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Kaum beachtet von der Weltöffentlichkeit, bahnt sich der erste internationale Strafprozess gegen die Verantwortlichen und Strippenzieher der Corona‑P(l)andemie an. Denn beim Internationalem Strafgerichtshof (IStGH) in Den Haag wurde im Namen des britischen Volkes eine Klage wegen „Verbrechen gegen die Menschlichkeit“ gegen hochrangige und namhafte Eliten eingebracht. Corona-Impfung: Anklage vor Internationalem Strafgerichtshof wegen Verbrechen gegen die Menschlichkeit! – UPDATE

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International Rulings and the UK–Mauritius Chagos Agreement

On 22 May 2025, following negotiations that began in November 2022 and a joint statement of 3 October 2024 (to learn more, see Sebastian von Massow), the United Kingdom and Mauritius concluded an Agreement, stating that “Mauritius is sovereign over the Chagos Archipelago in its entirety, including Diego Garcia” (Article 1). The preamble explicitly notes that the parties reached the Agreement “having regard to the decisions of international courts and tribunals”.

From a historical perspective, in 1965, the United Kingdom adopted the British Indian Ocean Territory Order to separate the Chagos Archipelago as well as Aldabra, Farquhar, and the Desroches islands from Mauritius and Seychelles for defense purposes. Following the independence of Seychelles in 1976, the islands of Aldabra, Farquhar, and Desroches were restituted to Seychelles. However, the Chagos Archipelago continued to be administered by the United Kingdom in accordance with an exchange of notes that established the United States naval support facility on Diego Garcia. Since then, the United Kingdom and Mauritius disagreed on the sovereignty of the Chagos Archipelago, and the issue has been raised directly or indirectly in several cases without any significant action being taken.

The Chagos Agreement is not only a diplomatic achievement, but also a “contractual transposition” of the decisions of international courts and tribunals. The Agreement acknowledges that the detachment of the Chagos Archipelago and its administration by the United Kingdom constituted unlawful acts (Preamble) and provides reparation to Mauritius.

The decisions of international courts and tribunals

The sovereignty of Mauritius over the Chagos Archipelago has been discussed, at least as a subsidiary issue, in three cases involving the United Kingdom and Mauritius, or in which one of them was a Party or was cited.

Since 1965, the General Assembly has adopted several resolutions, including Resolution A/RES/2066(XX) in which it invited the United Kingdom “to take no action which would dismember the Territory of Mauritius and violate its territorial integrity” (para 4), in accordance with the United Nations Charter and Resolution 1514 (XV) on the independence of colonial countries and peoples. Building upon this, the General Assembly of the United Nations adopted Resolution 71/292 of 22 June 2017, requesting an Advisory Opinion from the International Court of Justice on the Legal consequences of the separation of the Chagos Archipelago from Mauritius in 1965. On 25 February 2019, the Court issued its Advisory Opinion, considering that “the process of decolonization of Mauritius was not lawfully completed when Mauritius became independent in 1968, following the separation of the Chagos Archipelago” (para. 183-3). The Court reaffirmed the erga omnes nature of the right to self-determination and deduced that the administration of the Chagos Archipelago constitutes a continuing internationally wrongful act which engages the international responsibility of the United Kingdom (Advisory Opinion, para 177).  While the General Assembly declared that “the Chagos Archipelago forms an integral part of the territory of Mauritius” (A/RES/73/295, par 1.b) and the UN Geospatial published the new world map (1 February 2020) which incorporated the Chagos Archipelago into Mauritius, the United Kingdom maintained that it “has no doubt about its sovereignty over the Chagos Archipelago” (UK statement, 13 June 2020).

Prior to this case, in 2004, the United Kingdom deposited a list of geographical coordinates declaring a marine protection and preservation zone around the Chagos Archipelago with the Secretary-General of the United Nations pursuant to Article 75(2) of UNCLOS. Mauritius protested against this act on several occasions and ultimately initiated an arbitration procedure against the United Kingdom on 20 December 2010 in accordance with Annex VII of UNCLOS. Essentially, Mauritius claimed that the United Kingdom is not the coastal state, does not have sovereign rights over the Chagos Archipelago, and is not entitled to declare a marine protected area or other maritime zones around the Archipelago (Notice of Arbitration, para 11.2, 11.3; Memorial of Mauritius, paras 1.3, 6.1). The United Kingdom argued that the real dispute (the question of sovereignty) is not subject to the interpretation and application of UNCLOS (Preliminary Objections of the United Kingdom, para 3.10). Although the tribunal agreed with the United Kingdom on this point, it examined the aspects relating to UNCLOS and concluded “unanimously” that the establishment of the Marine Protected Areas surrounding the Chagos Archipelago by the United Kingdom in 2010 violated Articles 2(3), 56(2), and 194(4) of UNCLOS (Award, para. 547-B). In other words, Mauritius is the coastal state and has sovereign rights, jurisdiction, and obligations in the territorial sea and exclusive economic zone around the Chagos Archipelago, in accordance with UNCLOS and the 1965 Fish Stocks Agreement.

