Woodpecker et. al., v. South Korea

Date of Application:	Thu, 16 Jun 2022
Date of Decision:	Thu, 29 Aug 2024
Decision Making Body:	South Korean Constitutional Court
Law Applied:	Constitution of South Korea Enforcement Decree of the Carbon Neutrality Act, South Korea Paris Agreement
Keywords:	NDC, Future generations

Woodpecker et. al., v. South Korea 

2022Hunma864, Sejong Youn (Plan 1.5) 

At Issue: Whether the South Korean NDC provides constitutionally required protection of the fundamental rights of the plaintiffs from the threat of climate change. 

Summary: This is a constitutional claim against the South Korean Government for failing to provide constitutionally required protection of the fundamental rights of the plaintiffs from the threat of climate change by setting the NDC at 40% reduction from 2018 levels in the Art. 3 para. 1 of the Enforcement Decree of the Carbon Neutrality Act. 
The claimed rights include right to life, right to pursue happiness, right to general freedom, right to property, right to healthy environment, State’s obligation to provide its people from disasters, and State’s obligation to protect the fundamental rights of the people. 
The 62 plaintiffs are children under age of five, including one fetus (named “Woodpecker”, who was later born after the filing of the case). The plaintiffs argue the current NDC (i) depletes South Korea’s per-capita-based carbon budget for 1.5 degrees and 1.7 degrees before 2030, (ii) falls short of the global reduction pathway presented in the IPCC 1.5 Special Report, and (iii) contributes to the Emission Gap pointed out by the UNEP. The plaintiffs argue that the current NDC will result in disastrous level of climate change leading to violation of their fundamental rights. 
On 19 Feb 2024, the Court merged the case with two other constitutional cases challenging the same NDC, and one case challenging the implementation plan of the NDC, the 1st Carbon Neutrality Basic Plan. The Court also set a public hearing for the case on 23 April 2024. 

Update provided by Global Strategic Communications Council (GSCC) press release: 

August 29, 2024, Seoul — In a landmark decision, South Korea’s Constitutional Court has declared a provision of the country’s climate law unconstitutional, marking the first partial victory in climate litigation in Asia. This decision represents a significant step forward in recognizing the need for more robust climate protection measures.  

“The decision we face today is not just a victory for the plaintiffs who filed the lawsuit; it is an achievement for all those who have been excluded from the national climate response process while confronting the climate crisis,” stated the joint statement by the plaintiff groups released after the decision. 

Woodpecker et al. v. South Korea - Climate Change Litigation (climatecasechart.com) 

 

Summary provided courtesy of the Sabin Centre 

Court documents: 

Complaint filed 2022 

Judgment 29 Aug 2024 (not available yet) 

Related CRC articles

• 2. Right to non-discrimination (CRC Article 2)
• 6. Right to life, survival and development (CRC Article 6)
• 19. Right to protection from violence, abuse and neglect (CRC Article 19)
• 24. Right to health, healthcare, and a healthy environment (CRC Article 24)
• 27. Right to an adequate standard of living (CRC Article 27)
• 31. Right to rest, play, leisure and participate in cultural activities (CRC Article 31)

The claimed rights include right to life, right to pursue happiness, right to general freedom, right to property, right to healthy environment, State’s obligation to protect its people from disasters, and State’s obligation to protect the fundamental rights of the people. 

The complainants say that the previous generations have used up the carbon budget and they have none left.  

Involvement of children in hearings

• Written presentation

No additional information available atm.  

Intergenerational rights

“Similarly, given the finite carbon budget for climate protection, the distribution of the burden of GHG emissions reductions would be unevenly distributed over time, i.e., if the current generation is allocated a disproportionate share of the carbon budget, thereby placing a severe burden on future generations, it would have the effect of preemptively violating the freedoms of future generations. States will have to find a balance between their obligation to protect their citizens from the effects of climate change and their obligation to guarantee their citizens' fundamental rights, and if they disproportionately shift the burden of mitigation to future generations in the process of allocating carbon budgets, this will violate the principle of proportionality and result in a violation of the right to liberty of future generations. Similarly, given the finite carbon budget for climate protection, the distribution of the burden of GHG emissions reductions would be unevenly distributed over time, i.e., if the current generation is allocated a disproportionate share of the carbon budget, thereby placing a severe burden on future generations, it would have the effect of preemptively violating the freedoms of future generations. States will have to find a balance between their obligation to protect their citizens from the effects of climate change and their obligation to guarantee their citizens' fundamental rights, and if they disproportionately shift the burden of mitigation to future generations in the process of allocating carbon budgets, this will violate the principle of proportionality and result in a violation of the right to liberty of future generations.” 

Future generations

“Similarly, given the finite carbon budget for climate protection, the distribution of the burden of GHG emissions reductions would be unevenly distributed over time, i.e., if the current generation is allocated a disproportionate share of the carbon budget, thereby placing a severe burden on future generations, it would have the effect of preemptively violating the freedoms of future generations. States will have to find a balance between their obligation to protect their citizens from the effects of climate change and their obligation to guarantee their citizens' fundamental rights, and if they disproportionately shift the burden of mitigation to future generations in the process of allocating carbon budgets, this will violate the principle of proportionality and result in a violation of the right to liberty of future generations.” 

Outcome of decision for the applicants

• Relief sought by applicants PARTIALLY granted

The Constitutional Court unanimously ruled that Article 8, Paragraph 1 of the Framework Act on Carbon Neutrality and Green Growth is not in conformity with the Constitution and ordered the National Assembly to amend the law by February 28, 2026. However, the court dismissed other claims challenging the Carbon Neutrality Basic Plan and the enforcement decrees of the Framework Act on Carbon Neutrality and Green Growth. 

Did outcome of decision develop the law

• Yes

This judgment is the first partial victory in climate litigation in Asia. It is the first case globally where a foetus is cited as an applicant and the case is successful. 

Involvement of NGO/law firm in application

Attorney: Sejong Yoon 

Youth4ClimateAction 

The court’s ruling brings to a close four years of legal battles. The first lawsuit was initiated by Youth4ClimateAction in March 2020, arguing that the government’s insufficient greenhouse gas reduction targets violated the fundamental rights of citizens, particularly those of future generations. The case was later combined with three additional lawsuits filed by civil society groups, involving a total of 255 plaintiffs. 

Available information on how children got involved in the litigation

[Statement] Asia's first climate win for future generations: South Korea's lack of climate response "unconstitutional" (forourclimate.org)

Age range of litigants

• 0-7

Number of children or youth involved

62