A Critical Alliance: The UN Charter and the Nuremberg Principles

Peace and Security in a Fragmented World

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

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

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

Regardless of those discussions, the U.S. military’s enforcement of the ongoing naval blockade of Iran may have now resulted in fresh violations of the U.N. Charter against four entirely different countries.

On May 29th, the U.S. military attacked a Gambia-flagged vessel in the Gulf of Oman. According to U.S. Central Command:

U.S. Central Command (CENTCOM) forces observed M/V Lian Star transiting international waters toward an Iranian port on the Gulf of Oman and issued more than 20 warnings while informing the vessel it was in violation of the U.S. blockade.

A U.S. aircraft disabled the vessel by firing a Hellfire missile into the ship’s engine room after Lian Star’s crew failed to comply. The ship is no longer transiting to Iran.

U.S. forces subsequently fired on at least four other third-country merchant vessels—a Botswana-flagged tanker, a Guinea-Bissau-flagged tanker, and two tankers flagged to Palau. The U.S. attack on one of the Palau-flagged tankers killed three Indian sailors. (Under the Compact of Free Association with Palau, the “ United States has full authority and responsibility for security and defense matters in or relating to Palau.”)

In addition, inApril, U.S. forces boarded another Botswana-flagged tanker in the Bay of Bengal, but claimed it was stateless. (The U.S. government has not to our knowledge asserted the other vessels were stateless.) As of June 11th, CENTCOM reports that since its implementation of the blockade on April 13, U.S. forces have disabled “nine non-compliant vessels” and redirected 135 ships.

These U.S. attacks on vessels flagged to States that are not a party to the conflict between the United States and Iran foreground a tension between two bodies of law:

• the law of naval blockade and the principles of neutrality law it incorporates; and
• the modern U.N. Charter regime governing the use of force between States.

As Professor Magne Frostad noted in 2024 with respect to blockades, a “routine use of the rules of naval warfare would then at the same time be a grave violation of the UN Charter.”

This tension has historically been largely theoretical, as interstate warfighting has taken place predominantly on land and in air since the U.N. Charter took effect (with notable exceptions such as the Falklands War and the Tanker War, discussed below). As a result, States have not fully reconciled the rules governing blockades, or naval operations more broadly, with the U.N. Charter regime. The void in State treatymaking has led to expert-led endeavors to craft manuals on the current law of naval operations. States, too, have issued updated manuals on naval warfare that have included language and even entire sections on the Charter. But those manual-drafting processes, given their mission to explain the law as it is rather than to move the needle, are stymied by the lack of State lawmaking on naval warfare in the modern era. The result is typically a disclaimer upfront that operations must be undertaken in accordance with the U.N. Charter, or even a statement, such as that in the German Commander’s Handbook, that the Charter obligations “will take absolute precedence over the ones arising from the law of maritime neutrality.” The operative sections that lay out the practical rules, however, often proceed many pages or even chapters after such disclaimers, and include rules that would permit acts inconsistent with the Charter. Given that jus ad bellum decisions and lawyering tend to happen at the strategic rather than the operational level of decision-making, as noted in the Newport Manual, the resulting guidance is insufficient (or simply misleading) for the people relying on these rules, leaving operators with insufficient information on how the Charter and other postwar legal developments should interact with the law of naval operations. And in cases like those addressed here, the manuals may seem to justify operations that are incompatible with the Charter.

Finally, although the legal issues here do not touch on Iran’s own military threats and attacks against maritime traffic in the Strait of Hormuz (which are widely viewed as illegal), we note that others have identified those abuses well.

Neutrality and Blockade

Under treaty and customary international law prior to the 20th Century—when war and the use of force were permissible tools of statecraft—the law of neutrality regulated the relationship between States not involved in an ongoing war (neutrals) and the warring States (belligerents). Neutral States were generally obligated to comply with requirements of (a) non-participation in the conflict and (b) impartiality as between the belligerent parties. Neutrality law also governed the responses by belligerents when a neutral State violated its obligations of neutrality. In the case of serious and systematic violations of neutral duties, such retaliation might include a declaration of war against the neutral, changing that State’s status should a conflict ensue. States fighting alongside one another were considered to be “co-belligerents.” But neutrality, or its violation, was never the legal basis for using force. Rather neutrality functioned as a legal shield, protection that a State could invoke in an era when the use of force was otherwise generally permissible. In the post-Charter world—as one of us has written in a recent article–that shield has become obsolete because inviolability is now the default: Article 2(4) extends its protection to all States, not merely neutral ones, and its exceptions are much narrower than those of neutrality law. That neutrality played the role of shield rather than sword is a critical distinction to understanding neutrality law’s occasional misuse today. Treating neutrality violations as an independent basis for using force today inverts the original logic—importing a limitation on protection from one legal regime into a different regime where a broader default protection now governs.

One domain of international law where the language of neutrality law persists is the law of naval warfare, specifically with respect to naval blockades.

The law of naval blockades applies only during armed conflict. The purpose of a naval blockade is to prevent the adversary from receiving supplies, as well as to prevent the export and sale of products that would sustain the adversary’s military capabilities. For a blockade to be lawful, it must: 1) have been publicly declared; 2) apply impartially to vessels of all nations (including neutrals); and 3) be effective, that is sufficient military assets must be deployed to implement it (e.g.,. not a paper blockade). (See here, here, here, and here for recent discussions of blockades with respect to U.S. actions against Venezuela, Cuba, and Iran.)

Historically, under the law of naval warfare, the blockading State might exercise “belligerent rights” to enforce it, including the “right of visit and search.” Merchant vessels believed on reasonable grounds to be breaching a blockade could be captured. Any vessel that was reasonably believed to be breaching the blockade could be captured and condemned in prize court, with the property title passing to the blockading State.

Further, under the law of naval warfare, merchant vessels which, after prior warning, clearly resist capture could be attacked. According to a leading expert manual on the law of naval warfare (the Newport Manual), neutral merchant vessels become liable to attack under that body of law by “[a]ctively resisting visit, search, or capture” as well as “refusing an order to stop.”

Critically, the law of naval warfare, including the rules regarding blockade, developed and were codified prior to the conclusion of the U.N. Charter. Yet all of these rules remain on the books in modern manuals describing the law of naval operations, as well as in expert-led treatises.

In the context of the current U.S.-Iran War, the U.S. military announced in a notice to mariners a naval blockade of Iran on April 13—notably after the ceasefire had already begun.

This blockade will be enforced in the Gulf of Oman and Arabian Sea east of the Strait of Hormuz. The blockade encompasses the entirety of the Iranian coastline to include but not limited to ports and oil terminals. The blockade applies to all vessel traffic, regardless of flag. Any vessel entering or departing the blockaded area without authorization is subject to interception, diversion, and capture. The blockade will not impede neutral transit passage through the Strait of Hormuz to or from non-Iranian destinations. Neutral vessels may still be subject to the right of visit and search to determine the presence of contraband cargo. Humanitarian shipments including food, medical supplies, and other goods essential for survival of the civilian populations will be permitted, subject to inspection.

As Mark Nevitt has noted, CENTCOM subsequently announced on April 16, an expansion of maritime enforcement operations beyond the scope of the blockade itself, including a belligerent right to board vessels subject to US sanctions—regardless of location.

U.N. Charter

Article 2(4) of the U.N. Charter prohibits “the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” The provisions of the Charter—including Article 2(4)—take priority over other international legal obligations states may have. Article 103 provides that:

In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.

The prohibition on the use of force codified in Article 2(4) is subject to two narrow exceptions specified in the text of the treaty. Article 51 of the Charter, specifies, in relevant part:

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council.

Therefore, notwithstanding the prohibition on the use of force imposed by Article 2(4), the use of force in individual or “collective self-defense” (coming to the aid of another country exercising its right of self-defense) is permissible and must be reported to the U.N. Security Council. 

The U.N. Security Council may also authorize the use of forcible measures by member States. Article 42 of the Charter specifically cites blockades as one such forcible measure:

Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

The U.N. Security Council may also authorize the use of forcible measures by member States. Article 42 of the Charter specifically cites blockades as one such forcible measure:
Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.
As Michael Schmitt and Rob McLaughlin previously explained in Just Security, “‘blockades’ qualify as a use of force even before force is used against ships attempting to breach them.” The Trump administration also recently acknowledged that “a military blockade constitutes a use of force for the purposes of UN Charter Article 2(4).” (Aside: The continued enforcement of the blockade is thus inconsistent with the Trump administration’s claims of a simultaneous ceasefire and that hostilities terminated at the time the ceasefire began.)

Given that the U.S. war on Iran is unlawful as a matter of jus ad bellum—in other words, in breach of the U.N. Charter—the blockade on Iran as part of that ongoing use of force is also unlawful. It is unlawful as a matter of jus ad bellum whether or not the blockade is being conducted in accordance with the laws of armed conflict, also called the jus in bello. These are two distinct boxes that must be checked for the State’s actions to be lawful. Jus ad bellum governs the State’s right to resort to force, and jus in bello governs the conduct of hostilities inside that armed conflict. So the U.S. blockade and acts to enforce it may well satisfy the latter, but not the former.

In this case, there are additional uses of force against third States that must be addressed.

Attacks on Third States’ Merchant Vessels and the U.N. Charter

Given their nature, blockades at times involve the threat or use of force against States that are not parties to the primary conflict. The blockade itself constitutes a use of force against the blockaded State. But a blockade may also involve incidents between the blockading State and vessels flagged to third party States. Such incidents, such as those reported in recent days, may involve an actual attack by the blockading State on such vessels, which could be construed as a use of force against the vessel’s flag State. To put a finer point on it, the United States has taken the position (discussed below), in other contexts, that attacks upon flagged merchant vessels constitute a use of force (which in the U.S. view is equivalent to an armed attack) against the flag State. Under the Charter, armed attacks give rise to a right of self-defense under Article 51 of the Charter.

Other States have also historically taken the position that attacks on flagged vessels amount to a use of force, with some further calling it “aggression,” which suggests that they viewed them as amounting to an armed attack. In one noteworthy early example, during border tensions between Guatemala and Mexico in 1958-59, the Mexican President invoked Article 51 of the Charter in response to Guatemala’s attack upon Mexican shrimping vessels (though Mexico did not actually use force in response). According to contemporary reporting by the New York Times, “Mexican authorities … maintained that in any case the strafing of unarmed boats of a friendly country amounted to an act of aggression.”

During the Iran-Iraq War, both belligerents attacked merchant vessels—including oil tankers— in the Persian Gulf and Strait of Hormuz. (Neither Iran nor Iraq seem to have declared nor sought to enforce a traditional blockade.) During meetings of the U.N. Security in 1984, representatives from multiple countries indicated that such attacks violated the Charter. Tunisia stated that attacks on “unarmed merchant vessels” (including oil tankers) “run counter to the obligations assumed by their perpetrators under the Charter of the United Nations” and “are also a violation of the sovereignty of the countries concerned.” Djibouti denounced the “aggression of the Iranian war machine against oil-tankers and other commercial vessels.” Qatar also labelled Iranian attacks on Kuwaiti and Saudi tankers as “aggression.”

For its part, the United States told the Security Council that:

We therefore agree with the States members of the Gulf Co-operation Council that the Security Council should take a clear and unambiguous stand against the extremely dangerous expansion of the war by attacks on innocent vessels in international waters or in the territorial waters of non-combatants. We firmly support the views expressed by the Gulf Co-operation Council and the League of Arab States on this issue.

The United States subsequently responded to continued Iranian attacks on neutral oil tankers by reflagging Kuwaiti vessels as American and accompanying them with U.S. naval convoys as part of Operation Earnest Will. The Legal Adviser to the State Department argued at the time, “U.S. protection of the vessels is intended to deter rather than provoke military action by Iran.” As it turned out, this operation led to repeated hostilities between U.S. and Iranian forces in 1987-1988—including as a result of an Iranian attack on a reflagged Kuwaiti vessel.

As recounted in the U.S. letter to the UN Security Council, “on 16 October 1987, a Silkworm missile fired by Iranian forces from Iranian-occupied Iraqi territory struck the Sea Isle City, a United States flag vessel, in the territorial waters of Kuwait.” In response, the United States destroyed an Iranian oil platform, putatively in self-defence, an act it could not lawfully take unless it considered the Iranian action a violation of the Charter and an armed attack.

President Reagan himself weighed in on the Iranian attack and the U.S. response:

Iran’s unprovoked attacks upon U.S. and other nonbelligerent shipping, and particularly deliberate laying of mines and firing of Silkworm missiles, which have hit U.S.-flag vessels …. The action against the Iranian military platform came after consultations with congressional leadership and friendly governments. It is a prudent yet restrained response to this unlawful use of force against the United States and to numerous violations of the rights of other nonbelligerents. It is a lawful exercise of the right of self-defense enshrined in article 51 of the United Nations Charter and is being so notified to the President of the United Nations Security Council. (emphasis added)

In the subsequent Oil Platforms case before the International Court of Justice, the United States took the position that:

Sea Isle City was properly registered in the United States and flew the U.S. flag in compliance with all applicable standards of international and U.S. law. She was a U.S.- flag vessel, and the attack upon her justified acts of self-defense by the United States. (emphasis added).

In arguing that the United States could invoke the right of self-defense in response to an attack upon this formerly Kuwaiti vessel, the United States explained that:

Under international law, States have the right to confer their nationality on ships by registering the ship, authorising it to fly its flag, and issuing papers documenting the ship’s nationality. There are two fundamental limitations on registration of vessels. First, vessels may only be registered to one state. Registration of Sea Isle City was transferred exclusively to the United States.

Second, there must be a “genuine link” between the ship and its flag State.

The United States contended that the “domestic measures taken by the United States in connection with Sea Isle City fully met these requirements” for a “genuine link.”

The ICJ did not squarely address the U.S. position that the attack on a flagged vessel was an attack upon the flag State. The court raised questions of attribution and intent regarding the attack on the Sea Isle City and indicated that it did not view that and related incidents singularly or cumulatively as constituting an “armed attack” on the United States.

In the context of the Houthi’s post-October 7th attacks on commercial shipping in the Red Sea and subsequent U.S./U.K. military responses, the United States and other States also cited attacks on merchant vessels. The United States repeatedly invoked imminent threats to both “U.S. Navy ships and merchant vessels” as the predicate for U.S. “self-defense” strikes in Yemen. In its January 12, 2024 Article 51 letter to the United Nations regarding these strikes, the United States asserted that U.S.

strikes were conducted to degrade and disrupt the ongoing pattern of attacks threatening the United States and deter the Houthi militants from conducting further attacks threatening merchant and commercial vessels transiting the Red Sea…The United States took this necessary and proportionate action consistent with international law and in the exercise of the United States’ inherent right of self defence as reflected in Article 51 of the Charter of the United Nations.

The same day, in a joint statement issued the same day Australia, Bahrain, Canada, Denmark, Germany, Netherlands, New Zealand, Republic of Korea, United Kingdom, and the United States, explained:

In response to continued illegal, dangerous, and destabilising Houthi attacks against vessels, including commercial shipping, transiting the Red Sea, the armed forces of the United States and United Kingdom, with support from the Netherlands, Canada, Bahrain, and Australia, conducted joint strikes in accordance with the inherent right of individual and collective self-defence, consistent with the UN Charter, against a number of targets in Houthi-controlled areas of Yemen.

And the U.N. Security Council in Resolution 2722 in response to Houthi maritime attacks, affirmed:

the exercise of navigational rights and freedoms by merchant and commercial vessels, in accordance with international law, must be respected, and takes note of the right of Member States, in accordance with international law, to defend their vessels from attacks, including those that undermine navigational rights and freedoms …

Of particular significance in this regard, the U.S. Navy takes the position that attacks on flagged vessels implicate the flag State’s right of self defense. The 2022 edition of the Commander’s Handbook on the Law of Naval Operations (3.10.1), provides that

International law, embodied in the doctrines of self-defense and protection of nationals, provides authority for the use of proportionate force by U.S. warships and military aircraft when necessary for the protection of U.S.-flagged vessels …. ROE are carefully constructed to ensure the protection of U.S.-flagged vessels.

The U.S. position regarding attacks on flagged vessels is not unquestioned. Some scholars point to the definition of acts of aggression in Article 3(d) of the UN General Assembly Resolution 3314, which speaks of the “an attack by the armed forces of a State on the … marine or air fleets of another State.” The counter-argument runs that a single merchant ship is not a “fleet” and thus an attack on an individual merchant vessel would not constitute an act of aggression. Further complicating this debate are the distinctions between the use of force, armed attacks, and acts of aggression under international law. The United States has historically regarded any use of force as an armed attack.

Whether or not the proposition is universally accepted, it has been the U.S. position that an attack upon a flagged vessel is an armed attack giving rise to the right of self-defense by the flag State.

Article 2(4) vs Belligerent Rights

The factual parallels between the Iranian missile attack on the Sea Isle Sea in 1987 and the U.S. missile attacks on the Lian Star in 2026 highlight the tension between the interpretation of the U.N. Charter with respect to forcible actions against merchant vessels and the exercise of belligerent rights against such vessels during the enforcement of a blockade. Unlike self-defense or U.N. Security Council authorization, the exercise of belligerent rights to enforce a blockade is not a recognized exception to Article 2(4)’s prohibition on the use of force.

Thus, outside of a blockade authorized by the Security Council under Article 42, there does not appear to be any jus ad bellum basis for the use of force against neutral merchant vessels in the enforcement of a blockade. Indeed, under the United States’ own view, the use of forcible measures against a merchant vessel may amount to an armed attack upon the flag State, triggering a right of self-defense by that State. Further, even the threat of forcible measures against neutral merchant vessels would (consistent with the U.S. position taken at the ICJ) constitute an unlawful threat of the use of force, in violation of Article 2(4).

The U.S. Commander’s Handbook on the Law of Naval Operations acknowledges Articles 2(4) generally (5.1.1) and specifically that the “customary law of neutrality has, to some extent, been modified by the Charter of the UN.” (7.2.2) The Handbook does not explicitly address however how the Charter might bear on the enforcement of blockades.

The lack of clarification on how to interpret the law of naval warfare consistently with the Charter is now coming to a head. The exercise of belligerent rights through attacks on vessels flagged to non-party States and, by extension, a blockade involving the use of force against merchant vessels that are not party to the armed conflict is in clear and direct tension with the U.N. Charter as interpreted by the United States and many others. And this is irrespective of whether there is a lawful basis to use force against the blockaded State itself. If a State has a jus ad bellum basis to use force against another State to repel an armed attack, it may use the force that is necessary and proportionate to do so. This does not extend to strikes on third States that have not themselves provided cause for the use of force in self-defense.

Conclusion

President Trump’s war on Iran has been characterized by what many legal experts consider to be serious violations of not only the international and U.S. domestic rules governing the resort to force, but also possibly the law of armed conflict in waging hostilities.

The nature of some of these violations is unique to the Trump administration. For example, it is difficult to imagine a previous Secretary of Defense declaring “no quarter”—an announcement which could itself constitute a war crime. Similarly, no other U.S. president has issued threats to destroy all of a country’s power plants or stated that a “whole civilization will die tonight,” utterances which themselves could violate the law of war as “threats of violence the primary purpose of which is to spread terror among the civilian population.”

But other possible transgressions by the Trump administration are surfacing longstanding problems in law and legal practice. The threat and use of force against neutral merchant vessels in the enforcement of the blockade of Iran foreground a long-running, though previously largely theoretical, tension between two distinct legal regimes. In one legal regime—which developed before the U.N. Charter—the use of force was a permissible tool of statecraft. In the other legal regime, codified in the U.N. Charter, the use of force is generally prohibited. The U.S. attacks on commercial vessels flagged to third States and threats of the use of force against other commercial vessels to enforce the blockade of Iran may represent a point at which the two regimes are irreconcilable–at least under the United States’ own past interpretation of the U.N. Charter.

The resurgence of naval warfare suggests it is urgent to address these tensions. This is not the only area where the prohibition on the use of force has come under stress. But efforts to fortify the legal system need to address these chronic conflicts in the law of naval operations broadly, and contradictions of the United States’ approach to military action more specifically. One necessary reform will be acknowledging that the U.N. Charter supersedes pre-Charter legal regimes, including with respect to neutrality and naval warfare.

Thanks to Mark Nevitt and Mike Schmitt for their thoughtful comments on a draft of this piece. Special thanks as well to Marie Miller for excellent and speedy research assistance with this piece.

The post Blockade and Article 2(4) of the UN Charter appeared first on Just Security.

One of the central questions facing Syria now is whether the emerging justice architecture can earn the trust of those in whose name it is being built: survivors, families of the disappeared, victims of forced displacement and collective violence, and other affected communities. For Syrians, transitional justice is a question about whether families will know the fate of their loved ones, whether those responsible will be held accountable, and whether the structures that enabled violence will be transformed.

In May 2025, Reuters reported that presidential decrees had established national bodies for transitional justice and missing persons. These steps may create openings, but they also raise concerns about mandate, independence, inclusiveness, sequencing, and public trust. Human Rights Watch, for example, warned that the transitional justice decree’s focus on crimes committed by the Assad government risks excluding victims of abuses by non-state actors. Syrian civil society organizations have also raised concerns about the broader constitutional and decree-based framework, including the concentration of executive power and the need for judicial independence and meaningful legislative oversight, as reflected in this joint statement.

These concerns go to the heart of whether this process in Syria will be perceived as a national process of truth, accountability, and repair, or as a state-led instrument that selectively recognizes some harms while marginalizing others. I write from my work with Syrian survivor groups, documentation actors, and civil society organizations, where I have seen how quickly trust can be lost when justice is designed above the heads of those most affected.

