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

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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.

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

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Policy instruments are techniques or tools used by governing authorities to promote certain policies in order to achieve predetermined goals. Put simply, instruments are how a government tries to achieve its goals, with this taxonomy being focused on national policy instruments.

Risk is the potential for adverse consequences resulting from the dynamic interplay between (climate-related) hazards, exposure, and vulnerability of affected human or ecological systems.

Groups  of people who are adversely affected by climate change or the response to it

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Renewable energy means all forms of energy produced from renewable sources in a sustainable manner.

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Area of the economy in which actors engage in identical or related activities.

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Activities of businesses and institutions that provide financial services and products to individuals and organisations.

Actions to adapt human health, healthcare systems and well-being to climate change.

A commitment to balance GHG emissions with removal by a certain point in time, effectively reducing the net emissions to zero

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The release of heat-trapping gases, primarily from human activities such as burning fossil fuels, agriculture and industry.

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People who are less able to respond to the effects of climate change due to having limited financial or physical assets

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People who have left their homes, whether through force, voluntarily, or a mixture of both

A target to reduce the prevalence of a greenhouse gas over a specific time frame

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Social protection systems consist of policies that help people manage social risks in order to prevent poverty and maintain decent incomes and living standards

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Terrestrial means "of the earth" and relates to the risks to ecological system that includes all living organisms and their interactions within land-based environments, such as forests, grasslands, and deserts.

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Energy derived from biological compounds that are renewable due to their short life cycle within the carbon dioxide cycle.

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Climate change impacts our society by disrupting the natural, economic and social systems we depend on. Physical hazards and underlying vulnerabilities can lead to increased resource competition for food and water, which can heighten the risk of conflict.

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