A Critical Alliance: The UN Charter and the Nuremberg Principles

Peace and Security in a Fragmented World

Held from 7 to 9 October 2026 at the historic Courtroom 600, the venue of the Nuremberg trials, the Nuremberg Forum 2026 will assess the historic evolution and current contentions affecting frameworks regulating the use of force in international law. It will examine how the international criminal justice system can adapt to effectively uphold these norms in an era defined by fragmentation, multipolarity, democratic backsliding as well as hybrid and asymmetrical warfare.

The panellists will consider the roles and perspectives of a plurality of stakeholders including survivor communities, civil society, the UN, as well as international, regional and domestic courts in furthering justice, prevention, and reparations to facilitate a sustainable and just peace. Find further information on the panel compositions and themes here.

The Nuremberg Forum 2026 is open to all public free of charge and will be conducted in a hybrid format. To attend the conference, whether in person or online, please register here.

The Inter-American Court of Human Rights (ICtHR) is currently considering the impeachment of Argentine Supreme Court Justice Eduardo Moliné O’Connor in 2003. The case is unlikely to surprise observers of the Court’s jurisprudence. Over the last decades, the ICtHR has developed a robust doctrine on judicial independence and impeachment that strongly favors Moliné O’Connor’s position. Yet the case also exposes deeper tensions within the Court’s understanding of judicial independence, particularly regarding apex courts facing broader crises of institutional legitimacy.

Eduardo Moliné O’Connor was appointed as a justice in 1990. After Carlos Menem was elected president, he packed the Court, increasing the number of justices from five to nine, allowing him to appoint a significant portion of the Court. Moreover, as Justices Bacque and Caballero resigned in protest against the court-packing plan, Menem was able to appoint two additional justices beyond the vacancies created by the expansion of the Court. Over time, these appointees were known as the ‘automatic majority’, as they were widely understood to rule automatically in favor of the Menem administration’s positions. During the 1990s, the economic situation deteriorated and corruption scandals became frequent, leading to the 2001 crisis, marked by the slogan “they all must go”

In 2003, Kirchner was elected president and called for the impeachment of the justices of the so-called ‘automatic majority’. Three justices resigned and two, including Moliné O’Connor, were impeached under the argument that they had abdicated their judicial function by failing to review an arbitral decision. The impeachment thus took place in the context of a broader crisis concerning the Court’s credibility and legitimacy, providing a useful opportunity to reflect on the relationship between judicial independence and legitimacy.

The future of the case against Argentina

The ICtHR is not dealing with impeachments for the first time. On the contrary, it has consistently maintained a doctrine on impeachments. Since the first case in which it had to deal with the impeachment of justices in Peru, the ICtHR has held that judicial guarantees (art. 8 of the Convention) are applicable to impeachment proceedings because of their adjudicative character and effects on human rights.

Building on this premise, the ICtHR argues that impeachment proceedings should be independent and impartial and guarantee the person under trial the right to defense, just as in a regular judicial procedure. Moreover, in Caso del Tribunal Constitucional the Court also highlighted that independence should be specially guaranteed regarding justices of apex courts due to the nature of the problems under its jurisdiction (par. 75). In Camba Campos, the Court held that justices can only be impeached for “serious misconduct or incompetence”, and this was sustained in Ávalos Rios. In the same case, the Court said that courts are “guarantors of human rights” (par. 191) and, therefore, impeachment should be “objective and impartial” (par. 88) as a prerequisite for the rule of law. These principles were also sustained in other rulings of the ICtHR such as Reverón Trujillo and Quintana Coello, which results in a well-established line of case law on judicial impeachments. In sum, the ICtHR has repeatedly found that most of the guarantees required in an ordinary judicial process should also be present in impeachments.

In this context, Argentina will probably be found responsible. First, the Congress’ reason for impeaching Moliné O’Connor was that it found unacceptable his decision in Meller, a case ruled by the Supreme Court in 2002. Judicial decisions, however, are explicitly excluded as valid reasons for impeachment in the ICtHR’s case law. Second, the then first lady, Cristina Fernández de Kirchner, was the President of the Senate’s Impeachment Commission at this time, which has been read as a violation of the Senate’s necessary impartiality as the judging institution.

Is there any room for politics in impeachment?

In Spanish, impeachment translates as “political trials” (juicios políticos), highlighting the simultaneous judicial and political nature of impeachment. Interestingly, Justice Hernández López of the ICtHR noted during the hearing in the Inter-American system that, if criminal guarantees were transposed to impeachment proceedings, little room would remain for politics.  In what follows, I will argue that the ICtHR’s case law on the impeachment of judges relies on an implausible reading of the law/politics distinction in constitutional law.

The Inter-American case law on judicial impeachments leaves little or no space for politics in constitutional law. When applying the rules of ordinary trials to impeachments, the Court blocks the introduction of political considerations into impeachment proceedings. The Court requires political actors to behave impartially and independently, but representatives can hardly be independent of their parties and voters, as they are subjected to party discipline and electoral accountability. Thus, representatives can hardly be independent from politics during an impeachment process, whether we have a party-centered or a citizens-centered understanding of politics.

Moreover, the impossibility of initiating impeachment proceedings on the basis of apex courts’ constitutional interpretations seems to presuppose that those interpretations are indisputable rather than objects of social and political disagreement. This leads to a juriscentric conception of constitutional interpretation that traces a sharp distinction between law and politics. However, constitutional law concerns foundational disagreements about rights, equality, property, and the organization of the political community itself. Apex courts, therefore, do not merely apply constitutional law and guarantee rights, but exercise constitutional authority over deeply contested political questions. Of course, if we believe justices are “guarantors of human rights” as the Court does, it would not make sense to evaluate their constitutional performance. However, whether they are actually guarantors of constitutional rights is exactly what is disputed in impeachments, so it cannot serve as a premise for their evaluation.

When we move to the underlying understanding of law in the ICtHR, a deeper argument emerges. As noted above, the Court understands constitutional adjudication as an objective task that, when performed by courts, guarantees human rights. Constitutional law, however, concerns our basic understandings as political communities, which are unavoidably contested and therefore political. The apex court judges decide highly controversial issues, including abortion, property, equality, and the extent of social rights, such as housing and education. These issues are deeply disputed in the political arena and therefore lie at the core of the disagreements that characterize politics. Courts sometimes recognize rights not previously acknowledged in constitutional doctrine, as the U.S. Supreme Court did with the right to privacy in Casey. Yet the Court argues that constitutional courts should be even more protected from politics, which it views as less political than ordinary law. Under the Inter-American Court’s reading, issues such as those mentioned above should be subjected to less political control even when they concern our most fundamental constitutional disagreements.

The understanding of justices as non-political actors also contradicts current constitutional practices. In many jurisdictions, justices are selected through openly political procedures with some technical constraints, such as presidential appointment and Senate confirmation. Actually, Moline O’Connor himself benefited not only from political appointment and confirmation, but from the political decision of packing the court, which opened new vacancies. This contrasts with the selection of lower judges, who are sometimes selected through more technical procedures. Many constitutional systems (Argentina and Brazil, for example) seem to recognize that there is something inherently political about constitutional adjudication and therefore accept political considerations when deciding who will exercise ultimate constitutional authority. In this context, the ICtHR approach to judicial impeachment has not only theoretical problems, but also appears to be at odds with Latin American constitutional practices.

Moreover, courts do not control “either the sword or the purse,” as Hamilton said. Therefore, their influence depends on other actors accepting and following their opinions. In contexts where citizens and representatives deeply discredit the decisions of high courts, courts become less capable of persuading relevant actors and, consequently, of performing their constitutional function. This is what happened in Argentina, where society demanded profound political and institutional change, but one institution that had become a symbol of the old system was therefore profoundly discredited. In contexts like this, the sociological legitimacy of high courts is undermined, leaving them unable to persuade their audiences of the validity of their constitutional interpretations. Impeachment, then, appears as a possible response to situations in which courts lack sufficient public support to effectively perform their constitutional role.

Saying that politics are acceptable in impeachment does not mean, however, that independence is not a relevant value. It is. Justices should not be subjected to the will of ordinary politics, and they have a valuable voice in constitutional interpretation that should be protected. This voice, moreover, could not exist if they were subjected to constant political pressure.

However, claiming that justices require some degree of independence is not the same as saying they should be completely insulated from politics, which would also be implausible given the partially political nature of their task. We therefore need to think about impeachment in a way that both guarantees some level of judicial independence while preventing constitutional adjudication from becoming fully subordinated to ordinary partisan politics. When we think about this need, procedures appear as a plausible institutional tool.

During the hearings in the Moliné O’Connor case, it was argued that the alternative to a strict reading of the grounds for impeachment was pure presidential will, as many other attempts to remove justices demonstrate. However, under an approach that both values judicial independence and recognizes the political nature of constitutional interpretation, it is possible to think that what guarantees independence is the need for special majorities in chambers that respond to different kinds of representation and the possibility for justices to state their case publicly. The difficulty of reaching these supermajorities in both chambers makes impeachment possible only when there is broad cross-partisan agreement showing a general rejection of the justices. Procedures, therefore, operate as safeguards against the arbitrary will of one party, requiring broader agreement on the need to remove a justice. The Moliné O’Connor case then reveals the tensions that emerge when doctrines designed to insulate courts from politics confront broad, cross-partisan demands for judicial accountability.

Suggested citation: Emiliano Vitaliani, Is There Any Room for Politics in Judicial Impeachment? The Moliné O’Connor Case in the Inter-American System of Human Rights, Int’l J. Const. L. Blog, June 12, 2026, at: http://www.iconnectblog.com/is-there-any-room-for-politics-in-judicial-impeachment-the-moline-oconnor-case-in-the-inter-american-system-of-human-rights/

The post Is There Any Room for Politics in Judicial Impeachment? The Moliné O’Connor Case in the Inter-American System of Human Rights appeared first on www.iconnectblog.com.

The cases formally concern exploration contracts, compliance inquiries, and provisional measures. Their broader significance, however, lies in timing. The Exploitation Regulations which would govern deep seabed exploitation remain under development, and the path toward financial terms and benefit-sharing arrangements remain uncertain. In this setting, an exploration contract is more than a permit to explore; it is a legal position that may preserve access to future exploitation opportunities. Whether a contractor can maintain that position, avoid being marked as a compliance risk, and obtain predictable treatment within ISA procedures may shape its ability to move into the exploitation phase.

This concern is visible in the factual background to the dispute. The Metals Company’s US subsidiary, TMC USA, has applied for a commercial exploitation pathway under the US Deep Seabed Hard Mineral Resources Act, while Greenpeace has alleged that TMC USA, NORI, and TOML are legally distinct but operate under the coordinated strategy of the same parent company where corporate links and data generated under NORI and TOML’s ISA exploration contracts supported that route. This background helps explain why the dispute is not only about existing exploration obligations. It also concerns whether contractors can preserve their position within the ISA system while other possible routes to exploitation are being pursued. NORI’s application likewise makes this connection explicit: its extension request relied on the continued absence of exploitation regulations and the legal and financial uncertainty that follows (NORI Application, paras 43-44). The dispute is therefore about the procedural conditions under which an exploration contractor remains positioned to claim, defend, or redirect future access to commercial exploitation.

Similar cases, different pathways

The cases of NORI and TOML should be read together. Both challenge ISA’s compliance inquiry, argue that they were identified as requiring “specific attention” without prior notice, disclosure of reasons, or an opportunity to be heard, and seek provisional measures from the SDC (NORI Application and TOML Application, paras 9-13). However, the two cases connect the present exploration-contract disputes to future exploitation  in different ways.

NORI’s case turns on extension of its exploration contract, which is due to expire on 22 July 2026 (NORI App., para 5). On 19 January 2026, NORI applied to extend the contract until 21 July 2031 (NORI App., para 6), but that application remains under review by the Legal and Technical Commission (LTC). NORI emphasizes that the LTC is responsible both for assessing its extension application and for pursuing the inquiry into alleged possible non-compliance (NORI App., paras 9-11, 15). That overlap matters: views formed during the inquiry could influence the extension process, creating a risk of procedural contamination.

TOML’s case foregrounds a different concern: compliance record and regulatory standing. TOML’s contract is due to expire on 11 January 2027 (TOML App., para 5), but its application focuses less on an immediate extension decision and more on the harm that the inquiry itself may cause. For TOML, being identified as a contractor requiring “specific attention” may affect its place within the ISA system (TOML App., paras 19-20) even before any formal exploitation application or contract-extension decision arises.

The distinction shows two ways in which exploitation-related disputes can emerge before exploitation itself. One pathway runs through contract extension: whether an exploration contractor can preserve the legal position that may allow it to move toward commercial exploitation (NORI App., paras 41, 44). The other runs through compliance status (TOML App., para 23): whether an exploration contractor may be marked as a regulatory risk before the exploitation stage begins. Together, the cases show how administrative judgments made in the pre-exploitation phase may shape opportunities in the exploitation phase.

Why the Seabed Disputes Chamber matters

The forum is central to the argument. Cases No. 34 and 35 were not brought before the full Tribunal as ordinary contentious cases, but before the Seabed Disputes Chamber, the specialized judicial body within the UNCLOS Part XI system for disputes concerning activities in the Area. The applicants rely on Article 187(c) of UNCLOS to establish the Chamber’s jurisdiction over disputes between parties to a contract concerning activities in the Area and directly affecting legitimate interests, and on Article 290(1) to request provisional measures.

This setting gives the cases their institutional force. If the SDC addresses ISA’s authority to identify contractors and inquire into possible non-compliance, the LTC’s identification process, the Secretary-General’s circular, or contractors’ procedural rights, it will do more than review ISA from the outside: it will clarify how ISA’s internal regulatory processes operate within the UNCLOS Part XI system.

That is why the dispute reaches beyond the immediate inquiry. ISA is both a party to exploration contracts and the regulator of activities in the Area. The inquiry challenged by the applicants began with a decision of the ISA Council (NORI App., para 10; TOML App., para 9), was followed by the Secretary-General’s Circular/2026/001 (NORI App., paras 32-33; TOML App., paras 25-26), and was then carried forward through the LTC’s identification of contractors requiring “specific attention”. The cases therefore raise questions about ISA’s internal allocation of authority: who may trigger an inquiry, who may identify risk, what reasons must be disclosed, and what procedural safeguards contractors must receive.

Provisional measures and procedural compression

The requests for provisional measures sharpen the timing problem. Both applicants ask the Chamber to suspend the LTC inquiry, prevent ISA from taking “further steps in connection with” it, and ensure that “no recommendations, findings, reports”, or other results of the “inquiry are adopted, published, communicated, or relied upon pending the final decision” (NORI Request, para 42(a)-(c); TOML Request, para 42(a)-(c)). NORI’s request adds a contract-extension dimension: it also asks the Chamber to prevent ISA from taking any inquiry-influenced step that would prejudge or adversely affect its pending extension application (NORI Request, para 42(d)). The applicants were required to submit substantive responses to the inquiries by 31 May 2026, before the next LTC and Council meetings in late June and July. NORI’s contract is also due to expire on 22 July 2026. These dates matter because ISA’s internal processes may produce practical consequences before the SDC can decide the merits.

Provisional measures therefore operate as a mechanism of procedural compression. They bring forward questions of institutional authority, procedural fairness, and regulatory consequence that might otherwise unfold gradually within ISA. Even without deciding the merits, the Chamber may have to address the plausibility of rights, urgency, irreparable prejudice, non-aggravation of the dispute, and the preservation of the effectiveness of its eventual decisions.

That compression gives the cases their strategic force. It may push the SDC to articulate institutional boundaries earlier than expected, and it may also place pressure on ISA to clarify the rules and procedures that govern compliance review. At the same time, if the cases reinforce concerns about ISA’s efficiency, predictability, or internal governance, they may give more political space to alternative legal pathways and unilateral regulatory narratives, as recent developments in the US concerning deep seabed minerals already suggest.

Possible judicial trajectories

The SDC’s response could take several forms.

An applicant-friendly outcome would strengthen the procedural constraints on ISA’s regulatory conduct. ISA would retain regulatory authority, but when it identifies, investigates, or otherwise affects contractors, it may need to provide clearer notice, reasons, and evidentiary basis. That would make procedural regularity a condition of regulatory credibility and could influence how future exploitation-stage review is conducted.

