Both Labour and Conservative politicians have framed small-boat refugees as threats, citing war metaphors, security concerns, and inauthenticity of their refugee claims.]]>
Both Labour and Conservative politicians have framed small-boat refugees as threats, citing war metaphors, security concerns, and inauthenticity of their refugee claims.]]>
The latest issue of Global Responsibility to Protect (Vol. 18, nos. 1-2, 2026) is out. Contents include:
The latest issue of The Law and Practice of International Courts and Tribunals (Vol. 24, no. 2, 2025) is out. Contents include: In October 2019, Petróleos de Venezuela, S.A. (PDVSA), a Venezuelan state owned oil and natural gas company, filed a complaint against the trustee and the collateral agent of PDVSA’s bondholders, alleging that certain bonds due in 2020 issued in exchange for the defaulted bonds due in 2017 are null and void ab initio. The main cause of action was that the 2020 bonds had been issued in violation of the provisions of the Venezuelan Constitution. This contention was advanced notwithstanding that the 2020 bonds provide that “all matters arising out of or relating in any whatsoever” to the instruments shall be governed by the law of New York. At the same time, New York’s conflict-of-laws statute contains a rule providing that “[t]he local law of the issuer’s jurisdiction … governs … the validity of a security,” which was discovered and invoked by the (sub-)sovereign debtor as a relatively uncommon ground for the repudiation of its external debt. The federal district court dismissed the plaintiffs’ contention by adopting a narrow reading of the term “validity” within the meaning of New York’s conflict of-laws rule, whereas the Court of Appeals of New York State showed an opposite but nuanced interpretation by concluding that Venezuelan law does govern the validity of the PDVSA’s bonds, but with the repeated caveats that the consequences of eventual invalidity remain to be governed by New York law. The present article examines the governing law of sovereign debt issued allegedly in contravention of the sovereign debtor’s constitutional and budgetary constraints, with special reference to the case brought by PDVSA before New York courts. It aims to identify the role of private international law as a device for global governance by which the application of a sovereign’s budgetary disciplines is ensured to serve the public policy objectives of sovereign debt sustainability.
The International Court of Justice (ICJ) in its landmark Advisory Opinion of 23 July 2025, has established a clear connection between human rights, climate action and due diligence obligations of States under treaty and customary international law. The Court appears to have elevated the concept of due diligence from a relatively soft principle to a powerful standard, against which to assess compliance of international obligations by states. In their turn, States are likely to pass on these obligations to business organisations too through various human rights and environmental due diligence schemes. There are various reporting requirements of the European Union for business organisations through several schemes that already point to a move in this direction. Thus, the impact of this ICJ Advisory Opinion is not limited to States per se. It has the potential to require business organisations to adhere to an international human rights and environmental due diligence standard, against which their own policies and practices can be evaluated. The paper seeks to examine this perspective.
Developments in the Israel-Palestine conflict should be also read in terms of their implications for the internal equilibrium of the OIC.]]>
For much of American history, redistricting was left largely to the discretion of state lawmakers. That changed in the 1960s, when the U.S. Supreme Court entered the political thicket and began developing modern redistricting doctrine. In Baker v. Carr (1962), the Court held that federal courts could hear constitutional challenges to state legislative malapportionment. In Wesberry v. Sanders (1964), it required congressional districts to be drawn so that, as nearly as is practicable, one person’s vote would carry the same weight as another’s. In Reynolds v. Sims (1964), it extended that principle to both houses of bicameral state legislatures, holding that legislators represent people, not trees or acres. Later cases refined the doctrine of population equality, clarified the role of independent redistricting commissions, and developed a substantial body of law governing race and the Voting Rights Act. But while federal law came to regulate population deviations, racial gerrymandering, and minority vote dilution in considerable detail, it never forbade legislatures from revisiting district lines between census cycles.
The law of partisanship took a different turn. In Davis v. Bandemer (1986), the Court held that partisan gerrymandering claims were justiciable under the Equal Protection Clause, but the standard it announced proved unusable. In Vieth v. Jubelirer (2004), a plurality would have abandoned such claims altogether, though Justice Kennedy left open the possibility that a workable standard might emerge. It never did. In Rucho v. Common Cause (2019), the Court finally held that partisan gerrymandering claims present political questions beyond the reach of the federal courts. Federal courts, the Court concluded, have no judicially manageable standard by which to determine how much partisanship in districting is too much. Federal law also does not prohibit mid-decade redistricting as such. In League of United Latin American Citizens v. Perry (2006), the Court held that there is nothing inherently suspect, for federal constitutional purposes, about replacing a valid districting plan mid-decade, even for partisan reasons. State constitutional limitations, however, remain fully controlling as matters of state law. At the same time, Moore v. Harper (2023) confirmed that state courts remain free to enforce state constitutional constraints even when legislatures regulate federal elections. The retreat of federal law from partisan districting has therefore shifted the central question to state constitutional law.
The question is not merely whether a state constitution mentions reapportionment after the census. It is whether the constitution treats redistricting as an ordinary and continuing legislative power or as a temporally bounded constitutional process tied to the decennial census. Put differently, the legality of mid-decade redistricting depends on how a state constitution structures political time. Across the fifty states, the constitutional landscape is not random, but it is highly uneven. Some constitutions expressly prohibit mid-decade redistricting. Others impose timing requirements that effectively confine redistricting to the period following the decennial census. Some permit mid-decade redistricting explicitly or by implication. And many remain silent, leaving the issue largely to legislative discretion subject to general constitutional limits. A useful way to understand the national landscape is through five recurring doctrinal patterns: express prohibition, temporal lock, structural duration, permissive or silent approaches, and hybrid or conditional models.
The clearest constitutional model is the one that bars mid-decade redistricting outright. In these states, constitutional text and judicial interpretation combine to treat redistricting authority as exhausted once validly exercised during a census cycle. Colorado is the leading example. In People ex rel. Salazar v. Davidson (2003), the Colorado Supreme Court held that Article V, Section 44 of the Colorado Constitution prohibits congressional redistricting more than once per decade and stressed that even if federal law permits mid-decade revision, “our state constitution does not allow it.” California long operated under the one-map-per-census regime. In Legislature v. Deukmejian (1983), the California Supreme Court interpreted Article XXI to permit only one valid legislative and congressional plan per decennial census period, effectively precluding mid-decade replacement of an existing map. On November 4, 2025, however, California voters approved Proposition 50, a legislatively referred constitutional amendment that created a temporary exception to that framework. The amendment authorized use of a newly enacted congressional map through the 2030 redistricting cycle, notwithstanding prior constitutional constraints, and required that authority over congressional redistricting revert to the state’s independent commission thereafter. The measure emerged in a broader context of interstate partisan competition over congressional maps, including contemporaneous mid-cycle redistricting efforts in Texas. Wisconsin, too, treats redistricting authority as exhausted once exercised. In State ex rel. Smith v. Zimmerman (1954), the Wisconsin Supreme Court held that enactment of a valid redistricting law exercised and exhausted the legislature’s authority for the intercensal period. These states embody the strongest version of constitutional closure. Representation is not a continuously revisable legislative product. It is a decennial settlement.
A second group of states does not expressly prohibit mid-decade redistricting, but it structures reapportionment so tightly around the census cycle that the implication is much the same. In these states, constitutions require redistricting at a specified time and often direct that districts remain fixed until the next census. North Carolina provides the strongest example. Its constitution stipulates that state legislative districts, once established, “shall remain unaltered until the return of another decennial census,” a restriction that applies to the state House and Senate, not to congressional districts. Virginia likewise ties redistricting authority to a fixed constitutional schedule, requiring reapportionment “in the year 2021 and every ten years thereafter,” though a proposed constitutional amendment set for a statewide referendum on April 21, 2026, would create a temporary exception authorizing the General Assembly to redraw congressional districts before 2031 in limited circumstances and only through October 31, 2030. Illinois belongs in this category as well. Article IV, Section 3 requires legislative redistricting in the year following each federal decennial census year, with a backup commission process if the legislature fails to act.
But the differences within this category matter. Illinois, for example, offers more structural resistance to mid-decade revision than Indiana, yet less than North Carolina. Its constitution makes redistricting a scheduled constitutional event, not a routine legislative act, but it does not expressly prohibit subsequent congressional revision. That is why Illinois presents a stronger textual footing than Indiana for claims that representation is organized on a decennial basis, even though it still falls short of categorical closure. Likewise, Kansas reinforces the temporal-lock logic by expressly tying both congressional and legislative redistricting to the decennial cycle. Article X provides that the legislature shall reapportion both sets of districts at its regular session every tenth year. Unlike Illinois, Kansas expressly links both forms of districting to the census cycle. And unlike Indiana, Kansas couples that timetable with a Bill of Rights provision declaring that “[a]ll political power is inherent in the people.” Yet Kansas also shows the fragility of the model: strong constitutional text does not necessarily produce strong judicial enforcement. In Schwab v. Klapper (2022), the Kansas Supreme Court held partisan-gerrymandering claims nonjusticiable under the state constitution. The category therefore contains both constitutions that strongly structure time and courts that refuse to convert that structure into doctrine.
A third model relies less on timing commands than on durational language. In these states, the constitution does not merely specify when districts must be drawn. It indicates how long a valid plan remains in force. Missouri partially illustrates this pattern, but only with respect to state legislative districts. Article III provides that representatives shall be elected according to existing districts until a new plan is made as provided in that section. That language supports an inference that plans remain valid for a fixed constitutional cycle and may be replaced only through the constitutionally prescribed process. Missouri case law has, at least in this context, treated redistricting as a bounded institutional process rather than a continuously available legislative power. In State ex rel. Teichman v. Carnahan (2012), the Missouri Supreme Court held that a reapportionment body lacked authority to withdraw and replace a validly adopted plan absent constitutional authorization, reinforcing the idea that once a plan is lawfully adopted, it persists until the next constitutionally sanctioned revision.
That durational logic, however, does not extend cleanly to congressional redistricting. In Luther v. Hoskins (2026), the Missouri Supreme Court rejected the argument that Article III, Section 45 limits the legislature to a single redistricting following each decennial census. The court held that the provision imposes a mandatory duty to redistrict upon census certification but does not prohibit additional redistricting at other times. Because the Missouri Constitution is understood as a limitation rather than a grant of legislative power, and because Section 45 contains no express restriction on frequency, the legislature retains plenary authority to redraw congressional districts mid-decade. Missouri therefore exposes a fault line within the durational model itself. Where the constitution specifies not only when redistricting must occur but also the conditions under which a plan remains in force, courts may treat districting as a temporally bounded constitutional settlement. Where, by contrast, the constitution merely imposes a decennial duty without durational language or express limitation, that settlement dissolves into an ongoing legislative power. The result is not constitutional closure but constitutional openness—an authorization for repeated revision within the decade.
At the opposite end of the spectrum are states whose constitutions either explicitly authorize mid-decade redistricting or impose no meaningful temporal constraint at all. These jurisdictions do not merely fail to constitutionalize political time; they affirmatively leave it to ordinary politics. South Carolina represents the clearest form of explicit permissiveness. Article VII, section 13 of its constitution provides that the General Assembly “may at any time” arrange congressional districts as it “deem[s] wise and proper.” This language is not a gap or omission. It is an affirmative grant of continuous authority. The South Carolina Supreme Court has confirmed the full implications of this design, emphasizing that legislative power in the state is plenary and persists unless expressly limited by constitutional text. Redistricting authority, on this view, is not episodic but ongoing: absent a clear prohibition, the legislature retains the power to redraw districts at any time. The court has also declined to impose any judicially enforceable constraint on partisan gerrymandering, holding such claims nonjusticiable in the absence of manageable standards.
Wyoming adopts a similarly permissive posture, though through less explicit language. As the Colorado Supreme Court observed in Salazar, the South Carolina Constitution permits congressional districts to be altered “at any time,” while the Wyoming Constitution, under Article 3, Section 49, authorizes redistricting “from time to time as public convenience may require.” These formulations do not merely fail to prohibit mid-decade redistricting; they affirmatively preserve it as an ongoing legislative power. Many other states adopt an even looser approach by remaining silent on the timing of congressional redistricting altogether. In jurisdictions such as Texas, the absence of any temporal constraint leaves redistricting entirely within the ordinary legislative domain. In these systems, mid-decade redistricting is not constitutionally exceptional but structurally unremarkable—an available instrument of legislative recalibration rather than a deviation from a settled constitutional cycle.
Indiana largely fits within the permissive model, though in a qualified form. Article IV, Section 5 of the Indiana Constitution requires the General Assembly to apportion legislative districts following each decennial census, but it does not clearly prohibit additional redistricting later in the decade, functioning as a trigger rather than a constraint. Both state legislative and congressional districts are enacted through ordinary legislation subject to gubernatorial veto, and if the legislature fails to pass a congressional plan, a five-member backup commission—created by statute and alterable by statute—assumes responsibility. Recent practice underscores the point: the legislature enacted new maps in 2021 through ordinary lawmaking and even attempted a mid-decade congressional redraw in 2025, which failed for political rather than constitutional reasons. At the same time, Indiana is not fully open-textured. Constitutional and statutory provisions tie redistricting to the census cycle, and state authorities have long taken the view that mid-decade redrawing of state legislative districts is impermissible, though this position has not been robustly enforced judicially. Indiana thus occupies an intermediate position: more structured than states that expressly permit redistricting “at any time,” yet lacking the durational or temporal-lock features found in states like Illinois, Kansas, or Missouri. It is, in effect, a trigger-without-closure regime, where redistricting is anchored to the census but not fully constrained by it.
