and the EU to the UK. At the same time, Shell has sold a considerable number of oil production licences to competitors. However, the corresponding state-licensed production has not been discontinued, but is simply being continued by others.

Strategic litigation?

Advocates of the climate justice movement regularly counter this criticism of the practical uselessness of climate lawsuits by pointing to the symbolic power of the corresponding proceedings. The plaintiffs are not concerned that much with procedural victory in the sense of concrete climate protection success. Rather, the aim of the “strategic litigation” pursued here is to draw public attention to the climate crisis and to denounce the inadequate climate protection efforts. On closer inspection, however, this argument is not convincing either.

No deficit in public attention

It seems already doubtful whether the climate crisis, which is more present in the media than any other topic, is actually suffering from a lack of public attention. The shortcomings of national, supranational and international climate protection policy to date are also a constant topic of public debate, at least in those countries and legal systems in which climate lawsuits can be filed at all.

Climate lawsuits as an illusionary and discrediting distraction

On the contrary, it is to be feared that climate lawsuits distract from the actual pressing problems of the global climate crisis. Just as a cancer patient must be advised against relying on homeopathic remedies, we must also warn against the illusionary trust in climate lawsuits. Instead of devoting itself to the real, legally pressing issues of formulating and implementing a rational climate protection policy worldwide, the environmental law scene is focusing on a simplistic, feel-good litigation programme that regularly misses the point and is sometimes more likely to discredit climate protection efforts than to promote them.

Climate senior citizens before the ECtHR

The case of the Swiss “Klimaseniorinnen” currently decided by the European Court of Human Rights is the best example of this. The applicants believe that their right to life and physical integrity has been violated because Switzerland has not done enough to limit man-made climate change. As a result, it gets too hot for them in summer and they are threatened with fatal heat exhaustion.

Strategic litigation / no adaptation measures

Only the idea of strategic litigation can explain the fact that the complainants demand a climate policy from Switzerland that cannot avert the dangers supposedly threatening them, even with the greatest effort. Adaptation measures, such as the air conditioning of retirement homes, which would certainly be more promising for the concrete protection of human rights, were not demanded and were accordingly not granted by the Court. This alone demonstrates the inadequacy of the human rights approach of the current climate claims.

No sufficient violation of human rights

The statistical approach taken by the complainants themselves also reveals numerous inconsistencies. Even the overall negative effect of rising temperatures in Switzerland at a very moderate level on the complainants’ health appears dubious. When comparing life expectancy in EU countries with very different climates, a corresponding correlation can hardly be established. For example, life expectancy in Malta, Italy, Spain, Cyprus, France, Greece and Portugal is currently higher than in Germany. It is true that life expectancy in Switzerland is unusually high. However, in view of Switzerland’s comparatively moderate temperature level and the lack of correlation observed in other countries, it seems unlikely that this will fall significantly as a result of climate change and, in particular, rising summer temperatures, as claimed. This is all the more true as deaths among senior citizens in Switzerland are significantly higher in the winter months than in the summer months. The opposite correlation applies here: cold kills. Shouldn’t the deaths avoided in mild winters also be taken into account in a statistical argument like that of the complainants? In view of such argumentative omissions, the impression of excessive generalisation in the allegation of human rights violations was forced upon the court. The Swiss Federal Court had therefore already rightly found – as the ECtHR has now done – that the applicants’ fundamental rights were not affected with sufficient intensity.

Perpetrator/victim reversal

The astonishing perpetrator/victim reversal expressed in the complaint of the Swiss climate senior citizens must also be scrutinised. Shouldn’t it at least cause unease when old, white, rich Swiss women, of all people, stylise themselves as victims of climate change? Isn’t their (and our) personal and collective carbon footprint one of the main causes of the problem? Is it not – despite all the good intentions – a form of cultural or climate policy appropriation to declare oneself a specifically affected victim group in one’s own globally privileged special situation? Does the obvious disproportion to the dangers to which the actual victims of climate change are exposed not represent a further climate litigation dishonesty that is difficult to bear? Does this not do more harm than good to the central concern of climate policy?

The wrong case

The European Court of Human Rights would therefore have been well advised not to take this – wrong – case as occasion for a fundamental decision on climate policy. However, as the other two pending cases had to be dismissed as inadmissible, a majority of the Chamber determined to make a fundamental decision on climate policy had no choice but to take a major step towards a completely abstract approach to human rights protection.

The abstraction of human rights protection

Because the ECtHR does not consider the human rights of the specific applicants to be sufficiently violated by climate change (and Switzerland’s relative inactivity in terms of climate policy), it seeks the human rights violation in their aggregation. In an (overly) far-reaching further development of its case law, it attributes the legal standing that it denies to the individual plaintiffs to the association they support. At first glance, this may seem plausible: man-made climate change is a global phenomenon that affects every woman and could perhaps best be countered with collective rights of action. In this respect, the ECtHR expressly refers to the model of the Aarhus Convention, which has fundamentally expanded the rights of environmental protection organisations to bring actions.

However, as the British judge Tim Eicke points out in detail in his minority opinion, both the text of the Convention on Human Rights and the case law of the ECtHR lack a sufficient basis for this step. It also seems highly implausible why groups of plaintiffs, whose most affected members cannot assert a sufficient violation of rights, should overcome the threshold of legal standing simply by founding an association. The Court, which in its judgement emphasises the limitation of its function to the protection against concrete and substantial human rights violations just as often as the exclusion of popular action, contradicts itself when it counteracts these restrictions by the all too sweeping admission of the defence of political interests by associations.

In this way, human rights violations and human rights protection as a whole are detached from any real person, any individual violation and also from any specific norm to be named. The abstraction and thus the fictionalisation of human rights protection is almost complete. These abstractions are unlikely to do the still urgently needed protection against brutally real human rights violations any good.

Negative impact of climate lawsuits

The climate justice movement must address such critical questions beyond this specific case. Anyone who propagates symbolic political litigation should at least be sure of the positive symbolic power of their own actions. At present, there is more to suggest that the movement is producing nothing more than justified resistance, paper promises, Potemkin activism and disappointed expectations. Unlike homeopathy, not even a placebo effect can be expected. Even if one might sometimes get this impression, climate protection is not about the psychological effects of the lawsuits on their protagonists, but about physical cause-and-effect relationships in the real world. Here, unfortunately, globules don’t help at all.

The article is based on a short lecture, supplemented by current developments, which I gave as part of the discussion group on international public law at the annual conference of constitutional law teachers in October 2023. I would like to thank the panellists and Lotta Kuhlmann for advice on how to improve my argumentation.