A Justice Ecosystem Built Before the Transition

Long before the fall of Bashar al-Assad in December 2024, Syrians had already built a justice ecosystem under extraordinarily difficult conditions. Families of the disappeared organized and demanded truth, including through a Truth and Justice Charter. Survivors of detention testified, advocated, and challenged the silence surrounding torture. Syrian human rights organizations documented violations, preserved evidence, supported universal jurisdiction cases, and built legal and advocacy strategies across borders. Journalists, artists, lawyers, feminist groups, local activists, and memory initiatives resisted erasure in different ways. International mechanisms, including the Independent International Commission of Inquiry (CoI), the International, Impartial and Independent Mechanism (IIIM), and later the Independent Institution on Missing Persons (IIMP), became part of a broader accountability landscape shaped in large part by Syrian insistence that impunity should not be normalized.

This history matters because it changes the starting point: transitional justice in Syria is not being introduced into a vacuum. It is entering a field already marked by sacrifice, knowledge, pain, and political disagreement. Many survivors and families have spent years refining their understanding of justice. They know the difference between being merely consulted and actually being heard, between symbolic inclusion and real influence, and between a process that extracts testimony and one that protects agency.

Any national justice process that fails to recognize this existing ecosystem risks reproducing one of the deep wounds of Syrian public life: the treatment of people as subjects to be managed rather than citizens with the right to shape decisions that affect them.

The interim Syrian authorities, therefore, face a foundational choice. They can treat survivor associations, families’ groups, local civil society, women’s organizations, documentation actors, and displaced communities as audiences to be informed after decisions are made. Or they can treat them as political and ethical partners in defining what justice must mean in this transition. Only the second path can build the trust needed for durable change.

When Victim-Centered Justice Changes Power Relations

Transitional justice can fail even when specific institutions for its advancement are created. It can fail when mandates are too narrow, when consultations are performative, when political authorities control the pace and limits of truth, and when victims are invited to speak but not to shape decisions.

This risk is acute in Syria because the scale of violations is vast, the social fabric has been violently fragmented, and the political transition remains uncertain. It is still unclear whether the emerging state will move decisively away from authoritarian habits, whether institutions will be reformed in ways that constrain executive power, and whether temporary arrangements will open the way toward genuinely inclusive and rights-respecting governance. A top-down process may produce strategies, public meetings, and legal frameworks, but if it does not create credible channels for active participation by Syrians and result in meaningful accountability, it will deepen mistrust.

The language of victim-centered justice can itself become dangerous when it is used without changing power relations. Victims and survivors should not be asked to provide emotional legitimacy to decisions made elsewhere. Families of the missing should not be repeatedly invited to tell their stories without receiving clear answers about what will happen with the information they provide. Women survivors should not be included only as symbols of suffering while being excluded from the design of reparations, truth-seeking, and institutional reform. Local communities should not be asked to participate in consultations whose outcomes are neither published nor reflected in policy.

For many Syrians, the state was not absent during the years of violence. It was present as a source of fear, surveillance, humiliation, confiscation, detention, and death. This means that state-led transitional justice must work harder to prove that it is not merely a new language for old habits. It must show, through practice, that it is willing to listen, to disclose, to be constrained by law, and to share decision-making space.

Legitimacy Is Built in Practice

Legal mandate is necessary, but it is not sufficient. A transitional justice body may exist under a decree or constitutional provision and still lack legitimacy in the eyes of affected communities. In the Syrian context, legitimacy will depend on multiple conditions. The mandate must be clear, public, and inclusive. Syrians need to know which violations are covered, which time periods are included, which actors fall within the scope, and how different categories of victims will be recognized. A process that addresses only some perpetrators or only some victims will not produce a shared sense of justice. Accountability for the crimes of the Assad regime is essential. But it is also not the whole story of Syria’s violence.

Transitional justice bodies need protection from executive interference, transparent appointment procedures, clear conflict-of-interest rules, and public reporting obligations. They also need relationships with the judiciary that strengthen, rather than weaken, due process and judicial independence. Without this, the process risks becoming a political instrument rather than a rights-based practice. Participation must move beyond consultation and public relations. It must give affected communities influence over priorities, sequencing, methods, safeguards, and evaluation. Syria does not need endless listening sessions that generate no visible change. It needs structured, protected, and representative forms of engagement through which survivors, families, civil society, and local communities can see how their input shapes decisions. In my work with Syrian survivor groups, documentation actors, and civil society organizations, I have repeatedly seen that trust is lost both when institutions fail to listen, and when they listen without explaining what will change as a result.

Protection, Material Change, and the Missing Persons File

Survivor and family engagement is crucial to a successful transitional justice framework in Syria, but protection must be built into every step. This is also reflected in the IIMP’s victim-centered approach, which emphasizes the rights, agency, wellbeing, safety, security, dignity, and meaningful participation of survivors and families. Asking individuals to speak about violations in a fragile transition can expose them to re-traumatization, stigma, retaliation, or political instrumentalization. Ethical engagement requires informed consent, confidentiality, psychosocial sensitivity, secure data systems, referral pathways, and a clear explanation of what participation can and cannot achieve.

Transitional justice must also be connected to material and institutional change. Syrians do not need isolated mechanisms competing for attention. They need a process in which truth-seeking informs accountability, accountability opens pathways to redress, reparations acknowledge both material and moral harms, and institutional reform addresses the structures that made violence possible. Missing persons, property rights, security sector reform, judicial reform, memorialization, and guarantees of non-recurrence should be treated as connected parts of one public justice effort, not as separate technical files.

No issue illustrates the stakes more clearly than the file of the missing and forcibly disappeared. For families, the question of the missing is not one file among many; it is the wound around which daily life has been organized for years. It shapes grief, inheritance, property, marriage, displacement, legal status, mental health, and political belonging. It is also one of the clearest tests of whether the new authorities are willing to confront the machinery of disappearance and disclose what the state knows.

The establishment of a national body for missing persons is an important step, but families will not judge such a body by its title. They will judge it by whether it provides answers, protects information, coordinates with existing Syrian and international documentation efforts, treats families as rights-holders, and avoids turning their suffering into a public relations exercise.

This requires practical choices. Families’ associations should have formal advisory roles. Data protocols should be transparent and rights-based. Coordination with the IIMP should be serious and sustained. Exhumations, DNA analysis, and identification of human remains should follow recognized standards, including the ICRC’s guidance on missing people, DNA analysis, and identification of human remains. Families should be regularly informed, even when answers are incomplete. The state should preserve, secure, and disclose relevant archives. Above all, the missing persons file should not be subordinated to narrow political reconciliation. There can be no meaningful reconciliation built on the continued disappearance of human beings.

What International Support Should and Should Not Do

International actors have an important role to play, but they also carry risks. Donors, governments, U.N. agencies, and international NGOs often move quickly in transitional moments. They seek entry points, institutional partners, capacity-building projects, and visible outputs. Some of this support may be necessary. But if it is not carefully designed, it can distort the process.

International supporters should avoid rewarding form over substance. The existence of a commission, strategy, or consultation plan should not be treated as evidence of meaningful progress by the interim authorities unless accompanied by independence, inclusion, transparency, and protection. Funding should not incentivize rushed outreach that exposes victims and communities to harm.

International actors should also resist the temptation to centralize everything in Damascus. Syria’s justice demands are spread across geography and displacement. They exist inside Syria, in refugee communities, in the diaspora, in former detention networks, in women-led initiatives, in local councils, in civil society archives, and in families’ associations, including those that helped develop the Truth and Justice Charter and those engaging with the IIMP. Supporting transitional justice means supporting the connective tissue between these actors, not only the formal institutions that claim to represent the process.

This is particularly important because the future of Syria’s transition will not be decided only by elite negotiations or legal texts. It will also be decided by whether communities begin to believe that the new order recognizes their pain, protects their rights, and limits the power of those who govern.

Immediate Steps for the Interim Syrian Authorities

If the interim Syrian authorities want transitional justice to become a source of trust rather than another arena of contestation, immediate steps are needed.

The interim authorities should publish clear mandates, internal procedures, selection criteria, and workplans for the transitional justice and missing persons bodies. Ambiguity in a low-trust environment produces suspicion.

They also need to establish formal survivor and family advisory councils with real influence, not ceremonial status. These councils must include families of the disappeared, survivors of detention, women survivors, representatives of displaced communities, victims from different regions and backgrounds, and organizations with long-standing justice expertise.

Creating a public engagement protocol is vital. Every consultation should have a clear purpose, informed consent procedures, protection measures, documentation rules, and a commitment to share back findings with participants. Communities need to know why they are being consulted and how their views will be used.

The interim authorities should also clarify the relationship between transitional justice and criminal accountability. Truth-seeking should not become a substitute for prosecution where prosecution is possible. At the same time, criminal accountability should be pursued with due process, judicial independence, and a clear strategy that avoids both selective justice and unrealistic promises.

The interim authorities should adopt a phased reparations approach. Syria cannot repair all harms immediately, but it can begin with urgent interim measures: legal recognition, documentation support, psychosocial and medical assistance, education support for victims’ families, property-related remedies, and public acknowledgment. Reparations should not be postponed until the end of a perfect process.

Archives and evidence must also be protected. Security, intelligence, prison, court, land, and administrative records may be central to truth, accountability, missing persons, and property claims. Their preservation is a national justice priority.

Transitional justice will not deliver everything quickly. False promises will damage trust. A credible process should tell Syrians what can be done now, what will take time, what remains uncertain, and what safeguards are being built.

Strategic International Funding and Coordination

International supporters need to align their assistance with the same principles.

They should condition support to transitional justice institutions on transparency, inclusiveness, independence, and victim-centered safeguards. This does not mean disengagement; it means principled engagement.

It is crucial to fund survivor-led and family-led organizations directly, including those working outside the capital and in displacement contexts. These groups are knowledge producers, accountability actors, and guardians of public trust, as Syrian victim and family associations have repeatedly demonstrated through initiatives such as the Truth and Justice Charter.

Support is also needed for secure documentation, data protection, forensic capacity, psychosocial care, legal aid, and community-based participation. These are the infrastructure of meaningful justice, and they are especially important in a context where archives, mass grave sites, detention records, and family testimony may all become part of future truth-seeking, missing persons, and accountability processes.

International supporters need to coordinate among themselves to avoid duplication and competition. Syria does not need fragmented donor projects that create parallel justice conversations. It needs coherent support that strengthens national and community-level capacities while preserving independence.

They should continue supporting international accountability pathways, including universal jurisdiction and cooperation with international mechanisms. Domestic justice efforts are important, but they cannot carry the entire burden alone, especially in the early phase of transition.

Finally, international actors need to listen more carefully to Syrian debates. Too often, external engagement treats Syrian civil society as a source of information rather than a source of judgment. The difference matters.

Conclusion

Transitional justice in Syria is about dealing with the past as well as about renegotiating the relationship between people and power. Under Assad, violence was physical, but it was also a system of enforced silence, fear, dispossession, humiliation, and denial. The U.N. Commission of Inquiry’s reporting on detention and disappearance is one illustration of how deeply state violence was tied to the control of truth itself. A credible justice process must reverse that relationship by returning truth to the public and voice to those who were silenced.

This is why architecture alone will not be enough. It can still fail if people experience it as distant, selective, unsafe, or politically controlled. But if these institutions are built with humility, transparency, and real participation, they can become more than bureaucratic structures. They can become part of a new civic contract.

For transitional justice to matter in Syria, it must move from architecture to trust. And trust begins when those who suffered most are no longer asked merely to tell their stories but are given the power to shape what justice will do with them.

The post Making Syria’s Transitional Justice Process Meaningful for Survivors and Communities appeared first on Just Security.

A curated weekday guide to major news and developments over the last 24 hours. Here’s today’s news:

IRAN WAR – CEASEFIRE  

“We ended the war in Iran today,” President Trump said yesterday at a telerally for the Georgia governor’s race. A few hours earlier, Trump said in the Oval Office that a deal with Iran could be signed “maybe over the weekend, in Europe,” and that if so, Vice President JD Vance would take part. Trump claimed that Iran’s supreme leader had approved the deal, which he said would result in the immediate resumption of shipping traffic in the Strait of Hormuz. Chris Cameron reports for the New York Times; Max Bearak, Jonathan Swan, Pranav Baskar, and Eric Schmitt report for the New York Times.  

Iranian foreign ministry spokesperson Esmaeil Baghaei said yesterday that Iran had not reached a final decision on an agreement, according to Iranian state media. Three sources told Axios that Qatari mediators and Iranians officials believed they had reached an agreed-upon text that the United States would accept following talks on Wednesday. According to the sources, Iranian officials told several countries yesterday that the Tehran talks produced an agreement in principle, but Supreme Leader Mojtaba Khamenei still needed to give final approval. Humeyra Pamuk and Parisa Hafezi report for Reuters; Barak Ravid reports for Axios.

Trump’s announcements came after he called off planned military strikes in Iran, citing progress in talks. Trump had said on Thursday morning that the United States would “be hitting Iran VERY HARD TONIGHT” and suggested in an interview that he might deploy the U.S. military to take Kharg Island. According to two administration officials, Qatari Emir Tamim bin Hamad Al Thani, United Arab Emirates President Mohamed bin Zayed Al Nahyan, and Pakistani defense chief Asim Munir called Trump a few hours later and persuaded him that a deal with Iran was near. One official said these calls led to Trump walking back his latest attack plans. Dasha Burns and Felicia Schwartz report for POLITICO; Barak Ravid reports for Axios.  

Trump’s reversal yesterday again jolted markets. Oil futures dropped 3 to 4 percent after his social media post calling off the planned strikes. Later in the afternoon, prices rose, then fell again after Trump said the countries were on the verge of signing an agreement. Victoria Crew, Siham Shamalakh, and Dan Diamond report for the Washington Post.  

ISRAEL-HAMAS WAR 

Israeli air strikes yesterday killed three people in Gaza, health officials said. The violence came as ​mediators, Egypt, Qatar, and Turkey, held week-long talks with Hamas and other Palestinian factions on ⁠implementing the second phase of Trump’s Gaza plan, which would involve Hamas disarming and Israel withdrawing its ​forces. A senior Hamas official, Hussam Badran, said the talks had achieved “real progress” and called on mediators to ​compel Israel to stop truce violations. Badran did not elaborate on the nature of the progress. Nidal Al-Mughrabi and Ahmed Shalaby report for Reuters. 

Israeli prosecutors yesterday indicted Israeli Prime Minister Benjamin Netanyahu’s media adviser, Jonatan Urich, accusing him of leaking a classified military document about Hamas hostage negotiations to a German newspaper in 2024, allegedly to influence public opinion in Netanyahu’s favour. Urich is the second of Netanyahu’s close aides to be indicted over the document. Natan Odenheimer reports for the New York Times.   

Slovenia’s new conservative government yesterday abolished an entry ban on Netanyahu and two of his ministers. Slovenian Prime Minister Janez Jansa also lifted a ban on imports from Jewish settlements and ended an embargo on the export and transit of military weapons and equipment to and from Israel. AP News reports.

WEST BANK VIOLENCE 

Israel’s government is expected to allocate hundreds of millions of dollars in the coming days to rapidly expand Jewish settlement at about 60 sites across the occupied West Bank, according to a draft of the proposal reviewed by the New York Times and an official. If the plan goes forward as expected, the government will declare the new settlement points “temporary sites” and will fund the placement of 15 mobile homes and two additional community structures on each, the proposal draft set out. The intention is to create new realities on the ground and make physical changes to the territory that will be difficult to reverse if the country’s current leaders are not re-elected. Isabel Kershner reports.

RUSSIA-UKRAINE WAR 

Ukraine will seek an additional $20 billion in military funding from its allies at a Ukraine Defense Contact Group meeting next Thursday to cement what it sees as its current battlefield advantage over Russia, a Ukrainian defense source said. “We have a six- to nine-month window of opportunity on the battlefield that requires an urgent acceleration of funding,” the source said. Reuters reports.  

SUDANESE CIVIL WAR 

Sudanese Rapid Support Forces paramilitary carried out drone strikes late on Wednesday in central Sudan, killing at least 15 people and wounding dozens, health officials at el-Obeid Hospital said yesterday. Emergency Lawyers, a local aid monitoring group, said Thursday the toll is likely to increase as drones were still flying over el-Obeid. Fatma Khaled and Yassir Abdalla report for AP News.  

OTHER GLOBAL DEVELOPMENTS 

NATO will gradually adjust the strength of its peace support mission in Kosovo over the next year due to the steady security situation in the country, it said today, adding that the changes will occur gradually and in line with conditions on the ⁠ground, ​and could be reversed ​if needed. Reuters reports.  

262 Nigerians returned to Lagos from South Africa yesterday under a government-organized repatriation following violent anti-immigration protests, according to Nigeria’s Ministry of Foreign Affairs. The ministry earlier said over 1,000 Nigerians have registered for voluntary return. Ope Adetayo reports for AP News.  

U.S. FOREIGN AFFAIRS

The United States plans to significantly reduce the aircraft and warships that it makes available for NATO operations in Europe, according to two senior European officials. It was communicated to allies in early June in a written document, parts of which were reviewed by the New York Times. The Pentagon declined to comment on the specific numbers in the document and referred to a statement by its European Command last week that spoke in general terms of its intention to reduce its commitments in Europe. Christopher F. Schuetze and Eric Schmitt report.

U Min Zin, a U.S. citizen and student at the University of California, Berkeley who studies politics in Myanmar, was arrested by Chinese authorities earlier this month and accused of spying and threatening China’s national security, according to sources. Edward Wong reports for the New York Times.  

Italian prosecutors are investigating allegations that foreign workers, mainly from India and Kenya, were exploited while building a new U.S. consulate in Milan, with some reportedly earning less than $2 an hour despite being promised much higher wages. The contractor, Caddell Construction, and the State Department say they are cooperating with the investigation. Colleen Barry and Niccolo Lupone report for AP News. 

U.S. CARIBBEAN AND PACIFIC OPERATIONS 

The State Department on Thursday announced that it will sanction Cuba’s state-owned oil and gas company Unión Cuba-Petróleo (CUPET). Secretary of State Marco Rubio said the latest sanctions are pursuant to Trump’s May 1 executive order expanding sanctions on Cuba. Assets from CUPET were “unlawfully expropriated from American owners years ago,” Rubio added. Ryan Mancini reports for The Hill.  

U.S. IMMIGRATION DEVELOPMENTS 

A federal judge yesterday chided the Trump administration for failing to immediately comply with his decision last week ordering the government to lift a blanket pause on asylum decisions. “It should almost go without saying – but the Court will say it anyway … court orders vacating and setting aside agency policies have immediate effect once they are issued,” the judge wrote. “There is no excuse this time.” He ordered the administration to file a status report within 24 hours, informing him of the steps it has taken to comply with his order. David Nakamura reports for the Washington Post.

U.S. DOMESTIC DEVELOPMENTS 

FBI agents yesterday raided the Cleveland offices of the Ohio Organizing Collaborative, a pro-democracy organization that helps voters register in the state, three sources said. Agents also fanned out across the state, showing up at the homes of the group’s leaders and staff members, carrying some subpoenas and seeking information and electronic devices, the sources said. The investigation’s specific purpose remains unclear at the time of writing. Carol Leonnig, Will McDuffie, Alex Tabet, and Laura Barron-Lopez report for MS Now.  

The Pentagon resumed “normal operations” yesterday after part of the Pentagon went into lockdown in response to what spokesperson Sean Parnell called an “air quality issue” that necessitated “precautionary measures.” Subsequent testing found no issues. Gregory Svirnovskiy and Daniel Lippman report for POLITICO. 

The Senate Armed Services Committee voted this week to formally change the Pentagon’s name to the Department of War. Connor O’Brien and Leo Shane III report for POLITICO.  

The House of Representatives yesterday voted 218-198 to reject a measure to temporarily renew Section 702 of the Foreign Intelligence Surveillance Act. Robert Jimison and Dustin Volz report for the New York Times.  

TRUMP ADMINISTRATION ACTIONS

Trump said yesterday that he would nominate the U.S. attorney for Manhattan, Jay Clayton, to be the next director of national intelligence, following pushback from lawmakers over his choice of Bill Pulte for interim director. Trump, in a social media post, encouraged the Senate to confirm Clayton “as soon as possible.” Clayton was recommended for the post by CIA Director John Ratcliffe, according to a source. Julian E. Barnes, Jonah E. Bromwich, Devlin Barrett, and Benjamin Weiser report for the New York Times. 

Outgoing Director of National Intelligence Tulsi Gabbard yesterday revoked two Biden-era intelligence reports on the illness known as Havana Syndrome, saying they did not meet analytic standards, according to a memo. The reports, which concluded that involvement by foreign adversaries was unlikely, included selective exclusion of intelligence and evidence, the memo said. Yoko Kubota reports for the Wall Street Journal.  

Trump and his allies have discussed pushing lawmakers to pass a resolution aimed at voiding his first-term impeachments, according to sources. “It should be done because I did nothing wrong,” Trump said when asked about the resolution in a phone call this week with the Wall Street Journal. “It was a rigged deal—it was a whole rigged situation.” Annie Linskey, Olivia Beavers, and Natalie Andrews report.

TRUMP ADMINISTRATION LITIGATION 

The Kennedy Center board is seeking a stay of a federal judge’s order requiring Trump’s name to be removed from the building’s facade by today. Steven Sloan reports for AP News. 

Did you miss this? Stay up-to-date with our Litigation Tracker: Legal Challenges to Trump Administration Actions.

If you enjoy listening, Just Security’s analytic articles are also available in audio form on the justsecurity.org website.

ICYMI: Yesterday on Just Security

The post Early Edition: June 12, 2026 appeared first on Just Security.