An ISA-friendly outcome would also be consequential. If the Chamber confirms ISA’s authority to identify and inquire into possible non-compliance, it may still have to explain the legal basis, limits, and procedural conditions of that authority. Such reasoning would help future applicants understand how the SDC views ISA’s powers in deep-sea mining, what procedures are sufficient to satisfy due process, and when contractor-rights claims may succeed. Even an outcome favorable to ISA could become a map for future exploitation-stage disputes.

The Chamber may also take a narrower path. It may avoid the merits while still making observations on urgency, plausibility of rights, procedural fairness, non-aggravation, or the preservation of the effectiveness of its eventual decisions. Such reasoning would not settle the exploitation regime, but it may become early jurisprudential material for its governance.

The point is that the cases matter regardless of whether the applicants prevail. Their broader significance lies in how the Chamber describes the relationship between ISA’s regulatory authority, contractors’ procedural rights, and the legal order of the pre-exploitation phase.

Conclusion

Cases No. 34 and No. 35 may raise doubts about ISA’s efficiency and internal governance. But the applicants’ turn to the SDC also shows that the ISA system continues to have institutional value. Commercial exploitation depends on secure rights, lawful permits, financing predictability, and downstream market acceptance. An exploitation license granted through ISA can provide a form of international legitimacy that alternative routes will struggle to replicate.

The cases are therefore best understood as a stress test for the ISA system. They press ISA to clarify the foundations of its authority, the boundaries of its procedures, and the logic of its regulatory oversight. They also ask the SDC to respond earlier than expected to disputes that may shape the pre-exploitation legal order.

The exploitation has not yet formally opened, but its legal architecture is already being contested. How the Chamber handles Cases No. 34 and No. 35 will influence how ISA, contractors, and future applicants understand power, procedure, and time in the law of deep-sea mining.

Editorial note: see also this post by Hannah Lily, Alberto Pecoraro and Pradeep Singh for a discussion of these applications as an attempt to circumvent due process. 

This is the second post of a Symposium on Militant Constitutionalism, comprised of 10 pieces. You can access the introductory post here.

“When things go wrong, it’s never that we’ve been traveling in the wrong direction, or have gone too far in what may once have been the right direction. It’s always that we’ve not gone far enough.”

This observation by neuroscientist and philosopher Iain McGilchrist aptly captures the conventional constitutionalist response to the current rule of law crisis. In recent decades, a growing number of liberal constitutional democracies have been challenged by and succumbed to antiliberal populists with counterconstitutional ambitions. As a result, questions are raised about the effectiveness of the prevailing post-war paradigm of constitutional consolidation, in which legal instruments and institutional bulwarks are regarded as the most effective safeguards against constitutional-democratic decay.

These developments called for a moment of introspection within constitutional scholarship: a willingness to critically reassess post-war constitutionalist dogmas as a first step toward reinvigorating the constitutional imagination. While some scholars have been willing to consign the ‘end of history’ desideratum to the Wunderkammer of Western intellectual history, others work arduously to resuscitate and bolster the post-war and post-historical constitutionalist ethos. One of the central concepts capturing this latter impulse is militant constitutionalism.

On the basis of a brief genealogy of militant constitutionalism, this post argues that, despite the conceptual novelty, militant constitutionalism largely rearticulates and reinforces the logic, mechanisms, and sentiments of the post-war paradigm of constitutional consolidation. Militant constitutionalism, therefore, is not a departure from liberal-legalist orthodoxy, but rather its culmination. In line with McGilchrist’s apothegm, advocates of militant constitutionalism maintain that when things go wrong, we’ve simply not gone far enough.

Liberal legalism and three theories of constitutional consolidation

In the post-war period, constitutional scholarship sought to solve a seemingly insoluble problem: the consolidation of constitutional democracy. Constitutional consolidation (Lat: consolidare, to make solid) refers to the process of rendering constitutions stronger, solid, more certain and stable. In response to the traumatic failure of Weimar and the apparent dangers of democratic excess, post-war consolidation was conceived as an essentially legalistic enterprise: law was to bolster constitutional democracies in order to make them impervious to political actors and movements intent on their destruction.

This legalistic conception of consolidation became fully entrenched after the Cold War as a result of liberalism’s hegemony and the ‘third wave of democratization’, and it aligns closely with the emergence of what Paul Blokker labels ‘liberal legalism’: ‘a distinctive liberal understanding of the law, or better still, a specific combination of liberalism and legalism’. This notion is rooted in what Judith Shklar called ‘ideological legalism’ and John Gray later described as ‘legalist liberalism’. Liberal legalism essentially entails three interrelated processes: first, it advances a reconfiguration of the relationship and balance between law and politics, not only by keeping law ‘apart from politics as much as possible’ and ‘representing law as a free standing institution’, but more fundamentally by regarding politics ‘as inferior to law’. Second, it grounds law in abstract universalist principles and fosters the progressive expansion of the legal sphere through an ongoing process of constitutionalization. Third, and as a consequence of the previous, liberal legalism produces increasing degrees of depoliticization by absorbing political questions and conflicts into the legal domain. These intertwined processes, which form the foundational pillars of post-war liberal-legalist orthodoxy, have conditioned the logic of constitutional consolidation that prevailed since. This logic, which essentially revolves around the neutralization of the political by the legal, has found its expression in three theories: militant democracy, liberal (or legal) constitutionalism, and, most recently, militant constitutionalism.

Militant democracy was conceived by Karl Loewenstein in 1937 in response to the democratic paradox: the possibility of subverting democracy by democratic means. It builds on the presumption that democracy is inherently dangerous (for democracy) and aims to prevent democratic suicide by addressing an apparent democratic naïveté – as Joseph Goebbels tauntingly proclaimed: “Aus der demokratischen Dummheit ließ sich vortrefflich Kapital schlagen”. Militant democratic regimes comprise pre-emptive legal instruments (most notably party bans) to confront (anti)democratic adversaries before they acquire power, and they do so ‘even at the risk and cost of violating fundamental principles’. For when democracy is ‘at war at the inner front’, Loewenstein maintained, ‘legality takes a vacation’. To save democracy from itself, that is, (anti)democratic adversaries are confronted with the force of law and their political challenges are drawn into the legal sphere. Besides pre-emptive legal intervention, however, Loewenstein also tentatively advanced a more comprehensive idea of consolidation: liberal democratic institutions needed ‘to be stiffened and hardened when confronted by movements intent upon their destruction’. In the end, Loewenstein came to redefine democracy in congruence with the dogmas of liberal legalism: ‘the application of disciplined authority [law], by liberal-minded men, for the ultimate ends of liberal government: human dignity and freedom’.

Alongside militant democracy, the ‘democratic debacle’ of Weimar and the ‘third wave’ expansion of liberal democracy to post-authoritarian states also engendered a more comprehensive paradigm shift in constitutional theory and practice. In the mid- to late-twentieth century, the political conception of constitutionalism became eclipsed by a legal conception. Legal constitutionalism – also known as ‘liberal’ or ‘new’ constitutionalism – operates at a more structural level than militant democracy, but comprises, again, a law-centric notion of consolidation. In institutional terms, legal constitutionalism consists of three central features: a written constitution with higher law status, entrenched by means of substantial amendment thresholds and/or eternity clauses; rights catalogues both integrated into a written and superior constitution and formalized in international treaties; a judicial body with final decision-making power designated as guardian and interpreter of constitutional norms and rights. By shifting emphasis from the political to the legal, by advancing the notion of superior and apolitical law, by expanding the realm of law through constitutional – often universalistic rights-based – adjudication, and by prioritizing legal over political institutions as the legitimate agencies of constitutional authority, the legal conception of constitutionalism became a central manifestation of post-war consolidation. Legal constitutionalism, in short, sees to legally solidify and stabilize the constitutional order by making it, to greater or lesser extent, impermeable to politics.

Militant constitutionalism: old wine, new bottle?

Militant constitutionalism is the latest proto-theoretical expression of post-war constitutional thought. It is a reflexive concept which rearticulates and reconfirms the dogmas of liberal-legalist orthodoxy in the face of a new threat: the rise to power of antiliberal populist movements and parties with counterconstitutional ambitions. Militant constitutionalism comes in different forms – maximalist v. minimalist; defensive v. offensive – but in general terms it presents both a revision and an amalgam of preceding post-war theories. It is a revision of militant democracy in the sense that it no longer relies on pre-emptive or ex ante legal intervention in the political sphere to prevent actors or parties from gaining power and instead focuses on ‘mechanisms of constitutional self-defense institutions’ once antidemocratic or illiberal actors seize (a considerable amount of) power.

In a way, the rise of militant constitutionalism entails the decline of militant democracy, as it concedes that pre-emptive legal limitations on political actors and organizations partaking in democratic competition no longer suffice. Paradoxically, the rise of this new concept seems to imply that antidemocratic and antiliberal forces are to some extent no longer subversive enough – in a way, they have become too democratic. As they adapt to democratic institutions, abide by the rules of the game, and in so doing achieve considerable political success, antiliberal populists render ineffective the militant democracy formula devised to challenge explicitly antidemocratic ideologies such as fascism. Facing a more implicit and more democratic enemy, militant constitutionalism maintains that constitutional democracies need to bolster their ‘legal guardrails’ to contain the ambitions of those who succeeded in obtaining power by democratic means.

The prominence of this new notion of constitutional consolidation shows that there is a shift of focus, as Jorieke Manenschijn notes, ‘from democratic backsliding […] to rule of law backsliding’. This shift, however, does not only stem from the fact that militant democracy ‘struggles to provide an adequate answer to rule of law backsliding’. Rather, the shift of focus from democracy to the rule of law and constitutionalism is an inevitable outcome of two interrelated processes intrinsic to post-war liberal legalist orthodoxy: the reconfiguration and hierarchization of the relationship between law and politics (constitutionalism and democracy), and the progressive expansion of the legal sphere through an ongoing process of constitutionalization. In other words, the shift from democratic to constitutional militancy pertains to a qualitative and quantitative dimension: in the post-war period, both the importance and the volume of (constitutional) law has drastically increased. Militant constitutionalism is the conceptual manifestation of the (pre)dominance of law in both theory and practice, and the concept attests to the fact that law has become the sovereign legitimating language. The fact that democracy has been conceptually discarded demonstrates its more general devaluation.

However, in the shift of focus from democratic competitors to power-holders and from pre-emptive legal intervention to legal guardrails, militant constitutionalism also merges some of the central elements of previous post-war theories. It adopts the emotive and combative component of militant democracy (militancy) but substantively advances mechanisms that are at the heart of legal constitutionalism. Militant constitutionalism advocates forms of super-entrenchment through eternity clauses and intricate tiered amendment formulae, it deems necessary strong constitutional courts empowered to effectively constrain majoritarianist politics or even supermajoritarianist politics in relation to ‘unconstitutional constitutional amendments’, and it stresses the importance of human rights catalogues, formalized either constitutionally or in treaties, as legal frameworks that allow national, supranational and international courts to preserve, as András Sajó maintains, ‘the stability of the constitutionalist liberal order’.

At the same time, militant constitutionalism also presents a widening of legal constitutionalism’s scope, as it explores a more diverse set of constitutional and institutional design options that might contribute to the preservation of the constitutional order, which fundamentally revolve around limiting the competences and prerogatives of political power-holders – through term limits, electoral rules, decree powers, autonomous agencies, veto points, multi-layered constitutions, etc. In relation to evolutionary constitutions, moreover, militant constitutionalism advances a process of legal formalization and codification – often in constitutional and hence entrenched form – of informal rules and conventions. This, again, is an expression of the belief that formal, written and superior constitutional law is the most suitable instrument to protect and bolster constitutional democracies against the excesses of democratic politics.

In addition to reaffirming the logic and mechanisms of post-war consolidation, militant constitutionalism also echoes familiar sentiments – an explicit distrust in democratic politics. This sentiment is articulated in the writings of some of its main advocates. Take for example the title of Benjamin Schupmann’s recent book on this topic: ‘Democracy despite itself’, which insists on the inherently suicidal nature of democracy. In a similar vein but more outspoken in this regard is András Sajó – flagbearer of the new concept. The opening line of his foundational chapter on militant constitutionalism states: ‘Democracy is one of the gravest threats to democracy’.

In general, the parallels between Sajó’s and Loewenstein’s mode of thought are striking. Moving beyond his earlier adaptation of Loewenstein’s critique of the ‘emotionalism of the awakened masses’; in a recent blog post titled ‘Militant Rule of Law’, Sajó, very much in the spirit of Loewenstein, warns that ‘legality kills us’, implying that adherence to the rule of law ultimately frustrates the realization of the rule of law. Like Loewenstein, he too believes that, when there is ‘war at the inner front’, legality ought to take a vacation. But it is not only – or primarily – legality which Sajó wishes an extended vacation; above all, it is ‘a considerable number of citizens of plebiscitary leader democracies [who] do not find the legalized turpitude morally troubling and don’t resent the abuse of the rule of law’. According to Sajó, it is morally “ambiguous” but democratically engaged citizens who pose an existential threat to constitutional democracy. In this view, the people need to be protected against the people. Or to use Sajó’s moralistic distinction between ‘good’ and ‘bad’ democrats – apparently moralistic distinctions are not an exclusive trait of populists – ‘democracy cannot be sustained when people believe that they are still good democrats even as they work to undermine it’. Who, then, according to Sajó, is to protect the good people against the bad people, substantive democracy against formal democracy, the rule of law against the rule by law? For this, Sajó turns to the usual suspects: ‘It is the legal profession (eminently, but not exclusively, judges) that is called to uphold the rule of law’. Here, too, we are witnessing Loewenstein’s reincarnation, who a century prior redefined democracy as ‘the application of disciplined authority, by liberal-minded men, for the ultimate ends of liberal government: human dignity and freedom’. It shows that liberal legalist orthodoxy is revitalized in the 21^st century, and it has found its expression in the (not-so-)new concept militant constitutionalism.

Not far enough?

Like its conceptual predecessors, militant constitutionalism builds on a number of questionable assumptions. One of the inherent premises of militant constitutionalism is that constitutions and legal guardrails can safeguard constitutional democracy against antiliberal populists with counterconstitutional ambitions. Yet developments across multiple states have demonstrated the limitations of such legalistic strategies. In light of this, a number of scholars have come to recognize that ‘law has only a weak role in preventing a breakdown of constitutional democracy’ and conceded that ‘there is only limited empirical evidence for constitutional rules being systematically able to prevent politicians from undermining their country’s constitutional orders’.

More importantly, underlying the premise that militant constitutionalism can serve as remedy is the implicit (and therefore under-examined) assumption that the remedy (law) is not part of the problem in the first place. Before presenting militant constitutionalism as solution, it might be prudent to engage seriously with two rather inconvenient contentions: first, that increasing degrees of juridification of politics inevitably lead to increasing degrees of politicization of law. It raises the question whether extensive juridification could itself be a contributing factor in the intensified political contestation of the rule of law. A second and related contention is that antiliberal populists may at least in part be driven by what Paul Blokker calls ‘legal resentment’ and that populism could be, to use Cas Mudde’s words, ‘an illiberal democratic response to undemocratic liberalism’.

In this light, it is rather remarkable that advocates of militant constitutionalism express little interest in the causes and nature of antiliberal populism. As Schupmann discloses in the preface to his book, ‘the trend of rising populism and corresponding democratic decline, led many to inquire into the nature of populism, its causes, and its relation to democracy. What is most urgent is not understanding the nature of the actor attacking democracy […] The most urgent questions revolve around how democracy’s design allows for its subversion by antidemocrats […] and what measures can be taken to better defend democracy against such threats in the future’. The consequence of this disinterest in understanding the causes and nature of the threats against which democracy is to defend itself is obvious: at best, militant constitutionalism can offer symptomatic treatment; at worst, it ends up contributing to the instability of democracy itself.

Given the explicit disregard for causes, it is not only surprising but misguided and potentially harmful that advocates of militant constitutionalism keep portraying democracy as the gravest threat to democracy. Recent developments in Poland and Hungary seem to point in a different direction: since antiliberal populists anchor their legitimacy claims in popular sovereignty, they are ultimately weakened and defeated at the ballot box – much less by constitutional constraints or in a court of law. Hence, instead of persisting in presenting democracy as an existential threat to constitutional democracy, it may be more appropriate for the defenders of constitutional democracy to praise it for what it really is: its ultimate guarantee.

