The Thinking Global Team bring to you the highlights from Day 3 of the British International Studies Association (BISA) Conference 2026 in Brighton.]]>
The Thinking Global Team bring to you the highlights from Day 3 of the British International Studies Association (BISA) Conference 2026 in Brighton.]]>
In this weekly feature, I-CONnect publishes a curated reading list of developments in public law. “Developments” may include a selection of links to news, high court decisions, new or recent scholarly books and articles, and blog posts from around the public law blogosphere.
To submit relevant developments for our weekly feature on “What’s New in Public Law,” please email iconnecteditors@gmail.com
Developments in Constitutional Courts
In the News
New Scholarship
Calls for Papers and Announcements
Elsewhere Online
The post What’s New: Week of 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.
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The latest issue of the Journal on the Use of Force and International Law (Vol. 13, no. 1, 2026) is out. Contents include:
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-
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.
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Samir Puri's analysis is grounded historically, treats non-Western actors as agents rather than objects, and insists that order is contested rather than collapsing.]]>
The key question is not whether Iran and the US disagree, but whether both sides are willing to define rules for managing those disagreements.]]>
The Thinking Global Team bring to you the highlights from Day 2 of the British International Studies Association (BISA) Conference 2026 in Brighton.]]>
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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Mark Ellis, Executive Director of the International Bar Association, discusses his efforts for Ukraine, the increased use of universal jurisdiction, and the challenges for international law today.]]>
The latest issue of International Organization (Vol. 80, no. 2, Spring 2026) is out. Contents include: 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
Other matters may be raised directly with icons.chapterdevelopment@gmail.com.
Thank you for your interest in and support for ICON-S.
The post ICON-S Chapter Proposal | Switzerland | Invitation for Comment and Participation appeared first on www.iconnectblog.com.
]]>While a need for legal assistance for states certainly exists in ISDS, this blog post questions whether the current approach, largely mirroring the Advisory Center for WTO Law (ACWL) in both activities and budget, will lead to a successful transplantation of the ACWL model. Investment Arbitrations are often more costly and complex than WTO Dispute Settlement, and the Advisory Centre will be established in a different, more developed institutional context. As such, current proposals for the Advisory Centre may require adaptation and a significant budget expansion to sustainably respond to the demand it is likely to face.
The Advisory Centre aims to address the longstanding concern that LDCs and Developing States face challenges in defending themselves effectively in ISDS. Indeed, while all major investment arbitration rules require formal equal treatment of the disputing parties, little accommodation is made for differences in institutional capacity, experience, and funds among states. A case in point is paragraph 76 of the annulment application in De Sutter v. Madagascar, where counsel highlighted the asymmetry in capacity between the claimant’s legal team and the state’s sole counsel, who, on top of this, was replaced midway through the arbitration.
As noted above, the Advisory Centre closely resembles the ACWL, which has provided technical and legal assistance in WTO Dispute Settlement since 2001. As declared by the Dutch Foreign Minister at the signing of its Statute, the ACWL functions to promote “the principle of effective access to justice, in addition to formal equality before the law”. The institution has been enviably successful, and replicating such success in ISDS would be appreciated by many. However, adapting the ACWL model to ISDS may require changes not currently present in existing proposals.
A first issue concerns the duplication of effort in technical assistance. Whereas the technical assistance and legal opinions provided by the ACWL filled a gap in the institutional landscape, established only six years after the entry into force of the WTO Agreement, the Advisory Centre will be established in a more developed institutional landscape. As such, its proposed technical assistance and capacity building activities, as described under Article 6 of its statute, risk duplicating those of other, more mature organisations. Such duplication is especially unfortunate given that funding for international organisations is increasingly scarce, and a warning in this regard can be found in another blog post and submissions to UNCITRAL by UNCTAD and other organisations active in this area.
The Advisory Centre’s potential added value lies instead in the legal services it may offer to states, as set out in Article 7 of its Statute. However, the proposed services under Article 7 face another issue: the budget for the Advisory Centre is expected to stand at just under USD 5 million. While this amount equals the ACWL’s current budget, there are multiple reasons why it may need to increase significantly to meet the urgent demand for accessible legal assistance in ISDS.
Firstly, when compared to WTO Dispute Settlement, ISDS is significantly more costly. While literature on the cost of private counsel in disputes is scarce, a 2014 column indicates a range of USD 250,000 to 750,000 for WTO disputes. In contrast, a 2021 book chapter estimates that the cost per investment arbitration is around USD 4 million. While some differences may be due to higher billing rates, the higher cost is largely attributable to the lengthier and more procedurally complex nature of ISDS. The Advisory Centre must accommodate these factors.
Considering the above, the Centre’s expected capacity appears optimistic. The most recent UNCITRAL document indicates that eight legal officers would support up to ten concurrent proceedings, if the arbitrations are at various stages of completion. By comparison, the ACWL’s nine to twelve counsel, reduced in recent years, assisted with an average of sixteen concurrent cases. While the cost of counsel replaced is at least five times that seen in WTO Dispute Settlement, a similar caseload is expected to be handled. Furthermore, the 2025 report on the ACWL’s operations excludes cases pending before the currently blocked appellate body, or ‘appeals into the void’, and revises down the number of active cases to five. The inclusion of these cases in earlier years suggests that the ACWL’s average active caseload in recent years is likely lower. It should be noted that counsel at the ACWL is not exclusively dedicated to supporting disputes; for example, they also write legal opinions and provide training. While a different allocation of tasks at the Advisory Centre may increase capacity to handle cases, the current expectation may require further consideration.
Secondly, even if the expected caseload is realised, another issue arises. The ACWL’s success lies not only in the quality of its services but also in its effective response to demand from capacity-constrained states. During the first twenty years of its operation, the ACWL supported an average of three new cases per annum. With ten to fifteen panels composed each year, it was active in 19% of all WTO disputes, supporting a significant share of disputing parties.
In ISDS, one currently sees a much higher number of 55 to 80 investment arbitrations initiated each year. Amongst these, 61% involve an LDC or Developing Country. While states such as Argentina have independently developed in-house ISDS expertise, these numbers are likely to increase demand for assistance. However, the average 3.5-year duration per arbitration means the ten concurrent cases translate to a capacity to accept two to three new cases per year, on average. UNCTAD data suggest that LDCs alone would already exhaust this capacity, facing 43 arbitrations between 2013 and 2023. To make matters worse, a proposal to bolster the Advisory Centre’s capacity through external counsel did not receive support during WG III discussions. More subtle issues remain, too: while LDCs are to be given priority access, it is equally stated that cases will be taken on a first-come, first-served basis, as resources allow. How these two mechanisms will coexist is unclear, as requests for assistance are unlikely to arrive simultaneously.
The limited capacity is especially problematic given the Advisory Centre’s proposed funding structure. The ACWL is an organisation primarily funded by twelve developed states, none of which are entitled to use its services. Instead, these countries support the ACWL as it seeks to promote beneficiary governments’ legal capacity and, thereby, the participation of developing WTO Members in the WTO, including in dispute settlement. As such, it can support LDCs for a capped fee of just under 24,000 CHF (around USD 30,400) for consultations and first-instance panel proceedings. Furthermore, the WTO does not charge institutional fees, and the ACWL has established a Technical Expertise Fund, financed by voluntary contributions from Denmark, the Netherlands, and Norway, to remunerate experts.
Current budget drafts suggest that the Advisory Centre will be funded in significant part by developing states, in return for access to its services. Yet, with LDCs given priority, access to the Centre’s legal assistance is far from certain. Turning away a developing state that contributes significantly to the Centre’s budget may soon compromise the institution’s financial viability.
On top of this, it is stated that fees charged by the Centre should become the main source of income once operations stabilise (para 44). Current proposals for such fees include a retainer fee of USD 5,000 and an hourly rate of USD 250—550 for counsel services, significantly higher than the ACWL. No provisions are currently in place to cover institutional fees, arbitrator fees, or expert costs. While such income may lower membership fees, the addition of a yearly membership fee, a reduced yet uncapped fee for Article 7 services, and the absence of assistance with other arbitration-related costs may erode the relative advantage of joining the Advisory Centre vis-à-vis engaging a traditional law firm.