Der (neue) Auskunftsanspruch im Zivilverfahren

Auf den ersten Blick wirkt das Gesetz zur Stärkung des zivil- und strafrechtlichen Schutzes vor digitaler Gewaltwie Anlassgesetzgebung. Eine solche Einordnung übersieht jedoch historische Kontinuitäten und unionsrechtliche Rahmung des Gesetzesvorhabens: Bereits im Jahr 2023, zur Zeit der Ampelregierung, hat das Bundesministerium der Justiz Eckpunkte zum Gesetz gegen digitale Gewalt veröffentlicht. Sie sahen im zivilrechtlichen Bereich, ähnlich wie der aktuelle Entwurf, Maßnahmen wie richterlich angeordnete Accountsperren (aktuell § 4 GgdG-E) oder Sicherungsanordnungen („Quick Freeze“, aktuell § 3 GgdG-E) vor. Mit Ablauf der Umsetzungsfrist der RL 2024/1385 (GewaltschutzRL) am 14.6.2027 soll die nicht einvernehmliche Herstellung und Veröffentlichung von sexualisierten Deepfakes in den Mitgliedstaaten (ohnehin) unter Strafe stehen (Art. 5 I b iVm Erwägungsgrund 19 der GewaltschutzRL).

Was neu und auf den ersten Blick leicht zu übersehen ist: § 2 GgdG-E sieht einen gegenüber dem geltenden § 21 II-IV TDDDG hinausgehenden zivilrechtlichen Auskunftsanspruch vor. Das ist angesichts des fragmentarisch ausgestalteten § 21 III TDDDG im Sinn des Rechtsschutzes begrüßenswert. Derzeit setzt ein Auskunftsanspruch voraus, dass absolute Rechte entweder aufgrund rechtswidriger audiovisueller Inhalte verletzt oder aufgrund spezifisch genannter Katalogstraftaten verletzt werden. Sofern es sich also z.B. „nur“ um ein Foto oder eine Textnachricht handelt, bedarf es der rechtswidrigen Verwirklichung einer Katalogstraftat. Mit §§ 185 oder 201a StGB – Beleidigung und Verletzung des höchstpersönlichen Lebensbereichs und höchstpersönlicher Rechte durch Bildaufnahmen – fallen typische digitale Gewaltphänomene unter die Katalogstraftaten. Ebenso einschlägig, aber nicht erfasst sind etwa die §§ 126a und 184k StGB: Sie betreffen die Phänomene Doxing, Downblousing und Upskirting. Diese Ausdifferenzierung ist historisch gewachsen. Für Betroffene dürfte sie ohne Weiteres weder ermittelbar noch nachvollziehbar sein.

Neben einer Vereinheitlichung auf der Basis von Rechtsverletzungen im Sinn des § 1 Abs. 1 S. 2 a-c GgdG-E sieht § 2 GgdG-E auch eine Erweiterung der auskunftsfähigen Daten vor. Bisher stellt § 21 TDDDG auf Bestandsdaten ab. In Zukunft werden neben den Bestandsdaten auch IP-Adresse, Zeitstempel und Portnummer erfasst sein (§ 2 Abs. 2 GgdG-E). Dem liegen die bereits am 22. April 2026 im Kabinett beschlossenen Änderungen der §§ 174ff TKG-E zugrunde (vgl. insbesondere § 174 V 9 TKG-E). Sie sehen u.a. eine unterschieds- und anlasslose Speicherung der genannten Daten für die Dauer von drei Monaten vor. Damit ist das Thema Vorratsdatenspeicherung erneut auf dem Tisch. Dabei dürfte die Gesetzgebung von einer Lockerung der grundrechtlichen Anforderungen durch die Entscheidung EuGH, C-470/21 vom 30. April 2024 – La Quadrature de Net u.a. ausgegangen sein.

Unionsrechtliche Grundlagen und Grenzen

Vorratsdatenspeicherung kann gerade in Deutschland auf eine lebhafte Rechtshistorie zurückblicken. Die Rechtsprechung von BVerfG und EuGH setzt ihr enge Grenzen. Bereits in BVerfG, 1 BvR 256/08 vom 2. März 2010 hat das Bundesverfassungsgericht die damals in RL 2006/25/EG vorgesehene sechsmonatige Vorratsdatenspeicherung für mit Art. 10 GG unvereinbar erklärt und die Möglichkeit einer Erstellung von Bewegungsprofilen mit dem Erfordernis einer hohen Eingriffsschwelle verknüpft. In der Entscheidung EuGH, C-793/19 und C-794/19 vom 22. September 2022 – SpaceNet hat der Gerichtshof zuletzt betont, dass eine anlass- und unterschiedslose Speicherung von IP-Adressen grundsätzlich nur dann mit Art. 7, 8 und 11 GrCH („chilling effects“) vereinbar ist, wenn diese zur Bekämpfung schwerer Kriminalität und Verhütung schwerer Bedrohungen der öffentlichen Sicherheit auf einen absolut notwendigen Zeitraum beschränkt ist. Zudem bedarf es einer materiell- und verfahrensrechtlichen Einhegung sowie eines effektiven Missbrauchsschutzes.

In La Quadrature de Net u.a. hat der EuGH nun eine Präzisierung vorgenommen. Dabei fokussiert er den Zusammenhang von Eingriffsintensität, Profilbildung und Rechtsgutschutz bzw. Verfolgung von Gemeinwohlzielen. Der EuGH geht davon aus, dass eine anlass- und unterschiedslose IP-Adressspeicherung nicht nur zur Bekämpfung schwerer Kriminalität, sondern auch bei der Bekämpfung von Straftaten imAllgemeinen grundrechtskonform erfolgen kann, sofern die Eingriffsintensität nicht als hoch einzustufen ist. Um die Intensität des Eingriffs zu bemessen, orientiert sich der EuGH an tatsächlichen Möglichkeiten zur Profilbildung: Erfolgt eine Speicherung von IP-Adressen in der Funktion eines Identitätsdatums (Bestandsdatum), ist nicht von einem schweren Eingriff auszugehen. Das bedeutet, es ist sicherzustellen, dass keine Verknüpfungen mit Verkehrs- oder Standortdaten stattfinden, sondern ausschließlich auf die Identifikation der betreffenden Person abgestellt wird. Dreh- und Angelpunkt ist also auch hier – weiterhin – die Profilbildung.

Bereits an dieser Stelle ergeben sich grundrechtliche Schwierigkeiten mit § 2 GgdG-E. Über die Integration von Portnummern und Zeitstempel (vgl. § 176 Abs. 1 1-4 TKG-E) ermöglicht die Bestimmung nicht nur die Identifikation von Geräten im mobilen Netz und öffentlichen WLAN, sondern auch eine Erstellung von Standort- und Bewegungsprofilen. Dass es sich dabei um keine Ermächtigungsgrundlage, sondern lediglich um eine tatsächliche Möglichkeit für Profilbildung handelt, ist unionsrechtlich unerheblich. Der EuGH stellt genau auf tatsächliche Möglichkeiten ab, wenn er Profilbildung mit hoher Eingriffsintensität verbindet. Eine Rechtfertigung wird damit nur mehr zum Zweck der Bekämpfung schwerer Kriminalität und Verhütung schwerer Bedrohungen der öffentlichen Sicherheit denkbar sein.

Damit stellt sich die Frage, wo die Grenze zwischen Bekämpfung schwerer Kriminalität und Verhütung schwerer Bedrohungen der öffentlichen Sicherheit und der Bekämpfung von Straftaten im Allgemeinen zu ziehen ist – und in welchen Bereich die nunmehr über die Vereinheitlichung relevanten Delikte des § 1 Abs. 1 S. 2 a-c GgdG-E fallen. Die erste Frage bemisst sich dem EuGH zufolge – soweit es keine einschlägigen Unionsrechtsregelungen gibt – nach dem Recht der Mitgliedstaaten. Maßgeblich sind dabei sich aus den Art. 7, 8, 11, 51 I GrCH ergebende Verhältnismäßigkeitsanforderungen. Jedenfalls ist es nach dem EuGH unzulässig, Straftaten als im genannten Sinn schwer zu qualifizieren, wenn „es sich angesichts der vorherrschenden gesellschaftlichen Bedingungen in dem betreffenden Mitgliedstaat nicht um schwere Straftaten handelt“ (EuGH, C-178/22 vom 30. April 2024). Ohne die Einordnung der in § 1 Abs. 1 S. 2 a-c GgdG-E abschließend vorzunehmen, ist auf Folgendes hinzuweisen: Lediglich ein Bruchteil der genannten Delikte ist Bestandteil der Katalogstraftaten des § 100a II 1 StPO (wie z.B. §§ 130, 184b, 184c II StGB). Zumindest die §§ 131, 184, 184a, 184c, 185, 186, 241 StGB sehen ein Strafmindestmaß unter einem Jahr Freiheitsstrafe vor, es handelt sich also um Vergehen iSd § 12 StGB. Bei den §§ 185, 186, 201a, 201b, 238 und 241 StGB handelt es sich um Antragsdelikte. Auch dem Gesetzesentwurf ist nicht zu entnehmen, dass eine Zuordnung zur Bekämpfung schwerer Kriminalität und Verhütung schwerer Bedrohungen der öffentlichen Sicherheit maßgebliches Aufzählungskriterium gewesen wäre. Vielmehr ist als entscheidend ausgewiesen, dass die „genannten Straftaten häufig im digitalen Raum begangen [werden] und eine besondere Nähe zum allgemeinen Persönlichkeitsrecht [aufweisen]“. Im Ergebnis dürfte das verfolgte Gemeinwohlziel daher (zumindest auch) die Bekämpfung von Straftaten im Allgemeinen sein. Eine grundrechtskonforme Zweck-Mittel-Relation dürfte der Gesetzesentwurf verfehlen.

Spitzfindigkeiten angesichts systematischer Straflosigkeit?

Sind das nicht alles nur Spitzfindigkeiten angesichts der grassierenden digitalen Gewalt? Diese Frage kann sich auch mit Blick auf die weiteren Verhältnismäßigkeitserwägungen des EuGH stellen: So berücksichtigt auch La Quadrature de Net u.a., mit Blick auf online begangene oder durch das Internet in der Begehung oder Verbreitung erleichterte Straftaten – also die hier einschlägigen digitalen Straftaten, dass eine anlass- und unterschiedslose IP-Adressspeicherung als effektivste und grundrechtsschonendste Maßnahme zu werten sein kann. Maßgeblicher Abwägungsumstand ist für den Gerichtshof dabei die Gefahr systematischer Straflosigkeit bei fehlendem Zugang zu IP-Adressen (Rz 119).

Rasch ist man an den Fall Collien Fernandes erinnert, die sich angesichts der Kultur von Straflosigkeit in Deutschland vorerst an die spanischen Instanzen gewandt hatte. Dass sich der angesprochenen Kultur jedoch mit einer unterschieds- und anlasslosen IP-Adressspeicherung effektiv begegnen ließe, vermögen die relevanten Gesetzesentwürfe nicht evidenzbasiert zu begründen. Vielmehr zeigt die jüngst veröffentlichte Dunkelfeldstudie LeSuBiA (auch) im digitalen Gewaltbereich eine signifikant niedrige Anzeigequote (2,4 Prozent unter Frauen / 0,9 Prozent unter Männern). Nach wie vor fehlt es an zentralen Zuständigkeiten und flächendeckenden Weiterbildungen im Bereich digitale Gewalt. Demokratiefördernde Projekte werden gestrichen; die Chance zur Einführung einer Verbandsklage wurde vergeben. All diese Faktoren indizieren eine Begünstigung von systematischer Straflosigkeit, denen sich mit weniger eingriffsintensiven Maßnahmen begegnen ließe: etwa durch die Schaffung zentraler Zuständigkeiten für digitale Gewalt, vergleichbar etwa mit der Zentralen Ansprechstelle Cybercrime für die Wirtschaft (ZAC) in Berlin und einer finanziellen Stärkung zivilgesellschaftlicher Anlaufstellen, wie etwa im Fall der neu geschaffenen Beratungsstelle QueerSafe (ebenfalls Berlin) – potentiell ausgestattet mit Verbandsklagerechten. Dem wäre eine umfassende Erfüllung der durch Art. 11 der Istanbul-Konvention begründeten Verpflichtungen zur Datenerhebung vorzuschalten. Sie ist Voraussetzung für evidenzbasiertes Vorgehen. Und noch einmal anders gedacht: Selbst – wie ursprünglich vorgesehen – erst einmal dem Quick-Freeze-Verfahren eine Chance zu geben, hätte die Eskalationsspirale der Eingriffsintensität sanfter gedreht. Warum es notwendig war, unmittelbar zu einer unterschieds- und anlasslosen Speicherung von IP-Adressen zu greifen, wäre noch substantiiert zu begründen. Gleiches gilt für die Speicherdauer. Denn jedenfalls ist eine solche Datenspeicherung nach dem EuGH auf das zeitlich absolut notwendige Minimum zu beschränken. Wieso dieses ausgerechnet bei drei Monaten ansetzen sollte, ist bisher nicht nachvollziehbar dargelegt.

Zurück bleiben Zweifel

Der Gesetzesentwurf versteht digitale Gewalt als „Handlungen im digitalen Raum oder mit digitalen Mitteln, die in rechtlich geschützte Güter, oft Persönlichkeitsrechte, eingreifen. Kennzeichnend ist die Nutzung digitaler Kommunikationsmittel und informationstechnischer Infrastrukturen“. Als solche ist sie Ausdruck gesellschaftlicher Macht- und Ungleichheitsverhältnisse. Das bringt auch Justizministerin Hubig zum Ausdruck, wenn sie sich auf Gisèle Pelicot und den Anspruch beruft, dass die Scham die Seite wechseln muss. Neben Frauen sind etwa Queers oder Rassismusbetroffene besondere Ziele digitaler Gewalt. Strukturell ist sie auf (Wieder)Herstellung einer spezifischen Geschlechterordnung, (Re)Etablierung von Rassismen als Struktur unserer Gesellschaft gerichtet. Im Einzelfall drücken sich diese Versuche als Überwachung, Kontrolle und Einschüchterung – in Form von Deepfakes, Doxing oder Hate Speech – aus. Selbst wenn wir (nur) diese Ausdrucksformen bekämpfen wollen, braucht es Auseinandersetzung mit diesen Zusammenhängen. Das zeigen Ergebnisse wie die Dunkelfeldstudie LeSuBiA. Es braucht Fragen nach der positiven Dimension von Meinungsfreiheit (wessen Freiheit schützt der Staat?), nach dem der Meinungsfreiheit inhärenten Gleichheitsanspruch und der Gefahr, vulnerable Stimmen im (digitalen) Forum demokratischer Meinungsbildung zu verlieren. Wie schon Aufarbeitungen der sogenannten Kölner Silvesternacht gezeigt haben, bergen oberflächliche Aufmerksamkeitskonjunkturen die Gefahr, feministische Anliegen als Stützpfeiler von Grundrechtseinschränkungen und Repressionen zu funktionalisieren. Die aktuellen Debatten um digitale Gewalt bieten eine Chance, es anders zu machen. Es wäre schade, sie zu verpassen. Gerade in Zeiten, in denen Rufe nach Schutz unserer Demokratie lauter und lauter werden.

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The measure forms part of a (mis)development that has so far attracted surprisingly little legal attention: since the 17th sanctions package of May 2025, the toolkit of “restrictive measures” – originally aimed at the office-holders of despotic regimes – has increasingly also been hitting journalists, analysts, and publicists, including, on occasion, EU citizens. The Baud case shows in exemplary fashion how far this practice has drifted from minimum rule-of-law standards. As early as October 2025, a legal opinion by the former CJEU judge Ninon Colneric and the international-law scholar Alina Miron (Université d’Angers) concluded that the present regime is, taken as a whole, incompatible with the EU Charter of Fundamental Rights and the ECHR.

The supposedly “smart” sanctions directed against private “disinformers” are not only contrary to fundamental rights, but also foolish. They amplify the reach and impact of the very propaganda they seek to combat, while at the same time discrediting the Union itself. Instead of trusting in the power of the fundamental right to freedom of expression, an overly anxious Union renders itself legally vulnerable.

The Legal Framework: Decision (CFSP) 2024/2643 and Regulation (EU) 2024/2642

Baud’s listing is based on Council Decision (CFSP) 2024/2643 of 8 October 2024 and the Regulation (EU) 2024/2642 adopted to implement it. The framework permits restrictive measures against individuals involved in actions or policies of the Russian government which undermine or threaten the fundamental values of the EU and its Member States, their security, independence and integrity, as well as those of international organisations and third countries. Individual listing is effected by a Council implementing regulation on a proposal from the High Representative or a Member State, unanimously, with the public excluded and without any prior hearing of the person concerned. The measures consist in the freezing of all funds and economic resources, the prohibition of economic support by third parties (Art. 2 of Regulation 2024/2642) and, for natural persons, a complete ban on entry and transit (Art. 1(1) of CFSP 2024/2643 as amended by Decision CFSP 2025/963).

The sanction takes effect immediately upon publication in the Official Journal. Anyone who continues to do business with Baud or enters into an employment or publishing contract with him risks incurring criminal and liability consequences of their own – under German law now tightened by the Sanctions Enforcement Act and the Act on the Adaptation of Criminal Offences and Sanctions for Breaches of Restrictive Measures, adopted in January 2026 (a detailed account of how the sanctions mechanism operates can be found here).

The Diffuse Accusation

In a few lines, Implementing Regulation (EU) 2025/2568 accuses Baud of being “a regular guest on pro-Russian television and radio programmes”, of acting as a “mouthpiece for pro-Russian propaganda” and of spreading conspiracy theories, “for example by accusing Ukraine of orchestrating its own invasion in order to join NATO.”

Anyone who takes the trouble to look more closely at the multitude of Baud’s publications and public appearances will find that these allegations – even if they are often disputed by Baud’s supporters – are at least in part accurate. Thus Baud propagates the claim that Ukraine, with a view to the Western integration it sought, had an interest in its own invasion. The Russian “special military operation”, he claims, was provoked by Ukraine through intensified shelling of the breakaway eastern regions and Crimea. Baud also regularly points to a 2019 statement by Zelensky’s later adviser on strategic communications, Oleksij Arestowytsch, to the effect that only NATO membership could permanently protect Ukraine from forced Russification, but that the price for this would be a Russian attack on Ukraine.

The problem with the allegations therefore lies – contrary to what is regularly assumed in the discussion so far – not primarily in their lack of truth. The allegations are problematic because, by their content and their substantive indeterminacy, they are incapable of justifying the massive interferences with fundamental rights based on them. Even someone who – like the author of this contribution – regards the allegation that Ukraine provoked its own invasion as misleading will readily classify this assertion as an expression of opinion protected by Art. 11 of the EU Charter of Fundamental Rights (on the interferences with further fundamental rights and freedoms not pursued further here, see here). Precisely because the European Union, in response to the Russian war of aggression, is engaged on Ukraine’s side with financial, military, logistical and humanitarian assistance, it must be possible to conduct the public debate within the Union openly as to the occasion, sense, nature and aims of this support. Sanctioning dissenting expressions of opinion appears, particularly in times of war, as a problematic narrowing of discourse.

The EU sanctions regime, and indeed Baud’s specific listing, do acknowledge this problem. For that reason – at least according to the wording of the decisions – Baud’s expressions of opinion are not in themselves made the occasion for the sanctions. Rather, the sanctions are justified by the additional accusation that they stand in an inner connection with “actions or policies attributable to the government of the Russian Federation which undermine or threaten the stability or security in a third country (Ukraine)”. Baud, it is said, is responsible for these governmental measures, implements them or supports them.

From what this asserted connection to measures of the Russian government actually derives, however, is not explained in publicly accessible documents. Baud points out – rightly, as far as can be seen – that since the Russian assault on Ukraine he has no longer appeared in Russian media, so as not even to give rise to any suspicion of closer ties to Russia. The EU’s sanctioning order also speaks only very vaguely of “pro-Russian television and radio programmes” and of the dissemination of “pro-Russian propaganda”. What counts as “pro-Russian”, however, is a matter of definition and may serve the EU as a means of sanctioning critics of its own political positions on a broad scale. The notion of “support” for Russian governmental measures likewise appears entirely without contours. Apparently it is enough in this respect merely to spread a hostile narrative agreeable to the Kremlin. Against this background, the wording used by the deputy German government spokesman Martin Giese with regard to the sanctioning of Baud at the Federal Press Conference of 17 December 2025 (“everyone who is active in this field must reckon with it happening to them too”) sounds, less like that of a government representative in a Union subject to the Charter of Fundamental Rights than like the threat of a Russian official.

The Indeterminacy of the Sanctions Regime and the Idea of Freedom of Expression

The indeterminacy of the accusations directed against Baud is an emanation of the indeterminacy that already characterises the constituent elements of the legal bases of the sanctions regime. Particularly problematic in this respect appears Art. 2(3)(a)(iv) of Regulation (EU) 2024/2642, which also forms the legal basis for the measures taken against Baud. Under it, it is sufficient for the sanctioning of private individuals that they engage in the “planning, directing, direct or indirect participation in, support for or other facilitation of the use of coordinated information manipulation and interference”. These terms leave the Council an almost unlimited margin of discretion. Does not every expression of opinion deviating from the official political positions of the EU “facilitate” the coordinated information manipulation and interference of the Russian government? Where the constituent elements themselves display no contours, the sanction threatens to become an instrument of political disciplining. The case of Jacques Baud shows in exemplary fashion that the EU institutions are prepared to interpret these self-created sanction grounds as broadly as conceivable.

The sanctions regime as such therefore already appears incompatible with Art. 11 of the EU Charter of Fundamental Rights. It is true that the General Court, in its RT France judgment of 27 July 2022 (T-125/22, paras. 75 et seq.) regarded the relevant legal bases as suitable to justify a prohibition on the broadcasting activity of the channel RT (Russia Today). It did so, however, by relying decisively on the fact that the channel “was under the continuous direct or indirect control of the leadership of the Russian Federation” (para. 174) and had carried out “continuous and concerted propaganda activities” on its behalf. And in its judgment on the sanctions imposed on Dmitrii Kiselev, head of the Russian news agency “Rossiya Segodnya” (T-262/15 of 15 June 2017), the General Court rightly emphasised that the notion of “supporters” of Russian propaganda must, in the interest of the effective protection of freedom of expression, remain confined to a circle of persons narrowly delimited in an objective manner (paras. 74 et seq.). The exceptional justification of the sanctions imposed on Kiselev followed, against this background, from his position as head of a state Russian news agency, from the radical character of his propagandistic statements, from his integration into the Russian apparatus of power and from the in fact only very relative restriction of his freedom of expression.

