• Holly Leung, “Peaceful Purposes” in the BBNJ Agreement: The Interpretation and Significance of Article 11(7)
• Chengyu Wang & Jinpeng Wang, Beyond Article 303 of UNCLOS: Interpreting and Reconstructing Coastal State Jurisdiction over Underwater Cultural Heritage in the Contiguous Zone
• Apostolos Tsiouvalas & Manon Rosenthal, Cryopower Unfrozen: No Carte Blanche under International Law for Sea Ice Geoengineering to Restore the Arctic Ocean
• Mehmet Odabaşı & Gökey Saraçyakupoğlu, The Overlooked Type of Piracy: An Assessment of UNCLOS Article 101(a)(ii) and its Contemporary Applicability

     

This moment tracks with broader trends. V-Dem reports that 75% of the world’s population now live in autocracies, and democracy in the United States is ‘deteriorating at unprecedented scale and speed’. At the same time, many Global South states remain committed to international law despite their dissatisfaction with Western double standards. Indeed, states’ engagement with international courts is at a record high. Last year alone, 122 states were involved in contentious or advisory proceedings before the International Court of Justice (ICJ).

In this episode, Leena Grover (Chair of Public International Law, University of St Gallen) explores how the ICC and other courts, states, and civil society can meet this moment and brace for the future. The episode draws together exchanges recorded separately with Ambassador Christian Wenaweser (Permanent Representative of Liechtenstein to the United Nations and former President of the Assembly of States Parties to the ICC, 2008–2011); and with Larissa van den Herik (Professor of Public International Law, Leiden University) and Asad Kiyani (Associate Professor in Law, University of Victoria).

Materials mentioned in the episode, along with other relevant readings, include:

Tom Ginsburg, ‘Authoritarian International Law?’ (2020) 114 American Journal of International Law 221–260.

Statement of Oona Hathaway, President of American Society of International Law, on ICC sanctions (13 Oct 2026)

Başak Çali and Laurence Helfer, ‘Rethinking Human Rights Treaty Withdrawals: A Process-Based Approach’ (30 Oct 2025)

Marc Weller , ‘The US Sanctions against the ICC’ (15 Oct 2026) (mentioning possible EU use of the ‘blocking statute’ and its effects on commercial actors like banks)

US litigation on ICC sanctions: Prost v. Trump (two ICC judges challenging legality of sanctions imposed on them); American Friends Service Committee v. Trump (coalition of nonprofits challenging the legality of sanctioning persons affiliated with the ICC); Smith v. Trump (two American human rights advocates challenging the legality of all sanctions imposed on the ICC); possible further cases in Lawfare’s litigation tracker (search on ‘ICC’)

Kalika Mehta, Sarah Imani & Leokadia Melchior, ‘Prosecutions Across Borders: A TWAIL Review of Universal Jurisdiction Practice: The Case of Germany’ (2024) 22 Journal of International Criminal Justice 631–650

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

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

Developments in Constitutional Courts

1. The European Court of Human Rights unanimously declared inadmissible the applications of five Romanian judges and former judges complaining of the incomplete enforcement of domestic judgements awarding them compensation for discriminatory pay, finding that the gradual enforcement of those judgements amid an acute and prolonged fiscal crisis did not impair the very essence of their right to enforcement. (Pușcașu and Others v. Romania).
2. The Grand Chamber of the European Court of Human Rights unanimously delivered an advisory opinion at the request of the Constitutional Court of Luxembourg, holding that Article 6 § 1 does not in principle preclude requiring lawyers to appear in person before disciplinary bodies, but that refusing on principle to hear counsel instructed by an absent lawyer, without establishing an unequivocal waiver of defense rights or an intention to evade disciplinary proceedings, is likely to amount to a disproportionate restriction of the right to a fair hearing.
3. Germany’s Federal Constitutional Court granted an interim order, by 6–2, requiring the Federal Minister for Economic Affairs and Energy to remove an Instagram video in which she accused Die Linke of openly practicing antisemitism and welcoming organized crime, finding that its continued circulation could cause serious and irreparable harm to the party’s right to equal opportunity in political competition, while expressly leaving the constitutionality of the statements to the main proceedings (2 BvE 5/26).
4. The EU Court of Justice held that Hungary and the Czech Republic failed to fulfil their obligations under the directive on the right of access to a lawyer in criminal proceedings by generally allowing suspects to be questioned without their lawyer if the lawyer did not attend within a set period, two hours in Hungary and 48 hours in the Czech Republic, noting that the right requires, in principle, the lawyer’s physical presence during questioning and that the directive lists exhaustively the grounds for temporary derogation (Commission v Hungary, C-660/24, and Commission v Czech Republic, C-681/24).
5. South Korea’s Constitutional Court upheld, by 8–1, a Criminal Act provision setting a minimum sentence of seven years’ imprisonment for killing one’s own or one’s spouse’s lineal ascendant, compared with five years for ordinary murder, finding that the legislature had a rational basis for the heavier penalty and rejecting claims that it violated the rights to equality and the pursuit of happiness.
6. Georgia’s Constitutional Court began hearings on a lawsuit filed by 88 Georgian Dream MPs seeking to ban five opposition parties, including the United National Movement and Gakharia for Georgia, under Article 23 of the Constitution, which prohibits parties that aim to overthrow or forcibly change the constitutional order; on the first day, the Court rejected motions to recuse its judges and to hear the parties’ cases separately.

In the News

1. A Venice Commission delegation led by its President, Marta Cartabia, held a series of high-level meetings in Bucharest with the President of Romania, the Interim Prime Minister, members of both chambers of Parliament, and judges of the Constitutional Court, marking thirty-five years of cooperation that began with expert recommendations on Romania’s draft Constitution in 1991; at the second Rule of Law Forum that followed, Cartabia presented the Romanian translation of the Commission’s Updated Rule of Law Checklist.
2. Poland’s Sejm passed two bills liberalizing abortion law, one restoring access to abortion in cases of severe and irreversible fetal abnormalities, thereby reversing the effect of the Constitutional Tribunal’s 2020 ruling, and the other easing criminal liability for assisting with abortion; the bills now go to the Senate.
3. The European Court of Human Rights received the 2026 Judicial Independence Award of the International Association of Judges, which honors individuals and institutions that promote and protect the independence of the judiciary; Judge Ana Maria Guerra Martins accepted the award on the Court’s behalf at a ceremony in Lisbon.
4. Voters in Alberta backed remaining in Canada by a margin of about three to one in the October 19, 2026 referendum, rather than beginning the legal process toward a binding vote on separation; with counting still under way, a majority supported the five questions on immigration, while “no” led on all four questions seeking a mandate to pursue constitutional change, including the abolition of the Senate and the priority of provincial over federal laws. Official results are due October 29, 2026.
5. Malaysia’s Prime Minister ordered further consultations on proposed constitutional amendments separating the powers of the Attorney-General and Public Prosecutor, following matters raised by the Malay Rulers at the Conference of Rulers, with any revisions to be presented to the Conference again; a separate proposal to limit the Prime Minister’s tenure also remains under refinement.

New Scholarship

1. Michal Bobek, “How Not to Deal with (Decisions of Irregularly Appointed) Polish Judges”, European Constitutional Law Review (2026) (The article analyzes the recent case law of the Court of Justice on whether judges appointed through unlawful procedures during a rule of law crisis may take part in judicial decision-making and whether their decisions should be declared null and void, as well as its reception by national courts. It argues that, in the abstract battles over the primacy of EU law and the protection of EU values, courts must not lose sight of the core purpose of any judicial system: the sensible resolution of social conflicts and the protection of individuals’ rights and legitimate expectations).
2. Graziella Romeo, “Interpretive Challenges to the Total Constitution: Sovereignty, Supremacy and the Politics of Textualism in Europe” European Constitutional Law Review (2026) (The article examines how constitutional interpretation both sustains and challenges the model of total constitutionalism in the European Union. It argues that textualist and formalist approaches in parts of Europe have been used to assert national sovereignty through the language of constitutional supremacy and identity, raising questions about the relationship between supremacy, sovereignty, and democratic legitimacy).
3. Anna-Bettina Kaiser, “The Constitutionalisation of the State of Emergency under the German Basic Law – on the Way to a Total Constitution?” European Constitutional Law Review (2026), (Responding to accusations of a “total constitution” and the excessive constitutionalisation of political life in Germany, the article examines the role of constitutional courts and the constitutionalisation of the state of emergency under the Basic Law. It assesses the effectiveness of a high degree of constitutionalisation, stresses its dependence on specific cultural and historical circumstances, and questions its presentation as a universal model).
4. Xiaoshan Zhang, “The Use and Misuse of the Lex Specialis Principle in Hong Kong’s Fundamental Rights Adjudication” German Law Journal (2026) (The article examines the increasing invocation of the lex specialis principle by Hong Kong courts in landmark cases on indigenous inhabitants’ rights, freedom of marriage, and the treatment of same-sex couples, arguing that its use was sound in Kwok Cheuk Kin but problematic in Sham Tsz Kit. It contends that where constitutional instruments offer different levels of rights protection, courts should, absent clear legislative intent to the contrary, uphold the higher standard rather than rely on lex specialis).
5. Pieter Cannoot, “Protecting (Trans and) Non-Binary People Against Discrimination in and Through EU Law: Time to Overcome Blind Spots” German Law Journal (2026) (Drawing on recent empirical data, including the 2023 FRA LGBTIQ Survey, the article shows that EU law still lacks explicit protection against discrimination on grounds of gender identity and gender expression, and that the Court of Justice’s case law extending sex discrimination to trans persons leaves significant blind spots, particularly for non-binary individuals. It argues for a more inclusive reading of “sex” in EU equality law and addresses the doctrinal challenges of balancing the interests of cisgender women with those of trans and non-binary people).
6. Stephen Gardbaum, “Authoritarian Populism and the Rule of Law,” California Western Law Review (forthcoming 2026) (exploring the relationship of authoritarian populism to the rule of law and considering how, if at all, it differs from those in three types of fully authoritarian regimes)
7. Martin Kwan, “Bestowing citizenship to foreign nationals: when is such intrusive and weaponized?” Ohio Northern University International Law Journal (2026) (contributing to the literature on the weaponization of citizenship, and construing a rebuttable presumption that a citizenship measure is not weaponized, giving the benefit of doubt as the starting point of analysis).

 Calls for Papers and Announcements

1. The International Association of Constitutional Law invites proposals to host its 2030 World Congress from universities, academic institutions, and national associations of constitutional law. Applications are due April 2, 2027.
2. The Chancellery of the Sejm of the Republic of Poland and the International Association of Constitutional Law will hold a Warsaw Roundtable on “Parliamentarism and Electoral Systems in the 21st Century” on November 23–24, 2026.
3. The Amsterdam Centre for European Law and Governance will hold its annual conference on “Post-Regulatory EU Law: How Revenue and Spending Reshape the European Polity” at the University of Amsterdam on November 30, 2026. Registration closes November 27, 2026.
4. The European Consortium for Political Research invites paper proposals for its Joint Sessions of Workshops, to be held at the University of Trieste, June 1–4, 2027. Proposals are due December 14, 2026.
5. The University of Groningen invites abstracts for a workshop on “Community Interests in International Law: Theory, Adjudication and Human Rights,” to be held in Nijmegen on June 11, 2027. Abstracts are due January 15, 2027.
6. The Max Planck Institute invites early career researchers looking for academic opportunities in law or interdisciplinary legal studies to join the Max Planck Open House, an online information session plus Q&A to be held on 1 December 2026 at 11:30 CET.

Elsewhere Online

1. Samantha Trepel, “Dissecting DOJ’s Letter to California Election Officials: Empty Threats of Criminal Liability” (Just Security, 18 October 2026).
2. Oren Perez, “The Law of Stop: Constituting a Stopping Regime for Agentic AI” (Verfassungsblog, 19 October 2026).
3. “Constitutional Rewriting in Fiji: Does the Government’s Constitution Bill Pass the Supreme Court’s Tests?” (ConstitutionNet, 19 October 2026).
4. Craig Wells, “The Veneer of Contentment: Mustafa, Salford and the Gaps the Deprivation of Liberty Reference Left Behind” (UK Constitutional Law Blog, 19 October 2026).
5. Visakesa Chandrasekaram, “Excavating Memory and Archiving Emotion in The Palimpsest Constitution” (IACL-AIDC Blog, 20 October 2026).
6. Amy J. Cohen, “Prefigurative Palimpsests” (IACL-AIDC Blog, 22 October 2026).

The post What’s New: Week of October 26 appeared first on www.iconnectblog.com.

2. Teaching and Experiencing International Law through Legal Clinics Webinar. On Friday 30 October at 11 – 12.30 CET/Rome Time, the ESIL Teaching Corner will be hosting  a webinar on ‘Teaching and Experiencing International Law through Legal Clinics’. Register here. The webinar will convene academics engaged in clinical legal education to explore the opportunities and challenges of using legal clinics as a participatory methodology for teaching international law, including through the engagement with external partners and institutions at the international and domestic level.

3. Call for Papers: Law, Space and Borders. Critical Legal Geographies of Contemporary Borderscapes Workshop. The University of Palermo and the international network of Critical Legal Geographers are inviting interested scholars to submit abstracts (300 words maximum) for an in-presence workshop. Proposals for individual papers, pre-constituted panels or roundtables, and non-conventional formats (walking seminars, visual or performative interventions, workshops) are particularly welcomed. Deadline is 8 November 2026. See here. Workshop dates 25 – 26 February 2027.

4. Call for Submissions: The Hague Yearbook of International Law. The Hague Yearbook of International Law is organising a symposium on “Revisiting the Threat or Use of Force in International Law”, due to be published in Volume 40 (2027). They are welcoming contributions on topics relating to the modern law and practice of the use or threat of force in international law. The full Call for Papers can be found here. Article submissions should be 10,000-15,000 words in length, written in either English or French, and should be submitted to hagueyearbook {at} gmail(.)com by 15 March 2027. They aim to contact authors with an initial decision by the end of April 2027.

• Zehra F. Kabasakal Arat, Decline of Democracy in Class and Identity Politics: A Human Rights Theory of Democracy
• Denis G. Arnold, Structural Coercion and Sweatshop Exploitation
• Christina Zampas, Jaime M. Gher, & Fiona de Londras, The Right to Abortion in International Human Rights Law
• Margot E. Salomon, Indivisible Rights in Radically Unequal Society: Plural Epistemologies, Democratic Renewal, and the Making of a Holistic Jurisprudence
• Javeria Shams, Intersection of Gender, Caste, and Religion: Forced Religious Conversion of Hindu Women in Pakistan
• Lili Song, Skirting International Law or Unlawful? China's Pursuit of Forced Repatriation of Certain Chinese Refugees from Other Countries

     

In the recent Bangladesh case of Mohammad Saddam Hossen v Bangladesh, one advocate took an unconventional approach in arguing against the constitutionality of Article 116 of the Constitution of Bangladesh, as amended by the 4^th and 15^th Amendments. Instead of solely relying on the basic structure doctrine, which has already largely been incorporated within the constitutional jurisprudence of Bangladesh, he put forward an additional line of argumentation based on the doctrine of supra-constitutionalism. Although the Court did not directly engage with this argument (or the doctrine, for that matter), this event reminds us of the growing interest in this concept in academia, possibly even foreshadowing a situation where the Supreme Court of Bangladesh (SCOB) cannot but engage with this doctrine in a future case.

As such, we believe a close examination of this concept is imperative. We argue in this blog that within Bangladesh’s constitutionalism, there is a possibility, albeit unexplored and limited, of incorporating the doctrine of supra-constitutionalism indirectly. We think this will mitigate some of the concerns existing presently with the basic structure doctrine. However, we caution that a wholesale adoption of the doctrine may neither be possible nor desirable.  

‘Basic Structure’ doctrine vs ‘Supra-Constitutionalism’ doctrine

To put it simply, the basic structure doctrine deals with the question “whether an amendment would make the Constitution cease to be recognizably itself”. The doctrine was developed by the Dacca High Court in the case of Fazlul Quader Chowdhury (1963) and by the Indian Supreme Court in the famous Kesavananda Bharati (1973) case, and it was soon adopted by the SCOB in the Eighth Amendment case. Essentially, the doctrine distinguishes between ‘amendment’ power and ‘constituent’ power. It argues that although a constituent assembly can bring about wholesale change to the Constitution or even write a new one exercising its constituent power, the amendment power of the Parliament is limited, as the latter is a creation of the Constitution itself. In other words, since the amendment power is a derivative power, it cannot destroy the basic structure of the Constitution, which was created through the constituent power.

Supra-constitutionalism doctrine, on the other hand, is the idea that certain rules or principles are situated above the domestic constitutional legal order, such as natural or international law. For instance, Serge Arne says that according to this doctrine, some rules or principles are placed above the content of the constitution itself, whether they are explicit or implicit. In other words, supra-constitutionalism asks: are some norms superior to the constitution itself? Indeed, Constitutions sometimes explicitly permit placing natural law or international law above the constitutional legal framework, e.g., Swiss Constitution in Articles 193(4) and 194(2). However, this explicit reference too serves only a declaratory function, not a constituent one.  

In summary, there are three main differences between the two approaches. In terms of what is unamendable, the basic structure doctrine posits that amendments cannot alter the identity or the basic structure of a constitution. In contrast, the concept of supra-constitutionalism dictates that what remains unalterable is a ‘higher law’, whether it is principles of natural law, international law, or regional law. Secondly, in terms of the foundation of the ‘unamendability’, the former has its roots within the constitutional legal order itself, whereas the latter relies on a legal order beyond and above the domestic constitutional order. And finally, the basic structure doctrine is limited in that it only limits the amendment power of the Parliament, whereas supra-constitutionalism, theoretically speaking, restricts even the constituent power. 

The Experience with the Basic Structure Approach in Bangladesh

The primary problem with the basic structure doctrine is the indefiniteness of its content. While judges decide what is part of the basic structure, different judges consider different principles to be part of it. There are also variations across jurisdictions. As such, what the basic structures of a constitution are often depends upon the judges in a particular case, their political ideology, the school of thought they subscribe to, experience, and what they focus on as well as what they overlook. As a result, it may make the entire process of unamendability too dependent on the particular predilections of the judges in a particular case. Take, for instance, the case(s) of the Caretaker Government (CTG) in Bangladesh. For foreign readers, the CTG is a non-partisan, interim government that must organize national elections in Bangladesh, which was introduced into the Constitution through the 13^th Amendment. When this Amendment was challenged, initially the High Court Division (HCD) held that the CTG did not violate any basic structure of the Bangladesh Constitution. On appeal, however, the Appellate Division (AD) held in 2012 that the CTG violated the basic structure since it was incompatible with the principle of democracy. Subsequently, Parliament adopted the 15^th Amendment to the Constitution to remove the CTG-related provisions. After the 2024 uprising in Bangladesh, the judges of the AD, including the Chief Justice himself, resigned. Completely overturning the AD’s appellate stage judgment, in the review judgment of the 13^th Amendment case, the AD unanimously found that the CTG did not violate the basic structure of the Constitution. To make the matter even more interesting, in the 15^th Amendment judgment by the HCD, the Court said that removing the CTG should be treated as amounting to a breach of the basic structure of the Constitution (more particularly, the commitment to democracy). This example clearly shows how the basic structure has been interpreted radically differently by different judges.

Can the ‘Supra-constitutionalism’ Approach Save the Day?

The answer is both yes and no. Yes, because the contents of ‘supra-constitutionalism’ are more precisely defined than under the basic structure doctrine. It is true that relying on natural law is not an option, as it suffers from the same lack of systematic nature, precision, procedural accessibility, and effectiveness to function as a norm of reference for judicial review.

However, having recourse to certain principles and norms of international law can be a feasible solution. For instance, norms of jus cogens, human rights, democracy, and rule of law have near-universal endorsement. Needless to say, the acceptance of supra-constitutional principles and norms is dependent on widespread and near-universal consensus. As such, a single judge or a bench of judges in a case cannot arbitrarily modify the list, or at least, it is more difficult to do so. Hence, if the concept can be incorporated within Bangladesh’s constitutionalism at least to a limited extent, we believe it will enable greater consistency in the case law of the SCOB.

But how accommodating is Bangladesh’s Constitutionalism?

It should be clarified that Bangladesh’s Constitution does not contain any explicit provision allowing supra-constitutional norms to be placed above the Constitutional legal framework, unlike those of Switzerland and Bosnia and Herzegovina. In fact, Article 7 of Bangladesh’s Constitution unequivocally establishes constitutional supremacy. Moreover, the judiciary of Bangladesh has generally taken a dualist approach in terms of applying international law. Hence, a wholesale adoption of the supra-constitutionalism approach is not possible. However, we argue that an indirect adoption of this concept is still possible and necessary.

