Category: South Korea

Categories
Adaptation Disability and health-related inequality Domestic court Elderly Emissions reductions/mitigation Human dignity Paris Agreement Right to health Right to housing Right to life Right to subsistence/food South Korea Vulnerability

Senior Citizens v. Korea

Summary:
In June 2024, a group of 123 older South Korean citizens brought suit against their government before South Korea’s National Human Rights Commission, arguing that the government’s greenhouse gas mitigation plans had violated their human dignity and their right to life. Their case concerns both mitigation and adaptation action. In terms of mitigation, they sought enhancement of the country’s 2030 national greenhouse gas reduction targets and an ambitious next nationally determined contribution (NDC) under the Paris Agreement. In terms of adaptation, they sought a risk assessment of impacts on human rights, including the rights to life, food, health, and housing, and emphasized the State’s fundamental obligation to protect these rights. This assessment should entail, they argued, “a factual survey and epidemiological investigation into the risks the climate crisis poses to the human rights of vulnerable social groups, including older persons”, and lead to more ambitious adaptation measures.

Petition:
The full text of the petition as filed can be found below.

Senior_Citizens_v_Korea_petitionDownload

Status of case:
Pending before South Korea’s National Human Rights Commission

Last updated:
29 November 2024

Categories
Domestic court Fossil fuel extraction Indigenous peoples rights Indigenous peoples' rights Participation rights Right to a healthy environment Right to health South Korea

Kang et al. v KSURE and KEXIM

Summary:
In March 2022, four individuals, including one Korean national and three Australian nationals from the indigenous community of the Tiwi Islands, filed a complaint before the Seoul District Court. The complaint specifically targets two public Korean debtor corporations—Korea Trade Insurance Corporation and Korea Export Import Bank—by challenging their financial support for the Barossa gas field development project. This fossil gas reserve initiative, led by SK E&S Co., Ltd. (a South Korean conglomerate), Santos Ltd. (an Australian oil and gas corporation), and Jera Co. (Japan’s largest power company), is located off the coast of Australia’s Northern Territory, near the Tiwi Islands. The applicants oppose the project, highlighting potential irreversible environmental, legal, and financial risks. The plaintiffs argue that endorsing the Barossa Gas Project would violate their constitutional rights to health and a healthy living environment. They are seeking a preliminary injunction to prevent the defendants from supporting the project.

Claim:
The claim underscores the environmental risks associated with the Barossa Gas Project, projecting an annual emission of 15Mt of CO2 and potential harm to the marine ecosystem, including endangered sea turtles, and indigenous communities. Legal risks involve insufficient consultation with indigenous communities and a potential dispute over control of the gas field given its location within the Indonesian exclusive economic zone (EEZ). Financial risks are tied to the project’s inconsistency with climate goals, an anticipated decline in fossil gas demand, and underdeveloped carbon capture and storage technologies. The plaintiffs base their claim on constitutional environmental rights, Tiwi Islanders’ property rights, and the South Korean National Finance Act. They emphasise the deficiencies in the consultation and assessment processes for the proposed Barossa pipeline in a habitat protection zone near the Tiwi Islands. The central issue revolves around whether the Tiwi Islanders were adequately consulted and if environmental and climate impacts were sufficiently assessed for the Barossa project.

Links:
The complaint is accessible for download below (in the original Korean).

20220323_16485_petitionDownload

Status of the case:
Pending.

Suggested citation:
Kang et al. v. KSURE and KEXIM (South Korea, Seoul District Court), pending case filed on 23 March 2022.

Last updated:
12 December 2023.

Categories
Biodiversity Domestic court Just transition litigation Right to a healthy environment Right to assembly and association Right to freedom of expression Right to health Right to property South Korea

Korean Biomass Plaintiffs v. South Korea

Summary:

On September 28, 2020, a group of solar developers in Seoul, South Korea filed a complaint against the South Korean government, claiming that the government’s subsidies for biomass generation were unconstitutional. The plaintiffs include various stakeholders, such as solar cooperatives, cooperative members, residents near planned biomass facilities, ordinary citizens of South Korea, and even a Canadian citizen.

The central argument in their complaint revolves around the idea that the government’s support for biomass generation, classified as ‘renewable energy’ under South Korean legislation, qualifies for renewable energy certificates (RECs) and associated subsidies, which they argue infringes upon the environmental rights of the citizens. They assert that these subsidies lead to increased air pollution and climate-related damage.