Jacques Baud is not, so far as can be seen, accused of anything comparable. As a person living and working in the EU, he is restricted in his freedom of expression by the sanctions far more directly than a member of the Russian nomenklatura living in Russia. Baud may be a “Russlandversteher” – a “Russia-understander” – who, owing to his lifelong preoccupation with the country, brings more understanding to bear for Russian politics than the Union finds agreeable. But it is precisely the intellectual irritation caused by such statements of those who think differently that the freedom of expression guaranteed by fundamental rights is aimed at protecting.

In its settled case-law the CJEU emphasises the fundamental importance of freedom of expression for the democratic social order of the Union: “That fundamental right, guaranteed in Article 11 of the Charter, constitutes one of the essential foundations of a pluralist, democratic society, and is one of the values on which, under Article 2 TEU, the Union is founded.” (CJEU, C‑203/15 and C‑698/15, 21 December 2016, Tele2 Sverige, para. 93). In its RT France decision cited above, the General Court additionally referred to the settled case-law of the European Court of Human Rights, which – entirely in line in this respect with the case-law of the German Federal Constitutional Court – consistently emphasises that freedom of expression constitutes one of the essential foundations of a democratic society (ECtHR, 22479/93, 28 September 1999, Öztürk v. Turkey, § 49). Subject to Art. 10(2) ECHR, this freedom applies not only to “information” or “ideas” that are favourably received or regarded as inoffensive or unimportant, but also – in accordance with the requirements of pluralism, tolerance and broadmindedness, without which there is no “democratic society” – to those that offend, shock or disturb (ECtHR, 5493/72, 7 December 1976, Handyside v. United Kingdom, § 49; cf. also ECtHR, 28470/12, 5 April 2022, NIT S.R.L. v. Republic of Moldova, § 177 and the case-law cited therein).

How this idea of freedom of expression is supposed to be compatible with the sanctioning of Jacques Baud’s statements therefore remains unclear –even if one regards his opinions, with very good reasons, as mistaken and irritating.

On the Disproportionality of the Sanctions

Even though the sanctions thus prove, in themselves, to be an impermissible interference with freedom of expression, it is worth taking an additional look at the question of their (dis)proportionality.

Under Art. 2(1) of Regulation 2024/2642, “all funds and economic resources belonging to, owned, held or controlled by the natural […] persons […] listed in Annex I […] shall be frozen”. Under Art. 2(2) of Regulation 2024/2642, no funds or economic resources may be “made available, directly or indirectly, to or for the benefit of” the sanctioned persons. Exceptions are possible under Art. 3 of Regulation 2024/2642 only insofar as they concern the satisfaction of the basic needs of the sanctioned persons and their family members and the financing of their legal defence. As the comparable case of the Berlin journalist Hüseyin Doğru shows, this is understood, at least by the German authorities, to mean merely financial provision at the level of the subsistence minimum. Under Art. 1(1) of CFSP 2024/2643, the Member States are moreover obliged “to prevent the entry into, or transit through, their territories of the natural persons listed in the Annex”.

In their severity, their comprehensiveness and their procedurally ambush-like character, these measures move clearly outside any proportionality. According to the original intention of the sanctions regime, their restrictive force was meant to correspond to the power of the power-politicians and oligarchs to be sanctioned. In Baud’s case, these instruments are directed against a Swiss pensioner. Confiscation of assets, prohibition on making funds available, a ban on entry and exit, a de facto occupational ban and monthly subsistence allowances are severe, fundamental interferences. That those affected are, by contrast, relegated to onerous and time-consuming legal protection obtainable only after the event makes their situation particularly problematic. That all this is supposed to be a legally acceptable, proportionate Union response to unwelcome expressions of opinion cannot be maintained with a clear conscience.

Foolish Sanctions and the Crisis of Freedom of Expression

The Union justifies its sanctions against Baud and other private individuals by reference to the war, the threat posed by hybrid operations, and the public interest in a resilient information space. These are concerns to be taken seriously. But they do not justify a practice that undermines the rule-of-law architecture of the Union itself. By its conduct, the EU violates not only the fundamental rights of the sanctioned persons. It also damages its own standing as a community of law and values. This will give further impetus to the anti-European narrative cultivated by pro-Russian, Trumpist and right-wing populist quarters. The unlawful, hysterical-seeming and foolish sanctions are thus an expression of a wider-reaching crisis of freedom of expression. It is to be hoped that the Union’s judiciary will put a sufficiently powerful stop to this misguided development.

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Restrictive Laws and Their Chilling Effect

The government’s campaign against independent civil society groups critical of its illiberal policies spanned over twelve years. From 2014 onwards, coordinated smear campaigns in government-aligned media were meant to undermine organisations’ credibility and call into question the public value they create. Increasing the pressure, a succession of legal instruments, each building on the last, were adopted to stigmatise, starve, and strangle independent organisations.

The legislative assault began in 2017 with the first foreign agent law in the European Union that mirrored its Russian predecessor. Act LXXVI of 2017 on the Transparency of Organisations Supported from Abroad (Lex NGO 2017) stigmatised certain civil society organisations as “foreign-funded organisations” via a discriminatory mechanism designed to burden, stigmatise, and deter civil society activity. In 2020, the Court of Justice of the EU found the Hungarian legislation unlawful, affirming that EU law protects the right to freedom of association as it “constitutes one of the essential bases of a democratic and pluralist society”. The government’s response to the judgment was revealing: rather than genuinely comply, it waited over ten months before nominally repealing the Lex NGO 2017 and simultaneously adopting its replacement without any public consultation. The new law (Act XLIX of 2021), albeit less menacing, still alarmed hundreds of civil society organisations, who feared discretionary State Audit Office inspections and conclusions about their operations published in public reports that could not be challenged before a court.

On World Refugee Day in June 2018, Parliament passed the “Stop Soros” law, criminalising individuals and organisation who assist asylum-seekers, including legal aid providers, using vague language, creating a tool in the hands of the government to intimidate members of civil society. In November 2021, in a ruling on the legal action brought by the European Commission, the CJEU struck that law down too, and the government dragged its feet until December 2022 when it eventually changed the Criminal Code provision in question so that the chilling effect on helping asylum-seekers remained in place. However, the European Commission never challenged in court the special “immigration tax” on donors funding migration-related activities, even if it repeatedly recommended repealing it in its annual Rule of Law Reports.

The LGBTIQ community was subjected to the same intimidation through a succession of constitutional amendments and laws that progressively restricted their fundamental rights, including the right to freedom of expression and assembly. These restrictions were not incidental to the broader dismantling of civic space as they were part of the same logic, using law to define and exclude communities deemed threatening to the political order. However, the banning of Pride marches in spring 2025, that threatened organisers with prison and participants with high fines, backfired. About 300,000 people marched peacefully in Budapest, albeit under the auspices of the mayor of Budapest and not in a formal assembly recognised by the police.

The Sovereignty Protection Law, adopted in December 2023, marked a further escalation in the hostile environment for free civil society organisations which were exposing government wrongdoings and encouraging public debate. The law created a new state agency, the Sovereignty Protection Office, with broad investigative powers over organisations deemed to jeopardise Hungary’s sovereignty by representing foreign influence, without meaningful procedural safeguards against the Office’s investigations and slanderous reports. The law also amended the Criminal Code using intentionally vague terms to sanction with prison terms the use of foreign funding for political campaigning. Hungarian NGOs turned to the Constitutional Court with no avail, and also applied to the European Court of Human Rights. Based on the infringement action brought be the European Commission, the pending CJEU judgment on the Sovereignty Protection Law – following the Advocate General’s Opinion in February 2026 – is expected to pronounce that the law is not compatible with EU law and can provide a direct legal basis for its repeal.

Following up on PM Orban’s threat to “clean out the bed bugs”, a May 2025 bill on the Transparency of Public Life went further still: it would have allowed the government to blacklist a broad range of for-profit and non-profit entities, freezing their access to their income and their ability to operate – what civil society organisations named “Operation Starve and Strangle”. Eventually the bill did not proceed to a parliamentary debate.

Despite years of constant intimidation, smear campaigns, and legal and administrative threats, Hungarian human rights organisations maintained their determination to operate and built a strong coalition to withstand pressure, offer support and promote civic space. But the cumulative effect of this restrictive architecture was precisely what it was designed to achieve: a chilling effect on civil society activity, a drain on organisational resources diverted to defending themselves, and the gradual normalisation of a public sphere in which independent voices were sidelined and operated under constant stress.

Acknowledging the painful toll on society, Prime Minister Péter Magyar, in his inaugural parliamentary address on 9 May 2026, gave a remarkable apology to civil society actors, journalists, teachers, and health workers who had been stigmatised and harassed for speaking out. That acknowledgement matters and has given a sense of much-needed relief that attacks on civil society are finally over. But acknowledgement without structural remedy, the restoration of foundational civic space rights and an enabling environment, is insufficient.

The Needed Shift From Resistance to Reform Capacity

If the past decade demanded that civil society operate primarily in defensive mode – protecting vulnerable groups, accountability, and its own space under sustained pressure – the coming period demands something qualitatively different.

The task ahead is no longer to resist erosion but to participate in the rebuilding of democracy and rule of law actively and independently. As the drive to correct past distortions can inherently produce new risks and imbalances or undermine due process, both informal and formal civil society groups have a distinctive role to play here as a structured, independent force that holds reform processes to democratic standards even while supporting their objectives.

This dual function – sustaining public pressure for democratic and constitutional reform while maintaining independence from government – requires organisational capacity, adequate funding, and a safe legal environment that makes this possible. It also requires a clear shared agenda. The most concrete articulation of what that agenda must contain has emerged from within Hungarian civil society itself.

An Agenda for Strengthening Hungary’s Civic Space

The Civilizáció Coalition – a platform of over fifty independent Hungarian NGOs that emerged as a response to the Lex NGO 2017 – has put forward Civil Minimum 2026, a minimum set of legal and policy recommendations to strengthen an enabling environment for civil society.

First, to strengthen the legal framework for civic space, the coalition calls for repealing restrictive laws (e.g., the Sovereignty Protection Law and the Lex NGO 2021), reviewing administrative burdens on civil society, and developing an incentivising legal framework for civic organising as well as for philanthropic foundations and corporate giving. These are the minimum conditions for civil society to operate without the threat of state-directed interference, in a stable and predictable environment.

The second set of recommendations call for enhancing the transparency and integrity of public funding to civil society and democracy promotion by reforming national-level public funding structures to ensure they are open, criteria-based, and insulated from political capture. Meaningful civil society involvement in the design, monitoring and evaluation of EU funds should continue and build on the partnership principle enshrined in EU cohesion policy as well as through the EU Charter of Fundamental Rights monitoring framework.

Thirdly, after long years of systemic deficiencies, substantive public consultation processes should be reinstated both with government structures and in parliament. Experimenting with direct citizen participation methods could help sustain the high levels of civic engagement that have emerged during the campaign (including the TISZA party’s network of volunteers) and continue since the elections. Hungary should also strive to re-engage with the Open Government Partnership,  a multi-stakeholder organisation, and strengthen freedom-of-information frameworks.

Crucially, the upcoming constitutionally relevant legislative processes and the design of any future constitution-making process will be testing cases for participatory governance where effective input from citizens, civil society, and academia will be key to build democratic legitimacy.

The European Union’s Civic Space Tools and Limits

While they cannot replace national action, the EU’s legal and policy instruments provide an important supporting framework for civic space. Since the EU funding conditionality super milestones – the criteria whose fulfilment is linked to the release of frozen EU funds – were designed primarily around judicial independence and anti-corruption measures, and not the full spectrum of civic space conditions, nurturing most if not all key features of a robust environment for civil society, free media, or culture will remain a task for the new Hungarian government.

Nevertheless, a solid European framework is evolving to protect civic space and should be actively mobilised. The CJEU’s judgment on Hungary’s Lex NGO 2017, as well as the relevant ECtHR case law on freedom of association, Venice Commission opinions, the European Commission’s Strategy for Civil Society (November 2025), and the Council conclusions on the role of civic space to protect and promote fundamental rights (March 2023) and the EU Fundamental Rights Agency’s monitoring about civic space pressures, together constitute a clear normative framework against which domestic reforms can and should be assessed. The EU partnership principle, which underpins civil society’s formal role in monitoring EU funds implementation, provides a concrete mechanism for restoring structured civil society participation that has immediate legal and financial implications. European Union institutions, including Member States, should follow these domestic reform processes closely, providing normative leverage and technical support, to encourage initiatives that should be carried out at the national level.

The Real Test

Péter Magyar’s government’s stated commitment to dismantling institutional distortions and rebuilding a pluralistic constitutional order is both welcome and necessary. But commitments require legal operationalisation, and legal operationalisation requires political will sustained beyond the initial post-election momentum. Institutional legacies, policy neglect, and political polarisation will not disappear overnight. Additionally, there is a particular risk, visible in comparative transitions, including in Poland, that the energy for structural reform dissipates once the most visible or urgent measures have been taken.

Thus, it will be civil society’s task in this context to ensure that the full set of civic space restoration measures remains on the agenda throughout the re-democratisation process, and that the required legal and policy tools are treated as matters of structural necessity rather than sectoral interest. The Civilizáció Coalition’s Civil Minimum provides a useful practical starting point. Whether the new Hungarian government engages with it substantively will be an early and telling indicator of the depth of its democratic commitments.

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Die Maßnahme reiht sich in eine (Fehl-)Entwicklung ein, die bislang erstaunlich wenig juristische Aufmerksamkeit erfährt: Seit dem 17. Sanktionspaket vom Mai 2025 trifft das ursprünglich gegen die Funktionsträger despotischer Regime gerichtete Instrumentarium der „restriktiven Maßnahmen“ zunehmend auch Journalisten, Analysten und Publizisten – darunter gelegentlich auch EU-Bürger. Der Fall Baud zeigt exemplarisch, wie weit sich diese Praxis von rechtsstaatlichen Mindeststandards entfernt hat. Schon im Oktober 2025 kam ein Rechtsgutachten der ehemaligen EuGH-Richterin Ninon Colneric und der Völkerrechtlerin Alina Miron (Université d’Angers) zu dem Schluss, dass das gegenwärtige Regime insgesamt mit der EU-Grundrechtecharta und der EMRK unvereinbar sei.

Die gegen private „Desinformanten“ gerichteten nur vermeintlich „smarten“ Sanktionen sind nicht nur grundrechtswidrig, sondern auch dumm. Sie verstärken die Reichweite und Wirkungsmacht der Propaganda, die sie zu bekämpfen suchen, und diskreditieren zugleich die Union selbst. Statt auf die Macht der grundrechtlich garantierten Meinungsfreiheit zu vertrauen, macht sich die überängstlich agierende Union selbst rechtlich angreifbar.

Der Rechtsrahmen: Beschluss (GASP) 2024/2643 und Verordnung (EU) 2024/2642

Die Listung Bauds gründet auf dem Beschluss (GASP) 2024/2643 des Rates vom 8. Oktober 2024 sowie der zu seiner Umsetzung erlassenen Verordnung (EU) 2024/2642. Der Rahmen ermöglicht restriktive Maßnahmen gegen Einzelpersonen, die an Handlungen oder politischen Maßnahmen der russischen Regierung beteiligt sind, welche die Grundwerte der EU und ihrer Mitgliedstaaten, ihre Sicherheit, Unabhängigkeit und Integrität sowie jene internationaler Organisationen und Drittländer untergraben oder bedrohen. Die Listung erfolgt durch Durchführungsverordnung des Rates auf Vorschlag des Hohen Vertreters oder eines Mitgliedstaats, einstimmig, unter Ausschluss der Öffentlichkeit, ohne vorherige Anhörung der betroffenen Person. Die Maßnahmen umfassen das Einfrieren sämtlicher Gelder und wirtschaftlicher Ressourcen, das Bereitstellungsverbot gegenüber Dritten (Art. 2 VO 2024/2642) sowie für natürliche Personen ein vollständiges Ein- und Durchreiseverbot (Art. 1 Abs. 1 GASP 2024/2643 in der durch Beschluss GASP 2025/963 geänderten Fassung).

Die Sanktion wirkt unmittelbar mit Veröffentlichung im Amtsblatt. Wer mit Baud weiterhin Geschäfte macht oder einen Arbeits- oder Verlagsvertrag mit ihm schließt, riskiert eigene Straf- und Haftungsfolgen – nach deutschem Recht inzwischen verschärft durch das Sanktionsdurchsetzungsgesetz und das im Januar 2026 verabschiedete Gesetz zur Anpassung von Straftatbeständen und Sanktionen bei Verstößen gegen restriktive Maßnahmen (eine ausführliche Darstellung der Sanktionsmechanik findet sich hier).

Der diffuse Vorwurf

Die Durchführungsverordnung (EU) 2025/2568 wirft Baud in wenigen Zeilen vor, er sei „regelmäßig Gast in prorussischen Fernseh- und Radioprogrammen“, fungiere als „Sprachrohr für prorussische Propaganda“ und verbreite Verschwörungstheorien, „indem er beispielsweise die Ukraine bezichtigt, ihre eigene Invasion herbeigeführt zu haben, um der Nato beizutreten.“

Wer sich die Mühe macht und die Vielzahl der Publikationen und öffentlichen Auftritte Bauds näher betrachtet, wird feststellen, dass diese Vorwürfe – auch wenn sie von Unterstützern Bauds oft bestritten werden – wenigstens in Teilen zutreffend sind. So verbreitet Baud die Aussage, die Ukraine habe mit Blick auf die von ihr angestrebte Westintegration ein Interesse an ihrer eigenen Invasion gehabt. Die russische „militärische Spezialoperation“ sei von der Ukraine durch einen intensivierten Beschuss der abtrünnigen östlichen Regionen und der Krim provoziert worden. Baud verweist zudem regelmäßig auf eine Aussage des späteren Beraters Selenskyjs für strategische Kommunikation, Oleksij Arestowytsch, aus dem Jahr 2019, wonach nur eine Nato-Mitgliedschaft die Ukraine dauerhaft vor einer Zwangsrussifizierung schützen könne, der Preis dafür aber ein russischer Angriff auf die Ukraine sein werde.

Die Problematik der Vorwürfe liegt demnach zunächst – anders als in der bisherigen Diskussion häufig unterstellt – nicht primär in ihrem fehlenden Wahrheitsgehalt. Problematisch sind die Vorwürfe, weil sie ihrem Inhalt und ihrer inhaltlichen Unbestimmtheit nach die mit ihnen begründeten massiven Grundrechtseingriffe nicht zu rechtfertigen vermögen. Auch wer – wie der Verfasser dieses Beitrags – den Vorwurf, die Ukraine habe ihre eigene Invasion provoziert, für irreführend hält, wird diese Behauptung doch ohne weiteres als grundrechtlich geschützte Meinungsäußerung einordnen können  (zu den hier nicht weiter thematisierten Eingriffen in weitere Grundrechte und Grundfreiheiten, siehe hier). Gerade weil sich die Europäische Union in Reaktion auf den russischen Angriffskrieg auf der Seite der Ukraine mit finanzieller, militärischer, logistischer und humanitärer Hilfe engagiert, muss die öffentliche Auseinandersetzung über Anlass, Sinn, Art und Ziele dieser Unterstützung innerhalb der Union offen geführt werden können. Die Sanktionierung abweichender Meinungsäußerungen erscheint gerade in Kriegszeiten als problematische Verengung des Diskurses.

Auch das EU-Sanktionsregime und die konkrete Listung Bauds erkennen diese Problematik durchaus an. Die Meinungsäußerungen Bauds werden deshalb – jedenfalls dem Wortlaut der Beschlüsse nach – auch nicht für sich genommen zum Anlass der Sanktionen gemacht. Die Sanktionen werden vielmehr mit dem zusätzlichen Vorwurf begründet, sie stünden in einem inneren Zusammenhang mit „Handlungen oder politische[n] Maßnahmen, die der Regierung der Russischen Föderation zuzurechnen sind und die die Stabilität oder die Sicherheit in einem Drittland (Ukraine) untergraben oder bedrohen“. Baud sei für diese Regierungsmaßnahmen verantwortlich, setze diese Maßnahmen um oder unterstütze sie.

Woraus sich dieser behauptete Zusammenhang zu Maßnahmen der russischen Regierung eigentlich ergibt, wird in öffentlich zugänglichen Dokumenten allerdings nicht erläutert. Baud verweist – soweit erkennbar zu Recht – darauf, er sei seit dem russischen Überfall auf die Ukraine nicht mehr in russischen Medien aufgetreten, um jeden Verdacht näherer Verbindungen zu Russland gar nicht erst aufkommen zu lassen. Die Sanktionsanordnung der EU spricht auch nur sehr unbestimmt von „prorussischen Fernseh- und Radioprogrammen“ und von der Verbreitung „prorussischer Propaganda“. Was „prorussisch“ ist, ist aber Definitionsfrage und kann der EU dazu dienen, Kritiker der eigenen politischen Positionen in weitem Umfang zu sanktionieren. Auch der Begriff der „Unterstützung“ von russischen Regierungsmaßnahmen erscheint vollkommen konturenlos. Offenbar soll es insoweit bereits genügen, ein dem Kreml genehmes feindliches Narrativ zu verbreiten. Die auf die Sanktionierung Bauds bezogene Formulierung des stellvertretenden deutschen Regierungssprechers Martin Giese in der Bundespressekonferenz vom 17. Dezember 2025 („alle, die auf diesem Feld unterwegs sind, müssen damit rechnen, dass es auch ihnen passieren kann“) klingt vor diesem Hintergrund weniger wie die eines Regierungsvertreters in der der Grundrechte-Charta unterworfenen Union als wie die Drohung eines russischen Offiziellen.

