Introduction

Constitutions allocate and limit public power, protect fundamental rights and establish the framework within which governments govern and people hold them accountable. Their legitimacy depends not only on what they say, but also on how they are amended. When constitutional amendments are hurried, clumsily drafted or driven by narrow political interests, it is not only the constitutional text that suffers. The public’s confidence in constitutional governance is also diminished.

The Constitution of Zimbabwe Amendment (No. 3) Bill (Bill) illustrates that danger.  The Bill proposes several changes to the Zimbabwean Constitution including extending the presidential term from five to seven years and allowing that extension to benefit the incumbent.

The Bill has secured the required two-thirds majority in both Houses of Parliament. Following the National Assembly’s approval of the Senate’s amendments on 30 June 2026, the Bill is expected to be presented to the President for assent. In terms of section 131(5) of the Constitution, the Speaker must present the Bill to the President without delay and give public notice of the date on which it was transmitted.

The Bill raises a fundamental constitutional question that extends beyond the wisdom of the proposed amendments themselves. The central issue is whether Parliament may achieve through legislative drafting what the Constitution requires to be done through the constitutional amendment procedure it expressly prescribes.

The constitutional difficulty at the heart of the Bill

The principal constitutional difficulty presented by the Bill is not merely that it extends the incumbent President’s tenure. It is that the Bill attempts to circumvent the constitutional amendment procedure prescribed by the Constitution itself.

Section 328(7) provides, in mandatory language, that an amendment extending the length of time that a person may hold public office ‘does not apply’ to anyone who held that office before the amendment. The provision was included in the 2013 Constitution to prevent incumbents from altering constitutional rules in order to prolong their own tenure.

If Parliament genuinely wished to permit an incumbent President to benefit from an extension of presidential tenure, the Constitution already prescribed the lawful route. It would first have to amend section 328(7), thereby removing or modifying the constitutional prohibition. However, section 328(9) provides that section 328 itself may be amended only by following the procedures set out in subsections (3), (4), (5) and (6). Those procedures include approval through a national referendum. The effect is that any amendment to section 328, including subsection (7), must be subjected to a referendum before it can become law.

The constitutional architecture is therefore deliberate. The framers recognised that incumbents might one day seek to alter the constitutional rules governing their own tenure. They responded by entrenching section 328 itself, ensuring that Parliament alone could not dismantle those safeguards.

The current Bill does not follow that constitutional path. Rather than amend section 328(7), which would inevitably trigger the referendum requirement under section 328(9), it leaves the subsection textually intact while inserting a new provision declaring that, ‘notwithstanding section 328(7),’ the extended presidential term shall apply to the continuation in office of the incumbent President.

That is not innovative drafting. It is an attempt to circumvent the constitutional amendment procedure itself. Constitutional supremacy does not permit Parliament to obtain indirectly what the Constitution requires to be done directly.

The drafting technique cannot disguise the Bill’s constitutional effect. In substance, it achieves precisely what a formal amendment to section 328(7) would have achieved. The only difference is that it seeks to produce that result without complying with the constitutional procedures that the Constitution expressly prescribes. It is, in effect, an attempt to amend section 328(7) without amending it.

The Minister of Justice has consistently argued that the Bill preserves the existing two-term limit. With respect, the constitutional issue is not whether the President remains limited to two terms. It is whether an incumbent may lawfully benefit from an extension of the length of those terms despite the express prohibition contained in section 328(7), while simultaneously avoiding the constitutional procedures required to alter that safeguard.

That is the constitutional defect at the heart of the Bill. Constitutional safeguards cannot be neutralised through legislative drafting. Parliament cannot avoid the amendment procedure prescribed by section 328(9) simply by leaving section 328(7) formally intact while depriving it of legal effect.

Parliament’s failure to protect the Constitution

The ease with which the Bill passed through Parliament despite this apparent constitutional defect is very concerning.

In constitutional democracies founded on constitutional supremacy, such as Zimbabwe, legislatures are more than political institutions responsible for assembling majorities. They are constitutional institutions entrusted with safeguarding the supreme law. Their responsibility is not merely to enact legislation, but to ensure that the laws they pass are consistent with the Constitution.

Measured against that standard, Parliament appears to have fallen short of its constitutional responsibility. A Bill containing provisions that appear to conflict directly with express constitutional safeguards passed both Houses.

The outcome shows that constitutional fidelity was subordinated to political expediency. Yet constitutional democracies depend upon legislatures serving as the first line of defence against unconstitutional law-making. The primary allegiance of Members of Parliament must be to the Constitution rather than to incumbent office holders or transient political interests.

It must be repeated that constitutional majorities do not necessarily produce constitutional outcomes. Constitutionalism exists precisely because even overwhelming political majorities remain subject to constitutional limits. The parliamentary support for Zimbabwe’s Constitution Amendment Bill should therefore not be confused with constitutional legitimacy.

Where to now?

As indicated above, the Bill is expected to be presented to the President for assent.

After receiving the Bill, section 131 of the Constitution then affords the President twenty-one days within which to decide how to proceed.

The President may assent to the Bill, sign it and cause it to be published in the Gazette, whereupon it becomes law. Equally, if he considers the Bill unconstitutional, or has any other reservations about it, section 131(6)(b) authorises him to return it to Parliament together with detailed written reasons requesting that it be reconsidered.

The Constitution does not permit Parliament simply to disregard those objections. The National Assembly must either amend the Bill to accommodate the President’s reservations or pass it again by a two-thirds majority of its total membership. The Bill is then returned to the President.

This is where one of Zimbabwe’s least discussed, yet potentially most significant, constitutional safeguards comes into operation.

If the President continues to harbour constitutional reservations after Parliament has reconsidered the Bill, section 131(8), read together with section 110(2)(b) of the Constitution, gives him two options. He may nevertheless assent to the Bill despite those reservations. Alternatively, he may refer it to the Constitutional Court for advice on its constitutionality.

If the Court advises that the Bill is constitutional, section 131(9) requires the President to assent to it immediately. If it concludes otherwise, Zimbabwe will be spared the consequences of enacting legislation inconsistent with its supreme law and the constitutional uncertainty that would inevitably follow.

This safeguard assumes particular importance because the Bill raises legal questions that extend well beyond ordinary political disagreement.

A referendum cannot cure constitutional circumvention

From the outset, there have been calls for the Bill to be subjected to a referendum. Those calls are understandable. Amendments of this constitutional significance naturally raise questions of direct democratic legitimacy.

The issue in the present case, however, is not simply whether a referendum should be held. It is whether the Bill is constitutionally capable of proceeding in its present form.

As pointed out above, the Constitution itself already prescribes the constitutional route for permitting an incumbent to benefit from an extension of tenure. Parliament would first have to amend section 328(7). Because section 328(9) requires any amendment to section 328 to comply with the procedures in section 328(6), that amendment would necessarily require approval through a referendum.

The Bill deliberately avoids that constitutional pathway. The issue, therefore, is not whether the Constitution permits a referendum. It is whether Parliament may avoid the constitutional route that would have required one.

A referendum cannot cure that constitutional defect.

Indeed, if the Bill were approved in a referendum in its present form, section 328(6)(b) would require the President to assent to it forthwith. That is precisely why the constitutional question should be resolved through the mechanism provided by section 131.

Conclusion

Zimbabwe is facing a constitutional crisis. The question is no longer whether the Bill has political support. The real question is whether Parliament may lawfully avoid the constitutional amendment procedure prescribed by the Constitution itself.

The answer is that the Constitution does not permit Parliament to avoid the constitutional amendment procedure prescribed by the Constitution itself.

The Constitution anticipated attempts by incumbents to benefit from extensions of tenure and entrenched section 328 against such manipulation. It requires that any alteration of those safeguards be undertaken openly, in accordance with the constitutional amendment procedures, and ultimately with the approval of the people through a referendum. The Bill seeks to obtain the legal consequences of amending section 328(7) while avoiding the constitutional process that such an amendment would inevitably trigger. That is not constitutional amendment but constitutional circumvention.

Mr Mnangagwa, the incumbent President, has described himself as a constitutionalist. The Constitution now presents him with an opportunity to demonstrate that constitutionalism requires fidelity not only to constitutional outcomes but also to constitutional procedures. By invoking section 131 and referring the Bill to the Constitutional Court, he would ensure that the Constitution is amended only in the manner that the Constitution itself permits.

Ultimately, constitutional democracies are measured not by the size of parliamentary majorities but by the willingness of constitutional actors to remain within constitutional limits. The Constitution of Zimbabwe prescribes how it may be amended. What it requires to be done directly cannot lawfully be achieved indirectly.

Suggested citation: Nqobani Nyathi, Constitutional Circumvention and the Limits of Amendment Power: Reflections on Zimbabwe’s Constitution Amendment No. 3 Bill, Int’l J. Const. L. Blog, Jul. 25, 2026, at: http://www.iconnectblog.com/constitutional-circumvention-and-the-limits-of-amendment-power-reflections-on-zimbabwes-constitution-amendment-no-3-bill/

The post Constitutional Circumvention and the Limits of Amendment Power: Reflections on Zimbabwe’s Constitution Amendment No. 3 Bill appeared first on www.iconnectblog.com.

On 30 June 2026, the Constitutional Revision Committee of the Greek Parliament began debating a government proposal to amend Article 86 of the Constitution, the provision that governs the criminal liability of ministers. Under the proposal, the investigative stages of a case against a minister would pass to a prosecutor of the Court of Appeal and a senior judicial body, and Parliament would lose its current power to conduct a preliminary examination of its own. The final step would stay as it is. A decision to prosecute would still require a parliamentary vote.

Most commentators have read this as a half-measure, with judicial process at the front end and political control at the back. There is something to that reading, though it stops short. The question worth asking is not really whether Greece has reformed enough. It is what would count as enough in the first place, and by what standard anyone could say so.

The best available answer to that question comes from the Venice Commission, in its account of why ministers are handled differently from ordinary defendants. On closer reading, that account justifies rather less than people tend to assume. It gives a reason for letting political judgment enter the process, but nothing in it requires that judgment to take the form of an exclusive parliamentary power to stop a prosecution before it begins.

Two reports, two logics

The account is not a Greek invention. It comes from the Council of Europe’s Venice Commission, which produced two documents bearing on the matter within three years of each other, neither of which refers to the other.

The first, from 2010, is its report on the independence of the prosecution service. There the Commission took a firm line: a decision to prosecute or not to prosecute in an individual case should never be answerable to Parliament. Once the legislature can reach into a specific case, the Commission reasoned, the door opens to populist pressure and partisan calculation in a domain that is meant to apply to everyone alike.

The second, from 2013, is its report on the relationship between political and criminal ministerial responsibility. Here the starting point shifts noticeably. A criminal case against a serving or former minister, the Commission observed, is bound to carry political repercussions, and it took the view that handling such a case calls for a measure of political expertise and discretion. Working from that premise, it placed parliamentary gatekeeping models, in which the legislature can block a prosecution altogether, on the same footing as judicial ones, and declined to prefer either.

Placed side by side, the two reports do not contradict each other. They answer different questions, and the 2013 report gives a reason for moving away from the 2010 position. On ministers, then, the Commission is not simply silent; it offers a rationale.

What the rationale actually supports

The real difficulty is narrower than a contradiction, and more interesting for being so. Paragraph 88 of the 2013 report supports the idea that political judgment should sit somewhere in the process of holding a minister criminally to account. What it does not support, on its own terms, is the particular institutional shape that judgment has assumed in Greece and in many comparable systems: a parliamentary power, held exclusively, to keep a prosecution from ever starting.

Those are separate claims, and the distance between them is where the argument lives. To say that political repercussions call for political awareness is not yet to say that the awareness has to run through a veto exercisable by a bare majority of the governing coalition. One could imagine a non-binding parliamentary opinion, or a mixed committee in which political representation is limited, or a judicial body obliged to consult political actors while remaining free to decide against them. Each of these would carry the political expertise the Commission is after. The veto is the one option among them that hands an elected majority the power to shut down a criminal case against one of its own ministers, and it is the arrangement Greece and a number of comparable systems have settled on.

Nowhere does the 2013 report ask whether its own rationale actually demands that design, or whether some lighter arrangement would serve it just as well. A justification does not carry an institutional form inside it; the form has to be argued for separately. Between accepting that political judgment belongs in the process and settling on a parliamentary veto, there is a further constitutional step that still has to be taken, and defended. The Greek literature on Article 86 is a case in point. It runs from Chrysogonos’s long-running critique of parliamentary control through to the more recent proposals of Kopsidi and Vlachos and Giannakoula’s comparative treatment of the Greek regime. Over more than a century, this literature has worked through the provision’s history and its record of abuse, and returned repeatedly to its uneasy fit with equality before the law. The one question it has largely left alone is this one.

The obvious objection

Someone might answer that the parliamentary veto is simply the institutional expression of the political expertise that paragraph 88 has in view. On this account the point was never political input into a judicial process. It was political control over whether the process runs at all, on the premise that only an elected body can properly weigh consequences that are political in the first place.

That reply does not actually follow from paragraph 88, and taken seriously it proves too much. Suppose that the aim really is to have someone politically accountable exercise judgment about the case. A veto would achieve that, but so would a duty to give reasons, or a power confined to sending the case back for further investigation rather than closing it for good. What a simple-majority veto adds is different in kind. It allows the governing coalition to decide, in a case concerning its own minister, whether a court ever hears the matter. The Commission’s stated rationale, the call for political expertise and discretion in a politically charged case, gives no reason why the political actor has to be the very body whose fortunes ride on the result. What that produces is no longer judgment about the case so much as institutional self-protection.

Greece as the test case, not the subject

This is what makes the Greek reform worth close attention, and worth treating as an illustration rather than as the thing itself. Moving the investigative stage toward the judiciary sits comfortably with the logic the Commission applied to ordinary prosecutors in 2010. Leaving the decisive, case-ending power in Parliament’s hands sits comfortably with what the Commission was willing to tolerate for ministers in 2013. Yet it also reaches past anything paragraph 88, read carefully, will actually support.

To put it plainly: on the investigative stage the reform can be defended by the Commission’s own standards, while on the question of who gets to halt the case it is merely presumed defensible, with no argument offered. This summer’s parliamentary debate, together with the rival models other parties have tabled, some keeping a slimmed-down parliamentary role and one dropping it in favour of a judicial council, amounts to a live experiment in precisely the design question the Commission’s reports leave unanswered, even where the debate rarely frames it in those terms.

Why this is not just a Greek question

None of this rests on anything peculiar to Greek constitutional culture. Any European state that gives its legislature a hand in the criminal accountability of ministers is leaning, whether it admits it or not, on the same step the Commission took in 2013: political consequences warrant political involvement. The question is seldom addressed directly: how much involvement that warrants, and whether a full veto is the most proportionate way of providing it rather than simply the most familiar.

A convincing account would have to go one of two ways. It could try to show that a parliamentary veto is the sole institutional form able to supply the political expertise and discretion the Commission wants, which would mean explaining why the weaker forms fall short. Or it could accept that a weaker form would do the job, which would mean conceding that the present architecture, in Greece as elsewhere, reaches more widely than the justification that is meant to hold it up.

Either approach is a more useful exercise than asking whether the 2026 reform goes far enough. The question is not whether political judgment has a place in holding a minister to account. It is whether the justification given for it can actually account for the institution built on top of it. By the Venice Commission’s own lights, that argument has yet to be made, whether in Strasbourg, in Athens, or anywhere between them.

Suggested citation: Joanna Demopoulou, How Much Political Judgment Does Ministerial Accountability Require? Greece’s Article 86 Reform and an Unexplained Gap in the Venice Commission’s Standards, Int’l J. Const. L. Blog, Jul. 24, 2026, at: http://www.iconnectblog.com/how-much-political-judgment-does-ministerial-accountability-require-greeces-article-86-reform-and-an-unexplained-gap-in-the-venice-commissions-standards/

The post How Much Political Judgment Does Ministerial Accountability Require? Greece’s Article 86 Reform and an Unexplained Gap in the Venice Commission’s Standards appeared first on www.iconnectblog.com.

Experts and international lawyers seem to agree that the initial US/Israeli attacks were contrary to the rules restricting the use of interstate force, or jus ad bellum (see, for example, here, here and here). Several experts also concluded that the Iranian response was contrary to jus ad bellum (see, for example, here and here). Yet there are many more state condemnations of the Iranian response as a violation of jus ad bellum than condemnations of the attacks made by Israel and the US. What legal meaning, if any, can we draw from this uneven pattern of responses?

The Asymmetry in Condemnation

Notwithstanding statements by President Trump that he does not need international law, and the apparent failure of international law to constrain other geopolitical developments, international law and jus ad bellum remained prominent in states’ analysis of these events. UNSC Resolution 2817, submitted by 135 UN Member States (for a full list, see UNSCM 10119, p. 3), used jus ad bellum terms such as ‘territorial integrity, sovereignty and political independence; Furthermore, Resolution 2817 stated that Iran performed armed attacks against Bahrain, Kuwait, Oman, Qatar, Saudi Arabia, the UAE and Jordan; and affirmed their right of self-defence in accordance with the UN Charter.

Jus ad bellum considerations were also prevalent in debates before the Security Council. Other than the US, Israel and Iran (UNSCM 10112, pp. 15, 19-21, 25), no State has either endorsed or acknowledged the legality of the force that each of these States used. The US and Israel justified the attacks as a continuous use of force and an exercise of self-defence during an ongoing armed conflict (UNSCM 10112, p. 25 by the US (and further elaborated here) and implied in UNSCM 10112, p. 15 by Israel, in line with its previous position concerning the June 2025 hostilities with Iran). Iran, in turn, argued that it used force in self-defence, as a response to aggression by the US and Israel (UNSCM 10112, p. 19-20). Iran admitted that part of its response included the territory of States that had not initially used force against it. However, Iran insisted that such territory was used by the US to plan and execute the attacks and so these measures were permitted under jus ad bellum (UNSCM 10112, p. 20).

In response to the arguments made by the US and Israel, Iran and Russia declared that the attacks violated jus ad bellum (UNSCM 10112, pp. 7, 18). Pakistan, China and Colombia, stated more broadly that these events violated the purposes and principles of the UN Charter or international law (UNSCM 10112, p. 13; UNSCM 10119, pp. 9, 11). The Arab League only referred to Israeli ‘military aggression’ in Iran, without mentioning the US (UNSCM 10112, p. 14). Somalia, which spoke on behalf of Liberia and the DRC, also alluded to the illegality of the attacks, referring to them as a ‘perilous and deeply troubling escalation’ and calling on all Members to comply with the prohibition on the use of force (UNSCM 10112, p. 10). Outside the Security Council, Spain, France and Canada either implicitly or explicitly referred to the attacks by the US and Israel as illegal. Conversely, there was widespread condemnation of the Iranian response, demonstrated by the support for Security Council Resolution 2817 (which included 135 UN Members who endorsed the resolution). Even Russia and China, the only UNSC Members that abstained from voting for the resolution, later acknowledged that they respect the sovereignty and territorial integrity of all countries in the region, including the Gulf States (UNSCM 10130, pp. 15, 18). This suggested that, despite their condemnation of the attacks by the US and Israel directly, their support for the Iranian response was not absolute.