The plaintiffs also argue that these policies negatively affect the property rights of renewable project owners. The subsidies allocated to biomass generation reduce the available support for solar and wind energy, which, in turn, impacts the expected profits for those involved in renewable energy projects.

The key issue at the heart of this case is whether South Korea’s subsidies for biomass generation violate the constitutional environmental rights of solar owners and residents living near these facilities.

Claim:

The claim made by the solar developers and other stakeholders in Seoul, South Korea, is that the government’s subsidies for biomass generation are unconstitutional and that these subsidies infringe upon the environmental rights of citizens. They argue that these subsidies contribute to increased air pollution and climate-related harm, affecting the well-being of the populace. Furthermore, they claim that these policies encroach upon the property rights of renewable project owners by reducing support for solar and wind energy, impacting the expected profits of those engaged in renewable energy projects. The core contention is that these subsidies for biomass generation violate the constitutional environmental rights of solar owners and nearby residents.

Decision:

The case is currently pending before the Constitutional Court of the Republic of Korea.

Links:

The case documents are accessible via Climate Case Chart: Click here.

Suggested citation:

Korean Biomass Plaintiffs v. South Korea (28 September 2020, Constitutional Court).

Last updated:

20 October 2023.

Categories
Domestic court Emissions reductions/mitigation Human dignity Paris Agreement Right to a healthy environment Right to life South Korea

Climate Crisis Emergency Action v. South Korea (Byung-In Kim et al. v. South Korea)

Summary:
In October 2021, the South Korean NGO “Climate Crisis Emergency Action” filed a constitutional complaint on behalf of 130 parties concerning the country’s greenhouse gas emissions reductions targets as set out in the South Korean Basic Act on Carbon Neutrality and Green Growth (the Carbon Growth Act), which was promulgated on 24 September 2021. On 29 August 2024, the Constitutional Court of South Korea issued its judgment in this and three other mitigation cases.

In a draft of the application form available online (in Korean), the applicant organization noted the Korean National Assembly’s statement in support of the 1.5 degree emissions reductions target under the Paris Agreement, and the insufficiency of the domestic mitigation action to meet that target. It submitted that the domestic target is “an arbitrary and irresponsible reduction target set in defiance of the standards agreed upon by the scientific community and the international community.” Noting the State’s “duty to protect the basic rights of its citizens” (in Article 10 of the South Korean Constitution), it submitted that fundamental rights are already being violated and will continue to be violated, and that higher legislative ambition is required.

Claims made (as per the version of the application made available here):
The plaintiffs in this case contested Article 8(1) of the Carbon Growth Act, which stipulates that “the government shall reduce national greenhouse gas emissions by a rate prescribed by Presidential Decree by at least 35 percent of the national greenhouse gas emissions in 2018 by 2030 as the mid- to long-term national greenhouse gas reduction target.” The plaintiffs argued that this goal was arbitrary and irresponsible and that ot ignored climate scientific findings and the standards agreed upon by the international community, and that it is not based on a ‘carbon budget (total greenhouse gas emissions)’ necessary to prevent the climate crisis. Furthermore, they argued that the Carbon Growth Act is based on ‘groundless optimism’ about technology and market-based ‘green growth’ and that it favors corporate interests over constitutional rights protection.

In concreto, the plaintiffs invoked the right to pursue human dignity, value and happiness in Article 10 of the South Korean Constitution, along with the right to live a life worthy of humanity in Article 34, and the right to live in a healthy and pleasant environment in Article 35. They also invoked Article 36 of the Constitution concerning the protection of public health and disaster prevention. Citing scientific evidence concerning increasing natural disasters, food and water shortages, security crises and social disasters, they submitted that “the obligation to protect fundamental rights from climate change has been fulfilled only when measures corresponding to the minimum level agreed upon in the international community are taken.”

The applicants explicitly linked their case to the German Neubauer judgment concerning the impact of unambitious climate policy on the rights of future generations, as well as referencing the Dutch Urgenda judgment.

Relevant interim developments:

On 12 June 2023, it was announced that the National Human Rights Commission of Korea had decided to submit an opinion to South Korea’s Constitutional Court to oppose the country’s Carbon Neutrality Act (2021), which it considered to be unconstitutional and in violation of the fundamental rights of future generations because it sets out a greenhouse gas emissions reductions target that was too low. The Act sets out a 40% emissions reductions target by 2030 as compared to 2018 levels. This, the Commission found, did not respect the constitutional principle of equality, because it passed the burden of greenhouse gas emissions on to future generations.

