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The relationship between climate change and human rights has occupied international legal scholarship for more than two decades. Yet for much of that period, the relationship remained largely aspirational — acknowledged in soft-law instruments and scholarly commentary, but only partially operationalized by binding international adjudication. Advisory Opinion OC-32/25, adopted by the Inter-American Court of Human Rights (IACtHR or the Court) on May 29, 2025, marks a decisive shift in that landscape.

The Opinion was requested on January 9, 2023, by Chile and Colombia¹⁾ — two States acutely experiencing the material consequences of the climate emergency: droughts, floods, wildfires, and the displacement of communities from territories they have inhabited for generations. The question they posed to the Court was deceptively simple: what do the obligations of States parties under the American Convention on Human Rights (ACHR) actually require in the context of the climate emergency? As the subsequent proceedings made clear, that question touched upon the foundations of State responsibility, the content of substantive rights, the architecture of procedural guarantees, the law of intergenerational equity, and the interface between human rights law and international environmental law.

OC-32/25 was the product of the most participatory proceeding in the Court’s history. In the written phase, 613 distinct actors submitted contributions, including 9 States, 62 indigenous and rural communities, 178 non-governmental organizations, 134 academic institutions, and more than 200 amicus curiae briefs.²⁾ The Court subsequently convened public hearings in three cities — Bridgetown (Barbados), Brasília, and Manaus — engaging 185 delegations across jurisdictions and epistemic traditions. The breadth of that participation was not merely procedural; it shaped the substantive content of the Opinion in ways that technical legal analysis alone would not have produced.

This blog post examines the four principal doctrinal contributions of OC-32/25 and reflects on their implications for the development of international human rights law.

Nature as a Subject of Rights: Paradigm Shift or Evolutionary Development?

The first and perhaps most philosophically significant contribution of OC-32/25 is its recognition of the rights of Nature — a move that reconfigures the foundational categories through which human rights law has traditionally related to the natural world.

Classical international environmental law treated Nature as an object of protection, regulated on behalf of human interests or, at most, as a common subject to shared stewardship obligations. The rights-of-Nature paradigm challenges this framework at its root, proposing instead that ecosystems possess intrinsic legal status — that their protection is not merely instrumentally justified by reference to human welfare, but is independently grounded in their structural role in maintaining the conditions of life on Earth.

The Court’s reasoning proceeded through several steps to make this recognition. It first observed that ecosystems are complex and interdependent systems in which each component plays an essential role for the stability and continuity of the whole. This ecological interdependence, in the Court’s analysis, generates a legal interest in the preservation of that integrity that cannot be fully captured by rights framed exclusively in anthropocentric terms. Advancing toward a paradigm that recognizes intrinsic rights of ecosystems is fundamental for protecting their integrity and functionality over the long term and provides coherent and effective legal tools to prevent existential harm before it becomes irreversible.

The Opinion acknowledged a significant and growing normative and jurisprudential trend in this direction. Constitutional provisions in Ecuador, Bolivia, and Mexico have granted rights to Nature.³⁾ Judicial decisions from Colombia (Río Atrato), Brazil, and India have recognized river systems as subjects of rights.⁴⁾ Fifteen UN General Assembly resolutions on Harmony with Nature and the 2024 Pact for the Future have registered this emerging consensus at the global level.⁵⁾ The Court’s contribution was to bring this paradigm within the framework of the ACHR, reading it through the lens of the pro natura and pro persona principles in a mutually reinforcing way.

The doctrinal implications are significant. If Nature possesses legal rights under the ACHR framework, then communities — and in particular indigenous and Afro-descendant communities who have historically served as guardians of ecosystems — acquire standing to enforce those rights not only derivatively, on the basis of harm to their own recognized entitlements, but as stewards of a legally protected subject. This has the potential to transform the architecture of environmental litigation before the Court, expanding both the range of cognizable harms and the actors empowered to seek redress.

Whether this development constitutes a genuine paradigm shift or an evolutionary extension of existing protective doctrines remains a question for scholarly debate. What is clear is that OC-32/25 has provided a doctrinal anchor for rights-of-Nature claims within the Inter-American system that did not previously exist.

Jus Cogens and the Prohibition of Irreversible Environmental Damage

The second contribution of OC-32/25 is, from a formal sources-of-law perspective, its most legally audacious: the recognition that the obligation not to cause irreversible damage to the climate and the environment has the character of jus cogens — a peremptory norm of international law from which no derogation is permitted.