Overall, the condemnation of the Iranian response was far more robust than the condemnation of  the initial attacks by the US and Israel on Iran. This led Iran to complain that the UNSC reversed the roles of victims and aggressors (UNSCM 10119, p. 21), while China and Russia abstained from Resolution 2817 and vetoed another draft resolution in a subsequent meeting for being too one-sided by ignoring the US/Israeli attacks at the commencement of the hostilities (UNSCM 10119, pp. 9-10, 15; UNSCM 10130, pp. 15-16, 19). However, even the condemnation of the Iranian response was not complete, since Iran also used force outside the areas specifically mentioned in Resolution 2817, for example in Israel. Except for the US and Israel these aspects of the Iranian response were not condemned as a jus ad bellum violation by any participant in the UNSC sessions.

The question is therefore what might be the legal value of this asymmetric condemnation in determining the correct interpretation of jus ad bellum? More precisely, could the lack of condemnation of the attacks by Israel and the US be interpreted to mean that most participants viewed these attacks as lawful due to an expansion of the availability of the right of self-defence during an ongoing armed conflict? If the same is also true for Iranian attacks in Israel, does this mean that if a State is using force in self-defence, it is not continuously bound by jus ad bellum restrictions, such as the principles of necessity and proportionality?

The Weight of Silence?

The declarations of States (or international actors that act on States’ behalf) in international forums may be relevant for treaty interpretation (as subsequent practice, according to VCLT Art. 31(3)(b)) or for establishing the opinio juris element in custom (as inferred, for example, by the ICJ ‘with all due caution’ from UNGA Resolution 2625 in Nicaragua, para. 188, and which would also be relevant for treaty interpretation according to VCLT Art. 31(3)(c)). Indeed, explicit endorsements or condemnations of State conduct undoubtedly have legal value and have been utilised heavily in jus ad bellum scholarship.

However, the way we treat the failure to condemn certain conduct is equally, if not more, important, because of the careful manner in which international actors routinely express their positions. In the context of jus ad bellum, Danae Azaria has argued that, at least when it comes to the expansion of the right of self-defence, State silence should be considered as acceptance of the legality of State conduct only when coupled with ‘weighty evidence’. This is due to, among other things, the principle whereby exceptions must be interpreted narrowly and the jus cogens status of the prohibition of the use of force.

Notwithstanding the above, the Quantum of Silence report found that ‘in practice, where scholars in this field invoke silence as legally significant, those invocations are more often than not offered in favour of relatively wide claims to resort to force’. For example, as Dapo Akande noted, some scholars have maintained that the failure to condemn the US/UK/French attacks in Syria in response to the use of chemical weapons by Syria meant that jus ad bellum rules are developing in a more permissive direction.

This trend ignores the fact that there could be numerous reasons for international actors to refrain from directly condemning the use of interstate force before a political organ such as the UNSC. According to Azaria, ‘State silence may be part of a wider diplomatic strategy or it may be motivated by economic factors or considerations of domestic politics.’ State declarations may therefore be shaped by alliances, rivalries, the geopolitical position of the State whose conduct is under scrutiny, the particular legal, economic and political situation of the reviewing State,  delays or inequalities in access to information on which judgments are based and so forth. Because much of the interaction between State representatives is not transparent, particularly when it comes to the careful negotiation and drafting process of UNSC resolutions and State declarations, it is difficult to derive legal significance from presumed motivations underlying State silence. Under these circumstances, in order to distinguish between mere silence and acceptance, it is crucial to take into account the context in which the relevant conduct takes place. Such context includes, among other things, the identity and geopolitical position of the States involved, the scale and consequences of the force used, and whether States that remained silent have taken clearer positions in comparable situations.

Silence and the 2026 Hostilities

As mentioned above, in the context of the 2026 hostilities, most international actors were silent with regard to at least two instances of uses of force:

1. The use of force by the US and Israel, which was less widely condemned compared to the Iranian response; and
2. Some aspects of the Iranian response, particularly its use of force outside of States explicitly mentioned in Resolution 2817, including against Israel.

Importantly, interpreting silence as acceptance of the legality of State conduct in both of these instances could potentially create tension. If silence is perceived as acceptance of the legality of the US and Israeli strikes, then this acceptance tends to suggest that Iran’s use of force in response would be unlawful, self-defence not being available against a lawful use of force. For this reason, if a State was silent in relation to both of the aforementioned instances, it would be difficult to argue that in both cases it concluded that force was lawfully used.

In addition, there could be a difference between the absolute silence of most international actors with respect to the US and Israeli strikes and the selective condemnation of the Iranian conduct. Arguably, the latter is a different form of silence because States already provided their opinion regarding the Iranian conduct, condemning it with respect to specific areas but refraining from providing an opinion regarding others. As demonstrated below, the fact that States have already provided an opinion regarding some of the Iranian conduct may feed into the analysis of their silence concerning other aspects of the Iranian response. In any event, for both the Israeli/US attacks and the Iranian response, there are reasons to suggest that the silence of States should not be interpreted as acceptance of the lawfulness of either State conduct or the principles that justify such conduct.

Regarding the US and Israeli strikes, several States, including longstanding US allies, either deliberately distanced themselves from or rejected the legality of these attacks, suggesting that they did not accept the validity of pre-emptive self-defence during ongoing armed conflicts. The failure to fully condemn the Iranian response may also, in itself, serve as contrary evidence for a supposed unconditional endorsement of the legality of the attacks by the US and Israel. Part of the debate in the UNSC revolved around whether US bases in the States mentioned in Resolution 2817 were actually used in the attacks (see, for example, UNSCM 10130, p. 25). The direction of this discussion may suggest that States thought that, if these bases had been used, then Iran could be permitted to attack them. Moreover, the arguments presented by the US and Israel, regarding the use of force during ongoing armed conflicts have met strong resistance from States and scholars (for context and criticism of the ‘ongoing armed conflict’ rationale, see here, here and here). Acceptance of the US and Israeli arguments would essentially permit States to freely use force just because they have clashed in the past, an interpretation which could potentially greatly undermine jus ad bellum in circumstances in which it is most needed.

In a similar vein, there is little to suggest that States’ silence about less-discussed aspects of the Iranian response, such as the Iranian attacks in Israeli territory, reflects acceptance of the legality of Iran’s conduct. Resolution 2817 condemned Iranian attacks for being indiscriminate. Yet, it is accepted as a matter of fact that at least some of the Iranian attacks in Israel were also indiscriminate and that Iran used cluster munitions against populated areas in Israel. Contemporary scholarship regarding the continuous assessment of the requirements of necessity and proportionality when force is used in self-defence is quite clear in emphasising that the choice of targets and the means and methods of attack are relevant not only to jus in bello, but also to jus ad bellum legality (see, e.g. O’Meara, pp. 31; Green and Waters, pp. 9-13). Yet, in light of the explicit condemnation of similar acts in Resolution 2817, it would be difficult to treat the lack of condemnation of the Iranian response in Israel as acceptance of the legality of Iranian conduct. Likewise, such lack of condemnation cannot support the broader implications of the acceptance of the legality of Iranian conduct that, as a matter of jus ad bellum, States are permitted to respond to armed attacks without being continuously bound by the principles of necessity and proportionality. This ‘static’ reading of these requirements, arguing that they only operate at the commencement stage of an armed conflict, has been put forward by the US as justification for the initial strikes, but it is equally untenable to support the legality of the Iranian response.

Future Reflections

As a cornerstone of the current international order, jus ad bellum remains at the forefront of debates concerning the legality of the use of interstate force. However, the sensitivity of jus ad bellum related issues often disincentivises international actors from clearly pronouncing their legal position with respect to specific instances in which force was used and many prefer to remain silent.

These ambiguities might be detrimental for international law, especially if we continue to interpret silence as acceptance of legality that could potentially erode jus ad bellum into nothingness. Some States, such as Mexico, have pushed for enhancing the transparency around States’ legal and factual bases for using interstate force. This could be a welcome development and there are various ways to support these initiatives, including by highlighting the importance of such proposals and promoting them to the forefront of the agenda of the international community, or by bringing these issues for discussion in other international forums, such as the ICJ and the ILC.

Yet, so long as international actors continue to provide ambiguous and selective declarations, we must remain mindful of the environment in which such declarations are made. This, in turn, requires us to be very suspicious and cautious when it comes to the interpretation of State silence as endorsement of the legality of State conduct and the underlying principles justifying such conduct.

The incident illuminates a fault line that runs through the very architecture of public international law itself, one that has never been satisfactorily addressed by international law. How are traditional belligerent rights under the LNW to be reconciled with the U.N. Charter and the rights of states not party to the conflict? This post argues that since the underlying relationship between a belligerent and a neutral State remains one of peace, the LNW cannot by itself supply a lawful basis for the use of force where the U.N. Charter supplies none.

U.S Blockade Enforcement

From April 13 to June 18, the U.S.A implemented a blockade of all maritime traffic entering and exiting Iranian ports. Pursuant to the blockade enforcement, CENTCOM redirected 142 commercial ships, granted passage to 42 ships providing humanitarian aid and disabled 9 vessels, predominantly by way of attacks by U.S naval aircraft. There have also been boardings of vessels like the M/V Blue Star III and M/T Celestial Sea. However, since these vessels were released or diverted, this category of incidents is not explored herein. 

The first six ships attacked were the Iranian flagged M/T Touska (April 19th), M/T Hasna (May 6th) and M/T Sea Star III and M/T Sevda (May 8th), the Gambian flagged M/V Lian Star (May 30th) and the Botswana flagged M/T Lexie (June 2nd). The final three: the Palau flagged M/T Marivex and M/T Settebello and the Guinea-Bissau flagged M/T Jalveer were attacked by U.S. aircraft between June 8 and 10. Palau later stated that the Marivex had already been removed from its registry.

Omani authorities rescued 24 Indian crew members from the Marivex and 21 from the Jalveer. Three of the Settebello’s 24 Indian crew members were killed and the remainder rescued. While foreign flagged, all three vessels had substantial Indian connections extending beyond their crews, potentially including ownership or management, with two also serving Indian ports. Subsequently, India lodged two protests against the attacks by U.S naval forces on commercial vessels carrying Indian mariners, while External Affairs Minister S. Jaishankar relayed India’s deep concern about the use of lethal and deadly force against civilian, commercial shipping to the U.S Secretary of State Marco Rubio, as did the Indian Prime Minister Narendra Modi with the U.S president Donald Trump at the G7 summit. The IMO Secretary General, who had already emphasized that civilian seafarers are not combatants and must never be targeted, expressly condemned the attack on the M/T Settebello.

Attacks on Ships as a use of force

Prior to considering the relationship of the Law of Naval Warfare with the U.N Charter itself, three preliminary issues arise, moving from the relatively settled to the highly contested. First, do attacks against ships constitute a use of force against a State? Second, when do they cross the threshold of an armed attack permitting self-defence? Third, amidst flags of convenience, multinational crews, and opaque ownership structures, who constitutes the victim state?

On the first issue, it is well understood that “forcible conduct that produces harmful effects…in spheres under (a state’s) jurisdiction is prima facie considered to be directed against that (territorial) State.” Consequently, forcible conduct (not grounded in peacetime law enforcement authority) which harms a ship is also understood as being capable of breaching the Article 2(4) prohibition on the use of force (p. 331). However, issues number two and three are characterized by the existence of a legitimate disagreement (p.338). 

On issue two, Article 3(d) of UNGA Resolution 3314 (XXIX) recognizes that an attack on the “marine fleets of another State” may constitute aggression. There is considerable disagreement over the threshold connoted by the term ‘fleets’ (see the references to Ishii, Ruys and Dinstein cited herein). This debate matters because the determination of whether the use of force against shipping constitutes the ‘most grave form of the use of force’ (thus constituting an armed attack) or merely other less grave forms is the very hinge upon which the availability or non-availability of the right to self-defence pivots. 

In the Oil Platforms Case, where the I.C.J addressed this issue in significant detail, it did not find the attack on the Sea Isle City, either by itself or in combination with the other series of attacks to constitute an attack which gave rise to the gravest form of the use of force that would make available the right to self-defence. However, while it arrived at this conclusion in that particular case, the I.C.J did imply (pp.208-209) that it was possible for deliberate and unlawful attacks against merchant vessels to constitute an armed attack. 

The I.C.J’s findings (para 64) in Oil Platforms were heavily informed by the particular facts of the case wherein it had not been possible to determine that the missile fired at the Sea Isle City was aimed at the specific vessel; the fact that the Texaco Caribbean (whatever its ownership was not flying a U.S flag; that there was insufficient evidence to demonstrate that the firing on U.S helicopters and minelaying were done by Iran; and the absence of evidence that the mine which struck the Bridgeton was laid with the specific intention of harming it or other U.S vessels. Notably, none of these incidents resulted in the death of any U.S. national.

The balance (pp.205-206) of views then, leans in favour of rejecting the limitation of Article 3(d) to massive attacks upon a State’s entire merchant fleet. This view most recently found support in U.N.S.C Resolution 2722 (2024) and Resolution 2817 (2026) as well, which recognized the right of states to “defend their vessels from attacks and provocations, including those that undermine navigational rights and freedoms”. 

The confusion on the third issue arises from the divergence between the peacetime and wartime framework, for determining the permissibility of piercing a ship’s veil of registration and considering its ownership, charter or other criteria to ascertain its enemy status and/or ‘genuine link’ with the state whose flag it flies. Whereas the LNW permits this piercing, the International Tribunal on the Law of the Sea (ITLOS) has time (para 83) and again (para 110) prioritized the formal and private functions of the conferral of nationality and registration, while giving insufficient weight to its external public-law functions, particularly its role in determining naval protection or the characterization of vessels during wartime.

Arguably, the international response to the 2022 Russian invasion of Ukraine was a turning point, with states signalling an openness to questions concerning the relationship between registration, the existence of a genuine link, and the recognition of a vessel’s nationality by third States. Indeed, this was prominently on display during the Anglo-American response to attacks against foreign-flagged commercial shipping in the Red Sea in 2024 by the Houthis.

For the present discussion, it suffices to note that the Marivex, Settebello and Jalveer were third state vessels that were not shown to have been carrying weapons or military matériel or performing any belligerent acts. Consequently, forcible action against them implicated the rights of both third states and individuals not party to the hostilities. While the latter are beyond the scope of this article, the following subsection focuses on the former.

The relationship of the Law of Naval Warfare (LNW) and the UN Charter

The U.S use of force against the Marivex, Settebello and Jalveer – attacks that resulted in 3 Indian deaths, has focused the spotlight on the question of what, if any, is the legal basis for using force against third state vessels during blockade enforcement?

A blockade seeks to deny access to an enemy’s coast. Its very effectiveness flows from its property of denying this access to any and all vessels: enemy, non-belligerent and neutral vessels. The legal puzzle is as follows. First, Hague Conventions V and XIII of 1907 recognized that neutral States could maintain their commercial ties with belligerents. Second, since the entry into force of the U.N Charter, there can be no lawful resort to the use of force which cannot be justified via the provisions of the U.N Charter. Given that the relationship between a neutral and a belligerent remains one of a state of peace, how can a blockading state use force against a neutral state without being in breach of its charter obligations?

This problem exposes a fundamental jurisprudential fault line, the answer to which serves as a litmus test (p.3) for how one answers the question posed above (on a spectrum of views, see Kraska for a permissive view and Clapham for a restrictive view). Does Article 2(4)’s prohibition on the use of force constrain belligerent rights under the LNW? Specifically, must the LNW be reconciled with the Charter’s conception of self-defence, or does it apply in its complete pre-Charter form once an armed conflict breaks out?

The expert restatements of the LNW: the San Remo and the Newport manuals subordinate the LNW to the Charter in principle. However, they insulate its substantive rules from the consequences of that subordination in practice. So, on the one hand, they explicitly repudiate (pp.76-77) the notion that the jus ad bellum stops where the jus in bello begins. However, at the same time, they continue to recognize the violability of private property at sea, recognize a practically unlimited conception of military objectives and endorse an understanding of self-defence which is completely at odds with its authoritative and mainstream conception. This informs the viewpoint that there is little evidence that these manuals actually questioned whether the traditional law was actually compatible with the U.N Charter (see Sassòli, p. 433). 

This insulation has gone almost entirely ignored within the mainstream public international law circles, as the absence (pp.426-427) of any general naval war since 1945 – a period when interstate warfighting has predominantly occurred on land and in the air, has resulted in no pressing need to reconcile this tension. As noted by Ingber, the tendency to put a disclaimer upfront about the need to adhere to the Charter, followed by disclaimers and rules which permit Charter inconsistent acts, results in the Charter doing little actual interpretive work. 

However, this lack of clarification has now come to a head. The San Remo and Newport manuals on the law of naval warfare imply – explicitly or by omission – that a blockading state can continue to use force against neutral vessels (and by extension a neutral state if enough of its vessels are targeted), because elements of the LNW that predate (p.473) the U.N Charter endorse precisely such an expansive, pre-Charter conception of violence. The trouble, of course, is that interference with neutral shipping is no longer understood as being legal by default in the post-Charter world – a world that is characterized by a strict regulation of the circumstances in which states may resort to the use of force in their international relations.

Targeting third state vessels pursuant to a blockade, engaging in contraband control and engaging in visit, search diversion and capture are amongst the most permissive and sweeping belligerent privileges that states have sought to claim under the LNW. LNW manuals recognize that these are not automatically available in just any armed conflict. Rather they are conditioned on the scale and duration (p.74) of the conflict, the intensity and scale (pp. 7 and 74) of the armed attack and the gravity of the threat posed. These descriptors function as an ever present, if latent, spectre of the comprehensive (p.83) use of force, rising to the level that triggers the legal regime of ‘war’ as understood in the pre-U.N Charter sense.

Conceptualizing the legal basis for this exact move then necessitates recognizing that these manuals assume two distinct legal orders: one governed by the Charter when force remains below a certain threshold, and another governed by pre-Charter belligerent rights once that threshold is crossed. However, this brings us full circle to the legal problem posed in the preceding paragraphs. How does the fact that an armed conflict acquires an enhanced degree of intensity and scale make any difference whatsoever to the fact that the relationship between a neutral and a belligerent remains one of peace?

Indeed, this tension has also been at play in the U.S publication of contraband lists and an assertion of the ‘right’ to engage in global economic warfare. Notwithstanding the very confused and inconsistent invocation of the different legal bases for its subsequent seizures, what is particularly notable is that despite 12 weeks having elapsed since their publication, the U.S.A has not actually seized a single vessel specifically under this authority.