Die Unbestimmtheit des Sanktionsregimes und die Idee der Meinungsfreiheit

Die Unbestimmtheit der gegen Baud gerichteten Vorwürfe ist Ausfluss der Unbestimmtheit, die schon die Tatbestände der rechtlichen Grundlagen des Sanktionsregimes kennzeichnet. Besonders problematisch erscheint dabei Art. 2 Abs. 3 lit. a, iv) VO (EU) 2024/2642, der auch die Rechtsgrundlage für die gegen Baud ergriffenen Maßnahmen bildet. Danach genügt für die Sanktionierung von Privatpersonen die „Planung, Steuerung, unmittelbare oder mittelbare Beteiligung an, die Unterstützung oder anderweitige Erleichterung des Einsatzes koordinierter Informationsmanipulation und Einflussnahme“. Diese Begriffe lassen dem Rat einen nahezu unbegrenzten Ermessensspielraum. „Erleichtert“ nicht jede Meinungsäußerung, die von den offiziellen politischen Positionen der EU abweicht, die koordinierte Informationsmanipulation und Einflussnahme der russischen Regierung? Wo schon der Tatbestand keine Konturen aufweist, droht die Sanktion zum Instrument politischer Disziplinierung zu werden. Der Fall Jacques Baud zeigt beispielhaft, dass die EU-Organe bereit sind, diese selbst geschaffenen Sanktionstatbestände denkbar weit zu interpretieren.

Schon das Sanktionsregime als solches erscheint deshalb als unvereinbar mit Art. 11 EU-Grundrechte Charta. Zwar hat das EuG im Urteil RT France vom 27.7.2022 (T-125/22, Rn. 75 ff.) die entsprechenden Rechtsgrundlagen für tauglich befunden, ein Verbot der Sendetätigkeit des Senders RT (Russia Today) zu rechtfertigen. Es hat dabei allerdings entscheidend darauf abgestellt, dass der Sender „unter der ständigen direkten oder indirekten Kontrolle durch die Führung der Russischen Föderation stand“ (Rn. 174) und in deren Auftrag „kontinuierliche und konzertierte Propagandaaktionen durchgeführt“ habe. Und auch in seinem Urteil über die gegen den Leiter der russischen Nachrichtenagentur „Rossiya Segodnya“ Dimitrii Kiselev verhängten Sanktionen (T-262/15 v. 15.6.2017) hat das EuG zu Recht betont, dass der Begriff der „Unterstützer“ der russischen Propaganda im Interesse des effektiven Schutzes der Meinungsfreiheit auf einen auf objektive Weise eng begrenzten Kreis von Personen beschränkt bleiben müsse (Rn. 74 ff.). Die ausnahmsweise Rechtfertigung der gegen Kiselov verhängten Sanktionen ergebe sich vor diesem Hintergrund aus seiner Position als Leiter einer staatlichen russischen Nachrichtenagentur, aus dem radikalen Charakter seiner propagandistischen Äußerungen, aus seiner Einbindung in den russischen Machtapparat und aus der faktisch nur sehr relativen Einschränkung seiner Meinungsäußerungsfreiheit.

Jacques Baud wird Vergleichbares, soweit erkennbar, nicht vorgeworfen. Als in der EU lebende und arbeitende Person wird er durch die Sanktionen in seiner Meinungsfreiheit auch viel unmittelbarer beschränkt als ein in Russland lebendes Mitglied der russischen Nomenklatura. Baud mag ein „Russlandversteher“ sein, der schon wegen seiner lebenslangen Beschäftigung mit dem Land für die russische Politik mehr Verständnis aufbringt, als es der Union gefällt. Gerade die gedankliche Irritation durch entsprechende Äußerungen Andersdenkender ist es aber, auf die die grundrechtlich garantierte Meinungsäußerungsfreiheit abzielt.

Der EuGH betont in ständiger Rechtsprechung die für die demokratische Gesellschaftsordnung der Union fundamentale Bedeutung der Meinungsfreiheit: „Dieses in Art. 11 der Charta gewährleistete Grundrecht stellt eine der wesentlichen Grundlagen einer demokratischen und pluralistischen Gesellschaft dar, die zu den Werten gehört, auf die sich die Union nach Art. 2 EUV gründet.“ (EuGH, C‑203/15 und C‑698/15, 21.12.2016, Tele2 Sverige, Rn. 93). Das EuG hat in seiner oben zitierten RT France-Entscheidung ergänzend auf die ständige Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte verwiesen, der – insoweit ganz der Rechtsprechung des Bundesverfassungsgerichts entsprechend – stets betont, dass die Freiheit der Meinungsäußerung eine der wesentlichen Grundlagen einer demokratischen Gesellschaft bilde (EGMR, 22479/93, 28.9.1999, Öztürk/Türkei, § 49). Vorbehaltlich des Art. 10 Abs. 2 EMRK gelte diese Freiheit nicht nur für günstig aufgenommene oder als unschädlich oder unwichtig angesehene „Informationen“ oder „Ideen“, sondern – im Einklang mit den Erfordernissen von Pluralismus, Toleranz und Aufgeschlossenheit, ohne die es keine „demokratische Gesellschaft“ gebe – auch für solche, die verletzen, schockieren oder beunruhigen (EGMR, 5493/72, 7.12.1976, Handyside/Vereinigtes Königreich, § 49; vgl. auch EGMR, 28470/12, 5.4.2022, NIT S.R.L./Republik Moldau, § 177 und die dort angeführte Rechtsprechung).

Wie diese Idee der Meinungsfreiheit mit der Sanktion der Äußerungen Jacques Bauds vereinbar sein soll, erschließt sich deshalb auch und gerade dann nicht, wenn man dessen Meinungen mit sehr guten Gründen für irrig und irritierend ansieht.

Zur Unverhältnismäßigkeit der Sanktionen

Auch wenn sich die Sanktionen damit schon aus sich heraus als unzulässiger Eingriff in die Meinungsfreiheit erweisen, lohnt ein ergänzender Blick auf die Frage nach ihrer (Un-)Verhältnismäßigkeit.

Nach Art. 2 Abs. 1 VO 2024/2642 werden „sämtliche Gelder und wirtschaftlichen Ressourcen, die im Eigentum oder Besitz, der in Anhang I aufgeführten natürlichen […] Personen […] sind oder von diesen gehalten oder kontrolliert werden […] eingefroren“. Nach Art. 2 Abs. 2 VO 2024/2642 dürfen den sanktionierten Personen „weder unmittelbar noch mittelbar Gelder oder wirtschaftliche Ressourcen zur Verfügung gestellt werden oder zugutekommen.“ Ausnahmen sind nach Art. 3 VO 2024/2642 nur insoweit möglich, als es um die Befriedigung der Grundbedürfnisse der sanktionierten Personen und ihrer Familienangehörigen und um die Finanzierung ihrer Rechtsverteidigung geht. Wie der insoweit vergleichbare Fall des Berliner Journalisten Hüseyin Doğru zeigt, wird darunter zumindest von den deutschen Behörden lediglich eine finanzielle Ausstattung auf Existenzminimumsniveau verstanden. Nach Art. 1 Abs. 1 GASP 2024/2643 sind die Mitgliedstaaten zudem verpflichtet, „zu verhindern, dass im Anhang aufgeführte natürliche Personen in ihr Hoheitsgebiet einreisen oder durch ihr Hoheitsgebiet durchreisen“.

In ihrer Härte, ihrer Umfänglichkeit und in ihrer prozessualen Überfallsartigkeit bewegen sich diese Maßnahmen klar außerhalb jeder Verhältnismäßigkeit. Ihre restriktive Macht sollte nach der ursprünglichen Intention des Sanktionsregimes der Macht der zu sanktionierenden Machtpolitiker und Oligarchen entsprechen. Im Fall Baud richten sich diese Instrumente gegen einen schweizerischen Pensionär. Vermögensentzug, Bereitstellungsverbot, Ein- und Ausreiseverbot, faktisches Berufsverbot sowie monatliche Existenzpauschalen sind scharfe fundamentale Eingriffe. Dass die Betroffenen demgegenüber auf einen erst nachträglich zu erlangenden, mühsamen und zeitraubenden Rechtsschutz verwiesen sind, macht die Lage für sie besonders problematisch. Dass all dies eine rechtlich akzeptable, verhältnismäßige unionale Reaktion auf unliebsame Meinungsäußerungen sein soll, lässt sich mit gutem Gewissen nicht vertreten.

Dumme Sanktionen und die Krise der Meinungsfreiheit

Die Union rechtfertigt ihre Sanktionen gegen Baud und andere Privatpersonen unter Hinweis auf den Krieg, die Bedrohung durch hybride Operationen und das öffentliche Interesse an einem widerstandsfähigen Informationsraum. Das sind ernstzunehmende Anliegen. Aber sie rechtfertigen keine Praxis, die die rechtsstaatliche Architektur der Union selbst untergräbt. Die EU verletzt mit ihrem Vorgehen nicht nur die Grundrechte der sanktionierten Personen. Sie beschädigt zugleich ihr eigenes Ansehen als Rechts- und Wertegemeinschaft. Das wird dem von prorussischer, Trumpscher und rechtspopulistischer Seite gepflegten antieuropäischen Narrativ weiteren Auftrieb geben. Die rechtswidrigen, hysterisch anmutenden und dummen Sanktionen sind damit Ausdruck einer weiter ausgreifenden Krise der Meinungsfreiheit. Es steht zu hoffen, dass die Unionsgerichtsbarkeit dieser Fehlentwicklung einen hinreichend mächtigen Riegel vorschieben wird.

The post Die EU-Sanktionen gegen Jacques Baud und die Krise der Meinungsfreiheit appeared first on Verfassungsblog.

Football’s inclusion stems from the 2024 EU anti-money laundering package, which expanded the scope of obliged entities beyond traditional financial actors to include selected non-financial sectors deemed exposed to money laundering risks. According to AMLA, the decision reflects both the scale of the football industry and its structural vulnerabilities to illicit financial flows.

The European Parliament played a key role in adding football to the final legislative package, citing concerns over the sector’s global reach, large financial flows, and cross-border transactions. Ownership structures in football are often complex and not always transparent, making it difficult to identify beneficial owners and trace the origin of funds.

The economic significance of football has grown into a global industry, with major revenues generated through media rights, sponsorships, and transfers. At the same time, the sport’s popularity and social visibility can make it attractive for the laundering of illicit proceeds, including through the acquisition of clubs, transfer market activity, and sponsorship arrangements.

A recurring concern highlighted in the interview is the lack of uniform regulation across the EU. While some Member States already apply anti-money laundering obligations to parts of the football sector, rules remain fragmented, creating inconsistencies in supervision and oversight. The new EU framework aims to address this by establishing a harmonised set of requirements and a common risk-based methodology across all Member States.

Under the new system, clubs and agents will be required to implement customer due diligence and transaction monitoring procedures, including checks on beneficial ownership and the origin of funds. The objective is not to impose identical supervisory models across sectors, but to ensure consistent standards and a level playing field within the EU. Football will be assessed under a dedicated risk-based methodology for the non-financial sector, reflecting the specific characteristics of the industry. While AMLA will not directly supervise clubs, it will guide and evaluate the national authorities responsible for enforcement.

Overall, the inclusion of football reflects a broader shift in the EU’s anti-money laundering framework towards addressing high-risk sectors characterised by large cross-border financial flows, complex ownership structures, and significant regulatory fragmentation.

Renan Bendel Vaughan (master’s student in European Union Law at the School of Law of University of Minho and ENDE Research Grant Holder – UMINHO/BIM/2026/40)

Setting the scene: eight days in April, one contradiction

In April 2026, two events gave rise to a situation that European Union law has not yet addressed in its entirety. On the 21st, the Court of Justice of the European Union (CJEU), sitting as a full court, delivered its judgment in Commission v. Hungary (C-769/22) and recognised for the first time an autonomous and self-sufficient violation of Article 2 of the Treaty on European Union (TEU): the Hungarian legislation stigmatising and marginalising LGBTI+ people was held to be contrary to “the very identity of the Union as a common legal order in a society in which pluralism prevails.”[1] Article 2 TEU thereby acquired the status of a justiciable provision with genuine normative force, capable of constituting an autonomous ground of infringement in its own right, provided that the violation is manifest and particularly serious – a threshold the Court held to be crossed in the Hungarian case on account of the cumulative and coordinated character of the breaches of Articles 1, 7, 11, and 21 of the Charter of Fundamental Rights of European Union (CFREU).[2]

Eight days later, on the 29th, the European Parliament adopted a resolution which examined the European Commission’s 2025 Rule of Law Report, and noted that 93% of the Commission’s recommendations are repeats from previous years, with only 6% having been fully implemented; furthermore, it condemned the use of spyware as a persistent and systematic threat to the rule of law, requiring binding response mechanisms.[3]

Read together, these two instruments reveal a contradiction that is constitutionally precise. Article 2 TEU acquired, in April 2026, an operative density that goes beyond declaratory commitment. The Parliament confirmed, at that same moment, that one of the most elementary structural conditions of the rule of law – judicial independence – remains exposed to a threat that Union law has yet to address: the clandestine surveillance of members of the judiciary by spyware tools operated by the Member States themselves. The legal basis for imposing a positive obligation has just been consolidated, yet the very problem that would call for such imposition remains without an articulated legal response. This text argues that construction is already possible – and that the time has come to undertake it.

The full-spectrum instrument

The starting point is empirical. The PEGA report, adopted in March 2023, documents the use of Pegasus against judges and prosecutors in Poland, Hungary, and Spain; Predator in Greece; and FinFisher in other contexts.[4] The Report concluded that it could reasonably be assumed that all Member States had acquired or deployed one or more spyware systems, which renders the threat to the judicial function independent of the identity of the operator.[5] In Poland alone, between 2017 and 2022, the number of individuals subjected to operational surveillance authorised by the public prosecutor reached 578 – a figure not restricted to Pegasus alone; among those under surveillance were members of the public prosecution service, including a prosecutor standing as a candidate in parliamentary elections.[6] The Parliament’s resolution on the 2025 Rule of Law Report confirmed that this pattern persists, placing it explicitly on the same level as political interferences in judicial appointments and pressure exerted against investigative journalists.[7]

Spyware is a full-spectrum interception instrument. Pegasus, developed by the NSO Group, is able to infiltrate the target device in its entirety, accessing encrypted communications, microphone, camera, and deleted data.[8] This analysis uses the term “surveillance” rather than “espionage” because the relevant object here is not the act of information collection, but the structural effect that the possibility of such collection produces upon the judicial function.

Bauman and Lyon describe this transformation as the passage from the panopticon to liquid surveillance. The classical panopticon – Bentham’s prison design, theorised by Foucault – required the potential presence of an inspector to produce compliance: the inmate behaved because someone might be watching.[9] Contemporary digital surveillance has dissolved even that structure. It moves silently, without fixed architecture, without a visible watcher. The subject no longer knows whether they are being observed, or when, or by whom, or to what end – and it is precisely that not-knowing that does the work. For a judge, that internalisation does not just affect the worker, but the function itself. The juridification of its effects, proceeds not through social theory but through the case law of the courts.

The harm that leaves no trace

The chilling effect is, before a legal category, a behavioural phenomenon: confronted with the possibility of sanction or surveillance, individuals fall silent or modify their conduct, even where no sanction has yet been applied.[10] The European Court of Human Rights (ECtHR) consolidated this as an autonomous legal category in Klass and Others v. Germany: the mere existence of legislation permitting secret surveillance constituted an interference with the right protected by Article 8 of European Convention of Human Rights (ECHR), irrespective of any proof that the applicant had actually been monitored.[11] In Szabó and Vissy v. Hungary the Court held that the mere possibility of surveillance sufficed to produce inhibitory effects on the exercise of rights, without any requirement of individualised proof.[12]

The CJEU operationalised an equivalent logic in Digital Rights Ireland (joined cases C-293/12 and C-594/12): Directive 2006/24/EC (the Data Retention Directive) could generate, in the minds of users of electronic communications, the feeling that their private life is subject to constant surveillance, and that this effect alone constituted sufficient grounds for invalidity.[13] The harm derives not from the damage suffered, but rather from the uncertainty maintained.

Fajdiga and Zagorc show that the chilling effect on judges with greater institutional visibility amplifies its inhibitory efficacy disproportionately: the threat directed at a prominent judge communicates to the judiciary as a whole, without words, the cost of an autonomous decision. In a particularly striking formulation, the authors describe this condition as the transformation of guaranteed freedom into feardom – a state in which one formally possesses freedom yet lives in fear of exercising it.[14]

When the target of surveillance is a judge in the exercise of a jurisdictional function, the chilling effect ceases to be a private matter. The judge who learns, or reasonably suspects, that members of the judiciary have been subjected to surveillance deliberates under a structurally altered condition: an ambient uncertainty that can neither be proved nor contested, because the specific act that produced it remains, by definition, unknown. Bárd shows that a chilling effect of this kind strikes as the very condition of effectiveness of Union law: without judges who are genuinely free from undisclosed external pressure, the mechanism of preliminary reference and the guarantee of effective judicial protection lose their substance.[15]

The harm is not suffered by the individual judge alone. What is damaged is the jurisdictional function itself, as a constitutional guarantee of the Union’s legal order. This displacement – from the level of subjective rights to the level of constitutional architecture is the central doctrinal step of the argument. It explains why this cannot be treated as a simple matter of data protection, and why it demands a response at the level of Article 2 TEU. In A.K. and Others (joined cases C-585/18, C-624/18, and C-625/18), the Court established that the appearance of judicial independence is not a prerogative of the judge but a right of the litigant: Article 47 CFREU requires a court that those subject to its jurisdiction can perceive as genuinely free from external influence.[16] Where the structural possibility of surveillance undermines the appearance, it simultaneously and prospectively infringes the right of every litigant whose dispute is adjudicated under conditions of ambient uncertainty. The harm migrates from the private sphere of the judge to the constitutional architecture of the judicial function.

The intersection of exclusions

The case law developed since Associação Sindical dos Juízes Portugueses (C-64/16), through Repubblika (C-896/19) and Commission v. Poland (C-619/18), offers robust protection of judicial independence against normative and institutional pressure – legislative reforms affecting irremovability, alterations to appointment regimes, and instrumentalised disciplinary procedures.[17] But this body of case-law was fashioned to address what is visible. It presupposes the existence of a contestable act: a law, a decision, a norm susceptible to challenge. Clandestine surveillance produces none of these traces. What remains is an effect that dissipates before the law can capture it.

Regulation (EU) 2016/679 (GDPR), Article 2(2)(a) and (b) expressly excludes from its scope the processing of data carried out in the exercise of activities falling outside the scope of Union law; recital 16 confirms that the Regulation does not apply to activities concerning national security.[18] Nonetheless, La Quadrature du Net and Others (joined cases C-511/18, C-512/18, and C-520/18) confirmed that this exclusion is not unlimited: a Member State invoking national security cannot thereby exempt itself wholesale from the obligations of Union law, and that the CFREU continues to impose inviolable conditions on derogations.[19] The interaction of data protection, judicial independence, and the national security reservation of Article 4(2) TEU, produces an intersection of exclusions within which clandestine surveillance of the judicial function is installed. None of the three regimes was designed to address this specific type of problem, and their overlapping reproduces the gap across each of its layers.

Imposing the result

Commission v. Hungary (C-769/22) constitutes an inflection point. The CJEU held that only violations that are manifest and particularly serious are capable of giving rise to a finding of autonomous non-compliance under Article 2 TEU, but held equally that such a finding is possible, and that the threshold was crossed in the Hungarian case.[20] This benchmark, together with Commission v. Poland (C-448/23) – which confirmed that Article 2 TEU generates legally binding duties for the Member States –, enables the conclusion that Article 2 TEU is today an operative provision with dense normative content, capable of grounding positive obligations of protection.[21]

The argument put forward is both more modest and more robust than a call for Union supervision of national intelligence services. Article 2 TEU, read in conjunction with Articles 7, 8, and 47 CFREU and the second subparagraph of Article 19(1) TEU, imposes results-based obligations: Member States must ensure that their surveillance operations do not compromise the structural conditions for the exercise of the jurisdictional function. These obligations are expressed in two minimum requirements.

The first is prior review by an authority that is genuinely independent both from the executive branch and from the judicial order under scrutiny. The CJEU set out the structural content of this requirement in Prokuratuur (C-746/18), in the context of access to retained traffic data: prior review must be entrusted to a body that is a genuine third party in relation to the authority requesting access. Where the surveillance target is a member of the judiciary, the requirement is yet more stringent: proximity to either the intelligence services or the judicial order under scrutiny would reproduce, rather than resolve, the constitutional problem that the review is designed to prevent.[22]

The second is the existence of effective means of challenge and repair when surveillance is discovered, with a corresponding positive procedural obligation on the State to actively seek out corroborative evidence once the person concerned presents strong prima facie elements. This procedural obligation flows directly from Article 47 CFREU: effective judicial protection, as the Court held in A.K. and Others, is not satisfied by the formal availability of a remedy where the structural conditions for its exercise have been compromised by the very act that the remedy is meant to address.[23]

A serious objection is well known: Article 4(2) TEU reserves national security to the exclusive competence of the Member States. Taken seriously, however, this objection becomes the strongest argument in favour of the positive obligation. The reservation protects the competence of the Member States, not the arbitrary exercise of that competence. The surveillance of members of the judiciary produces direct effects in the domain of judicial independence, governed by the second subparagraph of Article 19(1) TEU. The positive obligation does not penetrate the Member States’ competence in matters of national security: it governs the exercise of that competence in a constitutionally coherent manner, imposing the result without determining the means. The Union does not appoint judges or manage national courts; yet it imposes, in a binding manner, that Member States guarantee effective judicial independence. The same reasoning applies here.