Creating a shared legal service makes perfect sense for ISDS, as the limited incidence of claims precludes the development of costly in-house expertise for many states. However, the current budget and financing proposals may not enable the institution to respond effectively to the pressing issue of access to effective and affordable counsel. More broadly, one wonders why a budget equal to the average cost of a single arbitration was chosen to support ten arbitrations concurrently, while also providing training and other services. At the same time, one should recognise that the budget and financing of the ACWL have changed significantly over the years, and that the current draft statute of the Advisory Centre is an important step in the right direction.
While an institution such as the Advisory Centre may hold the key to reducing structural inequality between states with different institutional capacities in ISDS, its budget would benefit from enlargement now, or at least from concrete discussions on how to finance a significant enlargement as its membership expands. With the Statute subject to final discussions at the 59th session of UNCITRAL beginning in late June, before adoption later this year—time may, however, be running short.
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The Thinking Global Team bring to you the highlights from Day 1 of the British International Studies Association (BISA) Conference 2026 in Brighton.]]>
The inaugural issue of the African Review of International Law (Inaugural Issue, June 2026) is out. Contents include:
Brent J. Steele discusses ontological security studies, US foreign policy, his critiques of the Just War Tradition, and historical International Relations perspectives.]]>
“And if one day or one night a demon were to slip into your loneliest solitude and say to you: This life, just as you are living it now and as you have lived it, you must live it once more and countless times more.” Nietzsche described here the image of eternal recurrence as a moment of suspension in which everything that was, is, and will return indefinitely, without novelty, without redemption, without escape. For those who lived without regret, eternal return would be the gateway to happiness; for all others, a condemnation to see themselves as “dust of dust.”
In Brazilian and Latin American legal thought, the eternal return manifests itself as a doctrinal compulsion toward the new, toward the emancipation promised by words full of passion, and toward the belief that intellectual elites must guide mere mortals through the labyrinths of ordinary life. Thus arises the need to reinvent, with increasing speed, instruments capable of overcoming the shortcomings of local politics through normative transcendence. The doors to emancipation have already been promised by deliberation, values, and by neoconstitutionalism. Today, the role of normative emancipator is assumed by conventionality control (CC) — the obligation imposed on domestic judges to set aside national law that conflicts with the American Convention on Human Rights or with decisions of the Inter-American Court of Human Rights (IACtHR). This post argues that CC lacks the theoretical and normative foundations its proponents claim that is possesses, and that Brazil’s latest move to codify it (through Recommendation 168/2026) is the latest chapter in a recurring cycle without a solid legal grounding.
As just mentioned, the most explicit expression of this cycle is Recommendation 168/2026, which declares that “every national judge is also an inter-American judge” and treats consideration of Inter-American Court decisions as requiring “mandatory compliance.” This is the latest attempt to impose the Inter-American Court upon domestic legal orders as the ultimate arbiter of rights in the Americas. Two main arguments advanced by its Brazilian defenders will be examined here.
The argument in favor of CC is presented in three points. The first stems from ratification: Brazil exercised sovereignty by acceding to the Inter-American Convention, and fulfilling the obligations arising from it would therefore be an expression of that same sovereignty, not its negation. This reasoning hides a logical leap.
It is argued that recognizing the Inter-American Court’s jurisdiction would allow these claims, for the State must act in accordance with international treaties. But even if one accepts that international obligations can limit sovereignty, no conclusion can be drawn from this regarding which system of normative control should operate domestically. Limited sovereignty and conventionality control are entirely distinct matters, for a State that resists conventional obligations can be pressured through instruments unrelated to the invalidity of domestic norms: diplomatic sanctions, economic embargoes, political pressure, and exclusion from international organizations. Article 9 of the OAS Charter expressly provides for the suspension of member states, a mechanism already applied to Honduras in 2009. Venezuela denounced the American Convention on Human Rights in 2012 and remained subject to the obligations of the OAS Charter, answering to the Inter-American Commission, not the Court. These examples show that international law already has mechanisms to respond to non-compliance. None of them operates through the invalidation of domestic law. The confusion between international sanctions and the power to review domestic law is the central fallacy.
The second argument concerns the theoretical status of the monism-dualism distinction. For defenders of CC, international human rights law and domestic law are inseparable, such that resisting CC would amount to defending an archaic “dualism,” supposedly already overcome by the humanization of international law. This reconstruction is mistaken. For Kelsen, the monism-dualism debate was not a symmetrical choice. Dualism was, in his view, a logical impossibility, since two normative systems cannot coexist as independent orders regulating the same subjects without generating insoluble contradictions. What remained was the choice between two forms of monism — State and international — depending on factors external to law. Monism was therefore an epistemological thesis regarding the necessity of a unitary perspective for law to be cognizable as a science. It was never a claim regarding the automatic hierarchy of international law over domestic law in concrete disputes.
From this follows the most persistent confusion in this debate: one cannot equate the primacy of international law at the inter-state level — which no one disputes — with direct primacy over domestic law at the domestic level, which is an entirely distinct issue. No dualist would deny that before international courts, international law prevails over any domestic provision. What is denied is that this inter-state primacy automatically becomes a rule of application by national judges, independent of any mediation by domestic law itself. This mediation is precisely the core of the dualist position and it has been repeatedly confirmed by the jurisprudence of the International Court of Justice, which has consistently treated domestic law as a matter of fact, rather than as norms to be directly nullified by international law.
The argument of CC’s proponents, therefore, falls foul of a logical leap: they infer from an epistemological thesis on the unity of law a normative conclusion regarding the hierarchy of sources applicable by domestic bodies. That law should be conceived as a coherent system does not imply that any international norm produces direct effects at the domestic level by its own force. This proposition depends on conditions — constitutional, legislative, and jurisprudential — that vary from state to state and are provided exclusively by the domestic legal system itself. Without this, the theory of conventionality control hangs in a vacuum, like a ghost trapped in the cycle of eternal return.
The argument here shifts to jurisdiction: it is no longer merely a matter of demonstrating that CC is the correct mode of control, but of showing that the application thereof constitutes a functional duty of specific State bodies. It is argued that this obligation extends beyond judges to any public authority, including administrative officials, who should conduct a conventionality review ex officio in every decision that contravenes the norms of the American Convention or the IACtHR jurisprudence. This argument presupposes that the creation of new control instruments would strengthen rights protection. What occurs here is a double reversal: first, because those who speak of control must question the basis for its use before reaching conclusions about its application; second, because a control technique is a formal instrument that can be used both to protect and to violate rights.
Every norm establishing a right or a duty must be grounded in a norm that authorizes the exercise of this power. Norms that authorize the exercise of control also share this nature: by authorizing an authority to “undo” another norm, they redistribute rights stemming from that exercise. “Negative legislation” is, therefore, first and foremost, stil legislation, and one cannot enact legislation without an authorizing provision. Due to that fact, proponents of CC seek to find a normative authorization in three sets of norms.
The first is found in Articles 1 and 2 of the IACHR. However, Article 2 provides that States must adopt the necessary measures “in accordance with the constitutional norms” of each State, which means that the adaptation of domestic law to the Convention must occur through mechanisms provided by the domestic legal system itself, not by the decision of agents whom the legal system has not empowered to perform this task.
The second is found in Articles 26 and 27 of the Vienna Convention on the Law of Treaties. These provisions however merely state that treaties must be performed in good faith and cannot be breached on grounds of conflict with domestic law — but do not create a special normative hierarchy or grant domestic bodies authority to disapply norms.
The third is a 1975 decision of the French Constitutional Council. But that comparison is inappropriate: under French law, the 1958 Constitution already conferred supra-legal status on treaties, the model of review was exclusively preventive, and treaties were necessarily constitutional. None of these conditions exists in Brazil. Importing the French reasoning without importing its underlying assumptions is an error in comparative law, not a legal argument.
Resorting to the “pro persona” principle as an autonomous basis for conventionality review does not resolve the problem either; it exacerbates it. This principle finds no express normative basis in any binding international human rights treaty. Its formulation is doctrinal and jurisprudential, and therefore incapable of creating powers that do not exist as well as incapable of compensating for the absence of a normative basis for review. Jurisdiction cannot be presumed nor derived from indeterminate principles: it must be provided for in a clear and explicit rule of recognition.
