On 22 December 2025, three United Nations mandates, concerning truth, justice, reparation and guarantees of non-recurrence, cultural rights, and enforced or involuntary disappearances, sent Brazil a joint Communication concerning the alleged failure to implement the law and alleged attempts to suppress contemporary civil society activities at the former DOPS. In February 2026, Brazil responded, describing federal initiatives on memory, archives, and the mapping of fifty former sites in which human rights violations were committed by Brazil’s civil-military dictatorship (1964-1985). On the core questions, however, Brazil’s response stated that explanations about that particular site depended on information from the government of Minas Gerais, which had not yet replied to the federal government’s request for clarification.

The exchange exposes a recurrent conceptual problem. Non-recurrence is often presented as a portfolio of worthy activities. International standards instead require attention to the relationship between a measure and the risk it is meant to address. Mapping a former torture centre is valuable. It is not the same as transforming that centre.

A duty of the state as a whole

The Communication begins with a reference to a rule. Under Article 2 of the International Covenant on Civil and Political Rights and the Human Rights Committee’s General Comment No. 31, treaty obligations bind every branch and level of government. A federal allocation of competence may determine which authority must act internally, but it cannot fragment Brazil’s international responsibility.

This does not mean that the federal government must itself operate every local memorial. It means that the state must secure a compliant result. The February response given by Brazil appropriately records national projects, including mapping, signage and support for selected memory sites. Yet aggregate activity cannot answer a site-specific failure. Brazil must show, in order to demonstrate its compliance with its international obligations, how those initiatives preserve the building, secure public access, implement the Minas Gerais law and include victims and civil society in its governance.

International law does not invariably require a museum in every former detention centre. The DOPS case is narrower. Domestic legislation selected this building; official truth processes supported its conversion; and the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence’s 2025 report on Brazil called for sites of past violations to be preserved, placed under civil jurisdiction, and converted into Memorials. These standards do not prescribe every curatorial choice. Specificity here derives from the site’s direct relationship to the violations, that particular state’s law, the truth commissions’ recommendations, and repeated official recognition of its commemorative purpose. In those circumstances, substituting a map or plaque for the promised institutional transformation requires more than an inventory of other programmes.

From preservation to participation

The legal purpose of memorialisation is not exhausted by conserving a building. Principle 3 of the Updated Set of Principles to Combat Impunity connects preservation of memory and archives to protection against revisionism and denial. Principle 22 of the Basic Principles on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law includes commemoration and accurate public education among measures of satisfaction. The Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence’s report on memorialisation processes further treats memory as a process that must transmit accurate accounts to present and future generations and create space for debate about causes, responsibilities and consequences.

EJIL:Talk! previously asked whether Brazil’s National Truth Commission produced late truth without justice. A recent post on Stones of Memory in Gaza framed memorialisation through truth, remedy and participation. The present situation of the former DOPS site in Minas Gerais adds a further question: can the state claim progress in memorialisation while the people performing that public function at the designated site are treated as an obstacle?

The Communication records that civil society groups occupied this particular former DOPS building on 1 April 2025 after decades of delay. They organised exhibitions, debates and free guided visits, and received more than 20,000 visitors over eight months. The Communication also records allegations that the state later sought closure of the then occupied building, with an order to remove the participants in the intervention, and authorisation to use force. These remain allegations, and property, safety and administrative concerns can justify proportionate regulation. These concerns, however valid, cannot erase the underlying duty or replace a participatory arrangement with exclusion. Principles 32 and 35 of the Updated Principles make the meaningful role of victims and civil society part of the design and implementation of truth-seeking, reparation and non-recurrence measures.

A site-specific test for non-recurrence

The DOPS dispute suggests a practical test, proposed here as an analytical synthesis of the standards above. First, is the material site and its archive preserved and accessible? Second, has control of the site been aligned with its commemorative purpose, including through a secure civilian institutional arrangement? Third, do victims, relatives and civil society have a meaningful role in determining how the site narrates responsibility and harm? Fourth, is implementation protected by a budget, timetable and public monitoring mechanism capable of surviving political change?

These elements do not turn international law into museum administration. They translate an abstract guarantee into measures responsive to the relevant risk. At the former DOPS, that risk includes not only physical decay, but also institutional continuity, denial and the removal of those who have sustained public memory during state inaction. A national mapping programme can support this work, but cannot substitute for the work itself.

Brazil’s February response to the UN Mandates’ Communication is expressly incomplete: it awaits information from the state of Minas Gerais on the non-implementation of the law and on the treatment of civil society at the site. A complete response should therefore do more than provide a generic list of federal initiatives. It should identify the authority responsible, set out an enforceable path to implementation, guarantee interim preservation and access to the site, and explain how affected communities will participate in its design.

The former DOPS building in Minas Gerais presents a simple but demanding question: can a state remember the address of repression without changing the relationship that address embodies? A map records where violence occurred. A memorial changes who may speak there, what public authority acknowledges, and how future generations encounter the past. That transformation is not decorative. It is part of the legal duty to guarantee non-recurrence.

Photo: Memorial dos Direitos Humanos, Belo Horizonte, Minas Gerais. Source: Wikimedia Commons.

Introduction

Ethiopia is in a critical constitutional moment. The political change in 2018 and the rise of the Prosperity Party, led by Prime Minister Abiy Ahmed, have precipitated constitutional shifts in the country. The Ethiopian National Dialogue Commission (ENDC) was created in 2021 and given the mandate to resolve deep-rooted political divisions in the country and chart a viable constitutional path. While the purpose of the ENDC seems much wider, its key role will be to provide a roadmap on areas of consensus for constitutional reform.

The idea of constitutional reform started early during the transition period in 2019. A national committee, largely composed of independent researchers representing different political views, was loosely formed under the auspices of the Ministry of Justice. The committee held a series of consultations on the key features of the reform, including the potential restructuring of the current 1995 ethnic federal constitution. The committee’s deliberations and resources were supposed to serve as inputs for constitutional reform, but its mandate ended with no meaningful output.

As the ENDC continues its final phase of deliberations, speculation remains over what key issues a new Constitution of Ethiopia will address. The Commission has tried to galvanize public support through grassroots community dialogues and discussions with political parties, civil society organizations, academics, and several other groups. However, the exclusion of key political actors—including armed groups and influential opposition parties—has raised serious questions over its credibility. The proposed ideas for constitutional reform considered briefly in this article are based on the preliminary deliberations of the ENDC and my observations of the ongoing political debates in Ethiopia.

1. Modifying the Ethnic Federal State Arrangement

The 1995 Constitution of Ethiopia represents one of the final constitutional frameworks influenced by the post-Soviet era. Emerging after the disintegration of the Soviet Union, it was heavily shaped by the Marxist-Leninist political thought of the then-ruling coalition, the Ethiopian People’s Revolutionary Democratic Front (EPRDF). The political architecture of the 1995 text directly reflects this ideology. Rather than opening with the standard democratic invocation of “We the people,” the preamble begins with “We the nations, nationalities and peoples of Ethiopia,” explicitly establishing these ethnic groups as the ultimate sovereigns. Consequently, the 12 regional states within the Ethiopian federation are organized along strict ethnic lines. As political scientist Francis Fukuyama has noted, while political tribalism remains an enduring organizing principle, it raises serious questions about whether such a model can effectively sustain constitutional democracy.

It is undeniable that the current Constitution has achieved some measure of progress in fostering a multinational federal state by granting explicit recognition to linguistic, cultural, and religious diversity. However, this ethnic-based federation suffers from deep flaws. By recognizing political units almost exclusively through the lens of language, the framework undermines constitutional safeguards for minority groups, as well as political or cultural entities that do not share a single language as their defining political identity. Moreover, the entrenchment of this ethnic arrangement has grown increasingly detrimental to Ethiopia’s national unity, social cohesion, peaceful coexistence, and territorial integrity. Ethnicity has come to dominate public life, reinforcing authoritarian political practices rather than consolidating the democratic trajectory of the state.  A new Constitution of Ethiopia must address these structural challenges by allowing greater flexibility in how regional states are designated and formed, which would go a long way toward mitigating these tensions. Furthermore, the status of Addis Ababa and highly diverse regions like Dire Dawa must be accommodated within this framework and administrative arrangements that are not exclusively tied to language or ethnicity should be envisaged. Ultimate success hinges on a robust debate regarding these federal structures within the ENDC, requiring political actors across the country to compromise and build a genuine national consensus.

2. Revising the Right to Secession

Perhaps one of the most unique aspects of the Ethiopian Constitution is its explicit recognition of the right to secession in Article 39 of the Constitution. It provides that “every nation, nationality and people in Ethiopia has an unconditional right to self-determination, including the right to secession.” The requirements for cession are not, in fact, too cumbersome. They only require a 2/3s supermajority vote from the state council of the region requesting secession and a majority popular vote in a regional referendum. In theory, subject to the fulfillment of these conditions, any region has the right to secede from the federation.

The text of the right to secession in the 1995 constitution is a direct extension of its Marxist-Leninist historical roots, drawing inspiration from the Soviet constitutional model. In contemporary constitutional design, such a stipulation is exceedingly rare. The danger that this unhinged right to secession poses to a fragile polity like Ethiopia is clear; it consistently undermines territorial integrity and risks the total political fragmentation of the state. Emerging comparative experiences show a distinct shift away from secession clauses, relying instead on the robust protection of individual and group rights and basic freedoms.

A new constitution for Ethiopia should pivot toward providing constitutional guarantees that secure the rights of minority ethnic groups to practice their language and preserve their culture, without tying those rights to state dissolution. The political realities of Ethiopia’s 30-year constitutional experiment have proven that the right to secession is practically unrealizable. The more plausible approach for the new constitution should be a more pragmatic one focused on the constitutional recognition and integration of ethnic groups rather than their separation. Many democratic states grappling with deep societal diversity, such as Canada and South Africa, successfully rely on the constitutional principles of diversity, equality, and human dignity as their foundational guarantees, offering a viable blueprint for Ethiopia’s future.

3. A New Constitutional Court for a New Constitution

The current 1995 Constitution of Ethiopia envisages for a constitutional review process under the House of Federation, the upper house of the parliament in Ethiopia. Unlike the lower house, the House of Peoples Representatives, which has legislative powers, the upper house has the power to interpret the constitution and invalidate unconstitutional laws. But for many Constitutional lawyers in Ethiopia, the House of Federation is seen as a political organ established for solely political purposes of managing and resolving disputes among the federal units. Its structure and functions are inaccessible and completely different from a constitutional court. A new constitution that formally embraces a constitutional court will go a long way in making constitutional protections accessible for human rights litigation and ensuring the basic and fundamental rights of individuals and groups.  While the Current Supreme Court of Ethiopia does have the expertise and experience required to do the job, the fact that the Court is already overwhelmed by several cases that do not involve constitutional issues makes the prospect of a new Constitutional Court more plausible.

4. Explicit Recognition of Justiciable Human Rights

One of the positive aspects and manifestations of the current Constitution of Ethiopia is its generous provision of human rights. A significant portion of the Constitution (1/3) covers the protection of fundamental human rights. But the actual application of these rights in the domestic courts of Ethiopia has been a major challenge. One of the key challenges to the justiciability of human rights in the Constitution is the lack of clear constitutional clause to this effect in the Constitution. Moreover, the fact that the Constitution mandates the House of Federation with the power to interpret the Constitution has undermined the inherent power of ordinary courts for judicial review. The practice of courts in this regard, including in strategic human rights litigation cases, shows that a lack of clear mandate to the courts to adjudicate human rights provisions in the Constitution has made the judicial review power of courts ambiguous and unpredictable. The new Constitution of Ethiopia should address this by providing a clear constitutional mandate for courts to adjudicate disputes involving human rights issues. This will have the potential to consolidate the protection of fundamental rights and freedoms.

5. Reforming Land Ownership

Article 40 of the Constitution of Ethiopia places land under public ownership of the state. This is also another manifestation of the leftist feature of the current Constitution. The issue of land ownership has been a thorny issue in Ethiopia that has triggered a significant amount of debate. But questions remain if this is a viable path for a constitutional democratic republic that aspires to protect private property and basic economic freedoms of individuals.  Critics also argue that the current public ownership of land has created deeper land use fairness and mismanagement issues that fuels corrupt practices by state officials. This has become rampant in many regions in the country, especially in the capital, Addis Ababa. Moreover, it is believed that the lack of productivity in the agricultural sector has been attributed to the inherent flaws of the lack of land ownership that disincentivizes local farmers to produce.  While the economic virtue of private ownership of land is something that needs to be debated, a constitutional reform should envision the possibility of private ownership of land either through a referendum or some form of direct participation of the public.

6. Introducing a Presidential System

Recent reports have indicated that Prime Minister Abiy Ahmed is in favor of a Presidential system of government rather than the parliamentary system of government that the current constitution envisages.  It is unclear what the objective of adopting a new Constitution with a presidential system as opposed to a parliamentary system of government would achieve for the consolidation of constitutional democracy in Ethiopia. One of the issues that was often raised is the need to have more direct access for citizens to elect the head of government, which may mitigate the highly party-oriented and ethncized political landscape in Ethiopia. Another issue that could have more significance is the idea of providing term limits, which is more often associated with the Presidential system of government. The downside of this prospect of a presidential system under the new Constitution is the fear that more concentration of power on the executive could be counterproductive to the prospect of the consolidation of constitutional democracy in the country. Any prospect of a new constitution in Ethiopia should anticipate and balance these constitutional outcomes.

To conclude, the political outcome of the national dialogue process, with all is limits, can provide a significant constitutional foundation for Ethiopia’s democratic trajectory. But it can do so when there is a political will to address the pitfalls of the leftist ideological roots of the Constitution and integrate basic and fundamental principles of a constitutional democracy. Ethiopia should seize this constitutional moment to lay down solid foundation for upholding fundamental human rights and basic democratic principles.

Suggested citation: Mesenbet A. Tadeg, Constitutional Reform in Ethiopia: Challenges, Options, and Pathways Forward, Int’l J. Const. L. Blog, Sept. 11, 2026, at: http://www.iconnectblog.com/constitutional-reform-in-ethiopia-challenges-options-and-pathways-forward/

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Introduction

In December 2024, four months after Sheikh Hasina fled Dhaka in the July mass uprising, Bangladesh’s High Court struck down the entrenchment clause that a previous Parliament had inserted precisely to make itself irreversible. The judges did not write on a blank page created by revolution; they wrote, self-consciously, inside the very provision, Article 7B of the 1972 Constitution, that told them they had no power to touch it.

That scene captures Bangladesh’s defining difficulty since August 2024. The uprising that removed Hasina was extra-constitutional in every sense that matters: it drew its authority from the street, not from any procedure the Constitution recognizes. Yet nearly everything that has followed has been forced back through that same text, ordinances issued under Article 93, litigation decided under Articles 7, 44 and 142, and a referendum whose legal weight nobody quite agrees on. In this post, I argue that this is not incidental friction but the transition’s defining feature: a government born of constituent power has been required, at every turn, to exercise only constituted power, and it is in that gap that Bangladesh’s reform agenda keeps stalling.

The Specific Legal Bottlenecks in Bangladesh

Firstly, Article 7B and the limits of eternity. Article 7B was inserted by the Fifteenth Amendment in 2011 to make the Preamble, Parts I–III and several other provisions unamendable through insertion, modification, repeal or any other means, codifying, and arguably superseding, the judge-made basic structure doctrine first recognized in Anwar Hossain Chowdhury v Bangladesh (1989). On 17 December 2024, the High Court Division struck down Article 7B itself, together with Articles 7A and 44(2) and the repeal of the referendum requirement, as inconsistent with the Constitution’s basic structure; the Appellate Division upheld that judgment on 9 July 2026. The paradox is worth naming plainly: a clause designed to be permanently unamendable was itself held unconstitutional, which is only coherent if some norm above Article 7B survived it. The courts resolved this paradox by treating the pre-2011 basic structure doctrine as never actually displaced.

Secondly, ordinance limits under Article 93. The President may legislate by ordinance only when Parliament is dissolved or out of session, only on matters an Act of Parliament could lawfully address, and never to alter or repeal a constitutional provision; any ordinance lapses thirty days after Parliament reconvenes unless approved. The interim government nonetheless used a Referendum Ordinance and the July National Charter (Constitutional Amendment) Implementation Order, 2025, a Presidential Order gazetted 13 November 2025, to design referendum mechanics and to stipulate that newly elected MPs would sit concurrently as a “Constitution Reform Assembly.” Bangladeshi commentators have argued this exceeded Article 93’s own limits, since inventing a constituent body is hard to characterize as something an ordinary Act could equally do (ALBD, 2026). When the 13th Parliament convened in March 2026, well over a hundred such ordinances faced the thirty-day lapse clock, a reminder that ordinance government is, by design, temporary (CGS, 2026).

And lastly, constituent power versus constituted power. Article 142 vests amendment power in Parliament by a two-thirds majority and, after the 2024–2026 litigation, again requires a referendum for basic-structure changes, but that is constituted power, bounded by the very text it amends. It offers no route to a document that belongs to nobody yet. The Implementation Order tried to bridge that gap by having the same elected body sit as both ordinary Parliament and Constitution Reform Assembly, without ever convening a body chosen for constituent purposes alone. When the BNP won a two-thirds majority in the 12 February 2026 election and referendum, it declined to convene that Assembly and opted to pursue reform, if at all, through ordinary Article 142 amendment resolving the paradox, for now, in favor of constituted power over the Charter’s constituent ambitions (ConstitutionNet, April 2026).

Comparative Constitutional Framing

Hans Kelsen’s account of the Grundnorm explains why Bangladesh chose fiction over rupture: a successful revolution produces a new basic norm, but legal continuity afterward is possible only if officials presuppose the old norm never really broke. Bangladesh’s courts did exactly that, unwinding the ousted regime’s amendments through the 1972 Constitution’s own machinery rather than treating August 2024 as a founding moment. Bruce Ackerman’s “constitutional moments” supplies the missing half: higher lawmaking can occur outside a constitution’s amendment clause where it is preceded by sustained mobilization and cross-party deliberation, then ratified by ordinary institutions. The National Consensus Commission’s talks with more than thirty parties through 2025 look like exactly such a mobilization phase; the trouble is that it was never given its own ratification track, but was routed back through Article 93 ordinances and an Article 142 referendum.

Other post-uprising states built that missing track deliberately. Tunisia did not attempt to amend its 1959 Constitution: a law-decree of 16 December 2011 provisionally organized public powers pending a purpose-built Constituent Assembly, which spent over two years drafting an entirely new 2014 text. South Africa’s 1993 Interim Constitution bound its own Constitutional Assembly to thirty-four Constitutional Principles and subjected the resulting draft to judicial certification; the Constitutional Court actually refused to certify the first text in September 1996, forcing revisions before certifying the amended version that December (First and Second Certification judgments). Nepal’s November 2006 peace accord led to an interim constitution in January 2007 that functioned explicitly as a bridge, pending an elected Constituent Assembly that abolished the monarchy at its first sitting in 2008. In each case, constituent power was given its own instrument and its own body before any ordinary legislature finished the job. Bangladesh tried to compress both stages into one; hence the current impasse.

Path Forward & the Future of Constitutionalism

The July Charter is not empty of content. Signed on 17 October 2025 by the National Consensus Commission and two dozen parties, it packages over eighty reform proposals, nearly fifty of these constitutional in nature, including a ten-year cap on any individual’s tenure as Prime Minister, a bicameral Parliament with a hundred-member proportionally elected upper house, and recommendations from the judicial reform commission on appointments and tribunal independence (The Diplomat, 2025). Voters endorsed that package by a clear majority on 12 February 2026. What it never secured was a legitimate procedural home, not a freestanding transitional instrument like Tunisia’s, not an externally certified text like South Africa’s, but a hybrid of ordinance and referendum grafted onto Articles 93 and 142, vulnerable to exactly the kind of ordinary-majority reversal the new BNP government is now exercising.

Responsibility for what happens next sits with the newly elected Parliament and, should disputes recur, the Appellate Division, a court that has now reversed its own caretaker-government jurisprudence twice in fifteen years, restoring the system only prospectively in November 2025. That volatility is itself the lesson: no single authority in this transition, a charter without binding force, a referendum of contested legal effect, a court capable of overturning its own settled doctrine is durable enough to carry reform alone. Unless Bangladesh builds a genuine constituent channel before its next crisis, each future uprising will confront precisely the paradox this one did: a people asked to remake the state using only the tools the old state left behind.