Finally, on 28 April 2023, the Special Chamber of the International Tribunal for the Law of the Sea, constituted in the dispute concerning the delimitation of the maritime boundary between Mauritius and the Maldives, delivered its judgment. During the preliminary objection phase, the Maldives invoked the monetary gold principle to contest the jurisdiction of the Special Chamber on the basis of the United Kingdom’s absence as an indispensable party to the maritime boundary dispute (see Xu Qi), drawing an analogy with the East Timor case (Judgment, paras 19, 27, 28). This raised the question of whether Mauritius or the United Kingdom had a coastline facing or adjacent to the Maldives (Preliminary objections, paras. 139, 164, 175). The Special Chamber concluded that the United Kingdom could not have “any legal interests in permanently disposing of maritime zones around the Chagos Archipelago by delimitation” (Preliminary objections, paras. 247, 248). In accordance with the maxim ex injuria jus non oritur, the Special Chamber concluded that the United Kingdom is not the state whose coastline is adjacent to or faces the Maldives. In other words, Mauritius is the coastal state.

The Agreement of 22 May 2025 broadly complies with the rulings of the courts and tribunals. By expressly recognizing the sovereignty of Mauritius over the Chagos Archipelago, including Diego Garcia, and the legal consequences thereof, the United Kingdom is following the logic of completing the process of self-determination, in accordance with the ICJ Advisory Opinion. In fact, as the Special Chamber of the ITLOS constituted in the delimitation of the maritime boundary between Mauritius and Maldives pointed out, “judicial determinations made in advisory opinions carry no less weight and authority than those in judgments because they are made with the same rigour and scrutiny” (Preliminary objections, para 203). Similarly, it takes note of the judgment of the Special Chamber, conceding that it is not the coastal state. Finally, the United Kingdom recognizes that it has no coastal sovereign rights, jurisdiction, and duties in the territorial sea and in the exclusive economic zone, in accordance with the award of the arbitral tribunal under Annex VII to UNCLOS.

The question of reparations

Without prejudice to the Advisory Opinion of the ICJ, which urged that the process of self-determination should be “lawfully completed”, the arbitral tribunal under Annex VII to UNCLOS and the Special Chamber of the ITLOS did not address the issue of reparation. However, as we have seen, their reasoning implies that internationally wrongful acts occurred, for which reparation is required.

In accordance with Article 34 of the ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts, full reparation for damage resulting from an international wrongful act “shall take the form of restitution, compensation and satisfaction, either singly or in combination” (see Dinah Shelton). Restitution requires the responsible state to “wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed” (Factory at Chorzów, p. 47). As for compensation, Article 36(2) of the ILC Draft Articles states that it “shall cover any financially assessable damage including loss of profits insofar as it is established” (see Stephan Wittich). Compensation is ancillary to restitution. It represents an option when restitution is materially impossible or would impose an excessive burden on the responsible state compared to the benefit that the injured state could reasonably expect to obtain through compensation (Article 36 of the ILC Draft Articles). Satisfaction is applied when neither restitution nor compensation is possible, and “may consist in an acknowledgement of the breach, an expression of regret, a formal apology or another appropriate modality” (see Cristina Hoss). The Agreement of 22 May 2025 combines all three forms of reparation.