Even if the “pro persona” principle were accepted as a valid guideline, it cannot resolve the fundamental question in any conflict of rights: who should be protected? The principle protects “the person” but remains silent on which person should be the beneficiary when two rights-holders conflict. Arguing that control must be grounded in “pro persona” is tantamount to saying that whoever has the right must win, a circular argument that leads us nowhere.
The time of eternal return is circular and infinite. In it, everything always returns the same, with the same form, the same weight, and the same promise that, this time, it will be different. Human life and democracy, on the contrary, are linear and finite. In democratic politics, every moment spent in idle doctrinal cycles is an irrecoverably loss in relation to the real work of defining rights, building institutions, and holding power accountable.
Trapped in an endless cycle of grand normative promises, those who continue to defend CC fail to realize that each turn irreversibly diverts democratic energy from the substantive political and legislative work through which rights are actually defined, protected, and made enforceable. Without theoretical or normative foundations, what remains is repetitive compulsion, reaffirmed by inadequate instruments — administrative Resolutions and Recommendations — and by a magical instrument that promises to resolve through normative means what democratic politics has failed to resolve through debate, conflict, and agreement. The real problems of democracy are not resolved through the creative jurisprudence of courts that proclaim themselves the ultimate interpreters of human rights. They are resolved at the concrete level of institutions, jurisdictional rules, deliberative democracy, and decisions that can be challenged, reviewed, and replaced by elected representatives before their citizens.
The curse of eternal return is broken only when one abandons the enchanted circle and returns to the questions that both returns analyzed here persistently sidestep: what is the content of rights? Who has the authority to define these? By what procedure? With what limits? These questions are dry and technical. They lack the brilliance of redemptive formulas or the appeal of emancipatory promises. But they are the only ones that a real, finite, and linear democracy can answer. A democracy that delegates to supranational courts the authority to define the content of rights, the scope of jurisdiction, and the limits of political power has not resolved its problems — it has outsourced them. That is not emancipation. It is abdication.
Suggested citation: Lucas Catib de Laurentiis, The Eternal Return of Conventionality Control in the Americas, Int’l J. Const. L. Blog, June 3, 2026, at: http://www.iconnectblog.com/the-eternal-return-of-conventionality-control-in-the-americas/
[1] PhD and LL.M. in Constitutional Law from the University of São Paulo (USP), with research appointments at the Albert-Ludwigs-Universität Freiburg and the Max Planck Institute for the Study of Crime, Security and Law. OrcID: https://orcid.org/0000-0001-5596-6695.
The post The Eternal Return of Conventionality Control in the Americas appeared first on www.iconnectblog.com.
]]>Despite some causes for disagreements seeming circumstantial, the protracted inability of the states parties to reach consensus, illustrated by the failure of the 11th Review Conference to produce an outcome document, shows deeply rooted structural tensions permeating the NPT regime as a whole. The divisions that led to the inability to reach an outcome document are, for the most part, not new, only exacerbated. This post analyses how current contextual tensions take place against a background of underlying divisions that have been deeply embedded in the NPT system.
A Multicausal Failure to Reach an Outcome Document
As emphasised by the President of the Review Conference, Ambassador Do Hung Viet, the failure to reach an outcome document was not caused by a single state or group of states, but rather by the substantial absence of consensus on several key points which would have led one state or another to block consensus if an outcome document had formally been submitted for adoption. The deep divisions among the states parties are particularly apparent in the statements they made during the closing plenary meeting.
The group of the Non-aligned states parties to the NPT, the Association of Southeast Asian Nations, the Arab group, the African group, and the New Agenda Coalition as well as several individual states, expressed in various forms deep concerns over the lack of progress on nuclear disarmament under Article VI of the NPT and over the reluctance of nuclear-weapon states (NWS) to recognise themselves bound by the lists of measures included in the final documents of the 1995, 2000 and 2010 Review Conferences. For these states, the weakness of the language on disarmament contained in the final version of the draft outcome document was a serious obstacle to consensus. This phrasing of the latest version of the outcome document was, however, in turn caused by the opposition of the nuclear-weapon states to any stronger affirmation of commitments on this point.
Similarly, a number of states, in particular the United States, the United Kingdom, Australia, Canada, as well as the European Union member states, expressed dissatisfaction over the inability to reach an agreement on a wording strongly condemning Iran’s violations of its safeguards agreements. They were joined by Japan in condemning the absence of mention of Russia’s war against Ukraine, its nuclear threats and its seizure of Zaporizhzhia Nuclear Power Plant, and of the Democratic People’s Republic of Korea’s (DPRK) continuing nuclear and missile programs, a point also mentioned by the Republic of Korea as an obstacle to consensus. In turn, the absence of mention of the situation in the DPRK and in Ukraine was caused in particular by the opposition of Russia to any such mention. As for the situation in Iran, any consensus on highlighting its violations of its safeguard agreement would in any case have been blocked by the opposition of Iran itself.
Thus, the causes for the failure to reach an outcome document were many and the states parties appear highly divided. This polarisation, however, is not new and was already at the heart of the failure of the previous Review Conferences to reach outcome documents.
Longstanding Issues Left Unsolved
The disagreements formulated during the 11th Review Conference express deeper divergences over the NPT regime as a whole and especially over the balance of rights and obligations for the different categories of states, NWS on the one hand, and non-nuclear-weapon states (NNWS) on the other. This disagreement is particularly reflected in polarised interpretations of Article VI of the Treaty. This article reads: “Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control.”
This article is the only inclusion of obligations regarding nuclear disarmament in the core of the Treaty and is therefore the sole basis for NWS disarmament obligations. States, however, have always interpreted this article in different ways, those in favour of the complete elimination of nuclear weapons interpreting it in a strong way, seeing ‘disarmament’ as the actual complete elimination of nuclear weapons, and those in favour of nuclear deterrence interpreting it in a much weaker way, seeing ‘disarmament’ broadly as a process aiming at reducing the number of nuclear weapons without necessarily leading to their elimination, or putting this aim so far in the future it has no impact on the present.
At present, both interpretations point to a lack of progress on nuclear disarmament, due to the collapse of arms control regimes and to the resurgence of a nuclear arms race. However, it would be completely possible for the NWS to restore arms control without further committing to the actual elimination of nuclear weapons. The return to arms control would allow the containment of the nuclear arms race, and the restoration of strategic stability, in a world that would remain nuclear armed. Discussions on arms control are indeed probable as they will appear to be the only way forward to avoid a collapse into nuclear war.
The return to arms control and strategic stability, however, would not, by itself, solve the underlying issue of the continuation of possession of nuclear weapons by NWS, and the frustrations of a number of NNWS at the lack of progress on disarmament. Arms control has indeed existed in the past without leading in any way to the complete elimination of nuclear weapons.
Whereas the need for some sort of avoidance of an unchecked nuclear arms race seems to be widely agreed upon, the NWS have always proven very reluctant to accept interpretations of the Treaty that would meaningfully bind them to take action towards the elimination of nuclear weapons. For example, the lists of measures included in the outcome documents of the 1995, 2000 and 2010 Review Conferences are not considered to be legally binding by the NWS and their allies, which means that they do not consider their lack of progress on these measures to constitute, in itself, proof of non-compliance with Article VI.
This situation creates a lot of frustration among numerous NNWS which consider that the so-called “grand bargain” of the NPT, by which NNWS renounced nuclear weapons in exchange for a protection of their right to the benefits of peaceful nuclear energy and the commitment of NWS to eliminate their nuclear weapons, is not being fulfilled. These tensions date back to the very negotiation and adoption of the Treaty and have remained unsolved ever since.
Conclusion: What Future for the NPT?
As has become usual in the last 15 years, the question of the future of the NPT system keeps being asked. If it remains to be seen whether the regime will eventually collapse or if it will keep standing despite the tensions it faces, it should be noted that most of the states parties reiterated their attachment to it, in spite of the conflicts and the disagreements. It seems that no state considers that it would really benefit from a collapse of the regime as a whole. Despite the disagreements and the dissatisfactions, especially among the NNWS that are not part of nuclear alliances, the NPT has helped prevent further nuclear proliferation which would have been a source of instability and insecurity for most states.