Suggested citation: Kazi Ayman Awsaf, Amending the Unamendable: Bangladesh’s Constitutional Paradox After the July Uprising, Int’l J. Const. L. Blog, Sept. 10, 2026, at: http://www.iconnectblog.com/amending-the-unamendable-bangladeshs-constitutional-paradox-after-the-july-uprising/

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Introduction

On March 12, 2026, the Appellate Division of the Supreme Court of Bangladesh released the full text of its judgment reviving the Caretaker Government (CTG) system, setting aside its own 2011 decision that had declared the system unconstitutional. Two thoughtful posts on this blog have already unpacked the judgment. One reads it as offering a ‘moderate account’ of constituent power, reconciling popular sovereignty with legal stability. The other treats it as a puzzle about the proper limits of judicial authority to delay a revived provision’s operation. Both readings, in different ways, ask whether the Court applied the correct constitutional theory and arrived at a sound conclusion.

This post asks a different question, borrowed from critical legal studies (CLS): why did the same doctrinal toolbox that delegitimized the CTG system in 2011 re-legitimize it in 2026 and whose political settlement does the resulting evolutive basic structure quietly ratify?

My answer is that the shift was never driven primarily by improved constitutional reasoning. The Court’s evolutive-constituent-power framework conveniently tracks what the July 2025 National Charter had already mandated politically: restoration of the caretaker system through a post-uprising, cross-party settlement. The vocabulary of an ever-present, evolutive constituent power is what lets the Court present that negotiated settlement as the people’s own enduring will, rather than as one contingent outcome among several that were politically available.

The Same Toolbox, Opposite Outputs

CLS’s founding claim, developed most fully by Duncan Kennedy, is that legal doctrine is indeterminate at precisely the moments that matter: contested cases can typically be resolved either way using materials internal to the law itself, so outcomes track a decision-maker’s background commitments more than any doctrinal compulsion. Bangladesh’s caretaker litigation comes close to a natural experiment in this claim.

In 2011, the Appellate Division majority held that the running of state affairs by unelected persons during CTG rule was incompatible with the republican and democratic character of the Constitution. In 2026, a differently constituted Appellate Division read the same constitutional text, the same 1972 founding document, and much of the same historical record, to reach the opposite conclusion: that the CTG design is itself an immutable, basic feature of that order, because constitutional structures suffer… wear and tear over time and periodically need reinforcement.

Tellingly, the Court’s own account of its predecessor’s ruling does not defend 2011 as a plausible-but-mistaken reading. It goes further, describing the earlier bench’s approach as a rigid, utopian model of democracy that ended up feeding authoritarian, dysfunctional electoral politics, as reported here. More strikingly still, the Court separately observed that the 2011 bench appeared to have buckled under pressure from the 15th Amendment, which had been enacted in the gap between its short order and full judgment, as reported here. If a unanimous Appellate Division can say, in effect, that its predecessor’s basic-structure reasoning was itself a symptom of political capture rather than principled adjudication, that is closer to a CLS indeterminacy thesis stated in the Court’s own voice than to a story of doctrinal refinement.

From Doctrine to Legitimation Story

This matters because evolutive basic structure does not resolve the indeterminacy that the 2011-to-2026 swing exposes; it re-narrates it. Upendra Baxi has observed, of the Indian doctrine from which Bangladesh’s descends, that its imprecision was never accidental: the doctrine’s open texture is what allowed the Indian Supreme Court to function as a further check on constitutional amendment while presenting itself as merely safeguarding pre-existing fundamentals. The March 2026 judgment updates this move rather than escaping it. By grounding evolutive basic structure in Böckenförde’s account of an ever-present constituent power, and in the historical fact of the 1990 mass movement, the Court supplies its own discretion with a more attractive origin story: it is not that the judges changed their minds, but the people’s enduring will finally found its proper legal form. The underlying indeterminacy is unchanged; only the legitimating narrative has been upgraded.

This is close to what CLS scholars call legitimation: an arrangement of institutional power here, the Court’s own authority to decide, retrospectively and without settled procedure, which historical episodes count as genuine exercises of constituent power is represented as flowing from a source (the sovereign people) external to, and superior to, the deciding institution itself. Both existing posts on this judgment register a version of this problem. One asks who is to filter genuine constituent power from partisan capture. The other asks whether the Court exceeded its proper mandate by prescribing the timing of a revived provision. A CLS lens treats this less as an open question the Court left unanswered than as the structural function the doctrine actually performs: the unresolved question is not a gap in an otherwise coherent theory. The unresolvability is the theory’s point: it is what lets the same doctrine authorize opposite outcomes fifteen years apart while each time presenting itself as principle rather than preference.

Whose People?

If judicial discretion cannot be eliminated by better doctrine, a more useful question is: whose interests did this particular exercise of discretion serve? The March 2026 judgment did not emerge from a vacuum. It followed the August 2024 mass uprising against the Awami League government, the formation of an interim administration under Muhammad Yunus, and the July National Charter, an elite cross-party settlement that explicitly mandated restoration of the caretaker system and a referendum on constitutional reform. The petitions that led to the Court’s review were brought by political parties including the Bangladesh Nationalist Party and Bangladesh Jamaat-e-Islami together with individuals and organizations, not by an unmediated disorganized multitude invoking constituent power in the streets. The 13th Parliament that will eventually operate under the restored CTG system did not yet exist when the judgment was delivered.

None of this means the outcome is illegitimate, or that reviving the caretaker system is bad constitutional policy; there are strong functional reasons to think it improves electoral credibility. The point is narrower. The vocabulary of the people’s constituent power and evolutive basic structure does specific ideological work: it translates what was, on the ground, a negotiated settlement among an interim government and established political parties into a story about the sovereign people finally being heard by law. That translation is not dishonest, but it is not neutral either. It forecloses the question whether other, differently positioned constituencies including the same younger generation that drove the 2024 uprising, some of whom have separately voiced skepticism about the entire 1972 constitutional settlement in Parliament, were in fact the authors of the constituent power the Court now credits, or whether that power has simply been assigned to whichever coalition currently controls the machinery of transition.

Conclusion: Reading Doctrine Politically

None of this is an argument against basic structure doctrine, evolutive or otherwise; CLS scholarship has long accepted that some background allocation of interpretive authority is unavoidable in adjudication. It is an argument against reading the March 2026 judgment primarily as a contribution to constitutional theory as offering a better account of constituent power than the 2011 Court managed rather than as what it also is: a political artefact that a particular constellation of post-uprising forces needed the judiciary to produce, and got.

For comparative public law scholarship, the lesson travels beyond Bangladesh. Wherever a court announces that basic structure doctrine has become evolutive or living, the doctrinally interesting question is rarely whether the resulting theory is internally coherent; it usually can be made coherent after the fact. The more urgent question is which political settlement the newly discovered flexibility was built to accommodate, and which constituencies had no seat at the table when the people’s constituent power was being identified on their behalf.

Suggested citation: Tonmoy Halder, Whose People? A Critical Legal Studies Reading of Bangladesh’s “Evolutive” Basic Structure, Int’l J. Const. L. Blog, Sept. 9, 2026, at: http://www.iconnectblog.com/whose-people-a-critical-legal-studies-reading-of-bangladeshs-evolutive-basic-structure/

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Due Diligence under Article 94 UNCLOS

Under Article 94 of UNCLOS every State must “effectively exercise its jurisdiction and control in administrative, technical and social matters” over ships flying its flag. According to the SRFC Advisory Opinion, this is a due diligence obligation, meaning it is an obligation of conduct, not result. A flag State must “do its utmost” to maintain its effective jurisdiction and control over its ship (Area Advisory Opinion, para 110; as applied to flag States specifically in SRFC Advisory Opinion, para 128). Maintaining due diligence in ensuring effective control and jurisdiction over the ship, according to the Pulp Mills Case (para 197), and as referred to in the SRFC Advisory Opinion (para 131), “entails not only the adoption of appropriate rules and measures, but also a certain level of vigilance in their enforcement and the exercise of administrative control applicable to public and private operators, such as the monitoring of activities undertaken by such operators, to safeguard the rights of the other party.” To simplify for the purposes of this argument, it could be said Article 94 includes three parts within this due diligence obligation: the flag State must establish regulatory control, maintain oversight, and exercise enforcement measures. A flag State must do its utmost to fulfill all three parts to satisfy the Article 94 obligation.

Since data will be streamed from the physical ship to the remote operations centre, it must necessarily traverse cyberspace, often via satellite, but with the data saved in the cloud for future reference. In reality, of course, “the cloud” is actually physical servers that store the data for access by the remote operators. The monitoring of compliance and purposeful exercising of enforcement can only occur if the flag State has access to the data located on the servers. Monitoring compliance requires the flag State to ensure the ship is following the laws it has set out. It can only do so if it is able to access the ship’s information, including, for example, location data, maintenance information, and remote operator command logs. No inspection or audit would be complete without such information. Should there be an error or an accident, the flag State would further require the data for investigation and enforcement. In essence, if the flag State does not have access to a ship’s data, including video feeds, ship location, audit logs, and the like, it cannot effectively monitor compliance and exact enforcement.

The MASS Code

The MASS Code suggests fulfilling this obligation by hinging the issuance of MASS certificates by the flag State “Administration” on the ability of the Administration to have access to any logged data (MASS Code, para 9.10.5). Enforcement of this would be based on the revocation of the certificate. While this revocation is an option for the flag State, it is an unnuanced one. It does not confer any monitoring or investigation powers. In the case of an incident, the flag State must investigate (as required by, for example, UNCLOS art 94(7)) and it cannot do so without the fundamental data, such as the ship’s location or remote operator data. 

Moreover, the data required for MASS is large and therefore requires large-scale server infrastructure. Such infrastructure is neither present in each State nor available cheaply. It is therefore unlikely that the ROC-company will be responsible for its servers and instead will farm that responsibility out to yet another company, in yet another State, with its own laws. Problematically, however, the flag State cannot expect access to the data located on servers, outside the flag State’s territory. In fact, there may even be some national legal obstacles that make this particularly difficult.

Cross-Border Data Sharing

Who has jurisdiction over data on servers is not internationally agreed; however, there are two overarching camps. On the one hand, some States use their territorial jurisdiction to exercise jurisdiction over servers. For example, China requires certain categories of data to be stored exclusively in China, so that it may easily access the data (Cybersecurity Law, art 39). Other States determine jurisdiction based on the jurisdiction over the service provider, irrespective of the physical location of the data. The best example of this is the United States, which, through its CLOUD Act, can request data from companies over which it has jurisdiction, even if that data is located on a server in a different State. For example, Microsoft may be required to hand over data, even if it is on a server in Ireland. Neither camp provides any jurisdiction for a third party, such as a flag State. Instead, under the current system, a flag State would need to request the data from the State claiming jurisdiction.

The transfer of data is usually done through international agreements, such as mutual legal assistance treaties. States can request the data from another, which then must go through its internal legal process, after which it can be sent to the requesting State. Therefore, this process can take a long time. Currently, national laws may disallow the sharing of data or hamper the transfer. For example, China does not allow data stored in China to be shared with a foreign authority without its explicit prior approval. Other jurisdictions, such as the EU, have strict regulations about the sharing of data with another State, that require prior agreements between the States or that may allow ad hoc one-time transfers, in certain circumstances, subject to extensive limitations, especially in the case of personal data (Data Act, art 32(1, 2, 4) and GDPR, art 48).

To fulfill its Article 94 obligation, a flag State must be able to effectively monitor compliance and exact enforcement measures over its ship. Even the most lenient interpretation of monitoring compliance requires a periodic review of the ship’s performance, requiring flag State access to its ship’s data. If it cannot expect such access, it cannot have fulfilled the due diligence requirement. In order to fulfill the obligation, the flag State must do its utmost to ensure that, after the registration of MASS, it has the ability to ensure compliance and enact enforcement measures over the ship. To achieve this, the flag State does not necessarily need jurisdiction over the server. It can fulfill its obligation with access to the data; however, the flag State must be seen to have worked vigilantly and do its utmost to expect access, through a predetermined agreement, which allows its simple and efficient transfer of the data. 

Expecting access means that there is a framework through which a flag State can obtain the required data. Such a framework must be based in public law, between States, rather than a private law contract. A contractual relationship alone between the flag State and the company holding the data does not remove the national legal obstacles that a flag State would face when it requests access to the data. Indeed, the aforementioned national data laws will remain burdensome and would slow the transfer of data. As mentioned before, a State should be able to access the data to ensure compliance and exact enforcement. In the past, this could be done by boarding a ship and investigating. With data, boarding would no longer yield the same result. What is instead necessary to ensure such a flag State can have the expectation of access to the data it needs to maintain a vigilant eye over its ship is a treaty between the flag State and the State with jurisdiction over the servers to allow for the transfer of the data. Such a treaty would make it likely that the flag State is able to access the necessary data. Importantly, because Article 94 is an obligation of conduct, it is not necessary that the flag State will, in the end, access the data but it should, after the point of registration, be able to assume, with a great degree of certainty, this ability.

Consensus in International Law: Critical History, Queer Reimaginings critically explores the idea of 'consensus' by retracing its history in two settings: in consensus decision-making in the General Agreement on Tariffs and Trade and World Trade Organisation, and the European Court of Human Rights' use of 'European consensus' as a method of treaty interpretation. Employing a unique theoretical framework informed by queer theory and jurisdictional thinking, the book argues that consensus in international law is best understood as a technique of authorization, which functions by gesturing towards a widespread, yet unfixed, level of agreement.

Claerwen O'Hara demonstrates that the gesture towards widespread agreement works to imbue institutional practices with an air of equality and project visions of unity onto a decision, helping to ground the authority of international institutions and their legal worlds. At the same time, the variable nature of the agreement means that the idea of consensus can be applied flexibly, including in situations in which no such equality or unity exists. Consequently, despite the positive discourses surrounding the idea of consensus in international law, it has often worked to suppress difference and dissent and uphold existing power relations. The book suggests that this gap between discourse and reality has been a contributing factor in some of the problems facing international law and its institutions today. To overcome these problems, Consensus in International Law calls for a shift in imagination in which the idea of the world or a particular region routinely reaching a widespread agreement is decentred in international law. In its place, the book proposes a vision of the international as a 'meeting place' for a plurality of peoples and their laws.

     

Two recent legal developments in Latin America invite renewed attention to the potential of environmental impact assessment (EIA) as a procedural tool for addressing climate change. At their core, they raise the question of whether EIA, originally designed to assess the localised effects of individual projects, can be an effective tool for tackling the climate emergency. This post argues that it can, but only if climate-inclusive EIA goes beyond formally considering climate change and instead anchors project assessments in the State’s substantive climate obligations. As the discussion below shows, this shift is already under way. Yet greater clarity and awareness are needed to unlock EIA’s full potential as a mechanism of climate accountability.

On 16 June, the Constitutional Chamber of the Supreme Court of Costa Rica delivered its judgment in the country’s first climate case, upholding the application (Resolution No. 022147-2026, not yet published).

Costa Rica is one of the countries most exposed to the consequences of climate change (OECD). Nevertheless, although the Constitutional Chamber is distinguished by its particularly broad standing requirements and sustained engagement with environmental issues, climate litigation in this country has so far remained quite limited.

The Constitutional Chamber has previously referred to climate change in broader environmental proceedings (notably Resolutions Nos. 1838-2024 and 14801-2024). However, the present case is the first one in which climate change constitutes the central issue.

Unlike many climate actions initiated by environmental organisations in other jurisdictions, the Costa Rican case originated primarily in legal scholarship and received the support of leading environmental law experts. It was filed in 2024 by Professor Mario Peña Chacón, and other prominent legal scholars intervened during the proceedings in support of the applicant, as did the United Nations Special Rapporteur on the human right to a healthy environment.

The action was brought against the government and the Secretaría Técnica Nacional Ambiental (SETENA) and focused on a specific issue: the failure to incorporate climate risks and the impacts of climate change into EIAs.

By granting the application, the Constitutional Chamber ordered both respondents to adopt the necessary measures to ensure that climate risks and impacts, as well as mitigation and adaptation measures, are incorporated into EIAs.

Elsewhere in Latin America, the Mexican federal government presented a proposal to overhaul the Ley General del Equilibrio Ecológico y la Protección al Ambiente (LGEEPA) on 14 May of this year.

The initiative – which has raised criticism and concerns regarding various aspects of the proposed reform (see CEMDA, for an overview of the main issues) – would substantially reshape the framework for environmental protection established by the law, originally enacted in 1988.

In particular, the reform introduces strategic environmental assessment for plans, programs, or projects concerning major infrastructure, and expressly requires the inclusion of climate change in environmental assessments.

Both these developments highlight the potential of EIAs as a procedural tool for addressing climate change in strategic litigation and legislation, while also raising questions about their scope and effectiveness.

While EIA originally focused on local environmental impacts, many countries have extended its scope to consider greenhouse gas emissions, thereby contributing to climate change mitigation one project at a time (B. Mayer).

However, experience shows the fragmented nature of the solutions adopted by courts and legislatures across different jurisdictions, as well as the lack of a common approach and effective implementation.

Three main sets of difficulties emerge from the various attempts to integrate EIAs with climate change considerations.

First, the specific characteristics of climate change distinguish it from other environmental impacts typically considered in EIAs. Its global and diffuse nature makes it difficult – although by no means impossible – to adequately assess the impacts of an individual project on the climate system. It is also difficult to identify a specific community directly affected by the climate impacts of a given project in a way that would, under a traditional approach, justify its participation in assessment and decision-making procedures.

Second, there is the question of the effectiveness of impact assessments in relation to decision-making: EIA obligations do not impose substantive duties mandating particular results but simply prescribe the necessary process for preventing uninformed – rather than unwise – administrative action (as seen in the US case Robertson v Methow Valley Citizens Council).

Third, there is the need to properly account for the fundamental relationship between the assessment of an individual project and the State’s obligations concerning mitigation and adaptation under international and domestic sources of climate and human rights law.

While the first set of difficulties is primarily rooted in a limited and inaccurate understanding of climate change and can therefore be overcome through the proper use of scientific knowledge and analytical techniques, by taking into account also indirect and extraterritorial emissions and by properly challenging the market substitution argument, the other difficulties identified above require a rethinking of environmental assessment procedures in order to tap the full potential of EIA as a tool for climate change mitigation.

The inclusion (or, rather, the failure to include) climate change in environmental assessment procedures has already been litigated in several jurisdictions around the world and has emerged as a distinct avenue of climate litigation (e.g., UK, South Africa, Australia, India; see here and here for an overview).

In Latin America, the Colombian Constitutional Court’s landmark judgment C-280/2024 provides a significant precedent. In Europe, where the EU EIA Directive requires climate-related variables to be included in EIAs, questions have nevertheless been raised regarding whether downstream emissions associated with oil extraction must also be considered (Finch v Surrey County Council).

This approach to climate litigation has the advantage of translating States’ substantive climate obligations into procedural requirements. The failure to adequately consider climate risks and impacts in an EIA constitutes a procedural defect affecting both the assessment process and the final decision concerning the project or activity whose climate impacts have not been properly evaluated.

For example, in Colombia, the Constitutional Court’s judgment C-280/2024 introduced a new ground for annulment in environmental administrative litigation: environmental authorizations granted without an adequate assessment of climate impacts may be declared invalid by administrative courts.

In the Colombian system, this has a further consequence: where a project affects an Indigenous or Afro-descendant community, it is subject to the community’s right to prior consultation (consulta previa). This consultation, in turn, is subject to being declared invalid where it is not based on a proper assessment of the project’s environmental and climate impacts.

However, this strategy remains limited: even where environmental and climate impacts are assessed, projects may still proceed despite their adverse effects on the environment or climate.

For climate-inclusive EIAs to contribute to the effective protection of climate stability, the assessment of each individual case must be conducted in close connection with substantive climate obligations and mitigation/adaptation targets. This requires consideration of cumulative climate impacts, overall emissions, the remaining carbon budget, and emission reduction pathways. Furthermore, the approval of the project must be conditional on compliance with climate obligations and targets, in accordance with the so-called pro natura principle, according to which, where different options are available, decision-makers should favour the one most protective of nature and the environment. This principle is gaining increasing recognition, particularly within the Latin American legal context (among other examples, the principle has been developed by the Costa Rican Constitutional Chamber since the 1990s through its case law and is now expressly incorporated into the reform proposal to the Mexican LGEEPA among the guiding principles of environmental policy).

In her submission in the Costa Rican climate case, the Special Rapporteur on the human right to a clean, healthy and sustainable environment clarified that “[e]valuations must quantify the expected emissions (…) and assess their consistency with national and international climate obligations. In all cases, [EIAs] must determine whether the proposed activity contributes to or undermines the global objective of limiting temperature rise to 1.5°C, thereby contributing—or not—to the State’s compliance with its obligations.”

