Opinion of the National Human Rights Commission on the Constitutional Complaints on Constitutionality of Carbon Neutrality Act

In South Korea, four constitutional complaints have been filed challenging the constitutionality of the Framework Act on Carbon Neutrality and Green Growth for Coping with Climate Crisis (“Carbon Neutrality Act”). These complaints claimed that the Nationally Determined Contributions (“NDCs”) set by Article 8(1) of the Carbon Neutrality Act and Article 3(1) of its Enforcement Decree is insufficient to achieve the Paris Agreement climate goals and therefore fails to provide necessary protection of the plaintiffs’ constitutional rights. The National Human Rights Commission (“NHRC”), the independent body of the Korean Government on human rights matters, in consideration of the significance of these cases, decided to submit an opinion to the Constitutional Court on the human rights impact of climate change and on the issue of unconstitutionality of the disputed clauses. The NHRC submitted the following opinion to the Constitutional Court: "Article 8(1) of the Carbon Neutrality Act and Article 3(1) of the Enforcement Decree of the Carbon Neutrality Act are unconstitutional because they violate the state's duty to protect fundamental rights, the principle of non-blanket delegation, the principle of parliamentary reservation, and the principle of equality by failing to implement minimum protection measures for the freedoms and rights of current and future generations that are violated by the effects of climate change." The NHRC opined that legal prerequisites of constitutional complaints - the possibility of violation and present, own, and direct concern - were met. South Korea's carbon budget is expected to be exhausted before 2030, forcing future generations to reduce their GHG emissions drastically. Climate change affects freedom in all aspects of human life, a fundamental right that present and future generations must share. Shifting the burden unequally to future generations is discriminatory treatment without a rational basis and violates the constitutional principle of equality. The Constitution does not explicitly prescribe the state’s obligation to reduce GHG. However, constitutional interpretation can derive a state's obligation to protect and ensure the safety of its citizens from disasters and danger caused by climate change. The law only sets a lower limit of 35% reduction from the 2018 level by 2030, which falls far short of the internationally agreed targets and particularly fails to provide sufficient protection between 2031 and 2050. Therefore, the state has failed to provide minimum measures to protect the petitioners' fundamental rights. Article 8(1) of the Carbon Neutrality Act sets a lower limit of 35% reduction from 2018 level by 2030. Article 3(1) of its Enforcement Decree sets a reduction target of 40% from 2018 level by 2030, and both targets fall short of the global reduction pathway presented by the IPCC. This means that the law does not provide any meaningful standard for establishing an effective NDC. Further, the law not only fails to provide any guidance on how the reduction pathway should be drawn up to 2030, but also is completely silent on the reduction plan from 2031 to 2050. Thus, the law violated the principle of non-blanket delegation and the principle of parliamentary reservation.