気候危機・憲法上の権利・韓国気候決定

Unofficial AI-generated summary based on the public title and abstract. Not an official translation.

🔬研究者:憲法上の環境権と気候訴訟の比較研究に関心のある研究者にとって、権利構成と審査基準の新たな分析枠組みを提供する。

🏢実務担当者:企業の法務・サステナビリティ担当者にとって、気候関連の法的リスクと将来の規制動向を理解する一助となる。

🏛政策担当者:気候政策の立案者にとって、憲法上の権利と気候目標の整合性を検討する際の比較法的視点を提供する。

Since the Paris Agreement, the sharp global increase in climate litigation has been accompanied by what has been called a “rights turn”—the framing of such claims in terms of constitutional rights or human rights—and this tendency is especially pronounced in jurisdictions whose constitutions contain no climate-related fundamental right. Article 35(1) of the Constitution of the Republic of Korea, by contrast, expressly guarantees an environmental right as a fundamental right. Yet in its 2024 decision on the Framework Act on Carbon Neutrality, the Korean Constitutional Court did not arrive at the position that courts in Germany, which has no environmental-right clause, and in the United States, which has no such guarantee at the federal level, sought to reach through novel interpretations of rights. That a constitutional order expressly guaranteeing an environmental right should nonetheless have reasoned more narrowly is the paradox from which this study proceeds. The article accordingly examines, through two models, the ways in which constitutional rights are being created and reconstructed in recent climate litigation. It first traces how climate litigation grounded in existing fundamental rights has repeatedly encountered structural limits: procedural threshold requirements such as standing and redressability, and the dilution of causation where risk is generated cumulatively and indirectly by dispersed actors over long periods. It then analyses the reasoning by which the district court in Juliana v. United States, relying on substantive due process, derived a “right to a climate system capable of sustaining human life” as an unenumerated fundamental right, together with the criticisms directed at that reasoning, and draws attention to the fact that this construction achieves protection for the future without having to recognize future generations as independent holders of rights. It next examines the doctrine of intertemporal safeguarding of freedom (intertemporale Freiheitssicherung), established by the German Federal Constitutional Court on the premises that the remaining carbon budget is finite and that the exercise of freedom is bound up with carbon emissions, and shows how that doctrine shifts the perspective of review from the sufficiency of the state's duty of protection to the justification of restrictions upon liberty rights. On the basis of this comparative examination, the article analyses the Korean Constitutional Court's decision in two respects. The first is that, while consolidating its review into the environmental right, the Court confined the protective scope of that right to its conventional level—the present enjoyment of a “healthy and pleasant environment”—and therefore failed to articulate the linkage between the environmental right and the other fundamental rights invoked. The second is that the Court did not take into account the intertemporal dimension in which present emission rules restrict future freedom in advance. These two omissions were not merely argumentative lapses; they resulted in a narrowing of the scope of review and a weakening of its intensity. Finally, the article suggests two paths that the models offer to the Korean constitutional order: reconstructing the protective scope of the environmental right so as to encompass the preservation of the climatic conditions that make human survival and freedom possible, or combining the environmental right with liberty rights so as to review directly the dimension of restriction of freedom inherent in the climate crisis. On either path, what matters is recognizing that the climate crisis is fundamentally a question of future freedom, and securing a standard of review commensurate with it.

• semanticscholar https://doi.org/10.24324/kiacl.2026.32.2.033first seen 2026-09-26 05:27:29 · last seen 2026-09-29 05:37:59