Introduction

In our previous newsflash on the Belgian Climate Case, we focused on the context of the case and questions of admissibility and the jurisdictional power. Now, we examine the first claim invoked by the Plaintiffs, related to the violation of the European Convention on Human Rights (“ECHR”).

The Plaintiffs contend that the Belgian State and the three Regions are falling short in their commitment to reducing international greenhouse gas (“GHG”) emissions, thereby neglecting their responsibility to prevent detrimental global warming. They also raise insufficient cooperation at national level for effective climate governance. According to the Plaintiffs, these shortcomings constitute a breach of articles 2 and 8 of the ECHR, article 1382 and 1383 of the former Civil Code. 

This newsflash will start by delineating the scope of articles 2 and 8 ECHR as applied to environmental law. Next, it will provide context on the direct effect of these provisions in national law, followed by an assessment of how the Court interprets and enforces these rights within the Belgian climate governance context in the climate case judgment.

National control and margin of appreciation

A key discussion point between the parties is whether the European Convention of Human Rights grants sufficient authority to national courts to penalise the Belgian State under its provisions. Article 1 of the ECHR emphasises the principle of subsidiarity, requiring member states to protect individuals' rights and freedoms within their jurisdiction, considering effectiveness and the legitimacy of sovereign nations. 

Effectiveness however necessitates that national court procedures afford proper protection of ECHR rights. Therefore, while articles 2 and 8 of the ECHR may not explicitly outline sanctions, effective protection includes the possibility to ask for redress, cessation, and prevention of violations. The imperative of legitimacy calls for granting national courts some flexibility in applying diverse national approaches to human rights issues. This is particularly the case in environmental matters, given their inherent complexity. In these cases, national authorities should be afforded a broader margin of appreciation when safeguarding the rights outlined in the ECHR. 

Given these considerations, the Belgian Court asserts its authority to oversee compliance with articles 2 and 8 ECHR in the current environmental case, citing a broad margin of appreciation when assessing potential violations by Belgian public institutions.

Application of articles 2 and 8 ECHR in the Belgian climate governance

Having accepted the direct effect of the ECHR provisions, the Court turns to balancing the various interests. The Court’s reasoning starts by assessing whether global warming poses a concrete and immediate risk, necessitating action by public institutions to prevent danger or cease ongoing damage. The Court scrutinises whether these institutions have fulfilled their role in addressing climate change to prevent crossing a dangerous threshold.

The Court asserts that insufficient targets are set by Belgian authorities, combined with inadequate results, constituting a violation of articles 2 and 8 ECHR.

The Court acknowledges the uncontested threat to life posed by climate change, supported by scientific experts and political acknowledgment of the risk. To determine a violation of Article 2 ECHR, the Court evaluates two periods: 2013-2020 and 2021-2030.

• 2013-2020: In 2015, the Paris Agreement sets a goal of limiting global warming to 1.5°C. To stay below 1.5 °C of global warming, GHG emissions need to be cut by roughly 50% by 2030. The Walloon Region, proactively setting a 30% reduction target for 2020, claimed success with a 38% reduction in 2020. The other governments could however not present satisfactory numbers. The Federal Government's 26.9% reduction in 2020, the Flemish Region’s less than 20% reduction and the Brussels-Capital Region’s 23% reduction in 2020 are all found insufficient. The Court found that all entities, except for the Walloon Region breached their duties under article 2 ECHR for this first period.

• 2021-2030: For the following period, the Court, emphasising the need for a consensus rooted in the best available science, found insufficient basis for an 81% reduction, sought by the Plaintiffs. Addressing the subsidiary request, the Court acknowledged the European Climate Law's consensus for a 55% reduction by 2030, consistent with carbon neutrality by 2050. The Federal Government and the Flemish and Brussels-Capital regions failed to present evidence of measures for the 55% target, breaching Article 2. 

For the breach of article 8, the Court applies the same reasoning as for article 2 to conclude that the Federal Government and the Flemish and Brussels-Capital regions are in breach of its obligations imposed by the aforementioned article.