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

Filed

South Korea

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An aim to achieve a quantifiable outcome within a given time-frame, set by an institution such as a national government.

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

A set of principles, processes, and practices that build economic and political power to shift from an extractive economy to a regenerative economy.

Justice is the ethical and political framework that addresses fairness, including issues of responsibility, rights, and structural inequity.

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

Fossil fuel is a generic term for non-renewable energy sources such as coal, fossil gas, and oil (including crude oil, and petroleum products), that can be used for electricity and heat generation. Fossil fuels are hydrocarbons formed from pressurised and heated organic material buried over millions of years.

Molecules in the atmosphere that play a key role in the greenhouse effect by trapping heat radiating from Earth’s surface.

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

In human systems, the process of adjustment to actual or expected climate change and its effects, in order to moderate harm, increase resilience or exploit beneficial opportunities. In natural systems, the process of adjustment to actual climate change and its effects; human intervention may facilitate adjustment to expected climate change and its effects.

The management and allocation of funds, assets and investments to meet various objectives

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

An integrated system of hazard monitoring, forecasting and prediction, that enables individuals, communities, governments, businesses and others to take timely action to reduce disaster risks in advance of hazardous events.

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

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

Conditions that enhance the feasibility of adaptation options. Enabling conditions include finance, technological innovation, strengthening policy instruments, institutional capacity, multi-level governance and changes in human behaviour and lifestyles.

Actions or measures to adapt freshwater systems to climate change.

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

Actions or measures to adapt freshwater, coastal and marine systems to climate change.

Hot temperature extremes are daily maximum temperatures  that were exceeded on average once in a decade or once in 50 years, and includes heatwaves.

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

Extreme weather refers to events where a weather variable exceeds (or falls below) a threshold. Meaning it is significantly different from the average or usual weather pattern.

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

People with different national or cultural traditions from the dominant population

Social and cultural groups that share collective ancestral ties to the lands and natural resources where they live, occupy or from which they have been displaced

People whose health, both mental and physical, makes them more vulnerable to the effects of climate change

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

woman and genders outside of the gender binary

This sector involves managing waste treatment, sanitation, pollution control and environmental cleanup.

This sector involves activities that impart knowledge and skills to individuals, including formal schooling, vocational training and educational support.

Activities of government agencies and institutions that provide public services, enforce laws and manage public resources.

This sector includes firms and individuals offering specialised expertise in fields such as law, accounting, consulting, science and engineering.

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

Activities that involve the cultivation of crops and raising of livestock for food, fibre, and other products essential for human life and industry.

This sector involves the distribution, treatment, and conservation of water resources.

Slow onset events evolve gradually from incremental changes over many years or from increased frequency or intensity of recurring events. As defined in the Cancun Adaptation Framework (2010), slow onset events include risks and impacts from rising temperatures, desertification, biodiversity loss, land and forest degradation, glacial retreat, ocean acidification, sea level rise, and salinization.

Heavy precipitation refers to any form of weather where substances fall from the sky, including rain, snow, sleet, or hail.

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

Target

Policy instrument

Risk

Impacted group

Just transition

Greenhouse gas

Economic sector

Adaptation/resilience