The first reason is that Bangladesh’s constitutional framework permits an indirect adoption of this concept. In fact, its constitutional design, history, and the Constituent Assembly debate clearly demonstrate respect for international law, particularly international human rights law. The text of the Constitution, the Preamble and Article 25 mention ‘fundamental human rights and freedom’, ‘international peace and cooperation’, and ‘international law’. Additionally, democracy, rule of law, human rights (both civil and political rights, and economic, social and cultural rights), separation of powers, and independence of the judiciary have been firmly incorporated within the constitutional design. This was not at all an isolated event. The Proclamation of Independence, which is considered Bangladesh’s interim constitution during the liberation war and is part of the Constitution as a schedule, explicitly included a promise to give effect to all duties and obligations under international law. A reading of the Constituent Assembly’s debate also  shows how international law, especially the UDHR, influenced the constitution drafting process (9^th Sitting: 25 October 1972). All of these together show how, irrespective of whether we choose to read the Constitution in a textual, contextual, originalist, or teleological light, the limited adoption of supra-constitutional principles is justifiable.     

Additionally, the judiciary of Bangladesh, although known for its dualist traits, has shown what Prof. Ekramul Haque labelled as ‘creeping monism’. In BNWLA v Bangladesh (2009), the SCOB held that in areas where there is a lacuna in the domestic law, international law will apply. In the same light, in HM Ershad v Bangladesh (2000), it was held that international obligations cannot be simply ignored just because Bangladesh is a dualist country. Again, in the Mohammad Saddam Hossen judgment, to determine the constitutionality of Article 116, the court looked to the UN Basic Principles on the Independence of the Judiciary and the Commonwealth (Latimer House) Principles to see how judicial independence is interpreted globally and to support its findings. Hence, the application of international law is very common in relevant cases, including basic structure doctrine cases.

The second reason why Bangladesh’s apex court can consider incorporating this concept, albeit indirectly, is that there is growing global consensus on the preeminent importance of supra-constitutional principles. For instance, according to some, international human rights have gained a sort of global constitutional status. Jorge Tapia Valdés, for instance, suggests that the globalization of rights and jus cogens norms set new limits on amendment powers. In fact, international courts and tribunals have often held certain constitutional provisions of countries violative of such principles and, as such, void. For example, the European Court of Human Rights criticized Article 70(5) of the Hungarian Constitution for indiscriminately depriving the right to vote from persons placed under total or partial guardianship. Another example is Security Council (SC) Resolution 554 of 1984, regarding the new Constitution of South Africa of 1983 that established an apartheid regime. In that resolution, the SC declared that it “strongly rejects and declares as null and void the so-called ‘new constitution’”, as the text was held to contradict fundamental principles laid down in the UN Charter, mainly racial equality. Hence, international practice also demonstrates the supreme importance of such principles.

The Way Forward

The actors in Bangladesh’s constitutional arena now face a dilemma. With the growing popularity and acceptance of certain principles and norms as supra-constitutional, judges must decide where to place this concept within their constitutional case law. On the one hand, the inconsistent and unpredictable exercise of power via the basic structure doctrine by the Bangladesh judiciary necessitates sufficient guardrails. On the other hand, a complete replacement of the basic structure doctrine with the supra-constitutional doctrine seems neither permissible nor desirable. The solution, we argue, lies in an indirect adoption of the concept of supra-constitutionalism. The supra-constitutional principles should be used by the judiciary ‘consciously’ and ‘systematically’ to identify, interpret, and find grounds for principles it deems to be part of the basic structure. It is true that the SCOB often does this already. However, we posit that this is neither a conscious effort on the part of the Supreme Court nor a systematic practice; rather, it is sporadic. Unfortunately, the Court never clarifies its reasons or in what capacity such instruments are used. We propose that the supra-constitutional concept can help in at least three aspects. First, it can help the SCOB identify the principles it needs to protect. Second, it can help build a stronger rationale for holding certain principles and norms as unamendable. And finally, it can also be helpful in interpreting these principles.

Conclusion

Constitutionalism is an evolutionary arena. Every country constantly develops it, learns from its experiences, and contemplates what possible solutions are on hand. The innovative argument made in the Saddam Hossain case provides a good opportunity to ponder the problems with the basic structure doctrine and whether the concept of supra-constitutionalism can help mitigate it. Even if we eventually reject this theory, is it not worth considering it?

Suggested citation: Rafid Azad Saumik and Abdul Awal, What the Doctrine of Supra-Constitutionalism Can Teach Bangladesh, Int’l J. Const. L. Blog, Oct. 24, 2026, at: http://www.iconnectblog.com/what-the-doctrine-of-supra-constitutionalism-can-teach-bangladesh/

The post What the Doctrine of Supra-Constitutionalism Can Teach Bangladesh appeared first on www.iconnectblog.com.

This comprehensive Research Handbook provides an outline of how the norms of international law are enforced and evaded by national and international authorities. Leading experts explore how international law is and ought to be enforced, in support of a more legitimate, effective, and just global order. The book addresses the enforcement of human rights law, the law of armed conflict, international criminal law, international environmental law, international economic law, and the law of the sea across jurisdictions, drawing on case studies from Asia, Africa, Europe, and North and South America.

     

• Articoli e Saggi
• Ivan Ingravallo, La risoluzione 2803 su Gaza e i limiti del sistema di sicurezza collettiva dell’ONU
• Mouhamed Cissé, Le Conseil de Paix: de l’indépendance fictive à l’organisation «fantoche»?
• Diego Zannoni, Is a Just War Conceivable Under Current International Law?
• Carlo Jr. Iannotti, La fine del sistema rule-based: anatomia della paralisi dell’Organo di appello dell’OMC
• Osservatorio Diritti Umani
• Giorgia Pane, Condotta responsabile d’impresa in contesti di conflitto armato: il difficile bilanciamento fra permanenza e uscita alla luce della Heightened Human Rights Due Diligence
• Osservatorio Europeo
• Gabriele Ganfi, La direttiva UE anticorruzione del 2026 e l’abrogazione italiana dell’abuso di ufficio: profili di compatibilità e recepimento
• Note e Commenti
• Antonio J. Palma, Riflessioni critiche sugli atti finali del G7 di Évian 2026
• Martina Lillo, The Role of Transgenerational Justice for Sustainability: Challenges and Prospects in Global Governance for the Future

     

At ICONS 2026 in Dublin, we had the privilege of hearing eminent postcolonial scholar E. Tendayi Achiume speak about legal fictions, including borders and the closely connected figure of the “migrant.” To conclude, while remaining within the theme of fictions and their sometimes alarming implications, she turned to the American charter city “Honduras Próspera, Inc.”, founded by venture capitalists and self-described as “a special economic zone in Honduras designed to create prosperity through economic freedom, rule of law, and innovative governance. Founded on the principles of voluntary association and entrepreneurial innovation, Próspera provides a platform for individuals to create value through business ventures that drive social progress and prosperity.”

This special jurisdiction even holds weekly public calls to recruit new members or encourage prospective visitors. Like many others in the audience, I had never heard of this special economic zone established on the island of Roatán. Comparable in size to Hong Kong and itself a former British colony, the island now hosts more than 500 businesses operating under Próspera’s legal framework, as well as a population of approximately 2,000 residents (it is also possible to apply to become “e-resident”). It therefore seems that Erick Brimen, its founder, has realized the colonial dream first set in motion by Christopher Columbus when he encountered the island during his fourth voyage.

At the time of the keynote, however, I knew none of this. Upon hearing the name Próspera, my mind immediately turned instead to Prospero, the central character of “The Tempest”, one of William Shakespeare’s last plays. At the beginning of the drama, Prospero is the deposed Duke of Milan, overthrown and exiled by his brother Antonio. For twelve years he lived on a deserted island with his daughter Miranda. Through the exercise of magic, he subjugates the island’s spirits to his service and survives there until he learns that his brother is sailing nearby in the company of Alonso, King of Naples. He then conjures the tempest that gives the play its title, bringing his enemies ashore before him. After subjecting them to a series of ordeals that are both punitive and initiatory, Prospero ultimately determines both their fate and whether forgiveness is possible.

Próspera / Prospero : A tragicomic resemblance

By a curious play of association, the two “(science-)fictional” islands—that of Próspera and that of Prospero—seem to mirror one another in a strikingly tragicomic resemblance. In Law and Literature scholarship, “The Tempest” has been interpreted, among other views, as an allegory of European colonialism.

This blog post seeks both to preserve the trace of a shared intellectual moment experienced by all who attended ICONS 2026, taking the keynote’s arguments as its point of departure, and to reflect on the relationship between Próspera and Prospero. More specifically, I propose drawing a parallel between, on the one hand, Próspera’s rhetoric of quasi-magic —its promises of an economic miracle and libertarian conquest against a supposedly restrictive legal order— and, on the other, Prospero’s supernatural powers, which enable him to do both good and evil as he exacts revenge upon the political order that betrayed him. Two islands that seem to echo one another, and perhaps, across the centuries, are in some sense one and the same.

What Parallels? What Similarities?

Prospero, the deposed Duke of Milan, and his daughter Miranda arrive shipwrecked on an enchanted island. He then realizes that his powers allow him to virtually create whatever he wants and to enslave the spirits of the island, including Caliban, a “savage” impossible to civilize, to whom the island belonged before Prospero’s arrival and who worships « Setebos », a god from Patagonia. Ariel, a spirit whom many authors have interpreted as “Prospero’s imagination,” is made by Prospero the executor of all his plans. When his former enemies, who had conspired to bring about his downfall, find themselves on ships near the island, Prospero causes them to be shipwrecked and plays mischievous tricks on them until the “happy” ending, in which everyone understands their faults, is forgiven, the children marry, and Prospero regains his Duchy of Milan. In Shakespeare’s version, Ariel and Caliban are slaves, and only Ariel, after much insistence and as a reward for his good behavior, is freed. Caliban, meanwhile, is reviled to the very end.

Some authors have considered the play political, seeing in it the difficulties of creating an ideal state when confronted with the plebs (Caliban), while others have interpreted it as an autobiography of Shakespeare saving the world through his art, his “magic.” In 1969, Aimé Césaire adapted the play to highlight the colonialist issues that structure it. In his version, Caliban and Ariel are Black and mixed-race slaves who try to free themselves, one through rebellion and the other through peaceful struggle. At the end of the play, as Caliban predicted, Prospero, a white master, refuses to leave the island after so many efforts to colonize it and remains alone to dominate Caliban until the end. The play closes with Caliban’s song of freedom, as he himself will never stop fighting against his master. The play’s symbolism reflects different strategies of liberation, with Ariel recalling Martin Luther King and Caliban recalling Malcolm X.

This latter version seems closer to contemporary reality, where it is difficult to see Prospero as a great civilizer using his “art” to build a better island. Moreover, Caliban often reminds Prospero that after his shipwreck, Caliban showed him where to find wood, fruit, and birds. Prospero was therefore at the mercy of the very person whom he would later reduce to slavery, which is not without recalling the adventures of the first settlers of the New World, whatever the sanitized versions of Thanksgiving may say.

Prospero, this noble master in Europe who transposes this role of superiority into other parts of the world, which he claims to have created from scratch but which pre-existed him in all their enchantment, might have created Próspera. A city in his own image, responding only to his will. Invisible and artificial borders between the state of Honduras and the libertarian state of Próspera Inc., which Prospero boasts about as a series of achievements. The enchanted island resembles the island of Roatán, lush and surrounded by the sea, and Prospero in 2026 would undoubtedly have been a venture capitalist, using his laws-above-laws as magical spells to create whatever pleases him, regardless of the pre-existing reality upon which he settles.

Prospero 2026 and his “board” would undoubtedly have considered those opposing the establishment of this self-governing ZEDE as Calibans and Ariels. If Ariel chooses the legal path, like former President Xiomara Castro, who in April 2022 tried to introduce legislation to repeal ZEDEs before being sued and threatened by the USA, perhaps time will eventually bring about more “Caliban”-style acts of sabotage? Perhaps the neighbors of the village of Crawfish Rock, fearing expropriation and whose garbage dump and electricity system are used by Próspera, will revolt?

Prospero, deposed from the Duchy of Milan, wanted to recreate an ideal land on his island, to such an extent that he even wished to civilize the “savages”: will Próspera become a new site for the experimentation of such aspirations? We know that medical experiments beyond the control of authorities are taking place there, from which the millionaire Bryan Johnson has notably benefited. On his official website, he writes: “2025 a new era of human begins, rage, rage against the dying of the light, become a practitioner of the don’t die ethos, we are at war with death and its causes, building towards an infinite horizon, fighting for the freedom to exist as long as one chooses,” and proposes becoming a “Don’t Die Citizen” (a consumer of his Blueprint dietary supplement products). Are the “savages” simply the other mortals outside the ZEDEs?

Conclusion: Will We Be Ariels & Calibans?

In Shakespeare’s play, all is well that ends well: Prospero leaves to reclaim his duchy, Miranda marries Ferdinand, thereby forming new political alliances, and the former conspirators are forgiven. In 2026, Prospero does not want to leave his island, which he controls and that makes up 4% of the total area. His magic also consists of interfering in Honduran politics to back his Próspera project, through the USA or Israel (Trump backed the campaign of the current Honduran president, Asfura, who is in favor of ZEDEs). Despite numerous articles about the issues surrounding Próspera, the project is expanding rapidly, and lawsuits against it are struggling to slow it down.

The artificial is therefore no longer found only in state borders, but also in private borders created by individuals like Prospero, who seek to appropriate already populated islands through the power of their money, like great dukes. Just as Aimé Césaire revisited Shakespeare’s play, whose meaning now needs to be overturned to make it bearable to read, let us call upon the Ariels and the Calibans to denounce the neo-coloniality of such projects. Just as E. Tendayi Achiume invites us to do, scholars, practitioners, and other lovers of literature or justice, let us be the Ariels, the Calibans.

Suggested citation: Aurélia Gervasoni, Próspera Inc., Prospero’s Island? Reflections on ICONS 2026’s Keynote Int’l J. Const. L. Blog, Oct. 23, 2026, at: https://www.iconnectblog.com/prospera-inc-prosperos-island-reflections-on-icons-2026s-keynote/

The post Próspera Inc., Prospero’s Island? Reflections on ICONS 2026’s Keynote appeared first on www.iconnectblog.com.

13th ICON·S Annual Conference
30 June – 2 July 2027 · Academia Sinica, Taipei, Taiwan

Submissions for the 13th ICON·S Annual Conference are now open.

We are pleased to invite you to participate in the 2027 ICON·S Annual Conference, which will be hosted by Academia Sinica in Taipei, Taiwan, from 30 June to 2 July 2027.

The conference theme is Global Trajectories of Public Law: Endurance and Contestation. We particularly encourage submissions relating to the theme, but welcome proposals addressing all areas of public law, broadly defined.

We are pleased to partner with Academia Sinica and to continue our tradition of a diverse and global event, gathering scholars, practitioners and judges from all over the world to discuss the research of our ICON·S members.

Submissions

The backbone of the Annual Conference continues to be the concurrent panel sessions. These will take place across all three days of the conference and will be composed of submissions selected through this call. There are three types of submission.

Individual submission
Submit a paper you would like to present in a panel we put together.

Organizer of a fully-formed panel or book roundtable
If you are organizing a fully-formed panel or book roundtable composed of multiple paper presentations around a unified theme, or dedicated to discussing a book.

Participant in a fully-formed panel or book roundtable
Submit a paper for, or indicate that you will be acting as a chair or discussant on, a fully-formed panel or book roundtable.

Key dates

• 15 November 2026 – Fee waiver requests close. If you are unable to pay for your membership, apply for a waiver by this date.
• 1 December 2026 – Early decision. If you require an earlier decision, for a visa, funding or any other purpose, submit by this date and you will receive notification by approximately 15 December 2026.
• 15 February 2027 – Submissions close at 11:59 pm EST. You should receive notification of our decision by approximately 15 March 2027.

How to submit

Each submission type has distinct requirements, detailed on its own submission page, which you can reach from the Call for Submissions page. In general, all submissions should include a title, an abstract of up to 250 words and biographical details of participants.

The entire conference process, including submissions, decision notifications, conference announcements and participation certificates, will be managed through the Oxford Abstracts conference management software.

Please ensure that the email address associated with your Oxford Abstracts account is one you use regularly, as all communication regarding the conference will be sent to that address. Use the same address consistently at every stage of the conference; failure to do so may result in issues such as appearing unregistered.

All participants involved in a fully-formed panel or book roundtable – the organizer included – must make separate submissions alongside the overarching proposal submitted by the panel organizer.

Each individual must also be an active member of ICON·S in order to make a submission. If you are unable to pay for your membership due to legal restrictions or financial hardship, you can apply for a waiver by 15 November 2026.

Submit your proposal via the Call for Submissions page on the ICON·S website.

Registration and participation

If your proposal is accepted, you will need to register for the conference via Oxford Abstracts in order to confirm your participation. The relevant details and deadline will be included in the acceptance email. Please remember that notification of acceptance does not equate to registration for the conference.

Information about visas and accommodation, including discounted accommodation, can be found here.

The 2027 Conference will be held fully in person. All panels and book roundtables will take place on site at Academia Sinica, and there will be no remote or hybrid participation option. No requests for virtual participation will be entertained.

The call for submissions and other details of the Annual Conference are also available on our website. For any inquiries regarding the 2027 ICON·S Annual Conference, including technical queries about the submission system, please contact us at icons@icon-society.org. You can also refer to our FAQs for common questions regarding submissions (also available as a screen-reader-friendly Word version).

Help with your submission

Two recordings from the ICON·S team, on YouTube:

• How to write a good conference abstract – a dialogue with Yuliya Kaspiarovich, Evan Rosevear, Amal Sethi and Leticia Kreuz
• How to convene a good ICON·S panel – a dialogue with Sergio Verdugo, chaired by Yuliya Kaspiarovich

We look forward to receiving your submissions, and to seeing you in Taipei.

The ICON·S Team

The post Call for Submissions – ICON·S 2027 Annual Conference, Taipei appeared first on www.iconnectblog.com.

In spring 2026, U.S. Ambassador to Greece Kimberly Guilfoyle was shuttling to Sofia. Washington wanted governments on Europe’s eastern edge to buy American liquefied natural gas, and she told Bulgarian officials they should deal with a Greek construction firm, Aktor Group, a newcomer to the gas business that had teamed up with a Greek state-backed energy company to import it. According to the Wall Street Journal, a 39-year-old named Christos Marafatsos sat beside her in an audience with the Bulgarian president. He had attended so many of her meetings that some foreign officials took him for her chief of staff. He is in fact a lobbyist for Aktor, whose chief executive had flown the ambassador to Bulgaria on a private jet.

Nothing in that account requires a finding that anyone broke a law, and this post does not suggest it. The constitutional interest lies elsewhere. A private commercial actor reached the Bulgarian president from a seat beside a public official, and, in the Journal’s telling, some of the people across the table did not know which of the two roles he occupied. Several people who met with the pair, including government officials, told the newspaper that he did not disclose his tie to Aktor.

This post follows The Informal Constitution of Access, on Greek Health Minister Adonis Georgiadis, who was asked on live television why, as an MP, he had messaged a private company executive to have a friend’s website included in an advertising campaign, and answered that MPs do favors. There a friendship opened a channel to a public figure’s influence, and the officeholder defended that as ordinary. Here a commercial interest travels in the company of the public office itself, toward another state. The first post considered who could get through to State power. This one asks whose power is being exercised.

A seat beside the ambassador

The policy behind the trips is not in dispute. The U.S. administration wants European states to buy more American gas and less Russian gas, and Guilfoyle has promoted a Vertical Gas Corridor that would bring U.S. liquefied natural gas into Greece and move it north. Commercial advocacy is part of an ambassador’s job.

The Journal’s reporting concerns how that advocacy was conducted. It describes Guilfoyle urging Bulgarian officials to work with Aktor specifically, which a person familiar with the talks characterized as something close to the official position of the U.S. government. It describes Marafatsos, a newcomer to both diplomacy and energy, as a constant presence at her meetings, and says officials across the region were puzzled. It reports that Aktor has signed memoranda of understanding and commercial agreements with gas companies in Bulgaria, Ukraine, Bosnia and Herzegovina and Romania.

Each of these points has an answer. Marafatsos has denied wrongdoing and says he is proud to champion commercial initiatives that advance U.S. interests; his lawyer disputed some elements of the Journal’s reporting. Guilfoyle’s lawyer, Jesse Binnall, said she has worked with companies across the energy sector and that her official meetings are arranged through embassy channels, not through Marafatsos. The U.S. Embassy told the Journal that the Bulgaria trip was meant to increase American LNG sales to European partners and reduce Europe’s dependence on Russian energy. Aktor’s lawyers said the company’s involvement began before it had any contact with the ambassador. Nothing in the reporting I have seen establishes that Aktor, Marafatsos or the ambassador acted unlawfully. Aktor appears here as an example of a structure. It is not on trial in this post, and a different firm on a different corridor would illustrate the same point.

Who is speaking, and for whom?

A constitutional order is partly a system of attribution. It tells a counterparty who speaks for the state, with what authority, and to whom that person answers. The Journal describes a table where that system strained. A private representative sat where an official aide would sit, and some of the officials across from him took him for one. Whether Aktor’s interest was being presented as U.S. policy, or U.S. policy happened to coincide with Aktor’s interest, is what an outside observer cannot tell, and some of the officials in the room appear to have had the same difficulty. Either way, the message arrived with the weight of a state behind it.

Two questions follow. Who is speaking, and for whom? And whose interests is the state presenting abroad? Neither depends on whether a law was broken. In this case the channel is informal, so a breach is hard to identify, and the channel still bears directly on who reaches state power.