The legal consequences of this characterization are far-reaching. Under the law of jus cogens, as codified in the Vienna Convention on the Law of Treaties and progressively developed by the International Law Commission, peremptory norms generate erga omnes obligations — obligations owed to the international community as a whole, not merely to individual States in bilateral relations. They cannot be displaced by treaty, give rise to a duty of cooperation to bring violations to an end, and inform the interpretation of all other norms of international law.

The Court’s reasoning rested on three foundational observations. First, there is a clear relationship of dependence between the protection of core human rights — the rights to life, personal integrity, health, and non-discrimination — and the prohibition of anthropogenic conduct that irreversibly disrupts the planetary ecosystem. Second, preserving the ecosystem’s equilibrium is not merely desirable but legally necessary for the effective fulfillment of obligations already codified by international law. Third, recognizing such an obligation does not contradict existing positive law; rather, it contributes to giving fuller effect to existing norms. It reflects a level of normative consolidation that satisfies the threshold for peremptory norm status, given its indispensable connection to the protection of human life, dignity, and intergenerational justice.

The specific anthropogenic activities subject to this prohibition were identified with precision: large-scale, irreversible deforestation of primary forests crucial to biodiversity, climate regulation, and hydrological cycles; massive and irreversible biodiversity loss; persistent large-scale contamination of vital resources such as freshwater, oceans, or the atmosphere; and irreversible alteration of natural biogeochemical cycles — the carbon, nitrogen, and phosphorus cycles on which all life depends.

If the prohibition of irreversible environmental damage is a peremptory norm, then every trade agreement, every investment treaty, every development financing arrangement must be interpreted in its light. The compatibility of investor-State dispute settlement mechanisms with this norm — where those mechanisms have been used to challenge environmental regulation —can no longer be assessed by reference to the lex specialis of investment law alone. The jus cogens character of the prohibition creates a hierarchical relationship that investment law, treaty-based or not, cannot escape.

This finding will attract both enthusiastic support and rigorous scholarly critique. The process by which norms acquire peremptory status — and the authority of a regional human rights court to identify them — will be contested. These are legitimate debates, and they are essential to the development of international law. The Court’s characterization in OC-32/25 is best understood as an invitation to that conversation, not a foreclosure of it.

The ‘Right’ to a Healthy Climate

The third contribution of OC-32/25 is the recognition of a right to a healthy climate — a right derived from, and part of the right to a healthy environment. The Court first recognized the right to a healthy environment as an autonomous right in its Advisory Opinion OC-23/17 (2017)⁶⁾, holding that it is protected under Article 26 of the ACHR, read in conjunction with other treaty obligations. OC-32/25 builds on that foundation but proceeds further: it holds that the climate system’s unique global functions, the specific elements that compose it, and the dynamics necessary to ensure its equilibrium require a distinct and differentiated legal framework — not simply an application of the environmental right to a new context.

The Court defined a healthy climate as one derived from a climate system free of dangerous anthropogenic interference, for both human beings and for Nature as a whole. This definition is notable for two reasons: first, it incorporates the language of the United Nations Framework Convention on Climate Change (UNFCCC)⁷⁾, thereby anchoring the human rights framework in the existing architecture of international climate law. Second, it extends the beneficiaries of the right beyond human beings, reinforcing the rights-of-Nature paradigm discussed above.

The right has two analytically distinct dimensions. In its collective dimension, it protects the shared interest of present and future generations — and of other species — in a climate system capable of sustaining life and wellbeing. The right in this dimension is indivisible and non-exclusive: it cannot be reduced to a sum of individual entitlements, and its enjoyment by one actor does not diminish its availability to others. In its individual dimension, it protects each person’s possibility of developing within a climate system free of dangerous anthropogenic interference, and functions as a precondition for the exercise of other human rights — from health to housing to cultural identity.

Central to the Court’s analysis is the principle of intergenerational equity. The Opinion emphasizes that climate change will affect most severely those who are young today, who will live their entire adult lives in an increasingly adverse climate, as well as groups in situations of vulnerability who bear the costs of a crisis to which their contribution has been minimal. As deployed by OC-32/25, intergenerational equity carries specific legal content: States must not postpone climate action in ways that shift costs and harms to future generations; climate policies must account for the disproportionate burden placed on present groups in situations of vulnerability; and the non-regression principle prohibits States from reducing the level of climate protection already achieved.

The practical significance of this right ultimately depends on its justiciability. OC-32/25 addresses this concern by identifying judicially workable standards: science-based mitigation targets, the Paris Agreement’s ambition-ratchet mechanism, the non-regression principle, and the heightened due diligence standard applicable in the climate context. The experience of domestic climate litigation — from the Urgenda decision in the Netherlands⁸⁾, to Neubauer in Germany⁹⁾, to Future Generations v. Ministry of the Environment in Colombia¹⁰⁾ — demonstrates that such standards are capable of judicial enforcement. OC-32/25 provides a doctrinal framework for extending that experience to the Inter-American system.