Consolidation with three other cases:
The South Korean Constitutional Court decided to consolidate its first four climate cases (Do-Hyun Kim et al. v. South Korea, Woodpecker et al. v. South Korea (Baby Climate Litigation), Climate Crisis Emergency Action v. South Korea (a.k.a. Byung-In Kim et al. v. South Korea) (the present case) and Min-A Park v. South Korea). Public hearings in the cases were held on 23 April 2024 and 21 May 2024.

These cases all alleged that the government’s inadequate greenhouse gas reduction targets violated citizens’ fundamental rights, particularly those of future generations. Together, the four cases comprised over 250 plaintiffs, including civil society, youth and children. The Constitutional Court issued a joint ruling in these cases on 29 August 2024.

Judgment of the constitutional court:
On 29 August 2024, the South Korean Constitutional Court found a violation of constitutional rights in this case and three related cases. In an unanimous ruling, hailed as “the first decision of its kind in Asia“, the court found that the government’s response to the climate crisis was inadequate and threatened constitutional rights, noting that the country lacked legally binding long-term emissions reductions targets for the post-2031 period, which violated the constitutional rights of future generations by shifting an excessive reductions burden to the future. The court gave government and legislature 18 months (until 28 February 2026) to introduce the relevant targets.

In particular, the Court ruled that Article 8(1) of the South Korean Carbon Neutrality Basic Act was unconstitutional. Previously, the government had pledged a 40% reduction of its GHG emissions by 2030 compared to 2018 levels, but had failed to set any targets since. The Constitutional Court held that this “does not have the minimum character necessary as a protective measure corresponding to the dangerous situation of the climate crisis”, citing the “principle of non-underprotection”, which means that the State must take appropriate measures to effectively protect the constitutional rights of its citizens.

Simultaneously, the Court held that the government’s target for 2030 did not infringe constitutional rights.

Last updated:
29 August 2024.

Categories
Children and young people Domestic court Emissions reductions/mitigation Imminent risk Non-discrimination Paris Agreement Right to a healthy environment Right to life South Korea

Do-Hyun Kim et al. v. South Korea

Summary:
On 13 March 2020, nineteen teenagers from across South Korea initiated proceedings against their government (the National Assembly of Korea and the President of Korea), arguing that insufficient emissions reductions efforts were violating their constitutional rights. They alleged that Korean climate legislation (originally Article 42(1)1 of the Framework Act on Low Carbon, Green Growth, and later also Article 8(1) of the domestic Carbon Neutrality Act (the “Carbon Neutrality and Green Growth Act” of 2021) was not compatible with their constitutional rights, bringing their case against the National Assembly for enacting the law and the government for implementing an administrative plan based on that law. Their constitutional complaint was combined with three other mitigation cases and decided by the Constitutional Court of the Republic of Korea on 29 August 2024.

The applicants in this case are part of the Korean Youth 4 Climate Action Group, which has led the Korean ‘School Strike for Climate’ movement. They argued that, by not taking action to prevent the threats posed by climate change, the government had violated the right of younger generations to life and the pursuit of happiness (Article 10 of the Constitution), which they argue also enshrines the right to resist against human extinction, along with the right to live in a healthy and pleasant environment (Article 35(1) of the Constitution). They also contested inter-generational inequalities under the constitutional prohibition of discrimination (Article 11 of the Constitution) and invoked the duty of the State to prevent environmental disasters (Article 34(e) of the Constitution). In doing so, the applicants invoked the fatal risk posed by climate change and the irrevocable damage to be suffered by younger generations. As a major emitter of greenhouse gas emissions, they argued, Korea has an obligation to protect its citizens from the effects of climate change by taking stronger emissions reductions action.

Relevant interim developments:
On 30 December 2022, the Korean National Human Rights Commission issued an official statement to the President of Korea regarding climate change and human rights. Citing IPCC reports, UN findings, other instances of climate litigation (such as Urgenda and Neubauer) and the existence of different vulnerabilities, it found that “[a]s the climate crisis has far-reaching impacts on multiple human rights, including the rights to life, food, health and housing, the government should regard protecting and promoting the rights of everyone in the midst of climate crisis as its fundamental obligation and reform related laws and systems to address the climate crisis from a human rights perspective.”

On 12 June 2023, it was announced that the National Human Rights Commission of Korea had decided to submit an opinion to South Korea’s Constitutional Court to oppose the country’s Carbon Neutrality Act (2021), which it considered to be unconstitutional and in violation of the constitutional rights of future generations because it sets out a greenhouse gas emissions reductions target that was too low. The Act sets out a 40% emissions reductions target by 2030 as compared to 2018 levels. This, the Commission found, did not respect the constitutional principle of equality, because it passed the burden of greenhouse gas emissions on to future generations.