This reflects the fact that forcible interference with a neutral state’s shipping would fall afoul of the prohibition on the use of force found in Article 2(4) of the U.N Charter. Indeed, the formation of such a consensus which has been remarked (p.135) upon since as early as the 1990s has only grown stronger (pp.331-334) with the passage of time. This has been confirmed in the U.S-Israel and Iran war as well where the U.N.S.C noted in Resolution 2817, the “right of navigation for shipping en route to and from all ports and installations of the littoral States that are not parties to the hostilities.” 

Notwithstanding the explicit recognition of the ongoing conflict as a ‘war’, both the Charter framework and neutrality law do continue (p.272) to discharge a role. The co-existence of a Charter-governed order and the law of neutrality reflects the fact that a neutral and belligerent state continue to be governed by the law of peace – this being the very basis for a neutral state’s entitlement to not be adversely affected by a conflict.

Conclusion

The U.S blockade enforcement has focused attention on a proposition that the LNW assumes but international lawyers rarely confront openly: do there exist circumstances where a state may lawfully use force against another state with which it remains at peace? Irrespective of the view that one adopts about the continuing role discharged by the legal state of war in governing inter-belligerent relations, this article has argued that the LNW cannot, by itself, supply an entitlement to use force against third state shipping where the Charter supplies none. To conclude otherwise is to posit the existence of two legal orders – one governed by the Charter and the other independent of it. 

This book delivers an in-depth doctrinal analysis of the right to science under Article 15 ICESCR, focusing on the novel concept of its core content, as well as on its rights holders and duty bearers. Monika Plozza challenges the entrenched dichotomy between economic, social and cultural rights on the one hand and civil and political rights on the other, demonstrating that the right to science is indeed justiciable. Situating it within the wider framework of international human rights law, she traces its connections with a broad range of related rights. In doing so, this book equips scholars, practitioners and policymakers with the legal tools needed to invoke and implement the right to science in judicial and policy contexts. Timely and rigorous, it establishes the right to science as a vital legal framework for confronting global challenges ranging from climate change and disinformation to artificial intelligence. This title is available as open access on Cambridge Core.

     

In recent years, children’s rights have received heightened attention in Hungary. Child protection has become a ‘hot potato’ and became one of the reasons that led to the success of Péter Magyar at the general election held in Hungary in April 2026 and brought him a landslide victory over Viktor Orbán, ending the latter’s 16-years in government.

Although both the Fundamental Law of 2011 and the Child Protection Act of 1997 were subject to significant politically motivated amendments as early as 2020, children and child protection only moved to the center of public and professional discourse as the result of the so-called “pardon scandal” that erupted in 2024—an affair that ultimately led to the resignation of the President of the Republic, Katalin Novák, and partly to Orbán’s defeat. The ‘pardon case’—where the President of the Republic pardoned a criminal, who was convicted for assisting in covering up his superior’s case on sexual abuse against children by coercing one of the victims to withdraw their testimony, received public backing from Zoltán Balog, a senior political figure, church leader, and former minister in Prime Minister Orbán’s government — attracted particular interest because it offered insight into the everyday functioning of a sector—residential child care institutions—that remained largely unknown to the broader public. At the same time, it drew attention to the operation of the entire child protection institutional framework. This quickly led to a more general question: what is the content of children’s right to protection, and what is required for this right to be effectively realized?

The positions emerging in the public discourse, however, extended beyond narrowly defined legal issues and shifted toward political interpretations of the concept of the “child” and the child’s “best interests.” This development aligned with a political approach that treated the child as a mere “public good” and equated the child’s interests with the state’s current objectives. Such a perspective, however, may produce a clear tension with the modern paradigm of children’s rights, which recognizes the child as an autonomous rights-holder.

The aim of our post is to argue that children’s rights cannot be reduced to mere political rhetoric. A country’s constitution can adequately guarantee children’s rights only if the constitutional framework is based on the holistic approach embodied in the Convention on the Rights of the Child. Rather than forming a hierarchy, children’s rights are interdependent and mutually reinforcing.

Children’s Rights in the Fundamental Law

The political and social significance of the issue—alongside its instability—is reflected in the turbulent history of Article XVI—declaring the rights of the child—of the Fundamental Law over the past five years. This provision was amended by Parliament in both 2020 and 2025. Recurring amendments officially aimed at providing a higher standard for child protection—an aim questionable in itself, because of the underlying failed developmental-psychological and sociological approaches. The reasons behind the official explanation, however, clearly aligned with the political agenda of the Government.

According to the original 2012 text: “Every child shall have the right to the protection and care necessary for his or her proper physical, mental and moral development.”

The 2020 Amendment supplemented this with a contemporary political objective:
“Hungary shall protect children’s right to an identity corresponding to their sex at birth, and shall ensure upbringing in accordance with the values based on Hungary’s constitutional identity and Christian culture.”

The most recent 2025 version added a further sentence after the opening proclamation, according to which: “Every child shall have the right to the protection and care necessary for his or her proper physical, mental and moral development. This right—except for the right to life—shall prevail over all other fundamental rights.”

Such frequent, and rather hypocritical amendments especially in light of the pardon-case have, despite their nominally rights-protective aim, primarily become tools of political communication. Consequently, it is difficult to analyze Article XVI solely on the basis of fundamental rights, as its interpretation is closely intertwined with underlying political narratives.

This brief analysis nevertheless seeks to demonstrate that the latest transformation of Article XVI establishes a rigid hierarchy among fundamental rights—one that is theoretically unjustifiable.

Why Should (Almost) All Fundamental Rights Not Be Subordinated to Children’s Rights?

This question can be answered from both a general fundamental rights perspective and a child rights–specific viewpoint.

From a general perspective, any hierarchy among fundamental rights in Hungarian law can at most be attributed to “historical accidents.”^[1] An analysis of Hungarian Constitutional Court’s case law shows that such hierarchies have never served as the sole basis for resolving conflicts between rights. No decision has relied exclusively on hierarchical reasoning.^[2] (This remains true despite the fact that we are, of course, aware of decisions in which the Hungarian Constitutional Court has emphasized the particular importance of certain fundamental rights—such as human dignity, freedom of expression, or freedom of religion.)^[3] Instead, conflicts have consistently been resolved through balancing, guided by the principles of necessity and proportionality.

It follows that elevating a single right—the child’s right to protection and care—to a position of absolute priority is entirely foreign to the established and successful method of resolving fundamental rights conflicts in both international and domestic constitutional grounds, including the consistent case law of the Hungarian Constitutional Court.

From a child rights perspective, such a hierarchy also contradicts the spirit of the UN Convention on the Rights of the Child (UN CRC), which has been in force in Hungary since 1991. The UN CRC requires following the ’whole child approach” and a complex, context-dependent interpretation of children’s rights, including the principle of the best interests of the child.^[4]

The content of the right to protection and care is itself open to interpretation: it may be understood narrowly as physical and moral protection, or more broadly to include rights related to development, participation, expression, and autonomy.^[5] Accordingly, children’s rights should not be conceived hierarchically but rather assessed holistically, with the child’s best interests as the guiding principle.

A Comparative Perspective

From a comparative constitutional perspective, Hungary occupies a distinctive position in Europe. While constitutions across Central and Eastern Europe generally recognize the protection of children, they incorporate children’s rights into the system of fundamental rights with varying depth and structure.

Hungary’s approach stands out in that Article XVI elevates the child’s right to protection and care to a particularly prominent constitutional value. Most European constitutions, by contrast, do not establish explicit or implicit hierarchies among rights but instead favor balanced, case-by-case approaches.

How Should Children’s Rights Be Interpreted and Regulated?

International standards—especially the UN CRC—place the principle of the child’s best interests at the center. This principle functions as a horizontal, guiding standard that permeates all decisions affecting children. It requires a case-by-case assessment that considers the child’s individual needs and circumstances.

Similarly, the 2014 report of the Council of Europe’s Venice Commission emphasizes that constitutional protection of children’s rights must be holistic. This includes not only declarative norms but also institutional guarantees and coherent interpretative practices.

The report stresses that children are not merely passive recipients of protection but independent rights-holders whose rights form an integral part of the fundamental rights system. It also highlights that the “best interests” principle must not be used to justify political or ideological objectives. Furthermore, it underlines the importance of legal clarity, legal certainty, and institutional safeguards, such as independent children’s rights ombudsman mechanisms.

Evaluation of the Hungarian Framework

Although the Hungarian Fundamental Law formally reflects the importance of child protection, it does not fully meet the requirements of a holistic approach. The wording of the relevant provisions is often broad and open to interpretation, raising concerns regarding legal clarity. Moreover, the potential hierarchical structuring of children’s rights conflicts with international and European trends emphasizing balance and contextual assessment.

Overall, while Hungarian constitutional regulation appears to align formally with international standards, its substantive and structural characteristics—particularly the reconfiguration of the relationship between fundamental rights—warrant critical scrutiny.

Child-related constitutional amendments under the governments of Viktor Orbán reflect a broader ideological approach that combines conservative family values, demographic policy, and political sovereignty. These changes emphasize the protection of children within a framework of “traditional” family structures and link children’s rights to concepts such as identity based on sex at birth and upbringing aligned with national cultural and Christian norms. At the same time, “child protection” is often framed not only as safeguarding against abuse or neglect, but also as shielding minors from perceived ideological influences, particularly in relation to LGBTQ+ issues. This approach positions child rights within a wider political narrative promoted by Fidesz, where constitutional provisions serve to entrench long-term values and assert national autonomy vis-à-vis international human rights standards.

Constitutionalization of Children’s Rights

The “constitutionalization” of children’s rights—often through references to instruments such as the UN CRC—is an emerging and increasingly dominant method of incorporating children’s rights into national legal systems.^[6] It signals a commitment to recognizing children’s rights at the highest legal level.

Such incorporation strengthens the protection of children’s rights by embedding them within the constitutional order, making them more resistant to erosion and giving them precedence over conflicting statutory provisions.

However, 35 years after the adoption of the UN CRC, constitutional protections of children’s rights show significant diversity and ongoing evolution. The strongest alignment with international standards is found in constitutions that reflect the indivisibility of rights, incorporate the core principles of the UN CRC, and recognize children as rights-holders capable of enforcing their rights against the state.

By contrast, constitutions that merely provide general human rights protection and frame children’s needs primarily as matters of “protection” rather than enforceable rights offer only limited avenues for effective rights enforcement.^[7]

Final Remarks

When constitutional amendments are made repeatedly within a short period—disregarding principles of legal clarity and certainty, and instrumentalizing child protection for political purposes—they not only conflict with international obligations under the UN CRC, but also undermine both the moral and legal standards of child protection itself.

In a future constitutional reform, children’s rights should be reframed in a child-centered, rights-based and holistic approach. This would mean explicitly guaranteeing the best interests of the child, the right to be heard, and strong protections against all forms of harm. The regulation should align closely with the UN CRC’s whole child approach and avoid embedding narrow ideological definitions of family or identity, focusing instead on the well-being, dignity, and development of every child.

Suggested citation: Agnes Lux and Judit Zeller, (Un)constitutional Child Protection? The Protection of Children in Light of Hungarian Constitutional Provisions, Int’l J. Const. L. Blog, Jul. 23, 2026, at: http://www.iconnectblog.com/unconstitutional-child-protection-the-protection-of-children-in-light-of-hungarian-constitutional-provisions/

^[1] László, Sólyom: Hierarchy of norms in the constitution (’Normahierarchia az alkotmányban’). Közjogi Szemle 2014/1. 1.

^[2] Gábor Attila, Tóth: Beyond the text – Thesis about the Hungarian constitution. (’Túl a szövegen – Értekezés a magyar alkotmányról’). Osiris, 2009.

^[3] Decision of the Constitutional Court No. 23/1990. (X. 31.), Decision No. 30/1992. (V. 26.), Decision No. 48/1998. (XI. 3.), Decision No. 4/1993. (II. 2.).

^[4] The UN CRC Committee’s General Comment No. 5 (2003) on the general measures of implementation of the Convention on the Rights of the Child, para. 12; and No. 12 (2009) on the right of the child to be heard, para. 2. and the UN CRC Committee’s General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1).

^[5] Tobin, John: The UN Convention on the Rights of the Child: A Commentary, OUP, 2019.

^[6] Council of Europe, Parliamentary Assembly, Committee on Social Affairs, Health and Sustainable Development, Explanatory memorandum by Rapporteur Mr Preda, Report Doc. 13787 (6 May 2015) (“Explanatory Memorandum by Rapporteur Mr Preda”), para. 13.

^[7] Venice Commission (2014), para 139.

The post (Un)constitutional Child Protection? The Protection of Children in Light of Hungarian Constitutional Provisions appeared first on www.iconnectblog.com.

OFAC leverages the asymmetrical opportunities provided by “dollar hegemony“, coercing firms by threatening to cut them off from US dollar clearing and correspondent banking, as well potentially imposing considerable financial (or even criminal) liability. Since their 1990s proliferation, US secondary sanctions have been subject to legal objections by various states and publicists of international law. The EU, and several non-European states, among which China is one of the most recent, have also created blocking regimes to prohibit compliance with sanctions they designate as unlawful.

China’s Ministry of Foreign Affairs and other government bodies are among those most frequently challenging the legality of US secondary sanctions, as well as alleged US over-use and misuse of unilateral sanctions in general. Beijing stridently opposes US practices of weaponizing economic relations, considering these as paradigmatic of illegitimate forms of coercion and “interference”. Increasingly, China has sought to portray itself as a leader in promoting alternative norms of economic relations that rely on multilateral institutions, consensus, and jurisdictional restraint. However, as this blog post will go on to argue, countervailing trends in Beijing’s economic statecraft complicate this narrative. Developing initiatives to better regulate economic coercion would require more procedurally and normatively clear governance of China’s own coercive practices and capabilities, and perhaps the utilization of new forums for multilateral norm-setting.

A Beijing consensus against coercion?

China’s “anti-coercion” agenda was recently reiterated and brought closer to being articulated as a practical action plan during its rotating presidency of the UN Security Council in May 2026. In connection with Beijing’s still vaguely defined Global Governance Initiative (GGI), first announced last year, Foreign Minister Wang Yi used the May 26 high-level meeting and the May 28 Group of Friends of Global Governance meeting to present China’s case for reforming global governance. This nine-direction reform framework covered areas including development, peace and security, AI, cyberspace, outer space, finance, and “civilizational dialogue”. One recurring theme, however, was opposition to economic coercion. This appeared most directly in the proposal to reinforce the Security Council’s competence by opposing unilateral sanctions (left vague, but implicitly encompassing any economic restriction against a state or its nationals without UN authorization). Beijing thus continues to echo the capacious language of the 1970 United Nations Friendly Relations Declaration. Wang also included unilateral sanctions under a broader umbrella of economic “unilateralism” including Global North protectionism, technological export controls, decoupling, and supply-chain disruptions. These criticisms express sentiments that are widely shared across the Global South.

Beijing has advanced its critique of unilateral sanctions in various other forums, notably in the UN Human Rights Council. Here it has consistently backed resolutions denouncing the negative impacts of unilateral coercive measures on the enjoyment of human rights. It has also been a strong supporter of extending the mandate of the Special Rapporteur on this subject, who has directly criticized sanctions imposed against China by the US and EU. Similarly, the September 2025 Joint Statement on sanctions which China coordinated with 27 other General Assembly members underscored the issue’s ongoing centrality to Beijing’s global governance agenda. This is, moreover, a long term concern for China. A detail that is often forgotten in the West: China was itself the first major post-WWII target of comprehensive sanctions by the US.

There may, however, be reasons to doubt China’s capacity to shape norms significantly restricting the scope of economic coercion. In brief, Beijing faces major coordination problems, not only with others wary of the growing use of economic pressure by powerful states, but also internally with respect to coordinating various diverging state interests. Chinese security interests in relation to territorial claims over Taiwan, for example, have so far been one of the most frequent grounds for Beijing’s own growing unilateral sanctions use. State-owned firms now also have vast commercial holdings worldwide, leading to a situation in which Beijing’s geopolitical and economic stakes in third states can lead to escalating, converging patterns of tit-for-tat coercion with great power rivals.

Beijing has in recent years also shown an increasingly strong inclination to adopt its own unilateral sanctions and other restrictions with a wide range of justifications. Rather misleadingly, in the recent legislation that for the first time provided China’s unilateral sanctions practices with explicit statutory authority, these measures are described exclusively as “counter-sanctions” (反制). This is despite the fact that these are not exclusively applied as countermeasures against previous sanctions by other states, but also in response to other claimed offenses such as actions in contravention of Chinese security interests vis-à-vis Taiwan, or cooperation with US regional security initiatives.

Converging rivals

This dualism in Beijing’s approach exposes a profound structural contradiction that undermines its aspiration to anchor a new, non-coercive global governance architecture. While China’s diplomatic rhetoric champions a strict, UN-centered multilateralism that explicitly condemns any economic restrictions bypassing Security Council mandates, its increasing domestic legislative pivot toward extraterritorial “counter-sanctions” mirrors in key respects the unilateralism it criticizes. By expanding the triggers for its economic restrictions to encompass vague threats to “national security” or even mere compliance behavior by firms caught between duelling jurisdictions, Beijing risks entrenching a system where economic might dictates legal legitimacy. Consequently, third-party states, particularly within the Global South, may increasingly view China not as an alternative to the weaponization of economic relations, but rather as a competing practitioner of it.

In this, China is following a general pattern of convergence. Notably, the EU’s Anti-Coercion Instrument (“trade bazooka”) was framed in large part with China in mind as an actor that might need to be deterred. Yet the ACI has itself been subject to concerns about potential overreach. As Miles Jackson and Federica Paddeu have argued, for example, the ACI establishes a framework in which states not directly affected by coercion can be compelled to take collective countermeasures potentially violating treaty-based or customary commitments, but without a clear legal rationale for doing so.

The major power convergence on unilateralism is also underscored by the way that jurisdictions with longstanding reservations over secondary sanctions, notably the EU and several G7 states, now appear to be partially adopting the US pattern of using them. The EU, to be sure, continues to proclaim its ability to reject specified foreign secondary sanctions and prohibit compliance with them via its Blocking Statute. Yet that has not prevented the EU from creating its own sanctions against third state actors—in China, among other jurisdictions—accused of supplying Russia with, for example, dual-use goods. As for China, while it has not yet engaged in clear use of secondary sanctions, its own EU-inspired blocking regime similarly relies on administrative discretion.

Indeed, in the recent PRC Regulations on Countering Improper Extraterritorial Jurisdiction by Foreign States, it is clarified that China may assert its own extraterritorial jurisdiction over relevant conduct when there is an “appropriate connection” to China. China’s anti-sanctions legislation has also created broadly-defined rights of private litigation against foreign firms complying with foreign sanctions. Despite their sometimes overlapping criticisms of US unilateralism, both EU and Chinese economic statecraft are thus generating their own parallel concerns over potential extraterritorial overreach and the creation of profound compliance dilemmas for third state public and private actors.

