Do-Hyun Kim et al. v. South Korea

On March 13, 2020, nineteen youth activists filed a complaint in the South Korean Constitutional Court alleging that the nation's climate change law violates their fundamental rights, including the right to live and a clean environment. South Korea's Framework Act on Low Carbon, Green Growth, which was amended in December 2019, commits to reducing annual nationwide greenhouse gases to 536 million tons by 2030, a 24% cut from 2017. The petitioners argue that this target is insufficient to keep global warming below 2 degrees Celsius. The petitioners submitted a supplemental complaint on May 15, 2020, to provide the Court with info on the facts and science of climate change, and, in their view, Korea's insufficient response to the threat. On September 28, 2020, the petitioners submitted a supplemental brief to provide the Court with updated info on recent severe climate impacts in South Korea, the need for a prompt hearing of the case, and the Irish Supreme Court's handling of a similar case in Friends of the Irish Environment v. Ireland. On January 26, 2021, the petitioners filed a second supplemental brief with arguments on the South Korean government's violation of its obligation to protect citizens from the harms of climate change. The brief argues that the obligation to respond to climate change is derived from the Korean constitution's guarantee of the right to a healthy environment, the obligation to prevent disasters, and the obligation to protect health and safety. Petitioners argue that the government has violated this obligation by failing to enact adequate and effective climate legislation, and that petitioners have standing to challenge legislative omissions due to inadequate protection of environmental rights. On April 15, 2021, the plaintiffs submitted a third supplemental brief presenting arguments that the climate change law and enforcement of that law are underprotecting their basic rights and are violating their equal rights. On February 15, 2024, this case, 2020Hun-Ma389, was consolidated with three others: 2021Hun-Ma1264, 2022Hun-Ma854, and 2023Hun-Ma846. On August 29, 2024, in a unanimous decision, the Constitutional Court found that Article 8 Paragraph 1 of the Framework Act on Carbon Neutrality and Green Growth violates the right to healthy environment under Article 35 of the Constitution, and ordered the National Assembly to amend the law by February 28, 2026. The Constitutional Court first acknowledged that the right to healthy environment under Art. 35 of the Constitution addresses the harm and risks related to climate change and that the State has an obligation to protect such rights by mitigating the cause of climate change and reducing the harm by adapting to climate change. The Court then ruled that in order to appropriately address such issue, the State's measures on climate change (i) must be based on South Korea's share of efforts in light of the global efforts based on scientific facts and international standards, (ii) should not impose excessive burden to the future, and (iii) must be based on legal framework that ensures continuous reduction of greenhouse gas. In light of these standards, the Court ruled that Art. 8 Paragraph 1 of the Act has failed to meet these standards by not prescribing any targets or plans between the period 2031 - 2049, which inevitably results in postponing of reduction efforts. The Court also ruled that the provision violated the "principle of legislative reservation" stating that the the framework of the reduction pathway up to 2050 must be set by law, by the Legislature, considering its implications on various fundamental rights, and the fact that the future generation has limited opportunity to present its interest in the process. On the 2030 reduction target set by the Enforcement Decree, the Court ruled that it is unable to identify a single standard or criteria to determine the appropriate share of South Korea in the global efforts and therefore cannot conclude that the target is in violation of the State's obligation. However, the Court also stated that it does not mean the State is doing its best on climate mitigation. On the Carbon Neutrality Plan, the Court was divided. The majority, 5 justices, opined the Carbon Neutrality Plan is unconstitutional because the 40% reduction is based on "gross emission" of the base year 2018, and "net emission" of the target year 2030. Because the base year excludes carbon removal by LULUCF and the target year includes carbon removal by LULUCF, the majority opinion ruled that the actual reduction efforts of the plan does not meet the stated 40% and has violated the mandate of the Enforcement Decree. On the other hand, 4 justices dismissed the claim stating that because the language of the provision of the Act did not distinguish gross emission and net emission, such discrepancy would not amount to unconstitutionality. As the Constitutional Court Act requires super-majority (2/3) for decision of unconstitutionality, the claim on Carbon Neutrality Plan was dismissed.