In his last address to the Conference, Ambassador Viet warned that he was “increasingly convinced that the real threat lies not in continuing to drive in circles, but in reaching a dead end”. Of course, the collapse of the regime remains a possibility, in the event of cascading nuclear proliferation, or of nuclear war. But, as long as the NWS do not overturn the status quo, for example, by using a nuclear weapon or by helping new states to develop nuclear weapons, the balance of power seems, for the time being, so unequal that it is hard to imagine any change in the situation by which they would agree to genuinely commit to obligations leading to the actual and foreseeable elimination of nuclear weapons. It is thus highly possible that the regime will indeed keep on running in circles for a long time.
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There is nowadays no dispute in human rights doctrine over whether rights entail positive duties on the part of the state at the level of principle. But there has been surprisingly little academic commentary devoted to the question of whether there are, or should be, limits placed on how far those obligations extend. Similarly, there has been little scholarly attention paid to the question of how causation can be reasonably attributed in the context of violations of positive obligations. And there are very few sociological explanations provided as to why positive human rights obligations appear to be expanding without principled limits in the first place.
This volume assembles the work of a range of leading scholars in international human rights law to fill these gaps in the literature. Each of its 11 substantive chapters addresses an aspect of positive obligations with a particular focus on issues concerning limits. Taken together, they provide the first serious attempt to grapple critically with the subject of the limits, causality and scope of positive obligations theoretically and doctrinally. This makes the book essential reading for scholars of human rights law.
The ebook editions of this book are available open access.
As states and private actors expand their activities in outer space, the international legal framework governing this domain risks extending longstanding structures of global inequality beyond Earth. This article examines how international space law, shaped by a broader disciplinary pattern of reactive legal development, is poised to reproduce terrestrial disparities in the extraterrestrial realm. Drawing on parallels across international legal regimes, it demonstrates how reactive governance often disadvantages less powerful actors through various interlocking mechanisms: transforming early movers' advantages into legal prescriptions; enabling unilateral norm-setting amid international legal voids; shifting environmental burdens onto latecomers; sidelining equity concerns during crisis-driven lawmaking; and discounting foreseeable-yet-distant risks disproportionately borne by vulnerable populations. By tracing these distributive dynamics, the article underscores the need and possibility for more proactive alternatives in space governance. Though the window for action is narrowing, space law still retains enough plasticity to be reoriented before current inequalities become legally entrenched.
On 15 May 2026, sitting alongside Justice Bagchi, the Chief Justice of India described a category of citizens from the bench. Young people who are unemployed, he said, turn to journalism, social media, Right to Information (RTI) activism, and other forms of civic engagement. He called them “parasites” and “youngsters like cockroaches” who attack the system. The remarks came during the dismissal of a lawyer’s petition concerning senior advocate designation (a mark of distinction conferred by the Court) broadly akin to the status of Queen’s Counsel in the United Kingdom.
One might file this as a lapse of judicial temperament, regrettable but not significant. That reading is too comfortable. The remarks are worth dwelling on not just because of their rudeness but because of their contextual incoherence. The institution that spoke these remarks spent five decades constructing, through Indian constitutional law, the precise category of citizen it now derides. The Supreme Court of India built a watchdog citizenry, deliberately as an instrument of its own constitutional project. To now call those citizens parasites risks disowning its own authorship.
The larger point is not unique to India. Any apex court that judicially constructs the mechanisms of its own accountability faces a structural hazard: it can hold its creations in one of two postures. On the first, which I will call the constitutive posture, the watchdog citizen is part of the constitutional order itself, owed engagement as of right because the order does not function without that scrutiny. On the second, the proprietary posture, the same citizen is the beneficiary of a discretion the Court exercised and may withdraw, tolerated rather than owed. The drift from the first to the second is quieter, not necessarily announced in a judgment, and easy to miss until a sentence from the bench makes it audible.
The Indian Court’s role as architect rather than passive interpreter is visible across three doctrinal lines.
The first is the right to information. Prior to any statute, the Supreme Court located a right to know in Article 19(1)(a) of the Constitution, the guarantee of free expression. In State of Uttar Pradesh v Raj Narain (1975), Justice Mathew held that in a system of responsible government the people have a right to know every public act of their public functionaries. S.P. Gupta v Union of India (1981) extended this to the conduct of state institutions, treating open government as a direct emanation of the right to know. The line ran through the disclosure cases on electoral candidates and culminated, as recently as the 2024 Electoral Bonds judgment, in the Court recognising an inherent constitutional value in the citizen’s informed participation. The Right to Information Act of 2005 was Parliament catching up with a right the judiciary had already announced.
The second is Public Interest Litigation (PIL), a judicial invention and a self-conscious one. In S.P. Gupta and the cases around it, the Court dismantled the traditional rule of standing, holding that any member of the public acting in good faith could move the Court on behalf of those too poor or disabled to do so themselves. An inflexible insistence on standing, Justice Bhagwati warned, would reduce constitutional rights to a teasing illusion. The Court went further and created epistolary jurisdiction: a letter from an activist could be treated as a constitutional petition. The express purpose, in the Court’s own words, was to let citizens police the corridors of power.
The third is the constitutional status of a critical press. From Romesh Thappar v State of Madras (1950) onward, the Court held free expression and a free press to be the foundation of democratic organisation. In Indian Express Newspapers v Union of India (1984) it put the point candidly: newspapers very often carry material not agreeable to governments and other authorities, and that is precisely their constitutional purpose.
Read together, these three lines describe a single design. The RTI applicant, the PIL petitioner, the journalist who publishes the unpalatable: each is a juridical creature of the Indian Supreme Court, called into constitutional being to do work the Court wanted done. They are not external irritants to the system. They are load-bearing elements the Court itself installed.
This is why the cockroach remarks cannot be absorbed as ordinary judicial bad temper. The objection is not that a judge was harsh. It is that the institution delegitimised, in a single sentence, the constitutional actors it spent fifty years legitimising, without overruling a line of the doctrine that created them. The constitutional doctrine still stands, is taught, is cited, and continues to be the formal law.
However, the statutory architecture has been weakened around it: the 2019 amendment to the Right to Information Act replaced the statutorily protected tenure of Information Commissioners and removed their salary parity with the Election Commission, leaving their service conditions for the executive to prescribe. But that erosion was Parliament’s work. What the remarks reveal is something the doctrine alone cannot show. It is a shift in the institution’s posture toward its own handiwork.
There is, to be fair, a genuine and longstanding judicial anxiety about abuse. The Court itself coined the phrase “publicity interest litigation”, and benches including the present Chief Justice have used it since to dismiss frivolous petitions. But those older cautions were directed at extrinsic abuse, at bad-faith litigants exploiting a good-faith mechanism. The 15 May remarks do something categorically different. They do not say that some petitions are frivolous. They say that the people who bring scrutiny, as a class, defined by their unemployment and their failure to find a place, are parasitic on the system. That is not a critique of misuse. It is something else, entirely.
The shift is best captured through Etienne Mureinik’s well-known distinction, drawn from the South African transition, between a culture of authority and a culture of justification: a constitutional democracy is one in which every exercise of public power must be justified, its legitimacy resting on the cogency of reasons offered rather than the force behind them. The framework is not foreign to Indian constitutional argument. It underpins the case for proportionality made by Jahnavi Sindhu and Vikram Aditya Narayan, and Justice Chandrachud invoked it directly in his Aadhaar dissent. But a culture of justification requires more than that courts give reasons. It requires that power-holders, judges included, treat the demand for justification as legitimate, as something owed rather than suffered. The metaphor of the parasite does the opposite. It codes the person who demands justification as biologically anomalous, something to be expelled rather than answered. That is a grammar of authority, not one of justification.
Across many jurisdictions, apex courts have actively constructed accountability mechanisms through liberalised standing, public interest procedures, reading informational rights into free expression guarantees, extending protection to civil society and the press. The Colombian Constitutional Court did this most expansively, turning the tutela into a fast and almost universally accessible route for citizens to vindicate fundamental rights, to the point that the volume of citizen recourse became itself a measure of the Court’s legitimacy. The South African Constitutional Court built unusually generous standing into the constitutional text and its early jurisprudence, treating wide access as integral to the post-apartheid settlement. These are constitutional achievements. But each carries the same structural hazard. A court that builds the instruments of its own accountability acquires, at the same moment, the authority to claim ownership of them. The Colombian Court has at intervals been described as a sovereign without control, its accessibility generating a caseload that has strained the institution; any such court can come to experience its own openness as a burden. The proprietary posture is already latent: the sense that what the Court extended, the Court may also resent.
