A 20-week-old foetus is fronting a legal challenge in South Korea that argues the state is breaching the rights of future generations by not doing enough to cut national emissions.
Parents and lawyers representing the foetus, as well as 61 babies and children under 11, claim national carbon targets do not go far enough to stop runaway climate change and that this is unconstitutional.
Lee Dong-Hyun, who is pregnant with the foetus nicknamed Woodpecker and is also the mother of a six-year-old claimant, said: “I am proud every time a 20-week-old foetus moves in my belly, but I feel sorry and regretful that this child who has not emitted even a gram of carbon dioxide has to live with the current climate crisis and disaster.”
The case was inspired by a landmark 2019 lawsuit in the Netherlands, where campaigners succeeded in ordering the government to reduce emissions. It sparked a wave of climate litigation around the world, from Ireland to India.
Korean citizens have been active in bringing climate lawsuits against the state, with three cases challenging the constitutionality of the country’s climate commitments awaiting a hearing. One claim, brought by a youth group, was updated in 2021 after the South Korean government passed a new net zero law that they argued was still not strong enough.
In this latest case, the claimants say the country’s 2030 target of reducing greenhouse gas emissions by 40% is unconstitutional and cannot guarantee basic rights for future generations. These include the rights to life, equality, property, and to live in a healthy and pleasant environment.
Climate impacts in Korea are growing rapidly. Government statistics show the damage from natural disasters has risen since 1985, resulting in 162 casualties and costing 7.3tn won (£4.6bn) between 2007 and 2016. According to reports, the country will in future face more frequent and heavy floods and forest disasters, loss of habitats and endangered species, and lower yields and quality of staple foods such as rice.
“Adults say they will protect the Earth for us, but it doesn’t seem to have much to do with our future,” said a 10-year-old claimant, Han Je-ah. “Instead of passing it on to children, adults need to cut carbon emissions a lot more right now.”
Many young people have argued in court that the climate crisis violates their fundamental rights. Some high-profile cases, such as that brought by Anjali Sharma, a teenager in Australia, have failed. But Germany brought forward its climate goals after judges accepted arguments that the law in its current state jeopardised the freedoms of future generations.
South American courts have also been sympathetic. In 2018 the Colombian supreme court found that deforestation in the Amazon caused serious damage to all Colombians of present and future generations and that the protection of fundamental rights extended to the unborn – although the ruling has proved problematic to enforce.
However, a foetus has never before been listed as a claimant.
Kim Young-hee, the president of an anti-nuclear lawyers’ collective, Sunflower, who is leading the new case, told the Guardian: “The youngest foetus was designated as the representative claimant … because the foetus is the most important symbol alive for future generations.”
Kim pointed to a ruling in a previous case that acknowledged the ability of a foetus to file a constitutional petition, and said the Korean supreme court had long recognised that basic rights between generations should be guaranteed.
Kim said the recognition of the foetus’s right to life should not be interpreted in a way that contradicted women’s reproductive rights, saying courts had confirmed that the criminalisation of abortion violates women’s right to reproduce and self-determination.