This risk of overreach is also underscored by China’s muscular regulatory actions amidst geopolitical wrangling over chokepoints such as the Panama Canal. In February, mounting US pressure allegedly prompted the exclusion of Hong Kong telecommunications operator Hutchison from a long-term terminal management arrangement. Beijing’s response has been in part to step up apparent reprisals involving lengthy and expensive delays of Panama-flagged vessels in PRC ports. These “unofficial sanctions” would be in keeping with a pattern of undeclared sanctioning behavior that China has increasingly demonstrated in recent years, with targets including South Korea, Australia, and (currently) Japan.

Direct state interference has largely remained behind the scenes, with more open contestation occurring among major “national champion” firms. These include China’s state-owned shipping giant COSCO, the dominant European firms Maersk and MSC, and the US investment giant BlackRock, the world’s largest asset manager, which has pursued a now-stalled sale of Hutchison’s massive global ports portfolio. Allegations of anti-competitive practices have been levelled on multiple sides, with market regulators involved in several jurisdictions. Innovatively, official sources in the US, China, and in Panama itself have also linked commercial monopolies in shipping and port operation with violations of the Canal’s treaty-based “neutral” status. Meanwhile, underscoring how dominance by individual firms and state economic coercion against weaker parties can go hand in hand, it is worth noting that COSCO, Maersk, and MSC together comprise nearly half of the global shipping industry. Arguably, this radical concentration of market power itself facilitates winner-takes-all dynamics like those now on display in the Canal.

Current great power economic frictions appear monopolistic at the interstate level as well as at the firm level. Even initiatives for détente, such as ongoing US-China negotiations over the nascent “Board of Trade”, take shape largely as ad hoc administrative arrangements (“deals”), rather than processes of transparent or participatory norm-legislation.

Geoeconomic cold war, or geoeconomic non-alignment?

Physical chokepoints such as the Panama Canal or the Strait of Hormuz make the dynamics of asymmetrical domination (and thus opportunities for coercion) especially clear. Yet systemic and infrastructural chokepoints, such as US-dollar-based correspondent accounts or pervasive export restrictions on physical and even digital technology (such the “deemed exports” of Anthropic’s Fable 5 and Mythos 5 AI models), generate similar exceptional asymmetric capabilities to exert control over other states. China’s rising leveraging of rare earths supply chains may point in the same direction.

The challenge of creating a persuasive agenda for regulating economic coercion on a multilateral and global basis consists, in part, in the way that it often functions via just such asymmetries. While imposing economic restrictions per se traditionally lies within the domaine réservé of each state, the exploitation of asymmetrical capabilities and vulnerabilities can be sufficiently disruptive so as to jeopardize other states’ ability to use that very competence. In envisioning a more precise definition of unlawful economic coercion, it may be helpful to consider asymmetrical dependencies through the lens of Marko Milanovic’s typology of coercion as either “extortion” or “control”. Usurping domaine réservé functions of another state, for example by paralyzing its financial system, major industries, or social and political stability through selective denial of access to a critical chokepoint, could be seen as paradigmatic of the latter variety of coercion.

For states caught in between, from Panama to the Netherlands to the Solomon Islands among others, the ongoing contestation over what constitutes “legitimate” pressure in trade relations threatens to dissolve the very concept of a rules-based order, and to impede economic sovereignty. An alternative approach by Beijing might draw upon historical precedents to formulate what might be called a doctrine of “geoeconomic non-alignment”; i.e. promoting legal regimes for neutralized commercial institutions and infrastructure that are insulated from domination from any particular great power. In many cases, institutions are already in place to promote “non-aligned” and less weaponized economic relations. Joining the Panama Canal Treaties, for example, (as Panama has requested of Beijing for years) would be one way to indicate a willingness to depart from the patterns of unilateralism. Another approach would be to deepen cooperation within BRICS regarding de-dollarization initiatives for the global financial system, which will be more persuasive as an alternative to dollar hegemony if pursued on a multilateral basis, rather than one primarily envisioned as a process of “yuanization“.

As regards establishing rules for economic coercion per se, a better approach would be seeking to draft specific rules on the subject, for example by backing a UNGA-initiated study through the International Law Commission. Beijing’s own domestic regulatory regime could also serve as a model by embracing a higher degree of procedural clarity and/or due process rights for affected actors (contributing to “throughput legitimacy” of the sort that, despite its flaws, the EU’s ACI better reflects). Finally, Beijing could more clearly tether its economic statecraft to international legal frameworks, including by better defining a limited (even if robust) definition of economic security—rather than one open to discretionary redefinition and law-displacing, “jurispathic” unilateral administrative expansion. Beijing’s own state organs and policy experts, too, have increasingly sounded the alarm about patterns of “pan-securitization” (泛安全化) of trade. Yet its ambition to lead a global coalition against economic coercion will face major obstacles unless it clearly proposes an alternative normative vision and displays consistent state practice in support of that vision. That would generate a more promising agenda for developing states and the global community, as opposed to reiterating boilerplate condemnations while nonetheless engaging in tit-for-tat economic pressure contests, periodically interspersed with opaque, backdoor deals among great powers.

Picture: dsassa, CC BY-SA 2.0

As of today, it is unclear whether anything which resembles this idea of a free economic zone will be part of an eventual peace arrangement. Accordingly, it can appear to be premature to give too much thought to this suggestion. At the same time, there are some elements associated with the idea of the creation of a “free economic zone” which make it worthwhile to reflect on some of the background conditions for a realisation of such a proposal, but also – and perhaps more important – the implications of such an approach in the light of the current trajectory of US-led peacemaking efforts. 

In this post, I develop two critical arguments with regard to such a proposal: First, historical analogies call for some caution. With its supposedly “free” character, the proposed special economic zone invites reminiscences of past attempts to internationalise territory. There is a rich panoply of different attempts at various points in history (Port of Shanghai, Tangiers, Memel Territory, Free City of Danzig, Trieste, Jerusalem, to name just a few). This set of historical practices does not lend itself to a coherent doctrinal reconstruction of a concept of internationalisation which could provide us with a blueprint for a “free economic zone” in the Donbas. Nonetheless, from these mostly failed experiments with internationalising territory as part of transitional peace processes, some implications can be drawn which will hopefully at least contribute to avoid repeating past mistakes. 

Second, current trajectories of US peacemaking are characterised by a deeply transactional mindset and include proposals for the creation of special economic zones not just in the case of Ukraine. For this mindset we already see concrete emanations with respect to Ukraine in the form of the US-Ukraine Strategic Minerals Partnership, which already exists as a legally binding arrangement between the United States and Ukraine, and which looms large over a potential future “free economic zone”. 

“Free Economic Zone” components in peace plans and related documents

The idea of a “free economic zone” emerged in discussions in November/December 2025. President Zelensky is credited with having given the idea of a free economic zone some cautious support. After the US presented its very Russia-friendly 28-point plan in November 2025, he is quoted as having said that Ukraine would “consider a free economic zone a potential option for a sovereign state to choose such a path”. These comments were made in the context of the presentation of the 20-point plan that Ukraine drafted in response to the previous US suggestions. In point 14 A of the Ukrainian plan, the idea of a free economic zone is mentioned. The idea was then apparently further discussed in talks in Geneva in February 2026 but at that time met with limited support by both Ukraine and Russia. As far as is known from publicly available sources, the core idea behind the proposal was to create this zone “in the Ukrainian-held portion of the Donbas, eastern Ukraine, in which neither troops from Ukraine nor troops from Russia would be present.”  It would serve as “a kind of buffer zone between Ukrainian territory and the area of Ukraine controlled by Russia”. As The New York Times reported in mid-December 2025, President Zelensky then “expressed some skepticism about the idea, because it would not require Russian troops to withdraw from the entire Donbas.” In late April 2026, further news coverage emerged according to which Ukrainian negotiators proposed naming the prospective zone “Donnyland”; the idea to involve the “Board of Peace” in its management was also floated according to the same article.

The “Free Economic Zone” as just another SEZ?

As with many aspects of current US diplomacy, the “free economic zone” is a concept which is not firmly established in the language and practice of international law. The name evokes certain connotations, mostly with special economic zones (SEZs), but due to the addition of “free” also with experiments of the internationalisation of territory in the League of Nations era (like the Free City of Danzig). In international economic law, SEZs are commonly defined as “geographically delimited areas administered by a single body, offering certain incentives (generally duty-free importing and streamlined customs procedures, for instance) to businesses which physically locate within the zone.” SEZs are typically areas which are spatially distinguished from the rest of the given state’s territory. They involve a significant amount of de-regulation, i.e. a special legal framework is created for them.

Under normal circumstances, SEZs are creatures of domestic law (and indeed, Ukrainian domestic law includes a statutory framework on the creation of SEZs from 1992 and has put SEZs into practice before, to mixed results). But as part of a peace settlement, the free economic zone would probably need to be anchored in some kind of overarching document and not just be rooted in Ukrainian law. As discussed in other contributions to this symposium, a peace agreement between Ukraine and Russia would not necessarily need to be legally binding – but in light of the probable aims of a SEZ it appears to be difficult to bring about a “free economic zone” entirely without legally binding grounding. Accordingly, the “free economic zone” would in all likelihood not be an SEZ like any other. As part of a peace agreement between Ukraine and Russia, its creation would invite the same range of questions which are triggered by other proposals for territorial reconfigurations. Would, for instance, Russia gain economic benefits from the creation of the “free economic zone”, it would harvest fruits of its unlawful war of aggression with all the implications that this would have in the light of the peremptory nature of the prohibition of the use of force. In addition, the question of whether an agreement providing for the creation of a “free economic zone” might have been procured by force in contravention of Article 52 of the Vienna Convention on the Law of Treaties would also impose itself.

In any case, the “free economic zone” would be unusual as an SEZ insofar as it would owe its creation not just to a motive of economic development but would inevitably be bound up in the broader and geopolitically highly charged resolution of Russia’s war of aggression against Ukraine. As Douglas Zeng has put it: “SEZs are supposed to complement market forces by helping overcome market failures” (at 260). Establishing peace in and for Ukraine is not something which can be characterised as a mere “market failure”. This adds a number of complications, some of them on a factual level, some legal in nature. 

Factually, the question can be asked whether an SEZ between Ukraine and Russia will offer investors the kind of stability they typically seek when considering to operate in an SEZ. One should also take into account that any positive effects of SEZs typically take time to materialise, according to studies at least 10 years. In this sense, the question of whether it makes sense to set up such a zone is invariably caught up with all the other controversial and uncertain questions revolving around a peace arrangement. This uncertainty is exacerbated by the whole panoply of potential legal challenges to a peace agreement.  

Reasons for Scepticism: Lessons from History in the Light of Current Developments 

The “free economic zone” proposal resonates with certain ideas of the internationalisation of territory. International law has no fixed concept of internationalisation. Rather, there is a hotchpotch of different examples dating back to different eras of international law. These examples are all highly contingent on the political context in which they were conceived. 

Theoretically, the “free economic zone” could be endorsed in one way or another by the UN Security Council. Depending on the institutional framework in which it would then unfold, this internationalisation could compare with international territorial administrations  in Kosovo or East Timor. However, a UN Security Council backed form of internationalisation seems unlikely, even though the example of Resolution 2803 on Gaza demonstrates that even highly unlikely authorisations materialise these days. 

In the absence of UN-authorised international territorial administration, there could be other forms of internationalisation of territory. As already mentioned, there is a wide range of different examples of the internationalisation of territories. While the Free City of Cracow and the Free Zone of Upper Savoy date back to the arrangements made at the Congress of Vienna, the special status of the port of Shanghai was created by one of the infamous unequal treaties that was concluded with China and the International Zone of Tangier was the result of a bilateral treaty between France and Spain creating a protectorate over the area. The Memel Territory and the Free City of Danzig, finally, were created as part of post-World War I peace agreements.

After the end of the Second World War, further attempts in this direction included Trieste and Jerusalem, for which a separate status was considered. The 20th century examples are interesting because of their function in a broader puzzle of territorial and indeed world ordering after the end of two World Wars. Yet, this historic comparison mandates caution in revisiting the internationalisation of territory: they conjure images of great powers dividing up the spoils – or at least a bigger systemic change in the international order – a scenario one might not wish a peace settlement for Ukraine to embody, particularly in the current geopolitical situation. 

Other attempts at internationalisation which did not go hand in hand with such forms of reordering seem to be out of touch with key examples of today’s international legal order. The Free Zone of Tangier and the International Settlement of Shanghai, for instance, were characterised later as “…an extension and institutionalization of the system of capitulations”. As such, James Crawford argued, they would have “no latter-day analogy” (at 234).

The disconcerting aspects of the proposals for a “free economic zone” revisiting earlier practices now stems precisely from the fact that we can no longer be as certain as James Crawford was in his 2006 monograph that there can be no such analogies today. Rather, it seems as if current forms of US peacemaking practice may present themselves as some kind of a combination of well-worn past practices with new potentially disruptive aspects, and are therefore in fact continuations of past exploitative patterns, but offered in new disguise. At the same time, we cannot anticipate whether they would be just that – or whether they could even be signposts of a bigger systemic change of the international order. 

Current Features of US Peacemaking Efforts 

Two examples of current US peacemaking efforts offer further points for reflection in this regard: the US-Ukraine Strategic Minerals Partnership and the various plans for the reconstruction of Gaza. While the former is directly connected to any future peace agreement relating to Ukraine as such, the latter is relevant here as it offers a snapshot into current broader trends of peacemaking. 

The US-Ukraine Strategic Minerals Partnership concerns the exploration, extraction and exploitation of minerals and related infrastructure. It is based on the Agreement on the United States-Ukraine Reconstruction and Investment Fund (UURIF) as well on a publicly not available Limited Partnership Agreement under Delaware Law (LPA, an early draft was leaked at some point). Many of the minerals covered by the UURIF are situated in territory which is currently controlled by Russia – and hence presumably in the area which would be covered by the “free economic zone”. With the various advantages with respect to the exploitation of minerals in Ukraine and its non-inclusion of security guarantees beyond the mere hope that any form of US economic interest will be to the advantage of Ukraine, the Minerals Partnership is an example of the transactional turn in peace diplomacy that the current US administration has taken. It stands in marked contrast to the 2024 bilateral security agreement concluded with the Biden administration. As it has been analysed by Greg Schaffer and Sergio Puig, the “minerals deal” is characterised by a “combination of cajoling and concession extraction” and could be described as driven by an “imperial logic” (at 710). Others have been similarly critical, characterising the arrangement as “a preemptive carve-up”, with all the trappings of an “unequal treaty”. 

What is more, neither the suggestion for a “free economic zone” nor the “minerals deal” are isolated developments, as can be seen in the light of approaches of US peacemaking ranging from Gaza over Ukraine to the Great Lakes Region. In different forms, these proposals target critical resources and contain plans for SEZs – and it is increasingly difficult to identify whether the governance of these zones is supposed to take place in the public or in the private interest. A most conspicuous example in this regard is the inclusion of the suggestion to create a special economic zone in the redevelopment plans for Gaza, with a view to seek inspiration from “thriving modern miracle cities in the Middle East” (paras. 10 and 11 of Security Council Resolution 2803; for further analysis of this plan see here).

Together with the authorisation of the Board of Peace in Resolution 2803, these passages represent the high-water mark of a transactional development and reconstruction mindset. Despite the uncertainties about its enforcement, these ideas and approaches have now entered the repertoire of the UN Security Council in a binding resolution, even though it is unclear whether Resolution 2803 was adopted under Chapter VII. The troubling implications of the Trump Peace Plan for Gaza as endorsed by Security Council Res 2803 for Ukraine is the question of self-determination: While it is obvious that the Trump Administration does not hold this principle in high-esteem, it is highly troubling that other members of the UN Security Council, including the other permanent members, also seem ready to sacrifice self-determination in the purported interest of “peace” – although this “peace” presents itself through a highly distorted and transactional, business-driven logic. The open question is whether a “free economic zone” could be endorsed by the UN Security Council in a way similar to Resolution 2803. 

Conclusion and Outlook 

From the perspective of international law, such an approach is to be avoided, as it would mean at the very least the creation of a spatial regime of dubious legality. Beyond that, it could mark a signpost of a broader process of international reordering. The creation of a “free economic zone” appears to be a mirage. It is difficult to imagine that such an institutional development will be able to deliver on its promises. What is more, both the current trajectories of US peacemaking but also historical lessons invite caution. The classical monograph on the topic of the internationalisation of territories by Méir Ydit from 1961 came to a quite sobering conclusion with respect to the promise that such models hold: “Internationalisation was applied to solve certain odd political controversies concerning important territories (…). It is an ‘open secret’ (…) that all these practical experiments of internationalisation ended in complete failure. Either they were abolished or not implemented at all. But, in spite of this unfavourable historical balance-sheet, its application is always proposed anew as a means of tackling a particular situation from a dispute over a certain territory.” (at 11). For Ukraine, it should be hoped that such mistakes will not be repeated yet again. 

This blogpost forms part of the Mini-symposium on international legal issues concerning a peace treaty for Ukraine. The introduction to the symposium by Anne Peters, Gregory Fox, and Florian Kriener can be found here. The symposium builds on presentations and discussions during the Conference on International Law and Peace in Ukraine organized at the Max Planck Institute for Comparative Public Law and International from April 17-18, 2026 and supported by the German Foreign Office.

Contemporary democracies have increasingly restricted or debated the restriction of false or misleading claims, particularly in the context of online speech during election periods. In Europe, Germany’s Network Enforcement Law (NetzDG) and the European Union’s Digital Service Act (DSA) are among the most prominent recent examples. Similar regulatory approaches have been proposed, adopted or discussed across the world. In South America, Brazil’s regulation of electoral disinformation has likewise emerged as a prominent and contested regulatory model. Brazil’s recent experience illustrates the importance of carefully distinguishing between different forms of falsity in political speech. Failure to do so risks not only undermining electoral integrity, but overregulating political expression through excessively elitist or technocratic conceptions of truth.  

In recent years, Brazilian electoral legislation and case law have increasingly imposed new restrictions on both the form and content of political expression. Article 323 of the Brazilian Electoral Code, for example, makes it a criminal offense to disseminate ‘knowingly false facts’ in campaign advertising or during an electoral campaign.

Similarly, Resolution nº 23,732/2024, issued by the Superior Electoral Court (TSE), (i) prohibits ‘the use, in electoral advertising, regardless of its form or modality, of fabricated or manipulated content to disseminate notoriously false or decontextualized facts’; (ii) establishes that internet application providers have a ‘duty to adopt and publicize measures to prevent or reduce the circulation of notoriously false or seriously decontextualized facts capable of affecting the integrity of the electoral process’; and (iii) provides for the liability of application providers that fail to immediately remove content and accounts during the electoral period in cases involving risks such as the dissemination of anti-democratic information or the sharing of ‘notoriously false or seriously decontextualized facts’.

