Constitutionalising Climate Mitigation Norms in Europe

This chapter examines the emerging ‘climate constitutionalisation’ in the multi-layered legal landscape of Europe. It focusses on cases that are brought against states attempting to address governance failures to mitigate climate change. These cases directly and indirectly vest international and regional norms with a higher legal rank than the actions of the domestic executive and legislative. They constitutionalise mitigation commitments and transform them into (enforceable) legal obligations. Often, later cases replicate successful legal arguments and strategies of earlier cases and hereby confer additional authority on their reasoning and outcome. The chapter identifies how the reception in climate cases of norms produced by transnational governance moves commitments to protect the public good from the political to the legal/constitutional sphere. It pays particular attention to the multi-layered legal landscape of national law, European Union law, the European Convention on Human Rights (ECHR), and international law, which allows for a particular form of replicability and constitutionalisation. Taking a bottom-up approach to constitutionalisation, the chapter reflects on its implication for separation of powers, and concludes that the constitutionalisation of climate norms in Europe, while arguably empowering the judiciary, makes an important contribution to the problem-solving capacity and legitimacy of the will-formation in modern democracies.