Are the remedies currently available before regional and international bodies for human rights violations working, and could they work better? Are compensatory awards fit for purpose, or do they allow States to 'buy' their way out of compliance? And, in particular, can human rights bodies help to remedy large-scale violations through structural reforms? How can risks and damages to individual and collective human rights' holders be analyzed and assessed, and how can this be translated into effective remedies?
The second stream of this project concerns the nature and assessment of damages and the ordering of remedies in case of large-scale or systemic violations of human rights. The fact that crises related to global climate change will cause serious, long-lasting damage to all life on Earth is, by now, well-established. The damage inflicted will be undoubtedly vast and irreversible. In this regard, the WEF has estimated that, just in the United States, climate-related economic damage may constitute 10% of the GDP by 2100 (World Economic Forum, The Global Risks Report 2020, 15th edition, p. 31). What this figure does not account for, is a proper factoring in of human rights violations and harms to human dignity. Furthermore, less-developed countries are likely to bear more of the brunt of the damage caused by climate change-related natural disasters, food insecurity, drought and changing weather patterns.
This second stream will consider the nature of damages awards, the effects of potential legal remedies and their alternatives, and the conditions of compliance with remedial orders made in this context. In doing so, we will look at structural reforms through human rights litigation, and investigate whether and how this litigation works for human rights bodies to order structural changes to domestic systems. We will consider the advantages of attaching economic values to the harms caused by huge, structural issues such as global climate change, focusing also on the risks that this entails in terms of jeopardizing full respect for human rights norms or co-opting them into cost-benefit analyses. We will discuss which alternatives to such cost-benefit analyses would be available. Local and regional vulnerability or resilience maps could be interesting options as well as taking into account the willingness-to-pay (for mitigation measures) or the willingness-to-accept (with respect to damages) of current populations. How to deal with unknown preferences of future generations has to be elaborated.
Remedial measures ordered by human rights adjudicators are of course by no means the only form of response to human rights demands in the context of a systemic issue like climate change. There is a gamut of possible responses, from domestic political processes to corporate initiatives to consumer choice. However, given the efforts being made in the context of international human rights litigation, zooming in especially on human rights adjudicators and the relationship between the State and these bodies, particular attention should be paid to the stage of ordering remedial measures. One concern here is that the option to pay in order to compensate damages encourages States to feel dispensed of the need to enact structural change. In addition, regional human rights bodies such as the ECtHR and the IACtHR increasingly order not just compensation payments of damages, but also the making of structural reforms to domestic laws, policies and institutions. However, even if such an order is made, it may never be executed on the national level. We will investigate into the reasons for these differences, which will mean taking into account populations’ preferences as well as political processes.
While an order to pay for climate change related damages may be the result of an international human rights adjudicatory process, this alone does not comprise the full extent of States’ obligations. States that are parties to human rights treaties have taken on obligations to respect, protect, and fulfill human rights – or, in the divergent language of the European Court of Human Rights, positive and negative human rights obligations. Compensation payments for damages or providing redress in some selected cases that make their way to human rights bodies represent only the tip of the iceberg in terms of what is required from States under their treaty and customary obligations as interpreted by human rights bodies.
These considerations raise a number of questions, not least: is the existing approach of climate change related remedies conducive to effective respect for human rights norms? Does it allow States to perform adherence (or just pay lip service) to the demands of human rights law without making structural changes to domestic situations? How can we reach a human rights mainstreaming when dealing with crises like global climate change? Under which conditions can compensation payments provide restitutio in integrum, and is restitutio in integrum ever truly possible for human rights violations? How to judge the effects of a commodification of “human dignity” and the resulting ability to purchase it? Should compensation payments just have a symbolic character, or should a certain level of quantification be met? What are the damages inflicted by creeping harms, and how can compensation for such harms be awarded? How to solve the multi-generation problem of compensating for climate change related damages? Would State behavior be changed by orders of punitive damages in a context in which States have the option not to pay out the awards made? Furthermore, under which conditions can we expect or trigger changes of State’s behaviors in the direction of preventing systemic, gross or large-scale human rights violations? What should the operative judgment of a court look like to take the need for behavioral changes seriously (and should it approach this through command or persuasion)? How far can courts go in telling States what to do, and what interinstitutional lessons are there here, e.g. what can the ECtHR, the IACtHR and the African system learn from each other here?
To answer these questions, human rights law will seek an exchange and collaboration with economics, social sciences, and comparative social security law perspectives. This will help us to determine whether, for example, general or very specific financial awards to individuals are more effective. Do monetary awards provide victims of human rights violations with a sense of having obtained adequate redress? How should specific violations be valued in order to prove satisfaction to victims and to guarantee non-repetition?