Such rules raise serious constitutional concerns, both in their design and in their application. Traditionally, restrictions on suffrage and freedom of expression have been regarded as particularly serious interferences with the exercise of political rights. The right to vote and to stand for office, as well as the freedom to express one’s views on political matters, uniquely ensure that electoral competition remains open to new actors and ideas. For this reason, the state bears a strong burden of justification when it infringes on these constitutional rights. In practice, this means that the state must demonstrate not only that the restrictive measures pursue a legitimate and sufficiently important interest, but also that the means employed are proportionate and appropriately tailored to the objective pursued.

In Brazil, restrictions on false electoral speech are generally justified with reference to the protection of democracy and the integrity of the electoral process. Although these objectives certainly constitute legitimate and weighty interest, both the legislation itself and its judicial application have not always ensured the proportionality of the means employed. More specifically, Brazilian electoral law has often failed to distinguish between two fundamentally different forms of falsity in political speech and, consequently, between two distinct forms of speech regulation: (i) restrictions targeting the viewpoint expressed by the speaker, and (ii) restrictions directed at the mode, manner or mechanisms through which political messages are communicated. This distinction is crucial, however, because each category raises different constitutional concerns and, therefore, imposes on the state a different burden of justification for the infringement of the right.

Consider, first, a statement whose alleged falsity derives from the evaluative judgment expressed by the speaker. In this case, the claim is said to be false not because the underlying facts are fraudulent or clearly incorrect, but because the speaker’s understanding of those facts is regarded as erroneous. This is the type of falsity commonly attributed to statements through which individuals express their understanding and evaluation of political reality. In electoral contexts, such statements usually reflect different personal views of the technical competence, moral character, or political intentions of candidates, political parties, or government programs.

Common examples include statements such as: ‘Candidate A is corrupt!’, ‘Candidate B is a coward!’, or ‘Candidate C wants to abolish workers’ rights!’. Speech of this nature is inherently subject to deep, often irreconcilable disagreement among voters. In pluralist democracies, a significant portion of the electorate may regard Candidate A as an honest person or may not perceive Candidate C’s proposals as posing any genuine threat to workers’ rights. For this reason, content-based restrictions of political speech are generally considered constitutionally suspect and are typically permissible only in truly exceptional circumstances, if at all.

Brazilian electoral legislation, however, does not clearly recognize this category of speech as deserving heightened legal protection. Yet such recognition should be explicit, because a large portion of the most significant controversies involving ‘notoriously false’ or ‘seriously decontextualized’ facts in electoral advertisings or campaigns are, in reality, disputes over competing interpretations of political reality, rather than disputes over objectively fabricated facts.

A well-known decision concerning the 2022 Brazilian presidential election illustrates this problem. In that case, the TSE ordered the removal of a YouTube video entitled ‘Remember the Scandals of Candidate Y’s Government’. The decision became notable for its reliance on the concept of ‘informational disorder’ and for its criticism of the ‘syllogism’ employed by the video’s authors. According to the majority, the video engaged in ‘the manipulation of certain true premises’, whereby ‘several true pieces of information are put together, and a false conclusion is drawn’.

The purpose here is not to revisit all the details of the case. Rather, the point is that, with respect to the syllogism argument, what the TSE ultimately disputed was not the occurrence of the underlying events, but the interpretive conclusion that could legitimately be drawn from them. The Court did not dispute that certain corruption scandals occurred during Candidate Y’s period in office. The disagreement concerned  whether those scandals could properly be characterized as scandals of Candidate Y’s government. The facts themselves were not denied (‘true premises’); what was contested was the appropriate interpretation of those facts (‘false conclusions’).

This differs significantly from statements whose alleged falsity stems not from a disputed interpretation of reality but from the use of mechanisms that distort or compromise their authenticity or reliability. Here, regulation does not seek to suppress a particular viewpoint. Rather, it seeks to govern the manner in which information is communicated.

One example is TSE’s regulation of AI in electoral campaigns. Resolution 23,732/2024 requires electoral advertisements to ‘disclose, in an explicit, prominent, or accessible manner, whether the content has been fabricated or manipulated and which technology was used’. Similarly, one might consider fabricated videos falsely depicting electronic voting machines malfunctioning during elections. Restrictions of this kind remain subject to constitutional requirements of legitimacy and proportionality. Nevertheless, they generally raise less severe concerns related to freedom of expression, because they do not seek to determine which interpretations of reality are permissible. Instead, they seek to preserve the informational conditions necessary for democratic deliberation during election periods.

The foregoing examples illustrate the difficulty of regulating freedom of expression in electoral contexts. Although they are insufficient to provide a comprehensive framework for addressing the problem, they highlight the need for regulators and courts to develop conceptual tools capable of distinguishing among different forms of falsity and the distinct constitutional concerns associated with each of them. Broad legal categories such as ‘knowingly or notoriously false’ or ‘seriously decontextualized’ are often incapable, on their own, of providing the analytical framework necessary to resolve these issues in a manner consistent with constitutional principles. Questions concerning the speaker’s intent, the extent and probability of the alleged harm, and the relationship between the alleged harm and the viewpoint expressed must all be carefully weighed when regulating political speech.

In her reconstruction of the historical relationship between democracy and truth, Sophia Rosenfeld highlights the dangers associated both with populist revolts against the very idea of truth and truthfulness and with excessively elitist-technocratic approaches to its determination and dissemination. That same paradox is present in current attempts to regulate truth within the Brazilian electoral process. While an excessively permissive regulatory approach may undermine democracy and electoral integrity, an excessively restrictive approach may gradually transform democratic government into a form of electoral ‘pedantocracy’ — a regime in which a bureaucratic elite, supposedly endowed with superior knowledge, acquires excessive authority to determine the acceptable boundaries of public debate during elections. Distinguishing between different forms of falsity and the distinct constitutional concerns they raise is a necessary first step in preventing such a degeneration.

Suggested citation: Pedro Marques Neto, Lest Democracy Degenerate into Pedantocracy? Challenges in Regulating Truth in Electoral Contexts, A View from Brazil, Int’l J. Const. L. Blog, Jul. 21, 2026, at: http://www.iconnectblog.com/lest-democracy-degenerate-into-pedantocracy-challenges-in-regulating-truth-in-electoral-contexts/

The post Lest Democracy Degenerate into Pedantocracy? Challenges in Regulating Truth in Electoral Contexts, A View from Brazil appeared first on www.iconnectblog.com.

The first eighteen months of the second Trump administration have witnessed a sustained assault on scientific infrastructures enabling understanding of anthropogenic climate change. This has taken the form of cuts to national science agencies; freezes and dramatic reductions in grants to universities; and attempts to dismantle observation arrays and crucial monitoring stations. It has also extended to research jointly conducted with partners in other states, who have received questionnaires requiring them to disclose whether their work involves ‘climate’ or ‘environmental justice’. Environmental Protection Agency head Lee Zeldin has described the goal of the administration as ‘driving a dagger straight into the heart of the climate change religion’.

The current government in the United States is not the first to pursue an anti-science agenda: publicly-funded science and the future conduct of scientific research has been under threat by far-right governments in Argentina and Brazil. But measures taken under Trump 2.0 have had an outsize impact because of the current importance of US-funded climate science in the landscape of international cooperation. These measures have extended to blocking government scientists and officials from attending meetings of the Intergovernmental Panel on Climate Change (IPCC), and to the withdrawal from a number of treaties and UN agencies instrumental in science collaboration on climate, as well as health, oceans, water, and biodiversity.

As climate lawyers have noted, the dismantling of science infrastructures is of critical concern, not least because of the centrality of the best available science to current jurisprudence (see, eg, here and here). This has not been overlooked by international courts. Two of the advisory opinions rendered last year (by the International Court of Justice and by the Inter-American Court of Human Rights) set out novel obligations on states to ‘actively pursue’ or to ‘encourage’ the production of climate science. These have gone largely unexplored in the anglophone commentary (though are noted here and here).

In this short post, I suggest that these advisory opinions signal a new sensitivity of international courts toward the material conditions for climate science in the context of far-right anti-science politics. In what follows, I focus mainly on the ICJ’s Advisory Opinion on the Obligations of States in respect of Climate Change. I outline the obligation set out by the Court and consider some of its implications, as well as the limitations that may hinder it in responding effectively to the contemporary moment.

Obligations to ‘actively pursue’ science as a corollary of prevention

As is well known, the Court’s opinion restated the existence of a customary duty on states to prevent significant harm to the environment. It also affirmed that this duty applies to harms to the climate system which are cumulative and atmospheric rather than cross-border in nature (at [134]). This ‘requires states to take, to the best of their ability, appropriate and, if necessary, precautionary measures, which take account of scientific and technological information’ (at [136]).

Best available science informs the conduct to be undertaken in performance of the obligation of prevention, which ‘may … become more demanding in the light of new scientific and technological knowledge’ (at [284]). As Katalin Sulyok has observed, scientific knowledge, and the work of the IPCC, also played a ‘central role … in how the Court made legal sense of the climate crisis’, and in the newly reiterated legal significance of the 1.5C temperature goal. Given this centrality, it is in retrospect not entirely surprising that the Court would pronounce on obligations on states to produce climate science, as well as to attend to its consequences.

The Court did so through stating that the obligation of prevention encompasses a requirement on states to ‘actively pursue the scientific information necessary for them to assess the probability and seriousness of harm’ (at [283]). Although this obligation was not the subject of significant argument before the Court, it can be understood as arising from the foundational—and widely accepted—role of science in informing the standard of due diligence to be observed. Accordingly, the standard of the requirement to actively pursue scientific information would be one in which a state is required to use ‘all the means at its disposal’ in the performance of that obligation (at [132]).

In the same way as other obligations relating to the prevention of climate harms, it seems safe to assume that the stringency of this obligation is heightened because of the already-existing science regarding the climate emergency (see at [138], and citations there to the ITLOS Advisory Opinion on Climate Change). The Court also emphasised that this requirement is subject to the principle of common but differentiated responsibilities, such that lack of capacity or resources to fulfil the obligation may not result in unlawfulness.

Perhaps understandably given the vast range of scientific work relevant to facets of the climate crisis, the sorts of activities that are mandated by this obligation are not further spelt out. It seems probable, however, that it encompasses a wide variety of conduct, including but not limited to the direct funding of science through university grants or government agencies. This includes climate science relevant to mitigation although, as Vanuatu’s submissions emphasised, the nature and extent of existing anthropogenic climate change is ‘settled science’ (at [3]; and see the Opinion at [284]). The obligation may be of greater relevance for the broad range of scientific and technical information relevant to climate adaptation. Here it is notable that the Court emphasised ‘options … effective in reducing climate risks in certain contexts, such as restoration of ecosystems, the creation of early warning systems, and resilience-enhancing infrastructure’ (at [258]), as well as the relevance of adaptation for the fulfilment of customary obligations (at [282]).

One question is whether the primary focus of due diligence on state processes of assessment envisages a primarily national, rather than international, pursuit of science. In other words, the Court did not clarify whether the obligation as currently framed extends to participation by government officials or scientists in international activities, or to engaging in forms of scientific collaboration. This is in contrast to recognition in other settings of the inherently international nature of much scientific research (see, eg, Whaling in the Antarctic at [213] ff). Other aspects of the Opinion, however, indicate that decision-makers should be mindful of the nexus with the duty to cooperate which, as the Court stated, requires states to ‘continuously develop, maintain and implement a collective climate policy that is based on an equitable distribution of burdens’ (at [306]).

In the same way as other aspects of the obligation of prevention, it also now seems clear that breach of this standard of conduct will give rise to state responsibility (at [409]), and that these breaches are of an erga omnes character (at [440]). This means that the ordinary suite of legal consequences is relevant, including declarations, cessation (which may include requirements to take all means at the state’s disposal to ensure compliance: Rainbow Warrior at [113]) and in appropriate cases, assurances and guarantees of non-repetition. Any contentious case would necessarily involve fact-intensive questions about financial commitments, as well as about capacity. In more extreme cases, actions and rhetoric of the type mentioned at the beginning of the post would be powerful indicia that a state is not ‘actively pursu[ing]’ the sorts of scientific information that must, by law, inform its conduct.

The pursuit of what science? Pluralism and hegemony in climate science

While the Court’s engagement with science production is a welcome intervention in the contemporary landscape, it must be judged by what it omits, as much as by what it envisages. In particular, the question of Indigenous science and kastom knowledge in the Court’s reasons is notable by its absence. This is especially so given its prominence in materials submitted to the Court, including the Expert Report of Anna Naupa and Chris Ballard on Climate Change and Cultural Loss in Vanuatu, as well as in recently concluded treaties and human rights jurisprudence. Scientists themselves have critiqued an exclusion and marginalisation of Indigenous peoples within diplomatic settings that ‘risks reproducing the same perversities of the conventional energy system’ in the climate transition.

Here, the Opinion of the Inter-American Court on Climate Emergency and Human Rights offers a significant contrast. Like the ICJ, the Inter-American Court extended existing obligations in respect of science to the climate situation, stating that states must ‘encourage the development of science in relation to key aspects of the climate emergency’ (at [474]). In doing so, the Inter-American Court recognised the specifically plural nature of this obligation, since ‘scientific knowledge coexists with other forms of knowledge, such as local, traditional and indigenous knowledge’ (at [476]). The Inter-American Court also recognised the particular role of Indigenous women in ‘preserving and transmitting’ these forms of knowledge (at [482]). Significantly for the interpretation of the obligation of prevention, it found that the procedural dimension of the right requires ‘integration of the best available science with local, traditional and indigenous knowledge, and … the joint production of climate knowledge between scientists and the custodians of such knowledge’ (emphasis added, at [480]).

Although the ICJ noted that its discussion of the relevance of human rights law to the obligations of states in respect of climate change was non-exhaustive (at [376]), it did not directly address the right to science, or what pluralism it requires. The lack of intercitation on this aspect is a contrast to what Jacqueline Peel has termed the remarkable ‘connectivity’ of many other aspects of the ICJ’s Opinion. This lack of intercitation is also true of the Separate Opinion of Judge Charlesworth, which noted evidence received by the Court on ‘how forced migration caused by climate change has led to the loss of Indigenous knowledge, rituals and customs’ (at [17]) and the relevance of this loss for the ‘potentially discriminatory effects of measures taken to respond to climate change’ (at [29]). However, given that the Court affirmed the direct relevance of the ‘core human rights treaties’, including the ICESCR and the cognate right to science (at [145]), the question of joint production raised by the Inter-American Court remains relevant for future lawmaking and dispute resolution in this area.

Finally, the Court’s emphasis on the obligation to ‘actively pursue’ science as conditioned by the principle of common but differentiated responsibilities raises questions about the hegemonic nature of the science order such an obligation envisages. As Caroline Foster has noted, the Court eschewed firm distinctions between ‘developed’ and ‘developing’ states in favour of a more granular exploration of national circumstances. Yet even this differentiation on more concrete rather than taxonomic grounds ultimately endorses a science order funded and shaped by wealthy states. Special Rapporteur Xanthaki has emphasised that in an unequal research landscape, ‘[s]cientific priorities and modalities tend to be determined by donors and researchers from the global North’. Instead—and as has also been the subject of work by legal scholars and philosophers of science—she found that genuine fulfilment of the right to science requires a ‘wide, inclusive and decolonized understanding’ of that science. Given the recent and dramatic reversals of US funding for scientific infrastructures explored above, there are also real questions as to how robust such an unequal science order will be in the future.

Conclusion

The ICJ’s crafting of the obligation of prevention in a way that attends to the underlying conditions for its fulfilment is a welcome engagement with the stark reality of climate science defunding. As Justina Uriburu has powerfully argued, this engagement will not be made real in isolation: ‘international law, by itself, does not fail or succeed, save or abandon’. Instead, it should be an opening for conversations with governments, science agencies, national academies, university leaders and tertiary sector unions. International lawyers and settler courts must grapple with how these obligations require not merely the pursuit but the co-production of science with First Nations, and how to concretise respect for sovereignty and for the possibility of refusal in that encounter. And in any such endeavour, international lawyers must attend to the plural and contested nature of science, as a discipline already in resistance.

The Chișinău Declaration’s novelty extends beyond these substantive dimensions, though. For the first time, a political declaration expressly addresses domestic courts alongside the ECtHR. This move matters. Domestic courts occupy a central position within the Convention system. Yet they also form part of a broader interpretative environment in which Convention rights are interpreted and applied by judicial and quasi-judicial actors operating within and beyond that system. The Chișinău Declaration therefore raises questions not only about its place within Convention interpretation, but also about its wider effects within a multi-level interpretative architecture extending well beyond Strasbourg.

Political Declarations in Convention Interpretation

Whether, and how, political declarations may influence Convention interpretation depends first on their place within the general framework of treaty interpretation. In line with the Vienna Convention on the Law of Treaties, subsequent agreements and subsequent practice are part of treaty interpretation (Article 31(3) VCLT), both reflecting a common understanding of the parties after the conclusion of a treaty. The work of the International Law Commission confirms that the formal requirements for agreements and practice are comparatively low (Draft Conclusions 4, 5, 6). Political declarations are thus in principle capable of expressing such a common understanding. The decisive question, however, is whether treaty parties can be said to have ‘taken a position regarding the interpretation of the treaty’ (Draft Conclusion 6).

The framing of the Chișinău Declaration casts doubt on such qualification. Its substantive provisions largely summarise the existing legal situation (e.g. para 31), describe current legal and factual challenges from the perspective of treaty parties (e.g. para 20), invite clarification on particular issues (e.g. para 26), and refer open-endedly to boundaries set by the Court’s case law (e.g. para 25). Even where the declaration expresses expectations concerning rights interpretation (e.g. para 33), its wording remains procedural and suggestive. Overall, this may indicate where treaty parties seek greater room for manoeuvre, but it cannot readily be said that they thereby ‘express a legal opinion’ regarding the interpretation of the Convention itself.

In this light, the declaration could most plausibly be understood as a supplementary means of interpretation under Article 32 VCLT. This does not render the declaration irrelevant. Supplementary means may become particularly relevant where the ordinary means of interpretation fail to yield an ‘acceptable meaning’. Yet, like interpretative means more generally, they do not necessarily determine interpretative outcomes. Rather, they function as interpretative considerations capable of ‘inform[ing] and perhaps even “nudg[ing]” the European Court of Human Rights (ECtHR) in a certain direction’.

The ECtHR’s practice thus far broadly supports this understanding. Where the Court has engaged with political declarations, it has generally treated them not as independent sources of interpretation, but as materials supporting, contextualising or reinforcing conclusions reached through other interpretative means. In Burmych and Others v Ukraine, political declarations informed the delineation of responsibilities between the Court and the Committee of Ministers (paras 188–193; 212). Elsewhere, they have supported interpretations reached through ordinary interpretative methods (Yüksel Yalcinkaya v Türkiye, para 417) or reinforced arguments concerning the ‘shared responsibility’ of Convention parties (Grzęda v Poland, para 324). More recently, individual judges have invoked political declarations in separate opinions when debating majority decisions in light of the expressed will of the Convention parties (Verein KlimaSeniorinnen Schweiz and Others v Switzerland; Cannavacciuolo and Others v Italy).