A final group of states restricts mid-decade redistricting while permitting it under constitutionally specified conditions, typically tied to institutional failure or judicial intervention. New York is the clearest example. Following the 2014 amendments, the New York Constitution requires redistricting to occur once per decade through an Independent Redistricting Commission and provides that a duly enacted plan “shall be in force until” the next decennial-census-based plan, unless modified pursuant to court order. This structure does not merely discourage mid-decade redistricting; it forecloses ordinary legislative revision outside the decennial cycle. At the same time, it expressly preserves a limited exception: courts may order changes where a plan is found unlawful. The New York Court of Appeals confirmed this in Hoffmann v. New York State Independent Redistricting Commission (2023), explaining that although districts are generally expected to endure for a decade, the Constitution contemplates mid-cycle revision when required as a judicial remedy.
Ohio is best understood as a doctrinal contrast with both prohibition and permissive models. Unlike states such as New York, where redistricting authority is exhausted once exercised absent judicial intervention, Ohio does not impose a categorical temporal bar. But neither does it resemble permissive regimes like Indiana, where redistricting remains an ordinary legislative power throughout the decade. Instead, Ohio conditions the durability of districting plans on the procedure by which they are enacted. Plans adopted through bipartisan supermajority processes—whether by the legislature or commission—remain in force for the full decennial cycle, while plans adopted without such consensus expire after two general elections (Ohio Const. art. XIX, § 1; art. XI, §§ 1, 8). This temporal limitation has concrete institutional consequences: it formed the basis for the reopening of congressional redistricting ahead of the 2026 cycle when the prior plan lapsed. The result is a distinct doctrinal structure: redistricting authority is continuous in form but conditional in effect. Mid-decade redistricting is neither prohibited nor freely available; it arises only where the Constitution itself has rendered an initial plan temporary. In this respect, Ohio does not constitutionalize time directly, as prohibition regimes do, but indirectly—by tying the temporal stability of districts to the presence or absence of bipartisan agreement.
Pennsylvania’s treatment of congressional redistricting further complicates its otherwise bifurcated structure. Although the state constitution does not impose an explicit temporal bar on mid-decade congressional redistricting, the Pennsylvania Supreme Court has supplied a substantive constraint through the Free and Equal Elections Clause. In League of Women Voters of Pennsylvania v. Commonwealth (Pa. 2018), the court held that the 2011 congressional map constituted an unconstitutional partisan gerrymander and invalidated it on state constitutional grounds. When the political branches failed to agree on a remedial plan, the court adopted its own map, drawn with the assistance of a court-appointed expert. That intervention is doctrinally significant for two reasons. First, it confirms that, notwithstanding federal nonjusticiability after Rucho, state courts remain free to enforce state constitutional limits on partisan gerrymandering. Second, it shows that even in the absence of an express temporal prohibition, judicially enforceable rights—here grounded in the Declaration of Rights—can functionally constrain mid-decade redistricting by subjecting legislative maps to invalidation and replacement. Pennsylvania thus illustrates a hybrid form of constraint: formal temporal closure governs state legislative districts, while congressional districting remains textually open but substantively bounded by judicial enforcement of constitutional equality guarantees.
These hybrid systems share a common doctrinal logic. Decennial redistricting remains the baseline, but stability is not absolute; it is conditional. Districting plans endure only if they satisfy the Constitution’s prescribed procedures—most notably bipartisan agreement or judicial approval. Where those conditions are not met, mid-decade revision follows as a matter of constitutional design, not legislative discretion. The result is a regime that rejects both fixed temporal closure and continuous legislative control, substituting instead a system in which the timing of redistricting turns on the integrity or failure of the constitutional process itself.
Modern redistricting doctrine defines the boundaries of the problem without resolving it. Federal law rigorously polices population equality, racial gerrymandering, and vote dilution, but it neither supplies a standard for partisan excess after Rucho v. Common Cause nor prohibits mid-decade redistricting as such after League of United Latin American Citizens v. Perry. Mid-decade redistricting is therefore not presumptively unconstitutional under federal law. Its legality turns instead on whether a particular plan violates more specific constitutional commands—most importantly those found in state constitutions governing equality, electoral structure, and the timing of reapportionment.
The center of gravity has thus shifted decisively to the states. Across the fifty states, constitutional approaches to redistricting fall into recognizable doctrinal patterns. Some constitutions impose express prohibitions, treating redistricting authority as exhausted once exercised. Others establish temporal locks that effectively confine redistricting to the post-census moment. A third group relies on durational or structural inference, though, as Missouri demonstrates, such inferences can fracture across institutional domains. At the opposite end are permissive or silent regimes, in which redistricting remains an ordinary incident of legislative power. Between these poles lie hybrid systems that condition stability on procedural compliance and allow mid-decade revision only upon institutional failure or judicial intervention.
The underlying question is not simply one of doctrine, but of constitutional design. State constitutions allocate authority over time as well as over institutions. Some fix representation within a decennial framework and treat it as a temporally bounded settlement. Others leave it open to revision, subject only to general constraints. The difference is decisive. Where constitutions bind redistricting to the census cycle, mid-decade revision appears as a deviation from a settled order. Where they do not, it becomes an available instrument of ordinary politics.
Suggested citation: Alemayehu Fentaw Weldemariam, U.S. Federal and State Constitutional Limits on Mid-Decade Redistricting, Int’l J. Const. L. Blog, Apr. 18, 2026, at: http://www.iconnectblog.com/u-s-federal-and-state-constitutional-limits-on-mid-decade-redistricting/
The post U.S. Federal and State Constitutional Limits on Mid-Decade Redistricting appeared first on www.iconnectblog.com.
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The story of globalisation has come full circle, not as the transcendence of geopolitics, but as the return of power at its very core.]]>
Authoritarian regimes consolidate power not only through coercion, but by monopolising narrative and memory.]]>
Kazakhstan, a country situated in Central Asia, has recently adopted a new Constitution that will make sweeping and significant changes to its constitutional system. In a historic referendum conducted on March 15, 2026, with a 73% voter turnout, the Kazakh people opted – with an overwhelming majority of 87% – to undergo a vital transition in order to create a ‘Just Kazakhstan’. The new Constitution is set to come into effect on July 1, 2026.
Just Kazakhstan’ is a wider political project entailing President Kassym-Jomart Tokayev’s vision of creating a just State. For this purpose, President Tokayev has, over the years, made several substantial changes to the constitutional text to remove the centralising vestiges of the super- presidential system espoused by former Kazakh President Nursultan Nazarbayev. Thus, in 2022, through a slew of constitutional amendments, Nazarbayev’s special status as the ‘Leader of the Nation’ (also known as ‘Elbasy’)— which included lifetime immunity from criminal prosecution, the authority to exercise a veto over key policy decisions even after demitting office, along with lifelong chairmanship of the Security Council codified in the Constitution— was abolished. Further, the principle of party neutrality for the President was introduced, the Lower House was strengthened through a mixed electoral system where independent candidates could participate in elections, and a Constitutional Court was established, broadly in line with the framework contemplated under the 1993 Constitution, replacing the earlier Constitutional Council. All these measures gestured towards a democratic transition under the banner of Just Kazakhstan, in contrast to earlier constitutional amendments, such as the 2007 amendment that accorded the aforesaid special status upon President Nazarbayev, entailed calcification of presidential dominance. In this context, Kazakhstan’s constitutional history offers an opportune vantage point from which to assess the evolving relevance of the Just Kazakhstan project.
On January 28, 1993, Kazakhstan adopted its first Constitution. This document represented a compromise between competing factions and was replete with contradictions. Following the collapse of the Soviet Union, Kazakhstan’s constitution-making process involved two primary groups: parliamentarians from the Supreme Soviet (the erstwhile highest lawmaking body) and reformists led by President Nazarbayev. The parliamentarians advocated a constitutional structure that ensured legislative supremacy, whereas the reformists favoured a presidential republic with a strong executive that was adequately equipped to address social unrest and economic stagnation. This tension resulted in a constitution fraught with internal contradictions. It established a Supreme Council, a unicameral legislative body, which functioned as an oversight mechanism over executive authority and was entrusted with determining internal as well as external policies of the State. Simultaneously, the Constitution declared the President to be the highest executive and administrative authority. In a presidential system, the spheres of functioning between the executive and legislature are typically well-defined: the executive formulates policies, while the legislature enacts laws. The conflation of these roles under the 1993 constitutional framework conspicuously undermined the separation of powers doctrine, effectively allowing the legislature to contradict executive policies and vice versa. Moreover, any presidential veto over a legislation could be overridden by a simple parliamentary majority. These conflicting features of the 1993 Constitution generated significant institutional friction.
However, events took a different turn when the Constitutional Court created under the 1993 Constitution, declared elections to the Supreme Council invalid on the grounds of violating the ‘one person, one vote’ principle, thereby effectively enabling the President to govern the country through decrees without legislative oversight. This event acted as a catalyst for the adoption of the 1995 Constitution under the stewardship of President Nazarbayev, who saw an opportunity to entrench presidential authority and dampen institutional independence of the Supreme Council and the Constitutional Court. Turning into an indispensable legal engine for consolidating power, the 1995 Constitution carried some profound changes. To enervate the Supreme Council, it distributed legislative powers between two parliamentary chambers – the Senate and the Mazhilis, authorised the President to maintain a loyalist majority in the Senate alongside an option to dissolve an ‘uncooperative’ parliament— a new constitutional provision previously unavailable. Further, the Constitutional Court of 1993 was replaced with a Constitutional Council, a quasi- judicial body whose decisions were susceptible to presidential veto.
Overall, the architecture of the 1995 Constitution concretised presidential hegemony and discouraged institutional checks. The Just Kazakhstan vision, therefore, is a project to unravel these pervasive authoritarian tendencies by adopting yet another Constitution. However, upon a substantive analysis of the constitutional changes proposed in the 2026 Constitution, this post argues that the spectre of concentration of executive power in the hands of the President again looms large.
The 2026 Constitution embodies some far-reaching and important changes, reshaping the constitutional landscape of Kazakhstan. In a stark departure from the previous bicameral parliamentary system, the Constitution introduces a unicameral legislative body called the Kurultai, abolishing the Senate (Upper House). Now consisting of 145 deputies elected through proportional representation, the Kurultai will be the only elected legislative chamber representing the people’s voice and is entrusted with the task of lawmaking.
As a countervailing institutional mechanism against the Kurultai, the 2026 Constitution envisages the creation of a new supreme advisory body called the People’s Council (Halyk Kenesi) which is a seminal addition in the new constitutional structure. It will be the supreme consultative representative body comprising 126 members based on the so-called ‘42-formula’, appointed by the President. This formula is aimed at accommodating 42 representatives each from ethnocultural organisations, local governments (Maslikhats) and civil society. Interestingly, it is contemplated as a ‘broad mirror of society’, encapsulating a wide spectrum of social groups. This People’s Council is empowered to submit new legislative bills for consideration to the Kurultai, propose nationwide referendums to the President, and moreover, play a socio- political role in fostering national values and ethnic harmony, alongside acting as a custodian of the ‘Just Kazakhstan’ principle.
The inclusion of a People’s Council in the new institutional architecture is startling. This Council is conceived as a parallel channel for proposing legislative changes whenever the parliament is unable or unwilling to cooperate with the President and, through a prescribed legal process, it can also seek the public’s opinion by initiating referendums, thereby effectively undermining the democratic authority of the elected Parliament. This institutional reality equips the President with coercive tools to pressurise the Kurultai to enact laws favourable to the executive as referendums initiated by the People’s Council can be branded as genuine demands from the society that cannot be disregarded. Consequently, a mechanism for constitutional subterfuge is created, where influence of an unelected body serves to obscure the independent judgment of an elected legislature. In essence, the custodians of the ‘Just Kazakhstan’ principle appears to militate against its foundational precept of creating a strong Parliament.
One of the central pillars of ‘Just Kazakhstan’ projects has been the need to resuscitate judicial independence. Judicial independence is the backbone of any vibrant democratic set-up as it produces a definitive institutional check against unrestrained executive power. The events of 1994 recalled earlier provided an impetus to replace the Constitutional Court with a toothless quasi- judicial body closed to the public— the Constitutional Council. The 2022 reforms resurrected the Constitutional Court from oblivion, such that, after 30 years, the Kazakh people would become empowered to challenge the constitutionality of laws. However, the 2026 Constitution blemishes this achievement by making the appointments and dismissal of judges the sole prerogative of the President without any concrete institutional check. Such control over the final arbiters of executive action flagrantly undermines judicial independence.
Correspondingly, one of the most controversial sets of changes pertains to appointments to key constitutional posts such as the Vice President, judges of the Constitutional Court, Chairperson of the Kurultai, the head of the Central Election Commission, and the chair of the Supreme Court, among others, which now fall within the exclusive domain of presidential discretion subject to confirmation by the Kurultai— a process that appears largely formalistic. If a candidate proposed by the President is rejected by the Kurultai twice, then the President is legally empowered to take the drastic step of dissolving the Kurultai and calling for fresh elections. This model risks reducing the Kurultai to a rubber stamp, as it effectively makes parliamentary consent a mere formality, with the constant threat of dissolution prevailing in case of dissent.