This dimension has so far received limited attention in domestic legislation and case law on EIAs but has become somewhat more visible in international jurisprudence.

The International Court of Justice (ICJ) and the International Tribunal for the Law of the Sea (ITLOS), in their respective advisory opinions on climate change, have emphasised the importance of EIAs within the framework of States’ due diligence obligations and the duty to prevent environmental harm, including consideration of cumulative and downstream effects (ITLOS, para. 365; ICJ, para. 298).

The Inter-American Court of Human Rights (IACtHR) has gone further in Advisory Opinion AO-32/25, providing a precise definition of the duty to assess climate impacts and expressly establishing a link between impact assessment, authorisation of activities, and compliance with climate obligations.

In particular, the IACtHR clarified that each State must identify, in keeping with its mitigation strategy, the activities subject to environmental and climate impact assessments; that the regulatory framework governing EIAs must specify how the assessment process and its results inform the authorisation of proposed activities (relationship to decision-making); and that States must conduct a meticulous assessment of activities that may cause significant harm to the climate system before granting approval, taking into account the best available science, previously defined mitigation strategies and targets, and the irreversible nature of climate impacts. All of this to adopt the best prevention measures in relation to potential harm to the global climate system (AO-32/25, paras. 358-363).

Under AO-32/25, climate impact assessment is not simply an additional procedural requirement within the EIA process for individual projects but a mechanism through which States implement their broader obligations to protect the climate system.

The European Court of Human Rights (ECtHR) has also addressed this issue. In KlimaSeniorinnen, it required States, under Article 8 of the European Convention on Human Rights, to establish a regulatory framework including the determination of GHG emissions reduction targets and pathways and the remaining carbon budget (para. 550) and emphasised the importance of procedural safeguards in the decision-making process (paras. 539, 553-554). Although the Court did not explicitly mention EIAs, its reasoning suggests that EIA-type mechanisms should form part of such a regulatory framework.

In Greenpeace Nordic v. Norway, a case grounded in procedural reasoning, the applicants argued that the impact assessment had failed to consider the remaining carbon budget, predetermined temperature thresholds, and emissions reduction pathways. The ECtHR clarified that procedural safeguards in climate-related decision-making include an adequate, timely, and comprehensive EIA, conducted in good faith and based on the best available science (para. 318). And it went further, adding that «[m]oreover … there must be an assessment of whether the activity is compatible with [public authorities’] obligations under national and international law to take effective measures against the adverse effects of climate change» (para. 319).

The Court’s approach in Greenpeace Nordic refines and sharpens the procedural framework set out in KlimaSeniorinnen: not only does it expressly require an EIA to support climate-related decisions, but it also specifies that the assessment must engage with the climate obligations incumbent on public authorities, thereby relating an individual licensing decision to the State’s overall mitigation trajectory. Read together, the two judgments show procedural reasoning operating on two levels at once: at the systemic level, by requiring a regulatory framework fit for climate purposes (KlimaSeniorinnen); and at the level of the individual authorisation, by requiring an EIA that actually engages with climate-specific obligations (Greenpeace Nordic). This two-tiered structure gives the procedural avenue its practical force.

Thus, although perhaps less explicit on this point than its Inter-American counterpart, the ECtHR also recognises the connection between individual impact assessments and States’ obligations to protect the stability of the climate system. Climate-inclusive impact assessment therefore represents a point of convergence between the two regional human rights courts, which have otherwise adopted radically different approaches to climate change (see here or here).

While domestic case law has generally confined climate considerations in EIAs to the procedural dimension, AO-32/25 and recent ECtHR decisions suggest a broader approach: impact assessments may become a means of reviewing whether environmental administrative action is consistent with the State’s climate obligations.

Ultimately, this is what a procedural approach to climate litigation through EIAs should achieve. By linking individual decisions to substantive parameters – such as the best available science on cumulative emissions, remaining carbon budgets, and emission reduction pathways – EIA procedures can transform general climate obligations into concrete constraints on administrative decision-making.

The point, therefore, is not merely to ensure that climate change is mentioned or considered in an environmental assessment, but to move beyond limited and ineffective initiatives by requiring decision-makers to demonstrate how the authorization of an individual project aligns with the State’s broader climate objectives. In this sense, EIAs can become a genuine mechanism of climate accountability.

Suggested citation: Raffaele Roberto Severino, Environmental Impact Assessment: A Procedural Avenue for Enforcing Substantive Climate Obligations, Int’l J. Const. L. Blog, Sept. 8, 2026, at: http://www.iconnectblog.com/environmental-impact-assessment-a-procedural-avenue-for-enforcing-substantive-climate-obligations/

The post Environmental Impact Assessment: A Procedural Avenue for Enforcing Substantive Climate Obligations appeared first on www.iconnectblog.com.

Jamaica is asking King Charles to refer its questions to the Judicial Committee of the Privy Council. The Judicial Committee descends from bodies within the Privy Council that had both advisory roles and acted as tribunals of last resort for the entire British Empire. Today, the Committee mostly hears appeals, both civil and criminal, from Commonwealth Countries (with appeals from defendants sentenced to death in the Caribbean among the most prominent). Although rarely invoked, Section 4 of the 1833 Statute that created the Committee also gives it the power to issue advisory opinions on matters that “cannot be effectively decided in ordinary courts.” The King may choose (or refuse) to refer such matters to the Committee at his discretion, and typically also acts on the advice of his ministers. So in Jamaica’s bid to reach the Privy Council, King Charles is the gatekeeper, and Jamaica is at the gate. 

The King will almost certainly refuse to refer Jamaica’s questions to the Committee. Still, Jamaica’s decision to submit a public petition asking for a reckoning with slavery and its legacies has enormous symbolic and political power. By petitioning the King to seek advice from the Judicial Committee, Jamaica is engaging the judicial heir of the institution charged with overseeing the colonies and ensuring that colonial law did not contravene English law. In a sense, Jamaica is asking this institution to audit its own historical performance. 

Jamaica’s petition is shot through with other poignant ironies. First, the Jamaican government is simultaneously working to remove King Charles as its head of state. Petitioning the Judicial Committee, a legal residue of Britain’s Empire, is a kind of swansong to the Crown’s power. Second, while the King can technically use his discretion to refer questions to the Committee, he typically does so only on the advice of his ministers, who are part of the government of the United Kingdom. The King is, separately and simultaneously, the King of Jamaica, and it is in that capacity that Jamaica addresses him. So the King has competing loyalties—to Jamaica on the one hand, and to the UK Government, on the other. But the competition is unlikely to be a fair one. 

Jamaica’s petition includes three questions, the first of which is especially incisive:

The First Question: The Status of Slavery in English Law

Jamaica’s first question is whether the forced transport of Africans to Jamaica and their enslavement there was lawful at the time, or whether these practices were contrary to the fundamental principles of the common law, such that colonial slavery statutes were “void as repugnant to fundamental principles of English law.” While the King’s powers in England were limited by the rights of Parliament and statutory law conferring individual rights, the colonial territories were ruled by royal prerogative, with the Crown conferring powers on colonial governments. Colonial governments could promulgate laws that would apply locally, as long as they were not repugnant to English law. The limits on the Crown’s power in England did not extend to the colonies, and colonial governments’ discretion to promulgate their own laws created a legal grey zone. 

Jamaica’s question about the status of slavery under English law brings the legal tensions that characterized the patchwork law of empire into sharp focus. Although colonial law regulated slavery (the first Slave Codes were enacted by the colonial government in Barbados in 1661, and were subsequently adopted elsewhere), slavery had no foundation in English law itself. Because there was no law expressly authorizing enslavement, some enslaved persons who made their way to England from the colonies were able to successfully petition for their freedom. The status of enslaved people in the colonies as chattels remained contested until 1732, when Parliament enacted the Debt Recovery Act. The Act allowed English creditors to pursue “houses, lands, and negroes” for outstanding debts. Still, even after Parliament implied that English creditors could treat enslaved Africans as chattel when recovering debt, an English judge refused to recognize the ownership rights of a colonial enslaver who sought to assert them over an enslaved man he had brought to England. In Somerset v Stewart (1772), Lord Mansfield wrote that an institution as odious as slavery was “incapable of being introduced [to England] on any reasons, moral or political” and that “nothing can be suffered to support it, but positive law.” Mansfield understood that the decision had the potential to cause confusion by highlighting a gap between the laws of England and the practice of slavery in its territories, but he insisted that “whatever inconveniences…  may follow,” Mr. Somerset could not be held in bondage under English law. 

Across the centuries in which transatlantic slavery generated its fortunes, no situation forced the question of whether colonial statutes regulating slavery were “repugnant to the laws of England” and therefore void. This may seem striking, but the material interests of the Crown and the class of absentee Plantation owners steadily buying its way into Parliament explain why so many were perfectly content for the legal murkiness to persist. The enormous profits generated by plantation slavery allowed the Crown to rake in duties and plantation owners to amass the levels of private wealth that helped make the Industrial Revolution possible. 

Jamaica’s first question takes on this profitable murkiness. 

The Second Question: The Status of Slavery Under International Law

Jamaica’s second question asks whether the transport and enslavement constituted crimes against humanity (CAH) under international law for which the UK bears responsibility. In invoking CAH in reference to slavery, Jamaica’s question tracks a rhetorical move in the broader global movement for reparations. The Durban Declaration of 2001 described slavery and the slave trade as crimes against humanity and said that they “should always have been so.” In 2026, Ghana introduced a Resolution in the General Assembly describing slavery as “the gravest crime against humanity.” The notion that slavery today constitutes a crime against humanity is not in dispute. Framing the question in terms of CAH raises two intractable legal issues: a temporal one and a definitional one.  

First, Jamaica’s question gets at something both the Durban Declaration and Ghana’s Resolution elide. It is the thorniest part of the contemporary reparations debate: Was transatlantic chattel slavery illegal at the time it was practiced? The position of the United Kingdom, the European Union, and the United States is that slavery did not violate international law at the time, and that the present-day international law cannot and should not be applied retroactively. Furthermore, to the extent that the Crown or the UK engages with Jamaica’s questions, it will probably point to a further but distinct temporal issue: that “Crimes against humanity” is a legal category that entered positive law only after 1945, when it was invoked to try Nazi leaders. To ask whether conduct during and prior to the 19th century “constituted” CAH is to reach for a legal concept that did not yet exist.

Patrick Robinson, the Jamaican jurist and former judge of the International Court of Justice, has argued that a principle of humanity condemning the traffic in enslaved people ran through the whole period, so that “the substance of a prohibition preceded the doctrinal label.” But the legal instruments Robinson’s argument leans on, such as the 1815 Vienna Declaration, referred to the slave trade, which was more consistently condemned than the institution of slavery. Other scholars, including me, have argued that transatlantic slavery violated international legal norms of the time, which technically permitted enslavement, but not the brutal, racialized, hereditary enslavement that accompanied the emergence of capitalism in the New World. But, as written, Jamaica’s question asks whether slavery was a crime against humanity—not whether it violated international law more broadly. 

The framing of slavery as a crime against humanity creates a further difficulty: CAH is a category that belongs to international criminal law, which assigns guilt to individuals, not states. At Nuremberg, the Tribunal declared that “crimes against international law are committed by men, not abstract entities”; the International Law Commission eventually abandoned the inclusion of a category of state crimes in its Draft Articles on State Responsibility. The Draft Crimes Against Humanity Convention (which, if enacted, would be a standalone treaty for CAH, similar to the Genocide Convention) does provide, at Article 3, that a state must not engage in acts that constitute crimes against humanity. However, the bulk of the Draft Convention focuses on individual criminal liability, setting out how states should criminalize and prosecute CAH domestically and cooperate to bring those who commit these crimes to justice. For better or for worse, jurisprudence suggests that states are not the kind of defendant that the notion of CAH contemplates.

These difficulties could have been avoided by framing the second question around whether slavery and the slave trade violated international law more generally. This would have invited a reckoning with recent scholarship on this question (for example: here, here, and here), which has argued that transatlantic chattel slavery violated the law of nations and general principles of international law as they would have been understood in the early modern period. Despite these difficulties, the question’s final clause pulls it back toward firmer ground. In asking whether the UK “bears responsibility,” it puts the real issue to the Committee: not whether Britain violated international criminal law, but whether it is responsible for a wrong. That is a question of state responsibility, and it is the heart of the matter.

The Third Question: Responsibility for Slavery’s Contemporary Legacies 

Jamaica’s third question asks whether the UK owes the Jamaican people a remedy for both the historical wrong and its continuing consequences. That final clause opens a distinct and more durable route to reparation, one not mired in the status of slavery under eighteenth-century law. The Committee on the Elimination of Racial Discrimination, and the former U.N. Special Rapporteur on Racism Tendayi Achiume, have pressed the point that slavery’s legacy continues long after abolition: it persists in structures of racial disadvantage whose maintenance is a present matter, engaging present obligations under international law. Redress for the enduring legacies of slavery may be owed as a matter of contemporary human rights law even if Britain refuses to concede that slavery was unlawful when it occurred. The obligation attaches to the enduring legacy rather than the underlying historical wrong.

Jamaica’s Petition Forces a Confrontation 

The King will almost certainly not refer these questions to the Judicial Committee of the Privy Council as Jamaica has requested him to do. By settled convention, the King exercises his discretionary power to refer questions to the Committee on the advice of his ministers. This means, in substance, that the U.K. government will help decide whether a U.K. appellate body may examine the U.K.’s liability for the harms of slavery. The U.K. government’s position is not difficult to predict. 

Still, even if it does not move forward, Jamaica’s petition is meaningful. The King’s refusal to entertain Jamaica’s questions—made as a public petition from a Commonwealth country—would likewise be a public, concrete act of avoidance. Jamaica cannot compel an answer, but in submitting this petition, it is snatching from the Crown the ability to maintain the silence that has served it for three centuries. The petition converts silence from a background condition into a public act. Although the reckoning Jamaica and other Caribbean countries long for may never come from the Privy Council, its demand for it is now on the record.

In this weekly feature, I-CONnect publishes a curated reading list of developments in public law. “Developments” may include a selection of links to news, high court decisions, new or recent scholarly books and articles, and blog posts from around the public law blogosphere.

To submit relevant developments for our weekly feature on “What’s New in Public Law,” please email iconnecteditors@gmail.com.

Developments in Constitutional Courts

1. The Supreme Court of India upheld execution by hanging as constitutional under Section 354(5) of the Code of Criminal Procedure, 1973, and Section 393(5) of the Bharatiya Nagarik Suraksha Sanhita, 2023, rejecting a plea to switch to methods like lethal injection or shooting. The Court held that hanging’s constitutionality was already settled in a prior binding decision by a larger bench, which they had no power to overturn, but left the door open for future scientific evidence to prompt a fresh challenge before an appropriately larger bench.
2. The General Court of the European Union upheld the European Commission’s decision not to review its own rules on how much greenhouse gas each EU country is allowed to emit. Two civil society groups had argued the Commission’s climate targets were not ambitious enough, but the Court said the Commission only implements targets set by lawmakers and it cannot be asked to overrule them. The ruling matters because it closes off one of the few legal routes citizens had to challenge whether the EU’s climate goals are strong enough.
3. A US District Court in Maryland issued a preliminary injunction against the enforcement of President Trump’s two August executive orders narrowing birthright citizenship, finding they conflict with the Supreme Court’s ruling in Trump v Barbara that children born in the US to unlawfully or temporarily present parents are citizens under the Fourteenth Amendment. The Court held that stripping constitutional citizenship from members of a class the Supreme Court had already recognized would cause irreparable harm, underscoring that a lower-court injunction can enforce, but not revisit, a binding Supreme Court precedent the executive branch is bound to follow.
4. Romania’s Constitutional Court upheld a new law that will remove Timișoara’s mayor, Dominic Fritz, from office over a conflict-of-interest finding from before the law existed. The Court said this case was different because it was not punishing Fritz again, and only addressing the “ongoing effects” of his past conduct. Three dissenting judges disagreed, calling this reasoning a workaround that guts the ban on retroactive punishment and also violates the voting rights of EU citizens, since Fritz was elected fairly under the old rules.
5. The European Court of Human Rights ruled that Türkiye’s continued detention of civil-society figure Osman Kavala since 2017 is unlawful, finding violations of his rights to free expression, peaceful assembly, a fair trial, and liberty under the European Convention on Human Rights. The majority held that Turkish courts never established a genuine causal link between Kavala’s lawful activism and the violence of others during the 2013 Gezi Park protests, reaffirming that free-speech and assembly rights do not disappear simply because a third party turns violent.

In the News

1. Poland has started legally recognizing same-sex marriages performed in other EU countries. This follows a chain of rulings: the EU’s top court said in late 2025 that Poland must recognize such marriages, Poland’s own top administrative court agreed in March 2026, and registry offices began applying this in practice on 22 August 2026. This happened even though Poland’s president vetoed related bills in July and the country’s Constitutional Tribunal ruled against recognition days later.
2. New Zealand’s Parliament passed a law that makes it impossible to sue companies (or the government) in court for damage caused by their greenhouse gas emissions, even for lawsuits that are already underway. This ended a major ongoing case, Smith v. Fonterra, in which a Māori leader had been suing New Zealand’s biggest polluters over climate harm to his land, and where the courts had already ruled the case could go to trial.
3. The UN Committee on the Elimination of Racial Discrimination stated that states have a legal obligation under the International Convention on the Elimination of All Forms of Racial Discrimination to consider comprehensive reparations for the transatlantic slave trade, framing its continuing effects as an ongoing rather than purely historical harm. General Recommendation No. 40 holds that because slavery’s legacy operates through structural and institutional discrimination against people of African descent, remedies owed under the Convention must extend beyond individual redress to monetary, non-monetary, and structural measures, building on the UN General Assembly’s March resolution recognizing the slave trade as “the gravest crime against humanity,” which the US and some European states opposed.
4. The US House of Representatives failed to advance a Republican-backed joint resolution to amend the Constitution and permanently fix the Supreme Court’s size at nine justices. The Constitution establishes the Court but leaves its size to Congress, which set the current number in 1869 after adjusting it several times since the Judiciary Act of 1789, meaning the proposal’s failure preserves, rather than resolves, the long-running possibility that a future Congress could alter the Court’s composition by ordinary statute.
5. Libya’s rival factions signed a draft agreement charting a path to elections within two years, leaving the permanent constitution to be drafted by the newly elected parliament. The deal gives the House of Representatives and High Council of State one month to ratify it domestically. If either body fails to do so, the parties intend to seek its adoption as a constitutional document through broader national mechanisms backed by the UN Security Council, a fallback that raises questions about the document’s domestic legal authority if it bypasses Libya’s own legislative bodies.

New Scholarship

1. Leonard F.M. Besselink, Nicola Lupo, Mattias Wendel (eds.), Research Handbook on European Constitutional Law (Edward Elgar Publishing, 2026).
2. Yash Sinha, ‘Follow the Wound, Not the Weapon: The Basic Structure Doctrine Can and Must Apply to Laws‘ Comparative Constitutional Law & Administrative Law Journal (2026).
3. Asang Wankhede, ‘The Legal Impossibilty of Maratha Reservations‘ Comparative Constitutional Law & Administrative Law Journal (2026)
4. Ashna Devaprasad, Judges, Speaking Of Death: Criminal Sentencing As A Socio-Cultural Practice In India’s Trial Courts, Socio-Legal Review (2026).
5. Prerna, Recording Transgender Parenthood, Economy & Political Weekly (August 22, 2026)

Calls for Papers and Announcements

1. The Austrian Review of International and European Law invites submissions for volume 31 (2026) by 30 October 2026.
2. The NLUJ Law Review invites submissions for volume XIII, issue 1, by 25 September 2026.
3. Dr Anna Młynarska-Sobaczewska (Institute of Law Studies of the Polish Academy of Sciences) invites submissions for an edited volume titled The Right to Housing – Between Utopia and Justiciable Entitlement. The deadline is 30 September 2026.
4. Applications are invited for The Academy in Advanced Legal Research and Method, convened by the Transnational Association of Legal Scholars. The deadline is 1 October 2026.
5. NUJS Kolkata SILP Blog invites posts marking the 80th anniversary of the International Court of Justice. The deadline is 4 October 2026.