What sharpens the hazard in India is the manner of construction. The tutela and the South African standing rules have an anchor in constitutional text; the bench there was building on a written grant. India’s accountability machinery was built almost entirely by judicial fiat, the right to know and the relaxation of standing read into open-textured provisions without an express constitutional mandate. A court that legislated its own accountability mechanisms from the bench has the strongest possible sense of authorship over them, and authorship of that kind is precisely what tempts a court toward ownership. India is therefore not an aberration in the comparative field. It is the case in which the structural temptation is most acute, and the one in which it has been said out loud.
The danger is not that a court will formally overrule its accountability doctrine. Overruling would at least be honest and contestable. The danger is quieter, and it is the one on display in the Indian remarks: the doctrine remains on the books as a kind of monument, while the institution’s lived posture toward it changes underneath.
It might be said that this is not incoherence at all but strategy: a court under political pressure that distances itself from inconvenient allies is behaving rationally, and an institution is not a treatise to be held to the consistency of a single argument. The objection has force, but it does not dissolve the charge. The reason to call this a coherence failure rather than mere prudence is that the Court has not given the doctrine up. It continues to invoke the legitimacy that the right to know, public interest litigation and a protected press confer on it, while withholding the posture toward scrutiny that those same doctrines require. It draws on the credit of its authorship while declining the obligations of it, and that is not a strategy a court can run indefinitely, because the legitimacy it is spending was never the Court’s alone to spend.
This is why judicial rhetoric is a constitutional fact and not a question of manners. When the head of an apex court describes accountability actors as vermin, the statement does work beyond the courtroom: it lowers the political and social cost of treating those actors as vermin. In India, where attacks on RTI users are documented and recurrent, that lowering is not abstract. But the deeper cost is borne by the Court itself. An apex court does not hold its legitimacy outright. Part of it is borrowed from the accountability actors the court protects, from the citizen who can still bring the inconvenient petition and the journalist who can still publish the unpalatable fact, because their continued capacity to act is the standing proof that the constitutional order works. A court that disowns those actors is not only being unkind. It is spending down the very legitimacy that makes its own word authoritative.
The Indian Supreme Court remains free to worry about frivolous litigation and to discipline genuine abuse. What it is not free to do, not without ceasing to be the court its own jurisprudence describes, is to forget that it was the author.
Suggested citation: Eklavya Vasudev, When Apex Courts Disown Their Watchdogs: India, Judicial Accountability, and the Proprietary Turn, Int’l J. Const. L. Blog, June 2, 2026, at: http://www.iconnectblog.com/when-apex-courts-disown-their-watchdogs-india-judicial-accountability-and-the-proprietary-turn/
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In a range of areas, the market is taking control because governments have failed to enforce, verify and protect.]]>
Niharika Pandit discusses reconceptualising power, violence, and resistance by foregrounding liberatory thought from the margins of the Global South.]]>The ICC’s arrest warrants against Netanyahu/Gallant reignited debates over the nature of the Court’s jurisdiction with the focal point called the ‘Oslo Argument’, which contended that the Hague lacked jurisdiction over Israelis because Palestine lacked it under the Oslo Accords. The resulting submissions by amici curiae and parties before the Court, unprecedented in number, constitute a microcosm of contemporary international legal discourse over the ICC’s jurisdiction and therefore warrant close discourse analysis. The analysis offers an internal understanding of the argumentative structure therein and illuminates two systematized discursive regularities. One is the ‘delegation-based approach’, marked by assemblage of reifying and state-centric jurisdictional thinking with atomistic conceptions of the Court and the international order. Another is the ‘non-delegation-based approach’, grounded in a relational and autonomous conception of international jurisdiction with cosmopolitanism. Building on these findings, the concluding section explores possible strategies for lawyers, ranging from either/or choice to interstitial modes of argumentation.
The question is therefore not whether Eurovision should become a court or a sanctions committee. It is whether the language of neutrality remains credible when a cultural platform is used, or appears capable of being used, as a stage for State legitimacy, public diplomacy and the normalisation of situations already under serious international legal scrutiny.
Here, the comparison with Russia is unavoidable, although it should not be made crudely. In February 2022, after Russia’s full-scale invasion of Ukraine, the EBU excluded Russia from that year’s contest, explaining that the inclusion of a Russian entry, “in light of the unprecedented crisis in Ukraine”, would bring the competition into disrepute. Russia’s invasion was a violation of Article 2(4) of the UN Charter. It also ruptured the 1994 Budapest Memorandum’s post-Cold War security assurances, under which Russia, the United Kingdom and the United States had reaffirmed commitments to respect Ukraine’s independence, sovereignty and existing borders, and to refrain from the threat or use of force against Ukraine’s territorial integrity or political independence. The EBU did not purport to adjudicate State responsibility. It made an institutional decision, by reference to its rules, values and reputational integrity.
That matters because the EBU has thereby accepted that participation can become legally and politically charged enough to damage the contest itself. Once that is accepted, neutrality cannot mean simply asking whether the relevant broadcaster is technically eligible. In 2025, after concerns about public voting and coordinated promotion, the EBU adopted new Eurovision voting safeguards for 2026, including clearer rules against disproportionate promotion campaigns, especially those supported by third parties including governments or governmental agencies, and a reduction of the maximum number of votes per payment method from 20 to 10. That was administratively sensible. But it also confirmed the deeper point that Eurovision is not merely a song contest when States, public broadcasters, ministries, diasporas and organised campaigns treat it as a field of public diplomacy and narrative influence operations. Arguably, the relevant campaign logic is not simply persuasion, still less disinformation, but reputational normalisation, i.e. the use of cultural visibility, public affection and institutional belonging to make a contested legal and political situation appear ordinary. Its force lies precisely in its soft power. It does not need to deny legal controversy; it can instead surround that controversy with music, spectacle and shared emotion, making continued participation feel like normal cultural life rather than a choice with legal and political significance.
This is where the law of non-recognition becomes relevant, but only if handled carefully. Article 41(2) of the International Law Commission’s Articles on State Responsibility provides that no State shall recognise as lawful a situation created by a serious breach of a peremptory norm, nor render aid or assistance in maintaining that situation. Contributors to EJIL:Talk! have already explored this duty in relation to Russia, Western sanctions and territorial annexation. However, the contemporary pressure point is its translation into institutional and cultural settings within the global information environment.
In the ICJ’s Namibia Advisory Opinion, the Court held that States were under an obligation not to recognise South Africa’s continued presence in Namibia as lawful, while also preserving a humanitarian/legal-vacuum exception for acts, such as registration of births, deaths and marriages, whose non-recognition would harm the population. The Wall Advisory Opinion then required States not to recognise the illegal situation resulting from construction of the wall in the Occupied Palestinian Territory, and not to render aid or assistance in maintaining it. In its 2024 Advisory Opinion on Israel’s policies and practices in the Occupied Palestinian Territory, including East Jerusalem, the Court went further in relation to Israel’s continued presence, finding it unlawful and identifying obligations of non-recognition and non-assistance for States, and obligations for the United Nations and other international organisations.
Accordingly, the duty of non-recognition does not automatically bind the EBU as though it were a State or an international organisation. Non-recognition is not merely a matter of bilateral diplomacy; it also operates in international and regional institutional settings. But two limits are important. First, the argument here is not that the EBU itself bears the same legal obligations as a State. Those obligations shape the legal and political environment in which States, public authorities, public broadcasters and cultural institutions justify participation, exclusion and neutrality. Secondly, cultural participation is not the same as formal recognition of sovereignty, borders or title to territory. Participation in Eurovision does not, by itself, validate settlements, annexation, occupation or unlawful military operations. Nor has South Africa v Israel produced final findings of genocide. The Court’s provisional measures under the Genocide Convention therefore require care precisely because they are provisional. But to stop there would be too easy. Non-recognition is not concerned only with embassies, flags and formal diplomatic acts. More broadly, it is concerned with whether States and institutions help stabilise and normalise the appearance that an unlawful situation is ordinary, accepted or cost-free.