With only formalistic parliamentary approval required, the President is virtually at liberty to appoint political loyalists to key constitutional offices, fettering the independence of fourth- branch institutions. In modern constitutional design, the neutrality of fourth- branch institutions such as the Election Commission plays a critical role in preserving the processes of democracy. Unfortunately, the Kazakh constitutional system inverts this crucial safeguard by postulating a mechanism for institutional capture by the President through appointment of political loyalists to key constitutional posts, thereby anchoring a regime that centralises executive power.
The constitutional reforms introduced in 2026 mirror the course taken in 1995— an exercise in consolidating presidential dominance. The motivation for these reforms is nominally located in the necessity to defenestrate the tendencies of super- presidentialism and to transition towards a democratic presidential republic. Conversely, far removed from the demagogic rhetoric, the constitutional text fortifies and entrenches presidential dominance by deliberate structural and design faults under the ostentatious veneer of democratisation.
The centralising drift manifests in the weakening of parliament by reducing it to a single legislative chamber and creating a parallel unelected echo chamber with significant powers, hampering judicial independence and concocting a mechanism for institutional capture of fourth-branch institutions like the Election Commission. These examples point to the inherent risk of authoritarianism embedded in the Constitution of 2026.
The recent constitutional developments in Kazakhstan gesture towards a nefarious turn to executive dominance, undermining rather than buttressing the principles of democratic governance. The stakes extend beyond Kazakhstan. For many transitional democracies like Bangladesh and Armenia, constitutional reform often carries the promise of institutional renewal. But when reform is driven by centralising imperatives, there is a risk of entrenching precisely the pathologies it purports to cure. Kazakhstan’s new Constitution serves as a cautionary example of how democratic rhetoric can coexist with—and even facilitate—the concentration of power.
If the trajectory set by this constitutional order endures, the vision of a ‘Just Kazakhstan’ may ultimately be defined less by the opportunity of democratisation and more by the calibrated consolidation of power.
Suggested citation: Kaustubh Tiwari, Kazakhstan’s New Constitution and the Rise and Rise of Authoritarianism, Int’l J. Const. L. Blog, Apr. 17, 2026, at: http://www.iconnectblog.com/kazakhstan’s-new-constitution-and-the-rise-and-rise-of-authoritarianism/
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]]>Pursuant to this modus operandi, almost a fifth of Lebanon’s population (more than one million people) has already been displaced. The ever-expanding ‘evacuation’ zone in the south and east of Lebanon now covers approximately 1,500 square kilometres, roughly 14% of the country’s territory. Affecting more than 100 towns and villages, the humanitarian consequences are devastating. In addition to the harm associated with being uprooted from one’s home and community, Israeli bombardment of infrastructure, including roads and bridges, has rendered relocation hazardous. Those who leave may have nothing to return to in view of Israel’s extensive destruction of civilian property. Overcrowding in collective shelters and lack of safe alternative accommodation exacerbate the risk of harm. A similar fate was inflicted on civilians in Gaza, where almost the entire population was repeatedly induced to displace.
Despite the significant humanitarian toll, Israel presents its relocation orders in humanitarian garb, as effective advance warnings meant to reduce civilian casualties in subsequent strikes. For example, on 2 March 2026, Israeli defence forces ordered residents of more than 50 villages in Lebanon to leave their homes ‘[f]or your safety’.
In our view, relocation orders that cause mass displacement and suffering of civilians as documented in Lebanon and Gaza cannot be regarded as a lawful method by which a party to a conflict can discharge its IHL obligations—even when it is engaging an adversary operating from a densely populated area. Rather, this emerging practice entails a misappropriation of humanitarian principles that threatens to undermine the integrity and normative force of IHL as a protective framework. While IHL in some cases permits or even requires a party to relocate civilians to protect them against the dangers of hostilities, the harm caused by involuntary displacement must also be accounted for when assessing the legality of the different courses of action available to parties to a conflict. Israel presents a deceptively binary choice: mass displacement or mass civilian casualties. Whereas faithful application of IHL in many cases permits neither and requires consideration of other, less harmful options.
This post is a siren call for countering misappropriation of humanitarian principles by improving the conceptual clarity of the prohibition of forcible displacement and its relationship with the IHL rules on the conduct of hostilities (a more in-depth analysis is available here).
The prohibition of forcible displacement under ‘Geneva Law’
Article 49 of the Fourth Geneva Convention of 1949 (GCIV), reflecting customary international law, prohibits the forcible transfer or deportation of protected persons from ‘occupied territory’ (with a strictly circumscribed exception, discussed below).
The reference to ‘occupied territory’ suggests that the prohibition only applies when displacement occurs in or from territory that is ‘actually placed under the authority of the hostile army’ and only extends to territory ‘where such authority has been established and can be exercised’ (Article 42 Hague Regulations 1907).
Conditioning the prohibition of forcible displacement in international armed conflict on (often controversial) determinations of whether a State is an occupying power is difficult to justify. Indeed, commentators have expressed diverging views regarding the classification of the conflicts between Israel and, respectively, Hamas and Hezbollah (e.g., here, here and here).
There is no evident reason, based on the logic of IHL, why the prohibition of forcible displacement should only apply to a party in effective control of foreign territory. After all, capacity to cause (and prevent) forcible displacement is not contingent on territorial control. Indeed, recognition by international criminal tribunals that forcible displacement can be achieved by means of warfare—which do not presuppose territorial control—suggests that the applicability of the prohibition should not be conditioned on effective control over territory (see here, here, and here). Moreover, in non-international armed conflict, the treaty and customary IHL versions of the prohibition do not set any explicit requirement of effective control over territory or persons (Article 17 Additional Protocol II, customary international law r 129B), and the ICC has confirmed that territorial control is not necessary for a violation of the prohibition applicable in non-international armed conflict to materialise. The relevance of control over territory or persons was also downplayed by the ICTY in interpreting forcible displacement as a crime against humanity (see e.g., here).
As a matter of de lege ferenda, a functional test to determine the applicability of the prohibition of forcible displacement, based on a party’s capacity to cause the kind of harm that the prohibition seeks to protect against, would avoid the seeming arbitrariness of the same conduct being prohibited or permitted depending on, at times, disputed classifications of a conflict situation.
The prohibition of forcible displacement notwithstanding, during hostilities—such as in Lebanon—the removal of civilians from affected areas may be permitted or even required under the IHL rules regulating the conduct of hostilities, notably the principle of precautions. In this regard, it should be recalled that the prohibition of forcible displacement is not absolute: temporary evacuation of protected persons in case ‘the security of the population’ or ‘imperative military reasons’ so demand is permitted by its own terms (Article 49 GCIV, Article 17 Additional Protocol II, customary international law r 129).
It has been suggested that if a warning for civilians to leave an area is followed by an attack that places those in the area in danger, their relocation will necessarily be justified by reference to their security (e.g. Schmitt 2023). However, this would imply that a party can render displacement lawful simply by making it dangerous for civilians to stay in place. This interpretation would undermine the very essence of the prohibition and must be qualified.
Arguably, if the military operation or attack in relation to which the instruction to relocate is issued is unlawful, or would be unlawful were it not for the removal of the civilians—for example because it would be indiscriminate or cause excessive civilian harm—then the relocation cannot be justified by reference to the security of the affected persons. In this scenario, the danger that civilians seek to avoid by relocating is an unlawful attack that should be suspended or cancelled (Article 57(2)(b) Additional Protocol I, customary international law r 19). Moreover, warnings issued as an ultimatum to civilians, threatening harm unless they leave their home, could amount to ‘acts or threats of violence the primary purpose of which is to spread terror among the civilian population’, which are strictly prohibited under IHL (Article 51(2) Additional Protocol I, Article 13(2) Additional Protocol II, customary international law r 2).
This reading is consistent with the precautionary duty to give advance warnings, as that duty concerns attacks directed against specific and lawful targets. Issuing warnings cannot render an otherwise unlawful attack lawful under the rules on the conduct of hostilities and does not absolve the party of responsibility to ensure that the planned attack complies with the principles of distinction and proportionality. Civilians are under no obligation to heed a warning, and they remain protected against attack and excessive harm if they refuse to leave. An attack may therefore not be planned or carried out on the presumption that civilians will leave their homes, and protection must, in any event, also be afforded to civilian objects.
Lawful evacuations are subject to additional conditions under Article 49 GCIV and customary IHL. These conditions, which aim to ensure the safety and health of relocated persons, to avoid the separation of families, and prevent the relocation of persons outside the national or occupied territory, are no less relevant in situations of hostilities; as demonstrated by the acute protection needs generated by Israeli relocation orders in Lebanon and Gaza.
Restrictions derived from the rules on the conduct of hostilities
In addition to limitations arising from the prohibition on forcible displacement, the IHL rules governing the conduct of hostilities also serve to restrict practices causing displacement. This additional normative restraint may serve to fill the apparent protection gap identified in cases where a party to an international armed conflict causes the displacement of civilians in the (non-occupied) territory of an opposing party.
In considering how the rules on the conduct of hostilities might address actions inducing civilians to displace, it should be recalled that these rules seek to attain a balance between military necessity and humanity, and should be interpreted and applied accordingly. Striking the right balance can be challenging, but not when one of the values is altogether missing from the equation: harming civilians when this does not have a legitimate military (or humanitarian) purpose is undoubtedly prohibited (see UK Manual of the Law of Armed Conflict, para. 2.4). Accordingly, the IHL rules on the conduct of hostilities preclude the displacement of civilians for an unlawful purpose, such as ethnic cleansing, annexation, to facilitate attacks on civilian objects, or to collectively punish or terrorise the civilian population.
In cases where there are legitimate military considerations at play, the rules establishing general protection from harm in ‘military operations’ as well as the more specific rules regulating ‘attacks’ are instructive.
‘Military operations’ encompass all ‘the movements, manoeuvres and other action taken by the armed forces with a view to fighting’ (2025 Commentary to GCIV, para 3370), a broad category which should be understood to include relocation directives issued in advance of attacks. The relevant rules provide that civilians shall enjoy ‘general protection against dangers arising from military operations’ and that ‘constant care shall be taken to spare the civilian population, civilians and civilian objects’. Parties to a conflict conducting military operations are thus required ‘to constantly seek to mitigate feasibly avoidable harm or suffering to civilians’ (here at p. 230). This means that they must do more than simply seek out a less harmful alternative to their preferred course of action—such as warning civilians to relocate from the area they plan to attack—and must endeavour to further mitigate any feasibly avoidable harm which that alternative might cause. Accordingly, if a party can spare civilians from the harmful effects of displacement without compromising its military operations at all (including by limiting its scope and duration), then it must do so.
In the (likely) case that sparing civilians from such harmful effects would require the party to implement measures that come at a certain cost to military utility, the more detailed rules regulating ‘attacks’ are helpful either because they apply directly, or by way of analogy.
While it is highly doubtful that warnings and other measures inducing civilians to displace in hostilities constitute attacks in themselves, these measures are closely linked to attacks. Their harmful outcomes are likely to include serious civilian harm of the type that the rules on attack seek to mitigate, and they result directly and foreseeably from the displacements, which were intentionally brought about. There is therefore good reason to insist that the attacking party must endeavour to mitigate these foreseeable harms just as it is required to mitigate the incidental harmful effects of the related attacks.
Application of the rules regulating attack, including the foundational principles of distinction and proportionality and the duty to take precautions in attack, leads to the conclusion that the attacking party must assess whether the harm that the displacement can be expected to cause to civilians (along with the harm expected from the attacks themselves) is necessary to attain the legitimate military advantage being pursued or if, instead, the harm could be further mitigated without compromising the military advantage.
Unnecessary harm, meaning harm that exceeds the level necessary to attain the military advantage being pursued, must be avoided (as explained here, drawing on API Articles 57(2)(a)(ii) and 57(3) Additional Protocol Iand customary internationa llaw rr 17, 21). While effective advance warnings may go some way towards avoiding unnecessary harm even while causing displacement, if the same military advantage can be achieved through still less harmful means, such as implementing the conditions for lawful evacuation, these must be implemented.
Disproportionate harm too must be avoided. To that end, the attacking party must further ensure that the harm expected from the displacement (and the attacks themselves) is not excessive in relation to the military advantage anticipated from the attacks.
Implementing these requirements in the conditions that prevail during hostilities can be difficult. The point is not to suggest that belligerents must engage in an impossible or impractical exercise. Rather, we argue that the foreseeable harm that civilians are likely to incur when they are induced to displace from an area in advance of an attack is subject to limitations. In particular, it must be avoided when it is unnecessary, because the military advantage sought can feasibly be achieved through less harmful means, or when it is excessive in relation to the military advantage in question.
]]>ABOUT THE EVENT
The ESIL Interest group on Social Sciences and International Law are organising with the ASIL International Law and Social Sciences Interest Group of the American Society of International a virtual Social Sciences speakers series.
The next isntallment will feature:
Please click HERE for more details and to register to attend the event.
The test posed by the Iran war is not Tehran’s character, it is in whether governments still believe that law binds friends as well as enemies.]]>
—Atul Kumar Dubey, Research Scholar at the Rajiv Gandhi School of Intellectual Property Law, Indian Institute of Technology Kharagpur, West Bengal, India, and Uday Shankar, Professor of Law at the Rajiv Gandhi School of Intellectual Property Law, Indian Institute of Technology Kharagpur, West Bengal, India.