Elsewhere Online

1. Ritwik Sharma, When Must The Supreme Court Answer? Re-Thinking Discretion Under Article 143 Through The ‘Institutional Mechanics Effect’, National Law School of India Review Online (12 August 2026).
2. Angela van der Berg, The Constitution Meets the Climate, Verfassungsblog (3 September 2026).
3. V. Venkatesan, When an AI hallucination enters an executive order, Supreme Court Observer (3 September 2026).
4. Camilo Saavedra Herrera, Bargaining Among Partners: Mexico’s 2026 Constitutional Reforms, ConstitutionNet, International IDEA (3 September 2026). 
5. Sahil Hussain Choudhury, Untouchability and the idea of ‘purity’, The Hindu (2 September 2026).

The post What’s New: Week of September 7 appeared first on www.iconnectblog.com.

• Gábor Levente Kozma & Murilo Lubambo de Melo, Strategic Lawsuits Against Public Participation in a Cross-Border Context: Anti-SLAPP Legislation and the Role of the Private International Law Regimes in the EU and England
• Louisa Handel-Mazzetti, Space Defense or Space Weapon? Assessing the Legality of the Golden Dome Under International Law
• Tamer Morris, Information Warfare and the Protection of Civilians in Armed Conflict
• Shuyuan Zhang & Gustavo Arosemena, Theorizing the Adjudication of Economic, Social and Cultural Rights: A Legal Process Perspective on Jurisprudence from the Global South
• Christian Riffel, Good Faith in Exception Clauses: An Abus de Bonne Foi?

     

The collapse of the Central American Court of Justice

Anny Matamoros Pineda examines the collapse of the Central American Court of Justice (CACJ) following Honduras’s withdrawal in May 2026, situating it within the Court’s troubled history as one of the world’s earliest permanent international courts. Despite its ambitious jurisdiction and attempts to emulate CJEU doctrines such as primacy, direct effect, and the role of national courts as Community law courts, the CACJ never secured sufficient political support or authority within the Central American Integration System. Its demise reflects not merely institutional design failures but deeper regional problems of political fragmentation, democratic erosion, corruption, and weakening commitment to regional integration and the rule of law.

State responsibility for historical climate emissions 

Tonmoy Halder argues that the ICJ’s 2025 Climate Change Advisory Opinion does not exclude historical emissions from State responsibility, but leaves unresolved how responsibility for cumulative climate harm should be apportioned among multiple emitting States. Drawing on Article 47 ARSIWA, the ICJ’s judgemtn in Armed Activities, and Judge Simma’s separate opinion in Oil Platforms, he proposes a two-stage model: collective attribution of climate harm to emitting States, followed by proportional or “market-share” allocation of particular losses according to individual contributions. This approach could operationalise the Court’s causation framework in future claims by climate-vulnerable States such as Bangladesh, although substantial evidentiary challenges remain in translating attribution science into quantified reparation.

Managing the Strait of Hormuz

Soheil Golchin and Seyed Hossein Sadat Meidani put the case that debates over Iranian charges for navigation through the Strait of Hormuz should move beyond the legality of transit tolls under Article 26 UNCLOS towards the neglected burden-sharing framework of Article 43 UNCLOS. Read alongside Articles 41–42, Article 43 provides for cooperation between strait and user States in financing navigational and safety infrastructure without making payment a condition of passage. Drawing on the cooperative mechanism developed for the Malacca and Singapore Straits, Soheil and Seyed propose a comparable Iran-Oman framework through which user States could contribute to maritime services while preserving applicable passage rights—as it were, a “Malacca-isation” of Hormuz.

Illegal population transfer in Ukraine

Veronika Vozniuk argues that Russia’s incentives for civilians to settle in occupied Ukrainian territory may constitute a prohibited population transfer under Article 49(6) of the Fourth Geneva Convention, notwithstanding the formally voluntary character of individual relocation. Drawing on the ICJ’s 2004 Wall and 2024 OPT Advisory Opinions, she contends that Article 49(6) encompasses State measures that encourage or sustain settlement, not merely forcible transfers. Russia’s redistribution of confiscated Ukrainian homes, preferential mortgages, tax and investment incentives, and long-term population planning therefore provide strong grounds for finding an organised policy of demographic settlement contrary to Article 49(6), alongside potential violations of Article 46 of the Hague Regulations.

Safe third country return and diplomatic assurances

Tamar Vardiashvili examines the ECtHR’s judgment in J.B. v. Greece. The case concerned the potential removal of a Syrian national from Greece to Türkiye under the EU-Türkiye Statement after the rejection of his asylum claim on safe third country grounds. The Court struck out the applicant’s substantive Article 3 complaint concerning his removal to Türkiye, found no violation of Article 13 taken with Article 3 as regards the examination of his asylum claim, and found a violation of Article 3 concerning the conditions of his detention at Mytilene police station. The judgment’s significant doctrinal question concerns its treatment of assurances supporting return to Türkiye: Tamar argues that it adapts rather than abandons the reliability test for diplomatic assurances established in Othman (Abu Qatada) v. United Kingdom. J.B. suggests that, within structured interstate cooperation frameworks such as the EU-Türkiye Statement, Article 3 ECHR may be satisfied by general rather than individualised assurances where evidence demonstrates that safeguards operate effectively in practice and are not undermined by systemic deficiencies. However, the Court fails to specify what evidence establishes such institutional reliability, a significant omission given Türkiye’s subsequent suspension of readmissions and the CJEU’s insistence in Case C-134/23 that formal safe third country arrangements cannot substitute for their effective operation.

Free education under international law

Bede Sheppard makes the case that international law takes an unjustifiably fragmented approach to free education, imposing clear obligations for primary education while treating free secondary education as something that can be realised progressively and largely omitting pre-primary education. Tracing inconsistencies across the ICESCR, CRC, UNESCO Convention Against Discrimination in Education, treaty-body interpretations, and regional human rights systems, he contends that children’s entitlement to free education currently varies according to age, treaty regime and geography. What is needed is a new Optional Protocol to the CRC guaranteeing free public pre-primary and secondary education: this would harmonise rather than fragment existing international law and strengthen equal access to the right to education.

The relationship between IHL and IHRL

Marko Milanovic gives us an update on the relationship between IHL and IHRL and lex specialis. The ECtHR’s merits judgment in Ukraine and the Netherlands v. Russia and the ICJ’s recent advisory opinions on Policies and Practices, Climate Change, and UNRWA, probably constitute the most significant judicial engagement ever with this relationship: and they have largely abandoned lex specialis as the framework for the relationship between IHL and IHRL in favour of simultaneous application and harmonious interpretation. Contrast this judicial trend with Human Rights Council Resolutions 62/4 and 62/20 (2026), which revive lex specialis terminology; however, this should be understood only as permitting IHL to inform the interpretation of IHRL rather than displacing it. Looking ahead to CESCR’s proposed General Comment on armed conflict, the Committee should avoid using lex specialis, and instead embrace the opportunity to explain that socio-economic rights can be violated in armed conflict even if IHL was not violated, as IHRL can offer a big-picture, macro analysis of the aggregate harms that military operations have inflicted on a civilian population in ways that IHL cannot.

Faulty nuclear reactors on the Moon?

Yunus Emre Bakiler and Güneş Ünüvar examine whether existing international law adequately addresses liability for accidents involving nuclear reactors on the Moon, as nuclear power becomes increasingly central to sustained lunar operations. While the Outer Space Treaty and 1972 Liability Convention impose State responsibility and differing standards of liability for terrestrial and space-based damage, they are poorly adapted to nuclear risks such as contamination, latent injury, and economic loss. The Vienna and Paris nuclear liability regimes provide more tailored rules but their application to lunar installations remains uncertain. A dedicated civil-liability framework for lunar nuclear power is needed, drawing on terrestrial nuclear law’s strict operator liability, financial-security, and compensation mechanisms while preserving existing State responsibility under Articles VI–VII OST and the Liability Convention.

And as ever, announcements can be found here.

• Elena Baylis, Returning Looted Cultural Heritage
• Gregory H. Fox, Neutralizing Neutrality: Aid to Victim States in Armed Conflict
• Rosa Kim, Preparing Globally Competent Lawyers

     

• Michelle Qingzi Zang, Rekindling the Multilateral Discourse on Process and Production Methods under the Contemporary Trade-Environment Nexus
• Sébastien Noël, Assessing the Barriers to the EU’s Green and Low-Carbon Hydrogen Imports
• Yanwen Zhang, Investor-State Dispute Settlement Reform in and by International Organisations
• Anastasios Gourgourinis & Alexandros Papadimitriou, Micro, Small and Medium-Sized Enterprises Owned or Led by Members of Under-Represented and Disadvantaged Social Groups: Inclusive Entrepreneurship through Free Trade Agreements

     

Greece is entering a new phase of constitutional debate. In 2026, the country opened the process for a new constitutional revision, presenting a broad package of proposed amendments concerning, among other matters, the functioning of the state, justice, public administration, education, taxation and the relationship between citizens and public institutions. The process is still at an early stage: under Article 110 of the Greek Constitution, constitutional revision is subject to a deliberately demanding, two-stage parliamentary procedure involving successive Parliaments and qualified majorities. The present debate is therefore not simply about individual amendments, but about the constitutional direction of the Greek Republic in the coming decades.

It is in this wider context that PASOK (Socialist Party) has proposed that the Greek Constitution should expressly recognise the State’s obligation to protect women from gender-based violence and femicide (incorporated in the existing Art. 5 which guarantees the general right to personality). The proposal was formally introduced in 2026 in the context of the constitutional revision process. PASOK proposes the addition of a provision stating that “protection from gender-based violence and femicides is an obligation of the State”. The proposal is significant because it does not simply seek to create a new criminal offence. Its objective is to establish at the constitutional level an explicit state obligation to protect against gender-based violence and femicide. The proposal should therefore be understood primarily as a constitutional provision concerning equality, protection, and positive state obligations, rather than simply as an attempt to insert a criminal-law definition into the Constitution.

The proposal also needs to be understood against the background of the Greek constitutional tradition concerning gender equality. The Greek Constitution of 1975, adopted following the restoration of democracy, expressly established in Article 4(2) that Greek men and women have equal rights and obligations. This was more than a simple application of the general principle of equality. By expressly naming women and men, the Constitution recognised gender equality as a matter of particular constitutional significance. The provision formed part of the broader transformation of Greek private and public law that accompanied the democratic transition and the progressive dismantling of legal inequalities between men and women.

Greek constitutionalism subsequently moved from formal equality towards substantive equality. This development became particularly clear with the constitutional revision of 2001. Article 116(2) was amended to provide that the adoption of positive measures for promoting equality between men and women does not constitute sex discrimination. At the same time, the Greek Constitution imposed on the State a duty to take measures to eliminate inequalities existing in practice, particularly inequalities to the detriment of women. The provision is constitutionally important because it acknowledges that treating individuals identically is not always sufficient to achieve equality. Where social structures produce persistent inequalities, the Constitution may require differentiated or affirmative measures.

This constitutional development has provided the foundation for policies such as gender quotas and other forms of affirmative action. The Greek constitutional order therefore already accepts an important principle that is sometimes overlooked in the present debate: women are not protected exclusively through a formally gender-neutral conception of individual rights. The Constitution itself recognises that historical and structural inequalities between men and women may justify specific state intervention. The constitutional legitimacy of quotas and positive measures is therefore not an exception to Greek constitutionalism; it is part of its post-2001 understanding of substantive equality.

At the same time, however, the Greek Constitution has traditionally avoided constructing an extensive catalogue of group-specific constitutional rights. Its fundamental rights chapter remains predominantly individualistic. Rights belong to persons and citizens, and constitutional protection is generally articulated through universal principles such as human dignity, equality, personal liberty, freedom, privacy and effective judicial protection. Even where the Constitution expressly refers to particular categories, such as children, persons with disabilities or the family, it generally does so within this broader framework rather than through a comprehensive theory of constitutional group rights.

The proposal concerning femicide would therefore be constitutionally interesting precisely because it sits at the intersection of these two traditions. On the one hand, it would be entirely consistent with the constitutional recognition of substantive gender equality and the legitimacy of positive measures. On the other hand, it would represent a further step towards the explicit constitutional recognition of a particular form of violence experienced predominantly by a particular group. The distinction matters. Femicide is not simply another word for the killing of a woman. The concept is intended to identify killings of women connected with gender-based discrimination, domination, misogyny, or other forms of gender-related violence.

The constitutional recognition of femicide would consequently signal that certain killings cannot be understood solely as isolated acts between individuals but may also reflect structural forms of inequality. Constitutional recognition would thus give a particular dimension to the State’s positive obligation to protect life, dignity and equality. There is a strong argument in favour of such a development. Constitutions do more than allocate powers between institutions. They also identify the fundamental values that a political community regards as sufficiently important to warrant constitutional protection. Explicit recognition of gender-based violence could strengthen the interpretative obligations of the legislature, administration, and courts. They could also make prevention and protection part of the constitutional understanding of gender equality, while giving constitutional visibility to a phenomenon that ordinary criminal-law categories may obscure.

The proposal should nevertheless be assessed carefully. There is an obvious constitutional argument against transforming the Constitution into a catalogue of specific crimes. The criminal law requires precision, while constitutional provisions are generally formulated at a higher level of abstraction. If the Constitution were to define femicide as a specific offence, difficult questions would arise concerning intent, motive, evidentiary standards, and the relationship between the constitutional provision and the Greek Criminal Code. A more constitutionally coherent approach may therefore be to establish a state duty to prevent and combat gender-based violence and femicide, while leaving the precise definition of criminal offences to ordinary legislation.

The comparative experience is particularly useful in this respect. Italy provides the most recent and politically prominent European example. In 2025, the Italian Parliament adopted legislation introducing femicide as an autonomous criminal offence. Italy thus chose the criminal-law route rather than constitutionalisation. The Italian legislation defines femicide through the gender-related character of the killing and accompanies the new offence with strengthened provisions concerning other forms of violence against women.

Italy is not, however, the only European example. Croatia introduced femicide into its Criminal Code in 2024. Cyprus and Malta have also developed specific legal approaches to gender-related killings, while Belgium and North Macedonia have adopted legal measures addressing femicide or gender-related killings in different forms. The precise legal techniques differ considerably: in some jurisdictions femicide operates as an autonomous offence, while in others gender-related motivation functions as an aggravating circumstance or forms part of a broader legislative framework.

The European comparison therefore suggests that there is no single European model of legal recognition. EU Member States have adopted different approaches, ranging from specific offences to aggravating circumstances and broader measures concerning prevention, victim protection and data collection. EU law itself does not currently require Member States to create a separate criminal offence of femicide. The EU’s 2024 Directive on combating violence against women and domestic violence addresses a wide range of gender-based violence but does not establish femicide as a distinct EU-level offence.

The Latin American experience is even more relevant to the conceptual history of the term. Countries such as Mexico, Argentina, Ecuador, Colombia, and others have developed specific legal frameworks addressing femicide or feminicide, generally in response to the recognition that ordinary homicide law may fail to capture the gendered character of killings of women. In Latin America, the concept has often been linked not only to the conduct of individual perpetrators but also to state responsibility, impunity, and institutional failures in the investigation and prosecution of violence against women. The experience of the region consequently provides a broader conception of femicide than the purely punitive model that can sometimes dominate European discussions.

Comparative evidence also introduces an important caution. The existence of a specific femicide offence does not automatically produce lower levels of violence against women. The effectiveness of such legislation depends upon enforcement, institutional capacity, accurate data, effective protection orders, access to shelters and support services, police and judicial training, and preventive policies. Criminalisation alone cannot address the structural causes of femicide. This is particularly relevant for constitutional law. A constitutional amendment can establish a duty, a value and a framework for state action; it cannot by itself guarantee the effectiveness of the institutions responsible for implementing that duty.

There is therefore a genuine constitutional case both for and against the PASOK proposal. The argument in favour is that explicit constitutional recognition would constitute a further development of the Greek principle of substantive gender equality. It would make clear that the State’s obligation to protect women from gender-based violence is not merely a matter of criminal policy but a constitutional obligation. It could also strengthen the normative connection between Article 4(2), which establishes equality between men and women, and Article 116(2), which permits and requires positive measures to overcome inequalities in practice.

The argument against it is primarily one of constitutional architecture. Greece has historically relied on general constitutional rights rather than a detailed system of group-specific constitutional guarantees. If femicide is constitutionally recognised, questions immediately follow: should other forms of gender-based violence receive explicit recognition? Should the Constitution refer separately to violence against children, persons with disabilities, elderly persons or other vulnerable groups? And if not, according to what constitutional principle should some forms of violence receive express constitutional status while others remain protected through general rights? These questions do not make the proposal illegitimate, but they reveal that its consequences extend beyond the protection of women.

There is also a potential distinction between constitutional recognition of women as a group and constitutional recognition of gender-based violence as a structural phenomenon. The latter may fit more comfortably within the existing Greek constitutional framework. The Constitution need not necessarily become a catalogue of group rights to recognise that certain forms of violence arise from structural inequalities. A carefully drafted provision could impose upon the State an explicit obligation to prevent and combat gender-based violence and femicide while leaving Parliament responsible for defining the relevant offences and sanctions. Such an approach would preserve the distinction between constitutional principle and criminal legislation while nevertheless giving the phenomenon a new constitutional status.

The broader constitutional revision makes this question particularly timely. The Greek Constitution is not being amended in isolation from the social and institutional changes of the last decades. The current revision debate concerns the relationship between the individual and the State, the effectiveness of institutions and the capacity of constitutional law to respond to new social and technological challenges. The proposal on femicide therefore raises a fundamental question about what a twenty-first-century Greek Constitution should protect explicitly. Should constitutionalism remain centered on universal individual rights, trusting general equality guarantees to address specific forms of vulnerability? Or should the Constitution increasingly acknowledge structural inequalities and impose explicit positive duties upon the State?

The Greek experience suggests that the answer need not be binary. The Constitution has already moved from formal equality to substantive equality through Article 116(2), while retaining an essentially individual-rights-based architecture. A constitutional provision concerning femicide could be understood as the next stage of this development rather than as a complete departure from the constitutional tradition. Its significance would lie less in creating a new criminal offence than in declaring that the protection of women against gender-based violence forms part of the State’s constitutional responsibility.

For this reason, the debate should not be reduced to the question of whether femicide deserves harsher punishment. Italy and the other European examples demonstrate that this is only one possible legal response. The deeper question is whether the Greek Constitution should expressly recognise gender-based violence as a constitutional problem and whether the State should bear an explicit positive obligation to prevent it. In that sense, the PASOK Socialist Party proposal is potentially more significant than its immediate political context suggests. It places before the constitutional revision process a question about the evolution of Greek constitutionalism itself: whether a Constitution traditionally built around universal individual rights can, without abandoning that tradition, also recognise the structural forms of inequality that shape the experience of particular groups. The answer will determine not only how Greek constitutional law speaks about femicide, but also how it understands equality in the decades to come.

Suggested citation: Christina M. Akrivopoulou, Femicide and the Greek Constitution: Gender Equality in a New Constitutional Moment, Int’l J. Const. L. Blog, Sept. 4, 2026, at: http://www.iconnectblog.com/femicide-and-the-greek-constitution-gender-equality-in-a-new-constitutional-moment/

[1] Contacts: akrivopoulou@eap.gr; akrivopoulouchristina@gmail.com

The post Femicide and the Greek Constitution: Gender Equality in a New Constitutional Moment appeared first on www.iconnectblog.com.