External influence acquires constitutional significance, even where no formal rule is violated, when proximity to public power becomes a substitute for formally accountable channels of representation and decision-making. Two further features mark that point. Access is asymmetrical: in the meetings the Journal describes, one firm’s representative sat beside the ambassador, and no comparable seat is described for a competing supplier or for the public of the country being lobbied. And the decisions at stake belong to other procedures, such as procurement, regulation or parliamentary approval, which hear from parties in specified ways and give reasons. An informal channel running alongside them need not defeat them; being more effective is enough. As in the Georgiadis case, the constitutional injury, if there is one, occurs before anything the law is built to catch.

Four terms need to be kept apart. Access, in the sense of the ability to be heard by a decision-maker, is unobjectionable in itself, and diplomacy depends on it; what matters is how it is allocated. Influence is the capacity to shape a decision through access, argument or inducement, and most of it is lawful. Pressure is influence carried with a signal of cost, expressed or implied. Intervention displaces a state’s own decision-making, so that someone outside it determines who holds power or what the state decides, and it requires evidence of coercion or a determining contribution. Each step needs its own evidence. The separation keeps lawful access and influence from being recast as pressure or intervention without the evidence that either of those labels requires. The public record on Marafatsos supports a discussion of the first two. The dinner in Athens, discussed immediately below, bears on the third if it occurred as reported. Nothing published so far establishes the fourth.

The dinner in Athens

Another passage in the Journal’s report has wider consequences. According to the newspaper, at a dinner in Athens in March attended by Greek and American officials, Guilfoyle argued with Greek Environment and Energy Minister Stavros Papastavrou. Referring to the imminent collapse of Romania’s government, she said: “We can do that to any country we want. We can do that here.” The Journal attributes the account to a person who attended the dinner and to others who were told about it afterward. Guilfoyle’s lawyer disputed the Journal’s description of the exchange. The words are an allegation about a private conversation, reported without a recording.

According to the report, Papastavrou answered that the United States could not replace a government elected by the Greek people. Greek press reported on 27 September that no minister had confirmed or denied the account, and by 28 September four opposition parties were demanding answers and accusing the government of silence.

The reported remark is not evidence of intervention. Said to a sitting Greek minister in a heated argument and extended to Greece, it speaks, if reported accurately, in the grammar of pressure. It can be read as an assertion of capacity. Where it was said, it can also be heard as a warning, and the two readings are hard to separate without the speaker’s account. What it describes is a senior representative of a powerful state treating other countries’ governments as within her state’s reach.

The reported reply matters as a statement of principle, whatever it did or did not prevent. It sets out the standard against which the remark is measured: a government is formed and removed through the procedures of the state’s own institutions, and the authority to decide belongs to the citizens who elect it, not to a foreign capital. That principle is the reference point whether or not the exchange happened as reported.

A regional setting

Greece, Romania and Bulgaria are not parts of a single plan. A corridor links them, a commercial actor has agreements in the region, and a diplomat whose office is in one country travels to the others. Public diplomacy, private commercial interest and informal access overlap in that setting, and the participants draw the lines case by case, out of sight of anyone outside the room.

Normal by its own account

In the earlier post the decisive moment came when clientelism ceased to be an allegation made against power and became, in the words I used then, power’s description of itself. Something comparable happens at the dinner table, if the Journal’s account is accurate: power describes what it takes to be normal, here what one state can do to another’s government. One statement is on the record and the other is disputed.

An informal channel need not leave a formal act behind. It can also change who is taken to speak with the voice of the state before any decision exists to be reviewed. By the time a contract is awarded, a coalition collapses or a vote is taken, the question of who was speaking has already been settled by the people in the room. The formal constitution can stay intact, its offices filled and its procedures followed, while the channels through which influence reaches the state run somewhere else. What can the constitutional order protect against channels that operate before the formal decision is taken?

Suggested citation: Joanna Demopoulou, The Informal Constitution of External Influence: Who Speaks with the Voice of the State? Int’l J. Const. L. Blog, Oct. 22, 2026, at: http://www.iconnectblog.com/the-informal-constitution-of-external-influence-who-speaks-with-the-voice-of-the-state/

The post The Informal Constitution of External Influence: Who Speaks with the Voice of the State? appeared first on www.iconnectblog.com.

This book provides an in-depth analysis of equality of parties in international adjudication beyond the conventional interstate framework. It challenges the idea that party equality in international proceedings simply follows from sovereign equality and demonstrates that this assumption is ill-suited to disputes involving private actors. It argues that equality can be protected in asymmetric proceedings between states or international organizations and private entities, even when the parties are not formally equal in the international legal order. Drawing on investor-state arbitration, regional human rights courts, and international administrative tribunals, the book identifies a common legal foundation for equality of parties in a general principle of international law derived from national approaches to administrative adjudication.

     

• Brian McGarry, On Interstitial Justice: the Application of Amended Rules of Court in Pending ICJ Cases
• Lena Raxter, Scientific Issues at the International Court of Justice: Utilizing Court-Appointed Expert Assistance in Complex Scientific Disputes
• Noam Morris, The Recueil des Cours de l’Académie de La Haye in States’ Pleadings before the International Court of Justice: An Empirical Analysis
• Mikayla Perry, Third-State Intervention in the Provisional Measures Phase before the International Court of Justice
• Ori Pomson, Removal from the General List: Sudan v. United Arab Emirates and Beyond
• Alberto Alvarez-Jimenez, Non-Reimbursable Foreign Aid as a Factor for Reducing War Reparations in Inter-State Adjudication

     

The 5th International Conference on Neurolaw and Human Rights will take place on October 26, 27, and 28, 2026, in a hybrid format at the University of Fortaleza (UNIFOR) Library Auditorium in Brazil. Centered on the theme “Neurolaw, Vulnerability, and Intersectionality,” the event will bring together over 30 experts from institutions in Germany, Argentina, Brazil, Chile, Colombia, Spain, England, Peru, Portugal, and Uruguay to discuss how new technologies affect the human rights of vulnerable groups.

The Conference begins on Monday (the 26th) at 8:00 am (GMT -3) with an opening panel featuring Ana Maria D’Ávila Lopes—coordinator of the International Network on Neurolaw and Human Rights, as well as a full professor and coordinator of the Graduate Program in Constitutional Law at UNIFOR. Following this, Professor Jan Christoph Bublitz from the University of Hamburg will deliver the Opening Conference at 8:30 am (GMT -3).

The full program is available at: https://neurorights.com.br/eventos/v-seminario-da-rede-internacional-de-neurodireito-e-direitos-humanos/

The event is entirely free and will be broadcast live on the University of Fortaleza’s YouTube channel.

The post 5th International Conference on Neurolaw and Human Rights appeared first on www.iconnectblog.com.

Every technological rupture eventually reaches the constitutional lawyer’s desk. The printing press, nuclear energy and the internet each raised the question whether existing constitutional categories could absorb the new phenomenon. Artificial intelligence (AI) is the latest arrival, and from Santiago to Athens the temptation to reach for the constitution is strong. If an algorithmic system decides who is flagged for a tax audit, matches a face in a crowd to a name in a database and shapes how public administration reasons about individual cases, many conclude that the highest law should say something about it. For the most part it already does, through general rights guarantees. However, almost everything we want from the “constitutional governance of AI” is best placed in instruments that can be revised as understanding improves, and only a narrow residue belongs in the constitutional text itself. That is why a constitutional drafting moment is exactly when that residue should be identified with precision.

The issue is no longer hypothetical: states around the world now operate AI-based decision-support systems in welfare, policing, migration and taxation. This is a global constitutional moment, and constitutional drafters have begun to respond in registers as different as a binding Council of Europe treaty; national amendments in Chile and Brazil; proposals in Greece, Mexico and Minnesota; and a steady stream of court rulings in the Netherlands and France extending old guarantees to new machines. Occasionally a fresh drafting process makes the stakes unusually concrete, as in Hungary. The party that won a constitutional majority on 12 April 2026 has announced a broader participatory process for an entirely new constitution. A country whose 2011 Fundamental Law became an instrument of the majority that wrote it must now decide what a constitution can do about a technology of state power. That makes Hungary a clear test of our claim, because it pulls apart the two things the debate continues to conflate: incorporating a guarantee, and having an institution willing to enforce it.

The instinct to reach upward

The instinct to constitutionalize the state’s use of AI rests on a genuine intuition. Constitutional norms enjoy a durability and a symbolic weight that statutes cannot match: they bind the legislature itself, they structure judicial review, and they express foundational commitments in a form that a transient majority cannot easily undo, whereas a statute on automated decision-making binds only the majority willing to be bound. That is why several scholars speak of an emerging “algorithmic constitutionalism” as a next frontier of constitutional law. As Pollicino and De Gregorio observe, the diffusion of AI reshapes how public and private power is exercised, and the constitutional response should be to reframe the existing apparatus of fundamental rights rather than to abandon it. That reframing has to reach beyond the state to the corporations that build and control the underlying models, whose command of data, compute and infrastructure can rival public power.

Comparative practice already shows drafters acting on that instinct, though for AI so far only in proposals. Chile’s 2021 constitutional reform on neurorights protected brain activity and the data derived from it before the technology matured, not as a self-executing right but as a mandate to the legislature, and the Chilean Supreme Court later applied it against a technology company. The move signaled that some threats to the person are grave enough for the founding document rather than a data-protection code. The case for new rights, made most influentially by Marcello Ienca and Roberto Andorno, invites the obvious parallel: if neurotechnology warrants constitutional protection of the mind, why should algorithmic power not warrant a comparable anchor?

Why entrenchment is the wrong tool

This is a familiar problem of constitutional design, not a new problem about technology. Rosalind Dixon and Tom Ginsburg call this deferral: vague language that leaves the work to courts, or express delegation to the legislature through a “by law” clause. Deferral suits high error costs, where information is thin and a decision taken now is likely to prove wrong, which describes AI exactly. Ginsburg also finds that specificity aids constitutional endurance, but his reason is that detail signals the drafters’ investment and helps constitutional subjects coordinate on the bargain, which a technical definition of a moving technology does not.

The first difficulty is that AI is not a stable object of regulation, a fast-moving bundle of techniques whose capabilities, risks and vocabulary – “machine learning”, “foundation model”, “agent” – shift on a timescale of months. Constitutions are deliberately hard to amend so that they remain stable across generations, and to write AI into one is to fix, in the most rigid available legal form, a concept almost certain to be obsolete before the ink is dry.

The second is that constitutional specificity tends to crowd out interpretive development. The strength of abstract guarantees such as human dignity, equal treatment and effective judicial protection is that courts can extend them to circumstances the drafters never imagined. The German Menschenwürde guarantee has been applied to automated police data analysis, a context its 1949 drafters never foresaw. A narrowly drafted AI clause risks displacing this generative abstraction with a brittle enumeration, inviting the expressio unius argument that whatever it does not mention falls outside constitutional protection.

The third is that entrenchment can produce a false sense of security. A clause requiring automated decisions to respect human dignity is easy to write and close to empty, because it restates a guarantee that already exists. The hard work is technical: when a human must remain in the loop, what counts as a meaningful explanation, how to allocate liability, how to audit a model. That work belongs in the EU AI Act and data-protection law such as Article 22 GDPR, and a constitutional slogan risks substituting for it.

Courts extending old guarantees

The algorithmic state is not a constitutional vacuum. When public administration deploys an automated system to decide individual cases, the ordinary apparatus of the Rechtsstaat already applies: legality requires a statutory basis, the duty to give reasons requires that the affected person be told why, and effective judicial protection requires that a court be able to review, which constrains systems whose outputs cannot be explained.

Courts in several countries have shown how this works. In 2020 a court in The Hague, applying Article 8 ECHR, halted the Dutch state’s SyRI welfare-fraud risk-scoring system, because the legislation gave insufficient insight into how the model worked, and those affected were never told they had been assessed. France reached the same conclusion from its own text: when its Conseil constitutionnel examined the Parcoursup admissions algorithm in 2020, it upheld the confidentiality of the local algorithms but required each institution to publish the criteria it had used once the procedure was over, deriving that duty from the accountability of public officials in Article 15 of the 1789 Declaration. It did not invent an AI-specific right; it extended an eighteenth-century accountability clause to twenty-first-century administrative technology.

Together these cases trace a shared principle of reviewability: the algorithmic exercise of public power is no exception to accountability and to the right to a remedy. None of these guarantees mentions AI, and none needs to, because their abstraction is what allows them to bite. The Netherlands has since faced further scandals of this kind, a reminder that entrenchment is no substitute for enforcement.

A global patchwork

Above any single state, the most significant development is the Council of Europe’s Framework Convention on Artificial Intelligence, opened for signature in 2024 as the first binding international AI treaty, now signed well beyond Europe. It governs AI used by public authorities, enshrining accountability, transparency and non-discrimination, and it shows that enduring commitments can be stated without naming a technique.

National drafters have gone further and named the technology itself. In May 2026 Greek Prime Minister Kyriakos Mitsotakis proposed incorporating AI into the Greek constitution, so that it serves individual freedom and social welfare while its risks are mitigated. Brazil entrenched a data-related right rather than the technology itself, adding personal data protection to the fundamental rights of Article 5 by Constitutional Amendment 115/2022. A 2025 reform proposal from Mexico names AI expressly, giving the federal Congress a mandate to regulate it.

Minnesota in the United States illustrates the opposite risk. A 2026 amendment proposal there would ask voters to declare that AI has no free-speech rights, but critics warn the wording might curtail the rights of people who express themselves through AI tools. Two strategies thus emerge: entrenching express digital rights or objectives (Greece, Chile, Brazil) and extending existing rights by interpretation (the French and Dutch routes), and a badly drafted clause can narrow protection rather than widen it.

The narrow residue

That most of the work belongs below the constitutional level does not mean that all of it does. As De Gregorio argues, the algorithmic society calls less for wholly new rights than for re-anchoring existing guarantees against the new distribution of public and private power. For any constituent assembly drafting a new text, three principles are worth entrenching, each framed at a level of abstraction that will survive the turnover of particular technologies. All three bind public power; private algorithmic power reaches a constitution only through horizontal effect.

First, the primacy of human judgment, meaning how far AI may go in a public decision about a person. AI is a tool, not a legal subject, and responsibility belongs to people. From that follows a guarantee that any decision with significant effect on an individual must involve genuine, accountable human deliberation, and that no one may be sanctioned or excluded from a service automatically. Aziz Huq has argued against precisely such a right, since none of the usual justifications supports a general entitlement to a human decision, and proposes a well-calibrated machine decision instead. That objection lands against a case built on the quality of the output, but not against this one, which is about democratic accountability and the non-delegability of core state functions rather than about AI as such, and that is why it is durable enough for the text.

Second, equitable access to AI as a state objective. Just as several constitutions and international bodies have debated a right to internet access or to digital education, exclusion from AI-based services may bear on equality of opportunity and equality before the law. A forward-looking constitution can treat this as a state objective: not an enforceable entitlement, but a value obliging the state to secure fair access and counter digital exclusion. In the age of the AI state, access is also a precondition for holding public power to account.

Third, transparency of public-sector AI as a principle. Here the algorithmic exercise of public power is no exception to freedom of information and accountability, which means the public must be able to know the existence, funding, developers, purpose and operating logic of every public-sector decision-support system. Public algorithm registers, pioneered by Amsterdam and Helsinki and now run nationally in the Netherlands, already turn that duty into practice.

Conclusion

The constitutionalization contest is really a debate about the right level of legal abstraction. Detailed, revisable rules, the substance of AI governance, belong in legislation and international instruments, where they can keep pace with the technology. Enduring commitments about the individual and public power belong in the constitution, and for the most part are already there, waiting to be applied rather than rewritten.

The worst outcome would be to invert this: to enshrine a fashionable but perishable definition of AI while leaving the hard governance choices to a slogan. Comparative experience shows that fundamental-rights frameworks can be applied to the algorithmic state, but only if a court or the constituent power enforces them. Where a new text is being written, in Santiago, Athens or Budapest, drafters should ask what they want the constitution to do that the existing guarantees, properly interpreted, cannot already do. The answer is narrower than the global enthusiasm suggests, and identifying that residue precisely, at the drafting stage, is the more useful task.

Suggested citation: Boldizsár Szentgáli-Tóth & Rebeka Kiss, Writing Artificial Intelligence Into Constitutions: A Global Constitutional Moment for the Algorithmic State, Int’l J. Const. L. Blog, Oct. 21, 2026, at: http:///www.iconnectblog.com/writing-artificial-intelligence-into-constitutions-a-global-constitutional-moment-for-the-algorithmic-state/

The post Writing Artificial Intelligence Into Constitutions: A Global Constitutional Moment for the Algorithmic State appeared first on www.iconnectblog.com.

• Articles
• Alexey Ilin & Wei Shen, Svalbard Treaty Model for Celestial Bodies: Reconciling Sovereignty with Global Commons
• Liang Yu & Bo Chen, The Evolution of Human Rights Law in the Context of Climate Change
• Current Developments
• Zuo Haicong, Yang Yueyi, & Wang Geng, Changes in the Regulatory System: China’s New Export Control Law and Reshaped Legal Landscape
• Comment and Review Essay
• Yury Rovnov, Celsius 1.5: Reflections on the ICJ’s “Primary Temperature Goal” Under The Paris Agreement

     

Ethiopia’s proposal to merge the offices of President and Prime Minister raises a constitutional objection that election of the new executive President through Parliament cannot answer. If the merger gives the incumbent a claim to remain in office after the House of Peoples’ Representatives has chosen another government, it will weaken parliamentary authority while retaining parliamentary selection. I argue against that arrangement. The proposed consolidation has not established why combining the offices would remedy the representational problem invoked in its support, and its promise of national unity supplies no justification for making executive power harder to withdraw.

The proposal emerged from a national dialogue initiated to address deep disagreements among political leaders and sections of society over fundamental national questions. Proclamation No. 1265/2021 established the Ethiopian National Dialogue Commission to organise deliberations intended to build consensus and restore political trust. The National Dialogue Conference, held from 15 July to 22 August 2026, brought participants together to discuss national agenda items, including government structure and the political system. Reporting on its recommendations describes an executive presidency combining the two offices and elected through Parliament. The constitutional analysis must therefore examine the reported arrangement without treating its unresolved details as enacted rules.

The difficulty becomes concrete when a governing coalition breaks apart and a majority of MPs agrees on another leader, or an election returns a House opposed to the incumbent. Could that majority install its chosen government, or could the President insist on completing an independently protected term? The difference concerns whether parliamentary support remains a condition of governing throughout the term. A constitution that allows the House to confer executive authority but prevents it from giving effect to a lawful choice of successor has changed the relationship between the institutions, whatever title it gives their officeholders.

Ethiopia’s existing Constitution gives substantial support to continuing parliamentary responsibility. Article 45 establishes parliamentarian government, and Article 50(3) identifies the House of Peoples’ Representatives as the highest authority of the federal government, accountable to the people. Under Article 72, the Prime Minister and Council of Ministers exercise the highest federal executive powers, remain responsible to the House and, in the Prime Minister’s case, ordinarily serve for the duration of its mandate. Article 56 connects government formation to the strength of parties in Parliament, while Article 73 requires the Prime Minister’s election from the House and links governmental power to a parliamentary majority. These provisions give Article 45 operative content by locating executive authority within a continuing relationship of responsibility to the people’s representatives.

I read these provisions as requiring political answerability to the House, including when a majority agrees that another leader should govern. Article 55 authorises MPs to investigate executive conduct, question officials and take measures concerning executive affairs, while Article 74 requires the Prime Minister to implement parliamentary decisions and report on the government’s work. Reducing responsibility to attendance and reporting would allow a government to discharge those duties while refusing to yield to a successor supported by the House. That reading would be difficult to reconcile with the superior authority Article 50(3) assigns to the House and the parliamentary form Article 45 establishes.

The Constitution nevertheless explains this relationship more clearly than the procedure for enforcing it. Article 60(2) addresses the collapse of a coalition government following the loss of its parliamentary majority, but neither that provision nor Article 55 sets out a complete procedure for a vote of no confidence. The text gives still less explicit guidance on replacing a government formed by a single party. These omissions do not erase the responsibility the Constitution expressly establishes; they make its implementation uncertain. A merger would aggravate that uncertainty if the new President could invoke a term defined independently of the House’s continuing support.

The two offices proposed for merger are presently constituted on different terms. Under Articles 69 and 70, the President serves as head of state for six years, renewable once, following nomination by the House of Peoples’ Representatives and election by a two-thirds majority of both federal Houses sitting jointly. Article 70(3) addresses the specific case in which the successful presidential candidate is already a member of either House: election to the presidency requires that person to vacate the parliamentary seat. It does not require every presidential candidate to be a legislator. Article 73, by contrast, requires the Prime Minister to be elected from the House of Peoples’ Representatives. Merger would have to determine which rules of eligibility and tenure govern the combined office.