A Comprehensive Framework of State Obligations

The fourth contribution of OC-32/25 is the comprehensive mapping of State obligations across three domains: substantive rights, procedural rights, and the protection of groups in situations of vulnerability.

Substantive Rights and the Standard of Heightened Due Diligence

On substantive rights, the Court applied a standard of heightened due diligence previously developed in contexts involving vulnerable groups.

Significantly, OC-32/25 addressed the extraterritorial dimension of climate obligations. The climate system is inherently transboundary: greenhouse gas emissions released in one territory contribute to global atmospheric concentrations and generate harms distributed across the planet, often concentrated in States and communities that have contributed minimally to the problem. The Court held that States bear responsibility for the human rights violations caused by emissions originating in their territory when a causal link with harm suffered by persons outside their territory can be established. This finding carries significant implications for major historical emitters and for climate litigation strategies targeting high-emission States.

Procedural Rights and Climate Democracy

OC-32/25 develops a rich framework for what might be termed climate democracy — the procedural architecture through which affected communities participate in, contest, and enforce climate governance.

On access to information, the Opinion goes beyond the general obligation of environmental information disclosure to require that States proactively combat climate disinformation. This addresses directly one of the most serious governance failures of the climate era: the systematic propagation of false or misleading information about the scientific consensus on climate change, which has functioned to delay effective policy response and undermine the capacity of citizens and communities to make informed decisions about their exposure to climate risks.

On access to justice, the Court applied the pro actione principle — the interpretive presumption in favor of access to adjudicative mechanisms — endorsed collective standing in climate cases, addressed the evidentiary challenges inherent in climate causation, and called for special reparation frameworks capable of addressing both individual and collective harm. The recognition of collective standing is particularly significant: because climate harm is diffuse and aggregate in nature, individual standing requirements, if applied strictly, would systematically exclude from judicial redress the communities most adversely affected by climate change.

Differentiated Obligations Toward Vulnerable Groups

OC-32/25 builds a detailed architecture of differentiated obligations with respect to groups whose rights are disproportionately affected by climate change, often in inverse proportion to their contribution to causing it.

For children and adolescents, the Opinion recognizes that their rights are uniquely implicated by a crisis that will define the entire arc of their lives. Heightened protection is required, grounded in the principle of the best interests of the child as interpreted in the climate context.

For indigenous, tribal, Afro-descendant, and peasant communities, the destruction of ecosystems integral to their cultural identity, territorial rights, and means of subsistence demands specific legal remedies. This builds on the Court’s extensive prior jurisprudence on indigenous and tribal rights under Articles 21 and 26 of the ACHR and extends that framework to the climatic dimension of territorial integrity.

For environmental human rights defenders, the Opinion requires precautionary protection even before harm materializes. This responds to a crisis of particular severity in Latin America, where the killing and criminalization of environmental defenders occurs at levels that have no parallel in any other region of the world. The Court’s framing underscores that their protection is not peripheral to effective climate governance but constitutive of it.

Implications for Inter-Judicial Dialogue and the Role of Courts

Three broader reflections emerge from the analysis of OC-32/25 that are of particular relevance for inter-judicial dialogue across regional human rights systems.

The first concerns the structure of that dialogue itself. OC-32/25 was not produced in isolation. The Court engaged in a conscious inter-judicial conversation — with the International Court of Justice, the International Tribunal for the Law of the Sea, the European Court of Human Rights, the African Court on Human and Peoples’ Rights, and numerous domestic supreme and constitutional courts. The Opinion cites climate jurisprudence from Germany, the Netherlands, Switzerland, Colombia, Brazil, and the United States, among others. This cross-referencing reflects an understanding that the climate crisis, precisely because it is global and systemic, demands a coherent and mutually reinforcing global legal response that no single tribunal can construct alone. It also reflects the Court’s awareness that the legitimacy of its doctrinal contributions is enhanced — not diminished — by situating them within a broader conversation about the direction of international law.

The second reflection concerns the relationship between courts and science. OC-32/25 engaged extensively with the best available climate science, including Intergovernmental Panel on Climate Change (IPCC) reports, scientific evidence on planetary tipping points, and epidemiological data on differential vulnerability. The Court did not shy away from technical complexity. But it also did not allow that complexity to become a pretext for judicial inaction. One of the most important principles that emerges from the Opinion is that scientific uncertainty does not suspend the precautionary principle; it activates it. The burden of proof is shifted: it falls on those who would act in ways that risk irreversible harm to demonstrate that such action is consistent with scientific knowledge, rather than on the affected communities to prove a level of causal certainty that the systemic nature of climate harm makes practically unattainable.