Caste-based discrimination constitutes an enduring structural feature of Indian society and continues to shape access to, power, and vulnerability within the higher educational institutions (hereinafter “HEIs”) in the country. Far from being confined to isolated incidents, such discrimination manifests in the everyday experience of campus life through exclusion and humiliation. In response to this entrenched pattern of discrimination, the Supreme Court in Abeda Salim Tadvi v. Union of India directed the University Grants Commission (hereinafter “UGC”) to enact new regulations to address these systematic educational fault lines. Against this backdrop, the UGC (Promotion of Equity in Higher Education) Regulations 2026 (hereinafter “Regulations”) seek to address systemic prejudice in HEIs and advance the ideals of “full equity and inclusion”, in alignment with the objective of India’s National Education Policy 2020. To address entrenched hierarchies through an interventionist framework, the Regulations define “caste-based discrimination” and “discrimination”. The Regulations also impose mandatory obligations to establish institution-wide Equal Opportunity Centres, helplines, and grievance redressal mechanisms. The Regulations require formal undertakings of non-discrimination from faculty, staff, and students, while also introducing UGC-monitored sanctions for institutional non-compliance. Almost immediately, the Regulations attracted constitutional contestation, culminating in an interim stay thereof by the Supreme Court in Mritunjay Tiwari v. Union of India. The Court flagged the “possibility of misuse” and the Regulations’ susceptibility to “ambiguities”. Taken together, the promulgation of the Regulations and the subsequent order staying their operation have ignited a dense cluster of constitutional questions. The analysis in this post will therefore interrogate whether the definitional choices embedded in the Regulations withstand constitutional scrutiny, including challenges grounded in under-inclusiveness.
We suggest that the Regulations’ asymmetrical focus on historically disadvantaged groups can be defended against formalistic critiques, situating these within Sandra Fredman’s four-dimensional model of substantive equality. Further, we contend that the Regulations however suffer from under-inclusiveness under Article 14 of the Indian Constitution, as they narrow the scope of protected groups and exclude similarly situated vulnerabilities.
The core legal controversy surrounding the Regulations lies in their definition of caste-based discrimination under clause 3(1)(c). That clause defines such discrimination narrowly, especially as an act committed “only on the basis of” caste or tribe against the members of the scheduled castes, scheduled tribes and other backward classes. Critics have argued that the definition creates an “asymmetrical unidirectional approach” and “hierarchy of victimhood” based on an “constitutionally impermissible bias” by excluding the non-reserved category – those who do not fall within groups recognised for affirmative action under the Indian Constitution such as scheduled castes, scheduled tribes and other backward classes – within its protective ambit. However, this critique proceeds on a formalistic conception that is inconsistent with settled understandings of equality. In this regard, professor Sandra Fredman’s influential formulation of a four-dimensional substantive framework provides an appropriate lens. The four-dimensional model requires redressing socio-economic disadvantages, addressing stigma and stereotyping, enhancing the voice and participation of excluded groups, accommodating differences, and achieving structural change. She emphasised that substantive equality is “expressly asymmetric” as it legitimately prioritises and focuses on those who have been disadvantaged and excluded, and not on preserving symmetry with historically privileged groups:
The four-dimensional conception of substantive equality is helpful in addressing these difficulties. As a start, it is expressly asymmetric. The right to equality aims to redress disadvantage, not simply to remove racial or gender ascriptions. This asymmetry means that equality is not necessarily breached by measures which specifically use race or gender as a means of distributing benefits and burdens. Indeed, provided that they aim to benefit the subordinated group, specific measures based on race or gender may be necessary to achieve substantive equality. Thus, whereas formal equality would regard affirmative action as a breach of equality, substantive equality sees such programmes as a means to achieve equality. At the same time, affirmative action should also aim to achieve the other dimensions of substantive equality.
The Indian equality jurisprudence has also long rejected the notion of abstract or arithmetical equality and allows differential measures aimed at addressing systemic and structural disadvantages. In his seminal work, scholar Gautam Bhatia demonstrates that the Indian approach has moved away from colour-blind equality towards a group-subordination view of equality. This situates the Indian approach to equality within a broader constitutional commitment to redress historical injustice through corrective and affirmative measures, as systemic barriers do not operate symmetrically across social groups.
Situating the Regulations within Fredman’s model, we suggest that they operate as a transformative, asymmetrical framework. Fredman’s first dimension requires measures to redress disadvantage. The Regulations seek to “eradicate discrimination only on the basis of entrenched hierarchies and promote “full equity and inclusion”. It identifies scheduled castes, scheduled tribes, socially and educationally backward classes, economically weaker sections, and persons with disabilities as groups facing systemic exclusion. As Fredman argues, substantive equality cannot be achieved merely by removing barriers; it requires positive measures that compensate for historically accumulated disadvantage. However, the Regulations exhibit a procedural reorientation, in that they shift the anti-discrimination framework to an institutional grievance redressal mechanism such as Equal Opportunity Centres, Equity Committees and time bound complaint processes. However, they stop short of institutionalising material redress such as compensation, restitution or enforceable individual relief. The second dimension focuses on the recognition of harm, stigma, stereotype and prejudice. In this respect, the Regulations adopt a broad definition of discrimination and include acts that perpetuate prejudice. By mandating structural tools such as helplines, equity squads, mandatory anti-discrimination undertakings, and by recognising caste-based discrimination, gender bias, and disability bias, the Regulation aligns with Fredman’s concept of equality that actively engages with “social meaning”. Fredman’s third dimension demands that voice is enhanced as well as participation of marginalised groups in political and other processes to foster agency and inclusion. The Regulations advance this through mandatory representation of disadvantaged groups in Equal Opportunity Centres under clause 5 and the appointment of Equity Ambassadors under clause 5(12). The fourth dimension requires accommodating difference and achieving structural change, in Fredman’s account, “the structural and institutional cause of exclusion needs to be changed”. The Regulations are ambitiously structured, most notably in their creation of a multi-tiered institutional architecture comprising Equal Opportunity Centres, Equity Committees, helplines, and monitoring mechanisms. However, as Fredman puts it, the fourth dimension should include a “broad-based and radical strategy” that refashions institutions rather than just redistributive positions. In large part, the Regulations are complaint-driven and compliance-oriented, as the preference scheme alters the composition of the existing structure without transforming it. With HEIs lacking staff, funds, and expertise, the fourth dimension cannot be achieved solely through legal rules, without shifts in organisational structures.
In conclusion, we submit that the Regulations represent an attempt to realise the four-dimensional substantive equality framework; however, they remain a procedural and compliance-focused effort.
Under-inclusive classification arises when a law or policy includes within its scope some persons or situations that are linked to the legislative objective, but excludes other persons who are similarly situated in relation to that objective. In equality terms, the State furthers a legitimate aim for some, while denying the same benefit to others who are subject to experiencing the same mischief. In State of Gujarat v. Ambica Mills, the Indian Supreme Court discussed under-inclusiveness in the following terms:
A classification is under-inclusive when all who are included in the class are tainted with the mischief but there are others also tainted whom the classification does not include. In other words, a classification is bad as underinclusive when a State benefits or burdens persons in a manner that furthers a legitimate purpose but does not confer the same benefit or place the same burden on others who are similarly situated. [para 55]
Building on this, the objective of the Regulations is to eradicate discrimination and promote equity in the HEIs for historically disadvantaged groups. However, the operative clauses, particularly the definition of discrimination and regulatory design, do not extend protection to all. Clause 3(e) defines discrimination as unfair, differential, or biased treatment or any such act on the grounds of religion, race, caste, gender, place of birth, disability, or any of them. From an under-inclusiveness perspective, the phrase “only of” provides an exhaustive list and singles out broader categories of structural disadvantages. The Regulations exclude economic vulnerability, language and ethnic classification from their substantive ambit. Consequently, the classification between protected grounds (religion, race, caste, gender, place of birth, disability) and unprotected grounds (language, ethnicity and economic vulnerability) renders the Regulations under-inclusive. Each of the groups bears a direct and intelligible nexus to the stated goal of eradicating discrimination in HEIs. Therefore, under Article 14 of the Indian Constitution, there is a law whose object is to address discrimination in HEIs but fails to acknowledge other forms of discrimination.
The under-inclusive definition is further exposed by reading the duties of HEIs to promote equity under clause 4 and the measures to promote equity under clause 7. Both clauses refer to the broad, open-textured phrase “discrimination” or “any form of discrimination”; however, the definitional clause adopts a narrow, closed enumeration of protected groups, making it under-inclusive of unprotected groups. Therefore, this creates a regulatory disjunction where many forms of discrimination are justiciable without a formal definitional framework.
The post has argued that the recently adopted Regulations, insofar as these adopt an asymmetrical focus on historically marginalised groups, are consistent with the Constitution’s substantive equality framework. The Regulations can be understood as a legitimate regulatory intervention aimed at redressing structural disadvantage, recognising stigma and enhancing participatory inclusion. However, the Regulations suffer from a constitutionally significant defect of under-inclusiveness. By relying on an exhaustive enumeration of protected grounds while simultaneously imposing broad obligations on HEIs to eliminate “any form of discrimination”, the framework generates an internal inconsistency and disjunction. The exclusion of language, ethnicity, and economic vulnerability from the definitional ambit weakens the Regulations on equality grounds. However, this under-inclusiveness does not undermine the legitimacy of caste-centered protections.
Suggested citation: Atul Kumar Dubey and Uday Shankar, Eliminating Caste Discrimination in India’s Higher Education: A Constitutional Dilemma under the 2026 Regulations, Int’l J. Const. L. Blog, Apr. 16, 2026, at: http://www.iconnectblog.com/eliminating-caste-discrimination-in-indias-higher-education-a-constitutional-dilemma-under-the-2026-regulations/
The post Eliminating Caste Discrimination in India’s Higher Education: A Constitutional Dilemma under the 2026 Regulations appeared first on www.iconnectblog.com.
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If Cheng Li-wun were to secure any form of commitment from the CCP, it would almost certainly come at the cost of diluting Taiwan’s will to defend itself.]]>
Ecocide: Criminalising Serious Harm against the Environment explores the concept of ecocide and critically assesses how the criminalisation of serious harm against the environment fits within international criminal law broadly construed. It aims to assist in fleshing out crucial parameters in the lead-up to the potential inclusion of the fifth core international crime in the Rome Statute of the International Criminal Court (ICC), as well as in relation to efforts to criminalise ecocide at the national level, both of which have gained unprecedented momentum in recent times.
To this end, the volume’s chapters address four key questions: what constitutes ecocide, how can it be prosecuted, where should it be prosecuted, and who are its perpetrators and victims? In addition to more practice-focused chapters, including case studies on the Netherlands and Ukraine, the book analyses and challenges fundamental conceptual issues, including the binary opposition between ‘anthropocentrism’ and ‘ecocentrism’ in the ecocide discourse. The reader is confronted with and forced to reflect on intriguing questions such as: is it fair to only prosecute representatives of large business corporations and state officials, while letting consumers of polluting products off the hook? And does the legal framework of the ICC allow for the recognition of nonhumans, such as the environment, as victims of ecocide?
The latest issue of the Swiss Review of International and European Law (2026, no. 1) is out. Contents include: 
The latest issue of the Yale Journal of International Law (Vol. 51, no. 1, 2026) is out. Contents include: 
The latest issue of the Military Law and the Law of War Review / Revue de Droit Militaire et de Droit de la Guerre (Vol. 63, no. 2, 2025) is out. Contents include: 
The latest issue of the Review of International Organizations (Vol. 21, no. 1, March 2026) is out. Contents include: 
Over the past decade, constitutional scholarship has increasingly shifted from diagnosing the collapse of constitutional democracies to examining the endurance of constitutional orders under sustained stress. Rather than focusing solely on coups or formal ruptures, scholars have explored how constitutional democracies persist under sustained stress. The language of democratic backsliding, institutional erosion, and “constitutional resilience” has become the new standard for contemporary debate.
This shift has generated vital insights, yet it rests on a fragile assumption. Many resilience frameworks implicitly assume a minimum baseline of institutional trust—an environment where political actors, even under conditions of polarizations, retain some commitment to mutual restraint.
But what if that baseline is absent?
This question is central to many contemporary constitutional crises—ranging from the 2021 military intervention in Myanmar to patterns of institutional instability in Thailand, Egypt, and Tunisia—particularly in fragile and post-conflict states.
In societies emerging from conflict or enduring chronic polarization, distrust is not a bug but the baseline—pervasive both among competing elite factions, who doubt one another’s strategic intentions, and toward the capacity of state institutions to operate neutrally. In these settings, elite defection is not an anomaly but a rational strategy. When we export models designed for high-trust environments to low-trust contexts, the result is often a design–stress mismatch that leads to systemic collapse.
In my recent research on Constitutional Failure Under Stress, I argue that the primary engine of collapse in these low-trust societies is enforcement asymmetry. This occurs when the actors charged with upholding constitutional limits—the military, the executive, or apex courts—possess both the incentive and the capacity to evade them.