The offices also differ in the powers they exercise: Article 74 makes the Prime Minister chief executive, chair of the Council of Ministers and commander-in-chief of the armed forces, while Article 77 gives the Council extensive responsibilities over public policy, administration and the budget. The President’s functions under Article 71 are substantially more limited, and several depend on the Prime Minister’s recommendation. Even the presidential signature on legislation supplies no general power to block Parliament, because Article 57 allows a law to take effect after fifteen days without that signature. Ethiopia therefore already has a powerful governing executive, and the merger’s principal significance may lie in how securely that power is held.

The six-year presidential term illustrates how merger could alter accountability without adding any substantive executive power. A head of state separate from government leadership can remain in office across parliamentary terms without preventing a new parliamentary majority from governing. A governing President with the same tenure could instead invoke the unexpired term against MPs seeking a successor. A two-term limit would constrain repeated election without resolving removal during either term. The publicly reported proposal does not settle these arrangements, so there is no basis for asserting that it already guarantees longer tenure; the constitutional objection concerns the protection against parliamentary replacement that the eventual rules might confer.

Matthew Shugart and John Carey’s distinction between the origin and survival of executive authority helps explain why parliamentary election is insufficient. The identity of the electing body establishes how an executive acquires office; the conditions of survival determine whether that executive remains politically dependent on it. The OECD’s comparative study of constitutions similarly distinguishes ordinary political removal from exceptional removal for wrongdoing. An executive President elected by Parliament but protected against loss of confidence would not reproduce classical presidentialism, since the office would lack a separate popular origin. It would nevertheless depart from the continuing parliamentary dependence expressed in Ethiopia’s existing constitutional structure.

South Africa demonstrates how an executive presidency can preserve that dependence. Section 83 of its Constitution makes the President both head of state and head of the national executive, while sections 86 and 87 provide for election by the National Assembly and require the person elected to leave the parliamentary seat. Under section 102(2), the President, Cabinet and Deputy Ministers must resign when a majority of Assembly members passes a motion of no confidence in the President. Combining the functions and vacating the parliamentary seat therefore coexist with an enforceable obligation to leave government when parliamentary support is withdrawn. Borrowing South Africa’s mode of election without that obligation would omit the provision that preserves the Assembly’s control over executive survival.

South Africa also distinguishes dissatisfaction with a government from an accusation that its leader has broken the law. Section 89 provides a separate removal procedure, requiring a two-thirds majority and specified grounds involving serious violation, misconduct or incapacity. A majority using section 102(2), however, can withdraw confidence without proving wrongdoing. For Ethiopia, that distinction has a direct consequence: if the amended Constitution allowed removal only for serious misconduct, the House could be left with a President whose policies it rejected and whose replacement it supported, but whom it lacked sufficient legal grounds to remove.

Switzerland demonstrates that a legislature can elect an executive without retaining an ordinary power to dismiss it. The seven members of the Federal Council are elected by Parliament for four-year terms, during which they cannot be dismissed through an ordinary political vote. Although this collective executive differs from Ethiopia’s proposed single President, it defeats the assumption that election by Parliament necessarily entails continuing dependence on Parliament. Ethiopia’s amendment must make that relationship explicit rather than leave the method of selection to stand as an assurance of accountability.

Ethiopia would also have to decide which House controlled that dependence. Article 70 gives both federal Houses a role in electing the existing President, whereas Article 72 makes the governing executive responsible to the House of Peoples’ Representatives. The House of the Federation, whose members represent Nations, Nationalities and Peoples under Article 61, participates in choosing the head of state without holding an equivalent power over the government’s continuation. If joint election were retained after merger, the amendment would need to say whether the House of Peoples’ Representatives could replace the executive President without the other House’s approval. Otherwise, a President facing removal could argue that one of the two electing bodies lacked authority to undo their joint decision.

The House of the Federation could also be called upon to resolve that dispute. Articles 83 and 84 give it authority to decide constitutional disputes following consideration by the Council of Constitutional Inquiry. Retaining joint election would thus place the House in the position of interpreting the consequences of an election in which it had participated. An express removal rule would reduce the risk that a dispute over presidential tenure became a dispute over the authority of the body deciding it.

Germany addresses the concern that parliamentary removal could leave a country without a government by requiring agreement on a successor. Under Article 67 of its Basic Law, the Bundestag, the elected federal chamber, may withdraw confidence from the Chancellor only by electing another Chancellor with a majority of all its members; the Federal President must then dismiss the outgoing leader and appoint the person elected. Known as a constructive vote of no confidence, this procedure was used in 1982, when Helmut Kohl replaced Helmut Schmidt. MPs could change the government between general elections because they had assembled the majority needed to support its replacement.

A constructive vote would address the objection that MPs might agree to remove an Ethiopian President while remaining unable to agree on a successor. It would protect continuity only if a properly initiated motion reached a timely vote and its adoption obliged the outgoing President to leave office. Dissolution rules would also need to respect the resulting majority. Germany’s Article 68, for example, extinguishes the President’s power to dissolve the Bundestag under its failed-confidence procedure once MPs elect another Chancellor by the required majority. The choice of a successor then defeats the resort to dissolution under that provision.

Dissolution, which ends Parliament’s term early and leads to new elections, could otherwise frustrate a majority seeking to replace the executive. Ethiopia’s Article 60(1) allows the Prime Minister to cause an early dissolution with the House’s consent, while Article 60(2) allows the separate President to invite parties to form a coalition after the previous coalition loses its majority. If they cannot agree to continue the old coalition or form a new majority coalition, the House is dissolved. Merger would require that presidential function to be reassigned or rewritten, since the leader facing replacement would otherwise acquire a role in the process through which a successor could emerge. A President should have no power to prevent an available governing majority from taking office by obstructing that process or dissolving the House.

The same principle must apply to the government as a whole. Articles 72 and 76 connect the responsibility of the Prime Minister with that of the Council of Ministers, while South Africa’s section 102 expressly distinguishes a vote against the Cabinet alone from one against the President. If Ethiopia preserved Parliament’s authority over ministers while shielding the executive President, an incumbent could respond to lost confidence by replacing subordinates and continuing the same programme. The person directing the government must therefore remain subject to the political consequences of Parliament’s decision, with temporary administration governed by clear limits such as those already imposed on caretaker governments by Article 60(5).

The claim that merger would produce more unifying national leadership has no demonstrated connection to these changes in executive accountability. Article 54 already makes MPs representatives of the Ethiopian people as a whole, so election from a constituency does not confine the Prime Minister’s constitutional responsibilities to that constituency or its communities. An executive President elected by Parliament would also owe appointment to parliamentary political support. Its proponents must therefore explain how combining the offices would remedy the alleged representational deficiency. A national title might carry symbolic weight, but symbolism cannot justify diminishing the representatives’ authority to choose another government.

The representative role of a separate head of state also deserves attention on its own terms. Elliot Bulmer’s study of non-executive presidents explains how an office separate from government leadership can represent citizens beyond the governing party. Ethiopia’s President has limited powers, so preserving the office would provide no general guarantee against executive abuse; nevertheless, merger would place its representative functions in the hands of the politician directing the government. If that politician also received stronger protection against removal, the reform would combine a claim to represent the whole country with reduced dependence on its elected representatives. The unity argument would then need to explain why representation required that reduction in accountability.

Political inclusion also depends on whether competing interests can influence federal decisions. Article 39(3) recognises equitable representation in state and federal government, while Adem K. Abebe’s scholarship on winner-takes-all politics argues for arrangements that give competing political forces a more meaningful share in federal power. These concerns do not require Ethiopia to retain a separate presidency, but they do require more than an assurance that one leader will represent everyone. A reform that strengthens the incumbent’s security while leaving other political forces with little influence would fail to answer the problem of exclusion, whatever national significance its supporters attached to the new office.

José Antonio Cheibub, Zachary Elkins and Tom Ginsburg’s comparative research cautions against inferring the distribution of constitutional powers from parliamentary or presidential labels, given the variation within each category. David Landau’s work on abusive constitutionalism identifies the related danger of amendments that preserve elections while making governing authorities harder to displace. For Ethiopia, their analyses support examining the cumulative effect of tenure, removal and dissolution rules. Several apparently modest changes could together insulate an incumbent, but that conclusion must follow from the amendment’s provisions rather than an assumption about its authors’ intentions.

Nor does the present dominance of a governing party make the removal rules irrelevant. A party may command Parliament today and lose its majority, divide internally or face a different electorate tomorrow, when rules that once appeared unimportant decide whether power can change hands peacefully. Parliament’s practical willingness to challenge the executive will always depend partly on political conditions, but the Constitution determines whether it has the authority to act when those conditions change. Protecting an incumbent against that possibility would turn temporary political strength into a more lasting constitutional advantage.

Any decision to make such a change must pass through the constitutional amendment process. Article 104 requires qualifying proposals to be submitted for discussion and decision to the public and those concerned, while Article 105(2) requires amendments to the relevant institutional provisions to secure a two-thirds majority of the two federal Houses sitting jointly and approval by majorities in two-thirds of the State Councils. Amendments to Chapter Three or to Articles 104 and 105 themselves face the stricter requirements of Article 105(1). The national dialogue may help develop proposals, but its endorsement cannot replace consideration of the actual provisions under which a President would acquire, exercise and surrender power.

Article 45 can itself be amended through the prescribed procedure. Ethiopia is consequently free to adopt a different relationship between its executive and legislature, but it must acknowledge and defend that choice. Retaining a declaration of parliamentary government while giving the President tenure independent of parliamentary confidence would leave Article 45 at odds with the redesigned executive. Parliamentary election could not reconcile the inconsistency, because it would explain how the President acquired office without explaining why the House could no longer bring that authority to an end.

The case against the proposed arrangement is therefore both justificatory and constitutional. Its proponents have not shown why the problem of political representation requires fusion of the two offices, while the merger could remove the distinction that presently allows a head of state to serve a fixed term without insulating the governing executive. Any amendment claiming to preserve parliamentary government must establish an enforceable procedure through which the House can choose a successor and make that decision effective, notwithstanding the incumbent’s preference to remain. Ethiopia should reject a merger that confers the governing powers of the Prime Minister together with protection against the parliamentary responsibility those powers presently carry.

Suggested citation: Wakjira Tesfaye Beriso, Can Ethiopia Create an Executive President Without Creating a Presidential System? Int’l J. Const. L. Blog, Oct. 20, 2026, at: http://www.iconnectblog.com/can-ethiopia-create-an-executive-president-without-creating-a-presidential-system

The post Can Ethiopia Create an Executive President Without Creating a Presidential System? appeared first on www.iconnectblog.com.

On a Tuesday afternoon in Goiânia, two days after the first round of Brazil’s presidential election, Senator Flávio Bolsonaro took the microphone beside a newly elected ally and explained what a right-wing majority in Congress was for. It would serve, he said, “to change the Constitution, to redemocratize this country”. Bolsonaro had finished the first round narrowly ahead of President Lula, with 47.03% of the valid vote to Lula’s 45.16%. He did not say which provisions he had in mind.

The content was vague. The word was not. In Brazil, redemocratização is not a neutral term. It refers to the transition from military rule to democracy and, above all, to the political process that produced the 1988 Constitution. To call for a new redemocratization is therefore to suggest that democracy has been lost again, and that the Constitution itself is somehow part of the problem.

In this post, we suggest that Brazil does not need a refoundation, nor the rhetoric of one. The 1988 Constitution is better understood as an unfinished constitutional promise of freedom and equality for all. What Bolsonaro offers is a counter-promise: to restore democracy by weakening parts of the constitutional order that have recently defended it.

That language also comes with a history. Jair Bolsonaro spent years attacking the electoral system and the Supreme Federal Court (STF), and was later convicted for his role in a plot to overturn the 2022 election. Flávio Bolsonaro now inherits that political movement while campaigning on a promise to “redemocratize” the country through constitutional change.

The remark immediately drew questions about what, exactly, Flávio Bolsonaro intended to change. The next day, he offered a list. According to Congresso em Foco, he was referring to judicial reform, a lower age of criminal responsibility, changes to a recent tax reform and ending presidential re-election. Anything beyond that, he said, was speculation.

The list and the word

The list is a mixed one. Some of its items belong squarely to ordinary constitutional politics, such as changes to the tax system or the rules on presidential re-election. Others raise harder constitutional questions. The proposal to lower the age of criminal responsibility, for example, has long been disputed in Brazil because Article 228 of the Constitution, which exempts those under 18 from criminal liability under the ordinary criminal justice system, may be protected as an unamendable constitutional provision. But the proposal to “reform the Judiciary” is different in another respect.

A “reform of the Judiciary” proposed by the son of a former president tried and convicted by the STF for plotting a coup cannot be read only as a technical proposal about how the courts function. It also raises a more basic question about who judges whom, and under what institutional rules.

Nor did the list take back the language of redemocratization. In the candidate’s own words, the goal was to make institutions “respect the Constitution again”. The argument turns the Constitution against the institutions responsible for interpreting it. It is a familiar populist move: an electoral majority is presented as the authentic voice of the people, while courts and other unelected institutions are portrayed as obstacles to that will. The deeper concern is the use of majoritarian power to alter the institutional conditions under which future majorities compete and are constrained.

What the Constitution allows, and what it forbids

The 1988 Constitution of Brazil is no fortress. An amendment needs three-fifths of each chamber in two rounds: 308 of 513 deputies and 49 of 81 senators. Congress has cleared that bar more than 130 times since 1988. Even after its strong result in the congressional elections, Flávio Bolsonaro’s Liberal Party (PL) will hold 121 seats in the Chamber and 28 in the Senate, making it the largest party in both houses but leaving it far short of the votes needed for an amendment. The remaining seats are divided among numerous parties, including President Lula’s Workers’ Party on the left and influential centrist and center-right parties whose support is often decisive. Constitutional change will continue to depend on the coalition bargaining that has long shaped Brazilian presidentialism.

What the Constitution forbids is narrower and more precise. Article 60, §4 bars amendments “tending to abolish” federalism, periodic universal suffrage, the separation of powers and individual rights and guarantees. The STF has treated these unamendable provisions as protecting the core of those principles. Ending presidential re-election falls within ordinary amendment power. Lowering the age of criminal responsibility is constitutionally contested, because Article 228 may itself be protected as an individual guarantee under Article 60, §4. Judicial reforms affecting the core of the separation of powers may fall outside the amendment power.

This is the dilemma the candidate’s language leaves unresolved. If the agenda fits within Article 60, it requires no rupture. It is ordinary constitutional politics. The harder question is whether amendments that follow the formal procedure can still undermine the conditions that make constitutional democracy possible. If they do, Article 60, §4 forbids them. The text contains no procedure for calling a new constituent power. In that sense, “redemocratization” either describes an agenda already available under the Constitution, or it points beyond it.

A script with many stagings

Comparative constitutional law has described this pattern before. David Landau calls it abusive constitutionalism: using constitutional amendment or replacement to make a political system significantly less democratic, often by entrenching those in power and weakening courts and other accountability institutions. Kim Lane Scheppele speaks of autocratic legalism, in which elected governments use law itself to weaken the institutions that constrain them. Aziz Huq and Tom Ginsburg describe a related process as constitutional retrogression: the gradual erosion of democracy through formally legal measures.

The methods vary. In Venezuela, the 1999 constitutional process was used to intervene in the judiciary and sharply restrict Congress’s powers. In Hungary, Viktor Orbán’s parliamentary majority adopted a new Fundamental Law and reshaped the Constitutional Court. In Poland, after 2015, ordinary legislation undermined the Constitutional Tribunal’s independence. The instruments differed, but the problem was similar: those in power changed the institutions designed to constrain them.

Brazil is not Hungary or Venezuela, and Flávio Bolsonaro has not proposed a constituent assembly. But democratic erosion rarely begins with the formal abolition of a constitution. It often begins with elected leaders portraying courts and other accountability institutions as enemies of the people, then using electoral majorities to reduce their capacity to constrain power. The Brazilian danger lies precisely in the possibility that a strengthened congressional majority will use constitutional reform to weaken institutions that have acted as checks on political power.

The constitutional promise

The claim that 1988 is exhausted rests on a misunderstanding of what the Constitution was meant to do. Written as Brazil emerged from two decades of dictatorship, it did not simply describe the country that existed. It set out a political and constitutional project: broader social rights, racial and gender equality, protection for Indigenous peoples and minorities, and institutions capable of holding public power to account. Much of that project remains incomplete. That does not make the Constitution obsolete. It means that the promise has not yet been fully delivered.

That incompleteness also makes the promise vulnerable. The gap between constitutional commitments and social reality is easy to see, and frustration with what remains unfulfilled can turn against the Constitution itself. This is one way authoritarian populism operates. It turns disappointment with rights that have not been realized into resentment towards the document that guarantees them and towards the institutions charged with enforcing it. The language of “redemocratization” fits that pattern. It offers a different promise of order, harsher punishment and a weaker Court in place of the one made in 1988.

The past four years also show that the institutions built to keep that promise still work. On 8 January 2023, supporters of the defeated president stormed the buildings of Congress, the STF and the presidency in Brasília. The institutions survived the attack. Congress, the courts and the federal executive continued to function, and authorities investigated and prosecuted those accused of organizing and carrying out the coup plot under the procedures established by the Constitution. Former President Jair Bolsonaro was later convicted and sentenced to 27 years in prison for his role in that plot.

Taking the critics seriously

The STF’s role in defending Brazil’s constitutional order does not place it beyond criticism, including that voiced by Flávio Bolsonaro and his allies on the Brazilian right. Part of the right’s criticism rests on serious arguments, and they deserve a serious answer. Scholars from different political perspectives have criticized the STF for the breadth of its monocratic decisions, the structure of inquiries into attacks on the Court, and a jurisprudence on speech and digital platforms that has not always developed clear standards. The Banco Master scandal has added a new source of concern. At its core is a major banking fraud investigation involving the bank’s former owner, Daniel Vorcaro, whose financial and personal connections with politicians, public officials and people close to members of the Court have come under scrutiny. The investigation has raised questions about conflicts of interest, recusals and the Court’s internal standards of conduct.

There is also broader institutional criticism. The 1988 Constitution is unusually long and detailed, and many questions that elsewhere would be left to ordinary politics are constitutionalized in Brazil. That helps explain both the frequency of constitutional amendments and the central role the STF has come to play in political disputes.

None of this requires a new constitution, and the language of redemocratization clarifies none of it. Constitutional amendments, legislation and the STF’s own rules can address limits on monocratic decisions. The Banco Master scandal calls for clear recusal rules, stronger standards of conduct and investigations allowed to reach their conclusions. Disagreement over the Court’s speech jurisprudence is a dispute about constitutional interpretation, to be fought through judgments, scholarship and legislation. An over-detailed Constitution can be changed through the amendment process it already provides.

Judicial reform can strengthen independence, accountability and the separation of powers. It can also weaken them. That is why its direction and institutional design matter more than the label attached to it.

Conclusion

Whoever wins on 25 October will face a Congress very different from that elected four years ago. The Brazilian right will hold a large congressional majority, and Bolsonarismo will have a degree of parliamentary power it has never had before. The Liberal Party will hold 121 of 513 seats in the Chamber and 28 of 81 in the Senate, where Flávio Bolsonaro’s allies have openly discussed using their power to try to remove STF justices.

That new balance of power changes the election’s constitutional stakes. A Flávio Bolsonaro government could govern alongside a Congress with both the numbers and the political appetite to challenge the STF and pursue constitutional changes previously beyond reach. Constitutional reform could then be used to weaken the institutions that contained the last attempt to overturn Brazil’s democratic order.

Much of what was promised in 1988 remains unfulfilled. But incompleteness is not exhaustion. A candidate who pledges to “redemocratize” a democracy owes voters more than a list of amendments. He owes them an explanation of what has ceased to be democratic, which institutions he intends to change, and what will prevent the new congressional majority from using constitutional reform to leave Brazilian democracy with fewer safeguards than it has today. He also owes them reason to believe that this promise of “redemocratization” can be pursued in good faith by a political movement whose recent history includes an attempt to overturn an election it lost.

Suggested citation: Daniel Capecchi Nunes and Isabela Almeida do Amaral, Brazil’s Constitutional Promise and the Rheotric of Redemocratization: What  Flávio Bolsonaro’s Agenda Means for the 1988 Constitution, Int’l J. Const. L. Blog, Oct. 19, 2026, at: http://www.iconnectblog.com/brazils-constitutional-promise-and-the-rhetoric-of-redemocratization-what-flavio-bolsonaros-agenda-means-for-the-1988-constitution/

The post Brazil’s Constitutional Promise and the Rhetoric of Redemocratization: What Flávio Bolsonaro’s Agenda Means for the 1988 Constitution appeared first on www.iconnectblog.com.