The third reflection concerns institutional legitimacy. Courts that engage with climate change will be accused of judicial overreach — of substituting legal for political judgment on questions that are, in part, matters of economic and democratic choice. The Court took those concerns seriously. But it also drew a principled distinction between determining what the law requires, which is a properly judicial function, and prescribing the specific policies through which States discharge their legal obligations, which remains a matter for democratic deliberation. OC-32/25 provides clear legal standards — science-based targets, non-regression, heightened due diligence, protection of vulnerable groups — while leaving to States the discretion of policy design within those standards. This balance between legal determinacy and institutional restraint is, in the Court’s view, the appropriate response to concerns about overreach, rather than a reason for withdrawal from the field.

Conclusion

Advisory Opinion OC-32/25 represents the most comprehensive and legally sophisticated pronouncement on climate change and human rights that the Inter-American system has produced. Its four principal contributions — the recognition of the rights of Nature, the jus cogens characterization of the prohibition of irreversible environmental damage, the autonomous right to a healthy climate, and the comprehensive mapping of State obligations — collectively transform the doctrinal landscape within which climate litigation and advocacy may proceed.

The Opinion does not resolve all questions. The jus cogens characterization will attract sustained critique. The justiciability of the right to a healthy climate will require further development through contentious case law. The application of extraterritorial obligations to emissions-related harm poses evidentiary and causation challenges that future proceedings will need to address. These are not defects of the Opinion; they are the inevitable features of any judicial pronouncement that engages genuinely with the frontier of a developing area of law.

What OC-32/25 accomplishes is to provide the clearest possible statement, from a regional human rights tribunal with a record of progressive and consequential jurisprudence, of what international human rights law requires from States in the climate emergency. It situates those requirements within the broader movement of international law, engaging in productive dialogue with other international and domestic courts. And it gives voice — through an unprecedented participatory process — to the communities whose rights are most acutely at stake: indigenous peoples, small island States, environmental defenders, children, and the generations who have not yet been born but whose futures depend on the choices made now.

The post Climate Change and the Environment at the Inter-American Court of Human Rights appeared first on Verfassungsblog.

Since Trump was re-elected to the US Presidency, individually and collectively we proposed reviving the European Defence Community (EDC) treaty as a way to integrate European defence for a brave new era. Events since November 2024 have confirmed our conviction that Europe should take its defence seriously. Our colleague Robert Schütze has criticized our proposal, and despite our prior response, he remains unconvinced. So we’ll have to agree to disagree. Nevertheless, we still believe that it is important to clarify our standpoint. After all, the discussion is anything but academic, and it goes beyond a formalist legal analysis, as legislation has been tabled in both houses of the Italian Parliament with a view for Italy to belatedly ratify the EDC treaty, and some political momentum is building on this plan—especially in Italy.

International Law

The 1952 EDC treaty is not dead. It was signed by 6 States, and duly ratified by 4 of them—and there was never an official decision by the contracting parties to abandon this treaty.

First, to insist on an implicit decision to terminate the EDC treaty resulting from the establishment, in 1954, of the Western European Union (WEU) misses the point. After the French Parliamentary Assembly postponed the ratification of the EDC in 1954, the important decision taken by the US, eager to accelerate German rearmament in view of the Cold War, was the inclusion of West Germany into NATO. That decision, which was completed through a Protocol to the NATO treaty, required automatically the modification of the 1948 Brussels treaty creating the Western Union (WU) – a mutual defence pact between the UK, France and the Benelux, which still identified Germany as the main threat to peace. This was done through a Protocol to the Brussels Treaty on WEU, which in its new Article III specified that NATO would be the organization dealing with military issues. As such, the WEU was nothing more than a revision of the WU, purging it of its anti-German traits, given Germany’s admission into NATO. So, the WEU was in no way a substitute for the EDC, and in that reading, it never implied a replacement thereof.

Second, one may downplay the fact that member states never explicitly decided to abandon the EDC treaty. And still, we have evidence that when States really want to abandon agreements in European integration, they do so in plain words—as the European Council did in 2007 after the failure of the Constitutional Treaty in France and the Netherlands. Schütze insists that “the European Council, which forms part of an autonomous legal organization independent of the Member States,” could not withdraw the consent of the member states that signed the Constitutional Treaty. But that, again, misses the point. Of course, in 2007 the European Council was not an EU institution – it only became one when the Lisbon Treaty entered into force in 2009. So, the European Council was then acting as an international diplomatic body, perfectly capable of expressing the intention of its members. This confirms that indeed when States want to ditch a still-born treaty, they know how to do so—explicitly.

