The Belgian Climate Case and rising (sea) levels: Human rights, separation of powers and multi-level constitutionalism

Abstract

On 30 November 2023 the Brussels Court of Appeal of Belgium rendered a remarkable judgment ordering the Belgian federal state, the Flemish Region and the Brussels-Capital Region to reduce their greenhouse gas emissions by 55% versus the level of 1990. Even though an appeal to the Belgian apex Court of Cassation has been lodged in the meantime, this lengthy and carefully reasoned judgment constitutes by no means a run-of-the-mill climate case. The case touches on three fundamental columns of comparative constitutional law: human rights, institutional law and multi-level governance (bottom-up and top-down). From a human rights perspective, the recognition of a positive right to life and privacy in light of climate change and of a vicarious damage concept confirmed Urgenda and Neubauer, whereas the strikingly low standing threshold for natural persons was pioneering. From an institutional perspective, the Court of Appeal explicitly considers separation of powers as a constitutional principle in which judiciary checks and balances can have full effect to safeguard minimum human rights requirements. Moreover, the outspoken judicial threat of a governmental penalty payment for non-compliance was original. In light of bottom-up multi-level governance, the Belgian Climate Case proves unique in its portrayal of climate litigation in federal states with exclusive competence of the state entities. However, the decision to exonerate one state level while condemning three others without mutual distinction is questionable. Ultimately, the Court of Appeal's judgment operates in a top-down multi-level context as well, with a direct discussion on asking a preliminary question to the European Court of Justice (ECJ). The recent KlimaSeniorinnen judgment of the European Court of Human Rights (ECtHR) largely confirms and refers to the Belgian Climate Case, yet it could still prove both legally mandatory and pragmatic to have a judicial dialogue with the ECJ as well.