20-week old foetus faces legal challenge in South Korea

20-week old foetus faces legal challenge in South Korea

A 20 week old foetus is facing a legal challenge in South Korea arguing that 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 that 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, said he is 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 a gram of carbon dioxide has to live with the current climate crisis and disaster. It was inspired by a landmark lawsuit in the Netherlands in the year 2019 in which campaigners succeeded in ordering the government to reduce emissions. It sparked a wave of climate litigation around the world, from Ireland to India.

Three cases challenging the constitutionality of the country's commitments to the climate have been brought by Korean citizens who have been active in bringing climate lawsuits against the state. 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 not strong enough.

The claimants say that the country's 2030 goal 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. The damage from natural disasters has risen since 1985, resulting in 162 casualties and costing 7.3 tn, 4.6 bn between 2007 and 2016 according to government statistics. According to reports, the country will have more frequent and heavy floods and forest disasters in the future, 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. Adults need to cut carbon emissions more than ever, instead of passing it onto children. 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. After judges accepted arguments that the law in its current state would jeopardize the freedoms of future generations, Germany brought forward its climate goals.

South American courts have also been sympathetic. In 2018 the Supreme Court of Colombia found that deforestation in the Amazon caused serious damage to all of the Colombians of present and future generations and extended the protection of fundamental rights to the unborn, although the ruling has proved problematic to enforce.

A foetus has never been listed as a claimant.

The youngest foetus was designated as the representative claimant because the foetus is the most important symbol for future generations, according to Sunflower, the president of an anti-nuclear lawyers collective. Kim pointed out 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 recognized that basic rights between generations should be guaranteed.

Kim said that the recognition of the foetus'right to life should not be interpreted in a way that contradicted women's reproductive rights, because courts had confirmed that the criminalisation of abortion violates women's right to reproduce and self-determination.