• Special Issue: Arms, Peace and Sustainability: At the Frontiers of International Law on Arms Transfer and Arms Control
• Sondra Faccio & Marco Pertile, Arms, Peace and Sustainability: At the Frontiers of International Law on Arms Transfer and Arms Control
• Luigi Crema & Antonio Mariconda, Strengthening State Accountability for Wrongful Arms Exports: the Role of the ECHR
• Angelica Bonfanti & Marco Fasciglione, Human Rights Due Diligence in the Regulation of the Arms Industry: a Critical Assessment
• Sondra Faccio & Giulia Cagol, FDIs in the Arms Industry: The Interplay between Investment Law and Arms Trade Regulation
• Silvia Bortolato & Filomena Medea Tulli, Autonomous Weapons Systems and the Arms Trade Treaty
• Stefano Silingardi & Niccolò Zugliani, The Threat or Use of Tactical Nuclear Weapons through the Lens of Sustainable Development

     

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

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

Developments in Constitutional Courts

1. The Court of Justice of the European Union held that Hungary infringed EU law by converting final custodial sentences imposed for human trafficking into “special reintegration detention.”
2. The Federal Supreme Court of Iraq declared the Kurdistan Region law [Law No. 21 of 2003] that suspended dozens of provisions of the Iraqi Penal Code No. 111 of 196 covering crimes against internal and external state security, was “unconstitutional.”
3. The Indian Supreme Court held that access to and use of the internet is protected under Articles 21 (the right to life and liberty) and 19(1)(a) (freedom of speech and expression) of the Indian Constitution, which extends to children, and rejected a blanket ban as a response to online harms. It also outlined safeguards for children’s online use.
4. The United States Court of Appeals for the Eleventh Circuit has vacated a preliminary injunction that had blocked the Florida law that restricts children under 14 from creating social-media accounts and imposes requirements concerning certain platform features.
5. The South African Constitutional Court ruled in favour of the African National Congress, overturning a decision that excluded 181 of its candidates from the November 4 local elections. The Court directed the Electoral Commission to include the candidates on the ballot in six municipalities.

In the News

1. Hong Kong introduced new rules to implement an arrangement with mainland China for the mutual service of judicial documents in civil and commercial proceedings. The rules, which take effect on March 30, 2027, expand the procedures for serving documents in mainland China, replacing the existing arrangement that has been in place for more than 27 years.
2. Argentina requested provisional measures from the International Tribunal for the Law of the Sea to halt British hydrocarbon exploration and exploitation on the continental shelf north of the Falkland Islands.
3. The British Virgin Islands prepared for a final round of constitutional negotiations with the United Kingdom. Premier Natalio Wheatley said a replacement for the 2007 Constitution could take effect in 2027, with proposed changes including a revised role for the governor and a referendum on political status by 2031.
4. Germany saw its Federal Constitutional Court hear a challenge to the country’s inheritance tax regime, with the proceedings raising questions about property valuation, tax exemptions, and the constitutionality of the existing framework.
5. Poland saw a newly appointed Constitutional Tribunal judge take his oath in Parliament without the President’s participation, deepening the dispute over judicial appointments and the functioning of the country’s constitutional court.

New Scholarship

1. Lucas N. F. Costa, “The Constitutional Diffusion of Social Rights”, International Journal of Constitutional Law 2026 (analyzes 349 constitutional documents from 84 countries to examine how social rights are entrenched, repealed, and diffused across constitutional systems).
2. Ewa Rejman, “Limitations of Socio-Economic Rights During Armed Conflicts: The ‘Maximalist’ Perspective”, International Review of the Red Cross, 1-25 (2026) (proposes a vulnerability-based approach to assessing restrictions on socioeconomic rights during armed conflicts, arguing that state obligations should respond to the degree of deprivation while remaining calibrated to available resources, institutional capacity, and other reasonably available means).
3. Aristel Skrbic, “Taking Value Constitutionalism Seriously: Migration and Values in EU Law and European Society”, Cambridge Yearbook of European Legal Studies 1-14 (2026) (examines how EU constitutional values interact with migration management, focusing on the EU–Turkey Statement and the temporary reintroduction of Schengen border checks, and questions how Article 2 TEU values should be understood in this context).
4. Martijn van den Brink, “EU Values and the Demise of Constitutional Prudence”, Cambridge Yearbook of European Legal Studies 1-19 (2026) (argues that EU constitutional law must be studied as a political as well as a legal practice, using the Court of Justice’s ruling in Commission v. Hungary to critique the treatment of Article 2 TEU values and the decline of constitutional prudence).
5. Weidong Ji, “Towards a Relational Sociology of Law: Rethinking Practical Experience and Institutional Design in Asia”, Asian Journal of Law and Society (2026) (reconsiders the relationship between practical experience and institutional design in Asia through a relational approach to the sociology of law).

Calls for Papers and Announcements

1. OpenRewi invites authors and editors to express interest in helping complete its open-access Textbook on Migration Law. The project will cover international, European, and domestic migration law, including asylum and refugee law, and welcomes contributions from law students, researchers, and practitioners.
2. The Pittsburgh Tax Review invites proposals for its 24th volume’s second issue, focusing on state tax policy and economic inequality. The contributions are to be 3,000–5,000 words. Abstracts of up to 250 words are due by 13 November 2026.
3. The National Law School of India University, Bengaluru, and Humboldt University of Berlin invite submissions for the International Conference on “Reflexive Globalisation and the Law – (South) Asian Perspectives,” to be held in Bengaluru on November 12–14, 2027. Abstracts of up to 300 words are due by 30 November 2026.
4. The Cambridge Forum on AI: Law and Governance invites submissions for a themed issue on “Current Regulatory Perspectives on Robotics,” examining the legal, ethical, and social implications of robotics, including regulatory frameworks, liability, ethics, and sustainability. Submissions are due by 15 January 2027.
5. The Ohio State University’s University Senate has issued a call for abstracts for a conference on Academic Freedom and Responsibility, to be held on February 9–10, 2027, in Columbus, Ohio. It invites 400-word abstracts for 15-minute public-facing presentations on the history, philosophy, and legal character of academic freedom.
6. The Center for International and Comparative Law at the University of Michigan invites submissions for their upcoming Junior Scholars Conference, which will be held on March 26-27, 2027, in Ann Arbor, MI, USA. The deadline for abstract submissions is 5 December 2026.

Elsewhere Online

1. Jack Landau, “The Oregon Constitution: A Story of Transformation” (State Court Report, 14 October 2026).
2. Yeh Young-june, “A Society That Encourages Studying the Constitution” (Korea JoongAng Daily, 14 October 2026).
3. Jirong Yu, “The Unfinished Sham Tsz Kit Case: Can Remedial Effectiveness Be the Way Forward?” (HKU Legal Scholarship Blog, 15 October 2026).
4. Florian Hoffmann, “The Constitution Releases Its Children: Brasil Before the Presidential Runoff” (Verfassungsblog, 16 October 2026).
5. Bruce Swartz, Kit Beyer and John David Cobb, “Servant of the Law: The President as Chief Prosecutor” (Just Security, 16 October 2026)

The post What’s New: Week of October 19 appeared first on www.iconnectblog.com.

• Jean-Pierre Lacroix, ACUNS Lecture in Honour of Kofi Annan - UN Peacekeeping in a Divided World: Achievements and Challenges
• Adriana Abdenur, ACUNS Annual Meeting Keynote Address - A Multipolar World Is Not Something to Mourn
• Elise Doumergue & Hussam Hussein, Beyond Membership: Why Do States Seek Observer Status in Regional Organizations?
• The Global Forum
• Jonathan R. Everhart, Challenges of the OECD’s Tax Governance Regime Leading to the United Nations’ ‘(Re)entry’ into International Tax Law Governance
• Hendry Roris P. Sianturi, Uud Wahyudin, Budi Nugraha, & Reddy Anggara, The BRICS Sustainability Paradox in Global Governance
• Troy Emilio Smith, AI-Driven Disinformation, Information Integrity, and Global Governance: Challenges and Policy Priorities for the Multilateral System

     

Award of the Nobel Peace Prize to Navi Pillay

In response to this week’s announcement from the White House, Marc Weller provides an overview of the escalating US sanctions against the ICC, culminating in this week’s measures directed against the institution itself, situating them within a fundamental disagreement over the Court’s jurisdiction over nationals of non-States Parties. Drawing on Article 12(2) of the Rome Statute and the principles of territorial and universal jurisdiction, he argues that States may collectively delegate their existing criminal jurisdiction to the ICC without requiring the consent of an accused person’s State of nationality. The recent sanctions are an unprecedented assault on international judicial independence that requires a coordinated response by States Parties, potentially including measures to counteract the extraterritorial effects of US sanctions.

High moral character at the ICC

Vetting at the ICC has remained in focus, as Ezequiel Jimenez Martinez examines the institutional failures that prevented the ICC’s Advisory Committee on Nominations from conclusively assessing judicial candidates’ “high moral character” under Article 36(3)(a) of the Rome Statute ahead of the December 2026 elections. He traces the problem to structural defects in the Assembly of States Parties’ due diligence procedure, particularly the failure to coordinate nomination deadlines with investigations by the Independent Oversight Mechanism, compounded by inadequate investigative resources. The ASP and its Bureau must reform the procedure through binding timelines, supplementary assessments where reports arrive late, and adequate funding, lest the same shortcomings undermine future judicial and prosecutorial elections.

80 years after Nuremberg: the crime of aggression

Last week, Claus Kreß gave a lecture in Court Room 600 to commemorate the eightieth anniversary of the Nuremberg Judgment. His words trace the development of the crime of aggression from the interwar prohibition of aggressive warfare to its criminalisation at Nuremberg and its subsequent marginalisation in international criminal justice. He makes the case that Russia’s invasion of Ukraine has renewed recognition of aggression as a crime—not only against State sovereignty, but also against human life, as reflected in the Human Rights Committee’s General Comment No. 36 on Article 6 ICCPR. Against the limitations of the ICC’s jurisdiction over aggression, we should welcome progress towards a Special Tribunal for the Crime of Aggression against Ukraine as an opportunity to overcome Nuremberg’s legacy of selective accountability and revitalise the prosecution of aggression.

Calculation of interest in ISDS

Toni Marzal criticises the increasingly expansive award of interest in investor-State dispute settlement, arguing that the widespread preference for compound interest and commercially determined rates has contributed significantly to inflated compensation awards.The principle of full reparation does not justify disregarding domestic legal restrictions, compensating investors for hypothetical risk premiums, or presuming compound losses without evidence; instead, interest must be grounded in compensable harm, causation, and applicable law. Emerging reforms in UNCITRAL Working Group III throw a welcome shape on the horizon, in particular proposals favouring risk-free interest rates and requiring specific justification for compounding as a return to legally disciplined compensation.

Investment arbitration as ransom?

Güneş Ünüvar examines Mikhail Fridman’s investment arbitration against Luxembourg under the Belgium–Luxembourg Economic Union–Russia BIT, questioning whether the threat of a multibillion-dollar award influenced Luxembourg’s support for his removal from the EU sanctions list. He argues that investment arbitration can produce a form of “administrative chill,” whereby the prospect of substantial financial liability influences how governments implement and negotiate sanctions, even without a final arbitral award. More broadly, beware the supposed depoliticising function of investor-State arbitration: coordinated investment claims may become instruments of geopolitical bargaining capable of undermining the EU’s collective sanctions regime.

UN Global Dialogue on AI Governance

Yohannes Eneyew Ayalew, José-Miguel Bello y Villarino and Fleur Johns examine the inaugural UN Global Dialogue on AI Governance, established by General Assembly Resolution 79/325, as a potentially important institutional forum for overcoming the fragmentation of international AI governance. They identify significant obstacles to a genuinely inclusive and rights-based approach, including disagreements over the centrality of human rights, the influence of private technology companies and the International Telecommunication Union, and competing national preferences over global regulation. The Dialogue represents an institutional opening rather than a regulatory settlement, whose significance will depend on whether it can translate broad participation into meaningful cooperation while giving marginalised communities a stronger voice.

Lethal autonomous weapons systems

Aurel Sari takes a critical look the definition of lethal autonomous weapon systems adopted by consensus in the September 2026 report of the Group of Governmental Experts under the Convention on Certain Conventional Weapons (CCW/GGE.1/2026/3). He argues that the agreed formulation leaves a number of fundamental questions unresolved: concerning the integration of technological components, the distinction between identifying and selecting targets, the degree of human intervention required, and the meaning of a system’s capacity to cause loss of life. These ambiguities permit competing broad and narrow interpretations, potentially producing markedly different regulatory outcomes, including for weapons reviews under Article 36 of Additional Protocol I.

Abhijeet Shrivastava and Constantinos Yiallourides assesses Argentina’s proposed Annex VII UNCLOS arbitration against the United Kingdom over project Sea Lion’s proposed hydrocarbon exploitation around the Falkland Islands/Islas Malvinas. Drawing on the Chagos Marine Protected Area arbitration and Article 288(1) UNCLOS, they argue that Argentina faces substantial jurisdictional obstacles because its claims concerning continental shelf rights and non-aggravation of the dispute are inseparable from the underlying territorial sovereignty dispute, which an UNCLOS tribunal cannot determine. Claims concerning marine environmental protection may offer a more promising jurisdictional route, since these obligations can potentially be adjudicated without resolving sovereignty over the Islands.

As ever, events and announcements can be found here. 

Jair Bolsonaro may be absent from Brazil’s 2026 presidential election, but Bolsonarism is not. Convicted in September 2025 of attempting a coup against the country’s democratic order and sentenced to more than 27 years in prison, he leaves a political space that his son Flávio, a senator who presents himself a moderate Bolsonaro, is running to fill.

Environmental policy is one example of what this more moderate positioning looks like in practice. When asked during a recent presidential interview what his government would do to protect the environment, Flávio offered a straightforward answer: basic sanitation. This was neither a rejection of environmental protection, nor was it incorrect, as sanitation infrastructure bears directly on water quality, waste management and public health. Yet the core of Brazil’s environmental agenda is inseparable from the Amazon, biodiversity, Indigenous territories, mining, land use and climate policy, all of which were left untouched in his response. 

Adopting a softer tone in rhetorics, therefore, should not be mistaken for evidence of environmental commitment. In fact, language can be strategically calibrated to make renewed threats more difficult to identify, reflecting the kind of political opportunism that scholarship has identified as characteristic of illiberal movements, including Bolsonarism.

In this light, this post asks whether Flávio’s apparent moderation reflects a genuine shift in Bolsonarism‘s environmental agenda toward a more effective environmental protection, or whether that agenda remains substantively unchanged, albeit reframed in a new register.

Bolsonarism under Jair Bolsonaro

Bolsonarism, the nationalist and anti-establishment movement formed around Jair Bolsonaro, developed into a form of populist politics that challenged, and at times threatened, institutional constraints, appealing to an unrestricted conception of popular sovereignty grounded in majoritarianism and anti-pluralism. During Bolsonaro’s presidency, Brazil reached its lowest level on V-Dem’s Liberal Democracy Index since the country’s redemocratisation in 1988, while scholars have described these developments as part of a broader process of democratic backsliding.

Turning to his environmental governance, regulation was treated as a question of how far the state should restrain economic activity, with ecological conservation subordinated to economic growth. Environmental enforcement offers perhaps the clearest example, and the most ironic one. Jair Bolsonaro, who had been fined twice by Ibama, Brazil’s federal environmental protection agency, spent his presidency portraying the agency as ideologically driven and as an industry of penalties standing between rural and urban entrepreneurs. 

In 2019, Bolsonaro issued Decree No. 9,760, creating a new environmental procedure that delayed the enforcement and collection of environmental fines, including sanctions imposed for illegal logging. Human Rights Watch documented that, although thousands of fines continued to be issued, their enforcement was effectively suspended for more than a year. 

The consequences of this approach were sharpest in the Amazon. According to data from INPE, the National Institute for Space Research, approximately 45,600 square kilometers of forest were cleared during Bolsonaro’s presidency, an area comparable to the state of Rio de Janeiro. The figure matters not simply as a measure of deforestation. It should be read alongside the abolition of the Secretariat for Climate Change and Forests and institutional changes such as the replacement of experienced environmental officials with military personnel. Taken together, these developments show how the weakening of enforcement institutions accompanied a political agenda that treated environmental regulation as an obstacle to economic activity.

The same logic extended to Indigenous territories, as Bolsonaro’s government introduced Bill 191/2020, which sought to open Indigenous lands to mining, fossil-fuel extraction and hydroelectric projects. His time in office also saw a significant expansion of illegal mining activity, while the Conselho Indigenista Missionário (CIMI) documented increasing numbers of invasions, rights violations and illegal resource extraction in Indigenous territories. For instance, in Yanomami territory, illegal mining, coupled with failures of state protection, contributed to an escalating humanitarian crisis.

Beyond these measures, the former president also repeatedly challenged the authority of climate science, including in his public rhetoric and speeches before the United Nations, while portraying environmental and climate concerns as ideological or as forms of external interference. 

Because his antagonism made these priorities so visible, foreign governments, courts and civil society were able to mobilise against them. The Amazon fires and rising deforestation strained diplomatic relations with countries such as Ireland, Norway and Germany, and became a source of political pressure surrounding the EU–Mercosur trade agreement, with France even threatening to block its ratification over Brazil’s environmental record. Indigenous-led complaints were also filed at the International Criminal Court alleging crimes against humanity.

Thus, open confrontation carried a cost, and any successor seeking to inherit the movement would also inherit the political and diplomatic costs attached to its agenda, unless the same goals could be advanced through a different political language.

Bolsonarism under Flávio Bolsonaro

Jair Bolsonaro’s presidency established important precedents not only for Brazil’s environmental policy, but also for how Bolsonarism approached, articulated, and implemented its agenda. Although Flávio Bolsonaro is the political figure most inclined to carry forward the movement inaugurated by his father, this does not mean that he would simply reproduce the previous administration. The political and institutional context of 2026 differs substantially from that of 2019, creating new constraints and opportunities for how this agenda can be pursued. 

One way to analyse whether continuity exists is to look at how environmental policies are framed in Flávio’s presidential government programme. There, the environment is explicitly framed, under section ‘Meio ambiente: o ativo verde do Brasil’ (Environment: Brazil’s green asset), as a ‘strategic asset, rather than an obstacle to development’. Further on, the programme articulates conservation to its capacity to generate economic value, attract investment, and create income. 

It is worth emphasising that the document also promises to protect Brazil’s biomes and combat environmental crime. It sets a target of eliminating illegal deforestation by 2029, while referring to the goal of ‘resuming and carrying through the commitment we already made to the world under the Bolsonaro government’. This creates a tension between the environmental policy now proposed and the political record that the programme itself takes as its reference, particularly in light of the evidence discussed in the previous section.

Moreover, the emphasis on illegal deforestation deserves some attention, as such a decline can reflect very different realities. It may mean that the harmful activity has actually been stopped. But it may also result from changes in the regulatory framework that turn previously unlawful conduct into lawful activity, or from the weakening or political control of the institutions responsible for detecting, sanctioning and curbing environmental violations, practices that were present during his father’s government. In such circumstances, less illegal deforestation may be officially identified without less deforestation actually taking place.

Flávio Bolsonaro’s record as a senator is also relevant in this respect. In 2025, he voted in favour of Brazil’s General Environmental Licensing Bill, whose Article 58 releases financial institutions supervised by the Central Bank from any continuing duty to monitor the environmental compliance of the projects they finance, shifting responsibility away from the financiers that make such ventures possible. After President Lula vetoed the provision, Flávio voted in November 2025 to override the veto. The provision later entered into force and is now being challenged before the Supreme Federal Court.

An important caveat to this episode concerns Banco Master, which has been at the centre of what has been described as one of the largest banking fraud cases in Brazilian history and had significant interests in mining and critical minerals. Documents from the investigation indicate that Flávio negotiated at least US$24 million with its controller, Daniel Vorcaro, to finance Dark Horse, a biographical film about his father. He confirmed seeking private sponsorship while denying that any advantage had been offered or received. Flávio is now formally under investigation in connection with the financing of the film, and prosecutors have sought to examine whether legislative initiatives he supported may have benefited Banco Master or related interests.

The issue matters here less as a scandal than for what it illustrates about how environmental protection can become a bargaining chip, revealing both its political value and its vulnerability.

Policy continuity is perhaps even more apparent in Flávio Bolsonaro’s approach to Indigenous land issues. During a 2026 visit to the Utiariti village, he defended the autonomy of Indigenous communities to pursue activities such as agriculture, mining and tourism within their territories. He also supports the Marco Temporal, the thesis that Indigenous land claims are valid only for areas occupied when the 1988 Constitution was promulgated, a measure that favours legal certainty for landowners over Indigenous rights. However, where his father framed these protections as obstacles, Flávio presents them as opportunities, portraying territorial and rights-based safeguards as compatible with, and even conducive to, economic participation.

Flávio, therefore, avoids open confrontation while advancing positions on regulation, territory and institutional responsibility that remain close to those seen under Jair Bolsonaro. His rhetoric allows contested political choices to be presented as questions of perspective, making disputes over environmental priorities less explicit. What is said matters, but so does what is omitted, softened or left deliberately ambiguous.

The False Dawn of Bolsonarism

What looks like a change in environmental politics under Bolsonarism may be, in significant part, a change in the language through which such politics is presented. Flávio’s environmental agenda does not stand on its own. It is anchored in a political movement with an established electoral base linked to agribusiness, as well as in legislative precedents and priorities largely established under his father.

What his platform seems to add to that inheritance is not new substance, but a new vocabulary. Taken individually, terms such as autonomy, modernisation and legal certainty are not incompatible with environmental protection. Nor is an emphasis on sanitation necessarily misplaced when discussing environmental policy. Yet, when read against Bolsonarism’s precedents and political constituencies, this language can make continuity appear as change.