What is more, the Polish case shows that one of the main problems at this point is precisely that legal guardrails thwart efforts to restore the rule of law, resulting in a deadlock that incentivizes revolutionary rather than evolutionary pursuits. The result of Donald Tusk’s attempts at reappropriating the state by ‘using decisionist means comparable with PiS’s own in order to cleanse politicized institutions’ – a strategy which he labels ‘militant democracy’ – is not only that ‘various institutions are recognized by only one side of Poland’s political divide’, but, as Stanley Bill and Ben Stanley argue, that it leads to a vicious cycle in which ‘winners claim unfettered rights – justified by precedent and exceptional necessity – to reshape institutions in their image’. The double-edged nature of legal constraints, and its implications for both (theorizing) constitutional militancy and the ongoing politicization of law, should therefore not be dismissed too readily. Developments in Hungary speak to the same point: Tisza’s constitutional majority has been widely celebrated precisely because it enables the party to circumvent most legal constraints. It shows that advocates of robust legal guardrails are faced with a conundrum: how to justify their circumvention in one instance while urging respect for them the next?

The point here is not that constitutional democracies need to remain defenseless or that legal safeguards should be abandoned altogether, nor that militant democracy and all its subsequent theoretical iterations emerged without historical justification. The point here is that legalistic consolidation should be critically (re-)examined and that theories and practices of constitutional consolidation should be reconceived and reimagined beyond the law. For although it may be tempting to double down in times of crisis, ever more legal guardrails will not enhance the durability of constitutional democracy – much like the structural integrity of a building is not improved, and may even be weakened, by endless shoring. More support structures should not be mistaken for greater structural soundness. The current crisis seems to suggest that it is time to take McGilchrist’s observation seriously: while we may not have been traveling in the wrong direction, we might have gone too far in what may once have been the right direction.

Suggested citation: Ursus Eijkelenberg, Symposium on Militant Constitutionalism Part II: Not Far Enough? Militant Constitutionalism and the Limits of Legal Consolidation, Int’l J. Const. L. Blog, June 11, 2026, at https://www.iconnectblog.com/symposium-on-militant-constitutionalism-part-ii-not-far-enough-militant-constitutionalism-and-the-limits-of-legal-consolidation/

[i] This blog post is the product of a draft paper presented at the workshop on militant constitutionalism. The arguments in this post serve as basis for my paper on the drawbacks of legal consolidation. For more information: u.eijkelenberg@uva.nl

The post Symposium on Militant Constitutionalism Part II: Not Far Enough? Militant Constitutionalism and the Limits of Legal Consolidation appeared first on www.iconnectblog.com.

• Int’l Health Regulations (2005) as amended 2014, 2022, and 2024 (W.H.O.), with introductory note by Gian Luca Burci
• Confirmation of Charges in Absentia against Kony (Int’l Crim. Ct. Pre-Trial Chamber III), with introductory note by Andrew Boyle
• Ruling No. 684 B+R3 (Cass.), with introductory note by Apollin Koagne Zouapet

     

The inquiry was initiated in the context of attempts, including by TMC, to bypass the UNCLOS-based permission system in favour of deep-seabed mining rights granted unilaterally by the USA (see here). The contractors complain that the inquiry has identified them for ‘specific attention’ without due process. Further they ‘expect’ that such identification will prejudice the LTC and the Council’s upcoming consideration of their application for a 5-year extension to their existing exploration contracts, which will otherwise expire. The remedies sought by claimants are striking: an immediate order preventing the ISA from continuing its inquiry and from relying on information gained therefrom, unless the alleged procedural defects have been cured (see here, at para 73). We argue that NORI’s and TOML’s claims are unlikely to succeed: they challenge an ongoing inquiry rather than an adverse decision, are based on a misconstruction of the ISA’s decision-making process, and seek remedies beyond the SDC’s remit.

The contractors’ argument in a nutshell

The contractors’ claims appear to be twofold. First, that deferral of NORI’s contract extension application is a discrimination prohibited by Article 152 UNCLOS. Secondly, that the ISA breached “international due process” in conducting the inquiry in two ways: i) by not supplying to the contractors information about the legal, factual, and evidential basis of the inquiry and the initial identification of them for “specific attention”; ii) by not having given the contractors a right to reply before identifying them as requiring “specific attention”. To support its contentions, the contractors refer to a procedure contained in 2024 LTC guidelines ISBA/29/LTC/5 (Criteria for identifying contractors that have responded insufficiently or incompletely, or failed to respond, to the calls from the Council to address issues identified by the Legal and Technical Commission in relation to their contractual obligations). Although the ISA has not in this case explicitly named the two contractors under inquiry, the claimants argue that, under the guidelines, “the identification of a contractor as potentially non-compliant must follow a structured process involving prior engagement with the contractor, the LTC’s application of defined criteria, and an opportunity for the contractor to respond” (see here, at para 22).

ISA’s decision-making, non-discrimination, and international due process

Arguably, the claim is based on a misconstruction of the ISA’s decision-making mechanism and on an excessively expansive reading of international due process. The LTC is a subsidiary advisory organ which cannot take decisions concerning non-compliance penalties, or the renewal, suspension, termination or other measures concerning ISA contracts (Article 165 UNCLOS). The Council is the body which ordered and mandated the inquiry (instructing the LTC to apply due process) and the one that will ultimately decide on the required action. While all ISA bodies are called to implement the common heritage of humankind’s different aspects (environmental protection, the protection of contractors’ rights, equitable distribution of benefits, etc) only the Council has the power to strike the balance between these different interests through a binding decision (see Article 162(2)(l) UNCLOS). Yet the contractors complain to the SDC about LTC communications during an active, unfinished inquiry as if they were executive decisions of the ISA. The claimants notably did not take their concerns to the Council before escalating them to the SDC. This failure to afford the Council an opportunity to correct alleged procedural flaws may undermine the claim’s admissibility or impact a decision on the claim’s merits. Indeed, it is even questionable, given that the inquiry is still ongoing, whether the contractors’ complaints qualify at this stage as a “dispute” between parties to an ISA contract, which is a prerequisite for the SDC to exercise jurisdiction under Article 187 UNCLOS.

One of the claimants submits that the LTC’s deferral of consideration of their application for contractual extension was discriminatory pursuant to Article 152 UNCLOS, inferring “in the absence of a clear explanation” that the inquiry was the cause of their different treatment. But the facts cited are selective. A finding of discrimination requires a measure applied to two or more comparable cases in a manner which generates a detrimental impact on one group and which is not proportionate to an objective justification (see here at para 394). For instance, UNCLOS tribunals ruled that greater cooperation with state authorities during investigations justified later differences in the level of sanctions imposed to two vessels (see here, at para 277). As for the contractor’s case, the LTC Chair’s report to the Council in March 2026 explains why two applications are being processed more slowly: the LTC had received eight extension applications, managed to address six in the limited time available (reviewing them over eight of their ten working days of meetings) and needed to defer two due to time constraints and remaining workload—the selection for deferral was based on the two contracts with the latest expiry dates (here, at para 13). In other words, the LTC did not single out only the contractor under inquiry but also applied the deferral to another contractor not under inquiry, and in doing so gave an explanation, based on logical objective factors.

The claimants’ second issue concerns international due process. Here the claim relies upon ISBA/29/LTC/5 but fails to explain how and why the procedure therein applies to the present process, nor which part of those guidelines was not followed. Such procedure may not in fact be wholly applicable to the ongoing Council-mandated inquiry. ISBA/29/LTC/5 focuses on the specific scenarios of when the LTC should name contractors to the Council, for inadequate annual reporting and responses, and possible under-performance of its plan of work. It does not relate to an inquiry into possible contractor non-compliance (at para 6). In any case, the ISA Council has issued two decisions (here and here) which constitute stand-alone instructions for the present inquiry. In exercising its obligation to ensure compliance with Part XI of UNCLOS, the Council has wide powers to take measures and decisions as it deems fit, including to instruct its subsidiary bodies to provide it with relevant facts and recommendations.

Additionally, assuming those guidelines are applicable: no evidence is provided that they require a contractor to be consulted before the LTC may internally identify it as requiring specific attention for possible non-compliance.  On the contrary, the guidelines envisage that a contractor is invited to comment on specific concerns only once it has been identified as presenting a risk of non-compliance. This is the process the LTC has followed in the inquiry so far. Except in this inquiry all contractors were in fact invited to submit information prior to the identification. The guidelines also do not require full disclosure by the ISA to the contractor at this stage. In making their arguments about due process, the claimants appear to assume—without basis—a right to full disclosure and even rights to peruse and influence internal interim LTC reports before they are addressed to the ISA Council.

The requested remedies

A final hurdle concerns remedies sought by the contractors that would require the SDC to overstep its role under Part XI of UNCLOS. Under Articles 187-190 UNCLOS, the SDC can only determine whether the ISA has acted ultra vires or failed to comply with its contractual or treaty obligations. It has no jurisdiction over the ISA’s exercise of its discretionary powers (see here). According to Article 157 of UNCLOS, only the ISA (and not the SDC) has the power to organise and control activities in the Area.

The claimants’ requests to the SDC relate to the conduct of the inquiry and to the ISA’s decision-making about their contract extension. Both appear to target the exercise of the ISA’s discretionary powers:

• The LTC is conducting the inquiry under direction of the Council and in accordance with the latter’s supervisory mandate. UNCLOS does not prescribe how an inquiry must be run. It remains an exercise of discretionary authority.
• The 1994 Agreement sets a stipulation that “[contractual] extensions shall be approved [by the ISA] if the contractor has made efforts in good faith to comply with the requirements of the plan of work…”. An assessment whether the contractor has made such “good faith efforts” necessarily involves discretion as to what evidence and factors are relevant. The fact that their parent company, TMC, is presently attempting to bypass the ISA through another subsidiary, potentially using data and information collected by the ISA contractors, certainly requires the Council to ascertain such “good faith efforts”.

The remedies requested by the claimants are institutionally intrusive. They ask the SDC to micromanage the ISA’s discretionary exercise of internal regulatory functions: an overstep that seems to fall squarely outside the remit given to the SDC by UNCLOS.

Conclusion

The applications to the SDC attempt to pre‑empt regulatory scrutiny and insulate contract extension applications from the ordinary functioning of the ISA’s compliance mechanisms. Labelling is, however, no substitute for analysis (Azinian v. Mexico, at para 90). As explained above, the claims appear to be frivolous, premature, and unlikely to succeed. We foresee that that the obligation of the ISA and its Member States to ensure compliance of Part XI of UNCLOS will prevail over the complaints raised.

In a previous article about the Polish constitutional crisis, we ended our demonstration saying that “the protagonists change, positions are exchanged, but the balance of power remains”. In this regard, the ruling K 3/26 of the Polish Constitutional Tribunal issued on the 12^th of May 2026 further entrench this statement, giving a new illustration of the tensions paralysing the Polish political and constitutional spheres since 2015, in what is now commonly referred to as the Polish constitutional crisis.

For a quick brush of a context, the Polish parliamentary elections of October 2023 have seen the Civic Coalition (hereafter KO) succeed to Law and Justice (hereafter PiS) which was in power since 2015. The new government, led by Donald Tusk, set itself the mission of redressing the violations committed by the previous government toward the rule of law, which included the resolution of the constitutional crisis – a summary of this crisis can be found in our previous article. The actions taken by KO, whether through the Sejm or through the government, however faced significant resistance from the PiS aligned President of Poland, Karol Nowrocki, as well as from the Constitutional Tribunal itself, whose members have mostly been elected by the PiS majority. This political standoff, between the current majority in power on one hand and actors aligned with the previous majority, on the other hand, form the background in which is situated the ruling K 3/26.

In early February 2026, a group of deputies from PiS filed a motion to the Constitutional Tribunal to review provisions of the Act of 30 November 2016 on the status of the Judges of the Constitutional Tribunal. Among the contested articles, they asked the Tribunal to examine the compliance of the article 4 section 1, “insofar as it imposes on the President of the Republic of Poland the obligation to give the oath of office to a person elected by the Sejm”. This question found a practical application on the 13^th of March 2026 when the Sejm elected 6 persons to become constitutional judges. Following these nominations, the President refused to swear in office 4 of these elected judges on the basis that there were “serious flaws concerning the procedure of appointing these judges”. Facing the persistent refusal of the President to be sworn in office, the remaining 4 elected judges decided to take their oath before the parliamentary speaker. This ceremony that took place on the 9^th of April 2026 was, however, rejected by the President of the Constitutional Tribunal, Bogdan Święczkowski.

Two judicial decisions, each involving a different aspect of the Polish constitutional crisis, stemmed from this situation of contested nominations of constitutional judges. The first one, related to the interim measures issued by the European Court of Human Rights on the 5^th of May 2026 – following a request made by the 4 refused judges – and its dismissal by the Polish President, concerns the international facet of this crisis opposing national authorities to international organisations and will not be examined here as it deserves its own commentary. Instead, this article analyses the ruling K 3/26 made by the Polish Constitutional Tribunal, which constitutes a new illustration of the internal aspect of this crisis.

The Ruling of May 12: A Decision with Unstable Footing

In its ruling K 3/26, the Constitutional Tribunal declared that the interpretation of article 4 section 1, as setting forth an obligation for the President to swear in office candidates nominated by the Sejm, was unconstitutional. The Press release further explain that

“In the light of the reasoning presented in the Tribunal’s judgment in the case K 34/15, the obligation to give the oath of office to a person elected by the Sejm to the office of a judge of the Constitutional Tribunal is not of an absolute nature.

(…)

The giving of the oath of office by the Polish President should be conceived of as the said President’s exercise of the constitutional and statutory powers of the head of state, based on his/her discretionary powers as the guardian of the Constitution. Consequently, the said President may not be obliged to act without being granted – as the head of state – the time necessary to perform the tasks incumbent on him/her (…) When imposing this special responsibility on the said President, the constitution-maker could not – in the light of the principle of appropriate legislation – have assigned the President with duties that are mutually contradictory. Therefore, the President may not be obliged to act “automatically” at a time that prevents him/her from ensuring that the action s/he takes is in accordance with the Constitution.

The Polish President’s duties specified in Article 126 (1)–(3) of the Constitution, may therefore entail the necessity for the said President to refrain from giving the said oath of office, due to the occurrence of an extraordinary, objective and unambiguous situation”.

Among the two parts of this case, underlined supra, that are of particular interests, the first and most obvious one is the reference made to the case K 34/15.

For those familiars with the Polish constitutional crisis, this reference to the case K 34/15 will certainly ring some bells as it offered a solution to the political and judicial standoff related to the events that started the crisis, namely the controversial nominations of constitutional judges, first by the outgoing majority then by the newly elected one. Thus, beyond a simple reference to a previous case law, this can be seen as a way for the current Tribunal, composed of members named by PiS, to use a decision made by a Tribunal then mostly aligned with the Civic Platform party (later part of KO) in order to answer the current conflict opposing the KO majority to the PiS aligned president in favour of the latter one. The instrumentalization, and the alienation, of the case K 34/15 is further attested when we look at the actual ruling of 2015, in which the Tribunal stated that the contested article – which wording was almost the same as the article examined by the Court in 2026 – “interpreted other than that the President of the Republic of Poland is obliged to give the oath of office forthwith to a judge of the Constitutional Tribunal who has been elected by the Sejm – is inconsistent with Article 194 (1) of the Constitution”. In the following Press release, this point is asserted with even greater clarity, stating that the disputed article “imposes an obligation on the head of state to give the said oath of office forthwith. Any other interpretations of the provision are unconstitutional”. Considering the clear rejection, in 2015, of any form of decision-making power in the hand of the President in regard to the election of constitutional judges, the demonstration of the Tribunal in 2026 fail to explain how the obligation of the President to swear in newly elected constitutional judges is not absolute and can suffer exceptions. While a court can develop, evolve or even change its positions in order to adapt to the evolution of society, we can nevertheless question how the Tribunal, in 2026, managed to extrapolate a “maybe”, from a 2015 ruling that clearly stated “no”. Moreover, beside this first element noted in the Tribunal’s argument, the article of the Constitution used by the judges in order to recognise some leeway to the President also raises some interrogations.