In states like Myanmar, where coercive power is deeply concentrated within the military and aligned executive institutions, the system’s guardians often become the primary violators of constitutional constraints. When one institution is compromised, failure cascades across the entire architecture. Formal mechanisms—elections, court rulings, legislative sessions—may continue, but their constraining capacity evaporates. Myanmar’s constitutional crisis illustrates this dynamic clearly. Under the 2008 Constitution, the military (Tatmadaw) was formally institutionalized as a guardian of the constitutional order, with significant autonomous powers, including 25 percent of parliamentary seats—effectively granting it veto power over constitutional amendments—and control over key security ministries. This arrangement created a pronounced enforcement asymmetry: while the military was tasked with protecting the system, it also possessed both the capacity—rooted in its control over coercive force—and the incentive—arising from perceived threats to its institutional interests, particularly the prospect of constitutional reform that could reduce its political autonomy, civilian oversight over the armed forces, and potential accountability for past actions—to override constitutional constraints. The 2021 military coup can thus be understood not as an isolated rupture, but as an expression of a deeper design–stress mismatch. Under such conditions, asking whether a constitution can “bounce back” (resilience) is the wrong question. We must ask whether it was designed to survive in the first place.
Resilience is an elastic metaphor; it suggests a system that bends and returns to equilibrium. In engineering terms, this is shock absorption. However, in chronically distrustful environments, we need a different lens: Fault Tolerance.
A fault-tolerant system—whether in a computer server or a jet engine—is not one that avoids malfunction altogether. It is designed to continue operating even when specific components fail. By transposing this principle into constitutional design, we shift our focus from shock absorption to structural anticipation.
In aviation systems, redundant control channels ensure that the failure of a single component does not cause catastrophic collapse. Constitutional systems may require similar redundancy.
Instead of assuming good faith as a default, a fault-tolerant constitution treats institutional capture and bad-faith governance as foreseeable risks. The objective is not to eliminate conflict, but to prevent a single point of failure from triggering a systemic cascade.
Designing for fault tolerance requires a radical rethink of constitutional architecture.
My forthcoming architectural framework, the Golden Phoenix Model, emphasizes three core pillars:
Distributed Oversight: Instead of relying on a single “apex” guardian (like a lone Constitutional Court), oversight should be distributed across multiple, partially overlapping nodes—an idea consistent with comparative constitutional design scholarship. This creates “redundancy”—if one node is captured, others retain the capacity to delay, review, or expose unlawful actions.
For instance, oversight authority could be divided between constitutional courts, parliamentary committees, and independent audit bodies to prevent the concentration of constitutional guardianship in a single institution.
Containment Mechanisms: We need “procedural brakes” to slow the spread of institutional capture. This includes staggered appointments, supermajority requirements for critical shifts, and tiered constitutional amendment rules (drawing on the work of David Landau and Rosalind Dixon), as well as cross-branch confirmation protocols that function as internal firewalls.
Epistemic Stabilization: In low-trust environments, misinformation is a tool of information asymmetry, allowing bad-faith actors to manipulate the public record and obscure constitutional violations. To build a fault-tolerant system, we must elevate ‘truth-generating’ institutions—such as audit bodies and independent data agencies—into the constitutional core. By ensuring a decentralized and reliable flow of information, we create informational redundancy, reducing the risk that localized distortions will cascade into systemic failure.
A common critique of this approach is that it risks stabilizing a ‘diminished’ or ‘thin’ democracy. This occurs because prioritizing survivability often necessitates formalizing concessions to anti-democratic actors—such as military vetoes or executive autonomy—to prevent systemic collapse. By embedding these survival mechanisms into the constitutional fabric, we may inadvertently create a version of democracy that guarantees formal institutions but lacks the deeper normative commitments—such as robust rights protection and meaningful accountability—that give democracy its substance. This reflects the tension between democratic minimalism and thicker conceptions of constitutionalism (see Collier & Levitsky’s classic study on democracy with adjectives). If a constitution is designed primarily to endure, it risks entrenching a lower baseline of democratic ambition—one that is resilient but no longer fully democratic. This critique is not without merit. But in post-conflict and chronically fragile settings, the calculus shifts.
I argue the opposite. In post-conflict societies, the most immediate threat is not gradual thinning, but abrupt breakdown. Survivability is not a concession to diminished democracy; it is a structural precondition for its renewal. Without structural continuity, the possibility of future reform disappears entirely. We cannot rebuild a democracy from the ashes of a collapsed state if we do not first ensure that the state’s basic institutional architecture can endure the heat of the fire.
Constitutional success should not be measured by normative elegance, but by durability under stress. In fragile constitutional systems, survival is not merely a technical goal—it is the precondition for democratic renewal. As we rethink governance for the 21st century’s most challenging contexts, we must move beyond the optimistic hope of resilience and toward the architectural certainty of survivability.
The theoretical foundation for this approach is detailed in my recent paper, Constitutional Failure Under Stress. Building on this, the forthcoming Golden Phoenix Model will provide a concrete blueprint for this transition—one that can be illustrated in contexts such as Myanmar, where the concentration of coercive power in a single institution has created a critical point of failure. A fault-tolerant redesign would instead distribute oversight across multiple institutions, embed procedural constraints on unilateral action, and strengthen independent information-generating bodies, thereby ensuring that even when individual components fail, the constitutional order as a whole can endure.
The challenge for constitutional design is therefore not merely to create ideal institutions, but to build systems capable of surviving the realities of power.
Suggested citation: Ye Lin Htet, Beyond Resilience: Toward Fault-Tolerant Constitutional Design in Low-Trust Societies, Int’l J. Const. L. Blog, Apr. 14, 2026, at: http://www.iconnectblog.com/beyond-resilience-toward-fault-tolerant-constitutional-design-in-low-trust-societies/
The post Beyond Resilience: Toward Fault-Tolerant Constitutional Design in Low-Trust Societies appeared first on www.iconnectblog.com.
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The bodies that algorithms generate are the undeniable testimony that what is being marketed as accuracy is in reality a novel and more effective architecture of impunity.]]>
A country of over ninety million people, with a long struggle for freedom, deserves more than a politics of fantasy financed by someone else’s suffering.]]>
T.V. Paul speaks about international security, Asian regional security, Indian foreign policy, and more.]]>
Hinako Takata (Osaka Univ. - Graduate School of International Public Policy) has published Pluralising Actors and Norms in Human Rights Treaties: Beyond Monolithic States (Hart Publishing 2026). Here's the abstract:
This book radically reforms the classical paradigm of international law.
It proposes a novel theoretical framework of the 'separation of powers in a globalised democratic society', where both actors and norms are pluralised beyond a unitary and monolithic 'state' and international law as norms of, by, and for 'states'.
The book applies this framework to holistically examine the interactions between human rights treaty organs – the European Court of Human Rights, the Inter-American Court of Human Rights, and the UN Human Rights Committee – and state organs, including parliaments, courts, administrative organs, and national human rights institutions. The book provides an innovative, original contribution to both the theory and practice of international human rights law.
Cunliffe argues Western foreign policy has drifted from coherent national interests, fueling ideological wars and global disorder.]]>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
In the News
New Scholarship
Calls for Papers and Announcements
Elsewhere Online
The post What’s New: Week of April 13 appeared first on www.iconnectblog.com.
]]>Most government lawyers are not routinely, or ever, faced with this kind of choice. To be sure, most government lawyering involves decisions on (il)legality, or plausible legality and legal risk, and government lawyers will frequently say no, this can’t be done – but in a great majority of cases the stakes will be fairly low, and provision of advice will simply be part of the bureaucratic machine doing its work. Yes, there will be friction, but nothing existential. Frequently, the government lawyer will find a way in which whatever is proposed can be done (arguably? plausibly?) lawfully.
Yet, there will be those cases in which the stakes are exceptionally high – the paradigmatic example, but not the only one, being decisions about going to war, or how the war is conducted. And here, for a small subset of government lawyers, the dilemma will arise.
To be clear, this stark dilemma does not really arise for the great many able lawyers working for authoritarian governments (which of course exist on a pretty large spectrum). No lawyer in the Russian Ministry of Foreign Affairs would ever even dream of telling Putin that a particular course of action – especially one involving a use of force – is illegal. It’s inconceivable, almost as inconceivable as resigning in protest. This is just how things are in many, if not most, states in the world. Speaking truth to power (or at least, to the power of one’s own state) is simply not in the job description of a government lawyer in an authoritarian state, and no one expects otherwise.
Yet, in democratic states, in which a culture of commitment to the rule of law has been built up gradually, the dilemma can arise. Torn between apology and utopia, between being criticized for manufacturing implausible legal justifications and criticized (and possibly ignored) for being naive and failing to understand how the world really works, what should the lawyers do? Their superiors know that the law is often uncertain and can be stretched; they also know that their lawyers have frequently helped them to do any necessary stretching. Should now, however, these lawyers put their foot down and say no, on this we cannot bend? And if the powers that be reject their advice, should they continue working for the government, or should they resign?
Some lawyers may find it relatively easy to say no, and if need be resign – a decision made, for instance, by many career federal prosecutors in the United States in recent months (see, e.g., here). They will find other jobs – these jobs exist and are available to them – and reputationally they suffer no costs, on the contrary. For others the decision will be less easy. Military lawyers may not even have the option of resigning, at least not immediately. Some may have become the lawyerly equivalent of a slowly boiled frog, so accustomed to justifying, normalizing, stretching and manufacturing grey areas and uncertainties, that saying no when saying no matters becomes exceptionally difficult, even unthinkable. The braised lawyer is no longer capable of bravery. It’s particularly ironic, and troubling, when that happens to military lawyers, for whom bravery should be at the core of their ethos.
Which is why, I think, we need to periodically remind ourselves of high-stakes examples when government lawyers, in the face of enormous political pressure, nonetheless said no (or at least some of them did so). This is especially important today, when so many democracies are unraveling and are suffering internally from rule-of-law-crises. Today, when a US president can threaten a whole civilization with destruction, just like that. Today, when heavy explosive weapons are being used in urban areas without much apparent regard for civilians.
The example that always comes to my mind is that of the career UK Foreign Office lawyers who said no to the 2003 invasion of Iraq, and of the not so courageous Attorney General who said yes. This is not a saga that I wish to rehearse in any detail here, but some background materials are cited below for readers who would wish to consult them. All I want to do now is recall the testimony of two of these lawyers, Sir Michael Wood and Elizabeth Wilmshurst (the former the Foreign Office legal adviser, the latter his deputy). Their testimony took place before the Iraq (Chilcot) Inquiry, on 26 January 2010.
In the middle of Sir Michael’s testimony, several previously confidential documents were unclassified. This included a short memo that he wrote to the then Foreign Secretary, Jack Straw, in which he followed up on his previous advice to express his hope that ‘there is no doubt in anyone’s mind that without a further decision of the [Security] Council, and absent extraordinary circumstances (of which at present there is no sign), the United Kingdom cannot lawfully use force against Iraq […] To use force without Security Council authority would amount to the crime of aggression.’ Just look at how Sir Michael’s advice was framed: if you do this, you will be committing an international crime. This was the advice that Straw would later note, but reject.
Elizabeth Wilmshurst not only shared Sir Michael’s views on the illegality of a use of force against Iraq, but had also resigned when their advice was not followed, after the Attorney General (who had previously shared their views) changed his mind and cleared the invasion. (Her letter of resignation is here). In a BBC report from the day, her testimony before the Iraq Inquiry was described as follows:
This was the most dramatic day of evidence so far. Elizabeth Wilmshurst’s appearance was always guaranteed to draw plenty of attention.
The former Foreign Office legal adviser had not previously spoken publicly about her decision to resign over the Iraq war.
When she finished giving evidence and the cameras had been switched off, members of the public in the hearing room burst into spontaneous applause.
Ms Wilmshurst appeared composed and precise. During the discussion about Jack Straw’s rejection of Foreign Office legal advice in 2003, she was asked whether it had made a difference that Mr Straw was a qualified lawyer. “He’s not an international lawyer,” she replied tersely.
I used to teach the Iraq war to my students pretty regularly – these days I tend to do that only fleetingly, because there is only so much time, and so many other conflicts have happened since. But I always wanted to discuss the provision of government legal advice with them. In doing so I was always irritated by the fact that, because of the overhaul of the BBC website and the archiving of the webpage of the Iraq Inquiry, there appeared to be no video online of the testimony of the two Foreign Office lawyers before the Inquiry.
Thanks to the help of a friend at the BBC (while thanks are also due to the BBC for giving me permission to do this), this is now a small problem that we could partly fix. Here’s a short, four-minute video clip with some of the highlights of the testimony.
I will leave that here without any further comment. Here are some background materials:
Report of the UK Iraq Inquiry, Section 5, pp. 64-75 (A disagreement between Mr Straw and Mr Wood); pp. 123-131 (Lord Goldsmith’s change of view)
Written and oral evidence from the hearing of the Iraq Inquiry on 26 January 2010, including transcripts, witness statements and declassified documents
A symposium on the Inquiry in the British Yearbook of International Law, including a piece with Michael Wood’s personal reflections and an article on media reporting on the war, legal advice and the Inquiry by Charlotte Peevers
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Governance of International Courts and Tribunals presents the first systematic examination of the institutions, practices, and norms that constitute international judicial governance—the oversight exercised by states and international organisations over international courts and tribunals to ensure their independent, accountable, and effective functioning.
Departing from the traditional focus on courts' mandates, jurisprudence, and procedures, the book turns attention to international judicial governance institutions (what the book terms 'injugovins')—the political and executive bodies, such as organs of international organisations or dedicated governance bodies, responsible for overseeing courts. It explores their practices and the normative frameworks that guide them.
