This week, the Constitutional Court of South Korea heard four climate litigation cases that had been consolidated into one. The four cases were filed in 2020, 2021, 2022, and 2023 respectively, all by different groups of plaintiffs. All cases claim that the government of South Korea is infringing on constitutionally protected fundamental rights by failing to adequately address the climate crisis.
Do-Hyun Kim et al. v. South Korea (2020)
In 2020, a group of 19 youths commenced legal action against the South Korean government (The National Assembly of Korea and the President). In their constitutional complaint, the group is alleging that South Korea’s policy and laws surrounding climate change are violating their fundamental rights, due to a lack of emissions reductions. This was a first-of-its-kind lawsuit in South Korea.
The 19 youth are all part of Youth4Climate Action, which is a Korean “climate movement organisation that creates meaningful changes to solve climate problems”. The motivation behind filing the climate lawsuit is South Korea’s continued failure to meet greenhouse gas reduction targets and to implement effective policies to curb emissions.
In Do-Hyun Kim et al. v. South Korea, plaintiffs allege that Article 42(1)1 of the Framework Act on Low Carbon, Green Growth (the Act) is unconstitutional. The Act was originally implemented in 2010, and aims to “promote the development of the national economy by […] utilising green technology and green industries which shall minimise the emission of greenhouse gases and the discharge of pollutants”. Specifically, Article 42(1)1 holds that the government of South Korea is under an obligation to set medium and long-term targets and seek measures for greenhouse gas emission reduction. However, the provision does not include any specific standard or scope to be used to set a greenhouse gas reduction target. Through a subsequent Enforcement Decree, the target was set at emission reductions for 2020 that would be 30/100 of the estimated greenhouse gas emissions for 2020.
According to the plaintiffs, this target is much too low. They also claim that the government’s failure to meet its 2020 emission reduction target is unconstitutional as it violates their fundamental rights.
The violated fundamental rights are described by plaintiffs in detail, and largely have an inequality element to them. The plaintiffs claim a violation of the younger generations' right to life and pursuit of happiness (Article 10 of the Constitution). They also claim violation of younger generations’ right to a healthy environment (Article 35(1) of the Constitution). Inequality if furthermore directly referenced as a violation in itself, by claiming that the adult generation has been able to enjoy a pleasant environment, whereas younger generations will face fatal climate change disasters (Article 11 of the Constitution). Other alleged violations include the state’s failure to prevent disasters, the state’s violation of a prohibition on delegation to lower-level regulators, failure to guarantee legal protection of environmental rights, and the state’s overall failure to guarantee that fundamental rights are protected.
Byung-In Kim et al. v South Korea (2021)
A large group of over 100 plaintiffs have issued a complaint against the South Korean government, arguing that Article 8(1) of the Carbon Neutrality Bill (“Carbon Neutrality and Green Growth Act”), as implemented on 24 September 2021, violates their constitutional rights. The aim of the Carbon Neutrality Bill is to reduce South Korea’s greenhouse gas emissions by at least 35% in 2030 (compared to 2018 levels), and to achieve full carbon neutrality by 2050.
The plaintiffs argue that Article 8(1) of the Carbon Neutrality Bill violates their constitutional rights. Article 8(1) specifies that the government is required to set a ‘mid- to long-term reduction target’ which should be 35% or higher by 2030, compared to 2018 emission levels. According to the plaintiffs, the target does not constitute an appropriate and efficient minimal measure to protect their constitutional rights. The plaintiffs are requesting a constitutional review of Article 8(1) of the Carbon Neutrality Bill.
As a result, the plaintiffs are alleging that the government of South Korea is failing to protect several of their fundamental rights. This includes the right to the pursuit of happiness (right to life), established in Article 10 of the South Korean Constitution. It is also claimed that there is a violation of their Article 11 right to equality. Other infringements include a violation of the right of property (Article 23), the state obligation to prevent disasters (Article 34(6)), the right to a healthy and pleasant environment (Article 35(1)), and an overall failure of the Government to protect fundamental rights.
Woodpecker v South Korea (2022)
Nicknamed, the ‘baby climate litigation’ case, 62 babies and young children are the plaintiffs. In their complaint, the plaintiffs argue that Article 3(1) of the Enforcement Decree of the Carbon Neutrality Bill, as implemented on 24 September 2021, violates their constitutional rights.
The Enforcement Decree of the Carbon Neutrality Bill includes provisions on how the Carbon Neutrality Bill should be enforced. Following amendment of the Carbon Neutrality Bill, Article 3(1) of the Enforcement Decree now contains the ‘mid- to long-term reduction target’ requirement that was also at issue in the above case. However, here it was specified that the reduction target was to be set at 40% in 2030 (compared to 2018 levels). As per the plaintiffs’ argument, this target is insufficient to protect their lives and safety from climate disasters and is also not in line with the Paris Agreement.
The plaintiffs in Woodpecker v South Korea cited the same violations of their constitutional rights as were claimed in Byung-In Kim et al. v South Korea. The plaintiffs are requesting a constitutional review of the target set under the Enforcement Decree.
Min-A Park v South Korea (2023)
This is most recent case that is part of the consolidated hearing before the Constitutional Court. Brought by 51 Koreans, it is alleged that the government of South Korea is failing to provide protection of fundamental rights as required under its Constitution. This was also a violation cited in the above cases.
This case is slightly different from the others, as the alleged failure stems from South Korea’s 1st Carbon Neutrality Plan, which is its emission reduction plan to implement its 2030 targets. In Min-A Park v South Korea, it is not the 40% target itself that is at stake, but rather the likely failure of the Carbon Neutrality Plan to successfully attain a 40% reduction in greenhouse gas emissions in 2030 (compared to 2018 levels). The plaintiffs estimate that if implemented successfully, the Carbon Neutrality Plan would achieve a 29.6% emission reduction. The fundamental rights that are violated are those included in the above cases.
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