Moderation in discourse can still serve opportunistic purposes, and its ambiguity can make erosion harder to identify and, consequently, harder to resist. The risk extends beyond Brazil to any illiberal movement that discovers the strategic value of moderation.

The false dawn lies in Bolsonarism’s acquisition of a vocabulary sophisticated enough to present familiar priorities as compatible with environmental protection, while fundamental rights, constitutional commitments and international obligations remain no better protected than before.

Old wine, after all, remains old wine even when poured into a new wineskin.

Suggested citation: Adriana Xavier, Old Wine in New Wineskins: The Changing Face of Bolsonarism’s Environmental Agenda, Int’l J. Const. L. Blog, Oct. 18, 2026, at: http://www.iconnectblog.com/old-wine-in-new-wineskins-the-changing-face-of-bolsonarisms-environmental-agenda/             

The post Old Wine in New Wineskins: The Changing Face of Bolsonarism’s Environmental Agenda appeared first on www.iconnectblog.com.

• Special Issue: Regime Interaction under the BBNJ Agreement
• Sarah Lothian, Kristine Dalaker & Aline Jaeckel, Regime Interaction under the BBNJ Agreement
• Gabriele Goettsche-Wanli, Who Are the “Relevant IFBs” for the Purposes of the BBNJ Agreement?
• Aldo Chircop, The BBNJ Agreement and IMO: What Role for Maritime Law Instruments and Measures?
• Trung Nguyen & Dawoon Jung, Strengthening the Area-Based Management Tools on the High Seas through Shipping-Related Measures
• Bastiaan Ewoud Klerk, Beyond Undermining: COP Competences to Establish ABMTs and MPAs under the BBNJ Agreement
• Kentaro Nishimoto, The Potential of the “Obligation to Promote” in the BBNJ Agreement to Contribute to a Holistic Governance of Areas Beyond National Jurisdiction
• Warwick Gullett & Neil Craik, Precautionary Environmental Impact Assessments under the BBNJ Agreement: More than a Minor or Transitory Effect on the Marine Environment?
• Youngdawng Moh, Heecheol Yang, Wonhee Kim & Sarah Lothian, Regime Interaction in CBD and BBNJ Environmental Impact Assessments: Normative Framework and Challenges
• Ethan Beringen, Cleaning the High Seas: Environmental Impact Assessments under the BBNJ Agreement and the Removal of Existing Marine Plastic Pollution
• Julia Schütz Veiga, From Definition to Obligation: Interpreting Marine Technology under the BBNJ Agreement to Advance Equity

     

Asserting superior expertise, Presidents have long demanded deference in recognizing national security threats. Courts have generally agreed and acceded. But what if "national security" is not an expert subject to be discovered, but instead a manifestation of community values and fears-an act of communal self-definition? Drawing on history and theory, this article argues that the political nature of national security claims has been fundamentally miscast. Understood as matters of self-determination, claims to national security require democratic ratification. Courts should thus approach national security claims not with the deference owed to expert factual determinations but with the scrutiny appropriate to assertions of national identity and communal values. They should function as democracy-forcing institutions, demanding evidence that securitizing moves have been democratically and representatively ratified before accepting them as justifications for exceptional government action.

     

Internet shutdowns are on the surge across the globe, at least four dozen states-imposed internet shutdowns in 2024 alone, in armed conflicts and other situations. In some states where an authoritarian propensity or “digital sovereignty” reigns, internet shutdowns are being imposed to control political narratives during the conduct of hostilities. These states justify their actions using a “shut it off” argument, claiming that the internet is a luxury and further asserting that access to the internet may be overridden by national security or other justifications. On the other hand, there are states that advance open access to the internet in an uninhibited manner where internet must always be open even during armed conflicts. When the internet is cut off, by whatsoever reasons, they tend to advance the free access of the internet using “keep it on” argument.

This Article first seeks to explore these polarized debates of internet shutdown and then goes on to examine the legality of internet shutdowns under international law, mainly focusing on International Human Rights Law (IHRL) and International Humanitarian Law (IHL). Drawing on insights from the “Three Generations of Digital Human Rights” project, which conceptualizes access to the internet as a standalone new digital right, this Article argues that imposing internet shutdowns during armed conflicts or other situations, without due regard to IHRL and IHL, undermines emerging digital rights, foremost of which is the right of access to the internet. Finally, the Article suggests that states should co-apply both IHRL and IHL before, during, and after the imposition of shutdown measures in situations of armed conflict.

     

The day after an election is often bittersweet. For the winners, there is celebration. For the losers, the disappointment of defeat and, perhaps later, the lessons that come with it. Brazil woke up to these feelings after the first round of the 2026 general elections on 4 October. But alongside them came a different sense of apprehension, prompted by what the vote had already consolidated in a country with a history punctuated by authoritarian ruptures.

Much of that apprehension stems from the congressional races, which produced substantial gains for the far right. The Bolsonarist Liberal Party (PL) extended its lead in both chambers of the Brazilian parliament and, in the Senate, became the largest party at the start of any legislature since 1988. Other parties on the right, including some closely aligned with Bolsonarism, also gained ground, further shifting the balance of the incoming Congress.

There is a certain irony in the timing, as 5 October marked the 38th anniversary of Brazil’s 1988 Constitution, a landmark of the country’s return to democracy after more than two decades of military dictatorship. That regime was repeatedly praised by former President Jair Bolsonaro, whose eponymous illiberal political movement emerged from the election considerably stronger.

While much has been decided, the presidential runoff will take place three weeks later between Flávio Bolsonaro, Jair Bolsonaro’s eldest son, and Luiz Inácio Lula da Silva. Beyond determining who will govern the nation, the second round will bear directly on whether institutional checks on power remain in place, at a moment when the next president could make as many as four nominations to the Supreme Federal Court (STF).

Developments elsewhere, including in the United States (US), where executive overreach and the erosion of legislative and judicial constraints have accompanied a rapid democratic decline, offer a cautionary point of comparison. Fatalism, however, would be premature. The outcome of the presidential runoff may still prevent a similar trajectory from taking hold.

The new Congress and democratic resilience

To understand the risks associated with the newly elected Congress, it is useful to look back at the period between 2019 and 2022, when Jair Bolsonaro was president of Brazil. According to V-Dem, during his term, the Liberal Democracy Index reached its lowest level in the country since redemocratization, amid attacks on independent institutions, political opponents and the media, as well as repeated attempts to undermine the integrity of the electoral process.

Nonetheless, proposals that could have entrenched his illiberal agenda through constitutional and institutional change – including reducing the compulsory retirement age of STF justices to increase his influence over the Court – failed due to lack of sufficient legislative support. Bolsonaro was defeated by Lula in 2022 and later convicted by the STF for attempting a coup, in a sequence of events that illustrates the importance of the constraints on power that remained in place.

This contrasts with experiences such as those that took place in Hungary and Poland, where parliamentary majorities helped provide the institutional means through which democratic backsliding became entrenched during the 2010s. More recently, the United States under Trump’s second administration offers a striking example of how political alignment across branches can weaken the countervailing logic of the separation of powers and accelerate democratic deterioration at an unprecedented pace.

Turning to 2026, the PL secured the largest representation in both chambers of Congress. In 2022, the party was in a comparable position, but Bolsonaro lost his bid for re-election, preventing a corresponding alignment between the executive and the legislature. The prospect of such convergence is one of at least four features that may distinguish the current political landscape from that prevailing in 2022 and affect democratic resilience.

The first is the scale of the PL’s own gains. In the Chamber of Deputies, the lower house, the party won 121 of the 513 seats, an increase of 24. Its Senate gains were even more pronounced, with the PL winning 19 of the 54 contests, despite Brazil’s highly fragmented party system. Together with the nine senators whose terms continue beyond 2026, this would bring the party to 28 of the chamber’s 81 members.

The significance of these results lies not only in the numbers but in the political agenda pursued within the party, which encompasses anti-pluralist and strongly conservative positions and proposals directed against existing institutional checks. They find expression in calls for the impeachment of STF justices, support for amnesty for the former president and others convicted in connection with the attempted coup, policies restricting transgender rights, and opposition to legislation criminalizing misogyny.

The second feature is that the PL’s advance was accompanied by the broader strengthening of the right, which includes parties such as PP, União Brasil, Republicanos, Podemos and Novo. This is especially relevant in the Senate, where 49 members will be on the right from 2027. The bloc will hold an absolute majority – with implications for the approval of presidential nominations to the STF – and meet the three-fifths threshold required to pass a constitutional amendment. It also falls only five seats short of the two-thirds majority required at the final stage of presidential impeachment proceedings and for the removal of an STF justice.

Compared with the congressional configuration during Jair Bolsonaro’s presidency, the new balance creates greater scope for measures that could weaken judicial independence, a possibility that is not merely hypothetical. A pending constitutional amendment introduced by PL legislators would empower Congress to suspend final STF decisions whenever a qualified legislative majority considered that the Court had exceeded its constitutional authority. Court-packing proposals that recurred in Bolsonaro’s rhetoric during the 2018 and 2022 campaigns could also become politically feasible in this setting.

Two further features, tied to the still unresolved presidential race, will be explored in the next section. Even without them, the developments outlined above reveal a troubling congressional composition that is likely to place considerable pressure on democratic constitutionalism. Brazil’s democratic recovery since 2023 should not be regarded as irreversible. In fact, by the end of October, conditions could become even more conducive to renewed backsliding.

The presidential runoff as the last electoral line of defence

Anti-democratic measures pursued through what Landau terms “abusive constitutionalism”, such as court-packing, do not in themselves depend on the outcome of the presidential race. Their lasting consequences, however, may. Under Brazil’s legal order, an unconstitutional amendment could be challenged before the Supreme Federal Court, whose current institutional independence – which by no means implies a Court without problems – provides an important check on such initiatives. Yet this safeguard could be weakened in the near future.

One seat on the STF has remained vacant since former Chief Justice Luís Roberto Barroso retired early in October 2025. Lula nominated Jorge Messias to fill the vacancy, but the Senate rejected him in April 2026 – the first rejection of a candidate to the Court in 132 years. The timing of the next nomination has since become entangled with the presidential election, with Senate President Davi Alcolumbre signalling that it should be left to whoever wins the presidency, echoing the US Senate’s refusal to consider Merrick Garland’s nomination to the Supreme Court during the final year of Barack Obama’s presidency in 2016.

In Brazil, the stakes extend beyond this single vacancy, since three further seats are expected to open during the next presidential term as Justices Cármen Lúcia, Gilmar Mendes, and Luiz Fux reach the compulsory retirement age. If Flávio is elected and fills all four vacancies, the STF would then include six justices appointed by either him or his father. The implications for judicial independence are difficult to disregard in light of comparative experience showing how illiberal governments can turn constitutional courts from barriers to democratic backsliding into instruments of it.

Alongside the scale of the PL’s gains and the collective advance of right-wing parties, these prospective nominations bring into view the possibility of political alignment across branches in the coming years. Whether it materialises depends on the presidential runoff. Flávio came out ahead in the first round, and if he wins, Brazil could move towards a configuration closer to that of the United States under Trump’s second administration. The PL would hold the largest bloc in both chambers of Congress, a majority of STF justices would have been appointed by Bolsonarist presidents, and the executive would also be controlled by that political movement.

A Lula victory, on the other hand, would not guarantee that checks on power remain intact. The new congressional balance could still enable repeated obstruction of presidential nominations, intensify conflict between the legislature and the judiciary, and facilitate issue-based alliances capable of reaching impeachment thresholds.

Conclusion: no easy path ahead

The shift towards the far right is already under way, although where it will lead remains uncertain. The presidential runoff may ultimately serve as an important guardrail for democratic continuity, at a time when many newly elected representatives have supported positions that affect institutional constraints, pluralism and individual rights.

What these choices reveal about society itself prompts reflections that fall outside the scope of this post. For now, perhaps the most pressing issue is whether political power will remain dispersed among institutions capable of checking one another.

Suggested citation: Ingrid Dantas, The Last Line of Defence: Brazil on the Brink of Renewed Democratic Backsliding, Int’l J. Const. L. Blog, Oct. 17, 2026, at: http://www.iconnectblog.com/the-last-line-of-defence-brazil-on-the-brink-of-renewed-democratic-backsliding/

The post The Last Line of Defence: Brazil on the Brink of Renewed Democratic Backsliding appeared first on www.iconnectblog.com.

I. Between Self-Protection and Self-Endangerment

A party ban is one of the most far-reaching instruments available to a democratic constitutional state. It is intended to prevent political parties from using the freedoms of democracy to abolish that very order. The experience of the Weimar Republic raised the fundamental question of whether, and to what extent, a liberal democracy may provide mechanisms for its own protection. Precisely for this reason, a party ban is a double-edged sword: it can protect the free democratic basic order, but, where substantive requirements or procedural safeguards are weakened, it can itself damage political competition, the freedom of political parties from state influence, and trust in democratic institutions.

The debate in Germany over possible ban proceedings against the AfD makes this ambivalence visible. On 30 January 2025, the German Bundestag considered two cross-party motions seeking a review of the AfD by the Federal Constitutional Court; both were referred to the Committee on Internal Affairs. Since then, two concerns have stood side by side: the risk of underestimating a threat to democracy or responding too late, and the risk of drawing the most severe instrument of party law into political competition.

These questions must be kept separate. Whether a political party satisfies the substantive requirements of Article 21(2) of the Basic Law (Grundgesetz, GG) is decided solely by the Federal Constitutional Court. Before that, however, there is a political decision: whether the Bundestag, the Bundesrat (Federal Council) or the Federal Government should submit an application at all. This sphere of political discretion itself requires a structured framework.  To this end, this post proposes a preliminary test for political instrumentalization. This instrumentalization test asks whether the decision to initiate ban proceedings rests on objective reasons aimed at protecting the democratic order, or whether there are indications of partisan misuse.

Delay can also create risks. In the second NPD ban proceeding, the German Federal Constitutional Court emphasized that Article 21(2) GG does not require a concrete danger to have already materialized. The provision responds to the historical experience that radical movements become increasingly difficult to counter the more ground they gain. A democracy that always waits until a danger has fully materialized may miss the point at which democratic self-defence can still be effective. The Court therefore describes the party ban as a preventive measure and associates it with the maxim “Wehret den Anfängen” (Resist the beginnings). This permits early action against parties hostile to the constitutional order.

This, however, does not justify any automatic preference for initiating ban proceedings. A democratic state must not wait until its capacity for self-defence threatens to become ineffective; nor may it use a party ban to remove an unwelcome political competitor from the democratic arena. The instrumentalization test proposed here is designed to navigate these two risks. It is not an additional substantive requirement under Article 21(2) GG. Rather, it is intended to structure the political decision as to whether ban proceedings should be initiated at all.

II. An Instrumentalization Test

As mentioned, the instrumentalization test concerns the preliminary political decision on whether to initiate ban proceedings. The following five criteria structure this sphere of discretion and are illustrated through selected comparative examples. These examples do not constitute a comprehensive comparative study; rather, they highlight different risks and limits of party bans.

Criterion 1: A Real Threat and a Legitimate Protective Purpose

The instrumentalization test must begin by asking whether initiating ban proceedings serves a genuine purpose of protecting the democratic order. It is not necessary at this stage to establish all the requirements of Article 21(2) GG. There must, however, be sufficient factual indications that legally protected interests of the free democratic basic order are affected; mere political rivalry, electoral success or the inconvenience of a party are not sufficient.

The Herri Batasuna/Batasuna case shows how clearly such a protective purpose can emerge. There, the European Court of Human Rights (ECtHR) focused in particular on the connection between the affected party with the Spanish terrorist organization ETA and support for a political strategy linked to violence, and considered the dissolution of the parties compatible with Article 11 of the European Convention on Human Rights (ECHR).

In the case of the AfD there are judicially confirmed factual indications that can support a genuine purpose of protecting the democratic order. The Federal Office for the Protection of the Constitution (Bundesamt für Verfassungsschutz, BfV) classified the AfD as a “suspected case” (Verdachtsfall), a classification upheld by the Higher Administrative Court of North Rhine-Westphalia; after the Federal Administrative Court rejected the complaint against the refusal to grant leave to appeal, the judgment became final. In February 2026, the Administrative Court of Cologne temporarily barred the BfV from classifying the AfD as a “confirmed right-wing extremist endeavour”; at the same time, it continued to find a strong suspicion of activities directed against the free democratic basic order.

There is therefore at least a sufficiently robust factual basis for assuming a genuine purpose of protecting the democratic order. This does not mean that the requirements for prohibiting a party are fulfilled. It means only that consideration of ban proceedings is not based solely on political rivalry, but can be linked to judicially confirmed factual indications of potentially unconstitutional activities.

Criterion 2: Objectivity and Equal Treatment

The decision to initiate ban proceedings must be based on objective and politically neutral criteria. Electoral success, political inconvenience or opposition status must not be decisive; what matters are attributable objectives and actions and their significance for the democratic order. This corresponds to the particular importance of equality of opportunity among political parties and the principle of state neutrality.

The Herri Batasuna case again shows that the decisive factor must not be a political conviction (there, the demand for Basque independence), but rather concrete activities attributable to the party.

Developments in Georgia are particularly sensitive in this respect. There, the ban application initially targeted three major opposition parties or alliances. In April 2026, the ban sought was widened to four parties with the addition of the Federalist Party; in September 2026, “Gakharia for Georgia” was also included, so that the ban sought now extends to five opposition parties. This gradual expansion makes it especially important to ask according to which general and politically neutral criteria parties are selected and particular conduct attributed to them. For the AfD, therefore, neither electoral success nor opposition status can be decisive. What matters are concrete and attributable objectives and actions.

For the purposes of the instrumentalization test, however, an additional question remains: would the same standards be applied regardless of the political orientation of the party concerned? Objectivity and equal treatment do not require identical treatment of every radical party. They do, however, require a justification that can be followed on the merits as to why the most severe instrument of party law is being considered against this particular party.

Criterion 3: Independent Institutional and Judicial Control

Ban proceedings begin with a political decision, but its factual basis and final decision must not depend exclusively on the political actors who initiate the proceedings. Given the severity of a party ban, institutional separation, reliable fact-finding and independent judicial review are indispensable. The Federal Constitutional Court emphasized this particularly clearly in the first NPD proceeding: the use of undercover informants (V-Leute) at the party’s leadership level raised such fundamental questions concerning the party’s freedom from state influence and the reliability of the factual basis that the proceedings were discontinued.

The Georgian situation demonstrates the opposite structural risk. Key facts for the later ban application were collected and assessed by a parliamentary committee of inquiry shaped by the governing majority; its report subsequently formed a central basis for the ban application. Where the parliamentary majority is simultaneously acting against its political competitors, there is a risk that political assessment and factual determination become intertwined.

In Germany, by contrast, findings of the BfV are subject to judicial review; only the Federal Constitutional Court decides whether a political party is unconstitutional. It is therefore crucial that fact-finding, the political decision to submit an application, and the final decision on the ban remain institutionally separate and subject to judicial control.

Criterion 4: Proportionality of Initiating Ban Proceedings

For the final decision under Article 21(2) GG, the Federal Constitutional Court does not require a separate proportionality test; the relevant considerations are integrated into the substantive requirements. For the preliminary decision whether to initiate ban proceedings, however, classical proportionality analysis provides a useful structure.

Suitability: Ban proceedings must be capable of protecting the democratic order, taking possible counterproductive effects into account. In Turkey, proceedings against the Justice and Development Party (AKP) ended in 2008 with a reduction of state funding rather than a ban; the Venice Commission also warned that even initiating ban proceedings may affect the political climate. In Belgium, organizations associated with Vlaams Blok were convicted, yet the movement continued as Vlaams Belang. These examples show that legal exclusion does not always eliminate a political movement and may produce counter-effects.

Necessity: The question is whether less restrictive but comparably effective means are available. Article 21(3) GG allows exclusion from state funding; measures against individual party officials and specific violations, and in special cases Article 18 GG, must also be considered. It must also be established whether unconstitutional statements are attributable to the party itself rather than isolated members.

Proportionality in the strict sense: The seriousness of the threat must be weighed against the democratic costs of initiating the most severe instrument of party law. The more intense and concrete the threat, the stronger the case for proceedings. Conversely, a party ban as an ultima ratio should not be initiated for isolated conduct attributable only to individuals. The decisive question is whether the seriousness and systematic nature of the threat are proportionate to the severity of the interference.

Criterion 5: Scrutiny of Partisan Self-Interest

Finally, it must be examined whether initiating ban proceedings is linked to the partisan self-interest of those initiating the proceedings. The assessment should not focus on a subjective intention to cause harm, which is difficult to prove, but rather on objective conflicts of interest: Who initiates the proceedings, against whom are they directed, and what political advantage might the applicants derive from excluding the party concerned?

The developments in Georgia make this question particularly important. The ban initiative launched by members of the governing majority was gradually expanded and now targets five major opposition parties. This objectively creates a situation in which the political forces seeking the ban could themselves benefit from the exclusion of major competitors from political competition. This clearly reveals political instrumentalization.

