Key Challenges for Climate Change Litigation – Human Rights meet Precaution: The Duarte Agostinho Case

Voeneky, Silja

doi:10.3790/gyil.2023.330033

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Voeneky, S. Key Challenges for Climate Change Litigation – Human Rights meet Precaution: The Duarte Agostinho Case. German Yearbook of International Law, 65(1), 159-176. https://doi.org/10.3790/gyil.2023.330033

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Key Challenges for Climate Change Litigation – Human Rights meet Precaution: The Duarte Agostinho Case

Voeneky, Silja

German Yearbook of International Law, Vol. 65(2022), Iss. 1 : pp. 159–176 | First published online: March 13, 2024

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Duncker & Humblot

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https://doi.org/10.3790/gyil.2023.330033

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English

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Abstract

Abstract: This article analyses the Duarte Agostinho (or Portuguese Youth) case pending before the European Court of Human Rights, a central case for human rights-related climate change litigation. The case is highly relevant to the determination of the powers of the ECtHR as an international actor to protect community interests via human rights law. Starting from key problems, as the derogation because of war between two State parties, and those arising from the case on the admissibility as well as on the merits stage, the author spells out that the main procedural obstacles, such as establishing victim status and the exhaustion of domestic remedies, or the question of the margin of appreciation, can be overcome by interpretation and drawing on external standards, such as the precautionary principle. The author argues that there is no need for a general ‘judicial self-restraint’ if by protecting human rights at the same time community interests are protected. This means that as long as specific risks are given for the core human rights of the applicants according to a data-based, plausible scenario, governments in democratic States have no prerogative to assess future developments contrary to these scenarios.

Section Title	Page	Action	Price
Silja Voeneky\nKey Challenges for Climate Change Litigation – Human Rights meet Precaution: The Duarte Agostinho Case	159
I. Introduction	160
II. Key Elements of the Duarte Agostinho Case	163
III. Protection of the Environment During War and Armed Conflict Between States Parties	165
IV. Exhaustion of Domestic Remedies (Article 35‍(1) ECHR)	169
V. The Problem of Legal Standing and Victim Status (Articles 34, 35‍(2) ECHR)	171
VI. The Relevance of the Precautionary Principle	172
VII. Margin of Appreciation	173
VIII. Conclusion: Judicial Self-Restraint?	174

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