A one-year-old baby is a litigant in a case against the South Korean government over its ‘insufficient’ response to climate change.
“Woodpecker”, as the baby boy is nicknamed, was not yet born when his parents filed the case on his behalf, alongside the parents of more than 61 children under the age of five.
The young peoples’ case was merged with three similar ones filed between 2020 and 2023, with the first hearing held in the South Korean constitutional court last month. The second and final hearing takes place tomorrow (21 May).
Woodpecker isn’t only one of the youngest plaintiffs in climate litigation history; this is the first case in East Asia to challenge national climate policies, and so could set a huge precedent.
Why are South Koreans suing their government over climate change?
Around 200 South Koreans from the combined cases are suing the government in total, claiming that its climate goals are too weak.
Under its current nationally determined contribution (NDC) to meeting the UN Paris Agreement, the government is aiming to lower the country’s greenhouse gas emissions (GHGs) to 40 per cent below 2018 levels by 2030.
The Paris Agreement seeks to limit global heating to 1.5C above pre-industrial levels, with an upper limit of 2C. But if all countries held South Korea’s level of ambition, the world would shoot up to 3C by the end of the century, according to the Climate Action Tracker.
The plaintiffs claim that the government is failing to provide constitutionally required protection of their fundamental rights. Namely: right to life, right to pursue happiness, right to general freedom, right to property, right to healthy environment. They also argue that the State is failing to fulfil its obligation to provide its people with protection from disasters.
“The climate crisis is already upon us but the effects will be felt even more intensely by future generations. Cases like this are vital to safeguarding citizen’s rights,” says Jiyoun Yoo, Amnesty International Korea’s Climate Justice Campaigner.
“Taking legal action against a state is often a long and arduous process which requires patience and perseverance and the courage of these pioneering plaintiffs is to be admired and applauded.”
With countries due to update their NDCs next year, the climate campaigners are hoping the case will force South Korea to be more ambitious in its next round of climate plans, lasting until 2035.
Does South Korea’s case draw on European climate lawsuits?
East Asia may not have had a constitutional climate case like this before, but a growing tide of global climate cases provides plenty of examples to draw on.
Europe, Canada, Australia, India and Brazil have all seen similar cases filed in recent years, an article in the journal ‘Nature’ notes.
Dr Mingzhe Zhu, a lecturer at the University of Glasgow, UK who explores the transformations of law in pursuit of a more sustainable future, sees a parallel between the South Korean case and Neubauer, et al. v Germany.
In this 2020 case, another group of young people filed a legal challenge to Germany’s Federal Climate Protection Act (Bundesklimaschutzgesetz or KSG) in the Federal Constitutional Court. They also argued that the KSG’s goal of reducing GHGs by 55 per cent until 2030 from 1990 levels was insufficient, and so violated their human rights as shrined in Germany’s constitution.
The Court accepted the intergenerational injustice thrust of their argument. It found that the KSG did not fairly distribute the carbon budget between current and future generations.
“One generation must not be allowed to consume large portions of the CO2 budget while bearing a relatively minor share of the reduction effort, if this would involve leaving subsequent generations with a drastic reduction burden and expose their lives to serious losses of freedom,” it wrote.
The outcome was that Germany’s federal lawmakers made the KSG more ambitious in 2021, to target a 65 per cent cut in GHGs by 2030.
I would love to see if the Korean constitutional justices consider the Neubauer case and how they appreciate the interests of future generations.
“I would love to see if the Korean constitutional justices consider the Neubauer case and how they appreciate the interests of future generations,” Dr Zhu tells Euronews Green.
In Europe, a landmark ruling from the European Court of Human Rights (ECtHR) last month is inspiring for a couple of reasons, he adds. The Court ruled in favour of KlimaSeniorinnen (Swiss Elders for Climate Protection), a group of 2,000 Swiss women who argued they are particularly affected by their government’s lack of climate action.
“The applicants' strategy is clever because they manage to narrow the adverse climate impacts down to a specific group of victims,” Dr Zhu says.
“Also, the ECtHR adopted the provisions of the ECHR [European Convention on Human Rights] to the needs for climate governance by using interpretative methods. I think both litigants and judges in East Asia (and other jurisdictions) will learn from this case as a whole, not only its ruling.”
What impact could the case have in South Korea and beyond?
If the South Korean case is similarly successful, climate campaigners hope it will have big reverberations too.
“If we have a favourable precedent in South Korea, I think that will really be a trigger in spreading this trend,” Sejong Youn, who is a legal counsel for the case in Seoul, told ‘Nature’.
“It will send a message: all countries need to take action in order to tackle this global crisis, and there are no exceptions,” he said.
Litigation tends to be seen as a last resort in East Asian countries. But researchers say a successful outcome will embolden others in the region to act.
“Even if you lose this time, you can lose beautifully in the sense that you provoked social awareness,” Dr Zhu told the journal. “The very fact that this case went to the constitutional court - that is already a certain sense of success.”
A decision on the case is expected later this year.