The apartheid analogy is instructive not because every case is identical, but because it shows how law, sport, culture, and soft power can interact. The Apartheid Convention characterised apartheid as a crime against humanity. The International Convention against Apartheid in Sports required States parties to take measures against sporting contacts with apartheid South Africa. Sporting and cultural exclusion did not by itself end apartheid. But it formed part of a wider international community of pressure that denied the regime the comfort of normality. It helped convert a domestic policy defended by a State into a global legitimacy crisis.
That history should not be invoked lazily. Boycotts can be selective, performative and unfair to artists. They may harden rather than open political positions. They may also reproduce the very simplifications that international law ought to resist. The Namibia exception is therefore important. Non-recognition cannot mean the indiscriminate erasure of people, private life, artists, audiences or civil society. Nor can every cultural event become a miniature Security Council. The better question is institutional and evidential, namely when does participation become connected enough to State policy, propaganda, territorial illegality or the maintenance of an unlawful situation that neutrality itself becomes a form of normalisation?
Eurovision’s recent difficulty lies precisely in that grey zone of institutional entanglement. Israel participates through KAN, the Israeli public broadcaster, not through the Israeli government directly. That distinction matters, and it should not be collapsed. KAN’s editorial independence is itself part of the public-service broadcasting model that the EBU has defended. But the distinction is not conclusive where Eurovision participation becomes entangled with state public diplomacy. In 2025, the controversy was not merely that Israel’s entry attracted strong public support. It was that official state channels, including the Israeli Government Advertising Agency, state social media accounts and Israeli embassies, were reported to have encouraged voters abroad to support Israel’s entry. The EBU’s later rule changes, aimed at disproportionate promotional campaigns supported by governments or governmental agencies, implicitly recognised that this was not an ordinary fan-mobilisation problem. It was a problem about the instrumentalisation of cultural participation by State-linked actors. The point is not that Russia and Israel must be treated as identical legal cases. They are not. Nor is the point that KAN’s conduct is automatically attributable to Israel for all purposes of international responsibility. The claim is narrower, namely once cultural participation is accompanied by public-broadcaster status, governmental amplification, diplomatic mobilisation and reputational campaigning, it becomes difficult for an institution to invoke disrepute, values and neutrality in one case while treating cultural normalisation as legally weightless in another.
A workable standard would not require automatic exclusion, rather it would require reason-giving. The EBU, and comparable sporting and cultural institutions, should ask at least four questions. First, is the relevant State, public broadcaster or official apparatus using participation to legitimise conduct or a situation under serious international legal condemnation? Secondly, would participation risk implying ordinary acceptance of an unlawful situation, contrary to the logic of non-recognition, even if no formal recognition is involved? Thirdly, are there less restrictive measures, such as voting safeguards, limits on official promotion, neutral participants, presentation rules or public reasons, capable of reducing that risk? Fourthly, is the institution applying its standards consistently across friends, adversaries and politically protected States?
This is where boycotts may have legal significance, even when they are not legal sanctions. Ireland, Spain, the Netherlands, Slovenia and Iceland did not determine the international legal status of any situation by staying away. Their absence instead raised a narrower institutional question, namely whether participation, visibility and celebration can be treated as neutral where the relevant State or public broadcaster is operating against the background of serious international legal scrutiny. Boycotts of this kind do not settle legal disputes, and they should not be romanticised. But they can signal that cultural normality is itself part of the terrain on which legal and political legitimacy is contested.
This brings us back to “Bangaranga”. The word may mean nonsense, energy, hope, or all three. Its suggestion that “everything is possible” captures something of Eurovision’s appeal, namely its ability to create a temporary space of spectacle, levity and shared attention. That should not be dismissed. Cultural events can offer respite, connection and joy. The difficulty arises where that same cultural space is asked to carry claims of neutrality while also conferring visibility, prestige or reputational benefit in circumstances of serious legal controversy. The task, then, is not to abandon cultural exchange, but to ask more carefully when participation becomes normalisation, and when neutrality requires reasons rather than silence.
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As a matter of substance, the question before the Court was specific and binary. The existence of the right to strike, both within the ILO system and outside it, has already been the subject of discussion. While the Court’s reasoning, in particular on the rules of treaty interpretation, merits separate treatment, this post addresses the potentially unique nature and effect of the advisory opinion, given that it was rendered pursuant to the jurisdiction conferred on the Court by Article 37(1) of the ILO Constitution.
On 24 October 2023, the International Organisation of Employers (IOE) submitted comments to the ILO Director General. The IOE opposed referring the question regarding the right to strike to the Court. The basis for their opposition was that a request for an advisory opinion made pursuant to Article 37(1) of the ILO Constitution would not resolve the dispute between the ILO’s tripartite constituents as there exists “uncertainty regarding a binding effect of ICJ advisory opinions for the ILO and its constituents”.
Thereafter, in November 2023, during the discussions in the Committee of the Whole at the 349th bis (Special) Session of the Governing Body, the Employers’ group took this position further. The Vice-Chairperson of the Employers’ group stated that her group would not accept any advisory opinion from the Court, irrespective of its content. This position was based on the Employers’ view that advisory opinions “were inherently not binding”. Although the IOE did not repeat these submissions before the Court, its position on the effect of advisory opinions was supported by Australia (Verbatim Record, p. 30).
On the face of it, the position appears uncontroversial – the Court’s advisory opinions are, as a general matter, non-binding. Advisory opinions do not constitute “decision[s]” within the meaning of Article 94(1) of the UN Charter and Article 59 of the Court’s Statute. Indeed, because opinions are not binding, the consent of interested States does not affect the Court’s jurisdiction to render an advisory opinion (see, Interpretation of Peace Treaties, p. 71).
However, in relation to the proceedings regarding the right to strike, the position of the Employers’ group was simplistic. The Governing Body requested the Court to render an opinion “in accordance with Article 37, paragraph 1, of the Constitution of the International Labour Organi[z]ation”. Article 37(1) of the ILO Constitution provides that the questions “shall be referred for decision” to the Court (emphasis added). Therefore, in the words of Roberto Ago, the provision is designed to “pursue a more ambitious aim”, that is, to confer “binding force” to an advisory opinion.
Although it appears incongruous, the ILO Constitution is not alone in purporting to confer such an additional effect on the advisory opinions of the Court. Among others, similar provisions appear in the Convention on the Privileges and Immunities of the UN (Article VIII, Section 30); the Vienna Convention on the Law of Treaties 1986 (Article 66(2)); and the UN Convention against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances (Article 32(3)).
The attribution of binding effects to advisory opinions has historically been the subject of informed doctrinal criticism. As far back as 1980, Guillaume Bacot criticised the propriety of such treaty provisions as they were, in his view, inconsistent with the advisory jurisdiction of the Court, which can only lead to a finding without binding effect. Similarly, Robert Kolb has noted that others have considered such provisions to amount to “legal heresy”, being an abuse of Article 34(1) of the Statute, which confines the access to the Court’s contentious jurisdiction to only States.
Such provisions have principally come to the Court’s attention in the context of review procedures in the statutes of the administrative tribunals of the ILO and the UN, both of which have now been amended to abolish a reference to the Court for a “binding” advisory opinion. In these cases, the Court was careful not to provide a definitive pronouncement on whether such provisions comply with its Statute or if the binding effect of a “decision” could be attributed to an advisory opinion. Nevertheless, the Court concluded such provisions did not bar its ability to render advisory opinions.
The first instance of the Court addressing such provisions was in 1956, in the case concerning Judgments of the Administrative Tribunal of the ILO upon Complaints Made against UNESCO. The proceedings were commenced pursuant to the erstwhile Article XII of the Statute of the ILO’s Administrative Tribunal (ILOAT), which, in the relevant part, provides that the advisory opinion given by the Court “shall be binding”. The Court noted that such effect “goes beyond the scope attributed by the Charter and by the Statute of the Court to an Advisory Opinion”. Nevertheless, the Court was of the view that as the provision does not affect its own functions and procedures, “the fact that the Opinion of the Court is accepted as binding provides no reason why the Request for an Opinion should not be complied with” (at p. 84). These views were reiterated by the Court in 2012, while rendering its final advisory opinion pursuant to Article XII of the ILOAT Statute (at para. 28).