What the law already permits

Over decades, the EU has constructed a normative architecture designed to guarantee that its Member States share a genuine commitment to the rule of law. That commitment rests, ultimately, on the existence of judges who decide without fear. What the present article has sought to demonstrate is that this fundamental presupposition is today threatened by a mechanism that Union law has yet to name with precision: the clandestine surveillance of the judicial function by the very States that constitute the Union’s legal order.

The threat is all the more disturbing because it is silent. It does not manifest itself through a law, or a decree, or any act susceptible to challenge. It installs itself in uncertainty. The mere possibility – demonstrated, documented, statistically present – suffices to produce the inhibitory effect. And once the effect is produced judicial independence is no longer what it appears to be: it becomes a form of complicity with the very fragility it is meant to resist.

Union law possesses today the doctrinal instruments to respond to this threat. Article 2 TEU is operative. Article 47 CFREU is demanding. The positive obligation is constructible. What is lacking is not a legal foundation: it is the institutional will to recognise it. It is in this gap between what the law already permits and what the institutions have yet to do that the real risk lies: that judicial independence in the EU will, without anyone formally declaring it, turn into a system of feardom.

[1] Judgment CJEU Commission v. Hungary, 21 April 2026, case C-769/22, ECLI:EU:C:2026:326, para. 556.

[2] Commission v. Hungary, paras. 547, 551, 553.

[3] European Parliament, Resolution of 29 April 2026 on the Commission’s 2025 Rule of Law Report (2025/2239(INI)), P10_TA(2026)0147, recitals O, AB and paras. 60-64, 161, available at: https://www.europarl.europa.eu/doceo/document/TA-10-2026-0147_EN.html.

[4] European Parliament, Report on the use of Pegasus and equivalent surveillance and spyware, A9-0189/2023, 25 May 2023, paras. 1, 59, 72, available at: https://www.europarl.europa.eu/doceo/document/A-9-2023-0189_EN.html. See also: European Parliament, Recommendation of 15 June 2023 to the Council and the Commission following the investigation of alleged contraventions and maladministration in the application of Union law in relation to the use of Pegasus and equivalent surveillance spyware (2023/2500(RSP)), P9_TA(2023)0244, Preamble, recitals O, P, Q, R, Y, AD, para. 3, available at: https://www.europarl.europa.eu/doceo/document/TA-9-2023-0244_EN.html. 

[5] European Parliament, Report on the use of Pegasus and equivalent surveillance and spyware, paras. 1, 10

[6] Poland, Sejm, Wypowiedzi na posiedzeniach Sejmu [Statements during Sejm Sessions], 10th Session, 1st day of debates, 24 April 2024, Statement No. 080, available at: https://www.sejm.gov.pl/sejm10.nsf/wypowiedz.xsp?posiedzenie=10&dzien=1&wyp=080. See also: European Parliament, Report on the use of Pegasus and equivalent surveillance and spyware, paras. 61, 72.

[7] European Parliament, resolution on the Commission’s 2025 Rule of Law Report, recitals N, O and paras. 9, 13, 59-64.

[8] John Scott-Railton, Bill Marczak, Bahr Abdul Razzak, Masashi Crete-Nishihata and Ron Deibert, “Reckless Exploit: Mexican Journalists, Lawyers, and a Child Targeted with NSO Spyware,” Citizen Lab Research Report No. 93, University of Toronto, June 2017, pp. 7-10, available at https://citizenlab.ca/research/reckless-exploit-mexico-nso. See also: European Parliament, Report on the use of Pegasus and equivalent surveillance and spyware, paras. 5-6.

[9] Zygmunt Bauman and David Lyon, Liquid surveillance: a conversation (Cambridge: Polity Press, 2013), Introduction and Chapter 2, pp. 7-11, 75.

[10] Frederick Schauer, “Fear, risk and the first amendment: unravelling the chilling effect,” Boston University Law Review 58 (1978): 689, 693-695, available at: https://scholarship.law.wm.edu/facpubs/879.

[11] Judgment ECtHR Klass and Others v. Germany, Application no. 5029/71, 6 September 1978, paras. 34, 37, 41.

[12] Judgment ECtHR Szabó and Vissy v. Hungary, Application no. 37138/14, 12 January 2016, paras. 33, 38, 53-54, 73.

[13] Judgment CJEU Digital Rights Ireland, joined cases C-293/12 and C-594/12, 8 April 2014, ECLI:EU:C:2014:238, paras. 27, 33-34, 37.

[14] Mohor Fajdiga and Saša Zagorc, “Freedom or feardom of expression of judges? Exploring the chilling effect on judicial speech,” European Constitutional Law Review 19 (2023): 267-269, available at: https://doi.org/10.1017/S1574019623000093.

[15] Petra Bárd, “In courts we trust, or should we? Judicial independence as the precondition for the effectiveness of EU Law,” European Law Journal 27 (2022): 194-197, 206, available at: https://doi.org/10.1111/eulj.12425.

[16] Judgment CJEU A.K. and Others, joined cases C-585/18, C-624/18 and C-625/18, 19 November 2019, ECLI:EU:C:2019:982, paras. 123, 127-128, 153.

[17] Judgments CJEU, Associação Sindical dos Juízes Portugueses, case C-64/16, 27 February 2018, ECLI:EU:C:2018:117, paras. 31, 41-42, 44-45; Repubblika, case C-896/19, 20 April 2021, ECLI: EU:C:2021:311, para 26; Commission v. Poland, case C-619/18, 24 June 2019, ECLI:EU:C:2019:531, paras. 53-57, 63-65.

[18] Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation), OJ L 119, 4 May 2016, p. 1, recital. 16, Article 2(2)(a)-(b).

[19] Judgment CJEU La Quadrature du Net and Others, joined cases C-511/18, C-512/18 and C-520/18, 6 October 2020, ECLI:EU:C:2020:791, paras 99-100.

[20] CJEU Commission v. Hungary, C-769/22, para. 551.

[21] Judgment CJEU Commission v. Poland, case C-448/23, 18 December 2025, ECLI:EU:C:2025:975, paras. 102, 103, 105, 108.

[22] Judgement CJEU Prokuratuur, case C-746/18, 2 March 2021, ECLI:EU:C:2021:152, paras. 51-55.

[23] CJEU A.K. and Others, paras. 123, 127–128, 153, 167.

Picture credit: by KATRIN BOLOVTSOVA on pexels.com.

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

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

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

The future of the case against Argentina

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

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

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

Is there any room for politics in impeachment?

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

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

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

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

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

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

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

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

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

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

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

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

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

Similar cases, different pathways

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

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

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

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

Why the Seabed Disputes Chamber matters

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

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

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

Provisional measures and procedural compression

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

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

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

Possible judicial trajectories

The SDC’s response could take several forms.

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

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

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

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

Conclusion

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

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

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

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

The conference took place to mark AMLA’s first public engagement since its establishment and to signal its operational launch. According to the authority, the event aimed to bring together stakeholders across the EU’s anti-money laundering ecosystem to discuss evolving financial crime risks, foster cooperation, and support the implementation of anti-money laundering and counter-terrorist financing (AML/CFT) rules.

Discussions centred on three main priorities: improving the effectiveness of financial intelligence in detecting and investigating illicit activity, strengthening consistency in supervision across EU Member States, and addressing emerging risks linked to artificial intelligence, crypto-assets, and digital financial services.

The operation was carried out in close cooperation with a broad international network of partners, including law enforcement agencies from 31 countries worldwide, asset recovery offices (AROs), financial intelligence units (FIUs), specialised anti–money laundering and organised crime units, as well as leading private-sector partners from the financial services and cryptocurrency industries.

Highlighting the unprecedented level of cooperation, the operation was further supported by Eurojust, INTERPOL’s Financial Crime and Anti-Corruption Centre (IFCACC), the EPPO, and AMLA.

As a result of this coordinated cooperation, authorities identified and traced 884 bank accounts, 80 companies, 55 crypto wallets, 74 vehicles and one vessel, and 44 real estate properties, including six valued at a combined EUR 5.64 million, and located two suspected criminals, with one arrest carried out via ENFAST.

The operation also generated significant intelligence on criminal financial networks and emerging money laundering methods, supporting ongoing investigations across participating jurisdictions and strengthening future cross-border enforcement efforts.

The commemoration took place against the backdrop of growing armed conflicts worldwide and increasing pressure on the international criminal justice system. Eurojust and its partners reiterated their shared commitment to ensuring accountability for the most serious international crimes and to supporting victims and survivors.

Since 2016, Eurojust and the Genocide Prosecution Network have jointly highlighted the EU Day Against Impunity to raise awareness of core international crimes and strengthen cooperation between national authorities.

In their 2026 statement, attention was drawn to the continued efforts of EU Member States in exercising extra-territorial and universal jurisdiction.

In 2025 alone, more than 30 new cases were opened across over 20 countries, reflecting sustained investigative and prosecutorial activity in relation to crimes committed in more than 30 states.

Recent judicial developments were also highlighted, including landmark convictions in Sweden for genocide through the transfer of children, the first convictions in the Netherlands and France for crimes committed against the Ezidi community, and ongoing proceedings in cases involving Rwanda and the Democratic Republic of the Congo. In Belgium, an indictment was filed in a case involving alleged war crimes and crimes against humanity committed in Liberia.

Progress in accountability for crimes committed in Ukraine was also underlined, including the work of the JIT on alleged core international crimes in Ukraine (➝eucrim 1/2025) and a landmark conviction in Finland, where a Russian national was found guilty on the basis of universal jurisdiction for war crimes committed in 2014.

Finally, Eurojust also highlighted increasing efforts in the area of corporate accountability (legal responsibility of companies for participation in criminal conduct), with ongoing investigations into alleged corporate involvement in core international crimes.

Ms Šniutytė-Daugėlienė has been National Member for Lithuania since 2019. Before joining Eurojust, she worked at the Regional Prosecutor’s Office of Klaipėda, later becoming Chief Public Prosecutor of its 2nd Criminal Prosecution Division. She was appointed Deputy Prosecutor General of Lithuania in 2016, a position she held before joining the Agency.

During her first mandate as Vice-President, which began in June 2022, Ms Šniutytė-Daugėlienė played a key role in coordinating the Agency’s support to accountability efforts for Russian crimes in Ukraine. As National Member for Lithuania, she supported the establishment of the Joint Investigation Team (JIT) on alleged core international crimes (CICs) in Ukraine and contributed to the creation of the International Centre for the Prosecution of the Crime of Aggression against Ukraine (ICPA) (→eucrim 1/2025) .

Before joining Eurojust, Ms Lionte served within Romania’s National Anticorruption Directorate and gained extensive experience in international judicial cooperation, working as a national expert at the European Court of Human Rights (ECHR) and, most recently, as a trial lawyer in the Office of the Prosecutor of the International Criminal Court (ICC).

Ms Lionte succeeds Daniela Buruiană as Romania’s National Member at Eurojust.

 Abstract:

Although rarely acknowledged, Buddhist monastics are among the most active lawmakers and jurists in Asia, operating sophisticated networks of courts and constitutions while also navigating—and shaping—secular legal systems. This book provides the first in-depth study of Buddhist monastic law and its entanglements with state law in Sri Lanka from 1800 to the present. Rather than a top-down account of colliding legal orders, Schonthal draws on nearly a decade of archival, ethnographic and empirical research to document the ways that Buddhist monks, colonial officials and contemporary lawmakers reconcile the laws of the Buddha and the laws of the land using practices of legal pluralism. Comparative in outlook and accessible in style, this book not only offers a portrait of Buddhist monastic law in action, it also yields new insights into how societies manage multi-legality and why legal pluralism leads to conflict in some settings and to compromise in others.

Table of contents:

1. Monastic law, state law and the plurality of legal pluralism in Sri Lanka

Part I:

2. The unity and diversity of Buddhist monastic law

3. Jurisdictionalising Buddhism in colonial Ceylon

4. Practising legal pluralism in the monastery

Part II:

5. Like and unlike 'Law': making a monastic judiciary

6. Law's Karmas: Nirvana, rebirth and the cosmological consequences of monastic law

Part III:

7. Legalising' monastic law: the politics of legal recognition in post-colonial Sri Lanka

8. Constitutionalising Vinaya

Conclusion: pluralising legal pluralism

Glossary

References.

On the author:

Benjamin Schonthal, University of Otago, New Zealand

(source: Legal History Blog)

The Supreme Court has developed an increasingly pronounced reliance on Charles-Louis de Secondat, Baron de La Brède et de Montesquieu, as an authoritative voice on American constitutional structure. But the Montesquieu who appears in the United States Reports is not the complex, empirical sociologist who authored The Spirit of Laws in 1748.  This Note argues that neither of the Court’s principal approaches to separation of powers — formalism and functionalism — fully engages with the intellectual tradition each claims to inherit from Montesquieu.

The second is Historical Absence and Constitutional Interpretation:

[This Note] draws attention to a type of originalist argument — the argument from historical absence — and the implementation issues it exacerbates. To address these challenges, it presents a modest framework that may be employed by courts required to consider these arguments. This Note conceives of arguments from historical absence as a style of assertion that centers the lack of historical evidence. A litigant hoping to rely upon historical absence may canvass the relevant historical record, find no sufficient historical analogue, and contend that this lack of evidence is itself supportive of their argument — typically, that a governmental practice would have been deemed (un)constitutional at the Founding. These arguments may be used both offensively (using historical absence to challenge a practice) and defensively (using historical absence to support a practice). Simply put, an offensive argument from historical absence may be: “No evidence supports the assertion that the original public meaning of X, or any analogous original public meaning, would permit Y; thus, Y is impermissible.” By contrast, a defensive argument may be: “No evidence supports the assertion that laws regulating Y, or its analogues,were treated as constitutionally suspect at the Founding; thus, the original public meaning of X was understood to permit Y and analogous regulations.”

--Dan Ernst 

Einem Verlag wurde in dem KI-Textabschnitt fälschlicherweise unlauteres Geschäftsgebaren unterstellt. Er klagte – und gewann.

Urteil des LG München I
https://the-decoder.com/wp-content/uploads/2026/06/26_O_869_26_begl_Abschrift_Urteil_v_28_05_2026_Geschwarzt_Geschwarzt_Geschwarzt.pdf

📢 Call for Papers! The Block Center for the Study of International Business Law at Brooklyn Law School invites scholars to submit proposals for the 2026 International Business Law Scholars Roundtable, taking place on Friday, October 9, 2026.

Researchers working in international business, economic, and financial law are encouraged to apply. Selected scholars from outside the New York City area may receive up to $500 in travel reimbursement.

Read more details and submit your 500-word proposal by July 15th, 2026 at this link.

Collection sur Persée	1881 - 2009
Barrière	fixe 2000
Discipline	archéologie, études classiques
Éditeur actuel	École Française de Rome
eISSN	non disponible
DOI	10.3406/mefr

Historique de la collection

• 1881-1970 - Mélanges d'archéologie et d'histoire (ISSN :0223-4874)
• 1971-1999 - Mélanges de l'Ecole française de Rome. Antiquité (ISSN : 0223-5102)
• 1971-1988 - Mélanges de l'Ecole française de Rome. Moyen-Age, Temps modernes (ISSN : 0223-5110)
• 1989-1999 - Mélanges de l'Ecole française de Rome. Moyen-Age (ISSN : 1123-9883)
• 1989-1999 - Mélanges de l'Ecole française de Rome. Italie et Méditerranée (ISSN : 1123-9891)

Présentation de la collection

L'École française de Rome publie un périodique, les Mélanges de l'École française de Rome, divisé depuis 1974 en trois séries : Antiquité (MEFRA), Moyen Âge (MEFRM), Italie et Méditerranée modernes et contemporainse (MEFRIM), à compter de deux livraisons annuelles chacune.

Les MEFRA publient des articles portant sur l’histoire, la culture et l’archéologie des mondes anciens en Méditerranée, en particulier en Italie, en Afrique du Nord et dans les Balkans, mais portant également sur les interactions entre cet espace et le reste du monde antique. Ils publient aussi des dossiers thématiques en lien avec les fouilles et les programmes scientifiques de l’EFR, et plus généralement des études relevant de diverses disciplines (histoire, archéologie, archéométrie, épigraphie, philologie, droit etc.), de la Préhistoire à la fin de l’Antiquité.

Les MEFRM ont constitué, de 1971 à 1988, une série commune avec les Temps Modernes et, depuis 1989, une série indépendante avec deux fascicules annuels. Ils proposent des contributions scientifiques originales dans les domaines de l’histoire, de l’archéologie et des sciences sociales sur l’Italie et la Méditerranée du haut Moyen Âge à la Renaissance. La plupart des fascicules contiennent un dossier thématique coordonné par un spécialiste. Les articles, qui comprennent souvent l’édition de sources inédites et des cahiers iconographiques, illustrent les divers champs de la médiévistique contemporaine. Ils sont publiés en français, en italien et en anglais, avec des résumés dans la langue de l’auteur et en anglais.

Les MEFRIM publient des articles d’histoire moderne et contemporaine portant sur l’histoire de l’Italie, de la Méditerranée et ses interactions avec la péninsule italienne, des relations et des échanges franco-italiens. Compte tenu des fonds romains, la revue accorde une place importante à l’histoire de Rome, de l’Église et de la papauté tout en couvrant tous les domaines disciplinaires. Elle est ouverte au droit et aux sciences sociales, en particulier à la géographie, à la sociologie et aux sciences politiques. Elle publie des dossiers thématiques en lien avec les programmes scientifiques de l’École et des sources.

Liens

Les ouvrages et les périodiques publiés depuis l'année 2000 sont, par contre, disponibles en ligne sur le site web de Casalini Digital Division à l'exception des fascicules 280 et 281 de la Collection de l'École française de Rome, du fascicule 4 de « Sources et documents d'histoire du Moyen Âge » et des publications parues dans les collections du Centre Jean Bérard. www.torrossa.it

À partir de 2010 (tomes 122-1) les Mélanges de l'École française de Rome sont aussi disponibles en ligne sur le site de www.revues.org. La Chronique des activités archéologiques devient une revue à part entière accessible uniquement en ligne également sur le site de www.revues.org. La lecture/visualisation des articles et de la Chronique est totalement gratuite:

> journals.openedition.org/mefra/ (Mélanges. Antiquité)

> journals.openedition.org/mefrm/ (Mélanges. Moyen Âge)

> journals.openedition.org/mefrim/ (Mélanges. Italie et Méditerranée modernes et contemporaines)

> journals.openedition.org/cefr/ (Chronique des activités archéologiques)

 

Mélanges d'archéologie et d'histoire

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Mélanges de l'Ecole française de Rome. Moyen-Age, Temps modernes

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Mélanges de l'Ecole française de Rome. Antiquité

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Mélanges de l'Ecole française de Rome. Moyen-Age

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Mélanges de l'Ecole française de Rome. Italie et Méditerranée

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 See AWOL's full List of Open Access Journals in Ancient Studies 

Sous la direction de Sandrine Huber 

See AWOL's Alphabetical List of Open Access Monograph Series in Ancient Studies

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

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

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

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

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

Liberal legalism and three theories of constitutional consolidation

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

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

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

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

Militant constitutionalism: old wine, new bottle?

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

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

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

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

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

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

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

Not far enough?

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

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

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

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

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

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

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

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

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

Orbis Biblicus et Orientalis. Series Archaeologica, 43

This volume contains the revised and expanded papers concerning Mesopotamia given at the conference on New Perspectives on the Chronology of the Early Second Millennium BC in the Near East and Egypt. It includes investigations of the chronology of the Isin, Larsa, and Hana dynasties, as well as papers concerned with the chronology of northern Mesopotamia in the first half of the second millennium BC. New and authoritative studies of the most important sources, including the Venus Tablets of Ammi-saduqa, the Kültepe Eponym Lists, and the Mari Eponym Chronicle, incorporate not only philological and historical insights but also information from astronomy, eclipses, calendrical systems, radiocarbon analyses, dendrochronology, ice-layer dating, and vulcanology. One of the many important conclusions reached is that the most probable chronological scheme is the Lower Middle Chronology with the accession of Hammurabi in 1784 BC.
The volume will be valued by all those interested in the history of Mesopotamia.

This book is published open access. It can be downloaded here. 

year: 2025

isbn: 9789042957077

pages: X-255 p.

 

On 20 March 2025, the ECJ delivered its judgment in Case C-763/22 (Procureur de la République v OP). The case concerned a decision by an EU Member State to resolve a conflict between a European Arrest Warrant and an extradition request relating to the same person.

Background of the case

In the main proceedings, both France (via an EAW) and Switzerland (via a conventional extradition request) requested Spain to surrender a French national accused of committing offences relating to the counterfeiting and forgery of payment cards.

Under Spanish law, the Consejo de Ministros (Council of Ministers) – a governmental body – ruled on the multiple requests and gave precedence to extradition to Switzerland. The referring French court asked the ECJ to assess the compatibility of Spanish law with Art. 16(3) of the Framework Decision on the European Arrest Warrant (FD EAW).

The ECJ's ruling

The first aspect of the criticism from France concerned the question of whether, in the European Arrest Warrant system – which is essentially geared towards purely judicial proceedings – an executive body can be called upon to decide in the event of a conflict. The ECJ answered in the affirmative. The wording of Art. 16 and the legislative context between paragraphs 1 and 3 of the provision already distinguish between "executing judicial authority" and "competent authority". With the latter term, the EU legislator expresses the discretion that Member States have under international extradition law, where executive bodies are generally involved in assessing political or diplomatic issues. This distinction also corresponds to the objectives of the FD EAW, which sought to establish a separate system for the surrender of persons convicted of or suspected of a criminal offence within the Union, but did not aim to harmonise extradition procedures.