The United Kingdom expressly returns the Chagos Archipelago, including Diego Garcia, to Mauritius (Article 1). This reflects the definition of restitution in the literature, which states that it may involve “the return of objects, including territory, unlawfully seized, or occupied, as well as of unlawfully detained individuals” (see Attila Tanzi). Furthermore, as compensation, the United Kingdom will pay an annual sum to Mauritius for an initial period of 99 years, which may be extended by a further 40 years (Article 13). The United Kingdom will also establish a trust fund (Article 11) and, where appropriate, offer preference to Mauritian citizens and companies in operating the Diego Garcia base (Article 10). Similarly, the acknowledgement of the “wrongs of the past” in the preamble constitutes a form of reparation in itself (satisfaction). More importantly, the Agreement states that “Mauritius is free to implement a programme of resettlement on the islands of the Chagos Archipelago other than Diego Garcia” (Article 6). It is important to highlight that the resettlement of the Chagossians had been the subject of a public consultation from 4 August 2015 to 27 October 2015 and had been examined by the Foreign Affairs Sub-Committee on the British Overseas Territories before the Agreement of 22 May 2025. On 14 March 2024, the sub-committee urged the United Kingdom to establish a “pilot resettlement programme to provide a right for the Chagossian people to return to their ancestral home” (for more information on the resettlement of the Chagossians in accordance with international law, see Stephen Allen). It is now the responsibility of Mauritius to elaborate a resettlement plan. This is a form of satisfaction as it involves a profound process of remembrance that cannot return the Chagossians to the situation that prevailed before the unlawful act and cannot be objectively assessed in monetary terms. To ensure the Agreement is fully implemented, disputes between the parties may be submitted to a Joint Commission (Article 14, Annex 3) and, if necessary, to an arbitral tribunal (Article 15, Annex 4).

Conclusion

I share the view of Professor Philippe Sands on the Agreement of 22 May 2025, which is that “doing the right thing, for the Chagossians, the environment, national security and the rule of law, can truly be something to be proud of, not to belittle or attack”. Obviously, it would be unrealistic to expect the United Kingdom to grant full reparation to Mauritius and the Chagossians, given the particular context in which they are exercising their right to self-determination. The issue of reparation here involves “large-scale historical wrongs” (For more on this concept, see Carla Ferstman). Nevertheless, the Agreement of 22 May 2025 demonstrates the UK’s good faith and seems to establish the premises for adequate reparation. In short, this unusual example attests to the contribution of ICJ advisory opinions and, more broadly, international case law to the effectiveness of the right to self-determination.

The post International Rulings and the UK–Mauritius Chagos Agreement appeared first on Verfassungsblog.

A Single Paragraph’s Promise

Within a single month, two groundbreaking advisory opinions on climate change have been issued, fundamentally shaking the field of international environmental and human rights law: the Inter-American Court of Human Rights (IACtHR) Advisory Opinion OC-32/25 on the “Climate Emergency and Human Rights” and the International Court of Justice’s (ICJ’s) Advisory Opinion on “Obligations of States in Respect of Climate Change”. Many commentators have hailed these decisions as “historic” and “landmark,” characterizing them as transformative moments in global climate jurisprudence. Legal scholars and practitioners have quickly engaged with various dimensions of the ICJ’s advisory opinion, dissecting issues ranging from the relationship between treaty and customary law to the right to a clean, healthy and sustainable environment. However, another topic– one that strikes at the heart of climate change’s impact on the most vulnerable populations – has unfortunately garnered little attention: climate-induced displacement. The ICJ dedicates just one single, 105-word paragraph to this pressing issue (para. 378).

Still, this one seemingly modest paragraph may have profound implications for millions of people fleeing across borders due to climate change, potentially reshaping the legal landscape for those seeking protection and at least offering minimum guarantees against their removal to a place where they would be at risk. At the same time, however, there is much to be said about what the ICJ conspicuously fails to address or addresses with too much caution, a reticence that has drawn criticism in several separate opinions and declarations, most prominently from Judge Aurescu in his separate opinion (paras. 25-26).

Without diminishing the broader significance of the ICJ’s decision, this blog post examines the ICJ’s treatment of displacement within its broader context, including the Human Rights Committee’s Teitiota decision that the Court prominently cited. It explores what the opinion could have been, particularly compared to the Inter-American Court of Human Rights’ far more comprehensive Advisory Opinion OC-32/25, delivered just one month earlier. The contrast between these advisory opinions reveals different judicial philosophies and divergent approaches to one of the twenty-first century’s most pressing humanitarian challenges.

What the ICJ Said: Recognizing Climate Displacement under Non-Refoulement

In its single paragraph addressing climate change-induced displacement (para. 378), the ICJ emphasized that environmental conditions caused by climate change may endanger lives and force individuals to seek refuge in other countries or prevent their return home. The ICJ held that, under the principle of non-refoulement, states have an obligation not to return individuals to situations where there are substantial grounds to believe there is a real risk of irreparable harm to their right to life, as protected by Article 6 of the International Covenant on Civil and Political Rights. In doing so, the ICJ referenced the Human Rights Committee’s (HRC) landmark 2013 decision in Teitiota v. New Zealand–the key case affirming that climate change may put people’s lives at risk or expose them to cruel, inhuman or degrading treatment, thus triggering states’ obligations not to return them. 