Injugovins are revealed as crucial yet long-overlooked actors in the international adjudicative landscape. Their performance shapes the entire life cycle of courts—from the adoption of constituent instruments to budgeting, appointments, accountability mechanisms, institutional reform, enforcement, and closure. Many of the challenges faced by courts, including legitimacy crises, limited effectiveness, and political backlash, often stem from, or are worsened by, governance shortcomings.
Addressing a long-standing gap in the literature, the volume develops a shared vocabulary and conceptual framework for understanding international judicial governance as a distinct domain of international institutional law and practice. Comprising 24 contributions, it combines conceptual analysis, regime-specific studies, and cross-cutting functional perspectives. It maps historical and contemporary governance models—including those of the PCIJ, ICJ, CJEU, ICC, and African regional courts—and examines key functions such as judicial elections, financial oversight, and enforcement. With empirical depth and analytical clarity, this volume lays the foundations for future research on the legitimacy, oversight, and effectiveness of international courts.
On July 1-3, 2026, the Australian and New Zealand Society of International Law will hold its 33rd Annual Conference at the Victoria University of Wellington Faculty of Law. The theme is: "Navigating Stormy Seas: People, Place and Perspectives in International Law." Details are here. 2. Extended Deadline for Submissions: ClimateXLaw Conference. The Faculty of Law, University of Ljubljana, will host the ClimateXLaw Conference on 10 – 11 September 2026. The event explores how legal paradigms can be reconceptualised to address climate change as a long-term, systemic condition rather than an exceptional crisis. Scholars and practitioners from law and related disciplines are invited to submit abstracts for individual papers, thematic panels (3–5 presentations), or posters (max. 300 words). See more here. Deadline now 30 April 2026.
3. Call for Papers: Conference on Law and Security in Copenhagen. The University of Copenhagen – Faculty of Law will host an international conference on law and security on 27 – 28 August 2026. This call invites paper proposals addressing legal challenges – including international law, EU law, constitutional law, and human rights law – in relation to current security threats facing Denmark, the Nordics and Europe. Deadline for abstract submissions: 1 May 2026. See the full call here. For doctoral students, there will be a PhD symposium on the first day (27 August).
4. NILOS Moot Court Competition. The Netherlands Institute for the Law of the Sea (NILOS) has announced the fourth edition of the NILOS Moot Court Competition. The international rounds are scheduled to take place in person from 14 – 16 April 2027. The Competition Case is expected to be published on 16 September 2026, and team registration will be open until 16 November 2026. Further details will be shared here in due course.
5. ANZSIL Annual Conference 2026. The Australian and New Zealand Society of International Law (ANZSIL) has announced that registrations are open for the 33rd ANZSIL Annual Conference on the theme of ‘Navigating Stormy Seas: People, Place and Perspectives in International Law’ to be held in-person at Te Herenga Waka—Victoria University of Wellington, New Zealand, 1 July – 3 July 2026. Early bird registration is open until 8 May, and special rates are available for ANZSIL members, Conference speakers, and students. The keynote speakers will be Professor Kate Miles, Faculty of Law, University of Cambridge; and international human rights lawyer, Chris Sidoti. The Sir Kenneth Keith Annual Lecture will be delivered on Wednesday 1 July 2026 by the Judge Advocate General, Kevin Riordan ONZM. More information here.
6. Call for Submissions: The Journal du Droit Transnational. The Journal du Droit Transnational (JDT) is inviting submissions for its upcoming open access volume. The Board welcomes contributions in English, French and Spanish that engage with current themes in transnational law, broadly defined, including public and private international law, and EU law. In addition, the Volume will host a Symposium on “Cyber in International Law: Evolving Frontiers, Normative Challenges, and Institutional Responses”. The deadline for submissions is 31 May 2026. Submissions and inquiries should be directed to editors@
7. Jour Fixe of the AjV (Arbeitskreis junger Völkerrechtswissenschaftler*innen/ Working Group of Young Scholars of International Law). On 16 April 2026 at 7.00 pm, Philipp Rothkirch will present on the topic: Protecting Democracy Through International Law: Guatemala’s Request for an IACtHR Advisory Opinion on Democracy and Political Rights. The presentation will be held in English, questions can be asked in both German and English. Find his related blog post on Verfassungsblog here. Philipp Rothkirch is a research associate and doctoral candidate at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg. His work focuses on the restoration of independent State institutions following democratic backsliding, particularly from the perspectives of international law and human rights law.
8. Contemporary Societal Challenges and the Role of International Law Series. The BUL International Law Group and its Directors, Solon Solomon & Patricia Hobbs, are organising the ‘Contemporary Societal Challenges and the Role of International Law’ 3-part event series. The series, involving panel discussions with experts from BUL, the Council of Europe and leading barristers, will be held at BUL from the end of April and throughout May. For more details on exact dates and locations, contact Dr Solon Solomon at solon.solomon {at} brunel.ac(.)uk and Dr Patricia Hobbs at patricia.hobbs {at} brunel.ac(.)uk
9. Jour Fixe Event Series. The Jour Fixe is a regular (approximately monthly) event series organised by the AjV. Its primary aim is to foster exchange among early-career scholars of international law on a range of changing topics within the field. Membership of the association is not required to participate. Non-members can request the link to the event by emailing Alexandra Konecny (research assistant and doctoral candidate with Prof Andreas Kulick, University of Mainz) at akonecny {at} uni-mainz(.)de.
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Newitz explores how psychology, propaganda and storytelling evolved into tools of modern information warfare, shaping both military strategy and public opinion.]]>
Russia's invasion was a performance of great power fantasy with Ukraine as object. This, along with increasingly centralised decision-making, produced total war in 2022.]]>
Bangladesh’s Electoral Reform Commission recommended in January 2025 that voters should be able to recall members of Parliament between elections, a mechanism that has never existed in South Asian constitutional history. The proposal is both overdue and perilous. Overdue because Article 70, the Constitution’s rigid anti-defection clause that penalizes any deviation from the party line with loss of seat, has severed the link between MPs and their constituents for over fifty years, turning the Jatiya Sangsad into a rubber stamp for whichever party holds power. Perilous because a poorly designed recall mechanism, as comparative experience from the United States, Latin America, and elsewhere shows, can become a weapon of partisan harassment rather than a tool of democratic accountability. Getting the design right matters more than getting it quickly.
The right to recall allows voters to remove an elected official before the end of their term through a petition and special election. Its intellectual ancestry traces back to Rousseau’s Social Contract (1762), which argued that sovereignty remains permanently with the people. A 2024 study in the American Political Science Review by Arthur Ghins confirmed that Rousseau specifically envisioned “scrutiny and recall” as mechanisms for popular control over government. In practice, recall embodies the delegate model of representation: officials are agents of the electorate, not independent trustees free to ignore their voters between elections. Recall provisions exist across a wide range of democracies, from nineteen U.S. states to Bolivia, Peru, Ecuador, Taiwan, and several Canadian provinces and Swiss cantons, each with distinct rules and outcomes.
The United States is the world’s most extensively studied testing ground for recall. Nineteen states allow the recall of state-level officials, while 39 permit it at the local level. No two systems are identical. California’s Article II, §§13-19, requires signatures from just 12% of voters in the last election and imposes no grounds requirement; this state’s constitution also explicitly provides that “sufficiency of reason is not reviewable.” Kansas demands signatures of 40% of voters and requires proof of a felony conviction, misconduct, or incompetence. Wisconsin and Colorado require signatures of 25% of voters, with Wisconsin’s Article XIII, §12, additionally requiring one year of public service before the official can be subject to recall and limiting the use of this mechanism to one per term.
Federal officials are immune. The Supreme Court’s reasoning in U.S. Term Limits, Inc. v. Thornton (514 U.S. 779, 1995), that states cannot impose qualifications on federal officeholders beyond those in the Constitution, was applied directly in Committee to Recall Robert Menendez v. Wells (204 N.J. 79, 2010) to strike down New Jersey’s attempt to authorize recall of U.S. Landmark cases illustrate both the promise and the cost. In 2003, California voters recalled Governor Gray Davis over the electricity crisis and budget deficit; 55.4% voted for his removal, and Arnold Schwarzenegger won the replacement contest among 135 candidates. In Wisconsin in 2011, nine state senators faced recall over Governor Walker’s anti-union legislation, Act 10, which stripped most public-sector workers of collective bargaining rights; two were removed. Colorado’s 2013 recall ousted two senators for supporting gun control. California’s 2021 attempt to recall Governor Newsom failed decisively but cost $276 million, demonstrating that even unsuccessful recalls carry serious fiscal consequences.
The American experience is not the only one to showcase the workings of the political recall mechanism: various Latin American countries similarly provide for such mechanisms in their constitutional order. In Bolivia, the 2009 Constitution permits recall of elected officials after half-term, requiring 15% of voter signatures, and Venezuela permits recall of officials in the mid-term in its 1999 Constitution, requiring 20% of voter signatures. Opposition groups triggered a recall referendum against President Hugo Chavez in 2004, though 59% of voters chose to keep him in office. The episode nonetheless demonstrated that recall mechanisms can function as a meaningful democratic check on presidential power. Recalls have also been used in politically polarized countries such as Bolivia, where ruling parties use the tool against opposition officials, and it has been questioned whether the people are indeed empowered or their tool is being used to score political points. These lessons form a key part in the political reform strategy of Bangladesh.
Bangladesh’s need for recall is rooted in a specific constitutional pathology. Article 70, enacted in 1972, provides that any MP who votes against their nominating party forfeits their seat. The provision was designed to prevent “floor-crossing”- the practice whereby legislators switched party allegiance in exchange for patronage, destabilizing governments and making coalition politics chaotic. Its actual effect has been to make the parliament a captive of the executive. No confidence motions are practically impossible. MPs answer to party supremos, not to the 300 constituencies they represent. Between elections – which in recent Bangladeshi history have been marred by boycotts, manipulation, and serious questions about competitiveness – voters have had no institutional tools to discipline their representatives.
The July-August 2024 uprising, which toppled Sheikh Hasina’s sixteen-year regime and cost over 1,400 lives, brought this accountability deficit into sharp focus. The interim government under Muhammad Yunus established reform commissions for the constitution, the electoral system, the judiciary, and several other areas. Among the electoral commission’s recommendations was the recall of MPs.
The Electoral Reform Commission’s proposed design is far more restrictive than any American or Latin American model. Recalls during the first and last year of an MP’s tenure would be prohibited. Its use requires a petition that must be signed by no less than one-third of all registered voters in the constituency, enormously more than even the 40 percent of all Kansas voters who turned out to vote, because there is a big disparity between registered and actual voters. A recall petition should state clear grounds – such as corruption, abuse of power, or constitutional violations. Any vote is not made before the request is assessed by the election commission. A majority of the constituency’s voters (51%) are necessary to remove the sitting member by a recall vote.
These thresholds were clearly conceived by the commission as requirements to avoid unwarranted costs and instability in politics. Such caution is understandable in a nation where political mobilization has always been founded on conflict. But one wonders whether these stringent requirements reduce the mechanism to a mere ornament? When recall is practically infeasible to implement, its inclusion in the constitution can gratify reformers at a nominal level even as it has no effect on the actual balance of power between MPs and voters.
Transplanting democratic practices from established democracies to Bangladesh is not a simple copy-and-paste exercise. Three features of the Bangladesh context are critical to assessing the likely impact of the transplant.
First, the Article 70 paradox. American and Latin American legislators routinely vote against their parties; the recall mechanism holds them popularly accountable for choices they freely make. Bangladeshi MPs cannot vote against their party without losing their seats. What, then, would voters recall them for? The answer depends on the July Charter of 2025, which proposes modifying Article 70 to allow free voting on all matters except money bills and confidence motions. This Charter was endorsed by 24 parties and put to a constitutional referendum in February 2026, held alongside national elections, where 61% of voters reportedly endorsed the reform package. The legitimacy of that referendum has, however, been questioned due to it being held under an interim government and the lack of an electoral infrastructure, which may have confused voters about the specific reforms they were approving. A true reform of Article 70 could justify a recall mechanism to hold MPs accountable for misusing their power, whereas maintaining Article 70 as is would provide insufficient grounds for effecting popular accountability through such a mechanism.
Second, institutional capacity. American recall elections are administered by professional, well-resourced election offices. Bangladesh’s Election Commission, although constitutionally independent under Articles 118-126 of the Constitution, has historically been subordinated to the interests of the ruling party. The Constitutional Reform Commission recommended a National Constitutional Council (NCC) – composed of representatives from across the executive, legislature, judiciary, and opposition – to oversee appointments to key bodies like the Election Commission. The credibility of the recall mechanism depends on whether this proposed institutional reform takes hold. Without genuinely independent election administration, recall petitions risk being blocked when they target ruling-party MPs and fast-tracked when they target opposition figures.
Third, entrenchment in the constitution. Article II of California and Article XIII of Wisconsin in the US allow recall, so it is very hard to revoke or amend. In the case of Bangladesh, however, the proposal is based on a recommendation by the Electoral Reform Commission and, if accepted, would be given effect in statute. A statutory recall mechanism would be ruinously weak considering the history of the country in terms of constitutional amendments to benefit the incumbent president – consider for instance, the 5th Amendment, which ratified martial law decrees. Constitutional entrenchment is the only way the mechanism can be made to be durable.