The German institutional structure differs in this respect: an application may be submitted only by the Bundestag, the Bundesrat, or the Federal Government, not by individual political parties (section 43(1) of the Federal Constitutional Court Act (BVerfGG)). Moreover, no single parliamentary group holds a majority of seats in the Bundestag. Partisan self-interest is therefore not excluded, but it is more strongly constrained institutionally.

III. Dum tempus est: Militant Democracy at the Right Time

Militant democracy must guard against two opposing dangers. Georgia demonstrates how a party ban can become an instrument for entrenching political power where the governing majority, the process of fact-finding and an interest in excluding political competitors are closely intertwined. The experience of the Weimar Republic, by contrast, reminds us of the opposite risk: democratic self-defence may lose its purpose if anti-democratic forces have already reached a position in which effective countermeasures are scarcely possible. It is precisely this historical experience that underlies the preventive character of Article 21(2) GG. The Federal Constitutional Court therefore invokes the maxim “Wehret den Anfängen” (Resist the beginnings) and warns against waiting until a concrete danger has fully materialized

The instrumentalization test seeks to navigate between these two risks. Where political instrumentalization can be sufficiently excluded, a genuine purpose of protecting the democratic order exists and less restrictive means are not comparably effective, submitting an application to the Federal Constitutional Court may constitute an exercise of rule-of-law scrutiny. The test does not prejudge the outcome: whether the requirements of Article 21(2) GG are fulfilled remains a matter for the Federal Constitutional Court alone.

For the debate surrounding the AfD, the decisive question is therefore not only whether a party ban is available as an ultima ratio, but also when the constitutionally provided mechanism of review can still be effective. The instrumentalization test aims to protect against abuse without allowing rule-of-law restraint to turn into political inaction. Militant democracy requires not only the right instruments, but also the right timing. If this window of opportunity is missed, even its sharpest weapon may come too late. Dum tempus est: while there is still time.

Suggested citation: Anna Phirtskhalashvili, The Double-Edged Sword of Militant Democracy: Party Bans and the Risk of Political Instrumentalization, Int’l J. Const. L. Blog, Oct. 16, 2026, at: http://www.iconnectblog.com/the-double-edged-sword-of-militant-democracy-party-bans-and-the-risk-of-political-instrumentalization/

The post The Double-Edged Sword of Militant Democracy: Party Bans and the Risk of Political Instrumentalization appeared first on www.iconnectblog.com.

—António Guterres, Secretary-General of the United Nations

Introduction

On 6–7 July 2026, the United Nations (‘UN’) convened the first annual Global Dialogue on Artificial Intelligence Governance in Geneva (see here and here). The meeting brought together more than 4,200 participants from nearly 170 States, alongside representatives of international organisations, technology companies, civil society, academia and the technical community (see here). Established by consensus through UN General Assembly Resolution 79/325, the Dialogue represents the first universal forum operating under a UN General Assembly mandate in which governments and other stakeholders can deliberate collectively on AI governance. The Dialogue will next reconvene in May 2027 in New York.

Until now, international AI governance has mainly developed through fragmented national and regional initiatives or comparatively exclusive forums such as the G 7, G20, OECD, and World Economic Forum. The Dialogue does not replace these processes. Rather, it provides an intersecting, potentially connective space in which their different regulatory approaches can be compared, contested (and where appropriate) made interoperable.

This post explores how the Dialogue may serve as a multilateral platform for global AI governance. It examines the Dialogue’s institutional and normative aspirations and then identifies the major challenges impairing the success of the Dialogue.

 The Dialogue and access to technology

As described by the Finnish delegation, the Dialogue is an “inclusive forum” where “all governments and stakeholders” can engage in “open dialogue”. But dialogues are not concurrent monologues. In the UN context, inclusivity normally involves a minimum shared understanding of problems around which parties can anchor a discussion. So, what are those anchors?

From participants’ statements we can tell what they are not. There is not a single reference to human rights —or “dignity” or “freedom”—in the statement of the Group of 77 and China; nor in the Group of Friends for International Cooperation on AI Capacity-Building’s statement, Türkiye’s or Japan’s statements. In contrast, there are explicit references to human-centric AI “grounded in international human rights law” in the statements of the EU, Australia and Uruguay. Evidently, the need for a global human rights-based approach to AI divides jurisdictions.

A common understanding will not come from basic governance principles either. Although participants frequently called for some coordination around regulatory initiatives or minimal governance, the statements offer very little in terms of a relevant forum to ensure that AI development does not evolve into a risk for peace or security.

However, there is one recurring theme which perfectly fits the UN mandate, is built around its development pillar, and could actually deliver some commitments. That is the theme of universal access to AI technology, alongside governance capability to establish conditions surrounding that access.

One of us participated in a panel on the sidelines of the dialogue on bridging the North-South hardware divide (see generally here). A key panel conclusion was that bridging the divide is possible, but will require persistent engagement, continued commitments and some resourcing. Sceptics may be forgiven for considering the Dialogue another half-empty initiative unlikely to deliver such a result. But there is a silver-lining. Resolution A/RES/79/325 operationalises commitments to broadening access by establishing the Dialogue as a platform to address, among other things, “capacity gaps” and facilitate “access to artificial intelligence applications” as well as “high-performance computing and related skills in developing countries”. These are not aspirational generalities; they are agreed terms of reference for a recurring intergovernmental process. As Co-Chair Rein Tammsaar observed at the close of the inaugural session in Geneva, the Dialogue has already moved participants “beyond abstract debates towards discussions on [inter alia] public-sector capacity building”.

If the Dialogue is to justify its existence, it should function—at least—as a soft accountability mechanism: a forum in which commitments on technology access and capacity-building are not only announced but periodically measured against outcomes, with the second session in 2027 serving as the first meaningful checkpoint.

The Dialogue and (digital) human rights 

Notwithstanding participants’ reluctance to invoke human rights in their statements, the Dialogue incorporates one thematic cluster dedicated to “respecting, protecting & promoting human rights”. This echoes the UN General Assembly’s focus on “respect for and protection and promotion of human rights in the field of artificial intelligence” when establishing the Independent International Scientific Panel on AI and the Global Dialogue on AI Governance on 26 August 2025 (see Res 79/325 ¶ 4 (e)). Human rights also feature in the 2026 Preliminary Report of the Independent International Scientific Panel on AI (see pp 37-38), whose terms of reference were established by the General Assembly. This raises the question of whether the Dialogue is likely to advance the development of human rights principles and instruments specific to AI. Our initial assessment is that the rights-promoting impact of the Dialogue is likely to be limited. Treating human rights as merely one of the Dialogue’s seven thematic clusters allows for institutional compartmentalisation and permits avoidance by the unwilling or disengaged. This structure also enables Dialogue discussions on AI safety, innovation, interoperability and capacity-building to proceed predominantly in technical or economic terms, with human rights incorporated only retrospectively or marginally. So framed, human rights seem unlikely to inform every aspect of the Dialogue. 

Some may argue that international human rights law (‘IHRL’) is not so easily dispensed with. Regardless of IHRL’s marginality in the Dialogue, it is nonetheless an established body of international law that binds States when they design, procure, regulate or deploy AI systems (see here and here). As such, its protections, including the rights to privacy, non-discrimination and equality, freedom of expression, due process, work, education and an effective remedy, apply throughout the AI lifecycle. For example, in considering how the right to non-discrimination applies in the AI context, the former UN Special Rapporteur on contemporary forms of racism, E. Tendayi Achiume, has observed that IHRL requires States to adopt a structural understanding of discrimination risks arising from AI and other emerging digital technologies, addressing not only explicit bias but also indirect and structural forms of discrimination (see A/HRC/44/57, 2020, ¶¶ 6, 38 & 48).

Through the UN Guiding Principles on Business and Human Rights (‘UNGPs’), IHRL also provides an authoritative framework for assessing whether companies developing and operating AI systems are meeting their responsibilities to respect human rights. These include responsibilities for undertaking human rights due diligence and providing or cooperating in remediation where harm occurs (see also A/79/170, 2024, ¶¶ 57(b)–(d) and 59(b)–(e)). 

Even so, bringing IHRL to bear on AI development and deployment remains tremendously challenging. It arguably entails inventing an entirely new catalogue of rights – “an International AI Bill of Human Rights” – while also translating existing obligations into sustained institutional practices. Nothing about the Dialogue’s first session suggests that participants share an appetite to take up this challenge.

The elephants in the Dialogue room

With the Dialogue, the UN seems to want to nurture a broader set of shared understandings and common purposes in relation to AI than have emerged from the ad hoc international AI Summits convened by a succession of individual states since 2023 in Bletchley Park, Seoul, Paris, and New Delhi (with the latest planned for June 2027 in Geneva). Whether the UN can wrest momentum away from those summits will depend, however, on the combined influence of a herd of elephants milling about in the margins of the Dialogue. These concern the structure and operational practices of the International Telecommunication Union (ITU), which the Dialogue is convened alongside, and the position of the United States. 

The relevance of the ITU hinges on it formally comprising the Dialogue’s joint secretariat. It also arises from the first of the Dialogues being held back-to-back with the ITU’s Artificial Intelligence for Good Global Summit. Similarly, the second Dialogue, in 2027, will be convened alongside the multi-stakeholder forum on science, technology and innovation for the Sustainable Development Goals (known as the STI Forum) which the ITU helps to plan.

The tenor and ambition of the Dialogue therefore bear the imprint of the ITU, the ‘most important UN agency you have never heard of’. 

With reference to the potential governance implications of the Dialogue, two characteristics of the ITU warrant highlighting, in particular. First, unlike other UN agencies, the organisation has long admitted private corporations into its membership and decision-making processes. Corporate influence in the ITU was boosted by reforms of the mid-1990s that expanded the rights of private sector members. The second noteworthy feature of the ITU is the highly technical, specialised nature of much of its standard-setting work. This means that conflicts and tensions in and around the agency are mediated by mostly informal, expert-driven deliberations and rulemaking processes. It also means that the ITU’s ‘geopoliticisation’ proceeds without states’ uneven influence over ITU work becoming legible or contestable by the many public constituencies with a stake in it. 

Even though the ITU was not on the list of international organisations from which the Trump administration vowed to withdraw the US in January 2026, long held US ambivalence towards the ITU nonetheless persists and extends to the Dialogue. In February 2026, White House technology adviser Michael Kratsios insisted that the US ‘totally reject[s] global governance of AI’. And although the US took part in the Dialogue, the remarks of White House Office of Science and Technology Policy Senior Adviser Katie Strickland championed national policymaking on the part of the Trump administration. This was in stark contrast to the remarks of UN Secretary-General António Guterres who cautioned that ‘[t]echnology that will shape the future of humanity must be shaped by all of humanity’, and not ‘by a handful of countries or companies’. More intriguingly, it is also at odds with the recent remarks of some major AI industry leaders including Microsoft Founder Bill Gates and Anthropic’s Darius Amodei.

Amid the dust that all these elephants kick up, it can be difficult to discern the extent to which the Dialogue will be crucial to these debates in future, or peripheral to them. Nonetheless, appetite for genuinely global dialogue, rather than a patchwork of regional initiatives, does appear to be rising.

Conclusion 

The first Global Dialogue is best understood as an institutional opening, not a regulatory settlement. The Dialogue itself is not a negotiating forum and cannot adopt binding obligations. Its immediate output is a Co-Chairs’ summary rather than an agreed legal instrument. Those understandings will feed into the high-level review of the Global Digital Compact. Another limitation of the Dialogue was the lack of meaningful participation by marginalised communities. A civil society assessment of the inaugural Dialogue found that engagement with human rights issues remained uneven and that women, Indigenous Peoples and other affected communities were inadequately represented. 

The question before international organisations, governments and civil societies is how to govern AI meaningfully, as Guterres remarked, a question that could not be more pressing. This Dialogue represents a modest yet important affirmation of the value of pursuing this question at a global scale, and the richness of the normative vocabulary available at that scale through which to pursue it.

This contribution considers the underlying legal tension, analyses a series of steps in the escalating US policy against the Court, and considers the response by its supporters.

An international constitutional clash

The US objection to the powers of the ICC resonates with a core principle of the classical international system that has persisted to this day. That principle holds that no state can be subjected to an international mechanism to authoritatively determine whether or not it is in compliance with the legal rules it has accepted, unless it specifically consents. Hence, the International Court of Justice and other international tribunals, including human rights bodies, can only become active in relation to states that have signed up to them.

The US and some other non-party states to the ICC Statute like Israel, Myanmar under its present dictatorship, and the Russian Federation under Putin, argue that no international regime administering individual criminal responsibility can be applied against their nationals, as they have not subscribed to it.

However, under Article 12 (2) of the ICC Statute, the Court has jurisdiction where the state of nationality of the offender, or the state of the location of the offence, is a party. Hence, US service-members active in foreign states that have signed up to the Statute would be exposed to action by the Court if they commit atrocious crimes.

Given the propensity of the US to use its forces abroad, this is seen by the US authorities as an unacceptable risk.

The US asserts that its forces are uniquely exposed to ICC jurisdiction, given the need to deploy its military power for international public purposes around the globe. But after the controversial military operations against Iraq in 2003, Venezuela early this year, and at present against Iran, this explanation seems less persuasive.

The ICC conundrum

The ICC has ruled in a case concerning non-member Myanmar that the 120 founding parties to the Rome Statute had the ability to create an institution like the ICC, even if this did not include literally all states of the world. In that case, the Court claims ‘objective personality’ for itself (para 48). That is to say, it is an institution that can exercise its powers in the common interest of all states, even if it is only established by a majority.

The United Nations, too, was only created by a majority of states, but has claimed authority where international peace and security is concerned in relation to all of them, the Court argued when addressing Myanmar, basing itself on the Reparation for Injuries Advisory Opinion (para 37, citing Reparation for Injuries at p. 185).

This argument is somewhat daring. The establishment of the Court in 1998 may not have been quite the foundational international constitutional moment akin to creating the post-World War II international order in the shape of the UN Charter in 1945.

Still, international courts have now accepted that any state has a sufficient legal interest and standing in relation to grave international crimes of concern to the international community as a whole to bring an international action against the state commissioning it, provided a jurisdictional link exists. No particular nexus is required. Indeed, in the ICJ action against Israel over Gaza, the respondent did not even seriously question the right of South Africa, as a third state that was not directly involved, to bring the case.

Where individual responsibility is concerned, all states have long had the right to try foreign individuals for grave war crimes, crimes against humanity, ethnic cleansing, or genocide anywhere on the globe under the doctrine of universality. Any state apprehending a Nazi war criminal, or a Rwandan genocidaire, has the legal authority to try him or her before its national courts, acting as an agent of the international constitutional order.

If individual states have this authority to try foreigners for committing atrocities abroad, they should also be able to pool that power and assign it to an international institution.

Moreover, any state can exercise its own territorial jurisdiction against foreigners committing crimes on its territory, including international crimes. A foreigner venturing onto foreign territory accepts that he or she is subject to the jurisdiction of that state. As Ukraine is demonstrating just now, there is no inherent immunity protecting service members from prosecution for grave war crimes in the country they may have invaded.

Accordingly, there is nothing that would preclude the assignment by a state of the authority to try foreign forces committing atrocity crimes on its territory to an international tribunal.

This is not a substantive interference with the rights of a non-party home state of an accused person. It is merely a procedural innovation, based in, and justified by, the combined claims to jurisdiction over that individual already held by the individual ICC state parties under the universality and territoriality doctrines.

Where the rights of the accused, rather than those of the home state, are concerned, the ICC Statute and rules of procedure carefully reflect all the protections of human rights and fair trial guarantees that would, or should, appertain in domestic proceedings.

The principle of nulla poena sine lege applies to the substantive definition of the crime, not the process of its prosecution. In any event, under Article 11 of the Statute, the Court only operates, prospectively, in relation to crimes commissioned since its establishment, or the date of participation of a new member of its Statute.

US action against the Court

The US battle against the Court has been waged in a series of steps. First, even during the negotiations of the Statute, strong US insistence on the complementarity principle means that any state can remove a case from the Court if it exercises jurisdiction instead.

The Clinton White House signed the Statute in 2002. However, the successor, President George W. Bush, then ‘unsigned’ the treaty and Congress adopted the now famous ‘Hague Invasion Act,’ more formally known as the American Service-Members Protection Act.

The Act commits the US to non-cooperation with the ICC and threatens other states cooperating with the Court with sanctions. Moreover, it suggests that the US will undertake ‘any means necessary and appropriate to free US or allied service members’ held captive at The Hague.

The US also negotiated some 100 bilateral agreements with state parties, committing them to non-cooperation with the Court where the US is concerned. This exploits Article 98, which was rather intended to prevent a clash between the Statute and what was assumed would be mainly pre-existing arrangements concluded by individual states.

With the coming into force of the ICC Statute in 2002, the US achieved Chapter VII Resolution 1422 of the Security Council, suspending potential ICC action in advance, at least against non-member nationals involved in UN-established or -authorized operations.

Under Article 16 of the Statute, a dispensation of this kind can only be granted for one year at a time. It was renewed in Resolution 1487 of 2003. However, after the scandal of the treatment of prisoners in occupied Iraq by US forces at Abu Ghraib, no further extension was approved by the Council.

Still, the US did not veto the Security Council resolutions referring the situations in Darfur (Resolution 1593 (2005), para 1) and Libya (Resolution 1970 (2011), para 4) to the Court, apparently accepting the role of the ICC in relation to non-member states, at least when backed by the Council exercising Chapter VII powers.

The US also welcomed the arrest warrants against Vladimir Putin and Maria Alekseyevna Lvova-Belova of Russia over Ukraine. Then US Secretary of State Antony Blinken urged all states to comply. Kiev had accepted the application of the Statute to its territory before the invasion, thus exposing the invading Russian forces to its reach, despite the fact that the Russian Federation is not a member.

Afghanistan and Gaza

The next step in the US strategy has been directed against individual members of the Court. In June 2020, the first Trump administration resumed the campaign against the ICC with travel restrictions and asset freezes directed at senior ICC staff, including the then Chief Prosecutor, Fatou Bensouda.

The Prosecution had launched a preliminary investigation of potential crimes committed during the armed campaign in Afghanistan, a member of the Statute since 2003. Under huge pressure from Washington, the Pre-Trial Chamber concluded controversially in 2019 that it would not serve the interests of justice to proceed.

But in 2022, the Appeals Chamber overturned that decision, although arrest warrants have thus far only been issued against the Supreme Leader of the Taliban, Haibatullah Akhundzada, and some of his senior officials, rather than US service-members.

Soon after coming into office for the second time, President Trump re-ignited the campaign against the ICC. This was also triggered by the arrest warrants issued against Israeli Prime Minister Benjamin Netanyahu and then defence minister Yoav Gallant (along with senior Hamas commanders) in the wake of the October 7 atrocity and the subsequent armed campaign of Israel in Gaza. This represented a particular provocation for both the US and Israel beyond the issue of non-participation in the Statute, as they deny that Palestine is a state that could accept the jurisdiction of the Court, which it did on 1 April 2015.

The White House considered this ‘malign conduct’ threatening its national security and that of its allies, triggering further asset freezes, travel restrictions, and other measures. Thus far, sanctions have been adopted against some 17 senior members of the court. This includes the former Chief Prosecutor, judges, the President of the Court, Ms Tomoko Akane of Japan, and even a senior defence counsel, all supposedly involved in the Afghanistan and Gaza decisions.

This represents an unprecedented interference in the performance of the international judicial function and a fundamental denial of the rule of law, as has now been confirmed again by the UN High Representative on Human Rights, Voker Tuerk, the International Bar Association, Amnesty International, etc.

The latest hammer blow

The latest decision of the White House now extends sanctions to the institution of the ICC as a whole, rather than select officers of the Court, seeking to make its functioning impossible.

The US has announced that all property and interest in the property of the ICC in the US or in possession or control of US persons are blocked. Any transactions by US persons, or those within the US, or even just transiting the US, involving any such property is prohibited along with contributions for the benefit of any blocked person. Support for actions of the ICC are proscribed. Pension plans and activities related to present ICC detainees would remain exempt.

For now, a general licence has been granted suspending the effects of parts of this legislation for 180 days to allow the ICC to maintain or ‘wind down’ its operations. Much in the manner of showing the intended victim of medieval torture the instruments of their upcoming unpleasantness, the aim seems to be to show to the by now 125 members of the Statute what will come their way in April, unless they cave in to US requirements.

Firm response

The US attempts to unmake the global order through unilateral threats, punitive tariffs and sanctions, and even the use of force, was met with a fairly timid international response in the past. In this instance, the US is seeking to undo what is probably the greatest achievement in global order of the past half-century—the establishment of a universal accountability mechanism covering the most outrageous violations of human dignity.

It seems that middle powers are now determined to defend this advance. Canada, Denmark, France, Germany, Italy, Japan, the Netherlands, and the UK have already jointly rejected the US move as soon as it was announced. They have committed themselves to further support for the ICC, which will likely need to include steps to undermine the practical effects of the US measures, should they be fully implemented.

It remains to be seen whether critical members of the Court, in particular African states, will also rally to its defence at this point. They may either cave in to renewed US pressure, which has sought to impel some of them to leave the Court over the summer; or the existing parties may feel sufficiently provoked into a stand of unity in defence of the Court, whatever the past differences over its record.