The ICJ’s explicit recognition of the principle of non-refoulement in the context of climate change-induced displacement is therefore both notable and important. Its reliance on Teitiota v. New Zealand, a widely discussed and celebrated decision, signals an emerging convergence between international judicial bodies on the legal consequences of climate-driven harm. As legal scholars Michelle Foster and Jane McAdam have emphasized, Teitiota is “significant for the signal it sends to lawyers, decision-makers and policymakers considering how to respond to displacement in the context of climate change” (see here, at p. 976). By adopting the HRC’s approach, the ICJ affirmed that climate change can create conditions giving rise to non-return obligations under international law – a finding of great relevance for those displaced due to climate change directly or indirectly. 

This acknowledgment, while limited in scope compared to providing refugee protection, offers a meaningful entry point for the strengthening of legal protections for those displaced by climate impacts. It also reinforces growing trends in domestic case law, where courts have increasingly relied on this approach to address climate-related protection claims. The ICJ’s reference, therefore, should not be understated. It ensures that people facing life-threatening climate conditions are at least not returned to dangerous conditions in the sense of non-refoulement.

The ICJ’s articulation of non-refoulement obligations is also significant because it helps resolve long-standing ambiguity surrounding the threshold for protection in climate-related displacement cases – specifically, whether the harm must be imminent to trigger such obligations. The ICJ found that states must not return individuals where there are “substantial grounds for believing that there is a real risk of irreparable harm” to the right to life under Article 6 of the International Covenant on Civil and Political Rights. This phrasing, closely mirroring the HRC’s language in Teitiota (para. 4.5), avoids reference to the imminence of the harm, which has generated confusion in the legal community. 

As Foster and McAdam emphasize, the correct legal standard in human rights and refugee law is not imminence, but rather a real risk or foreseeable harm. By adopting the real-risk standard without reference to imminence, the ICJ reinforces the forward-looking, risk-based logic underpinning international protection. This clarification is crucial: misunderstanding the threshold as requiring imminence has already led to erroneous interpretations in legal manuals and decisions, potentially narrowing the scope for protection and dampening strategic litigation. The ICJ’s more precise framing thus helps to correct the record and offers clearer guidance for future decision-making.

What the ICJ Didn’t Say: Missed Opportunities for Comprehensive Protection

Climate-induced displacement was explicitly recognized in the General Assembly resolution requesting the advisory opinion (Resolution 77/276, preambular para. 8), which noted that climate change effects are “leading to displacement of affected persons.” Despite this, the ICJ devoted little attention to displacement in its advisory opinion. This judicial neglect attracted pointed criticism from Judge Charlesworth on displacement and disability vulnerability (para. 22), and Judge Aurescu on the lack of detail regarding state obligations under the non-refoulement principle in climate contexts (paras. 25-26).

As Judge Aurescu points out in his separate opinion, the ICJ’s treatment of non-refoulement is incomplete, particularly in the context of sea-level rise and the eventual uninhabitability of entire state territories. Judge Aurescu stresses the important point that non-refoulement entails not just passive obligations to refrain from return but also positive obligations under international human rights law. These include duties to admit persons at risk, to conduct individualized risk assessments, and to provide temporary residence permits, as well as to ensure protection from arbitrary detention and non-state violence that could result in indirect refoulement. By failing to engage with these topics, the ICJ missed an important opportunity to offer comprehensive legal guidance on how states must respond to displacement driven by climate change, not only in abstract but very concrete terms, especially for vulnerable populations. 

The ICJ could have drawn from the more advanced and concrete reasoning of the IACtHR in Advisory Opinion OC-32/23. There, in a development of unprecedented importance, the IACtHR became the first human rights court to explicitly require states to establish effective legal and administrative mechanisms for the protection of cross-border displaced persons due to climate change (para. 433). The ICJ, which does reference other regional human rights case law in its opinion, including OC-32/25 (see para. 385), could and arguably should have relied on or at least cited the IACtHR’s findings on climate displacement. Notably, the IACtHR adopted a differentiated and temporally sensitive approach to climate displacement, acknowledging the need for both short-term relief measures, such as humanitarian visas and temporary stays in response to sudden-onset disasters, and longer-term protection mechanisms (para. 433). This nuanced articulation of state obligations offers precisely the kind of legal clarity and practical guidance that the ICJ’s opinion lacks.