Similar to the Statute of the ILOAT, Article 11(3) of the Statute of the UN Administrative Tribunal also provided that the Court’s advisory opinions rendered pursuant to its review procedure will be given conclusive effect by the UN Secretary-General. The Court addressed this provision for the first time in 1973 in the Application for Review of Judgment No. 158. The Court confirmed that the fact that the opinion given by the Court will have “conclusive effect…does not constitute any obstacle to the Court’s replying to the request for an opinion”. Pertinently, while the Court reiterated that such an effect is beyond the scope attributed to advisory opinions by its Statute, “[i]t results not from the advisory opinion itself but from a provision of an autonomous instrument having the force of law” (at para. 39).
Accordingly, it must be right that while advisory opinions lack binding effect in general, they can be made binding through a treaty provision. In such cases, the binding effect does not derive from the UN Charter or the Statute of the Court but as a “collateral act” contractually agreed between the parties to a treaty.
From the earliest days of the Court’s advisory jurisprudence, it has been clear that there is a distinction between the role played by the Court while exercising advisory jurisdiction, and “the particular effects that parties to an existing dispute may wish to attribute, in their mutual relations, to an advisory opinion of the Court” (Interpretation of Peace Treaties, p. 71). Even the Court’s website recognises that the requesting organs remain “free to decide, as [they see] fit, what effect to give to these opinions”.
As Kolb notes, the attribution of binding effect to advisory opinions is not contrary to the Court’s Statute or Rules. While parties cannot derogate from those texts to reduce their obligations, there is no reason why they should not be entitled to add to their obligations provided that doing so does not conflict with the letter and spirit of the texts. No such conflict exists in the case of treaty provisions providing binding effect to opinions.
These principles apply a fortiori in the context of the ILO. The ILO’s unique tripartite structure includes Governments, Workers and Employers. Yet, unlike the ILO and its member States, Workers’ and Employers’ groups lack international legal personality. Article 37(1) of the ILO Constitution provides a dispute resolution mechanism, among other things, to resolve disputes between these tripartite constituents. If it were correct that despite the express reference to a “decision” in the provision, the advisory opinion of the Court would not be binding, the provision would be left meaningless. Unsurprisingly, for this reason, the ILO noted prior to the proceedings relating to the right to strike that the binding nature of the Court’s advisory opinions has been accepted for over a century by all tripartite constituents.
In the proceedings relating to the Right to Strike, the Court was presented with an opportunity to clarify that its opinion puts an end to a long-standing dispute between the ILO’s tripartite constituents. Despite submissions made by Somalia, Indonesia and Norway urging the Court to conclude that its opinion would have binding effect, the Court did not address this issue. Instead, it confined itself to noting, in the context of its discretion, that in submitting the question to it the Governing Body “has made use of one of the options provided for in the constituent instrument of the Organization” (Opinion, para. 36).
And so, the Court has left the textual command of Article 37(1) of the ILO Constitution and the century-long acceptance of the binding nature of decisions issued under it, for another day. Whether the Employers’ group will take this silence to maintain its pre-announced refusal to accept the opinion remains to be seen.
]]>The International Organizations Interest Group (IOIG) of the American Society of International Law (ASIL) and the European Society of International Law (ESIL) are delighted to announce a call for proposals for their biannual virtual workshop of academic works in progress addressing the law or practice of international organizations.
The workshop will provide an opportunity for scholars to receive feedback from their peers and experts in international organizations law. The tentative date to hold the workshop is 15 February 2027, at a time convenient for the largest number of selected authors.
To be considered, please send an abstract of around 400 to 800 words to fionamangan@gmail.com and igioesil@gmail.com by 30 June 2026. Selected authors will be expected to submit article- or chapter-length papers by 1 December 2026. Co-authorship is permitted. We also welcome expressions of interest from potential reviewers.
Don't hesitate to get in touch with fionamangan@gmail.com or igioesil@gmail.com with any questions.
The latest issue of Europa Ethnica (Vol. 83, nos. 1/2, 2026). Contents include: Within DSM discourse, human rights considerations are frequently treated as peripheral, reflecting an outdated conception of the Ocean as so vast that human activities within it are presumed incapable of causing meaningful harm to people. This assumption rests on the idea that the impacts of DSM are confined to remote marine environments or areas beyond national jurisdiction, and therefore remain disconnected from human populations. Because DSM activities are expected to occur far from visible human communities, their social and human rights implications have frequently been overlooked. However, emerging scientific evidence increasingly demonstrates the vital ecosystem functions and processes that the deep Ocean provides and its interconnectivity with broader marine processes. This includes biodiversity maintenance, nutrient cycling, climate regulation, carbon sequestration, and habitat and trophic support (see Thurber 2014; DOSI 2022). Concerns regarding sediment plumes, noise pollution, habitat destruction and uncertain cumulative impacts challenge the notion that harm from DSM can be geographically contained (see, for example, Gazis 2025; Williams 2025). Against this backdrop, the framing of DSM as a purely environmental or technical issue is increasingly untenable. DSM poses a serious risk to the marine environment and, by extension, to the HRHE and the broader range of fundamental human rights that depend upon healthy ecosystems and their effective protection by States.
Recognition and content of the HRHE
The HRHE was formally recognised by the UNGA in 2022 through UNGA Resolution 76/300. Although UNGA resolutions are not legally binding, the Resolution reflects widespread international acceptance of the HRHE as a fundamental human right. The HRHE is also legally recognised through numerous international and regional instruments, as well as domestic legal systems. According to a 2022 Report of the Special Rapporteur on the HRHE, 110 States recognise the right constitutionally, while more than 80 per cent of UN Member States provide legal recognition in some form, giving rise to binding obligations on governments.
The HRHE encompasses both procedural elements (access to information, public participation in decision-making, and access to justice) and substantive elements, including the protection of biodiversity and healthy ecosystems. Harm to biodiversity directly affects the enjoyment of a range of other human rights, including the rights to life, health, food, culture, development and an adequate standard of living, as well as principles of intergenerational equity. The HRHE therefore requires States to adopt a human rights-based approach to the protection, conservation, restoration, equitable use of, and benefit from healthy ecosystems and biodiversity. This relationship between human rights and healthy ecosystems has been emphasised by the Special Rapporteur on the HRHE, including some reports which specifically address the Ocean and DSM (see Human rights and DSM, The Ocean and human rights report and Human Rights depend on healthy biosphere report).
The HRHE’s unequivocal interconnection with other Human Rights
The HRHE’s centrality to protecting other human rights was explicitly recognised by both the ICJ and the IACtHR in their climate change AOs. The ICJ affirmed that environmental protection is a precondition for the enjoyment of human rights (para 373), and that States can only fulfil their obligations under human rights treaties where they also ensure protection of the HRHE. In this regard, the ICJ recognised the HRHE as both inherent in, and essential to, the enjoyment of other human rights (see paras 373; 393). Similarly, the IACtHR described the HRHE as “a fundamental right for the existence of humanity, with both individual and collective connotations.” It further observed that environmental degradation may impair the enjoyment of both the HRHE and other human rights, such that “protection of the right to a healthy environment necessarily results in the protection of substantive human rights.” (para 274)
In the DSM context, the significance of these findings is that where DSM poses risks of serious harm to the marine environment sufficient to impair the HRHE, corresponding risks to other fundamental human rights potentially may also be inferred. This is particularly significant given the evidentiary difficulties associated with proving direct infringements, or direct risks of infringement, arising from DSM activities conducted in remote areas of the international seabed beyond national jurisdiction. Rather than requiring proof of immediate or geographically proximate human impacts, the human rights implications of DSM may instead be understood through its cumulative and transboundary effects on the marine environment, the degradation of which may generate foreseeable downstream effects for geographically distant communities.
Viewed through the lens of States’ human rights obligations, this suggests that States may be required to adopt preventative and precautionary measures to protect the marine environment from the risks posed by DSM, to ensure the effective enjoyment of the HRHE and other interconnected substantive rights. This may include, where the risk of serious environmental harm cannot be excluded, refraining from authorising or supporting DSM activities.
The Jus cogens prohibition on conduct causing irreversible environmental damage
Perhaps the most legally consequential aspect of the IACtHR’s AO relating to HRHR was its recognition that prohibitions against conduct causing irreversible harm to the planet’s ecological equilibrium may possess jus cogens status. A peremptory norm of general international law (“jus cogens”) is a norm accepted and recognised by the international community of States as a whole from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character (Art. 53 of the Vienna Convention on the Law of Treaties (VCLT)). Therefore, recognition of a prohibition as jus cogens places it at the highest status in the hierarchy of international law.