Experiences with the recall mechanism elsewhere offer clear lessons for calibrating its design, thresholds, and safeguards. California’s low threshold has invited expensive and arguably frivolous recalls; the Little Hoover Commission’s 2022 report recommended shifting to 10% of registered voters. Bangladesh’s proposed one-third threshold may overcorrect in the opposite direction. A range of 20%–25% of registered voters, higher than any U.S. state but lower than the Electoral Reform Commission’s proposal, would better balance accessibility with seriousness. This range is supported by the Latin American experience: Bolivia’s 15% has arguably been too low, while thresholds above 30% have never been successfully triggered in any jurisdiction that provides for the recall mechanism.
Bangladesh’s exclusion of the use of the mechanism during the first and last year of an MP’s tenure is a sound policy. Cross-party signature requirements also deserve consideration; one California reform proposal would require 25% of petition signatures to come from voters of the recalled official’s own party, preventing one party from weaponizing recall against the other’s MPs. In Bangladesh’s deeply polarized landscape, this safeguard could be essential.
The political economy of the recall election suggests that there is a possibility that this mechanism can be manipulated by the wealthy and well-organized interests. The failed recall of Governor Newsom, which cost California taxpayers $276 million, is a stark reminder of how expensive these efforts can be-even when they change nothing. Bangladesh ought to put into effect campaign finance laws on recall elections and consider the possibilities of public financing so that the recall right is not an attractive privilege for only those who can afford it. Finally, the targeted MP should be entitled to due process entitlements: a formal right of response on the ballot (Colorado provides a 300-word justification), campaign finance protections, and media access. Recall is an extraordinary measure. This must be surrounded by ordinary procedural fairness.
Bangladesh is currently on the cusp of the first major redesign of its Constitution in 53 years. The July Charter suggests a two-house Parliament, limits on the terms of the prime minister, an increase in presidential authority, and a revised Article 70. Part of this broad agenda is the introduction of a recall mechanism, which seeks to respond to a failure that can be identified and remedied: a complete lack of inter-election popular accountability. As the experience in several American states and Latin America countries demonstrates, such a mechanism can accomplish a lot, but it can also degenerate into an expensive political drama that merely disrupts governance without creating accountability.
In the case of Bangladesh, any recall mechanism needs to be constitutionally entrenched to survive further changes of government; it requires the institutional autonomy of the Election Commission to be tasked with running it; it needs honestly calibrated thresholds that cannot be weaponized while ensuring the prospect of its actually use; and it needs campaign finance regulations to ensure that recalls are not bought by moneyed interests. The students that flooded the streets of Dhaka in July 2024 wanted a democracy whereby the power is responsive, not just during election season. The right to recall, when it is designed well, can be one of the meaningful mechanisms to contribute to the creation of such a democracy.
Suggested citation: Syed Tahmeed Hossain, Democracy Between Elections: Can the Right to Recall Fix Bangladesh’s Broken Accountability Chain? Int’l J. Const. L. Blog, Apr. 11, 2026, at: http://www.iconnectblog.com/democracy-between-elections-can-the-right-to-recall-fix-bangladeshs-broken-accountability-chain/
The post Democracy Between Elections: Can the Right to Recall Fix Bangladesh’s Broken Accountability Chain? appeared first on www.iconnectblog.com.
]]>We invite proposals for chapters for an edited volume planned with an international academic publisher, including a tentative title and a short abstract (no more than 400 words). Authors of selected abstracts will be invited to prepare draft chapters of approximately 2000 words, which will be presented at a hybrid/online (tbd) workshop in September 2026.
The planned edited volume, Transitional Justice: Women’s Narratives of Reconciliation, seeks to bring together scholars from all backgrounds, particularly those from underrepresented groups and early career researchers, to critically examine transitional justice in both paradigmatic and aparadigmatic contexts. We aim to move beyond strictly institutional and doctrinal approaches by foregrounding women’s lived experiences of reconciliation, justice, and repair. We are particularly interested in contributions that explore how women understand, negotiate, resist, or reshape transitional justice processes in their everyday lives.
We welcome interdisciplinary contributions from law, sociology, political science, anthropology, gender studies, social work, peace and conflict studies, and related fields. Papers may address, but are not limited to, the following themes:
Submission
Scholars are invited to submit the following in a single Word-file by 15 May 2026:
Notification of acceptance: 1 June 2026
Authors of accepted abstracts will be invited to participate in a digital workshop 24 September 2026.
Participants will be asked to:
All manuscripts will undergo editorial review, and a book proposal will be submitted to an international academic publisher based on the submitted manuscripts.
Submissions and questions should be sent to: jessica.jonsson@oru.se and carola.lingaas@vid.no with the subject line ‘Reconciliation 2026’.
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Challenging the view that sufficient gravity is mainly a tool for prosecutorial discretion, this book reconstructs the interpretation of this criterion and argues for its assessment in objective and legally grounded terms. Marco Longobardo expertly examines case law and prosecutorial practice pertaining to situations and cases under Article 17(1)(d) of the Rome Statute of the ICC to inform his criticism of the assessment of sufficient gravity.
The book reviews the assessment of sufficient gravity to evaluate the decisions of the Office of the Prosecutor (OTP) and case law of the Chambers. Chapters explore case studies such as the Lubanga and Ntaganda arrest warrants and the boarding of the Mavi Marmara. Combining jurisprudential and international law perspectives, Longobardo analyses the rules of treaty interpretation and applies them as a methodological framework to assess sufficient gravity.
Sufficient Gravity before the International Criminal Court is a crucial resource for scholars and students in international criminal law and justice and public international law. This book’s scrutinisation of sufficient gravity provides guidance to ICC organs and parties and contributes to the reinforcement of the ICC project. It is also beneficial for practitioners and NGOs working on issues pertaining to sufficient gravity before the ICC.
Although family law formally remains beyond the competence of the EU jurisdiction, recent case law of the CJEU increasingly shapes domestic family law regimes through the “backdoor” of free movement. Already in 2018, in the widely discussed Coman judgment, the Court required Romania to recognise a same-sex partnership for the purposes of residence rights under EU law. Most recently, in its landmark Trojan judgment of 25 November 2025, the CJEU went a step further and required Poland to recognise same-sex marriages lawfully concluded abroad, in this case by transcribing German marriage certificate in the Polish civil register.
The latter judgment triggered an intense debate in Poland as to whether such an obligation can be implemented without amending the Constitution. Since Article 18 of the Polish Constitution provides that “marriage as a union of a man and a woman (…) shall be placed under the protection and care of the Republic of Poland” some scholars argue that this provision defines marriage as exclusively heterosexual, thereby precluding any form of legal recognition of same-sex marriages. Others, such as Ewa Łętowska, argue that since language of Article 18 does not suggest any exclusivity, its practical implication is that it sets a minimum constitutional standard that may be extended at the legislative level.
The legal debate was resolved by the Supreme Administrative Court, which in its judgment of 20 March 2026, obliged civil registry offices to carry out the transcription of foreign same-sex marriages. In its decision, the Court adopted a progressive interpretation of Article 18, emphasising that it must be read in the light of other constitutional principles, such as the prohibition of discrimination and the principle of equal treatment, as well as in the context of the CJEU case law.
In this blog post, I situate Article 18 of Polish Constitution within its broader historical context, tracing its evolution from a provision often interpreted as a systemic prohibition – one that permeated the entire legal order and effectively precluded even the most basic forms of protection – to a norm increasingly subject to more progressive interpretation. In conclusion, however, I caution against excessive optimism. Politically, the judgment was met with severe criticism, and it is clear that right-wing actors will seek to challenge its effects before captured Constitutional Tribunal. Although the Tribunal is ignored by the government, in light of a possible change in office in 2027, the ruling may ultimately prove to be a precarious – if not pyrrhic – victory.
Legislative works of Article 18 date back to mid-1990s and took place within the Constitutional Commission. At the time, already a few countries had formalized same-sex partnerships. These developments likely resulted in the initiative of conservative members of the Commission, acting under the Catholic Church’s pressure, to supplement Article 18 with the phrase “marriage as a union of a man and a woman.” During these well documented debates, conservative politicians expressed condemnation of homosexuality, which they perceived as a socially unacceptable ’pathology’ or ‘madness’ (bulletin no. XVII, p. 31-34).
The Commission approved Article 18 by 23 out of 31 votes. Unlike most early post-communist constitutions (e.g. Czechia, Slovakia, Romania), Poland linked marriage to different-gender spouses, although not as explicitly as Hungary’s 2011 Constitution or the amended Slovak Constitution of 2014.
As the provision is open to interpretation, its conservative reading is often justified by appealing to the alleged intentions of the drafters. This approach, however, is problematic. Leaving aside the theoretical question of whether intention should matter at all in constitutional interpretation, the claim that Article 18 was clearly intended to preclude any recognition of same-sex marriage faces two major difficulties. First, more explicit alternatives – such as introducing a direct definition of marriage (“marriage is a union of…”) or including an unambiguous constitutional ban – were rejected by members of the Commission (bulletin no XXIX, p. 136). Second, experts participating in the Commission expressed scepticism about the effectiveness of the adopted wording. One warned that the provision would not, in fact, prevent the future legalisation of same-sex marriage (bulletin no. XVII, p. 34), while another criticised it as an attempt to arrest social change through constitutional means (bulletin no. XVII, p. 31; bulletin no. XXIX, p. 136).
Against this background, while the voting outcome itself is clear, the intentions behind it appear arguably indeterminate. It allows for a range of possible motivations: support based on the belief that the provision introduces a binding prohibition; support grounded in the opposite view, namely that it merely expresses a constitutional minimum without excluding future legislative extension; opposition rooted in the conviction that the provision is too restrictive; or, conversely, that it is insufficiently so.
What is less controversial is that, in the early years following the entry into force of the 1997 Constitution, the ordinary judiciary tended to apply Article 18 as if it established a broad and formally binding “principle of heterosexuality,” thereby rejecting alternative interpretations that viewed it as a programmatic provision – namely, a clause expressing only a constitutional minimum.
This tendency was particularly visible in case law concerning “remaining in a factual cohabitation,” which under Polish law triggers among others certain tenancy rights, criminal law protections, as well as certain healthcare rights in and access to social benefits. Although the relevant provisions did not explicitly link protection with gender of spouses, courts often interpreted them through the lens of Article 18. The reasoning was roughly as follows: the term “factual relationship” is the legal expression for concubinage, which has traditionally been understood as a relationship analogous to marriage, albeit without formal recognition. Given the constitution entrenched “principle of heterosexuality,” courts concluded that these protections could apply only to different-sex relations.
This approach received some additional backing from the Constitutional Tribunal in its 2005 ruling on the compliance of the Lisbon Treaty with the Polish Constitution, which, in obiter dictum, affirmed the normative content of Article 18 in framing marriage exclusively as a heterosexual institution. Yet, it was precisely during this period that some ordinary courts began to extend the rights associated with factual cohabitation to same-sex couples, emphasizing that, since the relevant provisions make no distinction based on gender, it is not the role of the interpreter to introduce such a distinction. Not all courts shared this approach, however. This divergence ultimately led to the 2010 Kozak v. Poland case, in which the ECtHR ruled on a situation where a male partner in a same-sex concubinage was denied inheritance of tenancy by a local municipality, a decision upheld by the domestic courts. The judgment held that interpreting provisions on cohabitation so as to exclude same-sex couples constitutes unjustified discrimination on the grounds of sexual orientation. The 2010 ECHR decision subsequently inspired the supreme chambers of Poland’s Supreme Court – both civil (2012) and criminal (2016) – to issue legally binding resolutions settling the controversy. These resolutions required ordinary courts to apply factual cohabitation rights to same-sex partners as well.
Each time the understanding of Article 18 evolves, it is met with conservative outrage. A striking example is a dissenting judgment of one Supreme Court judge to the 2016 resolution, who argued that such developments could lead to the recognition of “various types of polygamous relationships or communities of a sectarian nature.” In the domestic, increasingly illiberal context, the most recent judicial reinterpretation of Article 18 is perceived as acting ‘ultra vires,’ inspired by political influential actors and ‘European ideologues.’
While it is important not to dismiss anyone’s general right to engage in political debate or to critically assess the judgments of apex courts, when legal scholars themselves adopt the tone of political outrage, this reflects their reliance on descriptively flawed, static legal theories of law. Viewed through the lenses of mainstream legal theories, associated with positivist (Hart) and non-positivist traditions (Dworkin), the evolution of the understanding of Article 18 can be seen as unsurprising: law always acquires its final content within a social context. This context has changed dramatically over the years.
It was only in 1990 that the WHO removed homosexuality from the list of diseases. Couple years later, in 1994, the UN Human Rights Committee held that criminalization of homosexuality violates international standards. Yet, homosexuality continued to be criminalized long after these developments, with some parts of the Western world to decriminalize it in early 2000s (e.g. Texas).
At the time of drafting the Polish Constitution, and during the subsequent debates in the Constitutional Commission, no legal system in the world recognized same-sex marriage. Since then, Poland joined the EU. This development resulted in the adoption of a pro-EU interpretive directive favouring interpretations that fulfil EU obligations. Today, over half of EU member states recognize same-sex marriage, and majority of them include some other form of same-sex unions. Same-sex unions enjoy the support of half of Polish society, indicating that an increasing number of Poles view homosexual relationships as falling within the scope of constitutionally protected “family” (Article 18) and “private and family life” (Article 47). It is in this context that Article 18 acquires a new normative content.