Past practice nevertheless provides only limited guidance as to how the Court may approach the Chișinău Declaration. Earlier declarations emerging from the Interlaken process were predominantly concerned with the institutional functioning of the Convention system and the relationship between Strasbourg and domestic authorities. The Chișinău Declaration is different. It engages much more directly with substantive interpretative outcomes (e.g. paras 25; 33). Existing practice therefore cannot predetermine how the Court will respond when political expectations concern the substance rather than the structure of Convention protection. What it does suggest is that political declarations may influence interpretation without determining it and, in doing so, shape the broader interpretative environment within which rights adjudication takes place (see separate opinions in Grzeda v Poland; Muhammad and Muhammad v Romania).

Domestic Courts Newly Confronting Political Declarations

The Chișinău Declaration addresses not only the ECtHR. For the first time, a political declaration expressly addresses domestic courts in their role as guardians of Convention rights (para 29). As a result, the declaration is unlikely to remain confined to Strasbourg. It may increasingly become part of the repertoire of Convention-based argumentation before domestic courts, invoked by governments and litigants alike. Once litigants begin relying on the declaration as evidence of the expectations of Convention parties, domestic courts will increasingly have to engage not only with the declaration itself, but also with Strasbourg’s treatment of it. This adds a new dimension to the domestic adjudication of Convention rights. Domestic courts must now determine both the place of political declarations within domestic rights adjudication and the consequences of that engagement for domestic rights protection.

The Convention has been received into the domestic legal orders of all Convention parties. Domestic courts therefore encounter Convention rights in a different interpretative setting than the ECtHR. The treatment of political declarations by the ECtHR provides important orientation, but cannot simply be transposed into domestic adjudication. Domestic courts must instead determine how political declarations fit within the interpretative framework through which Convention rights are applied in their own legal order. This is ultimately a question of domestic interpretative methodology. The answer will depend on how Convention rights are received within a particular legal order. In Austria, for example, Convention rights form part of domestic constitutional law, requiring courts to determine how political declarations fit within the framework of constitutional interpretation.

The effects of the declaration on domestic rights protection remain to be seen. One point, however, is already clear: even if future Strasbourg jurisprudence were to rely on the Chișinău Declaration in ways that lower the Convention standard, this need not translate into a corresponding lowering of domestic protection. Domestic courts remain responsible for determining the relevance and transferability of Strasbourg jurisprudence in the disputes before them – a judicial task that has long proved complex and, at times, controversial. Moreover, Convention rights do not necessarily exhaust the domestic framework of rights protection. They often operate alongside other domestic fundamental rights guarantees which, as in Austria, may provide stronger protection than the Convention minimum. To the extent that the declaration influences the interpretation of Convention rights, it may reshape an important benchmark for domestic rights adjudication. Yet domestic courts remain free to maintain higher standards of protection on the basis of those autonomous domestic guarantees (Article 53 ECHR). What they will likely have to do, however, as the declaration increasingly enters the vocabulary of domestic litigation, is justify such decisions more explicitly. The consequences of the Chișinău Declaration at the domestic level are thus unlikely to be uniform.

Beyond the Convention System

The interpretative questions raised by the Chișinău Declaration do not end with Strasbourg and the domestic courts of the Convention parties. The European Union (EU) is not yet party to the ECHR and the Court of Justice of the EU (CJEU) can therefore not readily be understood as one of the domestic courts addressed by the declaration. Nevertheless, given the central role played by EU Member States throughout the Chișinău process, the declaration is likely to be invoked in proceedings at the EU level. Together with the Convention’s continuing role within EU fundamental rights law, both through the EU Charter of Fundamental Rights (CFR) and the general principles of EU law, this suggests that the declaration’s implications extend beyond the Convention system.

The declaration’s potential legal relevance within EU law stems primarily from the Convention’s close relationship with the Charter. Through Article 52(3) CFR, corresponding Charter rights must guarantee at least the level of protection afforded by the Convention as interpreted by the ECtHR. The declaration may affect the Convention benchmark informing Charter rights in two ways. First, through the interpretation of the Convention by the CJEU itself. As the Convention remains an international treaty, the declaration would be treated within the general framework of treaty interpretation, thus as a supplementary means. Secondly, the declaration may become relevant through Strasbourg’s future case law. To the extent that the ECtHR incorporates the declaration into its interpretation of Convention rights, that understanding may itself shape the Convention benchmark informing Article 52(3) CFR.

Yet this does not exhaust the matter. The declaration speaks to the interpretation of Convention rights, not Charter rights. Even if it influences the Convention benchmark, it does not automatically follow that the same considerations should shape corresponding Charter rights. As the final interpreter of the Charter, the CJEU must determine whether, and to what extent, such interpretative developments should carry over into the distinct framework of EU fundamental rights law. This becomes particularly significant where future reliance on the Chișinău Declaration would contribute to a lowering of Convention standards. While Article 52(3) CFR establishes a Convention floor, developments within the Convention system do not necessarily dictate corresponding developments under the Charter. Article 53 CFR may therefore reinforce the non-regression logic underlying the EU fundamental rights framework and the continued maintenance of higher levels of protection within EU law.

Increased Expectations on Judicial Reasoning

The Chișinău Declaration engages with substantive interpretative outcomes across multiple levels of rights adjudication. Yet it neither determines the meaning of Convention rights nor legally binds courts to particular interpretative results. Whether the expectations it expresses are embraced, distinguished or ultimately rejected remains a matter for judicial interpretation.

Once introduced into the Convention system, however, the declaration becomes part of a broader interpretative environment extending beyond Strasbourg. Courts across Europe may increasingly be required not only to justify how they interpret rights, but also how they position themselves vis-à-vis the expectations expressed in the declaration itself. Its most immediate effect may therefore be felt less through doctrinal change than through the growing need for courts to explain and defend their interpretative choices within an increasingly contested European human rights space.

Whether this development ultimately strengthens or complicates the judicial protection of rights remains to be seen. More certain is that it places greater expectations on courts across Europe’s interconnected human rights architecture and, with them, a greater burden on judicial reasoning.

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. Vitesse football club will retain its license to compete in professional football after the Supreme Court of the Netherlands dismissed the KNVB football association’s cassation appeal. In expedited proceedings, the court determined that the KNVB was wrong to revoke the Arnhem club’s professional license without conditions. As a result, Vitesse regained its license and was able to return to play in the Eerste Divisie.
2. South Korea’s Supreme Court confirmed a lower court’s decision to sentence a man to 15 years in prison for killing his father, who suffered from dementia. The attack occurred after the man became angry, believing his father had insulted him.
3. Bulgaria’s Constitutional Court has initiated proceedings to assess whether the system used to distribute quotas within the Central Election Commission (CEC) complies with the constitution. The case was brought forward by 49 lawmakers from the current National Assembly.
4. The Constitutional Court of South Africa has unanimously invalidated major parts of the Refugees Act, finding that asylum seekers and their children must not be denied entry solely on procedural grounds.
5. Brazilian Supreme Court Justice Alexandre de Moraes has prohibited presidential hopeful Senator Flavio Bolsonaro from visiting his father, former President Jair Bolsonaro, for 90 days, citing a violation of the elder politician’s house arrest conditions.

In the News

1. Hungary’s parliament has passed a constitutional amendment removing President Tamás Sulyok from office. Sulyok was widely seen as an ally of former Prime Minister Viktor Orbán, who lost power in April after 16 years in government.
2. Montenegro’s Parliament appointed two new judges to the Constitutional Court, Jelena Ružić and Predrag Krstonijević, nominated by President Jakov Milatović.
3. The Hawaii Supreme Court has overturned a 36-year-old rape conviction after determining that expert testimony regarding fiber and hair evidence in the case was flawed. The case will be re-tried.
4. The European Court of Justice has endorsed Spain’s amnesty law, finding that it does not violate EU legislation or counterterrorism rules. However, the arrest warrant for Carles Puigdemont will remain in effect until the Constitutional Court rules on his appeal.
5. India’s Supreme Court took suo motu notice of a case concerning the high cost of life-saving medicines and the need for swift judicial action in matters related to the right to life.

New Scholarship

1. Claudio Cozzi Fucile, Pietro Ferretti, ‘Shaping reform: the role of experts in the constitutional revision process. The case of Italy‘ 79(3) Parliamentary Affairs (2026) (This article explores the contribution of experts to the constitutional revision process, focusing on the original reform proposals, the views expressed during informal hearings, and the final text adopted by the Senate.)
2. Jaemin Shim, ‘Media coverage of feminine policy issues and electoral consequences: an analysis of mixed electoral system‘ 79(3) Parliamentary Affairs (2026) (This study investigates the electoral impact of media coverage of legislators, particularly in connection with policy areas often considered feminine, such as environmental protection, social welfare, education, and minority rights. It draws on 16,831 manually coded newspaper articles published between 2005 and 2020 that portray elected representatives in Taiwan’s Legislative Yuan.)
3. Katalin Kelemen, Maija Dahlberg, Åsa Elmerot, et al, ‘Constitutional reasoning in the Nordic supreme courts: A comparative empirical analysis‘ International Journal of Constitutional Law (2026) (This article offers the first cross-national empirical analysis of constitutional reasoning across the Nordic countries, i.e. Denmark, Finland, Iceland, Norway, and Sweden. It places Nordic judicial practices within a broader global comparative perspective, emphasising both common regional characteristics and significant differences).
4. Kai Möller, ‘Liberty and personal responsibility in Dworkin’s theory of rights‘ International Journal of Constitutional Law (2026) (This article examines the notions of liberty and individual responsibility in Dworkin’s later theory of rights. It argues that, from a moral and philosophical standpoint, his account of liberty is somewhat lacking.)
5. Adnan Perwez, American Enigma: The Perpetual Nebulousness of Muslims in US Law and the Challenges, Failings, and Opportunities of a Race–Religion Conceptualization Oxford Journal of Law and Religion (2026) (This article challenges and builds on the current literature by reconceptualizing Muslim Americans as occupying a “third position” within the U.S. legal landscape, one that is neither fully defined as a religious group nor entirely as a racialized category, but instead lies between the two, and then examining the wider implications that follow from this perspective).
6. Thirty-five years of the Colombian Constitutional Court : Origins, Institutional Design and Impact on Constitutional Democracy (Paola Andrea Mosquera Meneses, et al, eds, Universidad Externado de Colombia, 2026) (A volume commemorating the establishment of the Colombian Constitutional Court, with contributions from a wide range of scholars, providing an overview of the court’s design, composition, jurisdiction and procedures, as well as examining its impact, nationally and internationally).

Call for Papers and Announcements

1. The Behavioural Insights for Policy (BiP) Network invites submission of Abstracts to the conference “Behavioural Insights for Policy Portugal” to be held at the Faculty of Law, University of Lisbon, on 08 October. The submission deadline is 15 August 2026.
2. The University of Coimbra Institute for Legal Research invites attendance at a conference titled “Democracy Under Pressure: Causes, Impacts and Responses to the Democratic Crisis in Southern Europe”, to be held on 15 September 2026. The event will take place in a hybrid format, allowing for both in-person and online participation.
3. The University of Coimbra Institute for Legal Research invites submissions to the first seminar in a Seminar Series on Vulnerabilities and Law, dedicated to the topic “Legal Challenges of Vulnerabilities in Contemporary Migration Scenarios,” which will take place on 21 and 22 October 2026. The paper submission deadline is 05 September 2026.
4. The Maastricht Centre for Law & Jurisprudence invites submissions for a conference on “ECtHR jurisprudence: an incremental and progressive development or time to take a breather?” which will take place on 14 and 15 January 2027, at the Faculty of Law of Maastricht University. The deadline for submissions is 16 October 2026.
5. The Comparative Constitutional Studies Journal has launched a special Call for Papers to be submitted for its next issue, volume 5.1 (2027). The deadline for submissions is 1 September 2026.
6. The Comparative Constitutional Law and Administrative Law Journal (CALJ) has launched a call for papers for its upcoming volume. The submission deadline is 25 July 2026.

Elsewhere Online

1. André Glitz, Chatrie v. United Sates (2026) e a constitucionalidade da investigação criminal digital no Brasil e nos USA, UlyssesBlog (3 July 2026)
2. Parul Kumar, Chris Hilson, Heatwaves and Legal Remedies: Lessons for Adaptation-Focussed Climate Litigation in Europe, VerfassungsBlog (13 July 2026)
3. Erwin Chemerinsky, The biggest Supreme Court surprises this term, SCOTUSBlog (14 July 2026)
4. Paul Ford, Code Is Free Speech. Seriously., The New York Times (13 July 2026)
5. Sami Abdelhalim Saeed, Alemayehu Fentaw Weldemariam, Unconstitutional Change After Constitutional Breakdown: Coups and the Crisis of Legitimacy in the African Union, IACL-AIDC Blog (23 June 2026)

The post What’s New: Week of July 20 appeared first on www.iconnectblog.com.

2. Call for Papers: The Irish Yearbook of International Law. At a moment of profound anxiety for the international legal system, the Editors of The Irish Yearbook of International Law are inviting submissions (by 16 October 2026) on any area of international law for publication as an article in the next volume of the Irish Yearbook (Volume XVIII).  Book review proposals (deadline: 31 August 2026) are also welcome. While the Yearbook welcomes submissions with an Irish connection, this is not a requirement. Further information is available here.

3. Call for Abstracts: Yerevan International Conference on International Humanitarian Law – Protecting Humanity in Armed Conflict: Contemporary Challenges for International Humanitarian Law. Armenian International Law Association (AILA), with the support of the International Committee of the Red Cross (ICRC) Delegation in Armenia, is inviting scholars, practitioners, humanitarian actors, diplomats, military experts, and students to submit abstracts for the Yerevan International Conference on International Humanitarian Law: Protecting Humanity in Armed Conflict: Contemporary Challenges for International Humanitarian Law scheduled for 27 – 28 November in Yerevan, Armenia. Abstracts are invited under one of the following four thematic panels, developed in line with the priorities of the Global Initiative to Galvanize Political Commitment to IHL: (1) Preventing Violations of IHL: Compliance, Deterrence and Early Warning; (2) Protecting Civilians, Essential Services and Cultural Heritage; (3)  Modernizing IHL for Emerging Threats and New Domains of Warfare; and (4) Linking IHL to Peacebuilding and Reconciliation. Application submission deadline: 7 September 2026. More information here.

International organizations (IOs) play a central role in contemporary international law-making: they institutionalize most of the processes through which international law is adopted today. From the perspective of the democratic legitimacy of international law, this raises the question of the conditions under which those IOs may be regarded as democratic representatives of their Member States' peoples. Curiously, given its important international and domestic stakes, however, the democratic representativeness of IOs, but also of States and other public and private institutions within those IOs does not seem to be much of a concern in practice. Even more curiously, and by contrast to other issues of democratic legitimacy it is necessarily related to, such as participation or deliberation inside IOs, representation has only rarely been addressed as such in scholarly debates. It is this gap in theory and practice that this volume purports to fill. It is the first one bringing global democracy theorists and international lawyers into dialogue on the topic and in English language. This title is available as open access on Cambridge Core.

     

In December 2023, the Amendment Memorandum to the ISA Law was published. It proposes to confer a number of far-reaching powers on Israel’s Security Agency (the ISA, also known as Shin Bet or Shabak), including not only the power to conduct remote searches (that is, to use spyware) but also to run remote interference (that is, to engage in offensive cyber operations). Press coverage of the Memorandum’s publication, against the backdrop of the Gaza war, occasionally raised concerns that the Agency was exploiting the state of emergency to seize broad surveillance powers, akin to those acquired by the US intelligence community after September 11 under the PATRIOT Act. That said, when the Agency has needed new powers during an emergency, it has shown that it knows how to request, and obtain, them.

The actual background to the Memorandum is a still-pending petition by the Association for Civil Rights in Israel (ACRI), challenging the constitutionality of section 11 of the ISA Law, under which the Agency collects metadata into the database known as “the Tool.” The State has presented the Memorandum as a response to ACRI’s claims regarding section 11. The Memorandum also incorporates further amendments to the ISA Law, some of which had been pending for over a decade, others entirely new.

Drawing on a recently published paper, this post examines aspects of the deployment of future-proofing strategies in the Amendment Memorandum, and argues that the attempt to resolve the dual uncertainty pertaining both to national security as well as the nature of emerging technologies generates a partial democratic deficit in which legislative discretion is transferred to the executive branch.

On Future-Proofing

Future-proofing is an interdisciplinary perspective that offers a systematic framework for dealing with future requirements and uncertainties while accommodating innovation. This approach seeks solutions resilient to future change, ensuring that a product or system does not become obsolete on account of developments that could not have been foreseen at the design stage, or because it was not designed to be flexible and adaptive. The academic literature abounds with writing on future-proof crops, infrastructure, or legal systems. And, likewise, future-proof legislation.

“Future-proof legislation” is an elusive concept, since legislation by its nature aspires to endure without change. Legislation is a forward-looking act of legal creation (unlike judge-made law, which draws on precedent and remains in dialogue with the past). As a system, law aims to preserve its own temporal inertia — to remain effective over time without changing.

Emerging technologies constrain that inertia, since they result in socio-technological change that may render laws obsolete. We should also remember that legislative processes are slow and cumbersome, and legislators often lack the incentive to revisit the same issue frequently; the law accordingly responds slowly to technological change, a phenomenon identified in the literature as the pacing problem. The EU Artificial Intelligence Act illustrates this: the first expert committee convened in 2018; the first substantive draft followed three years later, in 2021. In the interval, the major “boom” in generative AI forced the European legislature to further address “foundation models,” later folded into “general purpose AI models.”

Given this uncertainty, on the one hand, and protracted legislative processes, on the other, a legislator wishing to effectively regulate emerging technologies will prefer to design the law so as to preserve its temporal inertia — finding a flexible, preferably technologically neutral arrangement, so as “to regulate behaviour, not technology.“

In national security legislation, the motivations differ. Where the regulation concerns how intelligence and law-enforcement agencies use emerging technologies, generally for surveillance, the legal framework must be even more flexible, because the uncertainty has doubled: neither the technologies intelligence targets will use, nor the counter-technologies the agencies will deploy to track or thwart them are fully known during the legislative proceedings which seek to produce rules that endure over time.

A further, not necessarily technological, dimension relates to these organizations’ culture of secrecy. They often refrain from publicizing their activities (hence the common designation of “the secret service”) and have little appetite for public debate about the scope and nature of their powers, particularly the manner these powers are internally interpreted. From their perspective, it is preferable that the legislature revisits their governing legislation as rarely as possible. Indeed, the substantive proceedings on the ISA Law were conducted largely behind closed doors, and once the statutory text was published, the Agency appears to have preferred to avoid further deliberation that might expose its methods and means, or narrow its operational latitude.

