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The Government is Called Upon to Implement Minimum Protection Measures Against Climate Crisis, A Necessity for the Protection of Freedoms and Rights of Current and Future Generations
– Opinion Submitted to the Constitution Court that Articles Related to ‘Nationally Determined Contributions (NDC)’ in the「Framework Act on Carbon Neutrality」and its Enforcement Decree Are Unconstitutional –
□ The National Human Rights Commission (Chairperson Song Doo-hwan, hereinafter referred to as “NHRCK”) has submitted to the Constitutional Court, on August 21st, 2023, the following opinion: Regarding the constitutional complaints pertaining to Article 8 (1), etc., of the 「Framework Act On Carbon Neutrality And Green Growth For Coping With Climate Crisis」 (hereinafter referred to as “Framework Act on Carbon Neutrality”) (Case numbers 2021Hun-Ma1264, 2022Hun-Ma854, 2020Hun-Ma389, and 2020Hun-Ma1516), it is the opinion of the NHRCK that the disputed clauses are unconstitutional.
○ Article 8 (1) of the 「Framework Act on Carbon Neutrality」 and Article 3 (1) of its Enforcement Decree fail to carry out minimum protection measures necessary for preventing the effects of climate change from infringing upon the freedoms and rights of current and future generations. Moreover, they are in violation of the 「Constitution of the Republic of Korea」 as not only do they infringe against the state’s obligation to protect fundamental rights, but they also violate the principle of non-blanket delegation, the principle of parliamentary reservation, and the principle of equality.
□ The core argument of the four preceding constitutional complaints asserts that the legislated national greenhouse gases (GHG) reduction commitments (Nationally Determined Contributions, hereinafter referred to as “NDC”) are insufficient. This deficiency not only impedes the successful realization of NDC objectives delineated in the 「Paris Agreement」, but they infringes upon Claimants’ fundamental rights.
□ Based on analyses conducted by the United Nations Environment Program concerning submitted NDCs, it is projected that the global average temperature will rise by approximately 3.2℃ by the end of the 21st century, even if all the submitting states’ NDC goals are fully realized. It is noteworthy that a persistent increase in global average temperatures has been documented, manifesting in more frequent heat waves, droughts, wildfires, cold snaps, substantial snowfall, and other climate anomalies, all of which are direct repercussions of global warming.
○ The principle of prohibition of insufficient protection is also in violation because it can be held that the State has failed to take minimum protection measures. Such measures would include setting up phased reduction goals for 2031-2050, aimed at safeguarding peoples’ fundamental rights against the effects of the climate crisis.
□ Review of the Principle of Non-blanket Delegation and the Principle of Parliamentary Reservation
○ The NDC goals are vital to reducing GHG emissions and therefore, vital to safeguarding people’s lives and safety against the effects of the climate crisis. A stricter level of lucidity and specificity must be observed when delegating to a decree order the details of such crucial a matter.
The existing NDC target of no less than 35 percent is far considerably inadequate when compared to the levels agreed upon internationally. In effect, this target is tantamount to not establishing any NDC goals at all. Additionally, the lack of segmented NDC objectives for the 2031-2050 timeframe indicates that the State is in violation of both the principles of non-blanket delegation and the principle of parliamentary reservation. It can be argued that the State neither sufficiently implemented the goals of the 「Paris Agreement」 nor employed exhaustive legislative efforts to safeguard the fundamental rights of its populace.
□ Therefore, the NHRCK has submitted to the Constitutional Court the opinion that Article 8 (1) of the 「Framework Act on Carbon Neutrality」 and Article 3 (1) of its Enforcement Decree fail to align with the state’s obligation to protect fundamental rights, violating the principle of non-blanket delegation, the principle of parliamentary reservation, and the principle of equality, and thus, is unconstitutional.
□ Scientific evidence pointing to climate change continues to accumulate. As the destructive impacts of this phenomenon become increasingly substantiated and pronounced, the NHRCK intends to maintain its scrutiny and evaluation of the Korean government’s progress in implementing the provisions of the 「Paris Agreement」 alongside its efforts to safeguard the fundamental rights of its citizens.