Timeline of the case (by Youth 4 Climate Action Korea):

  • 13 March 2020: Youth 4 Climate Action files a constitutional petition
  • 25 March 2020: Notice of referral from the Constitutional Court
  • 28 September 2020: Submission of supplementary opinion on constitutional petition (1)
  • 29 October 2020: Defendants submit presidential opinion
  • 26 January 2021: Submission of supplementary opinion (2)
  • 15 April 2021: Submission of supplementary opinion (3)
  • 23 July 2021: Submission of supplementary opinion (4)
  • 23 September 2021: Submission of supplementary opinion (5) on constitutional petition
  • 13 March 2022: Additional constitutional petition filed against the Carbon Neutrality Basic Act
  • 8 June 2022: Additional constitutional petition filed against the Enforcement Decree of the Carbon Neutrality Basic Act
  • 31 May 2023: Submission of supplementary opinion (6)
  • 22 August 2023: National Human Rights Commission submits opinion to Constitutional Court on ‘Unconstitutionality of Carbon Neutrality Basic Act’
  • 28 December 2023: Defendant submits presidential opinion to Constitutional Court
  • 15 March 15, 2024: Brief submission
  • 29 March 2024: Defendant submits a witness statement (Ahn Young-hwan) to the Constitutional Court
  • 29 March 2024: Defendant submits a witness statement (Yoo Yeon-cheol) to the Constitutional Court
  • 1 April 2024: Submission of the reference opinion (Jo Cheon-ho)
  • 1 April 2024: Submission of the reference opinion (Park Deok-young)
  • 23 April 2024: First public hearing
  • 13 May 2024: Submission of supplementary brief
  • 14 May 2024: Ministry of Environment, Office for Government Policy Coordination submit opinion paper
  • 21 May 2024: Second public hearing, final statement by the plaintiff
  • 29 August 2024: Judgment of Constitutional Court

Consolidation with three other cases:
The South Korean Constitutional Court decided to consolidate its first four climate cases (Do-Hyun Kim et al. v. South Korea (the present case), Woodpecker et al. v. South Korea (Baby Climate Litigation), Climate Crisis Emergency Action v. South Korea (a.k.a. Byung-In Kim et al. v. South Korea) and Min-A Park v. South Korea. Public hearings in the cases were held on 23 April 2024 and 21 May 2024.

These cases all alleged that the government’s inadequate greenhouse gas reduction targets violated citizens’ fundamental rights, particularly those of future generations. Together, the four cases comprised over 250 plaintiffs, including civil society, youth and children. The Constitutional Court issued a joint ruling in these cases on 29 August 2024.

Judgment of the constitutional court:
On 29 August 2024, the South Korean constitutional court ruled. It found a violation of constitutional rights in this case and three related cases. In an unanimous ruling, hailed as “the first decision of its kind in Asia“, the court found that the government’s response to the climate crisis was inadequate and threatened constitutional rights, noting that the country lacked legally binding long-term emissions reductions targets for the post-2031 period, which violated the constitutional rights of future generations by shifting an excessive reductions burden to the future. The court gave government and legislature 18 months (until 28 February 2026) to introduce the relevant targets.

In particular, the Court ruled that Article 8(1) of the South Korean Carbon Neutrality Basic Act was unconstitutional. Previously, the government had pledged a 40% reduction of its GHG emissions by 2030 compared to 2018 levels, but had failed to set any targets since. The Constitutional Court held that this “does not have the minimum character necessary as a protective measure corresponding to the dangerous situation of the climate crisis”, citing the “principle of non-underprotection”, which means that the State must take appropriate measures to effectively protect the constitutional rights of its citizens.

Simultaneously, the Court held that the government’s target for 2030 did not infringe constitutional rights.

Status of the case:
Decided. On 29 August 2024, the South Korean constitutional court found a violation of the constitutional rights of future generations in this case.

More information on the case:
For a press report on the case, see here.

On the National Human Rights Commission of Korea’s intervention, see this article in the Korea Herald.

The submissions in the case, including an unofficial English translation of the complaint prepared by the applicants’ counsel, are available via ClimateCaseChart.

For a summary of the constitutional court’s ruling, see here.

Full text of the judgment (Korean):

헌법재판소 – 최근주요결정Download

Suggested citation:

Constitutional Court of South Korea, Do-Hyun Kim and 18 others v. South Korea, judgment of 29 August 2024.