Finally, there is the claim that if the EDC Treaty was still valid it would be illegal in Germany, given the more recent case law of the BVerfG. It is international law 101, though, that a domestic problem can, in principle, not be invoked against international law obligations. Article 46 of the Vienna Convention (VCLT) confirms that “A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest”, which occurs when “it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith.” We don’t even need to add here that Germany’s own Constitutional Court actually upheld the original EDC ratification, which, arguably, weakens the case for manifest violation. Of course, nobody can contest that a state may invoke the rebus sic stantibus clause under Article 62 VCLT to terminate its consent and withdraw from a treaty. But if Germany or the Benelux wanted to do that with regard to the EDC, they would need to take an affirmative action to do so. Thus, from a public international law point of view, the EDC treaty is still there – it has not entered into force obviously, but it could.

EU Law

One may insist on a perception that the EDC treaty would violate EU law. Our response remains: No, that is not the case.

Schütze maintains that because Article 42 and 46 TEU ask each Member State “to develop its defence capacities through the development of its national contributions and participation” the EDC then is illegal because it created a common army by merging national armies. But this is non sequitur. The provisions of the EU treaties do not require member states to keep national armies. They simply exclude an EU competence in the field of defence, reserving the matter to the member states. This means that EU states are of course sovereignly free to organize defence as they see fit, including by pooling their armed forces with other members if they so wish. In fact, Article 42(3) TEU is clear by saying that “those member states which together establish multinational forces may also make them available for the common security and defence policy”. This is exactly what the EDC would be—a multinational force created by the (initially six) member states that concluded the EDC treaty.

Then there is the argument that the conclusion of inter-se intergovernmental agreements between groups of member states “can constitutionally be done, once the Pringle criteria are fulfilled, in those parts of the EU Treaties that are themselves supranational” but not in areas which are intergovernmental. The exact opposite is true. In areas of EU law which are supranational, member states have much less room for maneuver to conclude inter-se agreements. In areas which remain intergovernmental, States have a much wider remit to conclude treaties outside the EU legal order, as a vast body of literature and treaty practice confirms. Of course, the Pringle criteria apply also in this area, but there is really nothing in the EDC treaty that conflicts with primary law, and surely not the possible involvement of the ECJ—which is barred from having jurisdiction on the CSDP, but could well be given oversight on the EDC.

Finally, there is the argument that the EDC would violate EU secondary law, especially the EU Defence Procurement Directive (DPD) and now EDIRPA. This is not the case. The DPD is a rather inconsequential piece of legislation, designed to encourage the creation of a more integrated EU defence market: it ultimately leaves to member states maximum freedom in how much they wish to open up their defence market to foreign competition. And the DPD is itself subjected to Article 346(1)(b) TFEU according to which “any member state may take such measures as it considers necessary […] connected to the production of or trade in arms, munitions and war materiel”. If defence procurement is a matter that the treaties leave to the sovereign member states, why on earth could a group of member states not decide in their sovereignty to integrate for real their defence procurement, e.g. by shifting authority to a common supranational agency – just as the EDC foresees?

We don’t need to be concerned about limits in the EU treaties that do not exist. EU primary law in defence essentially does one thing—it leaves power to the member states, which are then free to integrate it through separate agreements (also of a federal, supranational type). To claim that EU law imposes on member states to keep national armies, or prohibits them from integrating their defence forces through other means would simply be a misreading of text, history and purpose.

Politics

When lawyers turn to political arguments against the EDC, we are outside the realm of legal reasoning anyway, so we will remain brief on this. Schütze questions the “political wisdom” of reviving the EDC given its connection to NATO; on the other hand, he claims that we should move towards a European defence union that is more autonomous, democratic and pragmatic than the EDC, along the lines of proposals made by the European Parliament and some members of the EU Commission—two institutions which incidentally have no legal authority under the current EU treaties to make proposals in the field defence.

On the first point, we are conscious of the issue as it is just obvious. Note, though, that the fact that the EDC is connected to NATO actually makes reviving the 1952 treaty an attractive proposition for most current European states (including Germany), which are eager to keep going the transatlantic relationship. Connection to NATO, however, was and remains a liability of the EDC especially in France, which is wary of subjecting its armed forces to an organization where the Supreme Allied Commander (SACEUR) is a US general. Yet, there is no legal requirement in the NATO treaty for SACEUR to be an American. This made sense as long as the US did the heavy lifting in NATO. But as the US increasingly steps down its commitment, it is well conceivable that a European could take the role. In fact, we would like to propose that European NATO states should decide to appoint a French general as the next SACEUR. That would remove the biggest obstacle to serious discussion on the EDC in France, and change the narrative.