Future-Proofing Techniques

There are several strategies for future proofing legislation. Firstly, the use of suitable language. The wording of a future-proof law must be as abstract as possible, and in particular technologically neutral, so as “to regulate behaviour, not technology.” The Israeli Wiretapping Law, for example, is built around the concept of a “conversation” and “eavesdropping”, allowing the Agency to extend the range of its operations from the use of listening devices through telephone interception to the interception of computer communications — and, per the Merari Report, to spyware as well.

The vagueness inherent in such drafting, using techno-intelligence terminology intelligible to practitioners, also helps conceal methods and capabilities — a further motivation for this language in security contexts. A common sign of failed future-proofing is when later amendments are explained as mere “clarification”: the bill, heaven forbid, proposes no new power, but merely “clarifies” a power that has long existed — amounting to codification of an internal, at times classified, interpretation.

Secondly, futureproofing strategies tend to prefer principles over rules. Abstract statutory language naturally tends toward the principle end of the rule-principle spectrum. A flexible framework articulates a general principle and avoids descending into detail, leaving the executive or regulator to give that principle concrete content.

Another strategy is using mechanisms for regulatory experimentation. Various regulatory techniques create space for real-time experimentation, allowing a regulator to test a technology’s implications while it is still developing. Such approaches seem less relevant in security contexts, however. While regulatory sandboxes are an existing policy tool in Israel , for example, it is doubtful that they could be deployed in a national security context, given the high stakes risks to human rights and the lack of a designated regulatory authority for these matters.

A different approach would be to rely on general powers. Authorities often assume that they possess a power to use a given technology by virtue of a general power to fulfil their function — as occurred in the Hawkeye ALPR system affair and in the deployment of an AI profiling system at Ben Gurion Airport. Given the requirement under Israeli constitutional law for explicit statutory authorization before rights may be infringed, however, this strategy rests, under Israeli law, on a broken reed.

Sunset provisions are somewhat of a less intuitive example of future-proofing techniques. However, they are futureproof in a dual sense: the law’s temporal inertia is fixed in advance, reducing uncertainty, and because the law has a known expiry point, there is less appetite for judicial or parliamentary intervention, which contributes to its resilience.

Finally, there is second-order future-proofing. National security legislation contains many instances of delegating parliamentary decision-making to the executive: basket clauses conferring on a minister (sometimes subject to committee approval) the power to amend the law in emergencies, or skeletal arrangements implemented through internal guidelines or administrative rules. These allow the regulator, or the authority on the ground, to respond to developments in real time.

It should be clear, however, that taken together these techniques amount to a transfer of power from the legislature to the executive or regulator: whether through explicit delegation, the conferral of interpretive authority over general principles or neutral language, or the creation of discretional pockets within regulatory experimentation.

Future Proofing Techniques in the Amendment Memorandum

This post cannot review the Memorandum in full, but several examples illustrate its employment of future-proofing techniques. Even in its present form, the ISA Law uses technologically neutral language. For example, its broad definition of “information” (“including communications data but excluding the content of a conversation as defined in the Wiretapping Law”) potentially enabling the collection of almost any data from telecommunication providers. A further example is the delegation of authority to set concrete data protection related arrangements for such information by means of classified “rules.” Controls of this kind (retention periods, deletion, data security) ought in principle to be regulated at the statutory level rather than delegated to administrative rules; and because the rules themselves are classified, what is involved is not mere delegation, but concealment of how that authority is exercised.

The Memorandum appears to narrow the definition of “information” to communications data as defined in the rules, including internet usage data that is not the content of a conversation between persons. This ostensibly clarifies that “information” means communications data, yet the nature of communications data is itself defined in classified rules, alterable by written order of the Prime Minister with ministerial and parliamentary committee approval. Despite the amendment, the definition remains subject to future-proof interpretation.

The proposed section 8A offers new powers concerning the collection or receipt of databases, with exceptions for particularly sensitive ones. This high level of abstraction, using technologically neutral language, however leaves unclear what constitutes “collection” or “receipt,” or the operative significance of either.

Particular attention is warranted regarding the Memorandum’s residual-powers arrangement concerning information. Under the proposed rule, where an essential need arises to exercise a power over information to prevent offences within the Agency’s core domains, and existing statutory powers provide no adequate response, the Ministerial Committee for ISA Affairs, with the Knesset’s Intelligence Subcommittee’s approval, may confer such a power on the ISA. This is a Rumsfeldian uncertainty, an “unknown unknown”. The legislature does not know what future needs will arise, yet has agreed to create an authorizing mechanism subject to only limited parliamentary oversight: a form of second-order future-proofing that expands the Agency’s powers not on a purposive basis (as under section 7(b)(6), which allows to task the ISA with mission beyond its statutory remit), but with respect to the very nature of the power itself. It is doubtful whether an external reader of the Memorandum could envisage the scenarios this provision is meant to cover. Perhaps that is precisely what is troubling about it.

Concluding Remarks

Future-proofing is a structural feature of every piece of legislation, since all laws are forward-looking. It divides the task of confronting future uncertainty between the legislature and the executive, transferring to the latter powers of rulemaking — whether through interpretation or through deferred discretion.

In national security legislation, particularly where emerging technologies are concerned, the level of uncertainty may be so high that legislative proceedings trying to capture it in detail would waste legislative resources. This may justify the cautious deployment of these techniques in this particular domain, particularly given that, in light of Israel’s tumulus political situation, there is no telling whether the legislature will be able to revisit the matter again in four or five years.

Nevertheless, the need for future-proof legislation makes democratic control over post-enactment decision-making essential. Absent an adversarial actor capable of challenging the system’s interpretation and internal rules, episodes such as the deployment of spyware by the Israel Police, or the use of license-plate recognition systems without statutory authorization, are liable to recur. Addressing the resulting democratic deficit requires transparency, reporting obligations, and proper oversight mechanisms with real teeth, capable of scrutinizing secret legal interpretations and internal rules and guidelines, to serve as the citizenry’s own future-proofing against future-proof legislation.

Suggested citation: Amir Cahane, Future Proofing Surveillance Law in Israel: On Emerging Technologies and the ISA Law Amendment Memorandum, Int’l J. Const. L. Blog, Jul. 18, 2026, at: http://www.iconnectblog.com/future-proofing-surveillance-law-in-israel-on-emerging-technologies-and-the-isa-law-amendment-memorandum/

The post Future Proofing Surveillance Law in Israel: On Emerging Technologies and the ISA Law Amendment Memorandum appeared first on www.iconnectblog.com.

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• Sannoy Das, Non-discrimination as Discrimination: The MFN Obligation and International Trade Law
• International Decisions
• Xue Feng & Xueliang Ji, United States — Certain Tax Credits Under the Inflation Reduction Act. Panel Report. WT/DS623/R
• Marios Tokas, Hellenic Council of State, Decision A, No. 1918-20/2025
• Contemporary Practice of the United States Relating to International Law
• The United States Takes an à la Carte Approach to the United Nations
• President Trump Launches the Board of Peace
• The United States and the OECD/G20 Inclusive Framework Agree on a “Side-by-Side” Arrangement Exempting U.S. Multinationals from the Global Minimum Tax Regime
• President Trump Demands that Denmark Sell Greenland to the United States, Threatening to Take It by Force
• Recent Books on International Law
• Chimène I. Keitner, State Responsibility as Myth and Legend
• Anne Trebilcock, reviewing International Organization Initiatives: How and Why Organizations Adapt and Change, edited by Gabrielle Marceau and Henner Gött
• Emilie M. Hafner-Burton, reviewing International Legal Theory and the Cognitive Turn, edited by Anne van Aaken and Moshe Hirsch
• Roger O’Keefe, reviewing End of Immunity: Holding World Leaders Accountable for Aggression, Genocide, War Crimes, and Crimes Against Humanity, by Chile Eboe-Osuji

     

The Executive Committee of the ICON-S Australia & New Zealand Chapter is pleased to invite the Australian and New Zealand public law community to attend its 2026 conference, hosted by Te Herenga Waka – Victoria University of Wellington from 26-28 August 2026. The theme of the conference is ‘He mahi raranga – infusion and diffusion of Australasian public law’. The theme He Mahi Raranga (the work of weaving) reflects the conference focus on the infusion and diffusion of ideas, traditions, and innovations in Australasian public law. The programme will bring together scholars, judges, practitioners, and students to explore contemporary challenges and future directions in public, constitutional, and administrative law.

A draft version of the programme is now available, and registrations are now open (closing 14 August 2026). Please visit this website for more information.

The post Invitation: Australia & New Zealand Chapter Conference appeared first on www.iconnectblog.com.

On 21 April 2026 the Court of Justice, sitting as a Full Court, ruled against Hungary in Commission v Hungary (Case C‑769/22), the case the Court itself labels Values of the Union. At first glance the operative part looks like an ordinary internal‑market condemnation. The measure under attack was Law LXXIX of 2021, which Budapest had presented to its own public, and would later defend in Luxembourg, as a shield for children against paedophilia, although its real content forbade any material that promotes or portrays homosexuality or non‑cisgender identities, and it did so across advertising, audiovisual media, online services and the school curriculum alike. The Court struck it down under the e‑commerce, services and audiovisual media directives, under Articles 1, 7, 11 and 21 of the Charter of Fundamental Rights of the European Union, and under Article 10 General Data Protection Regulation (GDPR). Anyone who had read the Commission’s application would have expected as much.

The judgment becomes genuinely interesting only at its sixth plea, which is where the Court did something it had never done before, holding a Member State in breach of Article 2 TEU on the provision’s own footing rather than as a backdrop to some more concrete duty. For two decades Article 2 TEU had been treated as a solemn preamble to the Union’s constitutional order, a clause one cited in argument or invoked in the political arena but never, by itself, the ground of a judgment. The judgment now treats it as a litigable standard. That the institutions sensed what was at stake is plain from the company the Commission kept, since sixteen Member States and the European Parliament arranged themselves behind this institution, the largest field of supporters an infringement action has ever drawn. This post argues that the judgment’s true significance lies not in the fall of the Hungarian law but in the transformation of Article 2 TEU into an enforceable standard. For the first time the Court gives the Union a judicial brake against democratic backsliding, even as a deliberately high threshold leaves the reach of that new ground uncertain.

The contested law

The 2021 Hungarian statute did its work in four places at once, amending the child‑protection act, the advertising act, the media act (which pushed the affected programmes into the 22:00–05:00 slot) and the public‑education act, and the European Court saw the design behind the repetition, since a single premise ran through every sector and produced what it called a coordinated set of discriminatory measures. The title mattered too. By gathering rules against homosexuality and gender transition under a statute supposedly aimed at paedophile offenders, the legislature had written the insinuation into the law itself, and the Court was prepared to call the effect both stigmatising and capable of inciting hatred.

Anyone who had been following the file in the years before the hearing was unlikely to be caught off guard. The Venice Commission had said much the same in December 2021, condemning the implied link between LGBTI lives and harm to children as degrading and recommending that the title of the law itself be changed; and before the parliamentary vote the Council of Europe’s Commissioner for Human Rights had warned that the amendments could silence any public mention of these identities. The European Parliament condemned the law that July. What the Court of Justice adds is not a fresh diagnosis but the one thing those earlier voices could never supply on their own: a binding finding, with consequences attached.

The Advocate General’s reading

Much of the ground had already been prepared by Advocate General Ćapeta, whose Opinion of 5 June 2025 set out, in essence, the analysis the Court would adopt, and it ran along two lines. The first was empirical. Hungary could produce no evidence that exposure to the prohibited content harmed a child’s development, so the prohibition rested on a value judgment, which she called a prejudice, taking her cue from the language used by the European Parliament. The second line was the bolder one, because it was here that she urged the Court to recognise a free‑standing breach of Article 2 TEU. She also addressed the issues in an unusual sequence, settling the factual question — whether the prohibited content actually harms a child’s development — before turning to the constitutional one, an order more familiar in the common-law world than in Luxembourg, and the Court followed her there as well.

Directives and Charter

On the directives the reasoning is almost routine, because, although Member States may decide what audiovisual content is unsuitable for minors, they have to act within the limits identified by the Charter of Fundamental Rights, and the Hungarian law failed at the very first step. Its provisions assume that any depiction of these identities, whatever it actually shows, harms the child, and that assumption draws a line at sex and sexual orientation. The Court held that this line “reveals a preference for certain identities and sexual orientations to the detriment of others” and that it cuts into the essence of Article 21(1) of the Charter, a core that on settled case‑law no justification can reach, neither the best interests of the child under Article 24(2) nor the rights of parents under Article 14(3). On that last point it leaned on the case law of the Strasbourg Court, whose standard is that in a subject as contested as sex education the authorities owe pupils objectivity, pluralism and scientific accuracy rather than one approved line of thinking.

One part of the case tends to get lost in the discrimination analysis. Hungary had also reworked access to its register of sex offenders, and the Court accepted both the aim, protecting children, and the premise that Article 10 GDPR allows conviction data to be disclosed where the safeguards are real. Hungary’s were not real. The category of people who could request the data had been drawn far too widely, and a requester’s bare claim that he needed it did nothing to keep the intrusion in check. So part of the judgment is not about discrimination at all. It is about bad drafting.

Article 2 TEU becomes a rule one can litigate

Article 2 TEU lists the Union’s founding values: human dignity, freedom, democracy, equality, the rule of law, and respect for human rights, including the rights of minorities. Whether a court could enforce those values, rather than merely cite them, had divided scholars for the best part of twenty years. The 2022 conditionality judgment went halfway, granting Article 2 a “legal value” without making it a stand‑alone ground of infringement. This ruling takes the step that was left. The values bind in themselves, the Court says; they are part of what the Union is as a legal order; and Article 2 is no longer treated as merely political language. After all that argument, it has become a provision the Court will enforce on its own, and the consequences are likely to be felt far beyond the Hungarian facts.

But only at the top of the scale

The Court saw the obvious objection coming, that every Charter breach might now turn into an Article 2 TEU breach, and it shut that off in advance. Breaching a piece of secondary law that gives effect to the values is not enough. Nor is breaching several Charter rights at once, which is at most a clue. Only violations that are manifest and particularly serious will cross the line, because only those are incompatible with the kind of legal order the Union claims to be. The qualifier is deliberate. Where the bar actually sits, the cases that follow will have to show.

In Hungary’s case the threshold was cleared without difficulty, and the Court identified three concerns that, taken together, carried the law over it: one discriminatory premise repeated across four sectors, no scientific basis for that premise, and the slur built into the title. How much of the combination one could remove before a future measure slipped under the line is left open, and that is one of the more intriguing gaps the judgment leaves behind.

National identity, and its limits

Hungary fell back on Article 4(2) TEU and the room it supposedly leaves the Member States in matters of education, public morality and the family. The Court rejected that argument. Its answer came in two moves: the obligations under Article 2 TEU do not change from one State capital to the next, and Article 4(2) TEU protects only a conception of national identity that already squares with Article 2 TEU. So the clause does not shield the law; it is measured against the values it was meant to outrank. Hungary, the Court held, could not use its national identity to defend the statute. The identity that EU law protects is one resting on human dignity, equality and the rights of minorities, and no other version is on offer.

“Social invisibility”

The most original move in the whole judgment turns on a single phrase, because the Court describes the contested law as one that works to establish, maintain or reinforce the social “invisibility” of non‑cisgender and non‑heterosexual people, which pushes past the old split between direct and indirect discrimination: wiping a group out of public view is a harm in itself. The Strasbourg Court got there first. The same idea runs through Bayev v Russia and the Grand Chamber’s Macatė v Lithuania, both of which threw out the claim that merely seeing LGBTI content harms children and read the real point of such laws as the imposition of silence. On this the two European Courts now agree.

Why it matters

For years the only weapon against backsliding of this kind was the procedure in Article 7 TEU, and its politics finished it off, since the proceedings opened against Hungary and Poland long ago never came near the impositions of sanctions. That paralysis is the backdrop against which the judgment should be read. An infringement action grounded in Article 2 TEU walks around the deadlock, and it carries a threat the old route never had, because non‑compliance can attract financial penalties under Article 260 TFEU. The bar is high. Even so, the tool now exists, it has been shown to work, and the gap that scholars spent a decade lamenting is at last partly closed.

It pays to read the Hungarian law next to its relatives elsewhere. Russia’s 2013 “gay propaganda” law, condemned in Bayev, did not stay put: it swelled into a blanket ban and then into the branding of an “international LGBT movement” as extremist. Lithuania’s version collapsed after Macatė and was struck down by its own Constitutional Court in 2024. Florida’s House Bill 1557 grew for a while, until a settlement reined it in. The comparison suggests a recurring pattern. Each law hides behind the language of child protection. Each is loose enough to chill far more speech than it openly bans. And each, when nobody pushes back, keeps growing. What this judgment adds, inside the Union, is a brake that can be pulled early and that binds those against whom it is used.

A good deal is still left unresolved by the ruling, since no one yet knows how high the Article 2 threshold really sits, or how the new ground will operate beside the Charter and Article 7, and it would be idle to pretend the judgment answers those questions. What it does answer is narrower and more lasting: a Member State may not legislate a whole group out of public existence, because doing so is incompatible with the very legal order it chose to join. The decision reaches a long way past the single Hungarian law that prompted it.

Suggested citation: Fruela Río Santos, Making Article 2 TEU Justiciable: The Court of Justice in Commission v Hungary (Values of the Union), Int’l J. Const. L. Blog, Jul. 17, 2026, at: http://www.iconnectblog.com/making-article-2-teu-justiciable-the-court-of-justice-in-commission-v-hungary/

The post Making Article 2 TEU Justiciable: The Court of Justice in Commission v Hungary (Values of the Union) appeared first on www.iconnectblog.com.

Costs of Reconstructing Ukraine: Not Only Rebuilding but Also Guaranteeing a Long-term Economic Recovery

Since the early days of the Russian invasion, various initiatives have emerged to collect, evaluate, and analyse information on economic losses caused by the Russian aggression. One of them is the Ukraine Rapid Damage and Needs Assessments, which have been conducted five times. The most recent assessment, prepared by the World Bank Group, the Government of Ukraine, the European Commission, and United Nations agencies (e.g., UNDP, UNICEF, etc.), in coordination with humanitarian and development partners, academia, civil society organizations, and the private sector, covers the period between February 24, 2022, and December 31, 2025. It concludes that: “the total recovery and reconstruction needs are estimated at US$587.7 billion over the 10-year horizon 2026-2035, equivalent to almost three times Ukraine’s 2025 gross domestic product (GDP)”. This estimate includes not only the costs of rebuilding the destroyed and damaged infrastructure but also the costs of Ukraine’s long-term economic recovery. 