The ICJ’s failure to adopt a differentiated approach to vulnerabilities in climate-related displacement is particularly problematic given the clear precedents in international human rights law and the growing consensus on the need to address disproportionate vulnerabilities. The omission is striking considering the availability of authoritative sources that could have guided a more nuanced assessment. For instance, the Committee on the Rights of the Child’s General Comment No. 26 (2023) explicitly recognizes that environmental degradation and displacement place certain groups of children, such as those living in poverty or climate-vulnerable areas, at heightened risk of violence, exploitation, and rights violations. The Committee thus calls for a targeted and rights-based approach that accounts for intersecting vulnerabilities (para. 35). Given the ICJ’s broader reliance on international human rights instruments, it is regrettable that it chose to stop at the Teitiota decision of the HRC and not also engage with more recent and progressive normative developments that could have grounded its opinion in a more inclusive and protective legal framework.

How the ICJ Said It: Cautious Language in the Face of Scientific Certainty

The language used by the ICJ in its advisory opinion on the nexus between climate change and displacement is notably cautious and more reserved than both the General Assembly resolution that triggered the opinion and the scientific consensus reflected in Intergovernmental Panel on Climate Change (IPCC) findings, which serve as the basis for much of the Court’s reasoning. The ICJ stated that conditions “likely to endanger the lives of individuals may lead them to seek safety in another country or prevent them from returning to their own” (emphasis added). This could be read to mean that the ICJ views climate change-induced displacement as a potential outcome in the future rather than the present and ongoing reality it really is. 

The ICJ should have used unequivocal language acknowledging that, while climate change already triggers displacement in certain regions, it is not always the sole or direct cause of such displacement. Indeed, General Assembly Resolution 77/276 explicitly notes that least developed countries and small island developing states are already experiencing displacement due to a broad range of climate-related impacts, including drought, sea level rise, and coastal erosion (preamble). The IPCC in its 2023 Synthesis Report is even more direct, stating with high confidence that climate and weather extremes are increasingly driving displacement across multiple regions (p. 51), and highlighting the disproportionate impact on small island states. It is somewhat surprising, then, that the ICJ, which in many parts of its opinion extensively cites current scientific evidence and IPCC reports, adopts such cautious language in this context. This rhetorical restraint contrasts with the more assertive and empirically grounded language found in the sources it otherwise relies upon. 

Conclusion: A Foundation Built, Opportunities Missed

The ICJ’s treatment of climate-induced displacement, though confined to a single paragraph, represents both meaningful progress and missed opportunity in equal measure. The Court’s explicit recognition of non-refoulement obligations in climate contexts and its alignment with the HRC’s Teitiota jurisprudence represent a significant advancement in legal protection frameworks for climate-displaced populations. By rejecting imminence thresholds and reinforcing risk-based approaches to protection, the ICJ resolves a critical ambiguity that has long hindered both protection outcomes and strategic litigation efforts. This judicial convergence signals growing international recognition of climate displacement realities and establishes essential groundwork for more legal responses to be implemented on the regional and domestic level via political processes.

However, the ICJ’s achievements must be measured against the conspicuous limitations of its opinion. The narrow focus on non-refoulement leaves vast dimensions of climate-related mobility unexplored, including internal displacement, voluntary migration, planned relocation, and crucially, involuntary immobility, where populations cannot move despite facing existential risks. Moreover, the ICJ’s failure to adopt the differentiated vulnerability analysis evident in contemporary human rights jurisprudence, its cautious language that downplays ongoing displacement realities, and its failure to engage with the Inter-American Court’s far more comprehensive treatment in Advisory Opinion OC-32/25 all represent significant shortcomings.

The post A Single Paragraph’s Promise appeared first on Verfassungsblog.

When It Happens

This year, we set out to explore how vulnerable to authoritarian populist’s strategies the independent and impartial judiciary of the Federal German Republic might be . “Let’s develop scenarios for what could be coming”, we said. “Let’s do it before those scenarios become reality. Let’s anticipate the future. Let’s use the room for manoeuvre to devise counterstrategies – while the room still exists. So that we are prepared. When it happens.”

A little more than half the year has passed. We’re in the thick of the research phase. We’ve conducted more than 50 intensive and in-depth interviews with a wide range of stakeholders in the judiciary and public administration across all 16 LĂ€nder. We’ve immersed ourselves in the most intricate details of court staffing and organisational law. We’ve identified a whole range of scenarios through which, given the opportunity, the authoritarian-populist strategy could pounce on the judiciary to tighten its grip. Toward the end of the year, we will publish a book summarising our findings for the public.

Meanwhile, reality seems to be confirming our suspicion that something is closing in – something that our seemingly well-protected constitutional state may not be prepared for, and to which we must urgently respond. More than that: what if this is no longer simply about anticipating the future? What if things have already moved further along? What if it’s no longer simply about the if – but about the fact that it is already happening?

