Kim Sung-woo is the head of Environment & Energy Research Institute at Kim & Chang.
Constitutional Court to affirm lack of climate change legal safeguards in Asia
Kim Sung-woo
Chuseok holidays in Korea have traditionally been among the most cherished celebrations in the country. After the scorching summer in August, the cool, breezy weather during this September holiday season would typically herald the arrival of fall and signal a farewell (for now) to air conditioners. However, this year's Chuseok was not as “cool” as in previous years. Air conditioning became essential for preparing family feasts amid a heatwave that pushed temperatures well above 30 degrees Celsius. Visiting ancestral graves, often situated in mountainous areas, as part of this long-standing tradition must have been particularly challenging. According to the Korea Meteorological Administration (KMA), the highest daytime temperatures in September 2024 averaged close to 30 degrees Celsius, marking a record high for fall in 118 years.
What’s more frustrating is that this past Chuseok may be the coolest one compared to those in the future. While climate change affects younger generations far more than older generations, decision-makers — who are primarily from older generations — are not adequately addressing these issues. In this context, on Aug. 29, 2024, the Korean Constitutional Court issued a landmark decision, the first of its kind in Asia, regarding a constitutional petition asserting that existing laws are insufficient to protect the fundamental rights of younger generations against the escalating impacts of climate change, thus rendering them unconstitutional. The court granted the petition in part.
Specifically, more than 200 claimants, including young members of environmental advocacy groups and even children aged five and under, initiated this move to bring the issue to the court starting in March 2020. After 4.5 years of deliberation, the court ruled that certain provisions of the Framework Act on Carbon Neutrality and Green Growth for Responding to Climate Crisis (the Framework Act on Carbon Neutrality) were not in conformity with the Constitution. The court found that these provisions do not provide adequate protection against the infringement of the right to a clean environment (environmental rights) and the right to pursue happiness, both of which are protected by the Constitution.
Notably, the court unanimously ruled that Article 8, Paragraph 1 of the Framework Act on Carbon Neutrality was unconstitutional because it violates the principle of minimum protection. This principle ensures that the government implements at least appropriate and effective minimum protective measures to safeguard the fundamental rights of its citizens, as well as the principle of statutory reservation, which stipulates that every government action must be grounded in law. In reaching this decision, the court noted that Article 8, Paragraph 1 merely requires a reduction of emissions by more than 30 percent compared to 2018 levels by 2020, with the specific percentage target to be determined by a relevant presidential decree. Additionally, the provision does not address reduction targets after 2031. The court reasoned that the lack of specified reduction targets for the 19-year period from 2031 to 2049 essentially places a significant burden on future generations in achieving the carbon neutrality target by 2050. In contrast, the court found some reduction targets acceptable, ruling that the 40 percent reduction target by 2030, along with detailed annual and industry-specific reduction targets, did not violate the Constitution.
The court’s decision is significant in several ways. It confirmed that the right to a clean environment is one of the fundamental rights that cannot be infringed upon by government actions, such as statutes and policies, and is entitled to protection under the Constitution. The ruling also provided a detailed application of the constitutional principles of minimum protection and statutory reservation in relation to environmental rights. Additionally, the court became the first in Korea — and possibly in all of Asia — to deem a nation's greenhouse gas (GHG) reduction target unconstitutional. This is particularly noteworthy given that the government previously exercised broad discretion in setting GHG reduction targets.
The court’s decision mandates that the Korean government establish specific GHG reduction targets for the period after 2031 and incorporate these targets into law by Feb. 28, 2026. The government must also ensure that any future climate solutions developed during this timeframe remain consistent with the court’s ruling, primarily to avoid placing excessive burdens on future generations, as highlighted in the decision. For instance, Korea is required to submit its 2035 reduction target to the U.N. by 2025 under the Paris Agreement. Furthermore, the Korean government is likely to face an increasing number of demands and lawsuits from environmental activist groups and various stakeholders who support the court’s decision.
According to the 2023 Asia Regional Climate Status Report released by the World Meteorological Organization (WMO) in April, Asia experienced more damage from climate and water-related disasters last year than any other continent. The WMO noted that temperatures in Asia have risen faster than the global average from 1961 to 2023. Therefore, it is perhaps not surprising that Asia was one of the first regions to see a court decision demanding more from the government to protect future generations from the increasingly disastrous impacts of climate change. It remains to be seen how this ruling will influence climate solutions both within Korea and beyond.
Kim Sung-woo, head of the Environment & Energy Research Institute at Kim & Chang, is a member of the Presidential Commission on Carbon Neutrality and Green Growth.