The Belgian Climate Case and rising (sea) levels: Human rights, separation of powers and multi-level constitutionalism
| Published date | 01 June 2024 |
| DOI | http://doi.org/10.1177/1023263X241287408 |
| Author | Cedric Jenart |
| Date | 01 June 2024 |
The Belgian Climate Case and
rising (sea) levels: Human rights,
separation of powers and
multi-level constitutionalism
Cedric Jenart
*
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 rea-
soned 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 con-
firmed Urgenda and Neubauer, whereas the strikingly low standing threshold for natural persons
was pioneering. From an institutional perspective, the Court of Appeal explicitly considers separ-
ation 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 man-
datory and pragmatic to have a judicial dialogue with the ECJ as well.
*Assistant Professor Constitutional Law University of Antwerp
Corresponding author:
Cedric Jenart, Assistant Professor Constitutional Law University of Antwerp, Antwerp, Belgium.
Email: cedric.jenart@uantwerpen.be
Case Note
Maastricht Journal of European and
Comparative Law
2024, Vol. 31(3) 445–461
© The Author(s) 2024
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1023263X241287408
maastrichtjournal.sagepub.com
Keywords
Climate change, public interest litigation, positive human rights, separation of powers, federalism,
multi-level constitutionalism
1. Introduction
When bright-faced Belgian law students take their first constitutional law class, they usually hear
that the pediment of this body of the law is based on three columns: human rights, institutional
law and multi-level governance (bottom-up and top-down). What better than a case on a singular
perturbing matter like climate change to shake up these three pillars?
The following contribution will discuss the so-called Belgian Climate Case at the stage after the
judgment of the Court of Appeal of Brussels.
1
It starts by giving an overview of the facts and legal
proceedings that preceded the Court’s judgment.
2
Next, the most pertinent arguments of the Court
are structured and portrayed. Ultimately, I will provide an analysis of the importance of the judg-
ment for the edifice of comparative constitutional law, in relation to human rights, institutional law,
federalism and EU law, with an emphasis on the parts that are novel as compared to the existing
climate cases.
This scholarly analysis first discusses the human rights angle of the case, with applicants that
chose to focus on the positive obligations derived from the right to life and privacy, but with a
uniquely low standing threshold for natural persons. Next, it argues that the Belgian Climate
Case adds to the separation of powers between the Judiciary, on the one hand, and the
Legislature or the Executive, on the other hand, as an incremental balancing act, sliding ever
closer to judicial intervention by explicitly announcing the possibility of governmental penalty pay-
ments for non-compliance. Ultimately, the contribution is thoroughly grounded within a multi-level
context. Top-down, the relationship between the federal and regional levels created material and
procedural complications which we encounter for the first time in a federal state with such an
1. Brussels Court of Appeal 30 November 2023. No. 2023/8411, https://prismic-io.s3.amazonaws.com/affaireclimat/
aff2e124-f79d-4d5a-916a-e7919342f880_SP52019923113012320+en.pdf); A. Niranjan, ‘Belgian Court Orders 55%
Emissions Cut from 1990 levels’,The Guardian (2023), www.theguardian.com/world/2023/dec/01/belgian-
court-orders-faster-emissions-cuts-as-countrys-climate-targets-insufficient.
2. See also: M. Slautsky, ‘Climate Litigation, Separation of Powers and Federalism à la Belge: A Comment on the Decision
from the Brussels Court of Appeal of 30 November 2023 in the Belgian Climate Case’,European Constitutional Law
Review (forthcoming). On a domestic level, a number of commentaries are available with specific technicalities:
L. Lavrysen, ‘Mensenrechten dwingen tot verdergaande emissierechten in historische klimaatarrest’(‘Human Rights
Force Further Emission Allowances in Historic Climate Ruling’), 1 Milieu- en energierecht (2024); A. Bombay and
J. Lemaire, ‘Klimaatzaken: wie A(aansprakelijkheid) zegt moet (B)evel zeggen? Inleidende beschouwingen bij het kli-
maatarrest over de scheiding der machten, toetsing via open normen en het rechterlijke bevel’(‘Climate Cases: Who
Says A(ccountability) Must Say (B)id? Introductory Reflections on the Climate Judgment on the Separation of
Powers, Review through Open Standards and the Injunction Process’), 1 Tijdschrift voor Milieurecht (2024); L. De
Brucker and D. Daniels, ‘Het arrest in de Klimaatzaak: Belgische overheden in zwaar weer of emissiereductiecijferfetis-
jisme ten voeten uit?’(‘The Ruling in the Climate Case: Belgian Governments in Dire Straits or Emissions Reduction
Fetishism All Over the Place?), 4 STORM (2023/4), E. De Clercq and S. Dethier, ‘Pleiten voor de planeet: uitspraak
in de Belgische klimaatzaak’(‘Pleading for the Planet: Ruling in Belgium’s Climate Case’) (Part 1 and 2), Leuven
Blog for Public Law (22 December 2023 and 2 January 2024). Multiple contributions have also been written on the
Climate Case’sfirst instance judgment. Many of these articles were cited in the Court of Appeal judgment itself,
which is why they are not repeated here.
446 Maastricht Journal of European and Comparative Law 31(3)
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