• Special Issue: Environmental Impact Assessment
• Mateusz Slowik & Benoit Mayer, Editorial Introduction: Environmental Impact Assessment and Climate Change
• Yanmei Lin & Xiangbai He, Integrating Climate Change into Environmental Impact Assessment: China’s Pilot Policy and Practice
• Chris Joseph & Tara Marsden, Gitanyow Climate Test: Intersection of Major Projects, Climate, and Indigenous Reconciliation
• Rafaela Santos Martins da Rosa & Bruno Teixeira Peixoto, Incorporating Climate Change into Licensing and Environmental Impact Assessment in Brazil
• Orla Kelleher, Climate Assessments, Framework Climate Laws, and Public Sector Climate Duties: Lessons from Planning Cases in the United Kingdom and Ireland
• Santiago Salvador, Regulatory Simplification of Environmental Impact Assessment in Spain: Accelerating Renewable Energy at What Cost?
• Laura Hildt, The European Climate Law Consistency Assessment: A Persistent Failure Turned Litigation Opportunity?
• Alessandra Accogli, The Irish Case of Coyne v. An Bord Pleanála: Assessing Indirect Climate Impacts Under the EU EIA Directive
• Special Issue: Advisory Opinions on Climate Change
• Margaret A. Young & Beatriz Martinez Romera, The Advisory Opinions’ Remarkable Significance for International Law
• Catherine Amirfar, David Freestone, Duncan Pickard, & Beatrice Walton, When Science Meets Law: Climate Law and International Environmental Adjudication After the ICJ and ITLOS Advisory Opinions
• Nilüfer Oral, Convergence and Coherence: A Judicial Dialogue Between the ITLOS and ICJ Advisory Opinions on Climate Change
• Daniel Bodansky, How Authoritative is the ICJ Climate Change Advisory Opinion?
• Yoshifumi Tanaka, Legal Consequences of Obligations Erga Omnes in the Context of Climate Change: Some Observations on State Responsibility in the ICJ Advisory Opinion on Climate Change
• General Articles
• Katja Kurki & Seita Vesa, Proceduralization of EU Climate Governance: Advancing Understanding of the Implementation Challenge
• Calum MacLaren, Measuring Accountability in European Corporate Climate Litigation

     

Where substantial executive authority is concentrated in a single officeholder, the modern presidency rests on an increasingly implausible institutional assumption: that one person can exercise meaningful judgement across the entire range of executive government. In many contemporary presidential systems, presidents are expected to exercise or coordinate authority across foreign policy, defence, economic management, public administration, constitutional affairs, political communication and crisis response, often under severe time pressure. The precise distribution of authority varies between constitutional systems, but the underlying concentration remains: politically consequential and cross-departmental decisions frequently converge on a single officeholder. No individual can possess adequate expertise in all these fields, continuously evaluate the information produced by extensive bureaucracies and still deliberate carefully about every consequential decision. The problem is therefore not only that presidents may possess too much power. It is also that they may be assigned more decisional responsibility than one person can competently exercise. The singular presidency can become a cognitive bottleneck. This cognitive constraint provides a distinct constitutional argument for considering plural forms of executive authority.

An Office Beyond Individual Capacity

The classic debate over presidentialism has centred on the concentration of executive power, the competing democratic mandates of presidents and legislatures, fixed terms and the risk of institutional conflict or democratic breakdown. Subsequent comparative assessments have qualified some of these claims, while recent constitutional scholarship has renewed attention to chief-executive aggrandisement and the personalisation of political authority. These concerns remain important, but they primarily address how presidential power is acquired, constrained or abused. They pay less attention to whether the responsibilities concentrated in a singular presidency can be discharged adequately by any one person.

The attention a president can devote to consequential executive matters is necessarily scarce. Matters tend to reach the president because they are unusually consequential, urgent, disputed or cross-departmental. Each may require the officeholder to reconstruct a different factual context, assess evidence filtered through institutions with competing priorities, compare uncertain forecasts and determine which risks are acceptable. While one matter receives sustained attention, others must be postponed, delegated or decided through compressed briefing. Government departments can investigate and deliberate on many problems in parallel, but the matters referred to the president must pass through the largely serial attention and judgement of one person. The bottleneck therefore lies not simply in the quantity of presidential work, but in the convergence of multiple decision-making processes upon a single, cognitively bounded officeholder.

This is an institutional rather than a personal criticism. Exceptional intelligence, experience and diligence may extend the range of matters a president can understand, but they cannot remove finite limits on time, attention, memory and domain-specific expertise. Research on bounded rationality has long rejected the assumption that organisational decisions are made by fully informed actors with unlimited powers of calculation. Experimental research also shows that switching between tasks produces measurable costs, particularly as the relevant rules become more complex. Presidential government does not become defective only when an incompetent person occupies the office. The mismatch persists even under an unusually capable president.

The growth and centralisation of executive administration have made that mismatch more consequential. The United States provides a particularly clear example: scholarship on presidential administration has documented the increasing direction of administrative and regulatory activity from the president and the Executive Office. Institutional arrangements differ elsewhere, but the same problem arises wherever expanding executive functions are coordinated through a single final office. Governments may enlarge the machinery surrounding the president without correspondingly enlarging the constitutional capacity of the person at its apex.

Why Delegation Is Not Enough

Presidents do not, of course, govern alone. Ministers, civil servants, military officials, scientific advisers and administrative agencies possess specialised knowledge and make many routine decisions. This division of labour is indispensable. It does not, however, eliminate the bottleneck.

The most politically sensitive, contested or consequential matters are precisely those most likely to be referred upwards. The president must still determine priorities and adjudicate between recommendations that may reflect different departmental jurisdictions, professional cultures, evidential standards, policy commitments and assessments of risk. Interdepartmental disputes are therefore not incidental to presidential decision-making. They are among the matters that require presidential resolution. Decisions that cross institutional boundaries create an additional burden because no single department can settle them independently. The president must ultimately decide which risks are acceptable and publicly explain and defend the resulting policy.

Delegation therefore increases the amount of expertise available to the presidency without proportionately increasing the president’s capacity to assess and integrate it. A larger advisory organisation may reproduce the bottleneck in a more elaborate form. More experts can broaden the analysis and preserve competing perspectives, but they also produce more evidence, more recommendations and more disagreement for the president to reconcile. Scholarship on presidential decision-making has long treated the organised presentation of competing views as a safeguard against poorly grounded decisions. More recent research on 2,685 foreign-policy deliberations involving United States presidents nevertheless shows that advisers’ dispositions affect both the counsel presidents receive and the decisions they make. The president must therefore decide not only between policy options, but also which information deserves attention, which adviser is reliable and which assumptions should guide the final judgement.

Advisers also operate within a hierarchy. Their influence ultimately depends on access to the president, while their recommendations may be shaped by institutional interests, political considerations and expectations about presidential preferences. Scholarship on presidential advisory systems has therefore emphasised the importance of preserving multiple channels of advice and preventing any one adviser or office from monopolising the presentation of alternatives. These arrangements can reduce the risks of filtered information and premature consensus, but they do not remove the underlying bottleneck. The system still ends with a single person choosing among competing recommendations.

The distinction is therefore between delegated assistance and distributed authority. Delegation allows others to inform or act on behalf of the president. A plural executive would instead give several officeholders independent constitutional responsibility for executive judgement.

The Cost of Concentrated Attention

Presidential attention is not merely a personal resource. Where final executive authority is concentrated in one office, it becomes a constitutional resource whose allocation affects which problems receive scrutiny, which disputes are resolved and which policies acquire momentum. Research on political attention begins from the premise that officeholders face a continuous supply of information but possess limited capacity to process it and must therefore prioritise among competing problems. The distribution of attention is consequently part of the exercise of political power.

This scarcity has several institutional effects. When many consequential matters compete for presidential consideration, briefings must be compressed, decisions may be delayed and greater weight falls on the advisers who select, frame and order the information presented. Matters that receive little presidential attention may still be decided through delegation, but then the claim that singular authority ensures presidential control becomes increasingly formal. The president remains publicly responsible for an extensive range of decisions without necessarily possessing the time or domain-specific understanding required to supervise each of them meaningfully.

This complicates the familiar defence of singular executives as especially accountable. The concentration of responsibility may make it easier to identify whom the public should blame, but identifiable responsibility is not the same as informed control. The assumption that presidential control necessarily strengthens accountability has itself been questioned, while scholarship on the unbundled executive argues that distributing executive authority can sometimes improve rather than obscure accountability. A constitutional structure should therefore be judged not only by whether responsibility appears concentrated, but also by whether the responsible officeholder can exercise sustained and informed judgement over the matters attributed to them.

The Case for Executive Plurality

Recent arguments for plural executives have emphasised the concentration of political power, chief-executive aggrandisement and the role of strongman leaders in democratic backsliding. The cognitive argument is complementary. Even a constitutionally restrained, conscientious and exceptionally capable president remains subject to finite limits on attention, expertise and deliberation. Executive singularity therefore presents a structural problem even when presidential power is neither abused nor expanded beyond its lawful boundaries.

Executive authority could instead be divided collegially, with several coequal officeholders sharing responsibility for major decisions, or functionally, with final authority over different policy domains distributed among separately authorised officials. The latter possibility has been developed in scholarship on the unbundled executive. The Swiss Federal Council provides the clearest existing example of the collegial form. Its seven members are of equal standing, each heads a federal department, and governmental decisions are taken collectively. The annually rotating president chairs the Council and performs representative functions but possesses no special authority over the other councillors.

Collegial and functionally divided executives differ substantially, but both prevent executive judgement from converging entirely upon one person. They allow several officeholders to maintain sustained attention to different areas of government and preserve partially independent channels of analysis. The case for plurality is therefore not only that it may restrain presidential power, but that it may distribute the cognitive burdens created by modern executive government.

Design Not Destiny

The familiar objections to executive plurality often mistake risks of particular designs for necessary features of plurality. In a functionally divided executive, clear jurisdiction can sharpen accountability because each officeholder bears final responsibility within a defined domain. In a collegial executive, collective decisions can entail collective responsibility, while portfolio administration remains attributable to individual councillors. Neither accountability nor effectiveness is inherently secured by singularity, and functional unbundling can preserve unitary authority within each assigned field.

Coordination likewise depends on institutional architecture. Verfassungsblog’s analysis of the European Commission attributes incoherence to overlapping portfolios and confused reporting lines, rather than to collegiality itself. Urgent action does not require a single officeholder either: the Swiss Federal Council exercised emergency powers collectively during the COVID-19 pandemic. The relevant objections therefore concern how plurality is designed, not whether plural executives can govern.

Beyond the Singular Executive

The central question is not whether plural executives are universally superior, but whether singularity should remain the constitutional default under conditions of modern governmental complexity. Concentrating final authority in one office may simplify hierarchy, yet it also concentrates finite attention, expertise and judgement. Delegation cannot remove that constraint where consequential disputes still converge on the president. Executive plurality deserves consideration not only as a safeguard against personal domination, but as a means of distributing the cognitive burdens of government. Constitutional design should therefore treat executive capacity, no less than power and accountability, as a central criterion.

Suggested citation: Maksym Mykhailenko, The Presidency Bottleneck: A Cognitive Case for Executive Plurality, Int’l J. Const. L. Blog, Sept. 3, 2026, at: http://www.iconnectblog.com/the-presidency-bottleneck-a-cognitive-case-for-executive-plurality/

The post The Presidency Bottleneck: A Cognitive Case for Executive Plurality appeared first on www.iconnectblog.com.

[Editor’s Note: This is one of our ICONnect columns. For more information on our 2026 columnists, see here.]

‘It all begins with Democracy in America’

Alexis de Tocqueville and we live worlds apart. When he arrived in America in 1831, the United States was just in her mid-fifties and busy conquering and colonizing the ‘free’ and ‘fair’ land from the mountains to the prairies and to the oceans. Last week when I finally settled down to a research stay at 22 Washington Square in New York, the United States of America was marking her semi-quincentennial, only to find herself engaged in multiple armed conflicts within and without her traditional sphere of influence. Despite nearly 200 years apart, however, both of us have come across an America that instantiates how a democracy – of restive masses – can be both energetic and fanatic, and creative and destructive at once. The difference is that Tocqueville saw more of energy and creativity in America’s first populist presidency, while American democracy’s fanatic and destructive force is on full display under the presidency of Trump 2.0.

Among the multiple conflicts the US is dragged into is the ongoing 2026 Iran War, which the President started but neither he nor the Congress alone – or in agreement with the President – seems to be able to end without the opposing belligerent to go along. Yet this seemingly interminable war further gives away how democracy in America is bound to end up in presidential militancy when claims of national security and constitutional supremacy are interlocked as some executive constitutionalism. The double helix of national security and constitutional supremacy is not a DNA exclusive to America’s invincible executive, though.

In Taiwan, a democracy whose international status remains contested, the executive is emerging as an invincible power at a time when the Taiwan Constitutional Court (TCC) is institutionally damaged and politically weakened, amid increasing popular concerns about national security. Portraying the opposition-controlled parliament (the Legislative Yuan) as a threat to national security when China is forcefully pressing her claim to Taiwan ahead, the executive has discovered an unrivalled constitutional weapon in its struggle with the parliament in the name of defending the constitution. By redirecting against the parliament, the Premier’s (the head of the Executive Yuan) constitutional countersignature vis-à-vis the head of state – i.e., the President, the de facto head of the executive in Taiwan – in the latter’s promulgation of parliament-adopted legislative bills, the executive is effectively vesting itself with an ultra executive veto over legislative bills, which even Trump would only envy. Still, there are differences between the US and Taiwan in the making of the invincible executive amid calls for executive constitutionalism. Let’s start with the American make of invincible executive.

‘The President is the protector’

The illegal nature of the 2026 Iran War has been much discussed and there is no need to repeat here what has been said. What is interesting to me is the weakness inherent in the adoption of House Concurrent Resolution 86 in June – which directed Trump to remove the US armed forces from his Iran war – as a concurrent resolution under the 1973 War Power Resolution. Trump’s defiant reaction to it indeed exposed the limits of the 1973 regime in governing the use of armed forces in America’s overseas intervention. As has been well documented in the literature, the legislative veto, in the form of concurrent resolution of both houses of the Congress and otherwise, allowed the Congress to rebalance its relationship with the executive branch in the post-nondelegation era. Yet, this rebalancing act was no more after the Supreme Court declared the legislative veto unconstitutional in INS v Chadha in 1983. Since then, the only way for the Congress to reverse an executive act is through legislation, which would eventually require two-thirds majority of each house of the bicameral Congress in the face of a defiant President. Given the post-Chadha constitutional infrastructure of the President-Congress interaction and the broad array of statutory provisions allowing for emergency power by decree, the US has found herself time and again in interminable wars and states of emergency willed by the President alone. The ill-fated House Concurrent Resolution 86 is not so much a one-off incident as a reflection of the state of the American constitution in the post-Chadha era.

Worsened by Chadha indeed, the invincible executive power as embodied by Trump 2.0, especially with his interminable illegal war with Iran and incredulous invocation of emergency powers to launch trade wars on allies as well as adversaries, has its seeds sown in the US Constitution itself. Trump’s hero, Andrew Jackson, during whose reign Tocqueville made his field trip for the landmark Democracy in America, made such executive constitutionalism abundantly clear in his relentless bank war and brutal displacement of Native Americans. The executive branch under the US Constitution is indeed to be checked and balanced by the legislative and judicial powers. Yet, from its inception onwards, the US presidency has been cast in an alternative image. The single-headed executive branch in the constitutional design was meant to maximize decisiveness, activeness, secrecy, and dispatch expected of effective government. The President was thus envisaged as a power full of ‘energy’. Read through this lens, the constitutional provision for the presidential oath, among others, has been construed as defining the role of the President: the designee under the Constitution to ‘preserve, protect and defend’ the constitutional order. Here emerges the US President as the energetic constitutional protector in the American constitutional imaginary.

Despite the limited nature of the President’s protective power, it has been read differently thanks to the brevity of the constitutional provision for the presidency. Long story short, with the popular expectation of modern Presidents to solve almost every significant political, military, social, and economic problem, and with the American republic turning into a national security state, the Congress has allowed Presidents to act without much constraint through broad statutory authorization. Under constant pressure to act with agility and forcefulness when time is of the essence and national security is at stake, US Presidents in modern times have departed from their designated role in the Constitution. The presidency, riding on popular expectation and congressional obsequiousness, has grown into the supreme protector of the American nation and the US constitutional order. Under the double helix of national security and constitutional supremacy inscribed into the body of the American constitution, the US has not only found itself in interminable wars and states of emergency from time to time but has also seen the President gradually emerge as the invincible power marking an executive constitutionalism at the expense of checks and balances.

‘The Government must defend the constitution against …’

As I have discussed in a series of commentaries (here, here, here, here, here, and here), Taiwan has been engulfed by a perfect constitutional storm since the 2024 general elections resulted in divided government at a time when the TCC saw seven of its fifteen members stepping down. I will not recap what I have previously said on this forum or elsewhere. For present purposes, suffice it to say, the TCC has been substantially weakened. Since it freed itself of the court-curbing statutory straitjacket in a ruling on 19 December 2025 that has divided its remaining eight members, the TCC has been left with limited institutional capacity and little political capital. In the meantime, the opposition-controlled parliament has been busy pushing through legislative bills notwithstanding the executive’s protest, while the China-hawkish executive has spared no effort in portraying the runaway parliament as a problem to national security to the public amid China’s vociferous threat to take over Taiwan by force if necessary. To supporters of the executive’s hawkish stance on China, even the abovementioned court-curbing statutory scheme stood as part of the opposition’s China-appeasing plot.

The executive-legislative conflict in Taiwan came to a head on 15 December 2025: following the parliament’s rejection of the Premier’s request for ‘special reconsideration’ – to be explained below – with respect to a legislative bill that would reallocate tax revenue from the central government to municipalities, the Premier, with the President’s support, unprecedentedly refused to countersign the latter’s promulgation of the revenue-reallocating bill. As a result, that bill was unilaterally killed by the President-headed executive. Citing the TCC’s crippled condition, the executive scrambled to justify its invocation of the countersignature provision on grounds of, inter alia, constitutional self-defence in preventing the enactment of an unconstitutional bill into law. Notably, at that time the TCC was still constrained by the court-curbing statutory straitjacket. Yet, following the TCC’s reinstatement, the Premier turned to the countersignature provision again on 6 February 2026 with respect to an amendment of a special statute regarding the rebuilding of former military quarters on grounds that it was unconstitutional. This time the Premier did not even request the parliament to reconsider the impugned bill under the mechanism of special reconsideration. Refusing to countersign, the Premier has since de facto vetoed another six parliament-adopted legislative bills on grounds of their alleged unconstitutionality. In this way, the President-headed executive seems to have accidently emerged as a new guardian of Taiwan’s constitutional order.

To simplify Taiwan’s complex constitutional history, the requirement for the Premier’s countersignature to the President’s promulgation of legislative bills passed by the parliament in the enactment of legislation is a legacy provision from the original 1947 Constitution, as amended by the Additional Articles. Under that historical design marked by traits of parliamentarism, the President appointed the Premier subject to parliamentary consent. The Premier’s countersignature was thus directed at the President, not the parliament. The closest constitutional provision to an executive veto in Taiwan’s Constitution – in its current form as well as the original design – has been the special reconsideration procedure mentioned above.  Under that mechanism, the Premier, with presidential approval, may request the parliament to reconsider the bill it has already passed if he disagrees and thereby suspend the bill’s enactment into law. Once the parliament rejects the Premier’s request by affirming the bill, he ‘shall immediately accept’ it in the current edition of special reconsideration procedure. As with the presidential veto in the US Constitution, the executive branch under Taiwan’s constitutional design just has no unilateral power to kill the legislative bill at will.

Read together with the special reconsideration mechanism, the countersignature requirement could by no means have been construed as giving the executive a veto power in the form of the Premier’s refusal to countersign that the parliament had no means to override. Following the 1997 constitutional reform giving the President the unilateral power to appoint and remove the Premier, the countersignature provision has effectively lost much of its constitutional significance and its residual clout remains directed at the President. In no way can it be rediscovered as the executive’s nuclear option in its struggle with the parliament. The legacy countersignature requirement would otherwise be turned into an ultra executive veto, making the executive invincible. Yet, acting as the new constitutional guardian when the TCC is at its lowest ebb and riding on the popular concern over national security, the current President-headed executive in Taiwan is self-empowered to kill any legislative bill in the name of defending constitutional supremacy. With the newly found ultra executive veto disguised as a legacy countersignature requirement, Taiwan is sleepwalking towards a militant executive constitutionalism where constitutional self-defence is directed at a contrarian parliament.

‘What is born out of the double helix of national security and constitutional supremacy?’

The invincible executive emerged in the US when national security and the protection of constitutional supremacy were interlocked into the cardinal principle of America’s constitutional survival. By the design of the US Constitution that allows for the rise of an invincible supreme protector from the chief executor of law, the President has led the US into interminable wars and states of emergency. In contrast, the President-headed executive in Taiwan has reinvented the legacy countersignature requirement as an extraconstitutional ultra executive veto vis-à-vis parliamentary legislation when the star of the designated constitutional guardian, the TCC, is dimmed, and the parties controlling parliamentary majority show no signs of loyal opposition even if concerns over national security are heightened. In the name of stepping into the breach in defence of constitutional supremacy, the President-headed executive in Taiwan is no less invincible than the supreme protector as manifested in America’s presidential militancy. Both the US and Taiwan find their invincible executive branches in the double helix of national security and constitutional supremacy.

Yet, at the core of the constitutional tale of the two invincible executives is the survival of constitutionalism. The Constitution is no suicide pact indeed – yet, its health cannot be in good shape when its survival is at the mercy of some wilful invincible forces. Executive invincibility, whether by design or by accident, is repugnant to constitutional governance. It is an external sign of constitutional sickness, not its solution. Will the invincible executive be an already sick constitutional order’s terminator? May God bless America and Taiwan.