On the second point, we share a pro-European stance on the issue, but we also see what is going on in the real world of defence in Europe today. It is always helpful for academics to get away from their books and libraries – from time to time – for a reality check. And what is obvious for anyone who wants to see is that there isn’t more Europe in defence, but rather less Europe. With all the academic enthusiasm for the increasing role of the Commission in defence industrial policy, the truth is that the European defence market is becoming more fragmented, rather than more integrated. Just look at Article 4(3) of the SAFE regulation.  It allows member states receiving EU funds to use all the money for purely national projects, as opposed to cooperative ones, for the first full year. The ambitious Franco-German project for a future joint aircraft combat system has been scrapped, after having been brain-dead for quite some time. The most significant defence-related decision taken by the EU since Trump’s re-election has been to lift EU fiscal rules to allow member states to spend more – on their armed forces.

It seems quite clear what is on the agenda today: not some dream-like implementation of Article 42 TEU, which allows the European Council, unanimously, and following national ratifications, to establish a “common defence”—a prospect that by the way Schütze himself acknowledges would not be legal in Germany nowadays, given recent BVerfG’s insistence on preserving “military sovereignty … as a fundamental aspect of German statehood”. The truth is that what is happening is national rearmament, with Germany alone dominating the process, and projected to have by the end of the decade an army larger than the French and British forces combined. Easy to overlook for German observers, but this has a hegemonic dynamic that is causing increasing unease in neighboring countries, not least given polls indicating that the extreme right AfD could seize power as soon as the next federal election. In fact, in the US voices exist that point to a scenario in which Germany may soon want its own nuclear deterrent—something that would conflict with two treaties (the Non-Proliferation Treaty and the 2+4 Treaty), but which could become inevitable if NATO is withered and no pan-European solution is quickly put in place.

This takes us back to the EDC. Remember: The EDC created a common army, with a common budget, a common defence procurement, and a common government (with a bicameral legislature, a collective executive and a court), linked to NATO, the UK and open to the accession of new member states. And, once more: this wasn’t a draft starting point, to be ground down to something ‘realist’: The EDC treaty has already been negotiated. It was signed. And it was ratified by 2/3 of its signatory States. And serious efforts are ongoing to ratify the treaty also in Italy.

We do not support the idea of reviving the EDC because this is the best of all worlds. If we were to start from scratch, we would surely come up with something different. But politics is not an academic seminar. This moment in time, arguably the most dangerous and the most insecure in Europe since the end of WW II, calls for answers, not for another round of questions and another layer of academic concerns. Turning to the EDC is currently the best among several imperfect alternatives to make progress on European defence—surely preferable to uncoordinated national rearmament. And, arguably the most important point: Turning to the EDC and taking its legacy seriously makes us realize how far we were able to come in the past.

The post Reviving the EDC Treaty is Legally Feasible, and Preferable to the Ongoing National Rearmament appeared first on Verfassungsblog.

The Hertie School has prohibited its 2026 graduating cohort from displaying Palestinian solidarity symbols at their 22 June ceremony at the Berliner Philharmonie – including any depiction of historical Palestine “in the colours or shape of the watermelon” – and required students to sign a declaration accepting these terms as a condition of entry, as publicised on TableMedia, X and LinkedIn. While universities possess a legitimate interest in protecting the ceremonial character of graduation events, categorical restrictions on peaceful symbolic expressions – particularly those not included in the taxonomy that German authorities have designated as prohibited – are arguably not proportionate. While a (private) university can regulate conduct at its ceremony to maintain its main purpose, restrictions on freedom of expression cannot be absolute. The more concrete and content-oriented a restriction on displaying symbols and political expression is, the stronger the legal justification it must provide.

Political Expression in Hybrid Spaces

How do freedom of expression and other constitutional guarantees under the Basic Law apply in this dispute? While Hertie School is a state-recognised and accredited private university, and a graduation ceremony is not an entirely public forum, the constitutional guarantees, mutatis mutandis, nevertheless apply for at least the following three reasons: First, since the Bundesverfassungsgericht’s (BVerfG) landmark Lüth judgment (1958), fundamental rights operate not merely as defensive rights against the state but as a constitutional value order that “radiates” into private-law relationships. According to the thus developed doctrine of human rights obligations’ indirect effect (“mittelbare Drittwirkung”), Hertie’s contractual autonomy – including its authority to set conditions of entry – must be exercised in light of Article 5 of the Basic Law (GG)’s guarantee of freedom of expression. Second, the Berliner Philharmonie is not a privately owned ballroom or conference centre: it is a foundation established under Berlin public law and forms part of the city’s funded cultural infrastructure. Third, the BVerfG’s Fraport judgment (2011) established that entities operating publicly accessible space cannot treat private-law house rights as a constitutional escape hatch. While a graduation ceremony is not an airport terminal, the judgment’s underlying logic stands: the public character of a space and the institutional significance of the event mean that fundamental rights do not simply dissolve in a puff of smoke because the contractor is a private entity.