In 2015, the Constitutional Tribunal examined, as it was asked to, the compliance of the article 21 paragraph 1 of the Act of 25 June 2015 on the Constitutional Tribunal to the article 194 paragraph 1 of the Constitution, which details that “the Constitutional Tribunal shall be composed of 15 judges chosen individually by the Sejm…”. However, in 2026, when asked to examine the compliance of the article 4 section 1 of the Act of 30 November 2016 to the articles 2, 190 sec. 1, 194 sec.1 and 197 of the Constitution, the Tribunal answered using the article 126 in conjunction of the article 2 of the Constitution. While article 2 of the Constitution refers to the democratic form of the State, the rule of law and the principles of social justice, the article 126 is part of the chapter V dedicated to the President of the Republic of Poland, stating that he shall “be the supreme representative of the Republic of Poland”, “ensure observance of the Constitution”, and “exercise his duties within the scope and in accordance with the principles specified in the Constitution”. By dismissing the Sejm specific provisions, especially the one explicitly referring to its role in the nomination of constitutional judges, and focusing instead on broadly worded articles to recognise such a right to the President, the demonstration hold by the Tribunal in 2026 appears considerably weaker than its 2015 reasoning. Nevertheless, this shift is more understandable in light of the different nature of the opponents facing each other in 2026, compared to the situation in 2015. In its ruling K 34/15, the Constitutional Tribunal had to resolve a situation somehow “internal” to the Sejm, which could explain the dismissal of any intervention made by the President, the Tribunal instead concluding in favour of its own competence to resolve this question. However, in 2026, the President of the Republic is no longer a third party in the case but instead in direct opposition to the Sejm. While this difference between the facts of case K 34/15 and case K 3/26 can explain why the judges could not simply replicate the 2015 solution, it does not justify the decision reached to cede to the President a competence that was clearly stated by the Constitutional Tribunal as being its own. Indeed, while it was concluded in 2015 that “any potential doubts that the head of state may raise as to the constitutionality of legal provisions on the basis of which judges have been elected to the Constitutional Tribunal may only be addressed by the Constitutional Tribunal”, the same Court – though not composed of the same judges – relinquished this exclusive role in 2026, allowing instead the President to act in its place. Among the leads that could explain this shift in the Tribunal’s position, the idea of some sort of handover of power in particular is the one that receives our preference in regard to the way this ruling can be understood as a whole.

*          *          *

In our view, the effects of the ruling K 3/26 are threefold, each aimed at a different moment in time. Firstly, using and bending the ruling K 34/15 could be understood as a way for the Tribunal to alter the past and complicate the understanding of the Polish constitutional crisis, using a decision made by a version of itself whose legitimacy and authority was not (yet) contested in order to blur the distinction made toward it between a past self that would be legitimate and its present state criticised by the ruling majority. Secondly, this 2026 ruling can be viewed as yet another step in the Polish constitutional crisis, as the most recent example of the political clash between the ruling majority and the previous one. Thirdly, the decision K 3/26 of the Polish Constitutional Tribunal issued on the 12^{th of} May 2026 could also be seen as the display of an intention of the Tribunal to grant the President of the Republic of Poland the tools necessary to slowly act in its stead. Considering that the nomination of new constitutional judges means the replacement of the PiS chosen judges with ones elected by KO, this 2026 ruling could be seen as a way for the Polish Constitutional Tribunal to strengthen the President, handing him over competences and powers before its political shift rends it unable to do so anymore.

Suggested citation: Noel Boy, The Decision of the Polish Constitutional Tribunal about the Principles and Procedure for Electing Constitutional judges: Less an Exchange of Blows and More of an Exchange of Weapons – Analysis of Ruling K 3/26 of the Polish Constitutional Tribunal, Int’l J. Const. L. Blog, May 11, 2026, at: http://www.iconnectblog.com/the-decision-of-the-polish-constitutional-tribunal-about-the-principles-and-procedure-for-electing-constitutional-judges-less-an-exchange-of-blows-and-more-of-an-exchange-of-weapons-analysis-of-ruling-k-3-26-of-the-polish-constitutional-tribunal/

The post The Decision of the Polish Constitutional Tribunal about the Principles and Procedure for Electing Constitutional judges: Less an Exchange of Blows and More of an Exchange of Weapons – Analysis of Ruling K 3/26 of the Polish Constitutional Tribunal appeared first on www.iconnectblog.com.

CERD’s statement is significant per se, but also for what it draws attention to: the silence of other treaty bodies. By the time CERD acted, the UN High Commissioner for Human Rights had warned that the legislation was inconsistent with Israel’s international legal obligations, including the right to life. The UN Special Procedures had denounced the law as a grave setback perpetuating racial discrimination against Palestinians, and as incompatible with the absolute prohibition of torture (allegation letter , May 11, 2026).

Striking was the absence of public engagement from treaty bodies whose mandates were directly implicated; most obviously the Human Rights Committee (HRCttee) and the Committee against Torture (CAT), both having grounds and discretionary ways to react publicly had they wished to. This post uses CERD’s statement as an entry point into this silence.

CERD’s Intervention under the Early Warning and Urgent Action Procedure

Unlike most other treaty bodies, CERD chose to adopt in its working methods an Early Warning and Urgent Action Procedure for timely responses to situations requiring preventive and urgent attention. Through its statement, CERD treated the death-penalty law not as a self-contained criminal justice reform, but as a new manifestation of an already documented pattern of racialised harm. It, rightly, grasped the law as an instrument of punishment embedded in a wider legal architecture through which Israel discriminatorily administers rights, risks, and penalties across populations under its control. CERD also grounded its intervention to prior engagement, including earlier decisions on atrocity risks, including genocide, highlighting consequent obligations of state parties to the 1948 Genocide Convention. This procedural posture helps explain why CERD spoke when others kept silent.

Another notable feature of the statement is the reference to the HRCtte’s  General Comment N° 36 (GC 36), interpreting Article 6 (right to life) of the International Covenant on Civil and Political Rights (ICCPR) and to the CAT’s December 2025 concluding observations on Israel’s 6^th periodic report. In doing so, CERD placed the issue at the intersection with HRCttee and CAT mandates, suggesting that they, too, could have addressed the situation.

On Missing Voices

If one body was especially expected to react, it was the HRCttee (Israel is a party to the ICCPR, although not to the Second Optional Protocol). HRCttee supervises the right to life, and its jurisprudence has been central to the consolidation of international standards restricting the death penalty. Israel’s law appears to fall squarely within its scope: it revives execution after a long-standing de facto moratorium, prescribes death by hanging, while shortening the path to implementation. All of this was designed to operate exclusively against Palestinians, and through a military court system the HRCttee had already placed under strict scrutiny in its own General Comment N°32 on Article 14.

The CAT also had a plausible basis for public engagement, having devoted paragraph 50 of its December 2025 concluding observations on Israel to warning against the then draft-law. Once the law was adopted, with hanging celebrated as the method of execution, CAT could have considered whether some public follow-up was warranted, given the long-established view that hanging is incompatible with the prohibition of torture (see CAT’s concluding observations on Botswana and African Court on Human and People’s rights judgment Ally Rajabu et al. v. United Republic of Tanzania).

Neither HRCttee nor CAT was under a codified obligation to issue a statement, nor have they adopted a CERD-equivalent urgent-action procedure in their working methods. Yet both had tools beyond their ordinary reporting cycles, including letters, short public statements, or other forms of exceptional intervention. The expectation that the HRCttee might act was far from speculative, with precedents of intervening on retrogressive developments on capital punishment outside its reporting cycle. In 2008, following Liberia’s selective reintroduction of the death penalty, the Committee publicly expressed deep concern. In March 2017, amid legislative attempts in the Philippines to restore the death penalty, it sent a formal note verbale to the government. In March 2022, the HRCttee published a press release following Victor Pavlov’ execution in Belarus, whose petition was still under its review at the time of his execution.

If the HRCttee has previously treated retrogressive death penalty measures as warranting attention and adopted creative ways to address executions, why, then, did it remain silent on a case that fits its own mandate and doctrinal criteria, at a moment when the wider international legal momentum offered a clear opportunity to act?

Reading the Silence

It may be tempting to read this silence as evidence of double standards, but such quick explanation deserves caution. Human rights practitioners know that silence is a pervasive feature of UN practice. Requests for urgent engagement often go unanswered. Urgent appeals to Special Procedures and even individual petitions to treaty bodies (registration or rejection can take up to 20 months, based on our experience) disappear into a “procedural void”, navigating the system as a bottle in the sea. Institutional silence is sadly not exceptional. 

One explanation may be structural and budgetary. Treaty bodies, more so in 2026, operate with limited meeting time, small secretariats, and chronic backlogs. Unlike Special Procedures, their institutional design is not optimized for rapid-response public advocacy. On this account, silence may say little about substantive priorities and much about procedural and resource constraints.

A second explanation lies in HRCttee’s consensus-based approach in its methods of work. Consensus has virtues (preserving institutional unity and authority), but it also gives a small number of members a de facto blocking power. In politically charged contexts, hesitation by a few may suffice to prevent any public statement.

An additional, pragmatic, explanation concerns the distribution of labour within the UN human rights “ecosystem.” Some mechanisms are structurally designed to make noise. Special Procedures can react quickly through public statements to signal normative alarm, in real time. The High Commissioner can do the same within UN system-wide terms. Once those actors have occupied the public space, a treaty body may judge that another statement would add little.

A final potential explanation lies in secretariat mediation and institutional risk aversion. Public interventions are deeply influenced by the Secretariat’ internal review, which weighs political timing. Caution may reflect reluctance to state backlash against measures they perceive as procedurally or politically “out of the box.” Such considerations may weight heavier in sensitive contexts with states sanctioning experts and Secretariat of international organisations.

None of these explanations is implausible. Yet none dispels the unease created by the HRCttee’s silence in such a paradigmatic case, and while a group of eminent Israeli academics, including a former member of the HRCttee, publicly denounced the law. Treaty bodies can evolve their mandates through creative interpretation of their founding instruments. A notable example is precisely CERD’s Early Warning and Urgent Action Procedure, which was established based on an innovative reading of Article 9 of the Convention. The answer is not to impose legal duties to speak, individually or jointly. But steps toward greater intelligibility are possible: agreeing, in shared working methods, that certain situations will systematically trigger at least a discussion of public intervention, or experimenting more with short, calibrated joint or parallel statements, in paradigmatic cross‑cutting crises.

A Missed International Legal Momentum

The silence is even more striking given the wider legal context in a configuration the international legal calendar rarely produces. Israel’s law was adopted while the International Court of Justice (ICJ) had already ordered provisional measures, recognising that the situation engages states’ obligations to prevent genocide under the 1948 Convention.

Article 6(2) of the ICCPR, a provision precisely introduced to prevent the commission of genocide by means of judicially imposed death sentences (see Nowak’s CCPR Commentary, 3rd revised edition, para. 31), requires death penalty legislation to comply with the Genocide Convention. Read together with Article II of the 1948 Convention, the clause invited the HRCttee to articulate the scope and nature of States Parties’ obligations under both instruments, in an opening of historical significance to shape how the relationship between the two regimes is read at the highest judicial level.

The law, in the context that has prevailed since 7 October 2023, cannot be read as an isolated penal reform. South Africa’s application instituting proceedings presented a compelling evidentiary basis for genocidal intent, including systematic documentation of statements by Israeli officials expressing such intent.  Against that backdrop, the law’s discriminatory design and the re‑introduction of hanging make it, at the very least, a serious atrocity‑risk indicator. In the broader pattern, it stands as a further indicator of a genocidal policy. The HRCttee has explicitly stated in General Comment No. 36 (para. 39) that “[u]nder no circumstances can the death penalty be imposed as part of a policy of genocide against members of a national, ethnic, racial or religious group.”

This is precisely where the HRCttee’s voice would have carried furthest. The ICJ routinely draws on treaty-body material in assessing state obligations. A timely joint intervention, or coordinated individual ones, from the HRCttee, CAT, and CERD could have clarified the legal stakes for all states parties and addressed whether the discriminatory imposition of death by hanging supports an inference of genocidal intent, giving the Court denser expert guidance on a critical element of the genocide claim.

Geneva’s silence on a question The Hague has formally taken up reads, on several levels, as a missed legal moment. The point is sharper still given that the ICJ bench currently includes two former HRCttee members, including its President.

Where CERD met the moment, the silence of the others, against stakes this high, is the measure of how far the UN human rights system remains from using the full weight of its authority.

The South Asian regional chapter of ICON·S was created in 2026 to facilitate jurisdiction-based inquiries sensitive to the broader regional context and its implications for constitutional law within South Asia. Committed to nurturing a scholarly community rooted in mutual support among academics working in challenging contexts, the Chapter aims to promote capacity- and community-building among early-career scholars.

This commitment includes an annual in-person writing workshop and conference. The workshop is intended for early-career South Asian scholars to discuss their works-in-progress, receive detailed and constructive feedback, and connect with other scholars working in and on South Asia. The Chapter is organizing an in-person workshop on, tentatively, 8 and 9 January 2027 in Colombo, Sri Lanka, supplemented by an in-person conference on, tentatively, 10 January 2027 — a day for networking with the broader public law community through paper presentations and capacity-building sessions.

At a glance

• Abstract deadline: 30 June 2026
• Workshop: 8–9 January 2027
• Conference: 10 January 2027
• Venue: Colombo, Sri Lanka

Who May Apply

Selection proceeds through a competitive, multi-stage process. Any scholar who self-identifies as early-career may apply, subject to two eligibility requirements:

1. Applicants must hold a Master’s or a PhD degree, or be actively pursuing a PhD (in law or any other allied discipline); and
2. If they hold a PhD, it must have been awarded after 1 January 2019.

The workshop offers an opportunity for rigorous, critical engagement with one’s own writing and that of fellow participants. If selected, you will be expected to attend the entire workshop and to arrive prepared to discuss not only your own manuscript but also those of your peers, having read them and prepared comments in advance.

How to Apply

As the first stage, applicants must submit a 1,000-word abstract on a topic related to public law in South Asia (broadly conceived), to be developed into an article-length manuscript (10,000–12,000 words) prior to the workshop.

• Email to: icons.southasia@gmail.com
• Subject line: ‘Application for South Asian Public Law Workshop 2026–2027’
• Include: 1,000-word abstract + CV (max. two pages)
• Deadline: 11:59 PM IST · 30 June 2026

Longlisted applicants will, in due course, be informed of their status and requested to submit a 4,000-word manuscript by a specified date. A final shortlisting will follow, with shortlisted scholars expected to submit a completed article-length manuscript by 30 November 2026. Spaces are very limited, and the process is expected to be highly competitive. Some financial support may be available to cover travel and accommodation; details will be shared with selected participants who lack institutional funding. For any queries, write to the email address above.

A Note on Academic Integrity

The Chapter maintains a zero-tolerance policy for plagiarism and the inappropriate use of generative AI tools — all work submitted must be the original contribution of the scholar. Manuscripts may be screened, including via third-party services, to detect such issues. Any applicant found in breach will be immediately disqualified and may be blacklisted from future Chapter activities.

The post Call for Applications: ICON·S South Asia Chapter Annual Workshop & Conference for Early-Career Scholars appeared first on www.iconnectblog.com.

–Michał Stambulski, Assistant Professor in Legal Theory, Erasmus University Rotterdam

This is the introductory post of a Symposium on Militant Constitutionalism, comprised of 10 pieces.

This blog symposium seeks to analyse the idea and practice of militant constitutionalism from both descriptive and normative perspectives. It asks: how should constitutional democracies defend themselves against political actors who seek to erode the rule of law while continuing to claim democratic legitimacy? In Europe, classical theories of militant democracy, developed in response to interwar fascism, focused on restricting, through legal tools and political mobilisation, the electoral opportunities available to openly anti-democratic movements. Contemporary populist and illiberal actors, however, rarely reject democracy outright. Instead, they seek to reshape constitutional orders from within, using the language and instruments of law itself. This introductory post argues that, while militant democracy operates primarily through political exclusion enabled by higher legal norms, contemporary democracies increasingly rely on courts, legal professions, and supranational institutions to constrain authoritarian projects. Notwithstanding these institutional dynamics, aimed at building barriers against constitutional backsliding, our claim is that such safeguards remain insufficient to fully prevent democratic and constitutional erosion. Without social anchoring and civic mobilisation, the defence of constitutional democracy risks becoming politically fragile and vulnerable to populist accusations of elitism and lack of democratic legitimacy.