The second aspect of the case concerned the question of whether legal proceedings must be brought against the decision on precedence provided for in Art.16(3) FD EAW. Spanish law does not provide for an appeal against the decision of the Council of Ministers. The ECJ acknowledged that Art.16(3) does not exhaustively regulate the procedure for cases where an EAW coincides with an extradition request, and that the deciding authority has considerable discretion. However, it held that this discretion must be subject to judicial review through an effective legal remedy. This follows from Art. 47 CFR and the fact that the decision on precedence may have significant implications for the legal situation of the person concerned.

Put in focus

The ECJ's judgment followed the Advocate General’s opinion in the case (→eucrim 3/2024, 193). In the specific case, the ECJ judgment is likely to result in Spain’s decision of precedence in favour of Switzerland being upheld.

The judgment primarily affects the regulatory systems of the EU Member States: on the one hand, they are granted greater procedural autonomy regarding the jurisdiction for deciding on multiple requests, provided that a request based on traditional or conventional extradition procedures coincides with a European Arrest Warrant against the same person. This also endorses the differing arrangements for the allocation of jurisdiction in such cases between the individual EU Member States. On the other hand, EU Member States must now verify whether the appropriate legal remedies are available to the individual against the granting decision and, where necessary, make legislative adjustments.

That is also how we, the project The School of Salamanca, happened to find ourselves in the academic hometown of many of our authors: participating in the congress dedicated to the 500th anniversary of the School, but, of course, also getting back to the roots and seeing how the School of Salamanca came to be in all its material aspects.

The School of Salamanca was an intellectual movement in Spain during the sixteenth century and early seventeenth century. But what remains of it, and does it still matter for the challenges of our present and future? This was the central theme of the congress marking the fifth centenary of Francisco de Vitoria’s appointment to the cátedra de prima theologia at the University of Salamanca in 1526. The international congress, running for an entire week, from February 9-13, and consisting of 35 panels, was wonderfully organised by María Martín Gómez, Idoya Zorroza and David Jiménez in collaboration with other colleagues from the University of Salamanca, the Pontifical University of Salamanca and the Pontifical Faculty of Theology San Esteban. Despite a very full program, the team also made it possible to include a rich cultural offer to accompany the intellectual exchange. Overlapping panels, including those presented online, however, made it impossible to attend all sessions, many of which sounded highly interesting. For this reason, the following congress report highlights our favorite takeaways and is therefore necessarily selective and subjective.

Past – Was There a ‘School of Salamanca’?

At first glance, the School of Salamanca seems like a clearly identifiable intellectual movement rooted in sixteenth-century Spain. However, closer inspection reveals a more complicated picture. Historians and philosophers continue to debate whether it ever existed as a “school” in the strict sense—an institution with shared doctrines, methods, and membership—or whether it is better understood as a retrospective label imposed on a diverse set of thinkers.

Traditionally, the School is associated with figures such as Francisco de Vitoria and Domingo de Soto, whose lectures and writings at the University of Salamanca shaped discussions on theology, law, and moral philosophy. Their methodic clarity in the exposition and comments on Aquinas Summa theologiae, introduced by Vitoria in Salamanca in 1526, soon profiled him as a renewer of the scholastic theology, and created a following among students and scholars, first and foremost among the Dominican friars of the Convent San Esteban. At least that was the perception of Domingo Báñez while reconstructing the intellectual genealogy of the School, according to José Angel García Cuadrado. In his closing remarks to the conference, Juan Belda Plans reaffirmed this traditional perspective by emphasizing what he termed the theological vocation of the School. He called on the audience to carry forward Vitoria’s spirit of doing theology, namely, the use of rational and speculative discourse to address vital and practical questions within a biblical and patristic framework. At the same time, the congress highlighted the need to move beyond this narrow canon. The inclusion of transatlantic figures such as Alonso de la Veracruz underscores that what we call the School of Salamanca was not confined to a single place, but extended into the intellectual life of the Spanish Empire, focusing on the contribution of Latin American spaces of thought.

Moreover, the so-called School was never limited to one discipline. Its members—or those later grouped under this label—engaged in theological debates about moral responsibility, juridical arguments about the rights of indigenous peoples, philosophical inquiries grounded in Aristotelian-Thomist traditions, and economic reflections on value, price, and money. Rather than a unified doctrine, we find a multidimensional field of inquiry, in which the ratio theologica or philosophica operate as interwoven modes of reasoning, as Ricardo de Luis suggested in the final panel.

This plurality also implies disagreement. On key issues such as the legitimacy of conquest, the conditions of just war, or the status of non-European peoples, Salamanca thinkers did not speak with one voice. As emphasized in the congress discussions the School of Salamanca may be better understood as a space of intellectual dispute rather than a coherent system.

Present – Why Does the School of Salamanca Matter Today?

What exactly are scholars seeking when they return to the Salamanca School: historically grounded ethical insights that can inform contemporary debates, a conceptual framework reshaped to fit modern and postmodern categories, or a polyphonic phenomenon illuminated in its own original intellectual context? The enduring appeal of the School of Salamanca lies in its apparent engagement with issues that continue to shape our world: colonialism, global justice, economic ethics, and international law. Yet this relevance is not straightforward. It depends on how we interpret early modern concepts in light of modern categories.

A central methodological challenge is the risk of anachronism. Can we meaningfully compare sixteenth-century discussions of empire with contemporary debates on racism or colonialism? Are the underlying problems the same, or do they only appear similar because we project our conceptual frameworks onto the past? These questions do not undermine the relevance of the School of Salamanca; rather, they define the conditions under which it can be meaningfully engaged.

In the context of colonial expansion, Salamanca thinkers famously addressed the rights of indigenous peoples and the legitimacy of Spanish rule. Their arguments have often been read as early critiques of imperial domination. At the same time, they operated within—and did not fundamentally reject—the structures of the empire. This ambivalence makes them both a source of criticism and a subject of it.

A similar tension appears in economic thought. The Salamanca authors developed sophisticated reflections on just price, market exchange, and monetary practices. While they are sometimes portrayed as precursors of modern capitalism, such interpretations risk oversimplification. Their primary concern was not the promotion of markets, but the moral evaluation of economic practices. “In this little treatise, I did not wish to be a preacher, but a doctor; not a fluent and elegant rhetorician, but a moral theologian, clear and concise” (Tomás de Mercado, 1569).  Prices and contracts were to reflect fairness and true value, while profit was legitimate only when it did not harm others or violate moral norms. Economic practices were assessed according to human dignity and the welfare of communities, prohibiting exploitation, usury, and unjust enrichment.

Perhaps the most significant conceptual bridge to the present is the idea of international law grounded in natural law. As highlighted by Matthias Lutz-Bachmann, natural law provided a normative framework aimed to articulate universal principles of justice, with Francisco de Vitoria playing a decisive role in what can be understood as a paradigm shift and the formulation of key modern distinctions. At the same time, Lutz-Bachmann warns that international law today appears increasingly non-binding for politicians, raising the danger of a genuine anarchy of states. Whether such a framework like natural law can still function in pluralistic and secular societies remains an open question—but it is precisely this question that keeps the School of Salamanca relevant.

From this perspective, the value of Salamanca lies less in providing ready-made answers than in offering a historically grounded way of asking questions. As Virginia Aspe has argued, the School of Salamanca can be understood as an “alternative project of modernity”—one that differs from the trajectories associated with Protestant and British traditions. Engaging with Salamanca thus opens a space for rethinking modernity itself.

This is particularly striking when we consider the historical context in which Salamanca thinkers operated. They were confronted with profound transformations: the encounter with the Americas, the upheavals of the Reformation, and the emergence of new political and economic structures. In this sense, their situation bears a structural resemblance to our own, marked by globalization, political fragmentation, and crises of normative order.

Future – What Lies Ahead for Research on the School of Salamanca?

If the past of the School of Salamanca is contested and its present relevance conditional, the future of its research remains open. While no clear predictions can be made, several challenges and opportunities are already visible.

One of the most pressing tasks is the preservation and accessibility of its sources. Much of the Salamancan corpus remains difficult to access, scattered across libraries and often available only in early modern editions. The digitization of these texts is therefore not merely a technical issue, but a prerequisite for ensuring that Salamanca remains a part of an active scholarly discourse. In a digitalized world, visibility depends on accessibility.  That is why the primary task of our project is digitizing the School’s sources and making them accessible. This includes full texts and digital copies of central texts of the authors of the School, as well as important reference works on which the Salmantine authors relied when writing their books.

Closely related to this is the globalization of Salamanca studies. The inclusion of Latin American perspectives, already emphasized at the congress, points toward a less Eurocentric understanding of the field. Future research will likely depend on transnational collaboration and interdisciplinary approaches.

Meanwhile building on recent scholarship, two concepts borrowed from the history of knowledge and sociological studies have been applied to the School of Salamanca. Understanding the School of Salamanca as an “epistemic community” and a “community of practices” reframes it as an intellectual network that produced legal, moral, and economic normative knowledge across Europe, the Americas, and Asia. This methodological approach offers promising perspectives for research, as it enables scholars to analyse how knowledge, methods, and norms are produced and transmitted collectively. Members of this community shared methods, sources, and styles of argumentation, allowing them to address questions of justice, commerce, and human conduct in a consistent way of pragmatic reasoning.

At the conceptual level, the challenge is to determine whether and how Salamancan ideas can be translated into contemporary debates. Can natural law be reformulated in a way that speaks to pluralistic societies? Can early modern reflections on global order contribute to current discussions on international justice, postcolonial critique, or the ethics of war?

Ultimately, how the School of Salamanca is remembered will depend on the ability of the historical research on it to remain intellectually productive. This requires not only scholarly rigor, but also a willingness to engage with broader audiences and contemporary concerns.

Conclusion

Five hundred years on, the School of Salamanca resists simple characterization. It was not a fully unified “school” in its own time, yet it has become a powerful point of reference in ours. Its present significance lies not in offering definitive solutions, but in framing enduring questions about justice, law, and global coexistence.

In this sense, its legacy is neither fixed nor exhausted. It is continuously reinterpreted—shaped by the concerns of each generation that returns to it. The challenge, and the opportunity, is to ensure that this engagement remains both historically informed and critically aware. As the intellectual legacy of the Salamancan authors lives on, our project continues to make its contribution to it by making its primary works accessible and searchable as well as by building up a dictionary of the main terms of its juridical-political discourse. After coming in touch with the city and seeing the School’s birthplace for ourselves, we continue our work with a new perspective and a deeper understanding of historical and material context, in which these works were created.

So how are these export opportunities working out so far? The earlier post focused on exports of specific categories of products, and in this post I'm going to follow up by looking at some Bureau of Economic Analysis (BEA) data on exports broken down by country. In particular, I'll look at overall U.S. goods exports to the top 10 country destinations (which constitutes around 60% of U.S. goods exports).

If you just want to go straight to the export figures, there's a table at the bottom of the post that compares data on January through April goods exports over the period from 2024 - 2026, for each of the top 10 export destinations (note that the data is for value of exports rather than volume, and is in nominal terms, so you would expect the figures to rise a bit during the period to reflect inflation). Some notable points in the data are as follows:

• Exports to Canada are slightly down, which probably in part reflects Canadian consumer attitudes in response to the rhetoric of President Trump and other U.S. government officials
• Exports to China are significantly down, which is likely due in part to Chinese retaliatory tariffs
• Exports to Switzerland are significantly up, which may reflect the non-monetary gold exports that I mentioned in the earlier post
• Exports to Hong Kong are up by about the same amount as exports to China are down, which may reflect transshipment of goods that are ultimately destined for China but which are avoiding the Chinese tariffs (although it could be some non-monetary gold too).
• Exports to the UK are up, and this could be non-monetary gold as well.

To really get into the details of these export patterns, we need to combine the product data with the country data. I'll try to come back to that soon.

Here's the table of export figures by country:

Source: Data derived from Bureau of Economic Analysis trade data

Guttentag, one of the nation’s leading immigration law experts and founder of the ACLU Immigrants’ Rights Project, joins host Professor Pamela Karlan for a wide-ranging conversation about current American immigration policies. Guttentag discusses his time in the Biden administration and compares policies in the first Trump administration with those of the second. He also focuses on the Immigration Policy Tracking Project, an effort he launched in 2017 with law students to document every Trump administration immigration policy, implementation memo, directive, and related legal challenge. The tracker, he explains, is designed to make visible what can otherwise be hard to see: hundreds of policy changes that, taken together, are reshaping the immigration system.

The episode examines what these changes mean for immigration courts, bond hearings, temporary protected status, green card applications, and the lawyers challenging the administration in court. One of Guttentag’s central points is that immigration is a civil system, not a criminal one, and the distinction matters for anyone trying to understand what is happening now.

Links:

• Lucas Guttentag >>> Stanford Law School page
• Immigration Policy Tracking Project >>> IPTP page

Connect:

• Episode Transcripts >>> Stanford Legal Podcast Website
• Stanford Legal Podcast >>> LinkedIn Page
• Rich Ford >>>  Twitter/X
• Pam Karlan >>> Stanford Law School Page
• Stanford Law School >>> Twitter/X
• Stanford Lawyer Magazine >>> Twitter/X

(00:00:00) The Immigration Policy Tracking Project

(00:07:33) The Dismantling of the Immigration Court System

(00:12:15) "Public Spectacle and Private Terror" — Tactics of Fear 

(00:17:32) Asylum, TPS, and the Racial Undercurrent

(00:21:51) The Courts Push Back 

(00:29:22) What a Rebuilt Immigration System Would Look Like 

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The post Thoughts for Judge Advocates in Challenging Times appeared first on Just Security.

The program is the administration’s flagship vehicle for promoting American AI abroad. It aims to use federal financing, expedited export licensing, and diplomatic support to build market share across the AI stack before Chinese competitors lock it up. The strategic logic is sound. China is moving fast to position its AI products as the default across Southeast Asia, Latin America, and other contested markets. While chip constraints prevent it from offering full-stack solutions as advanced as America’s, it will pair the chips it can export with broader tech infrastructure and state backing that American firms struggle to match. If its export push succeeds, a version of the 5G story could repeat, with Chinese infrastructure embedded in critical digital supply chains throughout the developing world. 

But the U.S. program’s Call for Proposals (the Call), released last month, suggests its design will not meet the moment. The Program seeks to direct priority exports to markets of geopolitical significance to the United States, but the Call asks American companies to assemble full-stack export packages and identify target markets independently, with scant guidance on which markets matter or how proposals will be judged. It puts the onus instead on applicants to identify markets and explain how U.S. national interests can be advanced in them. It also gives governments wary of U.S. lock-in limited voice in what the program offers them, raising the risk that they might not participate either. On its current trajectory, the program risks serving neither U.S. industry nor foreign partners, including those currently being wooed by Chinese competitors.

There is still time to fix it. American AI is competitive on its merits in most of these markets; the export program’s job is to reduce barriers to strategically important deals, not to assemble offerings no one asked for. Doing so will require guiding industry to the right partners—important clients in key geopolitical swing states—while giving it the flexibility to shape technical offerings, rather than outsourcing key strategic decisions to companies and relying on opaque processes to evaluate them.

Pre-Set Consortia Need Clearer Strategic Direction

The U.S. Department of Commerce announced in the Call that the program would run on two tracks. The first involves pre-set consortia: groups of companies that assemble in advance to offer foreign buyers a full stack of American AI services covering hardware, data infrastructure, models, applications, and security. The AI stack offers a “menu” of options, and partners are allowed to procure specific layers without signing onto the full stack package. The second track involves on-demand consortia, which will form in response to specific export opportunities and cover the particular layers of the stack that a given deal requires. The administration is launching with pre-set consortia, with bids due June 30; it has deferred on-demand projects to a later date.

In theory, pre-set consortia could be well-suited to accomplish the goals of the program. By delivering full-stack U.S. AI solutions, they lock customers into the American tech stack and lower the risk of subsequent switching to Chinese vendors. They also provide an American alternative directly positioned to compete with Chinese full-suite digital products and suitable for less experienced customers who would struggle to assemble these solutions on their own.

In practice, however, pre-set consortia may struggle to accelerate U.S. AI exports to contested markets. They rely on industry to self-assemble into consortia, outsource strategy to whoever happens to organize a bid, and disadvantage smaller companies whose specialized products may be exactly what specific markets need. The Department of Commerce should either give the track real strategic direction or deprioritize it in favor of on-demand work.

The program is arriving at a fraught political moment. The push for sovereign AI is gaining momentum, and many prospective partners want American technology without looking dependent on Washington. The program risks making that balance harder to strike. Federally branded full-stack packages tie participating companies to the administration and hand sovereign AI advocates a ready-made foil. Even projects without federal branding have met with significant backlash. France’s decision to host its government Health Data Hub on Microsoft Azure, for example, became a years-long political controversy over potential U.S. government access to data and ended with France switching to a domestic vendor. The more that Washington’s offer looks like a way to deepen dependence rather than a tool that partners can direct to their own economic purposes, the harder it is for many foreign governments to say yes.

This is not a reason to abandon the program. But it does mean that the program needs to be narrowly targeted, guided by a clear theory of where the government genuinely adds value that it can articulate to U.S. companies to guide their proposals. The Call’s breadth and vagueness suggest the administration may have no such theory. 

First, it provides companies little guidance on which markets the program seeks to focus on. It names no target countries or criteria for who buyers should sell to, despite the program’s aim of steering exports toward strategic markets. If the administration has strategic preferences, stating them would help companies decide whether to participate and how to craft proposals. Commerce’s silence suggests that it either has no view yet, does not want to publicly defend its view, or intends to defer to whichever markets industry brings forward—a shaky foundation for a program of economic statecraft.

The selection criteria are similarly underspecified. The Call says consortia will be evaluated according to a “national interest determination” and lists four factors, including a consortium’s “potential to advance the policy goals” of the executive order. But it does not define national interest, and each use of the phrase in the Call implies a slightly different meaning. It is also remarkably brief in its explanation of the four factors, outlining them in fewer than 70 words. Discretion has its place, but it should accompany a strategic framework, not substitute for one.

Commerce should publish a list of priority markets and provide more guidance on evaluation criteria for pre-set consortia. Regarding priority markets, the program should focus on large, strategically significant countries at risk of being locked into the Chinese stack, not close allies where U.S. firms already operate and where these risks are not at play. (We and others have suggested candidate lists elsewhere.) And while Commerce need not publish a full rubric, it should elaborate on the goals of the program, how to fulfill them, and what evidence will be considered at greater length.

On-Demand Consortia: Establish Government and Industry-Led Tracks

The administration has released fewer details about on-demand consortia, the teams to be formed by industry in response to a specific export opportunity. This track could work, but only if Commerce structures it so that the government shapes strategy while industry leads execution. 

The administration should split the work of identifying buyers between government and industry. Industry-led opportunities give Commerce a light-touch way to facilitate strategically important deals by illuminating areas where U.S. government engagement is most needed to assist firms in entering new markets. These scenarios are most likely to happen when a firm has a successful product that it has sold in certain places but not others, whether because of regulatory barriers or lack of familiarity with the local market. Here, the U.S. government can offer introductions and other support to help these firms break into strategically significant markets where the U.S. does not yet lead.

But the government will still need to decide which industry-led opportunities to support. The right test is additionality: does federal support actually change what happens? Without answering that question, the program risks subsidizing deals in friendly markets that would have closed anyway. There are already signs of this. The first project marketed as part of the program was an AI data center in South Korea, a close ally with a sophisticated tech sector and existing American vendor relationships, not a swing state where U.S. firms need a push.

The current version of the program outsources this additionality test to industry and fails to address it directly. The Call asks companies to state the specific types of government support they need and leaves Commerce to consider whether those tools would add value. It appears that Commerce intends to use the specificity of a company’s proposal as a loose proxy for how much they need the assistance—an indirect way of getting at the necessity of federal support. Instead, Commerce should ask companies to identify the specific obstacle that is blocking a prospective deal, explain why the tools of the Exports Program would assist them, and scrutinize such claims.

When assessing which proposals to back, Commerce does not need to publish a checklist or a formula, but it does need a more disciplined framework for judging which deals are strategically valuable, feasible, and most in need of government support. On strategic value, the key question is: does the deal target a serious client, in a geopolitical “swing state,” for a use case sticky enough that integration costs and switching frictions make it a foundation for further American AI presence? To verify feasibility, the administration should weigh whether the deal can actually succeed by examining credible buyer-intent signals and a business plan (which the Call, to its credit, already requests for on-demand consortia), as well as the previous track record of the American vendor. Conditioning support on basic national security guardrails, including customer verification, cybersecurity requirements, and anti-chip smuggling measures, can also substantially reduce risk.

In rare cases, the U.S. government should take the lead in initiating deals. It should do so sparingly, because this option carries familiar risks: slow deployment, weak technical fit, and the danger of misreading partner demand or steering industry towards projects with poor commercial prospects. In many countries, visible U.S. government involvement may in fact be a liability.

But certain strategically important opportunities may face constraints only the U.S. government can resolve. Some governments may want assurance that an AI infrastructure deal fits within a broader strategic relationship with Washington. Major foreign banks, telecoms, or utility companies may want security, financing, or regulatory assurances that no commercial service-level agreement can provide. 

In these cases, the government’s role should be to validate partner demand and remove diplomatic or regulatory barriers (where both possible and strategic to wider U.S. interests), not to centrally plan opportunities or dictate terms to companies. U.S. government involvement will likely be most helpful where data localization or intellectual property concerns are stumbling blocks to otherwise promising deals. 

Here, the Department of Commerce and the U.S. Trade and Development Agency (USTDA) can play a matchmaking role. Commerce and USTDA should not choose between bids that satisfy program requirements, but should translate the foreign partner’s demands into a concrete procurement memo that firms can evaluate. The foreign partner would then select the vendor(s) they wish to do business with from a set of responding proposals compiled by Commerce and USTDA. Clarifying the opportunity can attract interest from firms that have relevant capabilities but might not otherwise have relationships in that country or know how to navigate their local procurement processes. Competition between American firms can signal to partners that the U.S. is serious about meeting partners’ needs and that they will not be locked into a single vendor, making participation more attractive. The Export-Import Bank, the U.S. International Development Finance Corporation, and USTDA can then provide financing and risk-mitigation support, including loan guarantees and political risk insurance, to whichever eligible bid the partner chooses. 