Against this background, the Supreme Administrative Court’s ruling of 20 March 2026 (II OSK 216/21) constitutes yet another chapter in the “life of Article 18.” At the same time, its significance can hardly be overstated, as it marks the first instance in which an apex court in Poland has rejected the conservative reading of Article 18. However, this is likely where the good news ends. The path from this decision to any meaningful institutionalization of same-sex partnerships remains long and, given the current political climate, highly uncertain.
Firstly, this is due to the limited scope of the ruling, which was made in the context of freedom of movement and is legally binding only for such cases. Secondly, the political right-wing remains convinced that Article 18 excludes not only same-sex marriages but also any form of institutional recognition for same-sex partnerships. For this reason, President Nawrocki has already suggested a veto for the pending parliamentary bill on the status of the “close person,” which would otherwise have provided one of the weakest forms of protection for same-sex partnerships. Thirdly, politicians from PiS have already declared that they will seek intervention from the politically subordinated Constitutional Tribunal. It is very likely that the Tribunal will rule that relevant provisions, if understood as requiring the transcription of same-sex marriages concluded abroad, are unconstitutional.
Although under current circumstances – where the government ignores the Constitutional Tribunal – this potential ruling will not have any legal effect, this may change following a potential right-wing electoral victory in 2027. In this sense, the Supreme Administrative Court’s ruling represents a symbolic yet fragile victory: it establishes an important legal precedent, but its concrete impact on the institutional recognition of same-sex partnerships remains contingent on broader political developments. At present, those prospects appear rather bleak.
Suggested citation: Wojciech Zomerski, The Curious Life of Article 18: Is Poland Moving Toward the Recognition of Same-Sex Marriage? Int’l J. Const. L. Blog, Apr. 10, 2026, at: http://www.iconnectblog.com/the-curious-life-of-article-18-is-poland-moving-toward-the-recognition-of-same-sex-marriage/
The post The Curious Life of Article 18: Is Poland Moving Toward the Recognition of Same-Sex Marriage? appeared first on www.iconnectblog.com.
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Across the globe, the number of protracted armed conflicts is rising, with many societies enduring the consequences of violence and conflict-related socio-economic disruption for decades. These enduring conflicts present complex and evolving challenges—legal, (geo)political, institutional, humanitarian, developmental, and environmental—that demand new approaches. In response, policy frameworks increasingly advocate for the so-called humanitarian-development-peace nexus (the ‘triple nexus’), which seeks to bridge traditionally siloed agendas in favour of a more integrated response to protracted conflict. Yet, despite growing policy interest, the legal dimensions of protracted conflict and the implications of the triple nexus remain under-explored in international law. From Protracted Conflict to Sustainable Peace? offers the first comprehensive legal and interdisciplinary examination of how international law engages with the realities of protracted conflict. Drawing on a wide range of legal fields—including international humanitarian law, development law, economic law, refugee law, human rights law, international criminal law, and peacebuilding law—contributors explore how legal regimes interact, overlap, and at times conflict in these complex settings. Through a conceptual framework and a series of thematic chapters, the volume addresses the lived impacts of protracted conflict, the role of international institutions and the challenges they face, and the potential of human rights frameworks to respond to long-term crises. It provides scholars and practitioners with a vital resource for rethinking legal strategies in the face of enduring violence and for imagining pathways toward sustainable peace.
Providing adequate nuclear deterrence vis-à-vis Russia, without the backing of the US, could prove to be a bridge too far for NATO countries.]]>
The stability of the global order, for Mazrui, depends on how successfully the balance between homogenization and hegemonization is managed.]]>
The latest issue of Questions of International Law / Questioni di Diritto Internazionale (no. 115, 2026) is out. Contents include: 
In recent decades, democratic legal systems have increasingly been confronted with a recurring paradox. On the one hand, international human rights norms continue to proliferate through new treaties, judicial interpretations, and constitutional commitments. On the other hand, the practical protection of these rights appears to be gradually weakening. Such weakening rarely occurs through dramatic constitutional breakdowns or explicit authoritarian ruptures (though these can, and do, happen). Instead, it often unfolds quietly through incremental legal and institutional developments that reshape the everyday functioning of democratic governance.
This trend can be observed in recent global developments. For example, during the COVID-19 pandemic, many European states introduced emergency measures that restricted fundamental rights such as freedom of movement and assembly, as reflected in the case law of the European Court of Human Rights. Similarly, counter-terrorism laws have expanded state powers in ways that have raised concerns about long-term impacts on human rights protections, according to United Nations reports on counter-terrorism and human rights.
The contemporary debate on emergency powers and constitutional resilience has largely focused on dramatic moments of crisis. Scholars have examined how states respond to terrorism, migration pressures, or public health emergencies through the invocation of exceptional legal measures. This issue has been widely discussed in the academic literature. For example, Oren Gross and Fionnuala Ní Aoláin have examined how emergency powers reshape constitutional frameworks over time, while Giorgio Agamben has critically analyzed the normalization of exceptional measures within democratic systems. However, less attention has been devoted to the gradual processes through which these exceptional measures become embedded within ordinary governance structures. The challenge for modern constitutional democracies may therefore lie not only in the immediate response to crises, but also in the long-term consequences of the legal frameworks created in their aftermath. This post therefore contends that the true risk to human rights in democratic societies emerges not from moments of crisis alone, but from the subtle and cumulative normalization of exceptional powers over time.
This phenomenon can be described as involving the silent erosion of human rights. Rather than openly suspending rights, democratic governments frequently reinterpret, restrict, or procedurally modify them in ways that remain formally compatible with constitutional legality. The legal architecture of human rights remains intact, yet the practical scope of those rights gradually narrows.
The increasing reliance on emergency governance illustrates this dynamic. Governments often justify temporary limitations on fundamental rights by invoking urgent threats such as national security concerns, terrorism, migration crises, or public health emergencies. For example, during the COVID-19 pandemic, many European states imposed restrictions on freedom of movement and assembly, raising important legal questions under Articles 5 and 11 of the European Convention on Human Rights, as reflected in the case law of the European Court of Human Rights. Similarly, counter-terrorism frameworks adopted in several jurisdictions have expanded executive powers and surveillance practices, prompting sustained concerns about proportionality and long-term impacts on fundamental rights, as highlighted by the United Nations Office of the High Commissioner for Human Rights. These measures are typically presented as necessary and proportionate responses to extraordinary circumstances.
Returning to the experience of the COVID-19 pandemic, governments across democratic states introduced emergency legislation restricting movement, assembly, and economic activity in response to an unprecedented public health crisis. In many cases, these measures were adopted rapidly and with broad public support. However, the pandemic also demonstrated how easily extraordinary powers can reshape legal and institutional practices. In several jurisdictions, measures initially introduced as temporary responses, such as expanded digital surveillance tools, contact-tracing infrastructures, and enhanced executive discretion, have in part persisted beyond the immediate crisis period, raising concerns about their normalization within ordinary governance frameworks, as highlighted by the United Nations Office of the High Commissioner for Human Rights. These developments also raise broader constitutional questions regarding the durability of emergency governance in democratic systems, as reflected in the case law of the European Court of Human Rights.
From a constitutional perspective, the normalization of exceptional measures raises fundamental concerns. Constitutional democracies are built upon the assumption that governmental power must remain constrained by legal rules, institutional oversight, and the protection of individual rights. Emergency powers are tolerated precisely because they are expected to be of a temporary nature. If such measures gradually become permanent, the normative foundations of constitutional governance may be placed under strain.
The concept of the state of exception, famously explored by Giorgio Agamben, captures this tension between legality and emergency governance. Agamben argued that modern political systems increasingly operate in a space where the boundary between exception and norm becomes blurred. While the state of exception was historically understood as a temporary suspension of legal norms, contemporary governance often integrates exceptional powers into ordinary legal frameworks. For example, in France, certain emergency surveillance powers introduced after the 2015 terrorist attacks such as expanded digital surveillance, preventive administrative searches, restrictions on freedom of movement, and enhanced executive discretion were later incorporated into ordinary law, reflecting a broader trend of normalizing exceptional measures within standard governance frameworks. As a result, exceptional governance risks becoming a structural feature of political authority rather than a temporary response to crisis.
However, as mentioned, the erosion of rights in democratic systems does not necessarily occur through overt authoritarianism. Instead, it often takes place within the language and structures of legality itself. Governments rarely abolish rights outright. Rather, they reinterpret legal norms through flexible concepts such as national security, public order, or risk management. Courts may uphold such measures by emphasizing proportionality or the exceptional nature of the circumstances. Over time, repeated reliance on these justifications can gradually expand the boundaries of what is considered legally permissible
This dynamic creates what may be described as an illusion of compliance. Human rights remain firmly embedded within constitutional texts, international treaties, and judicial discourse. States continue to affirm their commitment to the protection of fundamental freedoms. Yet the practical capacity of individuals to rely on these rights may be progressively weakened through procedural limitations, administrative discretion, or expansive interpretations of security-based legal concepts.
The consequences of this gradual transformation however extend beyond individual rights protections. The silent erosion of such rights may also affect the broader functioning of democratic institutions. Constitutional governance relies upon the predictability of legal norms, the accountability of public authorities, and the effective limitation of political power. When exceptional governance practices become routine, these principles may gradually lose their stabilizing force. This occurs through a gradual process in which exceptional measures, initially justified as temporary responses, become embedded in ordinary legal frameworks. As these practices are repeatedly normalized, institutional actors including courts and legislatures begin to treat them as standard tools of governance, thereby reducing the threshold for their future use and consolidating their status as a stable norm. In this sense, the state of exception risks evolving into a stable governing paradigm, where extraordinary measures are no longer perceived as deviations from the norm but rather as an integral part of it.
One of the most significant risks in this regard is the expansion of executive authority. Emergency legislation often grants governments wide discretionary powers to respond rapidly to perceived threats. While such flexibility– such as emergency decrees, expanded surveillance powers, or accelerated legislative procedures may be justified during genuine crises, the persistence of these powers beyond the emergency context can alter the institutional balance between the executive, legislative, and judicial branches of government. Parliamentary oversight may weaken, particularly where emergency powers are repeatedly extended with limited legislative scrutiny, while courts may become increasingly deferential to governmental assessments of risk or necessity.
The normalization of exceptional governance may also reshape public expectations of freedom. Unlike dramatic authoritarian ruptures, which tend to provoke visible political resistance, gradual legal transformations often occur with limited public attention. Citizens may adapt to reduced rights protections when restrictions are framed as reasonable responses to security concerns or crisis management. Over time, the threshold for acceptable limitations on rights may shift, allowing extraordinary measures to become part of the ordinary legal landscape.
Moreover, the impact of these developments is rarely distributed equally across society. Rights restrictions often disproportionately affect groups that are politically or socially marginalized. Migrants, political dissidents, and minority communities frequently experience intensified surveillance, administrative control, or legal restrictions under security-oriented governance frameworks. This disproportionate impact often stems from their limited political representation, reduced access to legal remedies, and their frequent framing as security risks within public and governmental discourse. In such contexts, the universality of human rights may gradually erode as certain groups become systematically exposed to reduced protections.
Recognizing the phenomenon of silent erosion is therefore essential for understanding contemporary challenges to constitutional democracy. The protection of human rights cannot rely solely on the formal existence of legal norms within constitutional texts or international agreements. Instead, it requires sustained institutional vigilance and a continued commitment to the normative foundations of democratic governance.
Courts, legislatures, and civil society actors all play a crucial role in maintaining this vigilance. Judicial institutions must remain attentive to the long-term implications of emergency governance and resist excessive deference to executive authority. Legislative bodies must ensure that exceptional measures remain subject to meaningful oversight and clear temporal limits. Civil society and academic scholarship must continue to expose and analyze the subtle processes through which rights protections may gradually weaken.
Ultimately, the central challenge for contemporary constitutional democracies may not lie in the dramatic suspension of rights during moments of crisis, but rather in the gradual normalization of exceptional governance practices. The erosion of rights rarely occurs overnight. Instead, it unfolds through incremental legal transformations that slowly reshape the relationship between law, power, and individual freedom.
If human rights are to retain their protective force, democratic societies must remain attentive to these subtle dynamics. The defense of human dignity requires more than the preservation of legal texts; it demands continuous engagement with the evolving practices of governance that shape how rights function in everyday life. Only through such vigilance can constitutional democracies resist the silent erosion of human rights and preserve the normative foundations upon which their legitimacy ultimately depends.
Suggested citation: Tuğba Tosun Çobanoğlu, The Silent Erosion of Human Rights in Democratic Societies: Crisis Governance and the Normalization of Exceptional Powers, Int’l J. Const. L. Blog, Apr. 9, 2026, at: http://www.iconnectblog.com/the-silent-erosion-of-human-rights-in-democratic-societies-crisis-governance-and-the-normalization-of-exceptional-powers/
[1] Her work examines socio-legal issues at the intersection of law, human rights, and social dynamics through an interdisciplinary perspective, with particular focus on algorithmic governance, human dignity, and decision-making processes. She has previously contributed to platforms such as the Oxford Human Rights Hub and JURIST, where she has written on the implications of algorithmic systems for fundamental rights.
The post The Silent Erosion of Human Rights in Democratic Societies: Crisis Governance and the Normalization of Exceptional Powers appeared first on www.iconnectblog.com.
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The continuity of Brazil’s engagement within ZOPACAS will require domestic mobilization of government agencies and support for concrete cooperative efforts in complementary areas.]]>