Self-Defence of Democracy

The term “militant democracy” was introduced by Karl Loewenstein in his two-part article Militant Democracy and Fundamental Rights (1937). Loewenstein, a lawyer from an assimilated Jewish family who was forced to flee Nazi Germany, approached the analysis of fascism and rising authoritarianism as a fundamental challenge to both political and constitutional theory. He defined authoritarianism as a replacement of constitutional government by what he termed an “emotional government”, in which political legitimacy grounded in legal procedures and the rule of law is supplanted by emotional mobilisation and the identification of citizens with those in power. In this account, the substantive content of propaganda or the narratives invoked to dismantle democratic order are of secondary importance. Anticipating later scholarship on populism, Loewenstein argued that both authoritarianism and fascism should be understood not as coherent ideologies, but as a political technique.  At the same time, this technique is inherently parasitic: it exploits democratic tolerance toward competing political positions and abuses the modern linkage between legitimacy and the will of the masses. Therefore, democratic institutions may come to tolerate movements that manipulate collective emotions for dismantling the democratic order itself.

If the threat to democracy lies in the techniques through which it is attacked and eroded, contemplating the means of its self-defence becomes particularly urgent. For this reason, Loewenstein advocated a model of democracy that is not purely permissive, but capable of defending itself against forces seeking to undermine it. In his account, this required the introduction of legal and constitutional safeguards designed to limit the participation of anti-democratic actors in the political process. Such measures included restrictions on political parties that reject democratic principles, limitations on certain forms of political expression aimed at dismantling the constitutional order, and institutional mechanisms enabling the state to act preventively rather than merely reactively. Loewenstein argued that the emotional mobilisation employed by anti-democratic movements depends on a sustained presence in the public sphere and access to opportunities for political action. The militant democratic instruments he described therefore sought to reduce the political opportunity structures available to authoritarian actors. Implemented primarily through legislation, these measures positioned law as a tool for restricting rights, limiting access to democratic institutions, and constraining anti-democratic mobilisation.  This way of thinking was subsequently translated into an institutional framework that emerged in the second half of the twentieth century as a response to the collapse of democratic regimes during the interwar period and the experience of totalitarianism in Europe.

Since Loewenstein’s original formulation[1], two broader dynamics can be observed. The first is the “populisation” of opponents of liberal democracy, understood as the acceptance by such actors of the procedural rules of democratic life combined with a rejection of its liberal component. As Theodor W. Adorno already noted in 1967, radical right-wing movements differ from classical fascism in that they accept democracy as a foundational societal principle. At the same time, they present themselves as the true bearers of democracy, claiming to represent “the people” in a Manichean struggle against corrupt domestic or transnational elites. Consequently, contemporary authoritarian movements do not seek the outright abolition of democracy, at least at the procedural level, but rather erode its quality and undermine its foundational principles in the name of an imagined “true” democracy. This shift suggests that the primary contemporary threat is not classical fascism, but illiberalism, which seeks to transform constitutional democracy into a hybrid regime, i.e., a system hollowed out of its substantive values while maintaining electoral procedures.

The second dynamic is the expansion of constitutional and international law concerning fundamental principles of political order. The growth of human rights frameworks and the entrenchment of the rule of law, particularly in the European context, have rendered contemporary constitutional systems far more complex, multi-layered, and embedded in dense interactions with other jurisdictions and international bodies. As a result, contemporary populist actors typically do not reject liberal constitutional structures outright. Instead, once in power, they seek to appropriate and reshape them, preserving their formal features while gradually hollowing out the liberal values and institutional safeguards on which they rest. Such illiberal regimes often invoke legal categories to reshape the rules governing public life. These transformations typically preserve the formal mechanisms of democratic elections and the basic structure of representative democracy, while simultaneously modifying constitutional order to minimise the possibility of alternation in power and to expand executive authority at the expense of the judiciary.

The adoption of populist logic by authoritarian actors, together with their strategic appropriation of the language of constitutionalism, requires a revision of Loewenstein’s original framework. In Loewenstein’s time, the anti-democratic objectives of such movements were often openly articulated during electoral mobilisation. As a result, it was relatively easy to identify those actors whose participation in the democratic process posed a threat to democracy itself and to justify their exclusion on that basis. Contemporary authoritarian populists, however, typically present themselves as defenders of democracy, popular sovereignty, constitutional values, or even the rule of law. Their anti-democratic ambitions often become fully visible only after they have gained access to state power. Consequently, the central challenge is no longer limited to restricting the political opportunities available to openly anti-democratic actors. It also involves developing institutional mechanisms capable of containing forms of mobilisation that formally embrace democratic legitimacy while undermining the rule of law from within.

The Rise of Militant Constitutionalism

As a response rule-of-law backsliding, the concept and practices of militant constitutionalism have emerged, which can be understood as judicially driven forms of constitutional action through which courts actively constrain populist and illiberal political projects in the name of safeguarding constitutional democracy and the rule of law. Its objective is to exclude from the legal order those laws and governmental measures that undermine the rule of law and weaken constitutional guarantees. By depriving such measures of legal effect, courts seek to reduce the institutional capacities and legal opportunities available to actors engaged in democratic backsliding, thereby limiting their ability to use the law itself as a tool of constitutional erosion.

Militant constitutionalism is relocating the defence of democracy from parliament to the courtroom. It operates across both domestic and international judicial arenas. Drawing on the hierarchical structure of legal systems and the primacy of rule-of-law principles, courts can invalidate or reject legislation that advances authoritarian projects. Courts are no longer merely neutral arbiters of legal disputes; they become active guardians of democratic order. Faced with what they identify as the first step of authoritarian backsliding, courts increasingly intervene in what might traditionally be considered the political sphere. This judicial activism reflects a paradox: in order to preserve democracy, courts may adopt progressive and interventionist approaches that challenge classical notions of the separation of powers. Thus, courts assume a dual function, both conservative, in protecting existing constitutional frameworks, and progressive, in defending liberal-democratic values against emerging autocratic threats.

Adopting a militant constitutionalist perspective is ultimately a decision made by judges. Faced with a range of legally defensible courses of action, judges may choose interpretations that range from relatively formalistic to more activist approaches. Such choices are made under conditions in which considerations of professional career, institutional position, and commitment to the values of the rule of law intersect. The consequences of this are twofold. First, doctrinal legal knowledge and professional ethics acquire particular significance. In recent years, one can observe not only judicial mobilisation but also a broader epistemic mobilisation within the legal profession. Legal scholars, professional associations, and judicial networks have sought to develop and disseminate doctrinal arguments and ethical justifications capable of supporting militant constitutionalist positions. The defence of constitutional democracy thus increasingly depends not only on legal institutions themselves but also on the professional communities that generate and legitimise legal knowledge.

Second, areas that were previously insulated from ordinary partisan politics, such as judicial appointments, judicial governance, and disciplinary procedures, become increasingly politicised. If militant constitutionalism depends on judges’ willingness to adopt interpretations that constrain authoritarian tendencies, political actors have strong incentives to shape the composition of the judiciary by favouring candidates perceived as loyal to more formalistic understandings of adjudication. Similarly, if militant constitutionalism relies on professional norms and ethical commitments, disciplining judges who embrace such positions becomes an attractive political strategy. This dynamic is evident, for example, in Poland, where disciplinary mechanisms were instrumentalised to discourage judges from relying on European legal standards in resisting changes to the judiciary, and in Italy, where recent proposals concerning judicial appointments have been criticised as attempts to increase political control over the judicial branch.

Militant constitutionalism also shifts the centre of gravity of democratic defence from direct opposition to processes of containment and limitation. This defence typically arises when populist actors are already in power, rather than in opposition. Consequently, courts must confront not only the substance of governmental measures but also the claim of democratic legitimacy derived from electoral support. Beyond the European context, after his tariff policies were struck down by the Supreme Court, the US president Donald Trump described the judges as “unpatriotic and disloyal to the Constitution.” Such reactions illustrate a broader pattern in which judicial intervention is reframed as an undemocratic obstruction of the popular will. Courts are thus placed in a structurally precarious position: while formally tasked with upholding constitutional limits, they are simultaneously exposed to political narratives that cast them as illegitimate actors opposing democratically elected authority. In other words, legal resistance to rule-of-law backsliding can itself be mobilised as evidence of the allegedly elitist, technocratic, and exclusionary character of judicial power. Rather than merely constraining populist mobilisation, militant constitutionalism may inadvertently provide additional fuel for it, reinforcing the very narratives of popular disenfranchisement and elite domination on which contemporary populism thrives. Also, unlike militant democracy, which is largely confined to the nation state, militant constitutionalism operates across multiple levels of governance, particularly within the European Union. Individual national courts in Member States, when faced with direct attacks on their constitutional order or the capture of higher courts through ideologically aligned appointments linked to the ruling majority, may refer legal questions to European courts, while citizens can rely on systems of international complaints. This multilevel architecture expands the resources available for the defence of constitutional democracy, but it also creates new vulnerabilities. The involvement of supranational institutions can reinforce populist narratives portraying constitutional constraints as the product of distant, technocratic, and insufficiently accountable elites. As a result, resistance to democratic backsliding may be reframed not only as judicial obstruction of the popular will, but also as external interference by actors lacking direct national democratic legitimacy. In this way, the transnational character of militant constitutionalism can become a further source of political contestation and a powerful target for anti-elitist mobilisation.

Socialising Constitutional Self-Defence

We argue that militant constitutionalism differs from militant democracy and that, although both forms of democratic self-defence may operate together, they are oriented towards different objectives and rely on distinct mobilisation logics. Whereas militant democracy seeks primarily to reduce the political-electoral opportunity structures available to anti-democratic actors, militant constitutionalism aims to reduce their legal-institutional opportunity structures for shaping the constitutional order, including the distribution of rights and the division of powers. The former depends largely on legislative measures, which require parliamentary majorities and what Loewenstein described as an “anti-fascist bloc” capable of adopting and sustaining militant democratic mechanisms. In contemporary terms, its effectiveness depends on political and party mobilisation. Militant constitutionalism, by contrast, depends on the willingness of judges to adopt militant interpretations and on the availability of doctrinal resources capable of justifying such decisions. Its effectiveness therefore rests on the mobilisation of legal knowledge and professional ethics within the legal community. These two logics may coexist, but they may also come into tension. When they coexist, militant constitutionalism can reinforce militant democracy by providing legal justification and judicial enforcement for measures adopted through parliamentary majorities. At the same time, militant democratic measures can create the political conditions necessary for courts to act in defence of democracy. In such cases, democratic self-defence operates through mutually reinforcing processes of political and legal mobilisation. Yet much contemporary militant constitutionalism emerges precisely where this alignment is absent. Courts often operate in contexts where the political opportunity structures of anti-democratic actors are expanding. Therefore, judges may find themselves resisting parties or leaders whose electoral support is growing and whose democratic mandate appears increasingly robust. Under such conditions, democratic legitimacy can be mobilised against constitutional constraints themselves, and judicial intervention can be portrayed as an attempt to frustrate the will of the people.

For this reason, militant constitutionalism should not be understood exclusively as a legal project. To remain effective, its legal dimension must be complemented by a social one. Democratic self-defence requires not only courts capable of constraining authoritarian actors but also citizens capable of mobilising in support of constitutional principles. Such a social dimension should seek to generate, within everyday political life, forms of collective action, civic engagement, and symbolic identification that can counterbalance the energies mobilised by populist movements. Territorial autonomies, including municipalities, regions, and federal entities, can play a particularly important role by promoting alternative policies, legal narratives, and democratic practices. The mass constitutional protests witnessed in recent years in Poland, the mobilisation in defence of the rule of law in Hong Kong, resistance to legislation targeting civil society organisations in Georgia, regional legal activism during recent constitutional and institutional referendums in Italy demonstrate that constitutional democracy cannot be defended by courts alone. Ultimately, the long-term success of militant constitutionalism depends on its capacity to become socially embedded and politically resonant. Without a corresponding mobilisation of citizens, legal institutions risk fighting a defensive battle that they cannot win on their own.

Suggested citation: Corrado Caruso, Michał Stambulski, Symposium on Militant Constitutionalism Part I: Introduction. From Militant Democracy to Militant Constitutionalism: Rethinking Democratic Self-Defence in the Age of Populism, Int’l J. Const. L. Blog, June 10, 2026, at: http://www.iconnectblog.com/symposium-on-militant-constitutionalism-part-i-introduction-from-militant-democracy-to-militant-constitutionalism-rethinking-democratic-self-defense-in-the-age-of-populism/

[1] It should be noted, however, that Loewenstein was not the first to reflect on mechanisms of political self-preservation. Earlier, in a more historically and legally oriented analysis that extended beyond democratic regimes, Carl Schmitt re-constructed the concept of dictatorship. For Schmitt, dictatorship emerges as a mechanism aimed at preserving the political order in moments of existential crisis, suspending ordinary legal constraints to safeguard the unity of the polity.

The post Symposium on Militant Constitutionalism Part I: Introduction. From Militant Democracy to Militant Constitutionalism: Rethinking Democratic Self-Defence in the Age of Populism appeared first on www.iconnectblog.com.

This book examines the crucial role of Antarctic legal studies in managing present and future geopolitical tensions in Antarctica. Specifically focusing on Argentina and Australia's historical contributions, it examines key moments of crisis in Antarctic history to assess their impact on Antarctic law development. By analysing these nations' responses to critical situations, the book extracts valuable lessons on how they can effectively use Antarctic law to navigate current and future geopolitical challenges. Furthermore, the book offers seven practical recommendations for Argentina and Australia to enhance Antarctic law, ensuring its efficacy in addressing these challenges.

Readers will not only gain a comprehensive understanding of Argentina and Australia's historical roles in shaping Antarctic law but also appreciate the pivotal role of this legal framework in maintaining order, stability, and cooperation in the Antarctic region. The book's insights are invaluable for policymakers, scholars, and anyone interested in the sustainable governance of Antarctica, emphasizing the significance of international collaboration in preserving this unique and vital environment.

     

Online via Zoom, 10 July 2026, at 6.00 pm CEST

On Friday, 10 July 2026, the International Nuremberg Principles Academy cordially invites you to attend its inaugural Nuremberg Academy Dialogue. The international dialogue will be held as an online webinar on 10 July 2026 at 6.00 pm CEST.

Nuremberg Academy Dialogue: Remembering Nuremberg

Organised as part of the 80 Years of Nuremberg Symposium in cooperation with the Robert H. Jackson Center, this online event launches a new series dedicated to exploring topical issues in the field of international criminal law.

The first Dialogue, titled “Remembering Nuremberg”, will examine how the Nuremberg trials have been remembered and reinterpreted over time, how they continue to shape international criminal law and accountability mechanisms today, and what “remembering Nuremberg” can teach us in responding to contemporary conflicts and mass atrocities.

Confirmed speakers include Ambassador Stephen Rapp, Senior Fellow at the US Holocaust Memorial Museum Center for Prevention of Genocide and Georgetown University Center for National Security Law, former US Ambassador-at-Large for Global Criminal Justice, Professor Gerry Simpson, Professor of Public International Law at the London School of Economics and Political Science, and Professor Annette Weinke, Senior Researcher at the Friedrich-Schiller-University Jena.

The dialogue will be chaired by Dr Viviane Dittrich, Deputy Director of the International Nuremberg Principles Academy.

The Dialogue will address themes such as the interplay of law and politics as well as justice and memory in shaping contemporary approaches to justice and accountability, perspectives on the Nuremberg trials over time, the enduring influence of the Nuremberg Principles on institutions including the International Criminal Court and critiques of the trials including victors’ justice. It will also explore contemporary representations and interpretations of the Nuremberg tribunal in film, literature, and popular culture, shaping public understandings of international law, justice and memory.

The event is free and open to the public, addressed to a global audience of legal professionals, academics, scholars and civil society representatives. To attend the event, please register here.

The Nuremberg Academy Dialogue Series was initiated in light of the 80^th anniversary of the Nuremberg Trials. Through this event series convened by Dr Viviane Dittrich the Academy provides a forum for dialogue on topics of continuing importance and current significance and thereby seeks to promote public understanding of international law.