In the past, attempts to isolate individuals connected to the Court from the effect of US sanctions have involved assisting judges and Court staff with their financial arrangements when faced with sudden termination of their accounts by their banks, and the denial of access to any holding they may have in the US. After the expiry of the grace period of 180 days, this would then need to extend to the activities of the Court as a whole, which will be an even more difficult task.

States supporting the Court in violation of Washinton’s demands, and companies outside of the US supplying it, may in the end face a further step of US ‘third party’ sanctions. On the other hand, a group of members of the European Parliament has already requested the application of blocking legislation by the EU. This would punish individuals or companies that comply with the US sanctions, placing them in the invidious position of facing punishment either by the US or the EU.

The EU Commission has called for a diplomatic settlement. However, at the same time it has signalled a firm commitment to ensure the continued operation of the ICC under its Statute. Thus far, it seems unlikely that the state parties will simply give in to US intimidation and remove the application of jurisdiction against non-parties from the Statute—a development that would undoubtedly also be welcomed by President Putin and the military junta in Myanmar. However, an amendment would require a vote of a two-thirds majority, and ratification by seven eights of members to enter into force for all of them—a very high hurdle in this instance.

The prospect of an exemption agreed by the parties reassuring just the US and its close ally, Israel, stipulating that they will not be troubled by ICC action in relation to conflicts carried out by their forces on the territory of state parties also seems difficult. So does a further Article 16 Security Council resolution, given the current international climate. Hence, the clash of jurisdictional claims seems bound to continue.

Image: Cezary Piwowarczyk, CC BY-SA 4.0

Debates about judicial AI tend to fixate on whether algorithms, rather the judges, will end up writing judgments. This focus reflects a valid unease with the prospect of a ruling entirely authored by a machine with no human oversight. But it also narrows the conversation about AI in decision-making to the judgment document itself, while also implying that keeping humans, at least as arbitrators and proofreaders of AI suggestions, is enough to avoid it.

By doing so, we inadvertently let courts and regulators off the hook for everything that happens before the judgment is made public. These “accessory” decisions are different among themselves. Some are procedurally inclined. Formatting mandates, for example, can directly affect the syntax of the dispute. Others have a clearer impact on the outcome. Evidentiary rulings, for instance, can open or close doors for the litigants that may prove determinative. In contrast, algorithmic sorting mechanisms can steer a decision by shaping what the judge effectively sees. In fact, a growing share of what actually shapes a case – for example, which facts get read, which precedents get surfaced, which arguments reach the judge’s desk at all – happens in the backstage of decision-making.

That is why, we argue, the real contest over interpretive authority has quietly relocated. We make this argument through the lens of Brazil’s recent experience regulating judicial AI and slightly expand on it with comparative insights. Ultimately, we aim to start a long-lasting conversation.

Brazil’s judiciary has been under strain for some time, facing a growing caseload that continues to increase each year. In response, it has embraced AI systems in a functional, risk-tiered regulatory model. This means incentivizing AI tools for activities deemed merely instrumental to decision-making, mostly to aid triage of similar cases and precedent search at a national scale. This raises three difficulties. Precedent search is never neutral, since precedent must first be summarized and then compared. Risk-based regulation can fail to tell truly accessory functions apart from decisive ones. And inviting the parties most affected by these systems to comment is not the same as letting them decide. We take each of these difficulties in turn below, using Brazil’s regulatory experiment as the connecting thread.

Brazil’s vague definition of AI risks suggests that judicial AI systems warrant greater constitutional attention. The risks associated with AI in other fields – such as platform power concentration, algorithmic bias, and abuse of power – are equally pressing in the context of decision-making. At its core, the question remains: who holds the authority to assess competing arguments, and in whose eyes must decisions ultimately be justified?

A lot happens before judging

Sorting and precedent search are, formally, different tasks. However, functionally, they point to a common push to expedite “accessory” decision-making.

The pressure driving courts toward AI is often invoked as a key feature of Brazil’s judiciary. Overwhelmed by volume, it asks machines to sort, cluster, and triage all proceedings before a human even looks at the files. The country closed 2025 with 75.5 million pending cases and 40.9 million new filings that year alone. A volume that would strain any judiciary, however resourced. In response, the National Council of Justice (CNJ) rolled out a triage AI tool, Berna, to every court. The tool screened 30 million cases in 2025 and grouped 2.5 million of them into 353,000 clusters of similar claims.

Courts treat sorting as pre-legal housekeeping, confined to the backstage of decision-making. In other words, they must clear the docket before moving on to the ruling. But sorting already presupposes an answer to a legal question about which differences are worth preserving. Once that premise is granted, calling the task “housekeeping” or “accessory” is contrary to the cognitive process it entails.

Compression is not new. Common-law headnotes and syllabi have done this job for over a century, on the assumption that a human reader could tell a good digest from a misleading one. What is new is who the targeted reader is. Brazil’s version, the ementa, was standardized nationwide in late 2024, in part so that AI systems, not just human readers, could search it. Hence, AI adds, on top of the human summarization, an algorithmic form of machine ranking and processing. This is a highly difficult task and implies several biases. In Brazil, for example, the Council has already found that the actual ratio decidendi of the country’s highest court typically lies scattered across individual justices’ reasoning, not inside the summary available for AI searching. Thus, choosing which precedents to present as viable in a given scenario is itself a cognitive decision.

This is not only a problem in Brazil. Wherever precedent search runs through a headnote-like intermediary, the same gap opens between what a machine can search for and what a judgment actually decided. This is why a judge who has handed down “five pertinent precedents” has not been given a sample of the law. She has inherited someone else’s editorial judgment about what counted, filtered a second time by whatever the ranking model rewarded.

Silence can speak as well

Brazil’s answer to this problem seems more conceptually ambitious than most comparable rules. Resolution 615/2025 classifies AI systems not by their degree of automation but by the function they perform within adjudication. A tool that organizes information is considered low risk. One that produces a juridical conclusion, such as profiling a litigant, weighing evidence, or deciding that a precedent governs a set of facts, is deemed high-risk.

This is, independently, close to the logic of the EU AI Act, which flags as high-risk any system assisting judicial authorities in researching and interpreting facts and law. Both regimes point to the same conclusion: risk should track cognitive function, because the most pressing risk of AI in decision-making comes from performing the actual decision-making. Tellingly, both also share the same instability at exactly the point that matters most for precedent search. Brazil treats detecting “pertinent” precedents as low-risk and reserves high-risk status for the conclusion that a precedent applies. The EU similarly carves out “preparatory” tasks from its own high-risk tier.

However, deeming something pertinent is hardly a neutral conclusion. Establishing that a precedent is applicable requires reconstructing its holding, choosing a level of generality for the comparison, and judging which facts would have changed the result. These are precisely the elements of conviction that, in appellate practice, can sometimes divide judges sitting on the very same panel. Any regulatory scheme built on a low-risk/high-risk axis defined by function will eventually meet this same wall: the step it calls preparatory is the step where the case is actually decided, or at least where conviction is shaped, just before anyone with the authority to decide it gets a look.

It is important to raise the issue because it might otherwise go unnoticed amid the more evident risks associated with judicial AI systems. In a recent example, a Brazilian court annulled an appellate judgment because the AI-assisted document cited nonexistent precedents. We often hear about such cases of AI hallucination. However, courts have tools to address this kind of failure. The most relevant is that a judge or opposing counsel will eventually read the document and confront the error, prompting correction.

A much more dangerous error happens when the system fails to surface something it should have. If an AI system returns five precedents it deems most suitable for a case, out of three hundred candidates, scrutiny of those five is insufficient to shed light on the possible reasons for the exclusion of the other two hundred and ninety-five. No register of the discarded arguments will exist, making oversight almost impossible.

In the US, similar debates about actuarial risk tools in sentencing have emerged. In State v. Loomis, the Wisconsin Supreme Court was confronted with the use of a proprietary algorithmic tool to predict a defendant’s risk of recidivism during sentencing (the tool is called COMPAS). The court held that using COMPAS does not violate due process as long as it is treated as one of many sentencing factors, rather than the decisive metric. It also mandated disclosure of the tool’s use. Loomis, in other words, guaranteed the right to contest a score already produced but not the right to know what was never surfaced in the first place.

Still, the backstage of AI systems leaves many decisions unchecked. Human efforts to assess AI output, or even the idea of human-mediated explainability as the master remedy for algorithmic opacity, may be insufficient. A recent comparative study of the EU, Brazil, and China found that what counts as an adequate explanation depends heavily on the function a system performs. The right to an explanation may depend on the judicial AI’s specific decision-making function. Due process standards, therefore, need to go further, to address the silences AI produces and the choices it makes to disregard and exclude arguments.

Human or non-human?

Thus, as AI retrieval systems reallocate interpretive authority in ways formal risk categories cannot fully capture, the question of who governs those systems becomes correspondingly more important. Brazil’s arrangement is worth exploring. A National Committee on Judicial AI was established to oversee and regulate the Brazilian judiciary’s use of AI tools. It includes members of the judiciary, the bar association, the prosecution office, and public defenders. Nonetheless, only the first group has voting rights. The rest participate with a voice but no vote on how these tools are classified, audited, and deployed.

AI governance bodies across sectors and jurisdictions tend to invite all actors most affected by AI systems to comment while reserving decision power only to the institution that will operate them. Inviting comments from the actors most affected by an AI system is a meaningful safeguard, but it is not the same safeguard as giving them a vote. Because a system that ranks and selects precedents is already exercising the kind of interpretive power that adversarial argument was designed to check.

Scholars in the field of digital constitutionalism have long raised the issue of accountability and authority. The perils of letting data, platforms, and cross-border digital infrastructure shape our lives in almost every form have been extensively documented. Judicial AI tools, intended to facilitate decision-making, are another chapter in this romance. A retrieval AI system that quietly decides which precedents a judge will see affects authority and challenges accountability because it takes a slice of the judge’s interpretive authority. And it does so without a clear explanation of the arguments that may have existed between the input and the output in any given interaction.

Our final point is not one against using AI. Using AI systems as tools to boost productivity is part of judicial decision-making, as it is in any other field. Yet we pointed to a sharper question than the one currently shaping the debate at the opening: who holds the authority to assess competing arguments, and in whose eyes must decisions ultimately be justified? It may be the case that, soon enough, nearly all elements of decision-making will be automatable. This does not mean we should let it be so. Judgments, however automatable, should be kept human and transparent as a constitutional mandate. For us – and we believe this extends to most constitutional systems – it is as important for an ethical and transparent use of AI that every element of the cognitive reasoning, especially the weighing and selecting of competing arguments, be fully explained and available for the parties to challenge.

Suggested citation: Estefânia Maria de Queiroz Barboza and Gustavo Buss, The Politics of Retrieval: Accessing the Backstage of Judicial AI, Int’l J. Const. L. Blog, Oct. 15, 2026, at: http://www.iconnectblog.com/the-politics-of-retrieval-accessing-the-backstage-of-judicial-ai/

The post The Politics of Retrieval: Accessing the Backstage of Judicial AI appeared first on www.iconnectblog.com.

In February 2022, shortly after Russia’s full-scale invasion of Ukraine, the European Union placed Mikhail Fridman on its sanctions list. The designation subjected the Russian-Israeli businessman’s funds and economic resources to an asset freeze, affecting interests held through Luxembourg – including his 37.9% ownership of the investment group LetterOne. Luxembourg consequently became the focal point in Fridman’s efforts to challenge the sanctions and recover access to his investments. Those efforts would eventually place the country in the position of defending its first known investment treaty arbitration.

The arbitration commenced in 2024, with Fridman seeking approximately $16 billion in compensation. His claim invokes the 1989 Bilateral Investment Treaty between the Belgium–Luxembourg Economic Union and the Soviet Union (BLEU – Russia BIT). While the details are not publicly available, his claim is that Luxembourg’s freezing of Fridman’s assets interfered with his investments protected under the BIT, allegedly amounting to indirect expropriation. As such, the proceedings bring Luxembourg’s implementation of EU sanctions measures within the framework of its BIT obligations.

This arbitral claim is part of a series of legal proceedings Fridman initiated in response to these sanctions imposed on him. He had already contested his designation before the EU General Court. On 10 April 2024, in Fridman v Council (T-304/22), the Court annulled the acts listing and maintaining Fridman on the EU sanctions list for the period between 28 February 2022 and 15 March 2023. The Court found that, although the material relied upon by the Council could indicate a degree of proximity between Fridman and Vladimir Putin or his close circle, it did not sufficiently substantiate the relevant listing criteria (par. 67). The Court did not establish that Fridman had supported actions or policies undermining Ukraine’s territorial integrity or had provided material or financial support to, or benefitted from, the Russian decision-makers responsible for such actions (pars. 62-64). Later listings remained in place and were themselves challenged by Fridman separately (T-304/22, T-296/23, and T-605/24). Fridman also commenced arbitration against the Netherlands in March 2025, alleging that sanctions and measures taken in their implementation had resulted in the expropriation of his investments there.

On 22 September 2026, the Council removed Fridman from the sanctions list. Surprisingly, it was reported that Luxembourg had advocated that outcome. Prime Minister Luc Frieden subsequently confirmed that his government initially supported continuing the sanctions but reconsidered its position after France sought changes to the list. It is reported that France’s push to remove Alisher Usmanov from the sanctions list provided the occasion for Luxembourg to seek Fridman’s removal. Frieden explained that Luxembourg had acted in the “overriding national interest” to “avert harm to the country”. Multiple sources expressly link Luxembourg’s efforts to secure Fridman’s removal from the EU sanctions list to Fridman’s arbitral claim (see here, here, and here). 

Given the factual background above, one question that comes to mind is whether Luxembourg would have advocated Fridman’s delisting had it not faced the risk of a substantial arbitral award arising from his claim. It is indeed a strong possibility that this potential exposure influenced Luxembourg’s position in favour of removing him from the sanctions list, although France’s push for the removal of Usmanov and the wider negotiations also appear to have played a role. Even if arbitration may not have been the sole cause, the facts support a compelling argument that it played a material role.

Regulatory Chill in the Grand Duchy?

The possibility that the pending arbitral proceedings influenced Luxembourg’s position has already prompted some early commentary linking this development to the phenomenon of “regulatory chill” in investor-State dispute settlement (ISDS) (see here and here). In a familiar form of the phenomenon, a government abandons, delays or weakens a public interest measure because of concern that the measure may trigger an investment claim and expose the state to the costs and risks of arbitration. Environmental regulation and fossil fuel phase-outs, along with the arbitral claims arising from such measures, have attracted notable scholarly attention. States may feel a similar pressure after a measure has been adopted and the arbitral proceedings have commenced, where the prospect of an adverse award, along with the financial and administrative burdens of continuing the arbitral proceedings, may encourage the amendment or withdrawal of the challenged measure. This does not mean that reconsideration of a measure in response to a legal challenge is problematic per se. A government may have a good reason to revise a measure where credible allegations of unlawfulness exist. The issue here is that the costs and risks associated with arbitration may induce a state to roll back a measure that it views as lawful and legitimate on public interest grounds. Ultimately, the primary issue here is whether the risk of (prospective or ongoing) arbitration changes conduct that the state would otherwise have maintained.

A possible sub-category of this phenomenon, what I call administrative chill, may more accurately capture the particular decision affected in this case. The difference between administrative chill and the general phenomenon of regulatory chill is primarily the level at which the change occurs. Regulatory chill generally concerns the adoption, amendment or abandonment of rules of general application. Administrative chill concerns the way an existing legal framework is applied to a particular person or company (or the set of facts surrounding them).  In this case, the EU sanctions framework itself remained in place, but its application to Fridman changed through his removal from the sanctions list – in other words, an individual designation made within that framework. This is an important nuance, because investment claims may affect not only whether states adopt or retain general measures, but also how those measures are administered and enforced in individual cases. 

Luxembourg’s role as an EU Member State adds a further dimension to this form of administrative chill. Luxembourg could not unilaterally choose to disapply the EU sanctions regime or remove Fridman from the list. Instead, while remaining bound to implement the sanctions in force, it sought a change through the Council process. This illustrates how an ISDS claim against one state implementing the EU sanctions regime and the associated risk of liability can influence that state’s negotiating position and contribute to a change in the reach of the EU sanctions regime.

Concerns about the chilling effect of ISDS proceedings are usually expressed in cases where governments have limited financial and institutional capacity to defend claims or absorb adverse awards. The Fridman case suggests, however, that even a wealthy state may attach considerable political significance to the prospect of a substantial liability arising out of an arbitral award. Luxembourg is a prosperous, high-income country but prosperity per capita does not mean that its economy is large in absolute terms. A $16 billion claim is therefore substantial relative to the overall size of the Luxembourg economy, despite the country’s considerable wealth – it corresponds roughly to 16 per cent of the country’s annual GDP (2025). The amount claimed is, of course, neither an award nor an estimate of liability, but even an award representing a fraction of that amount may well trigger a significant domestic political debate in the country, which may further undermine the current government’s diminishing popularity. 

Ultimately, it is not only about whether a state has the resources to defend an investment claim. Governments must also assess whether they are willing to accept the potential economic and political consequences of an adverse award. Capacity to defend a claim and willingness to tolerate its potential (political and economic) consequences of liability are distinct considerations, including for developed states.

The Broader Effects of the Delisting

Delisting itself naturally does not automatically bring the arbitration to an end. Losses allegedly sustained while assets were frozen may remain compensable if Fridman decides to continue pursuing his claim and if the tribunal establishes jurisdiction and finds that Luxembourg breached the BLEU-Russia BIT. Restoring access to investments may affect the assessment of damages without remedying every alleged loss, especially since the US and UK sanctions remain in place. Therefore, Luxembourg remains potentially exposed to liability for losses allegedly incurred during the period in which the sanctions applied. This continuing exposure creates room for bargaining: withdrawal or settlement of a claim could, in principle, be offered in exchange for efforts to secure sanctions relief. Whether such an arrangement exists here is not publicly known. The possibility nevertheless helps explain why an arbitral claim might influence a Member State’s position on whether an individual’s sanctions designation should be maintained.

The wider danger is that this sequence opens a Pandora’s box. The possibility that sanctions against Russian investors might trigger investment arbitration claims has long been recognised. In this case, however, the relevant incentive may arise not only from challenging the sanctions with a view to obtaining compensation, but also from the possibility that the claim itself may create additional pressure in favour of a sanctions relief. Other sanctioned investors can observe a designation, a substantial investment claim, a change in the respondent state’s position, and eventual delisting. They may consequently interpret that sequence as a strategy worth reproducing, and this is a possibility that warrants serious attention from EU Member States. The attractiveness of such a strategy would depend on the extent to which the claim can impose notable financial or political pressure on the respondent state, as well as on the investor’s prospects of ultimately obtaining an enforceable award. That perception among other sanctioned investors does not require conclusive proof of Luxembourg’s actual motivations. If Fridman’s experience is perceived as demonstrating that an investment claim can contribute to sanctions relief, it may encourage similar investors to bring further claims – while governments anticipating such proceedings may become more cautious about supporting or renewing individual designations. This pressure could spread well beyond Luxembourg and, where applicable investment agreements permit, beyond the EU.

The Myth of Depoliticisation

This matter also relates to the argument that investment arbitration “depoliticises” disputes by channeling foreign investors’ grievances away from inter-state diplomatic confrontation and into adjudication. I recently argued elsewhere that geopolitical crises generate clustered investment disputes sharing factual, legal and political foundations, and their submission to arbitration does not detach them from the conflicts and the wider political context that produced them. Fridman’s sanctions claims, particularly those against Luxembourg and the Netherlands, and the subsequent developments surrounding his delisting fit this framework closely. Formally separate proceedings against different states arise from measures adopted by the EU in response to the same war. The significance of these ISDS claims becomes clearer when they are considered collectively and alongside the political decisions taken by EU institutions and Member States concerning the sanctions regime, as well as the parallel judicial challenges brought against individual listings. The overarching risk is that ISDS arbitration may itself become a means of influencing bargaining among EU Member States over the maintenance and application of sanctions.

The clustered nature of these disputes may also amplify the effects of individual arbitral claims. A change in the application of a common sanctions measure to one investor can alter the position of several states and the expectations of other potential claimants. Within the EU, an individual state’s incentive to reduce its exposure to arbitral claims and liability can influence negotiations over a policy maintained collectively and produce compounded effects if more Member States face similar ISDS claims. The disputes thus feed back into the geopolitical context from which they emerged: sanctions generate investment claims, and those claims may in turn reshape the political conditions under which sanctions are maintained. A settlement or a policy change that resolves one investor’s dispute can consequently affect the incentives of other sanctioned investors and of the Member states facing, or anticipating, similar claims across the wider cluster.

Luxembourg’s precise motivations notwithstanding, states should take this possibility into account when assessing the apparent benefits of delisting. Securing the withdrawal or settlement of one claim may reduce an immediate financial risk while encouraging other sanctioned investors to pursue a similar strategy. If this practice gains traction, ISDS could facilitate a dynamic similar to ransom, with the threat of substantial liability being maintained until the respondent state helps secure sanctions relief. The broader risk is that a Member State’s effort to avoid an arbitral claim and the domestic political costs associated with an adverse award in one case may make the continued application of EU sanctions more vulnerable to bargaining in subsequent cases.