Surely, a private university retains latitude to protect the integrity and dignity of a ceremony. Content-neutral rules prohibiting organised disruptions, chanting during speeches, stage occupations or large banners which obstruct visibility or fundamentally alter the character of the event would be permissible under both German constitutional doctrine and ECtHR jurisprudence. They afford organisers significant room to preserve the purpose of an event against conduct that prevents it from proceeding as intended.

These concerns are not theoretical. At a 2024 commencement ceremony at Central European University in Vienna, graduates interrupted speeches to accuse university leadership of complicity in genocide, repeatedly disrupting proceedings to the point where the ceremony could not continue as planned. Whatever one thinks of the underlying claims, universities have a legitimate interest in ensuring that the academic milestone celebrated by one part of a cohort is not appropriated as a platform by another. Had Hertie’s guidelines confined themselves to regulating conduct of that kind, the minimal restrictions of the constitutional rights would likely be proportionate.

The dispute becomes more serious when students are required, as they were in the present case, to sign a declaration accepting the applicable rules as a condition of entry to the ceremony. That requirement changed the picture: it shifted the organiser’s intervention from regulating conduct inside the event to gatekeeping participation in a ceremony marking the completion of a state-recognised degree – something students have earned and around which they hold legitimate expectations of attendance.

More importantly, it conditioned participation upon acceptance of restrictions that rest on the institution’s overly narrow interpretation of contested political meaning. The BVerfG’s Stadionverbot decision (2018) is instructive: The Court recognised that exclusion from events with significant consequences for social participation requires a non-arbitrary, objective justification (“sachlicher Grund”). A private law contract does not insulate a decision to exclude from this sort of scrutiny.

The Problem of Symbolic Expression

While graduation is not a football match, the principle holds: exclusion from an academic ritual demands justification within the sphere of proportionality. It must address and justify how the specifically prohibited conduct of displaying the concrete symbols disrupts the ceremony: how is a graduating student – or their parent or cousin waving a Palestinian flag, wearing a BDS badge or an unobtrusive symbol on their blouse – concretely obstructing the proceedings or fundamentally altering the character of the event? Is restricting that conduct – silent and symbolic – proportionate to pursuing the legitimate objective of non-disruption?

Such expression constitutes classic political speech protected by Article 5 GG and Article 10 ECHR. We may dislike the message or find it offensive. Yet constitutional protection is not reserved for messages that enjoy consensus. In its canonical judgment in Handyside v UK, the ECtHR famously observed that freedom of expression protects not only information and ideas that are favourably received but also those that “offend, shock or disturb”. The proposition has become a constitutional commonplace across Europe precisely because controversial political speech, and with it, symbols, is usually the speech most in need of protection.

Palestinian solidarity symbols, like much of the iconography of national liberation movements, will always be politically contested. Constitutional law requires caution before suppressing them. Political symbolism is, in principle, protected, and any ban requires a context-specific and proportionate justification. The guidelines communicated to Hertie’s graduating students, however, merely designate maps depicting a pre-1948 Palestine as inherently anti-Semitic because they supposedly deny Israel’s right to exist. Whether that interpretation is anti-Semitic to some, or not to others, really isn’t the question. Where a symbol admits of multiple meanings – as symbols tend to – doctrine does not permit defaulting to the most harmful reading. Categorical prohibitions require justifications that the guidelines do not provide.

Who Gets to Decide What a Symbol Means?

A similar asymmetry of interpretation runs through Germany’s parallel struggle over the slogan “From the river to the sea…”. After the Federal Ministry of the Interior listed the phrase as a characteristic (Kennzeichen) of Hamas when it banned the terror organisation in November 2023, criminal and administrative courts continuously disagree over what the slogan denotes. The VG Münster (2023) and, on appeal, the Hessische VGH (2023) held that the phrase admits of readings ranging from a demand for Palestinian self-determination to, at the extreme, a call for Israel’s destruction – and that this plurality of meaning, protected by the BVerfG’s longstanding rule against assigning ambiguous statements their most incriminating reading, precluded its prohibition. The LG Berlin I (2025) reached the opposite conclusion twice, holding that Article 5 GG must “recede” once a “verbal formula” has been designated the identifying slogan of a banned organisation, regardless of what an individual speaker meant by it. The OLG Düsseldorf (2025) became the first appellate court to endorse this approach; jurisprudence is inconsistent thus far (2026) and awaits further clarification by the Bundesgerichtshof.