Suggested citation: Ming-Sung Kuo, ‘In the Name of (Executive) Constitutionalism’: A Tale of Two Invincible Executives, Int’l J. Const. L. Blog, Sept. 2, 2026, at: http://www.iconnectblog.com/in-the-name-of-executive-constitutionalism-a-tale-of-two-invincible-executives/

The post ‘In the Name of (Executive) Constitutionalism’: A Tale of Two Invincible Executives appeared first on www.iconnectblog.com.

For sustained operational presence anywhere, power is a common dependency. This is certainly the case for the Moon, and nuclear power is one alternative. In January 2026, NASA and the US Department of Energy announced that they would work towards deploying such a fission surface power system  by 2030. NASA now describes “Lunar Reactor-1” as a reactor intended to land on the Moon in that year. Nuclear surface power is therefore becoming part of near-term planning for sustained lunar operations.

These developments form part of a broader and increasingly global debate over lunar governance. Among the legal questions raised is the liability regime that would apply if a nuclear incident occurred on the lunar surface, but the interaction between the international space law liability framework and the civil liability regimes developed for nuclear installations has yet to receive any scholarly and policy attention. Can a state be held liable for a nuclear incident occurring on the face of the Moon under international law? The blog post will argue that instruments available under international law, while entirely relevant, fall short of providing a conclusive answer to the question. It will also suggest a tentative model for the way forward.  

The International Legal Framework

Assume that State A is operating a nuclear reactor on the Moon. An accident damages a nearby rover and injures its occupants, while radioactive material ultimately causes damage on Earth. Can State A be held liable for these consequences? 

Within international space law, the instruments to address this question would be the 1967 Outer Space Treaty (OST); and the 1972 Liability Convention. Less obvious, yet potentially relevant instruments include the 1963 Vienna Convention on Civil Liability for Nuclear Damage, as amended by the 1997 Protocol (the Vienna Convention); and the 1960 Convention on Third Party Liability in the Field of Nuclear Energy (the Paris Convention).

Article VI of the OST makes State A internationally responsible for its national activities, including those conducted by private entities, while Article VII and the Liability Convention address liability for damage caused by space objects. Damage on Earth engages Article II of the Liability Convention, as a launching State is absolutely liable for damage caused by its space object on the Earth’s surface or to aircraft in flight. By contrast, Article III of the Liability Convention applies where damage occurs to a space object or to persons or property aboard it (as opposed to the surface of the Earth). Liability under Article III depends upon the fault of the launching State or of persons for whom it is responsible. The same reactor failure may therefore attract absolute liability for its terrestrial consequences but fault-based liability for damage to equipment on or around the Moon.

Nuclear risk exposes the limitations of this framework. Establishing fault may be difficult where decisions concerning a reactor involve public and private actors across several jurisdictions. The Liability Convention also operates through an inter-State claims process and does not provide injured non-state parties with a direct international cause of action. It also does not channel claims towards the nuclear operator or require financial security sufficient to compensate those affected.

Contamination as Damage

The relatively complex case here is not an explosion that destroys a rover, but, for example, a leak that leaves it physically intact while making the surrounding area unsafe. Such contamination may force operations to cease, render equipment inaccessible and produce health effects years later, as is often the case with terrestrial nuclear accidents. The Liability Convention defines “damage” to include loss of life, personal injury or impairment of health, and loss of or damage to property. This could accommodate radiation injuries, but it is less clear whether it extends to loss of use, remediation costs, economic loss or contamination of the lunar environment where no person or property has suffered physical damage. Its claims timetable is also poorly adapted to latent injury.

International nuclear liability law addresses these problems more directly. The Vienna and Paris regimes recognize broader categories of nuclear damage and, subject to their respective conditions, provide for strict operator liability, channelling of liability and mandatory financial security. This tailored treatment of nuclear harm prompts the following question: If the characteristics of nuclear risk justify a specialised civil liability regime on Earth, why should moving the reactor to the Moon restore fault as the principal standard and leave contamination at the margins of compensable damage?

Can International Law on Nuclear Liability Travel to the Moon?

The nuclear liability conventions are prima facie terrestrial instruments. Neither expressly addresses installations or damage on celestial bodies. The geographical scope of the Paris Convention also largely supports this reading. Article 2(a) principally covers damage suffered in the territory or in any maritime zones of specified States, or on board their registered ships and aircraft. Although Article 13 contemplates nuclear incidents occurring outside the territories of Contracting Parties, it assigns jurisdiction to the courts of the State in whose territory the liable operator’s installation is situated. The Convention therefore provides no obvious jurisdictional connection where the installation itself is located on the Moon.

The Vienna Convention warrants closer scrutiny. Article I(1)(d) defines the “Installation State” as the Contracting Party in whose territory the installation is situated or, where it “is not situated within the territory of any State”, the Contracting Party by which or under whose authority it is operated. Article I(1)(j)(i) defines a “nuclear installation” to include any nuclear reactor other than one equipping a means of sea or air transport. Article XI(2) further provides that, where an incident occurs outside the territory of any Contracting Party or outside an area notified under Article XI(1 bis), jurisdiction lies with the courts of the Installation State. Nothing in these provisions expressly confines the installation itself to Earth.

This suggests that the Vienna Convention is not necessarily confined to terrestrial installations. A lunar installation cannot be situated within national territory, since Article II of the Outer Space Treaty prohibits national appropriation of the Moon. However, the absence of territorial sovereignty does not entail an absence of jurisdiction. Under Article VIII of the Outer Space Treaty, the State of registry retains jurisdiction and control over a registered space object. A lunar reactor operated by or under the authority of a Contracting Party therefore bears a clear resemblance to the extraterritorial installation contemplated by Article I(1)(d).

This does not establish Vienna’s direct applicability. Its definitions, scope, jurisdictional provisions and domestic implementation would have to be read together, as must its relationship with space law. Participation is also crucial: notably, the United States, whose project supplies the immediate policy context, is not a party to either the Vienna Convention or to the Paris Convention. The narrower conclusion is nevertheless important: the Vienna Convention’s relevance should not be dismissed. Its text appears capable of addressing relevant and consequential jurisdictional questions, even if it does not conclusively answer them.

Terrestrial Nuclear Liability as a Model

Direct application of these instruments is only one (even if an admittedly important) part of our inquiry. Terrestrial nuclear liability law may be more valuable as a model for a new framework tailored to lunar nuclear installations. Such a regime could preserve State responsibility under Article VI OST and launching State liability under the Liability Convention while adding a civil liability layer based on strict liability for defined nuclear damage. This is also a valuable opportunity to assess whether and under what circumstances contamination could amount to damage and establish an ex ante framework for reasonable preventive and remediation measures. Another pressing issue is whether space law can accommodate economic loss and latent health effects as damage.

As is often the case in space law, national authorization regimes are an important starting point for implementation. Article VI requires States to authorise and continuously supervise non-governmental space activities. A licence for a privately operated lunar reactor could therefore require appropriate operator liability, insurance or other financial security, emergency planning and arrangements for decommissioning and spent fuel. Whatever the ownership model may be, resources for responding to an accident should exist before the reactor is activated.

The existing UN Principles on Nuclear Power Sources and the 2009 UN–IAEA Safety Framework provide important safety guidance, but they do not create a detailed governance framework or a compensation regime. The development of lunar nuclear power should be accompanied by an equally serious effort to identify the applicable liability architecture embedded within a robust, comprehensive lunar governance framework. Once a reactor is operating on the Moon, uncertainty over fault, compensable damage, competent fora and available financial resources will be immediate realities. The legal framework should be developed alongside the technology and not in response to its first, potentially catastrophic, failure.

ESIL Newsletter Summer 2026

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Historical background of the origins of the Central American Court of Justice

The establishment of CACJ embodied the long-standing aspiration for Central American unity that had shaped the region since its independence from Spain, while simultaneously inaugurating a pioneering model of permanent international adjudication. Following several unsuccessful attempts to unify the Central American States, and under the mediation of the United States (U.S.) and Mexico, the Washington Peace Conference culminated in the signing of the Convention for the Establishment of the Central American Court of Justice, formally inaugurated in Cartago, Costa Rica, on 25 May 1908. 

Although the Hague Conferences of 1899 had already taken place by then and had influenced the emergence of the CACJ, and although the Permanent Court of Arbitration (PCA) had been established in 1900 and began operating in 1902, the PCA was conceived as an institutional framework for facilitating the constitution of arbitral tribunals to resolve specific disputes. It preserved States’ authority to appoint the arbitrators responsible for deciding each case, rather than establishing a permanent international court with a standing bench of judges. In this context, the CACJ became the first international institution to vest judicial authority in a standing body of permanent and independent judges exercising jurisdiction on a continuous basis. 

Yet, this first attempt had a short existence. In 1918, the CACJ ceased operations due both to the absence of an automatic renewal clause after its ten-year term in the Convention and to the lack of consensus among the Central American states regarding the extension of the Court’s mandate. This lack of support became particularly evident in 1917, when Nicaragua denounced the Convention establishing the Court after refusing to accept its decisions concerning the Bryan–Chamorro Treaty between Nicaragua and the United States.

It was not until the end of the Cold War—marked by interventionist policies, including those challenged in the Nicaragua v. U.S. case before the International Court of Justice—that new efforts towards regional integration were undertaken and a permanent regional court was re-established in Central America. Accordingly, in 1991, the Central American States adopted the Tegucigalpa Protocol to the Charter of the Organization of Central American States reorganizing the regional integration process through the creation of the Central American Integration System (SICA). This was followed by the signing of the Convention on the Statute of the Central American Court of Justice in 1992, re-establishing a permanent regional jurisdiction.  

The Failed Consolidation of the Central American Court of Justice as a Regional Court

Since its inception, the CACJ faced significant institutional constraints stemming from the lack of political support from the member states of SICA. In practice, its operation depended on the participation of Honduras, El Salvador, and Nicaragua. In the case of Guatemala, although the Statute of the CACJ was formally ratified, the Constitutional Court provisionally suspended the legislative decree approving and incorporating the treaty into the domestic legal order. As a result, Guatemala never appointed judges to the CACJ. In Costa Rica, the Executive Branch opposed and consistently rejected the ratification of the Court’s Statute on the grounds that its jurisdiction, particularly its competence to adjudicate disputes between branches of the State, was unacceptable. This particular competence exemplified broader concerns regarding the extensive powers conferred upon the CACJ, which exceeded those granted to comparable regional courts, such as the Court of Justice of the European Union (CJEU). 

Costa Rica’s refusal to ratify the Court’s Statute illustrates how the perception of the extensive jurisdiction conferred upon the CACJ ultimately undermined its consolidation. Although the CJEU possesses certain powers that the CACJ lacked, such as mechanisms for reviewing the failure of regional integration institutions to act and for annulling unlawful acts (263-265 Treaty on the Functioning of the European Union), the CACJ was nevertheless widely regarded as an ambitious institutional project.

The extensive jurisdiction and powers conferred upon the CACJ led some scholars to characterise it as the constitutional court of the region. Yet, the constitutional vision underpinning this integration project differs substantially from other constitutional projects that have emerged in the region beyond Central America. One such example is the Ius Constitutionale Commune en América Latina (ICCAL) project, which promotes a model of transformative constitutionalism throughout Latin America. A fundamental distinction between the two constitutional projects lies in the principles that they seek to promote. The constitutional vision embodied by the CACJ forms part of SICA, whose foundational principles include peace, freedom, democracy, and development all of which serve as the guiding objectives of the regional integration process. In contrast, the ICCAL project does not arise from an integration process but from the Inter-American human rights system and it mainly promotes the constitutional trinity of democracy, human rights, and the rule of law.

The constitutional vision advanced by the CACJ, however, never succeeded in consolidating itself. Seeking to strengthen its role as a regional court, the CACJ drew upon key jurisprudential developments of the CJEU by recognising the principles of primacy, direct effect, and the immediate applicability of Central American Community law, as well as the principle that national judges exercise a dual role as both national judges and ordinary Community law judges, disapplying domestic norms contrary to Community law. However, these jurisprudential developments failed to strengthen the authority and consolidation of Central American Community law. By contrast, the doctrine conventionality control developed by the Inter-American Court of Human Rights (IACtHR) has had a much broader reach and has even become a tool and a vehicle for the development and promotion of constitutional visions such as ICCAL.

Furthermore, the CACJ operated within a regional integration system whose legitimacy has repeatedly been called into question. The Central American Parliament (PARLACEN), in particular, has long been criticised for serving as a political refuge that enables public officials to obtain parliamentary immunity in the face of corruption allegations. Such criticisms eventually prompted El Salvador to withdraw from PARLACEN. This illustrates the persistent criticism directed at the institutions of SICA, including the CACJ, throughout their existence. A clear example is Honduras’ decision in 2004 to suspend its participation in the CACJ on the grounds that the Court was not fulfilling the objectives of regional integration and that maintaining the institution imposed a disproportionate financial burden.

And it is amid the so-called “crisis” of international law that this regional effort has now experienced a second death—an event that has received almost no attention and appears to have lost relevance in light of everything else occurring in the international sphere. Following the announcement of Honduras’s withdrawal in May 2026, joining the earlier denunciations of the Court’s constitutive treaty by Nicaragua and El Salvador, this regional body ceased its operations. The second demise of the CACJ cannot be understood in isolation from the broader political developments unfolding across Central America. Deep political divisions among the SICA member states, together with accusations of “servility to extra-regional interests”, illustrate the profound political tensions that have long characterised the Central American integration.

The Erosion of Democracy and Human Rights in the Region

The broader political context of the CACJ’s member states also helps explain the Court’s failure to consolidate. In Nicaragua, El Salvador, and Honduras, the progressive entrenchment of political leaders has been accompanied by an increasing concentration of power, entrenched corruption and nepotism, and persistent human rights violations. In all three countries, constitutional prohibitions on presidential re-election have been reinterpreted by the constitutional chambers of their supreme courts, enabling incumbents to remain in office beyond the limits originally established by their constitutions. These developments, together with similar trends elsewhere in Latin America, formed part of the broader regional context that prompted an advisory opinion from the IACtHR.

Another defining characteristic of the region has been the persistence of serious human rights violations, including the excessive use of force to suppress social protests, prolonged state of exceptions, the political persecution of opposition figures and attacks against civil society. Likewise, the concentration of power through nepotism alongside corruption and links to drug trafficking, has become a recurrent regional feature. 

It is in this context that the second demise of the CACJ marks not only the end of a regional court but also the collapse of one of the world’s earliest permanent international adjudicatory bodies. This outcome reflects the persistence of the political divisions and democratic erosion that have long hindered regional integration in Central America, exposing the fragile political and geopolitical context on which said project continues to rest.

Introduction

The majority decision in Trump v. Slaughter[1] was not a surprise. As I previously explained in commenting on Trump v. Wilcox[2], the most likely scenario was that the Supreme Court majority would reinterpret the constitutional foundations of independent agencies and ultimately overrule Humphrey’s Executor v. United States.[3]

In a 6-3 decision written by Chief Justice John Roberts, the Supreme Court concluded that the Federal Trade Commission (FTC) exercises executive functions and that, as a result, the commissioners act within the scope of the executive power that Article II of the Constitution vests in the President. Consequently, Congress cannot deprive the President of control over the commissioners as executive officers, including removing them at will.

However, the decision did not provide any clear constitutional definition of “executive power” to determine when an office created by Congress acts under Article II. Inevitably, this ambiguity created tension with the decision adopted the same day in Trump v. Cook, No. 25A312, 609 U.S. ___ (2026), which at least indirectly affirmed the constitutionality of statutory “for cause” provisions regarding the Board of Governors of the Federal Reserve System (FRB).

Before Slaughter, the FTC was independent because it did not exert substantial executive power; after Slaughter, the FTC is not independent because it does. However, the FRB is independent, although it also seems to exert executive power.

This possible contradiction highlights what I see as the key feature of U.S. administrative law: its absence of solid constitutional roots. In contrast, Hispanic-American law (which generally followed the presidential system of the U.S.) demonstrates that administrative law can be strongly grounded in constitutional principles, offering a clear substantive concept of executive power that helps determine the possible statutory limits on presidential control over agencies.[4]

Therefore, my purpose in this post is to put in evidence the “elephant in the room”: the fragile constitutional foundations of U.S. administrative law, as demonstrated by the new interpretation of the independent agencies.

A Unitary Executive Theory Without a Constitutional Theory of the Executive Power

The constitutional interpretation provided by Chief Justice Roberts, in Slaughter, that overrides Humphrey’s, can be summarized in four premises:

• Article II of the Constitution vests in one body -the Presidency- the entire executive power.[5]

• To properly exercise that power, the Presidency requires appointing officers who will serve as envoys of the President and, hence, be accountable to him and, ultimately, removable by him at will.[6]

• The President’s control applies to all offices that “execute” a congressional mandate against private parties.[7]

• Not all offices Congress creates exercise executive powers under presidential control based on Article II, though.[8] That is, precisely, the case of the FRB[9], as was indirectly concluded in Cook[10].

The only rational way to apply those premises is to define, from a constitutional perspective, the substantive nature of the executive power. To determine whether the “for cause” clause regarding the FTC is compatible with Article II, it is necessary to determine if the statutory functions of this agency are, in substance, the result of the exercise of the executive power.

But the Supreme Court avoided entering into this question. The outcome is tautological reasoning: the FTC “unquestionably exercises executive powers”, and because its functions “fall well within the heartland of the executive power”, it is not necessary “to define the bounds of what such power entails”.[11] 

The override of Humphrey’s does not solve the problem that Humphrey’s created. As the Court concluded, “all that is left of Humphrey’s is its observation that an agency that “exercises no part of the executive power” need not fall within the rule of Presidential removal”.[12] A similar vague conclusion prevails in Slaughter: “not all offices created by Congress necessarily come with executive or even sovereign power attached”.[13] Alas, without defining, from a constitutional perspective, what is the content of such power, it is not possible to determine whether the office falls within the rule of Presidential removal.

The result is a paradox: a unitary executive theory without a constitutional theory of the executive power.

The Unitary Power Beyond the Execution of the Law: The Hispanic lessons

Although the Court declined to address the constitutional concept of executive power, it offered a hint: executive power is the “execution” of congressional mandates against private parties.[14] But this reasoning fails to capture the constitutional essence of executive power and does not provide a rational answer regarding independent agencies.

These flaws are evident in the interpretation of the FRB, advanced in Cook. This agency also “executes the law.” Despite this executive role, it falls outside the scope of presidential removal power derived from Article II.[15] Therefore, another criterion should determine when an office exercises executive power within the scope of Article II.

This problem was addressed in Hispanic administrative law, based on a “self-evident” observation of Austrian authors such as Merkl: a court also “executes” the law when it adjudicates a case, even though it does not exercise executive power.[16]

The “execution of the law” is not a parameter that defines the executive, but a characteristic of the executive functions that must be subordinated to the law.  Here, in any case, the “law” is not limited to the statutory mandates, because it also includes the whole legal order.[17]

In Hispanic law, it is clear that executive power extends beyond just executing laws to restricting private rights. For example, when the public administration constructs a bridge, it is not merely “executing” statutes. The same applies to administrative actions aimed at protecting public health. In these cases, rather than simply “executing” statutes, the public administration serves the public as a fiduciary institution responsible for fulfilling the government’s duties.

Consequently, what should determine an agency’s “executive” nature is not the execution of Congress’s mandates, but the concrete implementation or management of the government´s task, based on direct contact with individuals to attend to their needs, oriented toward the common good.[18] Under the principle of separation of powers, the executive branch is the only branch of government charged with this service-oriented or fiduciary function: neither the legislature nor the judiciary is constitutionally organized as an institution placed at the service of individuals.[19]

The executive power, with this substantive constitutional content, is vested in the Presidency, which stands as the highest authority over all the other executive bodies that, within the Executive Branch, also exercise executive power under Article II. Setting aside the lack of precision in the constitutional definition of executive power, Slaughter offers the best clarification: independent agencies do not exercise “quasi” legislative or judicial functions, but rather the executive power vested in the Presidency by Article II.