Further information on the Nuremberg Academy Dialogue can be found here.

The Call for Papers for this first issue is devoted to the Securitisation of Supply Chains: Critical Raw Materials Between Energy Security and the Green Transition.

You can find the call with all the details at the following link:

SECURITISATION OF SUPPLY CHAINS: CRITICAL RAW MATERIALS BETWEEN ENERGY SECURITY AND THE GREEN TRANSITION

Prospective articles should be submitted in the form of abstract (around 800 words) or draft articles to submissions.jlmi@iuse.it within 15 July 2026. The publication of the issue is set for the end of March 2027.

For further information, or for consultation on a potential submission, you can contact us by email at editors.jlmi@iuse.it.
Visit our website to read the full announcement.

This post argues that what these two cases articulate, read against the extra-jurisdictional convergence offered by the 9/11 Commission Report, is the slow emergence of an autonomous doctrinal category within the positive duty to protect life: an intelligence-failure standard. This standard is identifiable by a qualified activation threshold, a structural evidentiary asymmetry, and an organizational locus for breach. The category is not yet self-described by either court, but the cross-citation in AMIA §125 signals that the Inter-American system has chosen to locate itself, on this point, in Strasbourg’s slipstream. It is the supranational counterpart, built from within the right to life, of the negligence regime that intelligence-law scholarship has pursued from outside it.

The European Anchor: Tagayeva’s Three-Layered Operational Duty

The operational duty under Article 2 has its modern root in Osman v. United Kingdom (1998, §116): real and immediate risk to an identified individual, plus reasonably available measures the State failed to take. Tagayeva extends and refines that test along three layers.

First, knowledge. The Court works by accumulation (Tagayeva §§484–489): internal MVD/FSB directives of July–August 2004; the historical pattern of analogous attacks (Budennovsk 1995, Kizliar 1996, Dubrovka 2002); and expert evidence that “elementary information should have been available to the competent authorities from covert sources and intelligence operations” (§486). The duty includes the active generation of reasonably obtainable intelligence, not merely reaction to what is received.

Second, evidentiary asymmetry. In §492 the Court formalises what was previously implicit: “the police, who have access to information and intelligence not available to the general public, will usually be in the best position” to take operational decisions. Structurally, this places a justificatory burden on the State where the intelligence picture is opaque to victims. The implications of this move for the evidentiary regime in intelligence-related cases have not yet been fully drawn out.

Third, organisational content. The violation crystallises in the absence of “a single sufficiently high-level structure responsible for the handling of the situation, evaluating and allocating resources, creating a defence for the vulnerable target group and ensuring effective containment of the threat and communication with the field teams” (§491). What Tagayeva condemns is not a missing (positive) measure, but a missing architecture.

The Cross-Citation Event: AMIA §125 and the Inter-American Importation

AMIA §125, in its discussion of the prevention duty in counter-terrorism (Section VII.B.2), reproduces Tagayeva §482 as a block citation (note 150):

“Turning to the question of positive obligation, the Court reiterates that Article 2 of the Convention may imply a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual. For the Court to find a violation of the positive obligation to protect life, it must be established that the authorities knew, or ought to have known at the time, of the existence of a real and immediate risk to the life of identified individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. Such a positive obligation may apply not only to situations concerning the requirement of personal protection of one or more individuals identifiable in advance as the potential target of a lethal act, but also in cases raising the obligation to afford general protection to society.”

The textual choice deserves note. Osman §116 stated the test in disjunctive form (‘an identified individual or individuals’); Tagayeva §482 retained only the plural. AMIA §125 imports that compressed formulation — the version Strasbourg had already worked in the Beslán fact-pattern — rather than the 1998 source. The Inter-American Court thus joins the Strasbourg lineage at its current stage     , not at its origin.

The move is not formally ratio decidendi: the Court’s operative test sits in §118, applied to the AMIA facts in §§128–137, and rests on its own Pueblo Bello lineage, with the five-pronged test of UN Special Rapporteur Ben Emmerson (Report A/HRC/20/14, 2012) explicitly received in §123. But even in obiter, the institutional choice to invoke Strasbourg precisely here, as the Court enters preventive intelligence failure in terrorism for the first time, places the Inter-American system in Strasbourg’s wake on Article 2.

The application of the standard to AMIA’s facts converges with Tagayeva’s grammar. The Court documents three knowledge inputs (§§130–133): Argentina’s own recognition of responsibility in Decreto 812/2005; the 1992 Embassy bombing and the resulting “Sala Independencia” within the SIDE intelligence service; and the two immediate alerts — the W.R.D.S. tip from the Argentine consulate in Milan, and the low-altitude helicopter overflights the day before and the day of the attack, both evaluated with expert input from Prof. Martin Scheinin’s amicus-style report (published as Bonavero Report 1/2022).

The organisational diagnosis mirrors Tagayeva §491 in AMIA §§135–136: the patrol assigned to Pasteur Street had been stationary for three days with its radio out of service; there was no coordination between external and internal security; and the State “did not investigate the information given by W.R.D.S. nor the helicopter overflight”. The Court reads the prevention duty as an obligation of means and not of result (§136) — the Inter-American twin of the Strasbourg formulation reproduced above.

Extra-Jurisdictional Verification: The 9/11 Commission Report

Why does the convergence matter beyond the two systems? Because the United States did not ratify the American Convention, has not accepted the Inter-American Court’s contentious jurisdiction, and is outside the European Convention. Any convergence between the Strasbourg–San José line and the U.S. institutional record is therefore independent: it does not presuppose the doctrinal pattern, it strengthens it.

Chapter 8 of the 9/11 Commission Report — “The System Was Blinking Red” — reconstructs the unprecedented volume of pre-9/11 warning traffic, anchored in the line attributed to DCI George Tenet (“the system was blinking red”). The empirical record (June–July 2001 directives, CSG warnings, FBI advisories, the 6 August PDB “Bin Ladin Determined to Strike in US”) is functionally equivalent to what Tagayeva §§484–486 and AMIA §§130–133 document.

The decisive convergence is organisational. Section 11.4 of the Report (“Management”) delivers, in administrative prose, the precise diagnosis that Tagayeva §491 articulates in convention-rights terms: “The agencies are like a set of specialists in a hospital, each ordering tests, looking for symptoms, and prescribing medications. What is missing is the attending physician who makes sure they work as a team.” The “attending physician” and the “single sufficiently high-level structure” name the same institutional pathology. The remedial coda confirms the diagnosis: the Commission proposed, and the Intelligence Reform and Terrorism Prevention Act of 2004 created, the National Counterterrorism Center and the Director of National Intelligence, the coordinating authority whose absence was identified as causal.

An Emerging Standard: Four Elements for Future Cases

The standard is not yet judicially self-described. The four elements below reconstruct the converging pattern descriptively from the case law, with the qualifications noted in passing where the doctrine still has to catch up.

Element 1 — Available or required intelligence. The State must have had access, before the harmful event, to intelligence capable of generating a common operational picture of the structural threat; or, applying the diligence reasonably expected of a comparable intelligence agency, it must have been in a position to procure it. The “required” prong captures Tagayeva‘s expectation of active generation (§486), not only reactive use.

Element 2 — Convertibility into a specific situational picture. The general threat picture must be convertible, through reasonable diligence, into a specific picture against an identifiable target — individual, vulnerable group, or institution — in determinate coordinates of time, place, and modality. This is the qualified threshold that distinguishes the category from canonical Osman/Pueblo Bello: it excludes genuine operational unpredictability (Finogenov v. Russia, 2011, where the Court accepted the unforeseeability of the Dubrovka rescue plan) while capturing cases where conversion was possible and was not produced.

Element 3 — Absence of organisational architecture of conversion. The standard requires the absence of a single, sufficiently senior authority to centralise threat management; a mechanism of resource evaluation and allocation; an active capacity to build a defence for the identifiable vulnerable group; and an operational communication loop with field teams. Documented dysfunction of a nominally existing apparatus (Pasteur’s stationary patrol, the broken radio) is sufficient.

Element 4 — Materialised harm. The harm must materialise in the convention-protected interest the conversion would have prevented or mitigated. Causation is probabilistic, in line with obligations of means, and the Tagayeva §492 asymmetry operates in the victim’s favour.

Read against Asaf Lubin’s Reasonable Intelligence Agency standard (47 Yale J. Int’l L. 119, 2022) and his Liberty to Spy framework (61 Yale J. Int’l L. 185, 2020), what Tagayeva and AMIA are doing is building, from within the right to life, the supranational counterpart of the negligence regime that intelligence-law scholarship has pursued from the outside. The cross-citation in AMIA §125 is the moment that move became visible.

• Philip Sales, The Past and the Future of the European Court of Human Rights
• Trent Buatte, From Deep Freeze to Seize: The Legal Case for Confiscating Russian Sovereign Assets for Ukraine
• Jayanth K. Krishnan, The Forgotten Lawyer: Donor Aid and Rule of Law Efforts in Our Current Political Moment

     

• Climate Change Litigation: International Legal Perspectives
• Denise Prévost, Machiko Kanetake, & Jan Wouters, Climate Change Litigation: International Legal Perspectives
• Dominic Coppens & Nicolas Lockhart, Wayfinders for Climate Change Action: The ICJ, ITLOS, and IACtHR Advisory Opinions on Climate Change
• Roman Girma Teshome, Rethinking the Determination of Victim Status in Rights-based Climate Change Litigation
• Antoine De Spiegeleir, International Law After KlimaSeniorinnen
• Beichen Ding, Extraterritorial Climate Change Obligations and Their Implications for Unilateral Climate-related Trade Measures
• Isabela Keuschnigg, Clemens Kaupa, Joana Setzer, L. Delta Merner, Kaia Turowski, Paul Lachapelle, Allison Shyrock & Aradhna Tandon, Integrating Scope 3 Emissions into Corporate Climate Change Litigation: Evolution, Challenges, and Responses
• Aydin Mehdi Khani Saatlou, Reza Tajarlou, & Alireza Kheirandish, Caspian Sea Water Transfer Project: International Law Considerations and Implications
• Who is Afraid of Choice-of-Court Agreements in Domestic Cases? The Inkreal Case and Beyond Aleksandrs Fillers

     

I. The April 2026 Vote: A Historic Legislative Stalemate

On 17 April 2026, the Indian Lok Sabha (Lower House) voted on the Constitution (131st Amendment) Bill, 2026. The bill received 298 votes in favour and 230 against, and it failed. Under Article 368 of the Constitution, constitutional amendments require both a majority of the total membership of the House and at least two-thirds of those present and voting. With a House strength of 543, the bill needed 352 votes. It fell 54 short. This is the first time a constitutional amendment has failed during Narendra Modi’s tenure as Prime Minister. This post argues that the defeat is more than a political setback. The defeat exposes a structural feature of Indian constitutional design: a provision conceived as a temporary measure has acquired the characteristics of an entrenched unamendable rule, without ever being formally designated as one.

II. Anatomy of a Structural Lock-In: The Mechanics of Functional Unamendability

The provision at issue is the representational freeze created by the 42nd Amendment (1976) and the 84th Amendment (2001). Article 82 of the Constitution ordinarily requires readjustment of Lok Sabha seats among states in proportion to their population after each census. The 42nd Amendment suspended this requirement until after the first census following the year 2000. The rationale was explicit: states that successfully reduced birth rates should not be penalised through seat reduction as that would reward northern states with persistently higher fertility. The 84th Amendment extended the freeze until after the first census following 2026. Taken together, these amendments embedded a fifty-year representational freeze in the Constitution. Southern states accepted this because it guaranteed their declining population share would not cost them parliamentary weight. The freeze worked as a political bargain. What it also produced, over time, was an ever-widening gap between actual population distribution and parliamentary representation. By 2026, that gap is substantial. Any delimitation based on current census data would shift seats northward, reducing the relative standing of the southern states of Kerala, Tamil Nadu, Andhra Pradesh, and Karnataka in the Lok Sabha.

The 106th Amendment (2023), which introduced a one-third reservation of seats for women in the Lok Sabha and state assemblies, conditioned implementation on a delimitation exercise after the next census. Given that the 2027 census will take several years to finalise, the women’s reservation clause is unlikely to operate before approximately 2034. The 131st Amendment Bill sought to break this linkage by permitting delimitation based on the 2011 census, enabling implementation of women’s reservation around 2029. The government’s logic was to attach the freeze’s removal to a commitment that southern parties had already publicly endorsed in 2023, making resistance politically expensive. The bill failed nonetheless. Southern state parties concluded that a five-year gain in the women’s reservation timeline did not justify a permanent reduction in regional seat allocation. Their opposition was not to women’s representation, which they had supported by large margins three years earlier. It was to the redistribution of parliamentary power that any new delimitation would necessarily produce.

This is where the lock-in problem becomes a constitutional design problem rather than a political one. What the 131st Amendment encountered is best described as functional unamendability: a condition in which a provision is formally open to revision through established procedures, but structurally immune from revision because the provision itself generates the political conditions that make the required consensus unachievable. The 84th Amendment freeze was designed to create a stable political constituency in favour of population control. It succeeded. Southern fertility rates fell, and southern states retained their proportional seat shares. That retention, over time, produced a durable coalition with a direct interest in keeping the freeze in place. The two-thirds supermajority under Article 368 of the Indian Constitution is meant to ensure constitutional changes command genuinely broad consensus. What it cannot prevent is a situation where the provision to be amended is precisely the provision that makes broad consensus unachievable. An amendment reducing the parliamentary weight of the states whose votes are needed to pass it carries a structural veto. This is not ordinary political resistance, which can in principle be overcome through negotiation. Structural vetoes of this kind are self-reinforcing: the longer the demographic divergence between north and south continues to grow, the greater the southern states’ resistance to any delimitation, and the harder any future amendment attempt becomes.

III. Why India’s Reapportionment Gatekeepers Differ from the UK and Germany

Comparative constitutional systems encounter similar tensions between population-based representation and territorially entrenched constitutional arrangements, and the experiences of Germany and the United Kingdom illustrate institutional paths India did not take.. Germany addresses seat distortions in the Bundestag through Ausgleichsmandate (compensation seats), resolving representational imbalances through statute rather than constitutional amendment. This keeps adjustments below the threshold requiring supermajority consensus and allows incremental correction without triggering the political stakes of constitutional revision. A statutory seat-expansion model is not straightforwardly available in India, since Article 81 of its Constitution caps Lok Sabha membership and any expansion of seats itself requires a constitutional amendment, which would face the same structural veto. The United Kingdom conducts boundary reviews through independent commissions precisely to remove reapportionment from parliamentary politics. The technical work of drawing constituencies is institutionally separated from the legislature whose interests are at stake. India has a Delimitation Commission, but the constitutional freeze renders it dormant for decades at a time and the decision to activate it runs through the same parliamentary process that the freeze has captured. What Germany and the UK share is a design that prevents the constituency most threatened by reapportionment from serving as the gatekeeper of reapportionment. India’s design does not.

IV. The Accidental Collision: When Transitional Provisions Paralyze Modern Reforms

The immediate constitutional consequence is concrete. The 33% women’s reservation provisions, approved with 454 votes in 2023 and inserted into the Constitution as Articles 330A and 332A, will not take effect before 2034 and possibly later if post-census delimitation is itself contested. A constitutional guarantee created three years ago with near-unanimous support is suspended in practice by a provision from 1976 that was designed for a wholly different purpose. The 84th Amendment was not written in anticipation of the 106th Amendment. Their interaction is an accident of sequential constitutional amendment without systemic review. Incremental amendments, each rational in isolation, can interact to produce outcomes no single amendment intended. The suspension of women’s representation is not the product of opposition to women in parliament. It is the product of two provisions operating together in ways their drafters did not foresee and Parliament has so far been unable to correct.

The defeat of the 131st Amendment will be read primarily as a political story: a government that miscalculated its numbers, an opposition that held together on federal grounds. That reading is accurate. The constitutional story runs deeper. India’s representational freeze is not formally unamendable. Article 368 remains available. The problem is that the freeze, by generating a stable and sizable protective coalition within the legislature, has reached functional unamendability. The formal procedure exists; the political conditions required to use it do not. This gap between formal and functional constitutional constraint is the broader lesson. Wherever provisions designed as transitional accommodations generate durable interest groups in favour of their own perpetuation, the standard amendment procedure becomes a structurally inadequate reform instrument. India’s representational freeze is the most visible current example of this dynamic.