Last updated:
29 August 2024.

Categories
Children and young people Domestic court Emissions reductions/mitigation Non-discrimination Paris Agreement Right to a healthy environment Right to life Right to property South Korea

Woodpecker et al. v. South Korea (‘Baby Climate Litigation’)

Summary:
In June 2022, a climate case was filed in South Korea by sixty-two babies and children under the age of 11, including a 20-week-old fetus nicknamed “Woodpecker”, who was born after the proceedings were launched. The claimants submitted that the State was violating the rights of future generations by failing to reduce its greenhouse gas emissions. At the time of filing, this was the fourth climate case challenging the constitutionality of the Korean climate policy, as contained in the country’s 2021 Carbon Neutrality Act (2021). In this case, the claimants argue that the mitigation measures set out in this Act (envisioning a 40% reduction of greenhouse gas emissions by 2030 as compared with 2018 levels) violates their constitutional rights to life, equality, property, and to live in a healthy and pleasant environment. To do so, they extensively discuss IPCC reports and successful domestic climate litigation in other jurisdictions (particularly the Urgenda and Neubauer judgments).

More specifically, the plaintiffs contested Article 3(1) of the 2022 Enforcement Decree of the 2021 domestic Carbon Neutrality Act, arguing that this provision was unconstitutional because it violated:

  • their right to life, pursuit of happiness and general freedom of action (Article 10 of the South Korean Constitution, ‘Guarantee of Human Dignity and Fundamental Rights’);
  • their right to equality (Article 11 of the Constitution);
  • their right to property (Article 23 of the Constitution);
  • thir right to live in a healthy and pleasant environment (Article 35 of the Constitution); and
  • the state’s obligation to prevent disasters and protect the people from the risk of environmental disasters (Article 34(6) and Article 35(2) of the Constitution).

According to the Guardian, this was the first climate case in which a foetus was listed as a claimant. Together, the four cases reportedly represent the first findings of their kind in Asia (i.e. the first time that a court has find that inadequate mitigation action violates fundamental rights).

Relevant developments:
On 12 June 2023, it was announced that the National Human Rights Commission of Korea had decided to submit an opinion to South Korea’s Constitutional Court to oppose the country’s Carbon Neutrality Act (2021), which it considered to be unconstitutional and in violation of the fundamental rights of future generations because it sets out a greenhouse gas emissions reductions target that was too low. The Act sets out a 40% emissions reductions target by 2030 as compared to 2018 levels. This, the Commission found, did not respect the constitutional principle of equality, because it passed the burden of greenhouse gas emissions on to future generations.

Consolidation with three other cases:
The South Korean Constitutional Court decided to consolidate its first four climate cases (Do-Hyun Kim et al. v. South Korea, Woodpecker et al. v. South Korea (Baby Climate Litigation) (the present case), Climate Crisis Emergency Action v. South Korea (a.k.a. Byung-In Kim et al. v. South Korea) and Min-A Park v. South Korea). Public hearings in the cases were held on 23 April 2024 and 21 May 2024.

These cases all alleged that the government’s inadequate greenhouse gas reduction targets violated citizens’ fundamental rights, particularly those of future generations. Together, the four cases comprised over 250 plaintiffs, including civil society, youth and children. The Constitutional Court issued a joint ruling in these cases on 29 August 2024.

Judgment of the constitutional court:
On 29 August 2024, the South Korean Constitutional Court found a violation of constitutional rights in this case and three related cases. In an unanimous ruling, hailed as “the first decision of its kind in Asia“, the court found that the government’s response to the climate crisis was inadequate and threatened constitutional rights, noting that the country lacked legally binding long-term emissions reductions targets for the post-2031 period, which violated the constitutional rights of future generations by shifting an excessive reductions burden to the future. The court gave government and legislature 18 months (until 28 February 2026) to introduce the relevant targets.

In particular, the Court ruled that Article 8(1) of the South Korean Carbon Neutrality Basic Act was unconstitutional. Previously, the government had pledged a 40% reduction of its GHG emissions by 2030 compared to 2018 levels, but had failed to set any targets since. The Constitutional Court held that this “does not have the minimum character necessary as a protective measure corresponding to the dangerous situation of the climate crisis”, citing the “principle of non-underprotection”, which means that the State must take appropriate measures to effectively protect the constitutional rights of its citizens.

Simultaneously, the Court held that the government’s target for 2030 did not infringe constitutional rights.

See also:
Do-Hyun Kim et al. v. South Korea.

Last updated:
29 August 2024.