The parallel to the Hertie School’s guidelines is evident – one assigns a single, authoritative meaning to an utterance or image with a demonstrable plurality of possible meanings, thus foreclosing the inquiry that a constitutional doctrine would otherwise demand. For example, a chant used since the 1970s by both Palestinians and Israeli leftists, or a T-shirt declaring loyalty to the cause of the Boycott, Divest and Sanction (BDS) movement. The map is the starkest example: depending on context, it can serve as a statement of historical geography, a mnemonic of the Nakba, a claim to self-determination, a vision of a single state, or a blueprint for a Holy Land confederation – yet Hertie’s guidelines proceed on the basis of a single interpretation.

If after years of litigation and conflicting rulings, German courts still cannot agree what the slogan “From the river to the sea…” necessarily denotes, an instruction sheet handed to graduating students a fortnight before a ceremony is unlikely to settle what a map of historic Palestine means either.

Context Matters After All

Where universities designate a symbol or slogan as harmful, they remain obliged to explain why restrictions on expression are necessary and proportionate where meaning itself is contested. The ECtHR’s judgment in Baldassi v. France (2020) provides a useful illustration. The Court considered the conviction of activists who had called for a BDS-style boycott of Israeli products. While the Court did not endorse the activists’ views, it held that their conduct formed part of political expression on a matter of public interest and was therefore entitled to the heightened protection ordinarily afforded by Article 10 ECHR. It also attached significance to the absence of anti-Semitic language, hate speech or incitement to hatred.

The judgment does not prevent institutions from criticising boycott campaigns. It does, however, caution against treating support for boycotts of Israel as inherently anti-Semitic or as automatically falling outside the protection of freedom of expression. Like political symbols, political slogans or historical maps require contextual assessment rather than categorical classification. The legal bottom line is that universities may protect ceremonies against disruption but need to transparently justify any categorical restrictions on symbols. If there is more than one way of interpreting them, they remain protected under the constitutional guarantee of the freedom of speech.

Check Your Freedoms at the Garderobe?

The BVerfG’s underlying concern in Fraport was that constitutional guarantees lose practical significance if publicly accessible spaces could be transformed into rights-free zones. In Appleby v UK – the leading case on how human rights operate in privately owned spaces – the ECtHR recognised that the relationship between property rights and expressive freedoms cannot always be resolved by reference to ownership alone. While the Court stopped short of recognising a general right to exercise free speech on private property, it accepted that exclusion from privately owned spaces may, in certain circumstances, violate the rights under the Convention.

The graduation dispute sits in a particular hybrid public-private setting, where private organisational autonomy intersects with institutions embedded in the public sphere. Hence, where public institutions and private entities are intersecting, fundamental freedoms cannot simply disappear at the entrance. The more a restriction targets the content of expression (rather than anticipating a disruption of an event as such), the stronger the justification required. This conclusion should not be controversial. It is one of the basic features of liberal constitutionalism and one that a school dedicated to the study of public policy ought to be especially well-placed to defend.

The Sound of Dissonance

The dispute highlights a broader challenge that increasingly confronts German cultural institutions, universities and foundations as they face pressure to distinguish between anti-Semitism, anti-Zionism, Palestinian nationalism or patriotism and criticism of Israeli government policy regarding, inter alia, its conduct under international humanitarian and criminal law. They simultaneously seek to protect Jewish students and prevent anti-Semitism (as they should), preserve academic freedom as well as institutional neutrality, and avoid becoming platforms for geopolitical conflict. These are all legitimate objectives. The danger lies in pursuing those goals through expansive definitions of impermissible political expression. If every contested symbol, T-shirt slogan or chant can be reclassified as discrimination or hateful speech, constitutional balancing becomes unnecessary and the outcome is determined before the analysis begins.

It is therefore appropriate that the dispute should arise in the Berliner Philharmonie. A graduation ceremony, like a concert, depends upon orderly conduct and mutual respect. Yet constitutional democracy is not an exercise in perfect harmony. Its defining feature is the capacity to accommodate competing voices without silencing them. The challenge is therefore not how to eliminate every dissonance from public life but how to ensure that, in our search for harmony, we do not end up hearing only a single tune.

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