Suggested citation: Kshitij Saruparia, Frozen by Design: The 131st Amendment’s Defeat and India’s Self-Perpetuating Representational Lock, Int’l J. Const. L Blog, June 9, 2026, at: http://www.iconnectblog.com/frozen-by-design-the-131st-amendments-defeat-and-indias-self-perpetuating-representational-lock/

[1] Views expressed are personal.

The post Frozen by Design: The 131st Amendment’s Defeat and India’s Self-Perpetuating Representational Lock appeared first on www.iconnectblog.com.

The legal difficulty arises if that commitment keeps the AOTES partner supplied while exports to other WTO Members are restricted. This post examines whether such a commitment can be reconciled with WTO non-discrimination disciplines. It argues that crisis-time partner preference is difficult to justify under existing WTO law, and that future essential-supplies arrangements should either focus on resilience-building before restrictions are imposed or seek an express WTO-level basis for any priority-supply rules.

AOTES and the problem of partner preference

AOTES is to be incorporated as Annex 1bis to the New Zealand-Singapore Closer Economic Partnership (ANZSCEP). It applies in the event of a supply-chain disruption or imminent disruption, and only to essential supplies traded between the parties. For present purposes, its key provision is paragraph 17, which excludes reliance on GATT Article XI:2(a) for exports of essential supplies between the parties:

Quantitative Restrictions

17. Further to Article 2.10.1 of the ANZSCEP, Article XI:2(a) of the General Agreement on Tariffs and Trade 1994 and its interpretative notes shall not apply with respect to the exportation or sale for export of any essential supplies from the territory of a Party to the territory of the other Party.

Article XI:1 of the GATT generally prohibits quantitative restrictions, including export restrictions. Article XI:2(a), however, allows temporary export restrictions to prevent or relieve critical shortages of foodstuffs or other products essential to the exporting Member.

Paragraph 17 is significant because it makes Article XI:2(a) unavailable, as between the AOTES parties, for listed essential supplies exported between them. In a critical shortage, the restricting party may still seek to rely on Article XI:2(a) for restrictions on exports to other WTO Members, but not for restrictions on exports of listed essential supplies to its AOTES partner. If that party keeps exporting to its AOTES partner but cuts exports to everyone else, the result is a treaty-based preference: one partner is protected, while other importing WTO Members are disadvantaged.

AOTES-type commitments may become more common as states seek to secure access to essential supplies through agreements among trusted partners. The broader WTO question is whether a Member imposing export restrictions on essential supplies may exempt selected partners from those restrictions on the basis of such commitments.

AOTES did not emerge in a vacuum. It builds on the 2020 New Zealand-Singapore Declaration on Trade in Essential Goods, launched during the COVID-19 pandemic. That Declaration already contained a non-binding commitment by participating governments not to impose export restrictions on listed essential goods, and New Zealand’s National Interest Analysis describes AOTES as building on it. But the Declaration was open in form and framed as a broader effort to keep essential goods flowing during the pandemic, rather than as a closed bilateral exemption for one treaty partner.

That change in legal form and structure matters. AOTES turns a political export-restraint commitment into a binding bilateral treaty rule that makes Article XI:2(a) unavailable for listed essential supplies exported between the parties. It is that legal hardening, and the possibility that one partner could keep getting supplies while exports to others are stopped, that brings the WTO non-discrimination problem to the surface.

The non-discrimination problem

Whether selected partners may be exempted first arises under GATT Article XIII, which requires the non-discriminatory administration of quantitative restrictions and also applies, where relevant, to export restrictions. If an exporting Member restricts exports to other WTO Members but exempts its treaty partner, the measure may be difficult to reconcile with that discipline. Article I may also become relevant, depending on the form of the measure. The point is familiar from Brazil – Retreaded Tyres, where Brazil did not contest that its MERCOSUR exemption from an import ban was a prima facie violation of Articles I:1 and XIII:1. The harder question is whether such discrimination can be justified.

Article XXIV is unlikely to justify such discrimination. It is not a general permission for discriminatory measures simply because they are adopted under a free trade agreement (FTA). In Turkey – Textiles, the Appellate Body confirmed that Article XXIV may operate as a defence to an otherwise GATT-inconsistent measure only in limited circumstances. In the context of a customs union, the invoking Member had to show both that the measure was introduced upon the formation of the customs union and that the formation of that customs union would otherwise be prevented (paras 58–59). By analogy, a crisis-time exemption from export restrictions for one FTA partner, especially under an already existing FTA, would be difficult to defend on that basis.

Article XX(j) is also an uneasy fit. It covers measures essential to the acquisition or distribution of products in general or local short supply. But Article XX(j) is not simply a shortage exception. It also requires any measure taken under that provision to be consistent with the principle that all Members are entitled to an equitable share of the international supply of such products. In India – Solar Cells, the Appellate Body confirmed that this principle forms part of the Article XX(j) inquiry (paras 5.55, 5.64). That makes a partner-specific exemption difficult to justify. A rule that says, in effect, “exports may be restricted to others, but not to our selected partner” looks less like an equitable allocation of scarce goods and more like priority treatment for a friend.

The chapeau of Article XX creates a further difficulty. If the exporting Member exempts its AOTES partner but not other importing WTO Members affected by the same shortage, it must explain why that discrimination is not arbitrary or unjustifiable. Brazil – Retreaded Tyres is directly relevant here. The Appellate Body focused on the cause or rationale of the discrimination and rejected Brazil’s reliance on a MERCOSUR obligation where that rationale bore no relationship to the objective pursued under Article XX(b) (paras 226–230). The difficulty is that a treaty-based promise to keep one partner supplied does not, by itself, explain why the resulting discrimination is connected to the shortage-related objective invoked under Article XX.

Article XXI remains possible, but only at the margin. An AOTES-type exemption does not become a security measure simply because it concerns essential supplies. According to the panel in Russia – Traffic in Transit, Article XXI(b)(iii) requires a war or other emergency in international relations, not merely political or economic conflict (paras 7.75–7.76). It may help where the shortage arises from, or is closely connected to, an armed conflict or comparable security crisis. It does not provide a general justification for favouring treaty partners in ordinary supply crises.

Taken together, these WTO disciplines do not prohibit AOTES-type commitments as such, but in an ordinary supply crisis they leave little room to use them to favour one partner while keeping export restrictions on other WTO Members.

What should small open economies do?

This conclusion is uncomfortable. Small, highly open economies such as New Zealand and Singapore have real reasons to seek credible access to essential supplies in a crisis. WTO law should not be read as telling them simply to remain vulnerable. But nor does it give them an unqualified right to favour selected partners during shortages. The safer path is to distinguish resilience-building, done before a shortage happens, from discriminatory treatment that comes after export restrictions are in place.

AOTES itself illustrates this distinction. Paragraph 17 is the legally difficult part: it protects the treaty partner once export restrictions take effect. But other provisions take a more preventive approach, focusing on trade facilitation, logistics coordination, emergency meetings, information-sharing, and private-sector cooperation, including joint procurement and temporary production conversion (paras 4, 7–15). For small, highly open economies, this is the practical lesson. AOTES-type agreements should be used to build resilience before a crisis hits, not to keep selected partners supplied after restrictions are imposed while others are not.

If Members still want to create a legal basis for partner preference during supply crises, they should do so expressly at the WTO level, not simply through bilateral commitments. A WTO waiver, or a new WTO rule on essential supplies, would have to answer basic questions: when preferential treatment is allowed, which products are covered, how long it may last, and what transparency and review requirements apply. The MC12 pandemic declaration is not a model for partner preference. Its value lies elsewhere: it shows that WTO-level crisis rules should link resilience-building, transparency, and trade facilitation with disciplines on export restrictions.

AOTES therefore identifies both a useful path and a legal risk. It offers valuable tools for resilience-building, coordination, and trade facilitation before shortages turn into export restrictions. Paragraph 17, by contrast, exposes the central legal difficulty: whether a Member that restricts exports to other WTO Members may nevertheless keep a treaty partner supplied. Under current WTO law, that kind of partner-only exemption is hard to defend.

Absent a WTO waiver or new rule, the path is narrow but clear: use AOTES-type arrangements to strengthen resilience in advance, and if a Member does limit exports, administer those limits consistently with WTO non-discrimination, not treaty friendship.

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.  South Africa’s Constitutional Court overturned a Supreme Court of Appeal decision, holding that foreign nationals are not entitled to reapply for asylum after an initial rejection, in a petition filed by two nationals from Burundi.
2. The Supreme Court of South Korea upheld a lower court’s conviction for animal abuse and property damage, clarifying the elements that constituted acts violating the relevant law, and laying down the conditions under which a defense of justification can be raised.
3. The US Supreme Court permitted the State of Alabama to use a congressional map for 2026 elections, despite findings from lower courts that the map discriminates on grounds of race and violated the Voting Rights Act.
4. The Inter-American Court delivered a preliminary judgment on preliminary in Revilla Soto v Venezuela, unanimously dismissing objections to their exercise of jurisdiction, which were raised in relation to Venezuela’s withdrawal from the American Convention on Human Rights. The judgment reinforces the Court’s oversight on political rights, due process, and civil liberties.
5. The ECHR in Tožičková v. the Czech Republic, held that there had been a violation of the right to freedom of expression, and that domestic courts had failed to provide sufficient reasons to justify the applicant’s arrest. The Court found that the arrest, aimed at preventing the applicant from fulfilling her duties as a journalist, did not meet a pressing social need and could not be justified as necessary in a democratic society.
6. The ECHR held inadmissible an application for international protection from a person claiming that Belgium failed to provide accommodation or material assistance as required by law. The Court found that the applicant’s claims were false and amounted to abuse of the right to individual applications.

In the News

1. The US Supreme Court will issue over twenty opinions in the final month of their current term, deciding several cases that may redefine the scope of executive authority amid uncertainty about the President’s responses to their holdings, as well as questions concerning civil liberties and election laws. Significant cases concerns the President’s power to fire executive officials in independent agencies without showing cause, and the rights of transgender athletes.
2. The Council of Europe has released a declaration on how the European Convention on Human Rights applies to cases concerning migration, in response to populist objections as well as some threats to withdraw from the Convention over concerns on migration. The declaration includes agreements that the bar for ‘degrading or inhuman treatment’ under article 3 of the Convention should be applied at a high level, and that a balance should be struck between individual rights and the interests of the public.
3. Brazil’s Senate has rejected one the President’s nomination of Jorge Messias, Brazil’s solicitor-general, to the Supreme Court. This is the first such rejection in 130 years, and marks some political opposition as President Lula prepares to seek re-election for another term.

New Scholarship

1. Mark Juergensmeyer, Religion and Violence: What Everyone Needs to Know (Oxford University Press 2027) (examining questions concerning the relationship between religion and violence, drawing from case studies with militias and extremist groups of different religious to provide an evidence-based introduction to the topic).
2. Derek Alan Woodard-Lehman, ‘Barth, Barmen, and Belhar: The Politics of Reformed Confession‘ 20(1-2) Journal of Reformed Theology 45–70 (2026) (arguing that Christian faith provides a prototype of civic freedom and a pattern for the rule of law, drawing from the Barmen Declaration and Belhar Confession as expressions of Reformed theology, in alignment with Karl Barth’s democratic paradigm).
3. Chris Joseph and Tara Marsden, ‘Gitanyow Climate Test: Intersection of Major Projects, Climate, and Indigenous Reconciliation‘ Climate Law (Advance Articles, 2026) (evaluating the impact of a a climate test formulated by the indigenous Gitanyow people of British Columbia on Canada’s impact assessment law, and arguing that it demonstrates the evolving legal Canadian spheres in which indigenous nations participate to address gaps in colonial lawmaking as well as influence the development of projects).
4. Jan-Melissa Schramm, ‘Human Rights, World Literature, and World Citizenship: From Charles Dickens to Alexis Wright‘ 11(2) Journal of World Literature 149–171 (2026) (arguing that imaginative literature creates a space in which the conflict between national sovereignty and universal human rights can be explored in ways that permit reframing personhood beyond restrictive legal definitions, through a discussion of the works of Charles Dickens, Peter Carey, and Alexis Wright).
5.  Muhammad Asad Latif, ‘Classifying Muslims in Contemporary Europe: Their Identity, Religion and Race in Germany and United Kingdom‘ 33(1) International Journal on Minority and Group Rights 75–103 (2025) (comparing the classification of Muslims as a minority in the UK and Germany, and examining what it means to be Muslim between state classification and self-identification).
6. Adom Getachew, ‘International Interdependence beyond the Family of Nations: Afterword to the Foreword by Susan Marks‘ 36 European Journal of International Law 807–814 (2025) (taking up Susan Marks’ argument that the family in international law in a metaphorical sense contributes to understanding global interconnections, and using anti-colonial and post-colonial perspectives to re-imagine families as associated with dependence, care, and inheritance, shaped by slavery and colonialism).

Calls for Papers and Announcements

1. Florida State University College of Law and Loyola University Chicago School of Law invite abstracts for the Seventeenth Annual Constitutional Law Colloquium at the Florida State University College of Law Campus, USA. Deadline: 19 June 2026.
2. The Legal Aid Society of Lucknow University, India, invites proposals for book chapters for an edited volume titled ‘Justice Beyond Courts – ADR in an Age of Legal Innovation’. Submissions are due by June 20, 2026.
3. Jindal Global Law School, India, invites submissions for a special issue on ‘Artificial Intelligence and Law’ for their journal, the Jindal Global Law Review. Abstracts are due by 30 June 2026.
4. The Geneva Graduate Institute invites abstracts for the Postgraduate Research Conference on the International Law of the Sea, taking place on 30 September 2026. Abstracts are due by 10 June 2026.
5. Researchers and scholars interested in legal issues concerning cyberspace, such as digital constitutionalism and data privacy, are invited to participate on CyJurII.

Elsewhere Online

1. Michael John-Hopkins, Eurovision, Non-Recognition and Bangaranga?! EJIL Talk! (2 June 2026)
2. Julian Arato and Justina Uriburu, Treaty Interpretation in the ICJ’s Opinion on the Right to Strike.  EJIL Talk! (28 May 2026)
3. Oliver Hailes, Denial of Environmental Justice: Would a Bar on Climate Tort Litigation Be Inconsistent with New Zealand’s International Obligations? EJIL Talk! (27 May 2026)
4. Alexia Kapsampeli, Internet Access: Should it be a Human Right? CyJurII Insights (June 2026)

The post What’s New: Week of June 8 appeared first on www.iconnectblog.com.

The majority’s approach to this issue is threefold. First, pronouncements of treaty supervisory bodies are not, in themselves, subsequent practice under VCLT Article 31(3)(b). Article 31(3)(b) requires the agreement of the parties, and a body of independent experts (or a tripartite supervisory architecture) cannot, by its own pronouncement, supply that agreement (para. 83).

Second, supervisory body pronouncements may operate under Article 31(3)(b) derivatively, where they give rise to or refer to State practice that itself establishes agreement (para. 83). The position seems to align with Conclusion 13(3) of the ILC’s 2018 Draft Conclusions on Subsequent Agreements and Subsequent Practice (as per Nolte, Special Rapporteur). Pronouncement and practice are two different things. What engages Article 31(3)(b) is the practice generated by States based on pronouncements, not the pronouncements themselves.

Third, the Court admits supervisory body output as supplementary means under Article 32, treating them as falling within an open-ended reading of that provision. In doing so it extends the “great weight” formula from Ahmadou Sadio Diallo – originally developed for the UN Human Rights Committee – to the ILO supervisory design (paras. 116–119). The Court preserves its Diallo stipulation – that it is not legally required to follow such output. The present comment suggests that the third move is the most interesting of the three.

Diallo concerned the Human Rights Committee, an independent expert body whose composition (all members are in practice lawyers) suggested ascribing weight to its output. The ILO supervisory system – the output of which is dealt with by the Court in this Opinion –is structurally different. The Committee of Experts on the Application of Conventions and Recommendations (CEACR) is to some degree comparable to the HRC. The Committee on Freedom of Association (CFA) is tripartite – composed of representatives of governments, employers, and workers, whose interests are opposed in many of the cases before it. The International Labour Conference is a political organ. Commissions of Inquiry are constituted ad hoc.