This comparative perspective also offers an alternative approach to independent agencies: independent branches of government vested with functions closely related to the key pillars of constitutionalism. That is the case of the National Electoral Council, created by Article 217 of the Ecuador Constitution as a separate branch. In those cases, the separation of powers beyond the traditional tripartite design resolves any constitutional problem.[20]

The Risks of the Unitary Executive Theory

The new constitutional interpretation advanced in Slaughter, according to Justice Gorsuch’s concurrence, creates a new problem: the “concentration” of functions in these agencies is now transferred to the Presidency. In the dissenting opinion, Justices Sotomayor, Kagan, and Jackson went further, challenging that without independence from the Presidency, the regulatory agencies will distort the “structure of the Government”, expanding the presidential powers towards a theory of a “unitary, total executive control”.[21]

Some cases in comparative constitutional law resonate with these risks.[22] In countries like Venezuela, the abusive presidential powers moved to advance political control over independent administration, including the Central Bank.[23]  But these cases illustrate that the proper solution to prevent those abuses is not agency independence, but effective implementation of the administrative law´s controls.[24]

In that regard, independence is a misleading characteristic. It seems to reflect the principle that some agencies must be independent of the Presidency, considering that presidential control is, by design, improper. However, independence is a general principle that applies to all executive bodies. As the Spanish scholar Tomás-Ramón Fernández explained, all public administrations must be independent, in the sense that they must act objectively to serve the people.[25]

Also, the focus on independence from the Presidency does not consider, as I explained elsewhere, that “regulatory neutrality” prevents abusive or excessive control not only from the Presidency but also from Congress and, in particular, private firms. An agency independent from the Presidency but captured by the private firms is not independent at all.[26]

Excluding regulatory agencies from Article II to prevent abusive presidential control would be like preventing agencies from adjudicating cases to prevent arbitrary decisions.  The remedy to prevent abusive presidential control is administrative law, as long as it is defined from a comprehensive constitutional perspective.

And this is the “elephant in the room” in the U.S. Because administrative law is only the law that applies to regulatory agencies, it lacks the systematic integrity to implement a rational system of rules, principles, and values that moves beyond the agencies to include the whole executive organization acting within the scope of Article II, including the Presidency.

In many ways, the confusing interpretation of independent agencies highlights this narrow, statute-focused view of administrative law, which has weak constitutional roots. Therefore, the unresolved questions remain: what, substantively, is the nature of executive power that helps define the scope of Article II? Why is the FTC, which exercises executive authority, governed by the presidential removal powers of Article II, while the FRB, which also exercises regulatory powers, is not?

Another unsolved problem is the constitutional status of the independent accountability institutions, such as the Federal Electoral Commission. A possible solution is to conclude that those bodies do not exert regulatory powers and, consequently, are not subject to Article II.[27]

The best solution to address the risk of agencies exercising regulatory powers outside the scope of presidential authority is not to create the fiction of executive bodies operating outside Article II, but to reframe administrative law toward a rational constitutional system that provides the foundations for a tempered public administration, including the Presidency in the exercise of executive powers.[28]

Suggested citation: José Ignacio Hernández, The Unitary Executive Theory after Slaughter: A Comparative Hispanic Perspective, Int’l J. Const. L. Blog, Sept. 1, 2026, at: http://www.iconnectblog.com/the-unitary-executive-theory-after-slaughter-a-comparative-hispanic-perspective/

[1] No. 25-332, 609 U.S. ___ (2026).

[2] Trump v Wilcox 605 US ___ (2025). See: José Ignacio Hernández, The Constitutional Foundations of Independent Agencies: A Comparative Perspective Between the U.S. and Spain, Int’l J. Const. L. Blog, Sept. 18, 2025, at: https://www.iconnectblog.com/the-constitutional-foundations-of-independent-agencies-a-comparative-perspective/

[3] 295 U.S. 602 (1935).

[4] The U.S. Constitution inspired the presidential system in Hispanic America, resulting in a model in which the Presidency is the highest authority among all bodies organized within the Executive Branch. But while the Hispanic administrative law -inspired by Spain, Italy, France, and Germany- builds a constitutional theory of the Presidency as the highest administrative authority, the U.S. lacks this systematic and constitutional approach. Regarding the influence, see Allan R Brewer-Carías, Las revoluciones americana, francesa e hispanoamericana y sus aportes al constitucionalismo moderno (4th edn, Instituto Internacional de Derecho Administrativo–Editorial Temis 2025).

[5] “Our Constitution creates three branches, but only one President” (slip op 35).

[6] “Because these officers were subject to the President’s superintendence, they had to be removable by him at will” (slip op 8).

[7] “When an agency “executes” a congressional mandate against private parties, it exercises executive power—no ifs, ands, or quasis about it” (slip op 22).

[8] This premise is based on Myers v. United States, 272 U.S. 52 (1926). In that case, the Supreme Court concluded that executive officers exert the power vested by Article II in the Presidency. Therefore, according to Chief Justice Roberts’ opinion, the Court has “left open the possibility that some functions traditionally handled outside the Executive Branch may not be encompassed by Myers’s general rule” (slip op 27).

[9] “And one example we have given of an entity that may have such a unique role is the Federal Reserve, to the extent that it follows in the distinct historical tradition of the First and Second Banks of the United States—” (slip op 27-28).

[10] In a 5-4 decision written by Chief Justice Roberts, the Court denied the Government’s application for a stay of the District Court’s injunction, which had blocked President Trump’s removal of Cook, a Governor of the Federal Reserve Board, pending appeal. Although this was not a merits ruling, the Court briefly concluded that, because of the Federal Reserve’s unique historical origins tied to the particularities of monetary policy, Congress may restrict the President’s power to remove a Governor except “for cause” (slip op.  28, 32).

[11] Slip op 27.

[12] Slip op 28.

[13] Slip op 27.

[14] Slip op 22. When examining the functions of the FTC, the Court concluded that this agency undertake the very essence of the execution of the law (quoting Bowsher v Synar, 478 US 714 (1986) (slip op 25).

[15] Hence, as Justice Barrett concluded in her dissent opinion in Cook, “the Court’s holding is in serious tension with Trump v. Slaughter, which we also decide today. Slaughter announces a categorical rule: Whenever “an agency ‘executes’ a congressional mandate against private parties, it exercises executive power” and must be subject to plenary executive control—“no ifs, ands, or quasis about it.” Id., at ___ (slip op.22). Yet here, the Court claims a special exception “‘sanctioned by history’” and based on the Federal Reserve’s role in setting monetary policy”. Trump v Cook, No 25A312, 609 US ___ (2026) (Barrett J, dissenting) (slip op 2).

[16] The execution of the law means the governmental action of interpreting, construing, applying, and ultimately enforcing statutes in specific cases. The judiciary performs similar functions; however, it does not exercise executive functions. See Adolfo Merkl, Teoría general del Derecho administrativo (Comares 2004) 56.

[17] As reflected in Article 138 of the Dominican Constitution, the public administration acts with “full submission to the juridical set of laws of the State”.

[18] As concluded in Argentina by Juan Carlos Cassagne, ‘Reflexiones sobre el bien común y el interés público como fines y principios de la actividad estatal’ (2021) 15191 El Derecho.

[19] This concept, for instance, can be derived from Articles 141 of the Venezuelan Constitution and 138 of the Dominican Republic Constitution. Generally see Allan Brewer-Carías, ‘Sobre el concepto del Derecho Administrativo’ in Jaime Rodríguez-Arana Muñoz and Libardo Rodríguez Rodríguez (dirs) and María del Carmen Rodríguez Martín-Retortillo (coord), Curso de derecho administrativo iberoamericano (Instituto Nacional de Administración Pública (INAP)–Comares 2015) 25.

[20] Regarding electoral commissions as a “fourth branch”, see Mark Tushnet, The New Fourth Branch: Institutions for Protecting Constitutional Democracy (Cambridge University Press 2021), 123. Although the U.S. does not have such independent branches, David Landau has analyzed independent accountability institutions that do not exercise executive power but instead serve a review or comptroller function to protect democracy, such as the Federal Election Commission. David Landau, ‘Courts Are Not Enough: Independent Accountability Institutions and the Protection of Democracy in the United States’ (2026) 2026 University of Illinois Law Review, 1149.

[21] Slip op 46.

[22] David M Driesen, ‘The Unitary Executive Theory in Comparative Context’ (2020) 72 Hastings Law Journal 1 (concluding, from a comparative perspective, that “centralized head of state control over the executive branch of government provides a pathway to autocracy suggests that the Court committed a grave error in Seila Law”, 54).

[23] As I concluded in José Ignacio Hernández, ‘Comentarios a la reforma de 2015 de la Ley del Banco Central de Venezuela y su defensa por la Sala Constitucional’ (2016) 145–146 Revista de Derecho Público 107.  The root cause of the politicization of the Central Bank was not the lack of statutory independence, but the despotic presidential actions that subordinated monetary policy to political objectives. In short, the problem was not a lack of independence but failed administrative law.

[24] Regarding the risks of abuse of presidential power that derives from Slaughter, see Cass Sunstein, ‘The Unitary Executive’ (Cass’s Substack, 29 June 2026) https://casssunstein.substack.com/p/the-unitary-executive-b11 accessed 15 August 2026 (observing that “White House control increases political accountability, which can do some good. But it imposes big risks, too. There is more room for self-dealing, favoritism and corruption, whatever political party controls the presidency”. The institutional solution to those risks is to strengthen administrative law controls to ensure tempered administrative oversight of agencies.             

[25] Tomás-Ramón Fernández, ‘Reflexiones sobre las llamadas autoridades administrativas independientes’ in Administración Instrumental: Libro Homenaje a Manuel Francisco Clavero Arévalo, vol II (Civitas 1994) 439.

[26] José Ignacio Hernández, Derecho administrativo y regulación económica (Editorial Jurídica Venezolana 2006) 111.

[27] This is another risk of the interpretation adopted in Slaughter. As Landau noted earlier, “by allowing the President to remove the heads of independent agencies at will, the Court is not merely allowing presidential will to control in the case of policy disagreement; it is allowing the President to capture institutions designed to protect these sensitive democratic weak points, either neutralizing them or turning them into anti-democratic tools” (‘Courts Are Not Enough: Independent Accountability Institutions and the Protection of Democracy in the United States’, 1204). One possible constitutional interpretation is that independent accountability institutions do not “execute” a congressional mandate against private parties and therefore are not covered by Article II.

[28] At its origins, the U.S. administrative law doctrine, from a comparative perspective, studied administrative law based on the public administration as the organization of the Executive Power. See, for instance, Bruce Wyman, The Principles of the Administrative Law Governing the Relations of Public Officers (Keefe-Davidson Co 1903) 2. But the emergence of regulatory agencies diverted attention to a statute-centered approach, resulting in weak constitutional foundations: rather than analyzing the substantive definition of executive power in Article II, the focus has been on the statutory “delegated power,” resulting in the oblivion of the constitutional foundations of administrative law. Centering administrative law in public administration does not, of course, mean allowing a despotic administrative regime. As Hispanic law demonstrates, defining administrative law within public administration includes defining it as a tempered power, whose actions -to serve the people- are subordinated to the whole legal order.

The post The Unitary Executive Theory after Slaughter: A Comparative Hispanic Perspective appeared first on www.iconnectblog.com.

This is, in my view, very much a good thing. What these courts have instead been doing is to apply IHL and IHRL simultaneously, while interpreting them harmoniously. Even so, it is particularly striking how three of the four cases I mentioned above do not bother engaging with the lex specialis terminology and framework at all. This is despite the fact that, in the case of the ECtHR, 26  states (as third party intervenors in the case) expressly invited the Court to do so, and despite the fact that, in the case of the ICJ, its Nuclear Weapons AO was the starting point for the whole lex specialis framing in the first place.

That said, none of these were ‘hard’ cases dealing with a genuine normative conflict between IHL and IHRL, e.g. with regard to the permissibility of killing or deprivation of liberty. This, in turn, enabled the two courts to more easily avoid addressing lex specialis. And in one case, the Climate Change AO, the ICJ did extensively discuss lex specialis (if somewhat problematically so, at para 166) in the context of the relationship between the Paris Agreement and general environmental law. The problematic aspect lies mainly in the Court’s failure to clearly distinguish between the several different meanings that the term lex specialis can have (total displacement, partial displacement, or a weaker principle of interpretation – I will not elaborate on these here, but see more at the end of the post).

However, that these courts have abandoned lex specialis as the framework for understanding the relationship between IHL and IHRL does not mean that states have done so – even if, again, states initially embraced it precisely due to the ICJ. The fact that 26 states wanted the ECtHR to use lex specialis (in some form) cannot just be disregarded. Even more interestingly, in July the UN Human Rights Council adopted (without a vote) two resolutions which expressly refer to lex specialis. Unless I am mistaken, this is the first time the Council has done so, after some 18 years in which it avoided using this terminology.

The first resolution was adopted on 6 July 2026, 62/4, Human rights implications of the obstruction and denial of humanitarian access and threats to the safety of humanitarian personnel in armed conflict, UN Doc. A/HRC/RES/62/4. The first preambular paragraph on the second page reads as follows:

Acknowledging that international human rights law and international humanitarian law are complementary and mutually reinforcing, that all human rights require protection equally and that the protection provided by human rights law continues in situations of armed conflict, including foreign occupation, taking into account when international humanitarian law applies as lex specialis

The original draft of this resolution was submitted by Bahrain, Egypt, Indonesia, Kuwait, Malaysia, Pakistan and United Arab Emirates (A/HRC/62/L.25). In that draft, the paragraph above was identical, except that it said that IHRL and IHL are ‘distinct, complementary and mutually reinforcing…’ – the word ‘distinct’ was dropped from the final text.

The second resolution was adopted on 7 July 2026, 62/20 Protection of healthcare in armed conflict, UN Doc. A/HRC/RES/62/20. The fourth preambular paragraph of this resolution reads as follows:

Recognizing that international human rights law and international humanitarian law are complementary and mutually reinforcing, and considering that all human rights require protection equally and that the protection provided by international human rights law continues in situations of armed conflict, including situations of occupation, taking into account when international humanitarian law applies as lex specialis

Some minor linguistic differences aside, the substance of this paragraph is the same as the one in resolution 62/4. But here, though, there is a much greater difference compared to the original draft, which was submitted by Bahrain, Kuwait, Pakistan and Qatar (A/HRC/62/L.26), where that paragraph read as follows:

Recognizing that international human rights law and international humanitarian law are complementary and mutually reinforcing and that international humanitarian law applies as lex specialis governing situations of armed conflict

This was clearly a more emphatic use of lex specialis (e.g. ‘governing’ as opposed to ‘taking into account’). Note that these drafts were not written by Western states that are usually regarded as the biggest proponents of the Latin formula; on the contrary, it is likely that some Western states helped tone down the language somewhat. (Any input from colleagues familiar with the actual negotiations would be gratefully received.)

That said, it is clear that the Human Rights Council, by consensus, endorsed the use of the lex specialis maxim for the purpose of managing the IHL/IHRL context, even if it is unclear what that means exactly. And unless I’m wrong (i.e. unless the search functions of UN ODS and the digital library failed me), the Council has never used the lex specialis terminology before, except once, in its very early days. This was in resolution 9/9 (2008), Protection of the human rights of civilians in armed conflict, which in its preamble states that the Council is:

Considering that all human rights require protection equally and that the protection provided by human rights law continues in armed conflict situations, taking into account when international humanitarian law applies as a lex specialis

Note that this is the clear origin of the language that ended up in the two 2026 resolutions (the same applies to the complementary and mutually reinforcing language, which is from a different paragraph). And all of this is inherited from the text of a resolution adopted by the Council’s predecessor, the Commission on Human Rights, in 2005, which itself likely drew upon sources such as the ICJ Wall AO and the Human Rights Committee General Comment No 31, as well as a working paper by Françoise Hampson and Ibrahim Salama.

So, that the Council in 2026 repeated the language it had used back in 2008, which was itself inherited from the Commission, is more likely by happenstance than due to some concerted effort (although there clearly was an effort to ensure consistency).  But again, I don’t think the Council’s endorsement of lex specialis can simply be ignored. I would personally prefer to read it as an endorsement of the third, unobjectionable, interpretative variant of lex specialis – which is that IHL can be taken into account when interpreting more general IHRL standards. What this does not entail, however, is the proposition that IHL displaces IHRL, totally or partially, or that compliance with IHL will always mean that IHRL has also been complied with.

Which brings me to a second interesting development – the decision of the UN Committee on Economic, Social and Cultural Rights to start drafting a new general comment on the application of the International Covenant on Economic, Social and Cultural Rights in armed conflict. While other treaty bodies have commented on the application of human rights during armed conflict, none have produced a dedicated general comment looking at the application of the whole treaty within their competence in such a situation.

Earlier this year CESCR published a call for inputs, which has generated a substantial response from states, NGOs and scholars. There are so many of these that I confess to only reading a couple, including one by my Reading colleagues Alison Bisset and Naomi Lott, and another by Bristol colleagues Lawrence Hill-Cawthorne and Jasmin Johurun Nessa (both of which I very much recommend).

I also made a submission, in which I argue, inter alia, that the Committee should avoid using lex specialis, and that it should also embrace the opportunity to explain that socio-economic rights can be violated in armed conflict even if IHL was not violated. IHRL – and socio-economic rights in particular – can be the framework for a big-picture, macro analysis of the aggregate harms that the military operations of a state have inflicted on a civilian population, something that IHL is not as capable of doing as IHRL.

Thus, for example, when we assess Israel’s military operations in Gaza and their impact on the population’s enjoyment of the right to health, we could do so bottom-up, by looking at whether individual Israeli attacks on hospitals or ambulances complied with the targeting rules of IHL, or at whether specific Israeli decisions to deny access to humanitarian relief or certain goods complied with IHL. These individual decisions and acts can then form a pattern of behaviour, which can inform how we assess the whole thing. But we do not have to do so. There is an equally valid alternative: to conduct a primarily IHRL-oriented, top-down, overarching assessment of the cumulative impact that Israeli operations have had on Gazans’ right to health (and other rights), balancing the harms that were inflicted, those that could have been avoided, and those that Israel was trying to prevent.

The Human Rights Council’s new resolution 62/20 to my mind very much support this line of thinking. Thus, in its operative part, the Council:

2. Also affirms that the obligation of States, under international human rights law, as applicable, to respect, protect and fulfil the right to the enjoyment of the highest attainable standard of physical and mental health in armed conflict, including situations of occupation, includes reducing the causes of ill health and ensuring, without discrimination, the availability, accessibility, acceptability and quality of healthcare and addressing the underlying determinants of health, including safe drinking water and sanitation, adequate food and housing, education, work and a clean, healthy and sustainable environment;
3. Recognizes that the right to life also contains the obligation of States to take positive measures, which include measures to ensure equal access to healthcare, especially in life-threatening circumstances;
4. Strongly condemns all acts that constitute violations of international humanitarian law or international human rights law, as applicable, with regard to the right to the enjoyment of the highest attainable standard of physical and mental health during armed conflict, which may include the destruction or severe degradation of healthcare systems, the obstruction or restriction of or the limiting of access to medical facilities, goods and services, including medical supplies, equipment and essential services that enable their functioning, direct attacks on medical personnel, facilities and transport, as well as on the wounded and sick, the criminalization of the provision of healthcare and the obstruction of access to healthcare.

To my mind, one can easily argue that Israel did not do everything it could have done to (say) reduce the causes of ill-health or to ensure the availability of the determinants of health (including food, water, housing) in Gaza, and that its destructive operations severely degraded Gaza’s healthcare system, without having to examine attack-by-attack whether the IHL principles of precaution, distinction and proportionality were respected. Note in particular how the fourth paragraph speaks of violations of IHL or IHRL – this clearly implies that IHRL can be violated in armed conflict even in the absence of an IHL violation, i.e. that establishing the latter is not a prerequisite for the former.

I’ve expanded on these arguments (and much more, including an extended look at the four cases mentioned up top) in a new article, ‘The Relationship Between International Humanitarian Law and International Human Rights Law: Reflections on Key Recent Cases and the Road Ahead,’ forthcoming in the Journal of Conflict and Security Law. The abstract is below, and comments are very welcome.

The relationship between international humanitarian law (IHL) and international human rights law (IHRL) has long divided experts into two camps: those who treat IHL as the exclusive normative framework for armed conflict, and those who maintain that human rights treaties continue to apply in war alongside IHL. This article revisits that debate in light of a remarkable cluster of recent decisions: the European Court of Human Rights’ 2025 Grand Chamber merits judgment in Ukraine and the Netherlands v Russia, and the International Court of Justice’s 2024 Palestine, 2025 Climate Change, and 2025 UNRWA advisory opinions. Two principal arguments emerge. First, lex specialis has experienced near-total judicial abandonment in the IHL/IHRL context; both courts have embraced harmonious interpretation and systemic integration while deliberately avoiding the Latin formula, even when expressly invited to use it. However, the hardest cases – genuine norm conflicts in the conduct of hostilities, especially regarding deprivation of life under Article 2 ECHR and the role of derogation – remain open. Second, the recent jurisprudence demonstrates the substantial gap-filling role IHRL can play where IHL is sparse or silent, particularly in relation to digital rights, socio-economic rights, and a state’s treatment of its own population. The article further argues that IHRL enables a top-down, strategic assessment of the cumulative civilian harm caused by military operations, an inquiry that IHL’s atomized, attack-by-attack focus cannot easily undertake.