***

Ultimately, the Exports Program needs buy-in from two groups: American industry and foreign governments. On its current trajectory, it risks serving neither. It outsources key big-picture strategic decisions to industry while giving companies little guidance on target markets, evaluation criteria, or partner demand. And while the government might be engaging with foreign partners behind closed doors or through bilateral Memoranda of Understanding, many firms would be none the wiser: there are no public indications of what use cases or pain points they should address. 

The program was always going to involve hard tradeoffs. To maximize impact, it should support deals that would not otherwise happen without government support—but those are the deals most likely to be white elephants with no sustainable business case. To win contested markets, it needs to compete where China is a credible alternative—but those are precisely the markets where governments most want to hedge between Washington and Beijing. A serious program would confront those tradeoffs in its design. The current one ducks them by handing the core strategic questions to whichever consortia turn up at the door.

The Trump administration can still fix this. It needs to pick the markets that matter, take partners’ sovereignty demands seriously, and show up with a real offer that speaks to local economic needs before China does. In other words, it needs to use the program for economic statecraft—not for green-lighting deals industry would pursue anyway.

The post It’s Not too Late to Fix the AI Exports Program appeared first on Just Security.

A curated weekday guide to major news and developments over the last 24 hours. Here’s today’s news:

IRAN WAR – CEASEFIRE  

President Trump said yesterday that Iran would “pay the price” for stalled peace negotiations. “We’ll see what happens, but we hit them hard yesterday, and we’re going to hit them again hard today,” Trump said. Defense Secretary Pete Hegseth told reporters during a visit to U.S. Central Command’s headquarters that “CENTCOM will be busy tonight because we are going to hit Iran hard.” Hegseth added, “[Iran is] going to have tap, tap, tap bombs dropping on key facilities… It is not to restart the war but to set the terms for a deal.” Barak Ravid reports for Axios; AP News reports.  

The United States and Iran traded a new round of attacks early this morning. The latest U.S. attack began shortly after midnight in Tehran, according to U.S. Central Command. Explosions were heard in Qeshm, Bandar Abbas, Minab, and Sirik, Iranian news outlets reported. Iran’s foreign ministry said today that the latest round of U.S. strikes had “effectively rendered the ceasefire of April 8, 2026, meaningless.” Iran said it had responded with attacks on targets at U.S. bases in Kuwait, Bahrain, and Jordan, adding that the Strait of Hormuz was now closed to any type of vessel. Shirin Hakim, Eric Schmitt, Qasim Nauman, and Lara Jakes report for the New York Times.

An Indian official said a U.S. attack yesterday on an oil tanker allegedly trying to violate Washington’s blockade on Iranian ports killed three Indian mariners. This is the second vessel with an Indian crew that has come under attack from the United States this week. Jon Gambrell, Michelle L. Price, and Konstantin Toropin report for AP News; Cherylann Mollan reports for BBC News.  

Efforts to reach an interim deal to end hostilities between Iran and the United States have intensified, three Iranian sources and a European source told Reuters today. The sources said Tehran and Washington were still exchanging messages over details of a memorandum of understanding amid the current strikes. The Iranian sources said a political understanding had been reached, but issues such as the release of Iranian funds had yet to be resolved. “Iran ​wants $6 billion to $12 billion of its frozen funds to be released to Tehran, while Washington wants to release funds in ​stages for humanitarian goods and rejects returning funds to Iran outright,” said one of the Iranian sources. Parisa Hafezi and John Irish report. 

U.S. strikes early Wednesday destroyed what appears to be a drinking-water facility on Iran’s southern coast, according to an analysis by the New York Times. Iranian state media reported that the United States had hit water storage buildings, and a local official said that water was cut off to more than 20,000 people living in a town and villages nearby. It is unclear if Washington intentionally struck the water facilities or knew what was in the buildings. Christopher Koettle and Christiaan Triebert report; Leo Sands, Sanam Mahoozi, and James McManagan report for the New York Times. 

IRAN WAR – LEBANON 

Israeli air strikes yesterday killed at least 17 people in southern Lebanon, according to Lebanon’s state-run National News Agency. David Gritten reports for BBC News.  

IRAN WAR – OTHER DEVELOPMENTS 

The International Atomic Energy Agency’s 35-nation board of governors yesterday passed a U.S.-backed resolution telling Iran to declare its remaining enriched uranium stocks and to let inspectors verify them. The resolution text submitted by the United States, Britain, France, and Germany ​was passed with 21 votes in favour, three against, and 10 abstentions, diplomats at the closed-door meeting said. Francois Murphy reports for Reuters. 

The U.S. Treasury Department yesterday announced it was imposing sanctions on 11 people and entities, including nine based in China and Hong Kong, for supporting weapons procurement by Iran’s Islamic Revolutionary Guard Corps and the Iranian military. Reuters reports.  

WEST BANK VIOLENCE 

Amnesty International yesterday accused Israel of carrying out a campaign of “ethnic cleansing” of Palestinians from the occupied West Bank with the intention to annex the Palestinian territory, according to a new report. “These abuses are not the result of a few ‘bad apples.’ Settler violence is a core component of a state-sanctioned campaign of ethnic cleansing,” said Agnès Callamard, the head of Amnesty. Julia Frankel reports for AP News.  

Israeli settlers on Tuesday blocked Palestinians from putting out a fire near a Christian village in the occupied West Bank, a local priest and Palestinian civil defense firefighter said. Father Bashar Fawadleh, parish priest of Taybeh, said settlers had shot at people trying to take a water tanker to the site to fight ​the fire. The Israeli military also temporarily stopped firefighters reaching the blaze while they arranged security coordination, a Palestinian Authority ​Civil Defence spokesperson said. The firefighters were eventually able to reach the fire and put ⁠it out. Ali Sawafta reports for Reuters.  

OTHER GLOBAL DEVELOPMENTS 

The number of people displaced worldwide by conflict and persecution fell in 2025 for ​the first time in a decade, according to a report by UNHCR published today. Last year, 5.4 million people fled their homes, bringing the total number of refugees or people in refugee-like situations worldwide to 41.6 million, including 6 million Palestinian refugees, UNHCR said. At the same time, around 14.7 million refugees and internally displaced people returned home, a ​50% increase on the previous year and the second-highest figure recorded since 1965, the agency found. Most returns were to ​six countries: the Democratic Republic of the Congo, Sudan, Syria, Afghanistan, Ukraine, and Myanmar. Olivia Le Poidevin reports for Reuters.  

Taliban police killed at least one person on Tuesday during a protest in western Afghanistan against the arrest of women for allegedly violating dress code regulations, the U.N. Assistance Mission in Afghanistan said yesterday. The U.N. mission said it had “confirmed that at least one person, a boy, was killed by gunfire, while several others suffered injuries, including from being beaten with sticks.” It said it was also verifying reports of a second fatality. Elena Becatoros reports for AP News.  

TECH DEVELOPMENTS  

OpenAI has banned China-linked accounts that use ChatGPT to draft social media influence campaigns targeting U.S. debates over tariffs and AI data centers, the company said yesterday. OpenAI said it had uncovered two operations that used ChatGPT to generate posts and political cartoons about U.S. tech policy. “This was not a case of an influence operation creating a debate,” Ben Nimmo, principal investigator on OpenAI’s intelligence and investigations team, told reporters. “The debate existed already. This was an influence operation from China trying to interfere in it.” Sam Sabin reports for Axios.  

Anthropic CEO Dario Amodei yesterday backed a testing regime for frontier AI models that would allow governments to block or deter deployment if a third-party auditor deems it too risky for public release, according to a blog post. Owen Dahlkamp reports for POLITICO.  

U.S. FOREIGN AFFAIRS

A meeting between New York Mayor Zohran Mamdani and Colombian President Gustavo Petro this week was called off following a meeting between U.S. and Colombian officials in Bogotá in which State Department officials made it clear that such a meeting was unacceptable, two sources said. Colombian officials interpreted this as a threat that Petro would be arrested if he proceeded to travel to the United States, the sources added. A State Department official told the Washington Post that the visit would violate Petro’s visa restrictions. John Hudson reports. 

Speaking during a visit to the U.S. naval base at Guantanamo Bay, Hegseth yesterday warned the Cuban government against seeking weapons that could strike the naval base or the U.S. mainland, saying it would invite confrontation that Cuba could not withstand. Phil Stewart reports for Reuters. 

U.S. DOMESTIC DEVELOPMENTS 

A former CIA officer, David J. Rush, who is under FBI investigation after authorities found $40 million in gold bars at his home, previously worked on a highly classified China intelligence program with Deputy Defense Secretary Stephen A. Feinberg, according to current and former officials. Feinberg did not know about the criminal investigation into Rush when he reached out to a senior CIA official to push for Rush to have a greater role in the program, the officials added. Maark Mazzetti and Julian E. Barnes report for the New York Times. 

The Justice Department has indicted eight pro-Palestinian activists who it says were responsible for orchestrating a harassment campaign against top University of Michigan officials, the Jewish Federation of Detroit, and others in an effort to push the university to divest from Israel. Katie Mettler and Danielle Douglas-Gabriel report for the Washington Post.  

House Republicans will move forward today with an effort to extend Section 702 of the Foreign Intelligence Surveillance Act until July. House Speaker Mike Johson (R-LA) fast-tracked the measure, meaning it will need two-thirds majority support for passage. It is likely to fail as Democrats said they would oppose any renewal while Bill Pulte serves as acting Director of National Intelligence. Caitlin Yilek reports for CBS News. 

TRUMP ADMINISTRATION ACTIONS

According to two officials, Bill Pulte told outgoing Director of National Intelligence Tulsi Gabbard on Tuesday that her tenure would end immediately. However, after speaking with Trump, Gabbard’s departure date was set for June 19 – earlier than her originally planned June 30 exit, but not effective that day. Marc Caputo reports for Axios.  

The FBI has seized more than a dozen websites allegedly used by overseas operatives linked to the Chinese government to recruit current and former U.S. officials with security clearances, offering paid “consulting” and analyst jobs while seeking sensitive or potentially classified information. Holmes Lybrand reports for CNN. 

TRUMP ADMINISTRATION LITIGATION 

A federal judge in Washington yesterday declined to issue a temporary restraining order to prevent Trump’s “anti-weaponization” fund from being set up and disbursing payments. The judge said the lawsuit appeared to be moot in light of statements by administration officials that the fund is not proceeding. A federal judge overseeing a separate lawsuit in Virginia has already temporarily blocked the administration from establishing the fund. Josh Gerstein reports for POLITICO.  

19 Democratic states and Washington, D.C., filed a lawsuit yesterday claiming federal agencies have flouted the law by hastily implementing Trump’s executive order that seeks to eliminate diversity, equity, and inclusion initiatives by federal contractors. The lawsuit claims that more than two dozen federal agencies are adding terms to federal contracts barring “any racially discriminatory DEI activities” without notice or explaining what is prohibited. Daniel Wiessner reports for Reuters.  

Did you miss this? Stay up-to-date with our Litigation Tracker: Legal Challenges to Trump Administration Actions.

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ICYMI: Yesterday on Just Security

The post Early Edition: June 11, 2026 appeared first on Just Security.

Der Workshop richtet sich insbesondere an Doktorand*innen und Postdoktorand*innen. Bis zum 31.07.26 können Abstracts von 300–500 sowie eine Kurzbio von 100–200 Wörtern an Damian Nussbaumer (damian.nussbaumer(at)unisg.ch) Leire Urricelqui (leire.urricelqi(at)unisg.cg) gerichtet werden. Der Workshop wird auf Englisch abgehalten. Näheres und einen detaillierten CfA finden sich hier.

Considering the current international context, in particular ongoing tensions and armed conflicts, it is likely that FIFA and the three host countries will also face certain incidents during this year’s tournament. In principle, the international sports movement, including FIFA, aims to be ideologically, politically, and religiously neutral, which can provoke tensions with players’ and fans’ legitimate activism.

This article argues, first of all, that a certain type of expression, in particular hate speech, is not compatible with the spirit of football and must be banned from the stadiums. Hate speech is, however, not defined universally, which creates a grey zone where vivid discussion might arise on whether a certain speech or gesture should be authorized or banned. In response, it will be demonstrated, secondly, that various aspects and circumstances of a concrete situation would have to be taken into consideration, but that recent case law of the Court of Arbitration for Sport (“CAS”) and the European Court of Human Rights (“ECtHR”) help finding the appropriate solutions between, on the one hand, the legitimate expression of players and fans and, on the other, the protection of individuals or groups against offending or defamatory speech. Thirdly, the cases that will be referred to indicate that, as a general rule, FIFA and UEFA have struck an appropriate balance in that exercise.

It is relevant to refer to the ECtHR, even for a tournament taking place in Canada, Mexico and the USA, because potential sanctions imposed by FIFA on players and national football federations can be challenged before CAS, followed by a possible appeal to the Swiss Federal Tribunal, whose judgments might end up before the ECtHR (see, for a recent sports arbitration case that took that avenue, Semenya v. Switzerland).

Hate speech: not so easy to define

Freedom of expression (Article 10 ECHR) is not an absolute human right and can be restricted. There is a common understanding that hate speech constitutes the red line that shall not be overstepped. However, no universally recognized definition of hate speech exists. We can refer, for the purpose of the present analysis, to the definition included in the Policy Recommendation n° 15 adopted by the European Commission against Racism and Intolerance (ECRI), where hate speech is understood:

“as the advocacy, promotion or incitement, in any form, of the denigration, hatred or vilification of a person or group of persons, as well as any harassment, insult, negative stereotyping, stigmatization or threat in respect of such a person or group of persons and the justification of all the preceding types of expression, on the ground of ‘race’, colour, descent, national or ethnic origin, age, disability, language, religion or belief, sex, gender, gender identity, sexual orientation and other personal characteristics or status.”

There have been instances in sports where players or fans abused their position to express hate against a certain group of people. They have been sanctioned for their behaviour either by domestic courts or by FIFA/UEFA.

Players

The leading case in football is Simunic v. Croatia, decided by the ECtHR in 2019. Josip Šimunić is a former international football player from Croatia, who was sanctioned for using an official greeting of the Ustaše movement, the totalitarian fascist regime of the Independent State of Croatia. He was convicted by the Croatian authorities of a minor criminal offence for addressing messages to spectators at a football match, the content of which expressed or incited hatred on the basis of race, nationality, and faith. After having exhausted local remedies, he brought his criminal convictions before the ECtHR, claiming that his right to freedom of expression had been violated. The Court declared the applicant’s complaint inadmissible, finding that the Croatian authorities had struck a fair balance between his right to free speech, on the one hand, and society’s interest in promoting tolerance and mutual respect at sports events as well as combating discrimination in sport on the other hand. The Court noted in particular that the applicant, as a famous footballer and a role-model for fans and players, should have been aware of the possible negative impact of provocative chanting on spectators’ behaviour.

Fans

Abusive, discriminatory and offensive speech is rare among professional football players, but more frequent among fans.

A positive development in the fight against racism has already been mentioned in an earlier post: After Real Madrid player Vinícius Júnior had become the victim of racist chants, inter alia, during a game in Valencia on 21 May 2023, three individuals were found guilty by sentence of a trial court of a “crime against moral integrity” with “aggravating circumstance of discrimination based on racist motives” and were imprisoned for eight months and banned from attending football matches for two years.

Another recent case, involving not racism but homophobia, confirms that the competent sports bodies – here the UEFA – make serious efforts to fulfil their commitments against intolerance and discrimination. The case has its origin in a UEFA Champions League Playoff match between Real Madrid and Manchester City at the Bernabéu Stadium in Madrid on 19 February 2025. A couple of days later, UEFA received external information according to which Real Madrid Fans chanted a homophobic chant targeting Manchester City manager Pep Guardiola (translation: “Guardiola, Guardiola, how thin you look, first it was the drugs and we will see you in Chueca today!”), insinuating that Guardiola is homosexual and visits Chueca, known as a gay area in Madrid. Real Madrid was sanctioned by UEFA based on Article 14 of its Disciplinary Regulations with 30 000 EUR and a partial closure of its stadium for one UEFA competition match. CAS confirmed the sanction in an award of 14 April 2026 (CAS 2025/A/11261). The expert witnesses assisting CAS added that the message was directed towards people with addictions and the LGBTI+ community, including stereotypes related to HIV/AIDS. Therefore, it had to be qualified as hate speech, as it was homophobic, discriminatory and stigmatising towards a certain group of people. For these reasons, CAS found the sanctions imposed by UEFA proportionate and confirmed them (CAS award, § 55).

The fine line between hate speech and legitimate activism

As it has been observed above, there is no universally recognized definition of hate speech. As a result, sports governing bodies, such as FIFA or UEFA, must seek the right balance between, on the one hand, individual freedom of expression and, on the other, the protection of others, in particular vulnerable people, against discrimination and racism. This exercise might turn out difficult in practice, in particular considering the fact that it is exactly speech capable of contributing to a political debate or concerning a matter of public interest that is considered particularly valuable in a democratic society and benefits, as a result, from a special status under the ECHR (e.g. Morice v. France [GC], § 125, and cases referred to).

The strong reactions to Lamine Yamal, FC Barcelona’s young prodigy, holding and waving a flag of the State of Palestine when celebrating the “La Liga” title on 11^th May 2026, illustrate this dilemma: Israeli leaders and ministers qualified the behaviour as hate speech and urged the Spanish Football Federation to sanction the player. On the other hand, Spanish Prime Minister Pedro Sánchez stood behind Barca’s young superstar, writing in X: “Those who consider waving the flag of a State to be ‘inciting hatred’ have either lost their judgment or been blinded by their own ignominy. Lamine has only expressed the solidarity with Palestine felt by millions of Spaniards. Another reason to be proud of him.”

The discussion around Yamal’s gesture shows that the issue is sensitive and capable of polarizing society. The episode can nevertheless be contrasted with a case that had been decided by CAS: the case of Jibril Rajoub v. FIFA, in which the President of the Palestine Football Association was fined a sum of 20 000 CHF and was banned from attending matches for 12 months for inciting a blatant protest during a match of the Israeli national team in Jerusalem. Rajoub publicly called for members of the Argentina national team to boycott a friendly match against Israel, which was set to be played in Israel. Furthermore, as pointed out by the CAS, Rajoub intentionally targeted the football icon Lionel Messi in the following words:

“…we will launch, as of today, a campaign targeting the Argentinian (Football) Federation, and in particular targeting (Lionel) Messi, who has tens of millions of fans in Arab and Islamic countries…(For his fans) he used to be a symbol and big deal. We are going to target Messi, and we are going to ask everybody to burn their Messi t-shirts and pictures, and to wash their hands of him…” (CAS award, § 5)

CAS held that the statement could indeed be qualified as inciting hatred, as Mr. Rajoub had called upon “everyone”, and the Arabic and Islamic world in particular, to undertake a violent act (burning t-shirts and pictures), specifically targeting one well-known individual (L. Messi). Using mass media to convey his message and considering his official position, Mr. Rajoub’s statements had of course a much higher impact than coming from an anonymous citizen or fan.

The ECtHR has not dealt with a Lamine Yamal type of situation, but some parallels and conclusions might be drawn with and from the case of Baldassi and Others v. France, where it held that the boycott against products from Israel was primarily a means of expressing a protest and, as a result, covered in principle by Article 10 ECHR. Even though the position of Lamine Yamal, as a famous football player and, as such, a role-model for millions, is not comparable with the applicants in that case, who were members of a local collective supporting the Palestinian cause by calling for a boycott of products from Israel, the Court’s key message remains relevant for the present discussion, namely that it might be legitimate, under Article 10 ECHR, to express solidarity with a protest conducted by peaceful means of expression or gesture.

This does, however, not mean that the competent dispute settlement bodies, including the ECtHR, would and should endorse any behaviour of players or fans based on expression not entailing hate speech. In case a Lamine Yamal type of situation (a player or fan wearing a Palestine flag or t-shirt) occurs during the 2026 FIFA World Cup, various aspects would have to be taken into consideration, such as the author of the message (famous footballer as a role model, or anonymous fan?), the content and form of the message (message of solidarity or political/religious content?), the place and time where it occurs (outside or inside the stadium, or even as part of a player’s celebration after scoring a goal or on the winner’s podium ?), as well as the nature and severity of the sanction (match suspension of a player for the ongoing tournament or simply a pecuniary fine?).

In pondering these aspects, the football governing bodies enjoy, as do states and their courts, a certain margin of appreciation.

Concluding remarks

All in all, it can be concluded that, on the one hand, hate speech and any other form of expression that is capable of provoking violence are, per se, not compatible with the spirit of football and must be banned from stadiums. Peaceful means of expression, on the other hand, should be allowed as much as possible, in particular if they contribute to a political debate or a debate on matters of public interest. Hansi Flick, the German coach of Barcelona, commenting on Yamal’s act, who had turned 18 last July, brought it probably rightly to the point:

“This, I don’t normally like. I spoke with him. I said if he wants this, it is his decision. He is old enough.”

In other words, famous professional football players should have the autonomy and freedom to decide whether they would like to speak up, or remain silent, on causes that are important for them, of course within the general limits applicable to freedom of expression and relevant FIFA rules.

In the past, FIFA and UEFA have rather successfully tried to accommodate conflicting interests – it will have to be seen whether this will also be the case during the 2026 World Cup, of which an important part will take place in the USA, traditionally considered as one of the cradles of free speech.

The author expresses his personal views.

The post Freedom of Speech at the FIFA World Cup 2026 appeared first on Verfassungsblog.

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