The Court seems to justify the extension by reference to convergence (the bodies have, over time, reached substantially the same position, see para. 119) but also function (each performs a monitoring role analogous to that of the HRC under the ICCPR Optional Protocol). The mutatis mutandis qualification (para. 117) is however notable and should inform the transposition of the Court’s statement to other supervisory bodies, whether in the realm of human rights or in other sectors. The Court’s approach is conservative.

The framework applies, with little modification, to other treaty supervisory bodies, in particular in the human rights sector of international law. The UN human rights treaty bodies – the HRC, CESCR, CEDAW, CERD, CRC, CAT, CRPD and the others – produce General Comments, Views in individual communications, Concluding Observations and Statements that the framework now accommodates. None is, in itself, Article 31(3)(b) practice. Each may operate derivatively under that provision where it generates of reflects State practice meeting the threshold of agreement. Each must be regarded as “supplementary means” under Article 32 and be ascribed “great weight” only insofar as there is merit to doing so. Where a treaty body has itself adopted an interpretive methodology that departs from the VCLT approach, the case for ascribing “great weight” to its output is correspondingly weaker  The majority does not address this directly (see, however, para. 118 of the opinion), but its framework does not avoid it either (for one illustration, see Emberland, 23(2) HRLR (2023), on the CRC’s Syrian Camps decisions).

Outside the UN human rights system, the framework may apply, mutatis mutandis, to compliance committees in other treaty regimes, such as the Aarhus Convention Compliance Committee, the Advisory Committee under the Framework Convention for the Protection of National Minorities, and The European Committee of Social Rights. Whether the framework applies in unmodified form to such bodies is, on the face of the Opinion, an open question – they differ in composition, mandate, and the form of their outputs – but the central methodological question is the same, and the analogical extension is available.

The European Court of Human Rights has since Demir and Baykara v. Turkey drawn extensively on UN and ILO supervisory body material in interpreting the ECHR. The Strasbourg Court should be expected to invoke the advisory opinion in defence of its existing practice, but with the methodological refinement of it.

The Opinion does not conclude the conversation. Some of the dissenters individually and forcefully disagree with the majority’s inclusion of treaty body output as VCLT Article 32 “supplementary means”, see in particular Dissenting opinion of Judge Tomka paras. 82–84, Dissenting opinion of Judge Abraham paras. 56–66), Dissenting opinion of Judge Hmoud paras. 46 et seq., and Dissenting opinion of Judge Xue para. 64. Even among the majority there are varying views on the methodological approach taken, see, especially Judge Nolte’s Separate opinion, and Judge Tladi’s Separate opinion. This enables further debate. The next phase should, however, focus less on whether supervisory body output is admissible (it is in principle, but only under VCLT Article 32) and more on the criteria that determine how much weight, if any, particular categories of such output should carry. The ILC’s ongoing project on subsidiary means and the CAHDI work on non-legally binding instruments may supply resources for that phase.

• Hannah Woolaver, Collective self-defence or military action with consent? The legal basis of SADC’s mission in the Democratic Republic of the Congo
• Achille Castrogiovanni, NATO’s ACC and CPC stay-behind networks: Article 2(4), collective self-defence, and democratic control
• Sungcheol Choi, The legal status of the NLL and the right of self-defense against North Korea’s cross-NLL artillery fire
• Faisal Al-A’bbadi & Mohammad Assaf Alsalamat, Reassessing the role of the United Nations Security Council in peaceful conflict resolution: legality, efficacy, and reform
• Victor Iruobe & Ikpenmosa Uhumuavbi, Retaliatory sovereignty: Israel, Iran, and the juridification of existential threat
• Ahmed Elmohtadybellah, Iran’s strike on U.S. forces in Qatar: self-defense or aggression? A doctrinal appraisal under the UN charter and the Rome statute

     

This book provides a comprehensive assessment of general international law and its normative relevance to the international legal order. The relevance of general international law to the international legal order is founded on a concept of the relational normativity of international law. The book demonstrates how relational normativity is an intrinsic feature of international law that characterises it as a legal order. It argues that this is of crucial importance for the sources of international law as well as for normative conflicts between its rules and principles. Making a strong case for positing general international law as the core of international law, the book argues this is a basis of normative unity, an effective remedy for fragmentation, and a useful guide to areas of normative conflicts of special legal regimes. Thus, it offers an analytical lens for understanding how unity and coherence can be maintained within an increasingly complex and specialised international legal landscape.

     

2. Call for Papers: Workshop on Neutrality in Legal Scholarship. Ruhr University Bochum has announced a call for papers for a workshop on the impact of neutrality on research and knowledge production in legal scholarship. The workshop will take place in Bochum on 9 – 10 December 2026 and is designed for early career researchers from various disciplines (law, philosophy, sociology, politics, and science studies). Professor Jean D’Aspremont, Professor Stewart Manley, Professor Vasuki Nesiah, and Professor Mando Rachovitsa will serve as discussants. This workshop is funded by the Volkswagen Foundations, and all travel and accommodation expenses are expected to be covered. Participants are invited to send their abstract (max 500 words) and a 2-page CV to the co-chairs of the workshop, Sissy Katsoni (Spyridoula.Katsoni[at]ruhr-uni-bochum.de) and Julian Hettihewa (jhettih2[at]uni-bonn.de), mentioning ‘Call for Papers: The Impact of Neutrality on Research and Knowledge Production in Legal Scholarship’ in the subject line. For more information see here. 

3. Doctoral Workshop on Sustainability and Law. The Sustainability and Public Law PhDs of Radboud University in Nijmegen (the Netherlands), and the Law and Transformation Programme at the Joachim Herz Doctoral School of Law, Leuphana University of Lüneburg (Germany), are hosting the third round of their Doctoral Workshop on Sustainability and Law in Context on 9 December 2026. At the Workshop, PhD candidates researching one or more aspects of the intersection between sustainability and law will have the opportunity to present their research (around 10 minutes) in moderated thematic panels and engage in discussions with the other participants. Further information can be found here. Interested PhD candidates should submit their applications here by 1 August 2026.

4. Evidence in Human Rights Law: From Technicality to Core Substance? Conference. The Human Rights Law Centre, University of Nottingham is hosting its Annual Human Rights Conference, this year on the topic of ‘Evidence in Human Rights Law: From Technicality to Core Substance?’ Judge Ioannis Ktistakis, Judge of the European Court of Human Rights, will deliver a keynote speech. They will additionally be joined by a range of expert panellists from across academia and practice. Further details on speakers and the programme are available via the link below. This event will take place on 25 June from 15:00-18:30 (BST), with the option to attend in person or online. For more information and registration, see here. 

5. First International Congress on Human Rights: The Inter-American Human Rights System – Structural Challenges and the Way Forward. The Law Faculties of Universidad Panamericana (Guadalajara, Mexico), Ave Maria School of Law, and Abat Oliba CEU are hosting the first edition of the First International Congress on Human Rights, to be held on 17 – 18 September 2026 at Universidad Panamericana Campus Guadalajara, Mexico. The conference will address structural challenges facing the Inter-American Human Rights System across six panels covering: defense of cases and selection of judges and commissioners; control de convencionalidad, subsidiarity and margin of appreciation; the IACtHR and international standards; interpretation of the ACHR; substantive human rights issues; and proposals to strengthen the IAHRS. Four keynote addresses will be delivered by Judge Alberto Borea Odría (IACtHR), former ECtHR Judge Javier Borrego Borrego, former IACHR Commissioner Carlos Bernal Pulido, and IACHR President Edgar Stuardo Ralón Orellana. Sessions will be held in Spanish. Further information and registration are available here. Contact congresosidh {at} gmail(.)com.

On 16 February 2026, the Constitution of Zimbabwe (Amendment No. 3) H.B.I. Bill 2026, CA3, was gazetted for a 90-day public consultation period constitutionally required before parliamentary consideration. Among its 21 amendments, the Bill proposes replacing the direct popular election of the President with selection by a joint sitting of both houses of Parliament. The government’s stated precedents are Botswana and South Africa. Among the concerns the opposition has placed before the public consultation process is the claim that parliamentary selection diminishes the voice of minority communities. In this post, I examine that claim using the Zimbabwe Electoral Commission, ZEC, polling station record for 2018, and find that it does not hold up to empirical scrutiny.

Executive selection systems tend to produce their distributive consequences not through the intentions of candidates but through the rational calculus that governs where political attention, campaign investment, and eventually public resources flow. Burgess, Jedwab, Miguel, Morjaria and Padro i Miquel demonstrated this with road expenditure data across six decades of Kenyan electoral history: districts whose populations aligned with the sitting president received roughly three times the road investment of those that did not (American Economic Review, 105(6), 2015). Van de Walle’s survey of 87 African multiparty elections identifies the same logic as the defining characteristic of African presidentialism: resources follow the arithmetic that produced the executive, and that arithmetic determines which communities receive attention and which do not (Journal of Modern African Studies, 2003).

Clause 3 of CA3 changes that arithmetic. Under a direct popular vote, the rational calculus of a presidential candidate concentrates attention where registered voter populations are large enough to determine the national outcome. Under Clause 3, a presidential aspirant must secure an absolute majority across both Houses. The vote of every MP carries equal weight regardless of the population of the constituency they represent. Binga district’s 69,723 voters are represented by two MPs, Binga North with 33,716 registered voters and Binga South with 36,007. Under Clause 3, each carries one vote equal in weight to the MP from Harare South, whose single constituency holds 76,425 registered voters. The community that was invisible as a district in a national popular contest holds two votes in a selection process where every vote carries equal weight. The structural incentive this produces is not that any single minority community MP becomes uniquely decisive. It is that an aspirant seeking an absolute majority cannot afford to concentrate attention narrowly. The threshold requires breadth, and that breadth is the mechanism through which historically bypassed communities enter the presidential calculus for the first time.

ZEC’s 2018 polling station data establishes what the current mechanism has produced. Binga district, the geographic heartland of the Tonga community, one of Zimbabwe’s 16 constitutionally recognised language groups and a population displaced from the Zambezi River plains by the construction of Kariba Dam in the late 1950s, held 69,723 registered voters in 2018. The national electorate stood at 5,695,706. That is 1.22% of the vote in an election decided by a margin of 313,027. At maximum mobilisation, Binga’s entire registered electorate could contribute 22% of that winning margin: meaningful in a judicial recount, insufficient to determine a national popular outcome.

The rational campaign calculus produced by that arithmetic is confirmed by the itinerary record. Across four consecutive presidential election cycles, 2002, 2008, 2013, and 2018, no ZANU-PF presidential candidate held a primary star rally in Binga. In each cycle, the Matabeleland North event was held in Lupane. The district is not inaccessible: Morgan Tsvangirai held a rally at Binga Rest Lodge in June 2013, confirming the district can be reached when the political calculus justifies the visit. On 19 March 2022, at a by-election rally at Siabuwa High School in Binga, President Mnangagwa was widely reported to have stated: “Since independence in 1980, we did not visit this area under President Mugabe.” The campaign record is not a commentary on the character of successive administrations. Among the structural factors that shaped it, the arithmetic of a direct popular vote stands out: Binga could not deliver a margin that justified the visit.

The ZEC data produces one further finding that the current debate has not engaged. Binga’s registered electorate is 60.46% female, 6.51 percentage points above the national average of 53.96%. Harare Metropolitan sits at 50.78%. The community most structurally invisible to direct presidential campaign arithmetic is simultaneously a community where women constitute a registered voter supermajority. Under Clause 3, the MPs representing those women carry votes no aspirant can discount.

Grindle’s comparative analysis of how political executives shape public resource allocation in developing states, the central argument of Jobs for the Boys (Harvard University Press, 2012), and Burgess et al.’s empirical demonstration that expenditure follows executive selection arithmetic establish that when the incentive structure changes, the allocation pattern follows. For Binga’s two MPs, the structural consequence is direct: a presidential aspirant who must court their votes has, for the first time, an institutional reason to engage the constituency’s infrastructure deficit, healthcare access, and development needs as a matter of executive priority rather than electoral afterthought.

This argument operates on different terrain from the legal debate about Section 328 and the referendum requirement, but it connects to the same constitutional moment. The distinction between Section 95(2)(b), which governs how long a term lasts, and Section 91(2), which limits how long a person may serve, is the legal architecture within which CA3’s minority representation consequence becomes possible: the cycle changes, the two-term ceiling does not, and the parliamentary selection mechanism that results from that combination creates the incentive architecture this piece documents.

The government’s citation of Botswana as a positive precedent requires direct engagement. Botswana has operated a parliamentary selection model since 1966, but the Botswana Democratic Party held an unbroken parliamentary majority from independence to 2024, meaning the president emerged automatically from the dominant party’s internal choice without any requirement to secure support beyond its own caucus. The Basarwa and San communities, roughly 3% of Botswana’s population and dispersed across the Kalahari, have been systematically excluded from political representation under this model, as the 2001 Kamanakao High Court ruling on the Wayeyi paramount chief’s exclusion from the House of Chiefs and the subsequent Balopi Commission process confirm. CA3’s absolute majority threshold creates a different structural condition from Botswana’s automatic majority mechanism. Lijphart’s framework, developed across Patterns of Democracy (Yale University Press, 1999; 2nd ed. 2012) and his 1996 analysis in the American Political Science Review, explains why: territorially concentrated minorities can be protected through federal and territorial arrangements, but geographically dispersed minorities require consensus institutions. In Zimbabwe, the Tonga, Kalanga, Venda, Nambya, Shangani and Khoisan communities hold constitutional language recognition under the 2013 Constitution. But they have neither territorial autonomy nor proportional representation. CA3’s absolute majority threshold is the provision that structurally widens the base of presidential support any aspirant must secure, and it is what distinguishes CA3’s model from Botswana’s.

The opposition’s argument holds that removing the direct presidential vote removes a public signal of minority dissent, or in other words that even a marginal minority vote registers nationally and constitutes meaningful democratic participation. The relationship between electoral mechanism and minority inclusion is structural, not automatic: it depends on what the mechanism incentivises (Norris, Electoral Engineering, Chapter 9, Cambridge University Press, 2004). A signal that registers nationally and produces no change in campaign behaviour or executive attention across four consecutive election cycles is visibility without consequence. A parliamentary vote that an aspirant seeking an absolute majority has a structural reason to court is political weight that the direct presidential arithmetic never assigned. The difference is between 69,723 votes absorbed into a national contest decided elsewhere, and two parliamentary votes that carry equal weight to every other seat in the chamber.

Zimbabwe is choosing between two architectures for how democratic power is distributed across a heterogeneous society. The 2018 polling station data, the four-cycle presidential itinerary record, and the admission at Siabuwa High School on 19 March 2022 document what the first architecture has produced. Whether Clause 3’s logic is realised in practice depends on whether Zimbabwe’s Parliament retains the genuine political competition that prevents any single party from bypassing the breadth the absolute majority threshold demands. But the arithmetic of that threshold, and what it requires of any presidential aspirant who wants to govern, represents the first structural opportunity in Zimbabwe’s post-independence electoral history for communities like Binga to move from the margin of the presidential calculus to its centre.

Suggested citation: Tafadzwa Wakatama, Presidential Selection and Zimbabwe’s Minority Communities, Int’l J. Const. L. Blog, June 5, 2026, at http://www.iconnectblog.com/presidential-selection-and-zimbabwes-minority-communities/

The post Presidential Selection and Zimbabwe’s Minority Communities appeared first on www.iconnectblog.com.

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Johanna Fröhlich and Vicente Benitez, Co-Directors of Chapter Development, The International Society of Public Law

The International Society of Public Law (ICON-S) has received a proposal from Raffaela Kunz, Daniel Moeckli and Odile Ammann to create a Swiss chapter of ICON-S.

Please write to icons.chapterdevelopment@gmail.com and to swiss-chapter@icon-s.org; raffaela.kunz@ius.uzh.ch; daniel.moeckli@ius.uzh.ch; odile.ammann@unil.ch if you are a public law scholar from Switzerland, or if your research is connected to the Swiss public law, and you would like to participate in the formation of this proposed chapter. Please also be in touch if you know of anyone from the public law academy in Switzerland who should be aware of this proposal. Deadline: 20 June 2026

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The post ICON-S Chapter Proposal | Switzerland | Invitation for Comment and Participation appeared first on www.iconnectblog.com.