This book offers a bold new perspective on how international adjudication operates.

While international courts claim to decide all disputes over which they have jurisdiction, this book argues that sometimes they strategically choose not to. Through detailed case studies and a close analysis of international procedural law, it reveals that courts decide most disputes most of the time - but not all.

By unpacking how courts use doctrines of jurisdiction and admissibility to avoid or narrow down certain issues, the book exposes the covert techniques of judicial avoidance. It shows how the flexibility of international procedural law allows judges to manage politically sensitive disputes without openly acknowledging that they are relying on avoidance doctrines.

This book offers a nuanced and realistic account of international adjudication, one that recognises how legal principle is often weighed against political and practical realities.

     

In this weekly feature, I-CONnect publishes a curated reading list of developments in public law. “Developments” may include a selection of news links, High Court decisions, new or recent scholarly books and articles, and blog posts from around the public law blogosphere.

To submit relevant developments for our weekly feature on “What’s New in Public Law,” please email iconnecteditors@gmail.com.

Developments in Constitutional Courts

1. The High Court of Kenya in Owiso & 2 others v Attorney-General & another held that Article 136(2)(a) requires a presidential election to be held on the second Tuesday in August in the fifth year after the previous election. On that reading, the next presidential election ought to fall in August 2026. The Court, however, suspended its declaration of invalidity until after the next general election, recognising the disruption that an immediate 2026 election would cause. The judgement is therefore notable both for its strict reading of the constitutional timetable and for the restraint shown in the remedy.
2. The High Court of Kenya in Nyabuto v Kenya Academy of Sports & another found that the process used to establish Constituency Sports Academies did not meet the constitutional standard for public participation. It did not invalidate the academies, which were already operating. Instead, the Court directed the respondents to develop clear, objective, and transparent criteria for selecting future locations and to subject those criteria to meaningful public participation before adoption. The judgement shows how a court can correct a defective process without undoing an existing public programme.
3. The Constitutional Court of South Africa, in Sustaining the Wild Coast NPC and Others v Minister of Mineral Resources and Energy and Others; Natural Justice and Another v Minister of Mineral Resources and Energy and Others, set aside the Supreme Court of Appeal’s suspension of a High Court order invalidating an exploration along the Wild Coast and its renewals. The Court held that a later renewal process could not cure all defects in the original decisions. Those defects went beyond inadequate consultation and included failures to consider climate change, marine and bird life, the communities’ spiritual, cultural and livelihood interests, and applicable statutory requirements. The judgement restored a previous setting-aside order and emphasised that remedial discretion under section 172(1)(b) must respond effectively to established unlawfulness.
4. The Supreme Court of India in Bhumika Trust v Union of India and others modified the three-year Bar-practice requirement it had previously prescribed for entry-level judicial recruitment. For recruitment advertisements issued up to 31 March 2027, all law graduates remain eligible under a transitional scheme, with successful candidates required to complete one year of judicial-academy training and one year of structured clerkship. For advertisements issued from 1 April 2027, candidates must first show at least one year of actual practice before a district court, followed by the same post-selection training. The Court directed that the scheme remain in force for five years before it is reconsidered in light of experience.
5. The High Court of Australia in Plaintiff S32/2026 v Minister for Immigration and Citizenshipdismissed an application for constitutional writs arising from the refusal of a protection visa after the Administrative Review Tribunal dismissed the applicant’s merits review for non-appearance and later confirmed that dismissal. The Court treated the attempt to use constitutional proceedings to bypass the available statutory review route as an abuse of process and found no jurisdictional error in the original visa decision. The case is a straightforward reminder that constitutional supervision concerns legality, not a second merits appeal.

In the News

1. In Nairobi, Kenya, police used tear gas to disperse small-scale traders protesting a Kenya Revenue Authority increase in the customs valuation benchmark used to assess imports, which took effect on 20 August. The dispute is not only about the amount of duty collected, but also raises ordinary public-law questions about transparent revenue administration, public participation and the policing of protest.
2. Authorities in Zambia closed the Supreme Court and Constitutional Court premises for security reasons on the final day to file challenges to the 13 August presidential election, while opposition figures sought to lodge a petition. Where electoral petitions are subject to a strict filing window, physical access to the court is not a minor procedural matter; it can determine whether a challenge is heard at all.
3. Voters in Guinea-Bissau went to the polls on 30 August in a referendum on a new constitution that would strengthen presidential control over government, including powers to appoint and dismiss the prime minister and to dissolve Parliament. Civilian elections are scheduled for December. Because the referendum was held during a military-led transition and opposition participation remained contested, the process’s legitimacy is as important as the institutional changes on the ballot.
4. The United States Supreme Court, with the three liberal justices dissenting, lifted one injunction blocking parts of President Trump’s executive order restricting mail-in voting ahead of the November midterm elections. Another injunction remained in place, and the Court did not decide the order’s ultimate legality. The immediate significance is practical: emergency rulings can alter election administration before the merits of a constitutional dispute are finally resolved.
5. The minority government in France faces another difficult budget season. If Parliament does not enact the 2027 budget by year-end, options under discussion include Article 49.3, a special rollover law and, in some circumstances, a budget ordinance. Each route may preserve fiscal continuity, but each also changes the balance between executive action and Parliament’s ordinary control over taxation and expenditure.
6. Rival political factions in Libya agreed at United Nations-led talks to a roadmap for national elections within 24 months, including further work on disputed electoral laws and reform of the national election body. In Libya’s divided political system, agreeing on a polling date is only part of the problem. The rules and institutions that will administer the vote remain central to whether the result can command broad acceptance.

New Scholarship

1. Gavin P Phillipson, “Judicial review of royal prerogative and the case of prorogation: Process not substance; exception, not rule” International Journal of Constitutional Law (2026) (treats Miller I and Miller II as exceptional examples of judicial protection of constitutional process rather than a general licence to review the substance of prerogative decisions. Phillipson’s distinction between process-based and substantive challenges offers a narrower account of when courts are likely to intervene in the exercise of Crown powers).
2. Lorraine Wu, “The endurance of interim constitutions” International Journal of Constitutional Law (2026) (studies forty-one interim constitutions adopted between 1990 and January 2025. Wu groups them as procedural frameworks, training wheels, first drafts, or last resorts, and uses those categories to explain why some supposedly temporary constitutional arrangements endure. The article is a useful reminder that ‘interim’ describes a constitutional design choice, not necessarily a short period of time).
3. Stephen Gardbaum, “The case for plural executives in the age of strongmen” International Journal of Constitutional Law (2026) (makes the case for taking plural executive arrangements seriously in an age of strongman politics. Gardbaum treats single and plural executives as points on a spectrum and assesses their implications for stability, effectiveness, accountability, and representation. The article shifts attention from how to restrain a powerful chief executive to the prior question of how executive authority should be designed).
4. Raymond A Atuguba’s “Neo-democracy: Legal empowerment and the reincarnation of democracy in Africa” 24(2) International Journal of Constitutional Law 387-394 (2026) (argues that familiar measures of democracy can miss the extent to which ordinary citizens understand, use and shape law. His idea of ‘neo-democracy’ places legal empowerment, dignity, participation, and social obligation at the center of democratic life, rather than treating elections, courts, and legislatures as sufficient indicators on their own).
5. Angus Harrison, “Universal rights, territorial duties: reassessing Article 3 ECHR in extradition law” 26(3) Human Rights Law Review (2026) (questions the current reach of Article 3 ECHR in extradition cases. By separating the universality of the right from the territorial scope of a Convention state’s duties, Harrison argues that Soering does not require every form of treatment that would violate Article 3 within Europe automatically to bar extradition when the risk arises abroad).

Call for Papers and Announcements

1. The National University of Singapore Faculty of Law will host Chief Justice Sundaresh Menon’s Bicentennial Lecture, ‘Evolving Conceptions of the Rule of Law: The Singapore Experience,’ on 2 September 2026.
2. The New South Wales Chapter of the Australian Association of Constitutional Law will hold a seminar on ‘Current Issues Concerning the Implied Freedom of Political Communication’ on 8 September 2026. The programme covers recent cases, anonymous political communication, pre-existing freedoms and the use of counterfactuals in implied-freedom analysis.
3. The Africa Regional Conference on Parliament and Legislation is accepting panel, session and round-table proposals for AFRIPAL 2027 in Gaborone, Botswana, until 11 September 2026. The conference theme is ‘African Parliaments in the Digital Age: Reimagining Possibilities for Better Performance and Networked Governance.’
4. Constitutional Studies, jointly published by the Comparative Constitutions Project and the International Association of Constitutional Law, is accepting work through a multilingual, open-access model.

Elsewhere Online

1. Ibrahima Niang, Constitutional Referendum in Guinea-Bissau: Another Constitutional Crossroads, ConstitutionNet (21 August 2026)
2. Ojaswee Bhattarai, Constitution Amendment or Constitutional Rewriting? Overview of the Constitutional Reform Discourse in Nepal, ConstitutionNet (14 August 2026).
3. Flóra Fazekas, András Kádár and Nóra Novoszádek, Temporary fixes and long-term commitments: Hungary’s 17th Amendment to the Fundamental Law, ConstitutionNet (2 August 2026)
4. Peter Garang Geng and Joseph Geng Akech, Peace Agreement and Constitutional Amendments in South Sudan: Recent Developments, ConstitutionNet (26 July 2026)
5. Ben Yong, The Civil Service: A Public Good, Not the Enemy Within, UK Constitutional Law Association Blog (27 August 2026)
6. Joanna Bell, The Immigration and Asylum Bill (Part 1): a proposal to rewire the relationship between asylum appeals and the Home Office, UK Constitutional Law Association Blog (26 August 2026)

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L’interpretazione del diritto internazionale consuetudinario costituisce una delle questioni più complesse e dibattute della teoria e della pratica del diritto internazionale contemporaneo. Tradizionalmente, l’analisi di tale fonte del diritto si è concentrata esclusivamente sul momento della sua identificazione, attraverso la ricerca della prassi e dell’opinio iuris. Questo approccio, tuttavia, ha lasciato poco esplorato il successivo momento della determinazione del significato e della portata delle norme consuetudinarie. La presente monografia tenta di colmare simile lacuna. Attraverso un’analisi sistematica della prassi degli Stati e della giurisprudenza internazionale, si offre un quadro metodologico per comprendere i criteri che governano l’interpretazione del diritto consuetudinario. L’indagine mostra come l’attività interpretativa rivesta un ruolo fondamentale non soltanto nell’applicazione di norme consuetudinarie previamente identificate alle fattispecie concrete sopravvenute, ma anche nel coordinamento tra la consuetudine e le altre fonti del diritto, nella prevenzione e nella risoluzione di antinomie, nonché nell’adattamento di simile fonte ai mutamenti di fatto e di diritto. L’opera si rivolge a studiosi e operatori del diritto internazionale che intendano approfondire le dinamiche teoriche sottese all’interpretazione della consuetudine internazionale.

     

On 27 July 2026, Greece’s health minister, Adonis Georgiadis, was asked on live television why, some years earlier while a member of parliament, he had messaged a senior figure at Novartis, a Swiss multinational pharmaceutical company headquartered in Basel, to have a friend’s website included in a privately run advertising campaign from which it had been excluded. He did not deny it. He said he did it because she was his friend, and then explained that this was nothing out of the ordinary. “It is entirely normal,” he said. “I was not a minister then, I was an MP. We MPs do favors, in case you did not know.”

The remark matters, but not for the reason most of the ensuing argument assumed. The publicly available evidence does not establish bribery or a criminal exchange. That legal boundary does not weaken the constitutional argument; it identifies it. What Georgiadis defended was not a single intervention but a general account of what elected office is for: he had direct political access to a corporate decision-maker, and the practical ability to raise someone’s case with that person himself. That access could then be turned into a selective opportunity for someone in his personal circle. That account does not repeal the formal promise of equal citizenship; it runs alongside that promise and builds a parallel order in which proximity to power decides who receives an intervention others cannot obtain.

This is an informal constitution of access. The formal constitution promises that public power will answer to general rules, open to challenge and review. The informal one answers to relationships. One recognizes the citizen; the other recognizes the contact. The two coexist within the same democratic state, but they do not recognize the same person. A single television exchange did not create this second order, and it is not the whole of Greek political life. The rule is not merely inferred from the fact that an intervention took place; it was stated by the officeholder himself: it is entirely normal that we, MPs, offer favors. Informal institutions are not isolated departures from formal rules. They are socially recognized rules that organize expectations alongside them. Georgiadis did not merely defend conduct. He articulated the rule under which that conduct becomes normal.

Personal mediation of this kind functions as a parallel, informal rule of political membership: what a citizen’s formal rights are worth comes to depend on whether someone in power will speak for them. The constitutional problem lies there, and it exists even where no illegality can be shown. The damage is done not by any provable offense but by the quiet substitution of relationship for rule.

Said without embarrassment

Most of the time this second order stays quiet. Favors are performed, calls are made, a word is put in, and nobody describes the practice as a principle. What made the Georgiadis exchange unusual was not the intervention but the candor. He did not treat it as a lapse he regretted, or an exception forced by friendship. He folded it into the ordinary business of parliamentary office and grew impatient with anyone who would find it strange. The journalist’s question (“is that normal?”) was met not with a denial but with a lesson in how things work.

That is the whole point. An informal norm becomes visible when someone in power articulates it as though it were obvious. When a minister explains, without embarrassment, that doing selective favors is simply what representatives do, the formal rule of equal treatment has not been struck down. A rival understanding has quietly overtaken it, one the officeholder considers too self-evident to defend.

The formal equality starting point here is Article 4 of the Greek Constitution, which guarantees that all Greeks are equal before the law. One might assume the equality principle is unavailable because the decision on whether to include the friend’s site in the campaign belonged to a private company rather than an organ of the state. Article 25(1) of the same Constitution provides that fundamental rights also apply in the relations between private persons “to which they are appropriate,” which is a question to be argued rather than an automatic route to holding that Article 4 governs a private advertising decision. The available facts do not support a justiciable equality claim. No similarly situated party has been identified who was treated differently within the same process; there is no comparator to anchor the claim, and no factual record thorough enough to support a legal finding. The equality guarantee has nothing concrete to fasten onto. But that does not place the incident outside constitutional analysis. What it shows is how clientelistic power can bypass the formal moment at which equality becomes legally enforceable. Political access can determine whose interests reach a decision-maker without ever producing the kind of record that an equality claim needs. A claim built on a documented record can be litigated. A rule that decides who receives political mediation may operate without ever leaving such a record behind.

And it is precisely because the available facts fall short of a documented equality claim that the question moves from legality to constitutional culture. The trouble is not the private advertising decision as such. The problem is an elected representative who contacted a Novartis executive to ask that his friend’s site be added to the campaign, and then justified that contact by reference to what he considered the ordinary role of an MP: converting political access into a private advantage and defending that conversion as a normal feature of representation. He did not present it as a lapse he regretted. He presented it as entirely proper for someone holding a seat. That is the constitutional question the statement raises, and it is a sharper one than any charge of illegality.

Not a Greek disease

It would be easy, and wrong, to file this under Greek exceptionalism, the familiar story of a southern democracy that has never quite outgrown its clientelist habits while its northern neighbors have moved on. That framing is simply inaccurate, and the comparative record does not support it.

Clientelism is not a pathology confined to Europe’s south or east. Scholarship on patronage and citizen-politician linkages has documented personalized mediation and selective distribution across affluent, stable democracies, and the point of the comparison is that the mechanism is never quite the same twice. Kitschelt and Wilkinson’s comparative work points to countries such as Japan and Austria, hardly the periphery of the democratic world. In Japan the vehicle has been the kōenkai, the candidate’s personal support organization, through which constituency services and material benefits flowed to supporters under the old single-non-transferable-vote system. In Austria the same logic ran through Proporz, the formalized sharing of public-sector posts and appointments between the two large parties, so that patronage operated as an almost official convention of coalition government rather than a personal aside. The two French cases work differently. Marseille is a case of municipal clientelism run through the mayor’s office and the town hall. Corsica is something older and more diffuse: clientelistic mediation carried by local notables during the French Third Republic, a relationship between society and the state rather than a machine housed in a single municipal office. What differs is the machinery: a personal support society in one place, an inter-party spoils convention in another, town-hall brokerage in a third, notable-based mediation in a fourth; what persists across all of them is the same displacement: impersonal allocation giving way to relationships of proximity and influence.

This is the point at which political favor becomes a governing rule. A completed exchange of benefit for political support is only the visible transaction. The clientelist order depends on an earlier rule: political office is understood as access that may be distributed through personal relationships, and those relationships may legitimately produce opportunities unavailable to everyone else.

What sets the Greek episode apart is how openly the rule was stated. In some of these systems it stays dressed in institutional procedure. In Marseille, on Mattina’s account, the distribution of public resources, in particular municipal jobs and social housing, ran through family and clientelistic channels, so that a favor to a client could take the outward form of an ordinary administrative decision about who got a post or a flat. The relationship did the work, but a procedure gave it cover.

So the Greek episode is not significant because it exposes a uniquely Greek practice. It is significant because a logic that usually stays informal, and that operates in one form or another across European democracies, was stated with unusual clarity as the ordinary meaning of parliamentary representation.

Two kinds of citizen

The deeper problem that an informal constitution of access creates is not that some citizens have rights and others do not. Formally, everyone has the same rights. The problem is what those rights are worth in practice, and that turns out to depend on something the written constitution never mentions: who you know.

The dividing line in an order of this kind is not between citizens who possess rights and citizens who lack them. It runs between those whose rights have to speak for themselves and those who have someone in power willing to speak for them. The first citizen submits an application and waits for a rule to be applied. The second sends a message to a friend. Both may be entitled to the same thing on paper. Only one of them has a shortcut, and the existence of the shortcut is precisely what the general norm was supposed to prevent.

This is where the strongest objection has to be met, because it is the one Georgiadis reached for. MPs should help people; that is part of what representation entails. They are expected to challenge administrative silence, expose the misapplication of rules and demand that public institutions perform their legal duties. None of that describes the intervention he defended. No general entitlement was being restored. No unlawful barrier was being removed. A private opportunity was sought for a particular person for the stated reason that she was his friend. To call both of these things representation is not to defend constituency service. It is to erase the boundary that makes constituency service democratic: the difference between repairing an impersonal rule and quietly replacing it.

The limits of transnational regulation

A remaining question is what the European Union legal order can do in response to such informal access. Its machinery is built to identify institutional failures and breakdowns in enforcement. The budget conditionality regulation is engaged only when rule-of-law failures affect the sound management of Union funds in a sufficiently direct way; the annual Rule of Law Report tracks justice, anti-corruption frameworks, media pluralism and institutional checks; the new anti-corruption directive harmonizes offenses such as trading in influence. These instruments can register the institutional environment in which favoritism thrives. European legal leverage, however, begins only once diffuse political practice can be translated into a recognized offense, a deficient safeguard, an institutional breach or a sufficiently direct threat to Union funds.

An informal constitution of access operates earlier. Its operation shapes which uses of office appear to require no justification in the first place. The difficulty here is not visibility but traction: Europe may see the culture of favor without being able to act upon it. The blind spot is not corruption hidden from public view. It is favor spoken in public and recognized as politics. Europe can address the breach once it announces itself as such; it has almost nothing to say to the officeholder who does not deny the general rule, but redescribes personal intervention as the ordinary work of representation. The erosion of constitutional culture happens in exactly that gap, and it happens before anything the law is built to catch has taken place.

The most disturbing part of the exchange was not the admission that an intervention had been made. It was the certainty with which that intervention was defended as normal parliamentary conduct. Georgiadis did not deny the clientelist logic; he set out its operating principle himself: personal friendship converted into political advantage and defended as an MP’s ordinary work. At that moment, clientelism ceased to be an allegation made against power. It became power’s description of itself.

Suggested citation: Joanna Demopoulou, The Informal Constitution of Access: What a Greek Minister’s Defense of Political Favors Reveals About Equal Citizenship, Int’l J. Const. L. Blog, Aug. 30, 2026, at: http://www.iconnectblog.com/the-informal-constitution-of-access-what-a-greek-ministers-defense-of-political-favors-reveals-about-equal-citizenship/

The post The Informal Constitution of Access: What a Greek Minister’s Defense of Political Favors Reveals About Equal Citizenship appeared first on www.iconnectblog.com.