Ukraine’s Reparation Claims and Russian Frozen Assets: Between Legal Theory and Politically-Driven Practice

In the past, reparations were a matter of might over right. In other words, the ability to claim reparations in the nineteenth and early twentieth centuries was the right granted to a prevailing power by virtue of its military success. However, like the international rules for peace-making, international law on reparations has changed in the last decades. Ukraine’s right to claim reparations is well-embedded in the present-day fabric of international law. The general right to reparation is acknowledged as customary international law in Article 31 of the Draft Article on Responsibility of States for Internationally Wrongful Acts (ARSIWA). Its applicability to the Russian aggression was recognized by UNGA Resolution ES-11/5, supported by the majority of the UN Members. That resolution explicitly states that Russia “must bear the legal consequences of all of its internationally wrongful acts, including making reparation for the injury, including any damage, caused by such acts” [emphasis added].

While Ukraine’s right to reparations is not seriously disputed, international law debates have centred on the question of how this right can be realized, with a particular focus on currently immobilised RCB assets. These debates have focused on three key questions: what is the exact scope of the immunity from execution as it applies to central bank assets? Can a narrowly defined exception from immunity guarantees be developed for cases like Russia’s aggression against Ukraine? Can confiscation or temporary use of the central bank assets qualify as permissible countermeasures? 

State immunity encompasses immunity from adjudication (a procedural rule preventing a foreign State from participating in judicial proceedings before the courts of another state) and immunity from execution, according to which state assets cannot be subject to measures of enforcement. While the former embodiment of state immunity is not applicable to out-of-court proceedings, the application of the latter to the executive decisions taken outside of court proceedings is debatable. For example, Jean-Marc Thouvenin and Victor Grandaubert hold the view that immunity from execution is equal to immunity from any type of constraint; in contrast, Tom Ruys contends that immunity from execution is applicable only in the context of court proceedings. 

In view of this, there is an agreement on the minimum protection granted to central bank assets under the law of state immunity – which requires that ‘property of the central bank or other monetary authority of the state’ cannot be put under any form of constraint as a result of a court judgment. Yet it remains disputable if the same rule applies to an out-of-court decision (i.e., a decision taken by the executive branch without any court oversight).  

Against the backdrop of this uncertainty, several leading experts in the field, including Professor Philippa Webb, advocate for a narrow exception to the immunity of central bank assets in cases of armed aggression or other blatant violations of international law. This exception could be legally grounded in a UNGA Resolution adopted by the majority/qualified majority vote. Such a UNGA Resolution, in Webb’s view, could “crystallise customary international law” that recognises “an exception to immunity from judicial enforcement in narrowly defined circumstances”.

In the absence of any new exception to immunity entitlements, transfer of the RCB assets to the benefit of Ukraine could be justified as lawful countermeasures. Countermeasures are unilateral measures of a state in response to the breach of its rights by the wrongful act of another state aimed at inducing compliance of the latter with its obligations. Countermeasures are self-help actions of states that can be lawful only if taken in accordance with Articles 49–51 (substantive prerequisites), and Article 52 (procedural prerequisites) of the ARSIWA. 

Among the requirements applicable to countermeasures, three are particularly problematic in the context of the potential use of the RCB assets for Ukraine’s reconstruction: (i) the goal of countermeasures should be to induce compliance, and not the punishment of a state; (ii) whether non-injured states may take countermeasures; (iii) and to what extent they must be temporary and reversible.

However, none of these requirements presents an insurmountable obstacle as has been argued by a group of distinguished legal scholars, including Professors Dapo Akande, Philippe Sands, and Christian Tams, in their legal memo drafted and circulated in November 2023. Their legal analysis concludes: “the transfer of frozen Russian State assets to an international compensation mechanism to be used to compensate Ukraine and other parties for the injuries caused by Russia’s internationally unlawful war of aggression would be a lawful, proportionate, reversible and justified countermeasure, which all States are entitled to participate in, given the erga omnes character of Russia’s wrongful conduct.” 

The proposed objective of such measures could be inducing Russia’s compliance with two international obligations – to terminate the illegal war of aggression and to pay the reparations which are due. It is argued that other states, not directly injured by Russia’s conduct, are permitted to take collective countermeasures in case of grave breaches of obligations under peremptory norms of international law that have an erga omnes character. Finally, it is emphasised that “as the words ‘as far as possible’ in section 3 of Article 49 demonstrate, ‘the duty to choose measures that are reversible is not absolute. It may not be possible in all cases to reverse all of the effects of countermeasures after the occasion for taking them has ceased’.” Furthermore, it is argued the transfer could be considered reversible, since normal legal relations with Russia will resume after it complies with its international obligations and “[i]ts future or remaining deposits will again be entitled to respect.”  

The debate on seizing and using RCB assets is as much legal as it is politically charged. Both sides of the debate have expressed valid policy considerations that should be acknowledged. Proponents of a seizure/transfer emphasise the need to ensure accountability for Russia’s unlawful aggression and for the destruction it has caused as a result. Another valid and practical point raised in this context is the enormous cost of Ukraine’s reconstruction and the lack of alternative resources available to cover such substantial expenses. Opponents highlight the risks posed to the role of the EURO/USD as reserve currencies if any decision on the use of the RCB assets is taken. The most vocal opponents of such a move are the European Central Bank, Belgium, and Euroclear for obvious reasons. In addition, concerns have been expressed that any such use might set a dangerous precedent that could backfire in the future (for example, if a country that seizes RCB assets would engage in aggression prohibited under international law). 

In response to the latter concerns, counterarguments have been developed. First, it has been observed that since the immobilisation of RCB assets in early 2022, no significant “currency flight” has materialised, in part due to the limited number of dominant reserve currencies. Second, a narrowly defined exception to sovereign immunity, tailored to extreme violations of international law, may help mitigate concerns about the setting of a dangerous precedent.

Fight, not Flight: Responses of the Major Stakeholders

All the major stakeholders involved in this politically-tainted legal dilemma have moved from discussions to actions. 

Ukraine’s three-step solution

Ukraine solidified its legal stance on the need to use the immobilised RCB assets and has actively engaged its diplomatic channels for this purpose. Its official strategy for ensuring accountability and reparations envisions a three-step solution: (i) creation of the Register of Damage for Ukraine that functions as a database of claims, which has been accepting claims since 2024 (established under the auspices of the Council of Europe in May 2023); (ii) negotiation and ratification of the Convention Establishing an International Claims Commission for Ukraine (ongoing endeavour); and (iii) establishment of the compensation fund from which reparations ought to be paid.  

The Convention Establishing an International Claims Commission for Ukraine (Convention) was signed by 34 countries and the EU in December 2025. In May 2026, Canada became the first non-European country to sign the Convention. The Ukrainian Parliament ratified the Convention on April 30, 2026, and the European Commission ratified it on behalf of the EU on May 15, 2026. The Convention will enter into force after 25 signatories ratify it. 

Establishment of the compensation fund is the most intricate of Ukraine’s three-step solution. Precedents from the recent past show that the establishment of a claims commission – with the necessary financial backing to pay compensation, was possible only either with the explicit consent of the states involved in an armed conflict (e.g., the Eritrea-Ethiopia Claims Commission) or with the endorsement of the UN Security Council (e.g., United Nations Compensation Commission). None of these options lies in the realm of possibility, at least for now.  

G7 and the EU’s financing of Ukraine: growing needs, lacking resources 

Since 2022, the G7 countries that immobilised the RCB assets have been confronted with two concurrent issues – provision of military and financial support to Ukraine and the possible use of the assets. Initially, the G7 countries agreed to a permanent immobilisation. During the Apulia summit in June 2024, the group approved a strategy to allow windfall profits –  extraordinary revenues generated by the immobilised RCB assets – to be used for the benefit of Ukraine. Subsequently, G7 countries issued loans to Ukraine (i.e., extraordinary revenue acceleration loans), backed by future revenues generated from the immobilised RCB assets, in the cumulative amount of US$50 billion. The EU, as part of this arrangement, committed to providing an extraordinary macro-financial assistance loan of €18.1 billion and to establishing a mechanism for channelling extraordinary revenues to Ukraine, enabling it to repay the G7 loans.

The years-long debate in the EU reveals diverse, at times conflicting, views of the EU Member States: with the states bordering Russia being more supportive of the idea of putting RCB assets into use, while Belgium, to a lesser extent, Luxembourg, and France being sceptical of the legality of such a move (read: fearing any potential repercussions). 

While dozens of alternatives have been discussed – ranging from investing immobilised assets to issuing a loan guaranteed by these assets – none of them was able to bridge the gap between the views held by numerous stakeholders. 

Recently, the EU faced the need to assist Ukraine with macro-financial and military support and approved a €90 bn loan that is funded through “EU borrowing on the capital markets and will be backed by the EU budget headroom”. This funding does not use the RCB assets, yet, the relevant Regulation stipulates “the Union has the right to make use of Russian assets immobilised in the Union to repay the loan, in full accordance with Union and international law”. 

Russia’s lawfare 

In turn, Russia delivered on its threats to launch a campaign of legal warfare against Belgian Euroclear and the EU institutions for immobilising its sovereign assets. In mid-December 2025, a case against Euroclear seeking $230bn (approximately €210 bn) in damages was filed before the Moscow court. In May 2026, the Moscow Arbitration Court upheld the RCB’s claims in full. 

Following this, in February 2026, the RCB initiated a dispute challenging Council Regulation 2025/2600 adopted based on Article 122(1) of the TFEU before the Court of Justice of the European Union (CJEU). According to the scarce publicly available information, the RCB’s legal standing is based on Article 263 of the TFEU. 

The RCB claims are both procedural and substantive. The former is epitomized by the argument that the Council committed serious procedural violations by adopting the abovementioned Regulation by a majority vote and not by unanimity as required under Article 215 of the TFEU. The substantive claims have been described as follows: “the EU Regulation violates the basic and inalienable rights to access justice, inviolability of property, and the principle of sovereign immunity of States and their central banks, guaranteed by international treaties and European Union law.”

On 22 May 2026, the RCB initiated a second dispute before the CJEU, challenging Regulation (EU) 2026/467 that provides the legal basis for a €90 bn loan to Ukraine. The essence of the RCB claims is that the regulation unlawfully uses the immobilised assets “as loan collateral and/or further legalisation of the expropriation of sovereign assets.” It remains to be seen if these claims could withstand the CJEU scrutiny. 

As discussions continue and various actors engage in legal and policy moves, the question of compensating Ukraine remains both timely and increasingly pressing. It is impossible to argue that any amount of reparation paid to Ukraine could compensate for the suffering inflicted on the country and its people. At the same time, if no reparation is paid and international law fails to demonstrate its relevance in the face of the grave and blatant violations of its foundational principles, the discipline as such risks turning into mere rhetoric. 

This blogpost forms part of the Mini-symposium on international legal issues concerning a peace treaty for Ukraine. The introduction to the symposium by Anne Peters, Gregory Fox, and Florian Kriener can be found here. The symposium builds on presentations and discussions during the Conference on International Law and Peace in Ukraine organized at the Max Planck Institute for Comparative Public Law and International from April 17-18, 2026 and supported by the German Foreign Office.

The Supreme Court of India recently lifted a ban on three academics associated with a controversial National Council of Educational Research & Training (NCERT) class 8 social science textbook, which included a section on judicial corruption, from participating in academic projects linked to public educational institutions.  This comes three months after the Court, in an unprecedented decision in a case initiated by itself, had banned the inclusion of the topic ‘Corruption in the Judiciary’ in the textbook titled ‘Exploring Society: India and Beyond’, prepared by NCERT, which is responsible for developing model textbooks, curriculum, and pedagogy for school education in India. This one-page section was a part of its chapter four titled ‘The Role of the Judiciary in our Society’. Surprisingly, it also banned the three academics – Professor Michel Danino, Suparna Diwakar, and Alok Prasanna Kumar – who authored it, from receiving public funds. The lifting of the ban order was passed by a bench led by Chief Justice of India (CJI) Surya Kant, along with Justices Joymalya Bagchi and Vipul Pancholi, while hearing applications filed by the three academics. 

The Indian Supreme Court had also directed the union government, state governments, universities, and all institutions to disassociate from these academicians and refrain from engaging them in any publicly funded academic work. This direction did not fall on deaf ears, and while the ban has now been lifted, Solicitor General Tushar Mehta informed the court during the hearing that the Union government had already decided not to involve the academics in future projects. The bench also maintained that the textbook chapter was “wholly undesirable”, while accepting the academics’ explanation that the content was prepared collectively and without malicious intent.

As has been argued elsewhere, there is nothing in the book section that could reasonably be called controversial or objectionable – neither any generalisation that the entire judiciary is corrupt, nor any sensational tales of wrongdoing in the courts. The judgment not only has serious implications for teaching, learning, and research on corruption in the Indian judiciary, but also for judicial independence and integrity, as well as the functioning of the Indian democracy. Therefore, this issue requires critical examination.  

            By situating the Court’s judgment within existing scholarship on corruption in the Indian judiciary, we argue that it has broader implications for academic freedom, the teaching of judicial corruption, and the judiciary’s institutional standing regarding democratic legitimacy. It also invisibilizes corruption in the Indian judiciary. It will further hide what Frank Pearce called, in his ground-breaking book with the same name, ‘Crimes of the Powerful’, particularly in an unelected public institution like the higher judiciary.

Pedagogical suitability or judicial institutional standing?

The Court, in its judgment, has raised a question over the potential impact of teaching judicial corruption within a foundational curriculum on the institutional standing of the judiciary. The Court terms the book reckless, irresponsible, contemptuous, and motivated by a discernible agenda to undermine institutional authority and demean the dignity of the judiciary. It condemns the book for conspicuously omitting the judiciary’s substantive contributions to the preservation of India’s democratic fabric, as well as its role in upholding ‘constitutional morality’ and the doctrine of ‘basic structure’ to protect the Indian Constitution. The judgment further states that ‘the book did not delve into any of the transformative initiatives and measures pioneered by this Court towards overhauling legal aid mechanisms and streamlining the ease of access to justice.’

The Indian Supreme Court justifies its intervention not as an attempt to suppress criticism, but as an effort to safeguard the pedagogical integrity of the national curriculum. It emphasises that ‘young students in their formative years are only beginning to navigate the nuances of public life and the constitutional architecture that sustains it. It is fundamentally improper to expose them to a biased narrative that may engender permanent misconceptions at an age when they lack the discernment to appreciate the manifold and onerous responsibilities that the judiciary discharges on a day-to-day basis.’

Although the above arguments might initially seem sound, none is premised on any evidence. Hence, these simply reflect the judges’ opinions. Academic research, curriculum design, and pedagogy are matters of expert judgment and therefore should not fall within the purview of judicial review. The settled principle worldwide is that a court can review only laws passed by the legislature and executive administrative orders. In the situation we are concerned with, the Supreme Court should preferably have formed an expert committee to examine whether there were any serious concerns regarding the chapter or the relevant section. However, the Court has shown overhastiness, which demonstrates its attempt to silence academic inquiry into judicial corruption.      

Invisibilization of Corruption in the Indian Judiciary

The NCERT episode is not the first time the Indian judiciary has intervened to prevent academic work on judicial corruption. According to Professor Subhankar Dam, such intervention has discouraged research on corruption in the Indian judiciary. In his seminal research on corruption in the Indian judiciary titled ‘Why is Judicial Corruption Invisible?’, Dam argues that judicial corruption has become an invisible crime like crimes against humanity, domestic violence, and environmental degradation. Criminological theory identifies seven factors as determinants of the mechanics of criminal invisibility: no knowledge, no statistics, no theory, no research, no control, no politics, and no panic. These features create conditions that keep breaches of criminal law veiled.  

According to Dam, the Indian judiciary has specifically invisibilized its corruption through five primary mechanisms: fluid judicial discretion, lack of criminal data, prosecutorial immunity through monopolisation of investigative process, political impunity, and self-censorship by the media and academia. He cites an interesting example from the Bhopal Gas Tragedy case, where the then Chief Justice of India, RS Pathak, allegedly used the court’s discretionary power to substantially reduce the Indian government’s compensation claim and, in exchange, absolve the Union Carbide Corporation of all civil and criminal charges. Later, Justice Pathak was appointed as a judge of the International Court of Justice (ICJ). The officials of Union Carbide had indirectly confessed to the role of bribery in reducing compensation. The Indian Supreme Court has done very little to collect data on judicial corruption; as a result, there is a lack of data on allegations of corruption in the judiciary. The Court also has acquired the power to prosecute judges and judicial officers; therefore, anti-corruption agencies cannot investigate judicial corruption. Political parties refrain from discussing corruption in the judiciary, particularly at its higher rungs.

Fear of contempt of court has led the media and academia to self-censor coverage of corruption in the judiciary. This is evident in the fact that the media has only rarely conducted investigative reporting on judges’ and judicial officers’ involvement in corruption. Academics have mostly refrained from researching corruption in the judiciary. The country’s funding agencies have avoided funding research projects on judicial corruption. In fact, for a long time, political science textbooks refrained from including a chapter on the judiciary. Dam argues that this whole phenomenon has created an ‘economy of ignorance’ about corruption in the judiciary. However, recent revelations by former Chief Justices of India and former law ministers about judges’ involvement in corruption, along with the discovery of burnt cash on the premises of Delhi High Court judge Yashwant Varma, have raised public awareness of corruption in the Indian judiciary.

Such news has begun to break the ‘economy of ignorance’ about judicial corruption, culminating in increasing efforts to study this phenomenon. Such an attempt has also emerged from the growing focus on the study of ‘crimes of the powerful’ to further contribute to Marxist understandings of the complex relations between crime, law, and the state in the reproduction of the capitalist social order, and because judges are classified as ‘powerful’. While the way the Indian Supreme Court dealt with the NCERT episode seems to undermine judicial accountability and warrants fresh research into corruption in the Indian judiciary, it is praiseworthy that the Court finally noted concerns regarding the textbook content should be examined by a high powered expert committee headed by former Supreme Court judge Indu Malhotra, former Attorney General of India K. K. Venugopal, and Vice-Chancellor of Hemavati  Nandan Bahuguna Garhwal University Prakash Singh, rather than by judicial review. The proposal to constitute this committee was made by the Indian Government, and the Court accepted it. The committee is yet to submit its final report. The government has also promised to involve the National Judicial Academy, Bhopal (NJA) – a training institute comprising academicians that trains senior judges in India, in the preparation of school textbook chapters related to the judiciary. However, the latter might increase the judiciary’s oversight of curriculum development and affect academic freedom, as the CJI is the chairperson of NJA’s Academic and Governing Councils and is also entitled to appoint its director. Nonetheless, the way this episode has unfolded might turn academic research on judicial corruption in India into an ‘endangered and emerging subject area of study’, as academics and funding agencies situated in India may feel deterred. However, external funding agencies providing institutional support could serve as an impetus for safe, risk-free research on judicial corruption in India.

Suggested citation: Arvind Kumar and Shailesh Kumar, The Supreme Court of India and Invisibilization of Judicial Corruption, Int’l J. Const. L. Blog, Jul. 16, 2026, at: http://www.iconnectblog.com/the-supreme-court-of-india-and-invisibilization-of-judicial-corruption/

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