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Before anything can happen, public consciousness must first be primed with the idea that something must happen. That something is wrong with these so-called “elitist judges” and their independence. That things simply cannot go on as they are. This idea needs to be widely accepted as fact. Creating the very conditions for this is central to the authoritarian-populist strategy. In Poland, JarosƂaw KaczyƄski and his PiS party spent years spreading the claim that the judiciary was riddled with corrupt, post-communist elites conspiring to prevent the “true Polish people” from realising their will. Every court case they lost was presented as  proof of that claim. This  replicable strategy can be witnessed in the United States, Mexico, Israel and many other countries, too. Defaming and delegitimising the independent judiciary is often the first step towards reshaping it – with the aim of stripping it of its role as a constitutional check on power, and moulding it into an authoritarian tool of government.

Against this backdrop, the orchestrated campaign by right-wing fringe and micro-media outlets as well as social media accounts, targeting the SPD’s current nominations for the Federal Constitutional Court, reveals itself to be not merely malicious – but a deliberate part of this very strategy. And one for which no well-meaning legalist “resilience reform” offers a remedy. It was claimed that Frauke Brosius-Gersdorf and Ann-Katrin Kaufhold held egregious views concerning abortion, mandatory vaccination, and “climate dictatorship”, and also were charged with accusations of plagiarism. Whether any of it is true is almost irrelevant. The mere fact that Brosius-Gersdorf and Kaufhold and their supporters fought back against such treatment is useful enough to those pursuing the strategy. It lends apparent evidence to the claim that these individuals are far too polarising, too controversial, too politically compromised to be appointed to Germany’s highest judicial office. And if, in the end, no two-thirds majority can be found for their appointment – then something must be done. Then, the two-thirds rule ought to be abolished, so that henceforth the governing majority can decide unilaterally who sits in Karlsruhe to rule on its laws.

Against this backdrop, the policy of turning asylum seekers away at Germany’s borders, pursued by Federal Interior Minister Alexander Dobrindt since taking office, takes on a distinctly strategic sheen. Everyone knows this practice violates European law – and the Berlin Administrative Court ruled accordingly. What followed was a media campaign against the court. The presiding judge found himself faced not with legal rebuttals, but political accusations. The narrative: a “left-wing judge” supposedly placing himself above the law. Tellingly, the judgement’s legal reasoning was not the focus – but rather the judge’s party membership.

Of course, in a democratic constitutional state, judicial decisions must remain open to criticism – including robust criticism. But what we are witnessing here goes well beyond that. It is an attack on the judiciary’s authority as an institution for restraining power. In the last weeks, we’ve had numerous conversations with judges. In none of these discussions was it suggested that the judiciary should be exempt from substantive criticism or from the need to defend its authority through legal reasoning. On the contrary: in every interview, we encountered a judiciary that was self-reflective and actively striving to create more transparency through better communication about their work. But it also became clear: the judiciary cannot defend itself alone. It lacks effective instruments of enforcement. It depends on other branches of government to respect and publicly uphold its decisions.

That Interior Minister Dobrindt disagreed with his defeat in the administrative court – fair enough. That he then publicly declared the ruling a mere “one-off decision” and announced that the practice would continue –  is already a cause for concern. Yes, a court ruling initially only applies inter partes – between the parties involved. But our administrative and constitutional state functions precisely because the state, acting in good faith, continually asks itself whether a judgement in a particular case might have implications for the general legality of its practices. If it fails to do so, it risks pushing the rule of law to the brink.

Even more concerning is Dobrindt’s long silence in response to the media attacks on the court. As Minister for Internal, and therefore also Constitutional Affairs, he should have publicly and unequivocally defended the court from the outset – but for far too long, he did not.

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The strategic aim behind the defamation and delegitimisation of independent judges is to prepare the ground for future authoritarian “judicial reforms” – to eliminate the supposed problem that one has first manufactured and established as a “fact” in the public eye. This is where our Judicial Resilience Project comes in: we are investigating what these “reforms” might look like and what harm they could cause – especially since they often appear in the form of highly technical, very minor, seemingly harmless proposals. Concerning, for example, court funding. Or IT infrastructure. Or the modalities of judicial appointments. Or the jurisdiction of particular chambers. Such proposals would be difficult to scandalise, easy to overlook. But once enacted, they are extremely difficult to reverse.

That is our mission. We want to be prepared. So we can recognise what we’re dealing with when the next step is taken – assuming the required majorities are in place at federal and state level. And we want to share this knowledge with the wider public. If all goes to plan, we’ll be ready by autumn. We’ll keep you posted.

In the meantime, please continue to support our work. A regular donation of €50 per month makes an invaluable contribution to our financial stability and independence. Less is fine too. More is always welcome.

With that, the Verfassungsblog editorial team signs off for the summer break. We’ll be back on 12 September – hopefully well rested and ready for what lies ahead. Until then, keep your chin up, all the best – and don’t forget the sun cream!

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Editor’s Pick

by EVA MARIA BREDLER

Photo: Eva Maria Bredler

Over the past few days, I’ve felt a bit lost in Berlin. I worked, met people, had coffee – the usual. It was all pleasant enough, but I was just going through the motions. Then I stumbled across On Connection by Kae Tempest at BuchHafen in Neukölln (highly recommend!). Tempest writes about writing, about how creativity – “the ability to feel wonder and the desire to respond” – creates connection, “the feeling of landing in the present tense”, weaving in Carl Jung, William Blake and a 2017 study which found that audience members’ hearts in sync during a play. But how do we find that connection outside the theatre? Tempest suggests selflessness: “Let go of yourself. Tune in to other people.” As I sat in Körnerpark reading, it suddenly hit me: I’d been too caught up in myself. Just then, a young woman walked past with her son and gave me a warm smile.

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The Week on Verfassungsblog

summarised by EVA MARIA BREDLER

Since October 2023 – the month in which Hamas launched its brutal attacks on Israel – a group of eminent Israeli international law scholars has written numerous letters and memos expressing concerns over many aspects of the Gaza war from the perspective of international law. These documents, largely unpublished so far, were addressed to Israel’s Attorney General, the Military Advocate General, the Minister of Defence, other politicians, media representatives, and Israel’s Supreme Court. They address, among other issues, the total blockade of humanitarian aid, rulings of the International Court of Justice, incitement to genocide, and the mistreatment and deaths of Palestinian detainees. To date, none of these communications have received a reply. KAI AMBOS (ENG) has systematically analysed the documents. According to Ambos, they demonstrate not only an unconditional commitment to (humanitarian) international law, but also that any boycott of legal colleagues in Israel is counterproductive – doing a disservice to the rule of law in Israel and at the international level.

HENNING LAHMANN (ENG) argues that Merz and Steinmeier have likewise done a disservice to international law – more precisely: to Germany’s credibility as a proponent of international law. It is not the violation of international law per se that threatens normative stability, but rather how the international community responds.

The Federal Constitutional Court last week rejected international legal responsibility of Germany in the case of US drone operations from the Ramstein Air Base. Despite certain methodological shortcomings, SUÉ GONZÁLEZ HAUCK and JENS T. THEILEN (GER) regard the ruling as still significant, especially with regard to the contentious arms deliveries to Israel.

Germany has also shirked its responsibility towards refugees from Gaza: for 18 months, the BAMF froze decisions on applications from the Gaza Strip due to the supposedly “uncertain situation” there. Now, the Federal Office has announced it will resume processing cases – an overdue step, says MARK NIKLAS CUNO (GER). In many instances, not only subsidiary protection but also refugee status or ipso facto protection may be warranted.

A recent shift in migration law has sparked controversy: § 62d of the German Residence Act, which made legal representation mandatory upon the initiation of deportation detention, only came into force in February 2024 – but is now slated for abolition. JARA AL-ALI and HANNAH FRANZ (GER) criticises the legislative rationale, arguing that fundamental freedoms and the rule of law must not be sacrificed for political aims such as faster deportations.

Another U-turn happened in Berlin, which may soon become car-free: After the Senate had blocked the “Berlin autofrei” citizens’ initiative, the Berlin Constitutional Court has now cleared the way, finding no interference with fundamental rights in the first place. JAKOB HOHNERLEIN (GER) welcomes the decision but notes that recognising the interfering nature of the initiative would have been more compelling.

Berlin may become not only car-free but also free from pins and buttons – at least in the Bundestag, if its president has her way: Julia Klöckner has expressed remarkable concern for “neutrality”, banning the wearing of a Keffiyeh and the flying of the rainbow flag for Pride events. But what does “neutrality” actually mean in this context? GÜNTER FRANKENBERG (GER) investigates the idea of parliamentary neutrality.

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Meanwhile in the US, lower courts continue to push back against the Trump administration. After the Supreme Court in Trump v. CASA deemed a federal injunction against birthright citizenship executive orders invalid, a New Hampshire judge has now launched a new challenge via a class-action suit. SUZETTE MALVEAUX (ENG) outlines the distinctions and how the Supreme Court may now also target the class-action mechanism.

Last week, the US Congress voted to revoke funding for development cooperation and public broadcasting – a move unprecedented in the six decades of US public broadcasting history. JANE KIRTLEY (ENG) explores what this means for the First Amendment by considering the peculiar history of public broadcasting in the United States.

DAVID SUPER (ENG) shows how the cuts reveal Congress is increasingly surrendering its constitutional power of the purse – and, with it, its institutional identity in relation to the presidency.

Shortly before, the US Congress passed the highly controversial “One Big, Beautiful Bill”. The legislation includes a provision barring Medicaid reimbursements to Planned Parenthood for one year. Building on Medina v. Planned Parenthood, it marks what AZIZA AHMED (ENG) calls a deepening (judicial) attack on civil rights and access to healthcare for the poor.

There is better news on reproductive health from England and Wales: last month, the MPs voted to decriminalise abortion entirely – for pregnant individuals, though not for good faith actors who provide abortion, or support others in getting access. RUTH FLETCHER (ENG) warns that this threatens to criminalise poverty and restrict protest rights, and explains what a holistic legal approach to reproductive freedom ought to look like.

Sweden, on the other hand, aims for a holistic approach to sexual autonomy – by outlawing sex work online. But at what cost? THOMAS JOYCE (ENG) cautions that the new law risks punishing autonomy, curbing privacy, and eroding digital freedoms – without actually protecting anyone.

German legislators also wrestle with autonomy: although the Federal Constitutional Court recognised a right to a self‑determined death in 2020, the Bundestag could not settle on a statute yet. England and France have enacted legislation this year. THOMAS WEIGEND (GER) presents the regulations and draws lessons for the German debate.

Whether the UK and France may serve as role models in asylum law remains debatable: last week, they agreed on a “one in, one out” pilot scheme, under which the UK will return small boat arrivals to France while accepting asylum seekers selected from France who can demonstrate family ties in Britain. The agreement signals a sui generis evolution in European migration control. For the first time, rather than pushing asylum seekers back to third countries to avoid legal responsibilities under EU and international law, an EU Member State is directly preventing departures from its own territory, as AGOSTINA PIRRELLO and SILVIA BARTOLINI (ENG) explain.

Taiwan, too, is seeing creative political responses.Confronted with lawmakers they themselves elected just eighteen months ago, Taiwanese citizens have creatively repurposed the antiquated mechanism of “recall” as a last-resort check on a runaway legislature, sparked by a year of legislative overreach and erosion of constitutional checks. YOU-HAO LAI (ENG) describes this unprecedented campaign and what it reveals about Taiwan’s constitutional culture.

Also revealing: the EU’s newly announced “ambitious” climate goals. International carbon credits are set to play a key role. INGO VENZKE (ENG) explains the problem behind carbon credits – and traces the telling history of greater flexibilities in climate law and politics.

With that flexibility possibly coming to an end, July brought two historic rulings in international law on the climate crisis. You might have encountered one of them in our symposium “Human Rights Protection in the Climate Emergency: The Inter-American Court of Human Rights’ Advisory Opinion No. 32” (ENG): it is the first time an international court recognises a human right to a healthy climate. VERENA KAHL and JOSÉ DANIEL RODRÍGUEZ-ORÚE trace the emergence of this new right and highlight its most transformative elements for theory and practice. SARAH DORMAN, MONICA IYER KELSEY and JOST-CREEGAN unpack the IACtHR’s holdings and innovations as related to business and human rights. ARMANDO ROCHA, MARIA ANTONIA TIGRE and MIRIAM COHEN address reparations, loss and damage in the advisory opinion.

The second historical decision is the subject of our new symposium in collaboration with the Sabin Center for Climate Change Law: “The ICJ’s Advisory Opinion on Climate Change” (ENG). “An existential threat” – this is how the ICJ characterised climate change in its long-awaited advisory opinion on the obligations of States with respect to climate change. MARIA ANTONIA TIGRE, MAXIM BÖNNEMANN and ANTOINE DE SPIEGELEIR kick off the joint blog symposium by summarising the numerous obligations the ICJ outlined that could significantly shape the contours of international environmental law and global climate governance. Stay tuned – but unfortunately, we will not keep you posted on the next contributions of this stellar symposium: we’ll be off enjoying the sun for a while. We hope you do the same – but please make sure to check our website in the meantime. We don’t live on Vitamin D alone.

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Take care and all the best!

Yours,

the Verfassungsblog Team

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The post When It Happens appeared first on Verfassungsblog.

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