The IACtHR did not declare the HRHE itself to be a jus cogens norm. Rather, it centred its reasoning on the proposition that the “equilibrium of the conditions for healthy life in the common ecosystem” is indispensable for present and future generations to inhabit the planet. The Court reasoned that without legal protection of this ecological equilibrium, the conditions necessary to guarantee and enforce other existing non-derogable rights, including the rights to life, integrity, health, and non-discrimination, would be undermined (para 293).
In reaching this conclusion, the IACtHR relied on foundational principles of international environmental law, including the precautionary principle, the polluter pays principle, and the obligation erga omnes not to cause transboundary environmental damage. On this basis, the Court concluded that “the progressive crystallization of certain obligations reveals the creation of a body of law, the protection of which cannot be derogated, particularly regarding the risk of irreversible damage to the ecosystems that sustain life” (para 287). Therefore, the IACtHR indicated that the obligation to preserve the planet’s ecological equilibrium should be understood as a peremptory international obligation (para 290).
The IACtHR further reasoned that prohibitions arising from the obligation to preserve the planet’s ecological balance posses a jus cogens character, as they are a precondition to the enjoyment of other fundamental rights that already possess peremptory status. In this regard, the IACtHR relied on the principle of effectiveness (“effet utile”), rooted in Article 31 (1) VCLT, to justify the development of these peremptory prohibitions (para 291-292). This principle requires legal obligations to be interpreted and applied in a manner that enables them to achieve their protective purpose. The Court reasoned that because rights such as life cannot be effectively guaranteed without preserving the ecological conditions necessary for their enjoyment, obligations protecting the planet’s ecological equilibrium must be acknowledged under the principle of effectiveness, and therefore be treated as non-derogable.
The IACtHR therefore recognised the existence of a jus cogens prohibition on anthropocentric conduct causing irreversible harm to the vital equilibrium of the planetary ecosystem.
The deep Ocean is home to diverse and unique ecosystems and species, and its functions and processes contribute to the ecological balance and resilience of the Ocean and planet. Applying the IACtHR’s findings to the DSM context, where the best available scientific evidence demonstrates that DSM activities pose a risk of irreversible harm to the ecological balance of the deep Ocean, and therefore to the planetary ecosystem more broadly, States that authorise or conduct such activities may risk breaching the non-derogable obligations arising from the peremptory prohibition against conduct causing irreversible harm to the vital equilibrium of the planetary ecosystem.
In this regard, the IACtHR, in fact, listed specific conduct that can be identified as a direct cause of irreversible effects on the vital equilibrium of the ecosystems, which, inter alia, include (para 288):
There is ample evidence of conduct that causes irreversible damage in the case of climate change. The scientific certainty of such irreversible damage is less clear with DSM, not least because exploitation has not commenced. Nevertheless, existing evidence already indicates that DSM may cause extensive and lasting damage to biodiversity, potentially resulting in irreversible species loss and habitat degradation. For example, the removal of nodules has been shown to lead to significant species loss (see Simon-Lledó 2019). There is also evidence that pollution arising from DSM activities may cause long-lasting adverse effects on other ecosystems, including, for example, through the transport of suspended sediment and pollutants from mining sites (see Haalboom 2022). In addition, pollution from DSM may negatively impact fisheries and migratory species (see Amon 2023).
The IACtHR ultimately indicated that “all States should cooperate to end conducts that violate the prohibitions derived from peremptory norms of general international law that protect a healthy environment” (para 294). Unlike the climate change context where harmful conduct that impacts a healthy environment is ongoing, in the case of DSM, international cooperation does not require States to end ongoing harmful conduct, but rather to ensure that such conduct does not commence in the first place.
Conclusion
The recent ICJ and IACtHR AOs provide authoritative confirmation of the intrinsic relationship between environmental protection and the enjoyment of fundamental human rights. In particular, both courts expressly recognised that the HRHE is both a precondition for, and an inherent element in, the enjoyment of other fundamental human rights. This recognition underscores the centrality of the HRHE within contemporary international law. The effective enjoyment of fundamental human rights is contingent upon environmental protection, now increasingly articulated through States’ obligations to respect, protect and fulfil the HRHE. Accordingly, when taking decisions or authorising activities related to DSM, States must consider their obligations to respect, protect and ensure the HRHE, alongside the broader constellation of interconnected human rights that depend upon a healthy marine environment.
Moreover, the IACtHR’s finding that there exists a jus cogens prohibition against anthropocentric conduct causing irreversible harm to the vital equilibrium of the planetary ecosystem is highly relevant to DSM discourse. Although significant scientific uncertainty remains, there is growing evidence that DSM may cause severe and potentially irreversible damage to marine ecosystems that are vital for both human and Ocean health. Where such activities risk threatening ecosystems that sustain life, States that authorise or conduct DSM could be found in breach of the peremptory obligation to preserve the planet’s ecological balance. In turn, this may amount to a failure to fulfil obligations necessary to give effect to fundamental and non-derogable human rights, potentially giving rise to State responsibility.
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Launched in 2022, the ESIL Early‑Career Network aims to strengthen the involvement of emerging scholars and practitioners in international law and to foster collaboration across the ESIL community. The Co‑ordinating Committee plays a central role in advancing this mission by organising activities and representing early‑career members within ESIL’s institutional structures.
Committee members contribute to the coordination and development of the Network’s activities, including:
Members also take part in shaping the future direction of ESIL in cooperation with the ESIL Board.
Applicants must fall in the category of early‑career ESIL members, meaning they are:
ESIL strongly encourages applications from candidates belonging to under‑represented groups.
Applications should be submitted as a single PDF (CV + motivation letter) by 22 June 2026, 23:59 (Rome time) to esil.secretariat@eui.eu
In this weekly feature, I-CONnect publishes a curated reading list of developments in public law. “Developments” may include a selection of links to news, high court decisions, new or recent scholarly books and articles, and blog posts from around the public law blogosphere.
To submit relevant developments for our weekly feature on “What’s New in Public Law,” please email iconnecteditors@gmail.com.
Developments in Constitutional Courts
In the News
New Scholarship
Calls for Papers and Announcements
Elsewhere Online
The post What’s New: Week of June 1 appeared first on www.iconnectblog.com.
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As Hong Kong's space for public remembrance narrows, the struggle over historical truth, political identity and collective memory remains far from settled.]]>What do international courts have to offer when faced with raw power? In a state of international disorder, respect for international law erodes and so does the respect for international courts and tribunals (ICs) and their decisions. An IC decision constitutes an international legal obligation. It binds the disputing party states as any other rule of international law does. Regardless, whether international affairs are in a relative state of order or disorder, international actors, above all States, must observe international law. Yet, what if a State does not play along – and is powerful enough to also withstand any international legal or political measures seeking to enforce the IC decision in question? Russia, for example, flatly ignored that the International Court of Justice (ICJ), on 16 March 2022, ordered it to halt its invasion of Ukraine and, as of May 2026, continues its aggression on Ukrainian territory. This piece investigates the effects of IC decisions when pushed to the margins by powerful States that can do so – and can, at least in first instance, get away with it. Such disregard for international judicial decisions occurring in higher frequencies indicates, at least from the prespective of international law, a state of international disorder. However, even in these situations, when pushed to the side, IC decisions are not pointless. They may have at least four effects that are interconnected and potentially reinforce each other, thereby providing a minimal contribution to the integrity of the international legal system.
The ESIL Conversations are conceived as a series of online events through which The European Society of International Law (ESIL) aims to contribute to the discourse on international law. The first series, “Multilateralism in Times of Unilateralism”, is focused on negotiations of major treaties (like the Convention on Crimes against Humanity or the Convention on Protection of Persons in the Events of Disasters, as well as on the future of the United Nations Organisation). The ESIL Conversations will offer high-level discussions on central questions of international law.
In this ESIL Conversation on “The Future of the United Nations Organisation, if any”, ESIL Board members Giulio Bartolini and Patrycja Grzebyk will moderate a distinguished panel of senior practitioners and leading scholars to examine the role and future of multilateralism at the United Nations in an era increasingly shaped by unilateralism.
The panel of experts includes:
