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    <title>JURIST - Dateline</title>
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    <description>Law students and JURIST special guests comment on their legal experiences around the world</description>
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            <title>Two Is a Number: Substantive Due Process, Equal Protection, and the Constitutional Line Against Plural Marriage</title>
            <link>https://www.jurist.org/commentary/2026/02/two-is-a-number-substantive-due-process-equal-protection-and-the-constitutional-line-against-plural-marriage/</link>
            <pubDate>Mon, 16 Feb 2026 23:09:48 EST</pubDate>
            <dc:creator>Joshua Villanueva | The George Washington University Law School</dc:creator>
                            <category><![CDATA[Uncategorized]]></category>
                        <guid isPermaLink="false">https://www.jurist.org/commentary/?p=109335</guid>
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            <content:encoded><![CDATA[Several cities across the United States have begun to break new ground in recent years by legally recognizing polyamorous relationships. Somerville, Massachusetts, led the way in 2020, becoming the first city to pass a domestic partnership ordinance that includes relationships among more than two adults, granting them many of the same rights and privileges as married couples. Cambridge, Massachusetts, and Berkeley, California soon followed with their own measures, and Somerville has since introduced an antidiscrimination ordinance that explicitly protects people in polyamorous and other non-traditional families. These local efforts, combined with rising academic and advocacy interest in the legal status of multi-partner families, have sparked a pressing constitutional question: since Obergefell v. Hodges recognized same-sex marriage under the Fourteenth Amendment, does the Constitution also require recognition of plural marriage?

No Constitutional Right to Plural Marriage

Current substantive due process and equal protection doctrines do not recognize a constitutional right to plural civil marriage. Under the history-and-tradition framework established in Washington v. Glucksberg and Dobbs v. Jackson Women’s Health Organization, plural marriage is not a fundamental right.

Monogamous marriage is not simply a historical artifact or disguised moralism. It serves legitimate state interests. These include reciprocal and exclusive support obligations, shared responsibility for dependents, and a clear allocation of rights and duties between spouses and the state.

First, plural-marriage claims fail under the history-and-tradition methodology set forth in Glucksberg and Dobbs. There is no fundamental right to plural civil marriage. The Court’s modern substantive due process cases, read in light of the long-standing rejection of polygamy and plural marriage in American constitutional history, foreclose recognition of such a right.

Second, equal protection analysis shows why laws limiting civil marriage to two persons are subject to rational-basis review rather than heightened scrutiny, even if they incidentally burden people in consensually non-monogamous or polyamorous relationships. Under this deferential standard, plural-marriage restrictions satisfy the Equal Protection Clause because of the state’s interests in the administrability of family law, protection against certain intra-household vulnerabilities, and maintenance of a stable, predictable civil-marriage regime.

Third, a “mutual belonging” framework, based on Aristotle’s Nicomachean Ethics, provides an account of the nature of monogamous, dyadic marriage and the state’s interests in maintaining this institution. Introducing the concept of “mutual belonging” requires a precise explanation of what civil law protects in recognizing a two-person marriage and demands that this boundary be justified as principled rather than arbitrary, especially given the emergence of polyamorous-partnership ordinances.

Substantive Due Process: No Fundamental Right to Plural Marriage

Glucksberg and Dobbs provided the steps for analyzing substantive due process. The claim must meet a high standard: the right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”

Plural marriage has consistently been denied legal recognition. Marriage in the United States has always been limited to two people. Bigamy is void and criminalized, and polygamy falls outside the legitimate scope of civil marriage. In the nineteenth century, as civil marriage norms were established, Congress enacted strict anti-polygamy laws in the territories, and the Supreme Court in Reynolds v. United States upheld criminal prohibitions on polygamy, even against Free Exercise challenges.

A “mutual belonging” framework defines marriage as an exclusive, reciprocal union: a two-person commitment where each spouse both gives and receives, creating a legal ‘we’ rather than separate ‘I’ relationships. Marriage law has long favored this structure, establishing a two-person status based on reciprocal and exclusive support duties, shared responsibility for dependents, and a clear allocation of rights, authority, and obligations between spouses and the state. In Glucksberg/Dobbs terms, “mutual belonging” reflects the historical understanding of “ordered liberty” in marriage as a dyadic union, rather than as an unrestricted right to any consensual relationship.

Unity and exclusivity are the core organizing principles of marriage. Unity is foundational, while indissolubility is secondary. This unity is comprehensive and dyadic: a union of two people in which each spouse gives and receives exclusively from the other. What has historically been described as a “one flesh” relationship cannot be shared without altering its essential nature.

This framing is important for substantive due process because it aligns with the level of generality required by Glucksberg and Dobbs. The historically recognized right is not marriage in any form, but a specific civil status that is exclusive, reciprocal, comprehensive, and, critically, two-person.​

As physical attraction fades, “mutual belonging” matures: spouses remain connected as two people who share memories, burdens, and decisions over time. This is not unique to one marital “style” but is the standard focus of family law—an exclusive dyadic partnership that structures responsibility and reliance. The continuity of this dyadic form explains why the “expansion” arguments in Loving v. Virginia and Obergefell do not apply to plural marriage. Loving struck down interracial-marriage bans, and Obergefell recognized same-sex marriage, but both preserved the institution’s core structure. Plural marriage would fundamentally alter the institution by replacing dyadic unity with simultaneous multi-spouse status.

Advocates for plural marriage cite Obergefell to argue that if the Constitution protects marriage as a fundamental liberty interest grounded in individual autonomy, dignity, and intimate association, then the state cannot deny civil-marriage recognition to multi-partner unions merely because they depart from the traditional two-person form.

However, Obergefell did not constitutionalize plural marriage. It expanded access to an existing institution without changing its structure. The decision consistently describes marriage as a “two-person union” and frames the constitutional issue as exclusion from that dyadic institution based only on the sex of the partners. Plural civil marriage is therefore a distinct asserted right. Same-sex marriage maintains dyadic exclusivity, while plural marriage changes the institution’s numerical and structural core by allowing multiple simultaneous spouses.

Equal Protection: Plural-Marriage Bans Survive Rational Basis Review

Equal protection analysis begins by identifying what the law classifies as a class. Plural-marriage bans do not target identity categories. Instead, they regulate the simultaneous entry into more than one marriage. The rule is numerical and structural: no more than two civil spouses at any one time, applicable to all persons. Any adult, regardless of sexual orientation, religion, or relationship preference, may marry one person, but no adult may have multiple concurrent spouses under state law.

This framing is important because it precludes the application of heightened scrutiny. Heightened scrutiny applies to laws targeting suspect or quasi-suspect classifications such as race, national origin, sex, or, in some circuits, sexual orientation. Plural-marriage bans do not fit these categories. “Polyamorous” is not recognized as a suspect or quasi-suspect class, and the rule does not deny access to an institution for a specific group. It defines the institution’s permissible structure.

Therefore, rational-basis review applies. The ban is upheld if any legitimate governmental interest is rationally served by the two-person limit. Some argue that plural-marriage bans are similar to laws invalidated for hostility toward gay people. However, the “animus” cases are structurally different.

In Romer v. Evans, the Court invalidated a sweeping state constitutional amendment that uniquely denied gay people from seeking ordinary antidiscrimination protections, which the Court characterized as an impermissible “bare . . . desire to harm” an unpopular group. In United States v. Windsor and Obergefell, the constitutional injury was that same-sex couples were singled out for exclusion or for second-class recognition in the same civil marriage framework available to opposite-sex couples. Unlike those cases, plural-marriage bans do not exclude a specific group from an otherwise open institution—they maintain the dyadic structure for everyone.

Under rational-basis review, the state needs only to show that it reasonably advances a legitimate interest. Several interests align with the mutual-belonging and non-belonging framework and with standard family law administration.

First, maintaining a coherent and predictable marital framework constitutes a clear and legitimate interest. A dyadic structure supports mutual belonging in legal terms: each person is uniquely obligated to, and entitled by, one spouse. This clarity affects support duties, property rules, intestacy, spousal privilege, decision making, survivorship benefits, and dissolution. In Aristotle’s “mutual belonging” framework, the state selects the form of association most similar to a stable friendship of virtue, where two people share a life rather than a series of transactions.

Second, legislatures may reasonably be concerned that recognizing multi-spouse legal status increases the risk of hierarchy, dependency, and coercion, especially when one spouse holds disproportionate economic, social, or religious power. Reducing structural inequality and the risk of domination is essential to Aristotle’s concept of “mutual.” Even in close unions, each person must be valued as an end, not as a means to another’s goals. Aristotle observes that relationships based on utility or pleasure can become fragile or exploitative when circumstances change. In marriage, this warns against treating spouses as instruments for personal gain. From a “mutual-belonging” perspective, a dyadic regime serves as a safeguard by promoting reciprocity between equals and limiting institutionalized domination.

Third, legislatures may believe that dyadic exclusivity better protects each spouse’s dignity as an irreplaceable individual. In Aristotle’s “mutual-belonging model,” marriage is an exclusive reciprocal bond, making each partner uniquely responsible to and protected by the other. The state may view this structure as more conducive to enforceable reciprocity and less likely to create diffuse responsibility, in which accountability among spouses becomes unclear.

Equal protection does not require the state to treat different institutions as identical. Two-person and multi-party marriages are not similarly situated with respect to the state’s purposes in marriage law, such as establishing mutual support, identifying decision-makers, setting inheritance and property rules, and providing a workable dissolution process.

In this context, neutrality means treating similarly situated two-person couples equally within the dyadic institution, not across all possible relationship forms. Windsor and Obergefell addressed unequal access to and treatment within the same dyadic institution, whereas plural marriage seeks recognition of a different form.

Mutual Belonging as a Secular State Interest

Aristotle identifies three bases for love and friendship: utility, pleasure, and virtue. He says that true friendship requires mutuality, reciprocal goodwill, and recognition, stating that “they must be mutually recognized as bearing goodwill and wishing well to each other.” From this perspective, the state has reason to support relationships that embody the highest form of bond. Such relationships are not merely instrumental or transient, but constitute stable commitments in which each partner is valued “for his sake,” with reciprocal duties and mutual care.

The dyadic structure of marriage provides a legal framework for reciprocal, recognized goodwill. Two individuals assume exclusive, enforceable obligations of support and fidelity, organize their lives around a shared unit, and become each other's partner for significant decisions.

Proponents of plural marriage have raised the Establishment Clause issue to either claim that monogamy limits are impermissibly grounded in religious doctrine, or that the current legal framework selectively favors a Western, Christian view of a two-person model for marriage while effectively marginalizing religious traditions—such as certain Islamic, Hindu, or Fundamentalist Mormon communities—that have historically permitted plural unions.

However, Aristotle’s framework clarifies the underlying justification and demonstrates that “religious roots” do not present a decisive constitutional objection. His account of friendship explains why humans form bonds—utility, pleasure, and virtue—and what distinguishes a fully developed relationship: mutuality, reciprocal goodwill, and commitment to the other “for his sake,” not just for personal benefit. These are clear, secular criteria for evaluating relational forms, and they align with interests the Court already recognizes as legitimate under the substantive due process and equal protection clauses, such as dignity, stability, and responsibility for dependents. A legislature can therefore justify a two-person civil marriage structure in terms of Aristotelian “mutual belonging” without relying on religious authority. The qualities that distinguish a friendship of virtue also make a two-person marriage a rational and secular object of legal protection.

Once the state’s interest is articulated as reciprocity, mutual recognized obligation, and durable responsibility, the issue is no longer whether civil marriage tracks a religious ideal, but whether the state may, for civic reasons, favor a dyadic status that institutionalizes those secular goods. The Establishment Clause does not disqualify laws that overlap with religious teachings or resemble religious moral reasoning. If it did, many legal norms—such as human dignity, equality, protection against exploitation, and duties to dependents—would be suspect, since they are defended in both religious and secular terms. The constitutional issue arises only when the state uses law to coerce religious observance, favor one faith, or enforce doctrinal conformity.

Marriage is the law’s most significant promise concerning private life.

The Court in Griswold v. Connecticut suggested that marriage is a right “older than the Bill of Rights," describing the institution as follows:
Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.
Each spouse is uniquely accountable to the other in sickness and health, prosperity and hardship, and in decisions that shape the household’s future. This reciprocal, recognized, and exclusive commitment is a public good because it upholds dignity through obligation and freedom within an accountable structure. The state must continue to protect a union that is more than companionship, recognizing it as a legal bond of mutual duty, care, and fidelity.

Joshua Villanueva is JURIST’s Washington, DC Correspondent and an LL.M. candidate in National Security and U.S. Foreign Relations Law at The George Washington University Law School. ]]></content:encoded>
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            <title>The Legal Case Against Trump&#8217;s Military Intervention in Venezuela</title>
            <link>https://www.jurist.org/commentary/2026/01/the-legal-case-against-trumps-military-intervention-in-venezuela/</link>
            <pubDate>Wed, 28 Jan 2026 20:14:37 EST</pubDate>
            <dc:creator>Sara Bonato | University of Oxford</dc:creator>
                            <category><![CDATA[Uncategorized]]></category>
                        <guid isPermaLink="false">https://www.jurist.org/commentary/?p=109270</guid>
            <description><![CDATA[]]></description>
            <content:encoded><![CDATA[“I don’t give a shit what you call it,” US Vice President JD Vance replied last year to suggestions that killing Venezuelan civilians without any due process would be described a war crime. That comment was in relation to the US bombing boats suspected of drug trafficking in the Caribbean and Pacific in over 30 strikes, killing more than 115 people: now, it assumes an even stronger tone. The Trump administration recently carried out a large-scale military operation in Venezuela resulting in the capture and removal of President Nicolás Maduro.

This raises important legal concerns over the adherence of these actions to established principles of international law, particularly sovereignty, conditions for extradition, self-defence, immunity of heads of state, and provisions against the use of force. This article will argue that none of these have been respected, and that US attempts to characterise narco-terrorism as an attack which it could legally respond to as self-defence, are implausible.

Note: This analysis concerns the legality of the US's actions, not the legitimacy of the Maduro government. One may simultaneously hold that Maduro's regime is repressive and that the means used to remove him violated international law.

What Happened in Caracas? 

US forces carried out large-scale military strikes in the Venezuelan capital in an operation to remove both Maduro and his wife. The operation was the culmination of prior escalations from the Trump administration, including the aforementioned strikes on suspected drug trafficking vessels and numerous sanctions put on Venezuela. Maduro and his wife, Cilia Flores, were indicted in a New York Federal Court in 2020, for their role in what the Trump administration claims is a narco-terrorist conspiracy, and which has been stated as the motivation for their removal, claims to which they have pleaded not guilty.

Other reasons given for their removal include the desire for regime change, an effect of the recent US National Security Strategy designating the ‘Trump corollary’ to the Monroe doctrine, as well as of Trump’s expressions of his desire to control Venezuela’s oil industry and allegations that it had stolen the oil from the US. Delcy Rodríguez, Maduro’s Vice President, has now been sworn in as interim President, receiving the public backing of the Trump administration, which has expressed that the US will “run the country” until there can be a safe transition.

The Central Question: Was This Lawful Force?

The UN Charter Article 2(4) prohibits the use of force against the territorial integrity or political independence of any State, a prohibition which has been consolidated as customary international law. There are two exceptions authorised by the Charter: authorisation of collective action by the Security Council, which has not occurred, and self-defence against an armed attack under Article 51 (detailed by the ICJ in the Nicaragua case). The latter argument has been made by the US, alleging that Maduro’s presidency was a narco-terrorist threat to the US such as to legitimise the military operation as self-defence. The US designated the Cartel de los Soles as a terrorist organisation in November 2025, and has alleged this cartel is embedded in the Venezuelan government and military, with Maduro as its leader.

Whilst drug trafficking is an extremely damaging phenomenon, it is unlikely that it constitutes grounds for self-defence under international law on the use of force (jus ad bellum), although this poses an interesting argument that merits some analysis (due to the nature of this article, in-depth scholarship is not possible, but an intriguing starting point for those interested may be found here).

To legitimise self-defence, there must be ‘real and honest belief’ of the imminent use of armed force, which has been interpreted as requiring use of a weapon. There is no suggestion that Venezuelan military forces are planning to attack the US. The possibility for anticipatory self-defence is recognised in customary law, but again requires the imminent threat of an armed attack.

Not every act of violence constitutes an armed attack. The question is whether drug trafficking can (it has not yet been considered to). If we make the very-much-not-light assumption that the right of self-defence can be invoked against the cartels as non-state actors whose conduct cannot be attributed to a state, a drug can conceivably be thought of as a ‘weapon’, given the level of physical harm it can cause, and the Trump administration has given one of its reasons for the operation as being a response to fentanyl deaths in the US. Scholars argue that the conditions for self-defence are not met in narcoterrorism cases, and that either way armed response would not comply with the principle of necessity regulating self-defence under international law.

One problem is pinning down the conduct that constitutes the armed attack—is it the production or supply of raw materials and precursors? Is it their cross-border smuggling (which is often done by consenting US citizens)? Is it their trafficking in US territory? In the Nicaragua case, the ICJ affirms that cross-border provision of weapons does not constitute an armed attack (it constitutes the use of force, which is not the criterion to justify self-defence), so even if drugs could potentially qualify as weapons, their cross-border supply is unlikely to legitimise the US’s response.

A central issue here is posed by the causal chain. The stages of drug trafficking involve numerous non-State actors with varying motives across different states and can sometimes involve consenting domestic actors. No clear standard of causation of harm is provided for in the Charter, and none can be ascertained from state practice or international case law. But-for (sine qua non) or reasonable foreseeability tests seem unlikely, as they would significantly increase the possibility of military conflicts. A proximity test is also likely not satisfied due to the many stages involved in drug trafficking.

There are other contextual arguments that reduce the likelihood that drug trafficking could be characterised as armed attack. First, the UNSC generally does not get involved in ‘pure’ drug trafficking situations, and, more importantly, an international regime is in place to regulate this phenomenon with the Single Convention on Narcotic Drugs (1961), Convention on Psychotropic Substances (1971), and Convention against Illicit Trafficking in Narcotic Drugs and Psychotropic Substances (1988), agreements which the US is party to.

Furthermore, if we decide we can treat narco-trafficking as a cause for self-defence, this opens a sizeable can of worms in terms of the interpretation of Article 51. Treating drug cartels as armed attackers risks unduly widening the scope of the Article to a number of other potential causes for self-defence, and therefore legitimising an erosion of the prohibition on the use of force. Many cross-border activities are harmful, such as the spread of infectious diseases, the provision of arms, and pollution, but if these legitimised military responses, all nations would be invading each other. Armed force should constitute a clear and functioning line for self-defence, and drawing the line becomes much harder if narco-terrorism is admitted.

Not to mention the glaring fact that, even if narco-trafficking was the US’s true concern, the majority of the synthetic opioids involved in fentanyl overdoses are produced in Mexico, using chemicals imported from China (which the Trump administration itself concedes), and the majority of the cocaine consumed in the US is of Colombian origin, not Venezuelan. Trump also seems inconsistent in this aspect, having pardoned former Honduran president Juan Orlando Hernandez, who, unlike Maduro, was not just charged but convicted of large-scale drug trafficking.

Lastly, even if it could be argued that armed attack has occurred in order to legitimise self-defence, the US’s response would need to be necessary and proportionate. If the concern is drug trafficking, the bombing of Caracas and the capture of the head of state hardly seem to satisfy these conditions. The Mekong precedent and other cases, while presenting some significant differences to the present case, demonstrate how States can address transnational narcotic threats through multilateralism and law enforcement, and need not undermine the UN Charter, something which it is submitted may not have been sufficiently considered by the US before deciding to pursue unilateral military action.

A Cascade of International Law Violations

Extradition

A federal indictment does not mean that the US has the right to make an arrest in another sovereign country: extradition would be necessary. US state practice denotes the ‘unwilling or unable’ doctrine, whereby they may use force against non-state actors on the territory of another state if that state is unwilling or unable to prevent attacks originating from its territory. The doctrine is extremely controversial among both member states and scholars, and is often used to justify legally dubious incursions into foreign territory - it was used to invade Iraq in 2003, and invade and overthrow Noriega’s government in Panama in 1989.

Panama is a very relevant case study in this context. General Manuel Noriega was indicted for importing cocaine into US territory. A controversial memo justifying the action, significantly criticised by legal scholars, was signed by William P Barr, future Attorney General and member of the Office of Legal Counsel of the Justice Department. It stated that POTUS has ‘inherent constitutional authority’ to order the FBI to take people into custody in foreign countries, even if it violates international law to do so. This is extremely questionable, not least because the US Constitution makes ratified treaties part of the “supreme law of the land," and requires Presidents to take care that laws are "faithfully executed." The UN General Assembly condemned the operation in Panama as a violation of international law on the use of force.

Immunity

Even if the lack of extradition was a surmountable problem, heads of state have immunity rationae personae from foreign enforcement jurisdiction under international law (see the ICJ’s Arrest Warrant judgement) and cannot be tried in the domestic courts of other countries. Immunity from criminal jurisdiction and inviolability from measures of physical constraint is applicable to the so-called ‘troika’: heads of state, heads of government, and ministers for foreign affairs. The International Law Commission does not currently recognise exceptions to immunity, and the principle is recognised by the US itself.

Postulating this, Trump’s intervention begins to look less like a legal removal and a lot more like a kidnapping. This author speculates that the US may weaponise the repressiveness of Maduro’s regime to allege that he was not the legitimate leader of Venezuela anyway, as he was not freely nor fairly elected – technically a viable argument (and one the Trump administration is aware will garner them some support across the aisle despite the somewhat blatant illegality of their actions). However, unilaterally withdrawing recognition of a government or its legitimacy does not remove the immunity of the head of state under customary international law. If it became acceptable for one country to unilaterally designate another leader as undemocratic and illegitimate, therefore lacking immunity and being summonable in a foreign domestic court, this would evidently be problematic.

The exercise of enforcement jurisdiction on the territory of another state requires either the consent of that State or a permissive rule of international law. Neither is present here, although the maxim of male captus, bene detentus has precedent in the US, as demonstrated in United States v. Alvarez-Machain (it essentially posits that the method with which a defendant is brought to a US court does not preclude that court’s jurisdiction). This does not, by far, mean that male captus, bene detentus is generally accepted in international law, so the US’s ignoring of immunity is dubious at best.

‘Running’ Venezuela and the law of armed conflict

While the focus of this article is not on whether the US’s subsequent actions in Venezuela have legal basis, it is notable that the US will be subject to rules under the Fourth Geneva Convention and customary international law that prohibit profiting from the exploitation of natural resources of a State under occupation, including Venezuelan oil (see also the ICJ’s advisory opinion on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, Including East Jerusalem, that the use of natural resources by the occupier must not exceed what is necessary for the purposes of the occupation and may be contrary to the principle of permanent sovereignty over national resources). Trump’s future actions concerning Venezuela, therefore, do not promise to be any more legal than the past.

What This Means for the Global Legal Order

Other than the questionable precedent it may set for use of Article 51, the US’s actions pose a “dangerous precedent”, in the words of UN Secretary-General Antonio Guterres, for the wider legal order.

When witnessing the potential precedent that designating another country’s government as terroristic and corrupt allows one to invade and bomb it with impunity, you can almost hear Benjamin Netanyahu, Vladimir Putin, and Xi Jinping rubbing their hands together in glee. Any precedent such an action would set, especially if it continues to go unpunished, sets the future of international law in the balance even more, if possible, than it already is. Moreover, if repressive government by foreign leaders justifies abducting them, Trump himself has a long list of offenders to pick through (including some backed by US economic and military support).

Seeing as the US is a permanent member of the UNSC, it can veto sanctions against itself, which already significantly reduces how it can be held accountable, without international leaders also refusing to clearly condemn the actions. This seems to have emboldened Trump to pursue similar strategy in his attempts to acquire Greenland, for which the White House has cited utilising the US military as a possibility. Like Venezuela is rich in oil, Greenland is rich in something else Trump has his eye on: rare earth minerals (important for computer chips, EVs, military hardware), for which China currently dominates the supply chain and recently cut off the US’s access through export controls.

The consequences for the Venezuelan population are also bleak. The belief that the US would impose a democratic regime change in a foreign country has historically been quick to fade, and this case is no different. Instead of allowing Maria Corina Machado, Nobel Peace Prize winner, to take control of Venezuela, Delcy Rodríguez has been designated as leader, likely because Trump believes she is most likely to hand over oil reserves. She has been cosignatory to many of Maduro’s oppressive actions in Venezuela.

Furthermore, other Central and South American nations involved in drug supply to the US are now under threat. One might find themselves asking if Trump is planning on abducting Claudia Scheinbaum anytime soon as well, having recently stated that “She’s not running Mexico, the cartels are” and that “something’s gonna have to be done about Mexico.” This comes alongside his other comments insinuating that he could move militarily against Colombia, stating that Colombian President Gustavo Petro has to “watch his ass.”

A Final Word on the Stakes for International Law

As stated by 17th-century British philosopher John Locke, "Where-ever law ends, tyranny begins."

International law may be fragile, but its remaining foundations must not be left unprotected. If anything, this moment should serve as an urgent call to rebuild them—and to recommit to the rule of law.

The Trump administration’s actions in Venezuela are just the latest waves in a sea of the administration’s historic disregard of international law and, more strongly, its intentional tearing-down of, and self-distancing from, the international legal system due to concern that it is overly ‘liberal’, ‘delusional’, or being ‘wielded against’ the US (the examples are endless: US sanctions against the ICC judges that issued an arrest warrant for Netanyahu, cutting funding for UN organisations, the handling of Ukraine peace deals).

Trump’s actions have significant implications for the broader global legal order. His continued disregard for international law, and the even more worrying fact that he so far seems to have done so with impunity and without unequivocal condemnation from national leaders, threatens to upend the international legal system as we know it. The unpunished assault on the sovereignty of another country should worry all of us, especially when it comes from a state with the military prowess, economic leverage, and volatile leadership the United States has.

The unapologetic enforcement of international laws must hold strong in the face of momentous pressure. “The power of the law must prevail” in the face of US lawlessness, lest we forget that legitimising baseless and illegal incursions into the sovereignty of another country could mean that our own countries eventually become the next target.

Sara Bonato is a third-year student in the Law with Italian Law program at the University of Oxford.]]></content:encoded>
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            <title>The Corporeality Crisis: How Immersive Technology Is Outpacing India&#8217;s Sexual Assault Laws</title>
            <link>https://www.jurist.org/commentary/2026/01/the-corporeality-crisis-how-immersive-technology-is-outpacing-indias-sexual-assault-laws/</link>
            <pubDate>Fri, 16 Jan 2026 14:58:48 EST</pubDate>
            <dc:creator>Tatva Hemal Damania and Shrushti Mahesh Taori | Maharashtra National Law University</dc:creator>
                            <category><![CDATA[Uncategorized]]></category>
                        <guid isPermaLink="false">https://www.jurist.org/commentary/?p=109234</guid>
            <description><![CDATA[]]></description>
            <content:encoded><![CDATA[The metaverse—an immersive, persistent and networked virtual environment first conceptualized in Neal Stephenson's Snow Crash (1992)—integrates Virtual Reality (VR), Augmented Reality (AR), and Extended Reality (XR) to enable users to "live" within a digital universe through avatars. Unlike traditional Web 2.0, the metaverse creates a powerful sense of "being there" through immersion, embodiment, and decentralization. Avatars act as psychological extensions of users, aligning the virtual character with the physical self—meaning virtual violations are perceived as personally degrading and traumatizing. This frontier has simultaneously enabled sophisticated new forms of criminality, academically termed "metacrime," which exploit sensory realism and anonymity to inflict psychological trauma similar to real-world abuse.

The acute danger posed by metacrime was recently evident in the first reported metaverse sexual assault case in India. A 32-year-old woman, while exploring a popular VR platform, had her avatar suddenly approached, subjected to sexually explicit gestures, and inappropriately touched in the virtual space. She reported feeling frozen and violated, experiencing a profound sensory response where the movements felt “vivid, close-up, and in sync with her immersive headset’s sensory feedback”. Her psychiatrist noted that her resulting acute anxiety disorder and intrusive flashbacks closely mirrored symptoms seen in survivors of real-world sexual harassment and assault.

A survey found 49% of female and 30% of male VR users had experienced sexual harassment, and every seven minutes, one incident of sexual harassment has been reported on VRChat. Case studies from Meta’s Horizon Worlds and the 2024 UK case involving a minor demonstrate that the psychological distress caused by avatar-based assault is profound and deeply disturbing—akin to actual sexual assault.

Thus, given the importance of the topic, this article attempts to analyse how existing criminal law frameworks struggle to respond to sexual violations committed through avatars in immersive environments. It first explains why virtual reality experiences produce real, embodied harm, then analyses the limitations of Indian penal law in addressing such violations. Finally, it draws from comparative international approaches to propose effect-based reforms over rigid notions of physical contact.

What Makes Virtual Reality a ‘Reality’?

Technologically, the metaverse relies on a combination of sophisticated components to create sensorial realism. VRs, for instance, provide a hyper-real, 3D view, convincing the user they are physically present, or experiencing a sense of “presence”. A major factor intensifying this experience is the development of Haptic Feedback/Sensors, which simulate the sense of touch, as illustrated by the incident involving Maria DeGrazia in Population One who felt the abuse through her haptic vest. The evolution toward highly advanced interfaces, such as Elon Musk’s Neuralink, in which the human nervous system directly interacts with the technology “just by thinking.” This illustrates how deeply merged the virtual and physical experiences are becoming.

The emphasis on psychological harm stems directly from this sensory depth and the principle of embodiment. Under Psychological Ownership Theory, users internalise their avatars as representations of their own personal identities; therefore, an avatar-based violation is perceived as personally degrading, not merely an action happening “in code”. This deep integration causes the human nervous system to react to virtual experiences with emotional, psychological, and nervous system responses very similar to those in the real world.

Beyond direct assault, the technology functions to enable pervasive surveillance through, what Brittan Heller called “Biometric Psychography”. Metaverse hardware, such as head-mounted displays, continuously collects vast quantities of biometric and physiological data, including gaze patterns, facial movements, gestures, and spatial orientation. Advanced systems, exemplified by Meta’s Codec Avatars, require intensive biometric mapping. This deep data extraction allows corporations to derive insights into users’ emotional states, personality traits, and susceptibilities. This shift from identifying who a user is to revealing how a user thinks and feels provides the fuel for Surveillance Capitalism, where subconscious reactions are commodified for targeted manipulation, significantly enhancing psychological vulnerability and privacy risks. Yet while the technology to inflict such harm advances rapidly, legal frameworks remain anchored to outdated assumptions about the nature of sexual violation.

Laws in India

The Indian legal framework confronts substantial difficulties in addressing metaverse offenses, primarily due to its foundation in territorial, corporeal, and identifiable constructs, which clashes directly with the virtual nature of metacrime. The reliance on physicality for defining criminal acts renders much of the existing legislation inadequate.

The Bhartiya Nyaya Sanhita, 2023 (BNS, 2023), fundamentally fails in direct applicability to virtual rape. S. 63 is constrained by the corporeality doctrine, as it requires physical penetration of the body or insertion of an object, an element which is not present in avatar-mediated sexual assault. However, the judiciary has displayed capacity for liberal interpretation; the JMFC in Animesh Boxi held that psychological harm resulting from the victim suffering “virtual rape” every time the uploaded video was viewed squarely fits under the definition of “injury” (the then S. 44). This precedent for recognizing psychological injury is critical for future metaverse cases. Further, S. 78 of the BNS, 2023 (Stalking) criminalizes cyber stalking. However, a further liberal interpretation is required to criminalize stalking via VR, where ‘avatars’ of men and women may engage in non-consensual proximity or follow a user persistently. S. 79 of the BNS, 2023 (Insulting Modesty) punishes insulting the modesty of a woman. However, the word “gesture” is positively interpreted in MM Haries to encompass any such mode that the accused may use to convey his intentions. Hence, this becomes a proposed avenue for prosecuting virtual acts like groping.

The Information Technology Act, 2000 (IT Act, 2000), remains the primary, albeit outdated, statutory recourse. However, even the IT Act, 2000 does not have any explicit provision that criminalizes what might be termed “rape without bodies”. Ss. 67, 67A, and 67B penalise the publication or transmission of obscene material. For children, the Protection of Children from Sexual Offences Act, 2012 (POCSO, 2012) addresses the use of a child in “any electronic form” for sexual gratification (child pornography). However, presently, it does not have sufficient application over the avatars of children. Furthermore, the Digital Personal Data Protection Act, 2023 (DPDPA, 2023), and the rules thereof are a welcome step. However, the DPDPA is awaiting enforcement and so the question of jurisdiction between DPDPA, 2023 and IT Act, 2000 remains unsettled.

Thus, India presently lacks any such law that specifically addresses the avatar-based digital rape.

Recommendations

Globally, many jurisdictions, including India, the UK, Canada, Australia, and the US, now criminalize non-consensual intimate images (NCII) and mandate rapid takedown, and thus acknowledged the severe effect of harm caused by image-based sexual abuse. India’s 2025 MeitY SOP mandates intermediary to remove NCII within 24 hours. However, despite this improvement, takedown laws offer post-facto relief after psychological harm has already occurred. In cases of avatar-based rape, the psychological harm can extend to a lifetime “trauma”. Thus, there is a want of more stringent, deterrence based law/amendments.

As recognised in Animesh Boxi, Indian criminal law must move beyond a purely corporeal understanding of harm. Immersive digital environments are capable of producing real psychological injury and violations of sexual autonomy. Where technology generates sensory realism, harm is no longer abstract or speculative. Thus, the definition of “injury” under S. 2(20) of the BNS, 2023 includes harm to body and mind. However, the provision remains silent on digitally embodied harm. The legislature must expressly provide that the psychological injury caused through immersive or virtual technologies falls within this definition. Furthermore, “live virtual harassment” occurring on-screen can also be construed as “transmission” of a visual image under Ss. 67 and 67A of the IT Act, 2000.

Indian criminal law currently links sexual offenses to physical contact or penetration. This framework fails to capture non-consensual sexual acts committed through avatars in immersive environments. A distinct offence must be introduced under the BNS, 2023 to criminalize non-consensual sexual conduct facilitated through virtual or immersive technologies, independent of physical touch, like recently proposed in South Korea. South Korea has expressly proposed to criminalise “avatar-based sexual misconduct”. Art 44 of the Information and Communications Network Act penalises acts causing sexual shame, stalking, or obstruction through avatars in three-dimensional virtual spaces, as the existing legal frameworks were inadequate to address rights violations occurring in immersive environments. Thus, India may also similarly criminalize avatar-based criminal offenses in the virtual spaces.

Furthermore, until a specific offense is enacted, courts should recognize avatar-based sexual assaults as attempts under S. 62 of the BNS, 2023. Where intent to sexually violate is evident and the actus reus is executed through an avatar in an immersive environment, the absence of physical penetration should not preclude criminal liability.

Lessons from Comparative Jurisprudence

India must also consider jurisprudence from other countries while developing its own. S. 177(2) of the German Criminal Code, 1998 criminalizes sexual assault by exploiting a victim’s defenselessness or inability to resist. In virtual environments, offenders exploit anonymity, inability to resist in the sensory immersion, and cognitive disorientation, particularly of children and first-time users. Such exploitation must be treated as a core element of the offence. Further, in the United States, New Jersey Statute S. 2C:14-1(c), 2024 redefines sexual assault to include penetration induced by coercion, solely on the direction of the perpetrator, without his physical presence. In State v. Maxwell, verbal manipulation that caused a child to self-penetrate was sufficient to establish liability. Similarly, California Penal Code S. 261 and S. 289 criminalize non-consensual insertion achieved through deception or remote coercion. Both the laws do not require physical presence of the perpetrator, but rather the direction or coercion by the accused. These laws acknowledge that sexual offenses are grounded in coercion, absence of consent, and exploitation of vulnerability, not in the physical presence of the perpetrator. Indian law must therefore recognise that sexual violation can occur where the accused exercises control or influence over the victim’s actions within an immersive digital environment. Where an offender, through an avatar or virtual interface, induces, coerces, or manipulates a victim into sexually intrusive conduct, the harm suffered is functionally equivalent to physical sexual assault. The law must focus on the effect on the victim and the intent and direction of the accused, rather than the mode through which the act is executed. This approach aligns with substance-over-form principles applied under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, where the effect of the harassment is relevant more than the mens rea of the accused, and with taxation statutes that impose penal liability based on economic substance over form (Post 2012, GAAR Jurisprudence).

Thus, India must enact the proposed Digital India Act (DIA) to replace the outdated IT Act, 2000. The DIA should incorporate platform obligations inspired by the Australian Online Safety Act, 2021 and the EU Digital Services Act. Platforms hosting immersive environments must be placed under a statutory duty to implement safety-by-design and ethics-by-design. Such duties must include default personal boundary systems, safe zones, proximity restrictions, and real-time intervention tools. The burden of preventing virtual sexual harm must lie on platforms that design and monetise these environments, not on users.

Finally, Sexual autonomy does not end at the limits of physical space. As immersive technologies collapse the boundary between the virtual and the real, Indian criminal law must recognize digitally embodied sexual harm and respond with coherent offencss, purposive interpretation and platform accountability.

Tatva Hemal Damania is a fourth-year law student at Maharashtra National Law University, Mumbai. Shrushti Mahesh Taori is a fifth-year law student at Maharashtra National Law University, Nagpur.

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            <title>Rewriting the Family: How Modern Ideologies Collide with Human Rights Law</title>
            <link>https://www.jurist.org/commentary/2025/12/rewriting-the-family-how-modern-ideologies-collide-with-human-rights-law/</link>
            <pubDate>Mon, 08 Dec 2025 16:16:41 EST</pubDate>
            <dc:creator>Joshua Villanueva | The George Washington University Law School</dc:creator>
                            <category><![CDATA[Uncategorized]]></category>
                        <guid isPermaLink="false">https://www.jurist.org/commentary/?p=109138</guid>
            <description><![CDATA[]]></description>
            <content:encoded><![CDATA[Is it possible to advocate for universal human rights while quietly dismantling the institution one of its core articles was written to protect? Article 16 of the Universal Declaration of Human Rights (UDHR) calls the family “the natural and fundamental group unit of society.” Yet modern ideologies of left and right alike have treated the family as raw material for economic policy, social engineering, or personal liberation.

What kind of family is being protected here, and against whom? Against state attempts to conscript or redesign it? Against market pressures that hollow it out into a unit of production? Against internal hierarchies that deny equal dignity to its members? Three traditions give sharply different answers. A natural-law view sees the family as a pre-political community of commitment and care, especially for children, that the state should recognize but not reinvent. A Marxist and socialist critique treats the family as historically contingent, often a mechanism for reproducing class and gender domination. Liberal feminism, from John Stuart Mill onward, focuses on how marriage law has subordinated women and insists that equality and consent inside the household are non-negotiable.

This article reads Article 16 through that three-way tension. Rather than treating “the natural and fundamental group unit” as a settled formula, it takes the provision as a live site of argument about dignity, equality, and the proper limits of both state and market power over intimate life.

Article 16 in Context: Family as a Human-Rights Subject

Article 16 was drafted in the immediate aftermath of regimes that had tried to remake the family in their own image. Nazi German, Italian fascist and Soviet projects subordinated family life to ideological aims through eugenics, population policy, or party-directed education. The drafters of the UDHR and the countries that adopted it in 1948 had watched what happens when the state claims the right to define marriage, children, and loyalty from the top down. Article 16 is, in part, a response to that experience.

The provision does four things. First, it affirms that men and women of full age have the right to marry and start a family — the right to form this primary community without arbitrary interference. Second, it requires that marriage be entered only with the free and full consent of the intending spouses, elevating genuine consent over arrangement, coercion, or state decree. Third, it places spouses on equal footing “as to marriage, during marriage and at its dissolution,” making equality internal to the institution rather than a mere external aspiration. And fourth, it characterizes the family as “natural and fundamental” and “entitled to protection by society and the State,” signaling that this community possesses its own moral and social significance.

Two basic ideas follow from this history. First, the family is understood as something that exists before and beyond the state, where people learn care, dependence, and responsibility, and where children are shaped long before government enters the picture. Second, the state’s role is to safeguard consent, equality, and children’s well-being, and ensure that families have the material conditions to survive, but it is not meant to redesign the family to serve ideological, demographic, or economic goals.

These are the ideas that Marxist, socialist, and liberal-feminist critiques push against in different ways. The central question is how far those critiques can go without erasing the very protections Article 16 was written to provide.

The Pre-Political Family: Natural Law Logic Without the Jargon

Human rights do not come from the legislature; they rest on the inherent worth of human beings and the kinds of relationships that human life naturally calls for. Law can acknowledge and protect that dignity, or it can attack and distort it, but it does not invent it. On this view, the family is not a random social arrangement, but responds to something fundamental about who we are as embodied, dependent, and relational beings.

Within this framework, the family arises from a stable, freely chosen union in which two adults commit to shared life. That union is ordered toward mutual support and, in most cases, toward the bearing and raising of children. The family is the first place where a person encounters care, obligation, and moral formation in a sustained way. Long before anyone signs a contract, votes in an election, or stands in court, they have already lived years in a household, learning what it means to be received, to be dependent, to be corrected, to forgive and be forgiven, and to discover that their life has value in the eyes of others. The family is not the product of state planning but a basic pattern of human life that the state finds already there.

A government that claims to respect human rights must do more than declare that “the family is important.” It must help secure the material conditions that make ordinary family life possible. At the same time, if the family is the primary place where children are formed morally, emotionally, and culturally, then parents have the first responsibility for their children’s upbringing. Schools, child-welfare agencies, and social services are meant to assist where parents lack resources or where serious harm occurs, but they should not quietly displace the family as the normal setting in which a child learns how to live.

This logic also draws firm boundaries around what the state and economic systems may do. A regime that tries to absorb children’s formation by treating them chiefly as future instruments of a party, nation, or race breaks faith with the very idea that the family is a primary human community the state is meant to protect. Likewise, a policy framework that treats families merely as demographic units or labor factories, valuable only because they supply more workers, soldiers, or taxpayers, turns them into tools of larger projects rather than recognizing them as communities with their own integrity. The underlying claim of Article 16, read in this light, is that the family has a given moral shape and worth that law must respect. It is not raw material that can be remade at will to satisfy ideological, demographic, or economic goals.

Marx &amp; Engels: The Family as Instrument and Obstacle

While natural law views the family as a basic human community that precedes the state, Marx and Engels force a sharp shift in perspective. They see the family as a structure shaped and constrained by the economic order around it.

Marx and Engels developed their theory during the Industrial Revolution when women and children were driven into factories for long hours, wages too low for a single earner to support a household, and home life reduced to whatever time remained after shifts in mills and mines. Engels argued in 1845 that when married women and children are pulled into the labor force on these terms, family life, in any meaningful sense, is shattered, with severe moral and social consequences for parents and children alike.

Engels later argued that the first division of labor in human history is not between different trades, but between man and woman within the household. The monogamous, bourgeois family that nineteenth-century Europe treated as “normal” was, for Engels, a mechanism of domination. The husband controls property, wages, and public status while the wife performs unpaid domestic and reproductive labor. He cast the husband as the “bourgeois” and the wife as the “proletarian,” making the family a miniature model of the wider capitalist order.

In a socialist society, production would be organized collectively, and the family would cease to function as an economic unit. Women would be fully incorporated into public labor on the same footing as men, while childcare, education, and domestic tasks would be “rescue[d] ... from the influence of the ruling class.” As that transformation deepened, they expected the traditional family, tied to private property and dependency, to lose its centrality and eventually wither away. Early Soviet law sketched what this looked like in practice: religious marriage was stripped of legal effect in favor of civil marriage, divorce was made simple and easily obtainable, and informal unions began to receive legal recognition. The state, not the old household or the church, became the ultimate arbiter of families.

Marx and Engels made clear that the family is not insulated from economic pressures. Who has to work outside the home, who controls income and assets, and whose labor is visible or invisible are deeply shaped by the surrounding system. They showed how talk of “the family” can mask severe inequalities of power and burden. But there is also a serious risk in their solution. If emancipation is defined chiefly as escape from the roles embedded in the traditional household, and if full participation in public labor becomes the primary measure of freedom, then the family itself starts to look expendable. In the effort to liberate individuals from exploitation, the family is easily subordinated to the needs of the party, the economic plan, or the collective.

Mill &amp; Liberal Feminism: Equality Against the Household

If Marx and Engels classified the family as a small-scale replica of class domination, John Stuart Mill went after it as a small-scale system of political subjection. Best known for On Liberty, Mill later turned his attention to the legal status of women in The Subjection of Women, and he did not mince words. After the abolition of chattel slavery, he wrote, marriage was “the only actual bondage known to our law. There remain no legal slaves, except the mistress of every house.” In his view, the wife’s legal position, bound to obedience, denied equal property and contract rights, and locked into prescribed domestic roles, was incompatible with the very liberal principles he had defended elsewhere.

Mill’s answer was a “principle of perfect equality.” Women, he argued, should have the same civil and political status as men, the same access to education, professions, and public life, and the same freedom to choose their path. The talents of half the human race should not be confined to the private sphere. Opening all fields of employment and achievement to women would not only do justice to them as persons. In his words, it would mean "doubling the mass of mental faculties available for the higher service of humanity.”

Laws began to dismantle the formal subordination of wives to husbands. Married women’s property acts, equal contract capacity, more meaningful rights to divorce, protections against domestic violence, and, in the twentieth century, movements toward reproductive autonomy. Read through a human-rights lens, these changes were clear gains: equality in marriage, freedom from coercion, and real opportunities that the UDHR is supposed to secure.

However, once you focus on individuals and their equal freedom, it becomes easy, especially in a market-driven society, to see the family mainly as a cluster of autonomous adults plus their future labor. Caring for children, supporting aging parents, or making long-term personal sacrifices can seem like obstacles to personal achievement rather than important human goods. The same legal reforms that rightly freed women from subordination can treat the family as nothing more than a set of mobile employees and consumers, while the hard work of caregiving becomes invisible or undervalued.

While socialist critics often see the traditional family as a structure of domination that should be replaced, liberal thinkers, for different reasons, can see it as a barrier to individual choice and full participation in the marketplace. Both perspectives, coming from opposite sides, can end up viewing the family as something to shrink, rearrange, or sidestep in the name of progress or freedom.

Beyond Ideology: Recovering What Article 16 Protects

By the time the UDHR was drafted in 1948, the drafters were well aware how Article 16 would sit right in the middle of competing ideologies. From the beginning, Article 16 was not neutral ground. Most UDHR articles start with “everyone,” but this one deliberately says “men and women.” The women involved in drafting pushed hard for that phrasing because, at the time, marriage law around the world plainly treated wives as inferior. Naming “men and women” was their way of writing equal rights into the heart of marriage and divorce, and of pushing back against both religious and cultural rules that kept women from choosing their spouse or leaving a harmful union.

The article was also shaped by the broader shadow of the Nazi regime. Although not a direct “response” to any single law, the memory of racial persecution made the drafters determined to affirm that adults could marry without barriers rooted in race, nationality, or religion, and that they would retain equal rights if the marriage ended. That is as far as the drafting committee was prepared to go on the issue of divorce, treating it as a matter of non-discrimination rather than declaring a “right to divorce.”

Over time, the meaning of those same words has stretched. Some interpreted “men and women” to argue that Article 16 only protects heterosexual marriage. Today, scholars and UN human rights bodies increasingly treat the phrase as simply naming both sexes as rights-holders, not restricting who they may marry. International legal experts have urged states to recognize same-sex unions, whether as marriage or civil partnerships, and to extend the same basic protections and benefits.

South African judge Albie Sachs warned that denying access to marriage is not a small technicality; it is a way of denying people “the status and dignity of being ordinary citizens.” That is a very Mill-like point: equality inside and around the household is part of full membership in the political community.

The “free and full consent” language in paragraph 2 is now read as a direct ban on child and forced marriage. Yet the abuses continue: young girls are still married off and sold to the highest bidder. Courts and treaty bodies have begun to treat these practices as serious human-rights violations. The case of Noura Hussein in Sudan—forced into marriage as a teenager and raped—the public auction of a 16-year-old girl in South Sudan on Facebook, the ICC's recognition that forced marriage can be a crime against humanity, and the CEDAW Committee's finding that Kyrgyz authorities failed to protect women and girls from bride kidnapping are all attempts to apply Article 16’s promise of consent to brutal realities on the ground. Here, Mill’s insistence on genuine choice meets the UDHR’s own language: no one should be pushed into the most intimate decision of their life by money, custom, or fear.

The “right to found a family” has shifted as well. In 1948, the drafters simply assumed that families meant married, heterosexual couples having children in the usual way. Since then, courts and UN experts have argued that if the right truly includes “founding” a family, it must cover decisions about when and whether to have children, access to contraception, and assisted reproduction. The Inter-American Court of Human Rights, for example, treated a ban on in-vitro fertilization as a violation of this right. Former UN Under-Secretary-General Dr. Nafis Sadik put it in plain terms: if women cannot decide whether, when, and with whom to have sex and bring children into the world, they cannot enjoy real equality or live in dignity.

Conclusions

So where does this leave us with Article 16? First, it means we cannot romanticize the family. Marx, Engels, and Mill were right that the home can be a place of exploitation and violence, especially for women and children. Any serious reading of Article 16 must take those dangers seriously: “protecting the family” cannot mean giving a free pass to abuse behind closed doors or to laws that strip spouses of equal status.

But second, we cannot simply solve these problems by hollowing the family out. When the state, the market, or a political movement treats families as nothing more than a source of labor, a set of flexible relationships, or a platform for ideology, it undermines exactly what Article 16 was meant to safeguard. Laws cannot engineer a single “ideal” household model, nor dissolve the family into a collection of free-floating individuals. The law must protect the family as a primary community of care.

Article 16 for our time says three things. First, adults have a right to form families that reflect the equal dignity of the sexes because that equality flows from their shared human nature, not from the state’s permission, and it may not be denied on grounds like sex or race. Second, children have a right to grow up in stable, responsible relationships, to be received as persons with rights, and to be protected from both private abuse and public manipulation because the bonds between parent and child arise from the very fact of giving life and care. Third, law and policy should recognize that the family is a basic community rooted in human nature and prior to the state, and should therefore create the material, legal, and cultural space in which families can exist and flourish through decent work, housing, education, and fair justice systems without trying to remake them into instruments of any particular ideological or economic project.

The family is called “natural and fundamental” because it grows out of basic human needs. No legislature invented those realities, and no ideology can dissolve them. If rights come from our shared nature, then protecting the family is not a policy choice but a duty. Human rights law succeeds when it recognizes what is already true about us and fails when it tries to rewrite what nature has given.

Joshua Villanueva is JURIST’s Washington, DC Correspondent and an LL.M. candidate in National Security and U.S. Foreign Relations Law at The George Washington University Law School. ]]></content:encoded>
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            <title>The US Withdrawal from the Universal Periodic Review Undermines Global Human Rights Accountability</title>
            <link>https://www.jurist.org/commentary/2025/11/the-us-withdrawal-from-the-universal-periodic-review-undermines-global-human-rights-accountability/</link>
            <pubDate>Fri, 14 Nov 2025 15:53:20 EST</pubDate>
            <dc:creator>Leena Alsayab | American University Washington College of Law</dc:creator>
                            <category><![CDATA[Uncategorized]]></category>
                        <guid isPermaLink="false">https://www.jurist.org/commentary/?p=109041</guid>
            <description><![CDATA[]]></description>
            <content:encoded><![CDATA[The United States’ decision to withdraw from the UN Human Rights Council and, consequently, from this year’s Universal Periodic Review (UPR) marks a worrying retreat from global human rights accountability. Although the announcement did not cite any specific reasons for the withdrawal, it reflects a deeper unwillingness to accept scrutiny under the same universal standards that the US expects of others. A pattern particularly evident during the Trump Administration.

The UPR was established in 2006, when the UN General Assembly adopted Resolution 60/251, which created the Human Rights Council and tasked it with conducting periodic reviews of all UN Member States. The reform aimed to correct decades of politicization and selectivity within the UN’s human rights system. Some states had escaped scrutiny altogether, while others were targeted disproportionately. The UPR was designed as a structural response to this imbalance.

In 2008, the UPR held its first review sessions, with its defining feature, universality: all 193 UN Member States are reviewed every four to five years, regardless of their geopolitical or treaty status. The process is built on peer review; states evaluate one another’s records through dialogue, not condemnation.

Each review draws on three sources:
1. A national report prepared by the state under review.
2. A UN compilation summarizing information from treaty bodies and special rapporteurs.
3. Submissions from stakeholders, including civil society, national human rights institutions, and independent experts.
The outcome of each review is a set of recommendations that the state may accept or note, followed by implementation reporting in later cycles. In practice, the UPR relies on reputation, transparency, and peer accountability rather than formal enforcement. The process was created to ensure that all states, regardless of their size or political influence, are held to the same human rights standards. That principle of equal treatment is central to the UPR’s legitimacy, and it is precisely what makes US disengagement so damaging. By stepping away, the US signals that it is unwilling to be evaluated under the same conditions it expects of others.

The US Record and the Break With Tradition

The US has participated in three previous UPR cycles: 2010, 2015, and 2020. Each review drew hundreds of recommendations from other states. Many of these suggestions addressed issues such as racial discrimination, criminal justice, immigration detention, and the failure to implement crucial human rights treaties like the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination Against Women.

While this process often causes defensiveness, it also provides moments of introspection. The State Department’s reports have historically acknowledged challenges and outlined reform efforts, creating at least a nexus between international review and domestic reflection.

By declining to participate in the 2025 cycle, the US not only abandons its prior record of engagement but also undermines a system it helped create. This decision is especially concerning given that it coincides with increasing domestic threats to civil rights, immigration policy, and constitutional freedoms.

The Cost of Withdrawal

For decades, the US has portrayed itself as a promoter and guardian of human rights norms. Participation in the UPR has been one of the few processes that allowed it to model transparency rather than merely demand it from others.

When Washington calls out Beijing for repressing Uyghurs or Israel for their actions against Palestinians, the world listens. But when the US refuses to go through the same kind of review and scrutiny, that authority starts to fail. The credibility required of human rights advocacy depends on a variety of factors, including a state’s willingness to hold itself to the same standards it demands from others. By boycotting the review, the US opens itself to accusations of hypocrisy and undermines its position as a moral authority.

The decision to separate from accountability does not occur alone. The UPR’s legitimacy depends on universal participation. Every state that undergoes review reinforces the norm of shared accountability; every withdrawal weakens it. When a leading democracy like the US refuses to appear before the Human Rights Council, other governments, particularly authoritarian ones, gain an easy excuse to follow. The result could erode one of the few UN mechanisms that applies equally to all states and gradually transform it into a voluntary or politically selective process.

As previously mentioned, the UPR has also been a space for accountability at home. Organizations like the American Civil Liberties Union and Human Rights Watch have used the process to draw attention to issues that often get lost in domestic debate, including racial injustice, Indigenous rights, and conditions in immigration detention. Given the political climate the US is facing, where migrants are frequently disappeared into detention centers without due process and families are separated without explanation, outside scrutiny is not a threat but a safeguard. The UPR gives advocates a platform to connect these realities to the country’s broader human rights commitments. Without it, one of the few avenues for meaningful reflection and reform disappears, leaving both domestic advocates and international partners with fewer ways to hold the US to its own standards.

While many argue that the UPR is inherently flawed due to its politicization and non-binding nature, critics misread its function. Since its creation, the UPR was never meant to be a court or a compliance tribunal, but rather an institution whose strength lies in its reputational power and the idea that all states can and should be questioned for their practices.

Accountability as Leadership

The UPR was built on a simple idea: every country, big or small, should be willing to answer for its human rights record. That principle is what makes the system meaningful. When the US steps away from that process, it sends a clear signal that it is unwilling to live up to the same standards it expects of others. The decision does not just damage its reputation; it weakens the very structure of accountability that holds the international system together.

What suffers most are the values that give human rights their strength. Transparency becomes harder to demand, cooperation feels less certain, and the idea of shared responsibility begins to fade. The UPR only works when participation is universal. Once that breaks down, the foundation of equal treatment under international law starts to crack.

If the US truly wants to lead on human rights, it has to be part of the conversation. Rejoining the UPR would not erase its own failings, but it would show that leadership means being willing to listen as well as speak. Accountability has to begin at home.

Leena Alsayab is a student attorney with the International Human Rights Law Clinic at American University Washington College of Law.]]></content:encoded>
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            <item>
            <title>Who Counts as &#8216;We the People&#8217; Will Define America&#8217;s Future</title>
            <link>https://www.jurist.org/commentary/2025/10/who-counts-as-we-the-people-will-define-americas-future/</link>
            <pubDate>Tue, 28 Oct 2025 17:39:06 EDT</pubDate>
            <dc:creator>Joshua Villanueva | The George Washington University Law School</dc:creator>
                            <category><![CDATA[Uncategorized]]></category>
                        <guid isPermaLink="false">https://www.jurist.org/commentary/?p=108993</guid>
            <description><![CDATA[]]></description>
            <content:encoded><![CDATA[Forget the TV drama of “democracy under attack.” There is no season twist on Capitol Hill, no slick villain delivering a chilling monologue to a string-quartet soundtrack, and no mastermind plotting from half a world away to bring America to its knees. The real plot twist unfolds much closer to home. It is the claim that the US Constitution itself was never meant to protect everyone living under it. To doubt who “We the People” are forces us to ask ourselves who we are as Americans and, more importantly, who we choose to be. It is also the perfect moment to confront a disturbing claim that surfaced this summer: that the Constitution somehow belongs only to white Americans, that courts could sanction “shoot-to-kill” orders at the border to repel an “invasion” of migrants, that nonwhite citizens could be stripped of their right to vote, that the Reconstruction Amendments, the very backbone of equal protection, no longer count, and that the US Supreme Court should cast aside birthright citizenship and protecting access to K-12 schooling for undocumented children.

These claims perform mental gymnastics to pass as originalism, but the routine only exposes their weakness. Not only are the ideas distorted enough to twist your brain into a pretzel, but they are also unconstitutional and frankly absurd.

The Preamble is a mission statement

When you visit the Rotunda of the National Archives in Washington, DC, where the Constitution, the Declaration of Independence, and the Bill of Rights lie under glass, your eyes are naturally drawn upward. Towering above these founding documents are two grand murals depicting idealized portraits of the Founding Fathers, rendered as a uniform group of dignified, elite, able-bodied white men.

But that familiar picture leaves out an essential truth. Even Gouverneur Morris, who wrote the Constitution’s iconic opening “We the People,” lived with a disabled right arm and, after losing his left leg in a carriage accident, relied on a wooden prosthesis for the rest of his life. Morris understood all too well the vulnerability, pain, and physical limitation firsthand in a society with no modern medicine, mobility devices, or legal protections for disabled people. Yet he chose to begin the Constitution not with “We the property owners,” “We the able-bodied,” or “We the white citizens,” but with “We the People.”

That choice matters. It reminds us that the Constitution’s promise of belonging was never meant to be narrow or exclusive. The Preamble of the Constitution, “We the People,” is a mission statement. It expresses goals, not standalone powers, and it cannot override rights found in the rest of the Constitution. For over a century, the Supreme Court has made this clear: the Preamble offers guidance and purpose, but it has no legal force of its own. Real power must come from the Constitution’s operative clauses, not the Preamble.

If we are serious about grounding constitutional meaning in text and history, we must look at history objectively and not cherry-pick our own timeline.

Original meaning points to Reconstruction for equality and citizenship

Many arguments today about citizenship and equality try to anchor their meaning in 1787, as if the Founding settled these questions forever. But that is not how constitutional interpretation works, and it is not how the Court applies original meaning. Original meaning attaches to the moment a provision was adopted. For citizenship and equality, that moment is Reconstruction in 1868, not the Philadelphia Convention in 1787.

When the Court interprets the Fourteenth Amendment, it looks back to 1868, because that amendment fundamentally changed the Constitution’s treatment of individual rights and state power. The Court focuses on how the Fourteenth Amendment was publicly understood at the time of its ratification, not on assumptions from 1787.

When the Constitution is amended, especially in a way that redefines who belongs in the political community, the interpretive clock resets. Reconstruction did not merely add a few lines to the Founding charter; it marked a constitutional shift in the treatment of citizenship, equality, and the duties of the states. Any claim about who counts as part of “We the People” that ignores 1868 is not originalism, but dangerous nostalgia.

What “the people” means in modern doctrine

Arguments that try to shrink “the people” to a racial or exclusive club often lean on two Supreme Court cases: District of Columbia v. Heller and United States v. Verdugo-Urquidez.

Verdugo-Urquidez is the case most frequently cited as proof that “the People” can be read as a fenced-off category. The case involved a search of a Mexican citizen’s home in Mexico, conducted by US agents. Chief Justice Rehnquist’s opinion held that the Fourth Amendment did not apply to that extraterritorial search. To get there, the Court described “the People” as those who are part of the national community or who have developed sufficient connection to it. On that basis, the Court concluded that constitutional protections did not stretch to non-citizens abroad. Justice Kennedy, whose vote made the majority, refused to treat the phrase as a limit on protections for people inside the US. If that same search had taken place in a US home, he wrote, “the full protections of the Fourth Amendment would apply.”

Verdugo-Urquidez drew a geographic line, not a racial or caste-based one. It answered a narrow question about applying the Constitution outside US borders. There is nothing in the opinion that suggests treating immigrants, non-citizens, or non-white people within the United States as constitutionally lesser. For more than a century, the Court has done the opposite by consistently holding that “persons” in the United States are protected by core constitutional guarantees, including due process and equal protection. That principle is older than Ellis Island. In Yick Wo v. Hopkins, the Court struck down discriminatory enforcement that targeted Chinese immigrants in San Francisco. In Zadvydas v. Davis, the Court refused to allow the government to detain non-citizens inside the country indefinitely. Presence in the United States triggers constitutional limits on government power.

Heller, meanwhile, is sometimes invoked to suggest that “the People” historically meant a restricted club, but Heller points in the opposite direction. While the case is best known for holding that the Second Amendment protects an individual right to bear arms, the Court referred to “the People” as “members of the political community.” It is not a code word for a preferred race or heritage and it certainly is not a synonym for “white citizens.” The Court’s analysis recognized that the Founding era often failed to live up to that ideal, but the meaning of the phrase in our constitutional text is not frozen to those injustices.

Attempting to turn these cases into a blueprint for a racially exclusive constitutional order reads something into them that is simply not there. Neither case authorizes a two-tiered constitutional structure where some people in the US count as “We the People” and others are relegated to permanent second-class status.

Equal protection and alienage: what the standards actually are

Attempts to draw a hard line between citizens and non-citizens runs into long-settled equal protection doctrine. Let us start with the states.

The Court has held for more than fifty years that when a state discriminates against lawful non-citizens, the rule is usually strict scrutiny—the highest standard of constitutional scrutiny. The Court has struck down state laws that denied welfare benefits to resident non-citizens, holding that alienage is a suspect classification and that states must show a “compelling interest” to justify treating non-citizens differently. There is a narrow exception when the job involves the execution of the broad powers vested in government. This “political function” exception applies only to roles intimately linked to democratic self-government, such as police, certain public school teachers, and civil service jobs. Outside that tight lane, state-level alienage rules almost never survive.

The Court has acknowledged that Congress has broader authority to draw distinctions among non-citizens because immigration and naturalization are federal powers. However, that flexibility does not extend to race because the Court has held that all federal racial classifications trigger strict scrutiny, just as they do for states, even when Congress acts in areas of special federal authority. Federal power over immigration does not open the door to race-based constitutional carve-outs. The right to vote cannot be fenced by bloodline either. The Court struck down Hawaii’s attempt to limit voting in statewide elections to individuals of Native Hawaiian ancestry. The Court rejected ancestry as a stand-in for race, calling it an impermissible criterion for voter qualification. The case makes clear that states cannot turn heritage into a gatekeeping tool for democratic participation.

Birthright citizenship is not up for grabs

Some of the most sweeping claims in this debate casually suggest that America can “revisit” who counts as a citizen at birth, as if the Fourteenth Amendment were a loose policy memo rather than a constitutional guarantee. However, birthright citizenship is not an open question.

The Citizenship Clause of the Fourteenth Amendment says, in plain terms, that nearly everyone born on American soil, except the child of a foreign diplomat or enemy occupier, is a US citizen at birth. This was written after the Civil War to obliterate the racial caste system embedded in Dred Scott and to ensure that no future Congress, court, or president could decide that certain babies “don’t really count.”

The Court cemented this in United States v. Wong Kim Ark. The government tried to deny citizenship to a man born in San Francisco to Chinese immigrant parents. The Court rejected that attempt and held that the Fourteenth Amendment constitutionalized the common-law rule of jus soli: if you are born here, you are American. No racial fine print. No “citizenship by pedigree.” No exception for the immigrant group disfavored at the moment. That rule has stood for more than 125 years.

To pretend that birthright citizenship is a loose thread waiting to be pulled is not just legally wrong; it is historically upside down. Overturning it would require the Court to resurrect the logic of Dred Scott and announce that some American-born children are not American after all. It would create a permanent hereditary underclass of US-born noncitizens and result in people who could live their entire lives here and yet have no legal country. The practical fallout would be staggering: millions stripped of passports, voting rights, school access, employment authorization, Social Security numbers, military eligibility, and basic civic identity. The US would be in the business of generating stateless infants on purpose.

To get there, the federal government would have to do something the Constitution flatly forbids by sorting newborns by bloodline and race. The Court has been clear that federal racial classifications trigger strict scrutiny. If you give citizenship to some babies born in America but deny it to others because of who their parents are, that is not “fixing” the Constitution — that is more like trying to fix a typo by shredding the whole book.

Birthright citizenship is the promise that America will never again decide who counts by bloodline or ancestry. Scrapping it would manufacture a permanent underclass of American-born children and drag the country back toward the very hierarchy the Fourteenth Amendment was designed to end. This debate is about whether we still believe in “We the People” and whether we mean all of us.

The “state war power” and the Guarantee Clause

The most startling turn in the “national constitutionalist” manifesto that surfaced this past summer is its claim that migration qualifies as an “invasion” and that states could, with a judicial blessing, respond with armed force. It is an argument built for headlines and cable hits, but it runs into three brick walls in the real world.

First, the Constitution did not cast the judiciary for this role. The idea hinges on the Guarantee Clause, the promise that the federal government will protect states against invasion. However, this clause is not something judges can enforce because it is a political question, not a legal one. The Court repeated the point in 2019, making clear again that Guarantee Clause claims are nonjusticiable. Judges do not referee “invasion” declarations or green-light war plans. It is simply not their lane.

Second, states do not get to choose their own adventure when it comes to immigration. The US tried that in the 19th century, and it was chaos. That is why immigration became a federal power in the first place. The Court has repeatedly said states cannot run their own admission or removal systems or create fifty different foreign policies by proxy, including striking down state immigration measures in 2012 that conflicted with federal law and reaffirming that immigration is a federal issue, not for a state. One country means one immigration system, not fifty.

Third, the Constitution does not magically evaporate at the border. A “shoot to kill” policy is not bold. It is unconstitutional. The Court has held that officers cannot use deadly force against a fleeing person unless there is an immediate threat of death or serious harm. That is a Fourth Amendment rule about reasonableness, and it does not dissolve when the word “border” is invoked. Force must be judged case-by-case, under the totality of the circumstances and not through blanket rules. Calling migrants “invaders” does not, by some hocus-pocus trick, convert civilians into enemy combatants or suspend the Bill of Rights. A “shoot to kill” policy also violates due process by turning the executive branch into judge, jury, and executioner all in one. The government does not get to skip the Constitution just because someone yells “invasion.”

The Reconstruction Amendments are part of the law 

Claims suggesting that the Fourteenth and Fifteenth Amendments may not have been validly ratified and therefore courts could treat them as optional, are downright absurd. The Court has made clear that disputes over the validity of an amendment’s ratification are not for judges to decide. Such political questions belong to Congress, not the judiciary. Once an amendment is duly proclaimed, it becomes part of the Constitution itself. The constitutional text would be unworkable if settled amendments could be relitigated every time the political pendulum swings. Stability requires treating ratified amendments as controlling law unless altered through the amendment process prescribed in Article V.

Nor does the Constitution contain an “emergency override” allowing rights to disappear when convenient. Even during the Civil War, the Court rejected the notion that constitutional guarantees vanish in moments of crisis. As long as the civil courts are open, the Constitution applies in both war and peace. If suspending constitutional rights was not permitted when the country’s survival was at stake, it certainly is not a tool available for ordinary policy disagreements today.

Even if we play along with the thought experiment and pretend the Fourteenth and Fifteenth Amendments disappeared in a puff of smoke, the Constitution would still bar efforts to restrict its protections to white Americans, due to long-standing limits that predate Reconstruction.

Begin with first principles from the Founding and the Marshall Court era. In McCulloch v. Maryland, Chief Justice Marshall made the point that federal power must be traced to an operative grant in the Constitution, and any implied authority must flow from those grants, not from broad aspirations. The government can use powers that are not spelled out word-for-word, but only if they are reasonably connected to a power that is expressly granted. The Court upheld that idea in Gibbons v. Ogden that national power must come from actual constitutional text, such as the Commerce Clause. Similarly, the Constitution's Preamble is not a magic coupon you can redeem for new federal powers that are not written anywhere else in the Constitution. Likewise, it cannot be used to take rights away from those protected by the Constitution. “We the People” tells us why the Constitution was written, not what the government is allowed to do.

The same is true of the attempt to turn “invasion” into a judicially managed border war. Treating migration as a justiciable “invasion” that courts should respond to with force runs into a wall that predates Reconstruction. Since 1849, the Guarantee Clause has been treated as a political question beyond the courts’ reach. Federal judges do not issue war plans, border directives, or “defense” orders under Article IV. The clause has never been a litigation vehicle for state-level militarization, racialized or otherwise.

Immigration’s national character also did not begin in 1868. The Founders vested naturalization power in Congress, placed foreign affairs in the federal government, and made federal law supreme. Antebellum decisions, including the Passenger Cases, rejected state efforts to tax, screen, or exclude arriving immigrants because such measures intruded on national commerce and foreign policy.

The Bill of Rights likewise undercuts any claim that constitutional protections were racially cabined at the Founding. Its guarantees were written in universal terms protecting “persons” and “the people” without racial qualifiers. The Fifth Amendment binds the federal government as to any “person,” and the First and Fourth refer to “the people” inclusively. Federal courts before the Civil War recognized that non-citizens could invoke federal protections and appear in federal courts in ordinary litigation and admiralty. A theory that rewrites those rights as “whites only” is not an interpretation of the original Constitution.

The civics that underwrite the doctrine

All of this doctrine rests on a straightforward idea about membership that National Immigrants Day captures. When President Ronald Reagan proclaimed October 28 as National Immigrants Day in 1987, he said we are “the sons and daughters of every land,” yet “one people,” drawn by “freedom’s holy light.” He pointed to the framers who began our charter with “We the People,” and invoked Crevecoeur’s image of a people “melted into a new race” defined by a shared loyalty to liberty rather than by blood.

President Reagan captured what our constitutional journey has been moving toward for more than two centuries: a broader, more inclusive understanding of who belongs in the American “we.” The test now is whether we will continue that work, or let fear and distortion blindside us into inventing ideas the Constitution itself rejects.

Read the Constitution without fear or distortion, and its direction is unmistakable. It does not draw its circle of belonging by race. The Preamble sets our aspirations, not our exclusions. The nation amended its charter to expand freedom’s reach and make citizenship, equality, and protection more durable. “We the People” describes a community held together by shared principles and responsibility, not shared ancestry. Nothing in our constitutional design empowers governments to turn human beings into targets or rights into racially gated privileges.

The truth is simple: a country that limits who counts as “the people” to a single race betrays the very idea of a constitutional republic. If America is to remain America, the answer must be clear. We honor the Constitution by living up to its promise that freedom, dignity, and protection are for all who call this country home.

Joshua Villanueva is JURIST’s Washington, D.C. Correspondent and an LL.M. candidate in National Security and U.S. Foreign Relations Law at The George Washington University Law School. 

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            <title>Judge Dennis Davis: A Legacy of Progressive Jurisprudence in South African Law</title>
            <link>https://www.jurist.org/commentary/2025/10/judge-dennis-davis-a-legacy-of-progressive-jurisprudence-in-south-african-law/</link>
            <pubDate>Tue, 21 Oct 2025 16:19:42 EDT</pubDate>
            <dc:creator>Gabrielle Liang | University of Johannesburg Faculty of Law</dc:creator>
                            <category><![CDATA[Uncategorized]]></category>
                        <guid isPermaLink="false">https://www.jurist.org/commentary/?p=108904</guid>
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            <content:encoded><![CDATA[On October 1-3, the Labour Law Colloquium was once again held at Stellenbosch University. This annual event, which brings together the leading minds in the labour law world, often celebrates the works of prolific South African thinkers. In 2024, the Labour Law Colloquium honoured the recently retired Chief Justice Zondo. This year, the conference included a tribute to some of South Africa’s great legal thinkers, one of them being Judge Dennis Davis, whose contributions to the South African legal landscape are acknowledged. 

Dennis Davis is a man who has done it all. Born in 1951 in Cape Town, into a Jewish family consisting of a father who was a mechanic and a mother who was a legal secretary. Davis went to a Jewish school but ended up being an ardent anti-Zionist. He stated in an interview, “I went to a Jewish school—that’s where my parents sent me—and that school completely shaped my vision. It took me years to realise that the rubbish I had been taught was not true. The traditional Zionist idea of a land without a people for a people without a land was drummed into us.” Davis went on to study law and became engaged with the anti-apartheid movement. 

Academically, Davis was appointed the director of the Centre for Applied Legal Studies at Wits University while also being a Professor at the University of Cape Town. During the post-apartheid transition, Davis was an advisor for the Convention for a Democratic South Africa and the Multi-Party Negotiating Forum. He was also a member of the Katz Commission, which led to the creation of the South African Revenue Service. 

Davis subsequently served in the High Court for around 21 years, being actively involved in many prolific and landmark cases. In Grootboom, the Constitutional Court upheld a High Court judgment written by Davis. This case upheld the justiciability of socioeconomic rights in South Africa. The (in)famous Prince judgment was also upheld, in which Davis wrote the High Court judgment. This case effectively decriminalised personal marijuana use based on the right to privacy. 

One of the most famous cases delivered by Judge Davis was the Kylie case, which held that the dismissal of a sex worker could amount to an unfair dismissal, and that sex workers, although operating in an unlawful sector, also deserved fair labour treatment. This case involved Kylie (a sex worker whose real name was omitted from the proceedings), who worked at a "massage parlour" which offered optional extras. Kylie refused to offer certain services and was subsequently dismissed. She believed that this was unfair and sued. The Kylie case is groundbreaking for a number of important reasons. The Kylie case opens up possibilities for sex workers, and perhaps others in informal or criminalised forms of work, to claim certain labour protections, and potentially shifts the policy conversation on decriminalisation and labour rights. This case also pushed a value-based form of interpretation, especially when dealing with people from different backgrounds, be it socio-economic or otherwise. While the court did not legalise sex work, it recognised that legal protection need not depend on full legality of the underlying activity. This case, however, does straddle the line between what is and what ought to be. Although never tested in court, it is hard to imagine that South African judges would give the same protection to those dealing in the illicit drug industry, for example. This shows that the judgment is both cautious and forward-looking, detecting the winds of change in society and jumping ahead of inevitable legal developments in a world where law traditionally lags quite substantially behind society. 

The Kylie case continues to be a staple in labour law modules in South African legal studies. In attendance at the conference was Prof Elmarie Fourie, professor of labour law at the University of Johannesburg and the Director of the Centre for International and Comparative Labour and Social Security. As a phenomenal scholar, Professor Fourie has advocated for the rights and dignity of domestic workers and dedicated her life to the study and advancement of workers in the informal sector, especially waste pickers and cross-border traders. Her indefatigable promotion of the rights of workers, especially the most vulnerable groups in South Africa, is commendable beyond current recognition. When asked about the impact of the Kylie case, she said, “The case illustrates how our progressive constitution and rights and values such as human dignity can play an important role in extending protection to the vulnerable in our society”.

Judge Davis became a man who has shaped the South African legal landscape to a remarkable degree. He also chaired the Davis Tax Committee, which assessed the South African tax framework. He was unpaid for this work as he was a sitting judge at the time. On top of this, he was a television presenter, hosting different TV programmes, most notably his “Judge for Yourself” programme on ETV. He has been a visiting professor at many universities, such as Cambridge, Florida, Harvard, Toronto, New York and Georgetown. 

Davis retired from the bench in 2020, but anyone who knows or has met the man knows that he can't sit still and continues to be an active mind in South Africa. He still lectures, consults and contributes to law and politics, sometimes being recalled to the bench, and still moves the needle well into retirement.

Gabrielle Liang is a South Africa correspondent for JURIST and an assistant lecturer at the University of Johannesburg. ]]></content:encoded>
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            <title>States Must Honor Legal Duty to Rescue Migrants at Sea</title>
            <link>https://www.jurist.org/commentary/2025/09/states-must-honor-legal-duty-to-rescue-migrants-at-sea/</link>
            <pubDate>Thu, 25 Sep 2025 16:03:03 EDT</pubDate>
            <dc:creator>Divyabharthi Baradhan | JURIST</dc:creator>
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                        <guid isPermaLink="false">https://www.jurist.org/commentary/?p=108864</guid>
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            <content:encoded><![CDATA[Many migrants embark on dangerous sea journeys in search of better lives in foreign countries. Too often, these voyages end in tragedy, with lives lost in the middle of the ocean far from any help. For migrants fleeing conflict or persecution, boarding an un-seaworthy boat may seem like their only option when safer routes are unavailable. This form of migration means grave risk of injury or death at sea, while presenting complex challenges for both states and private search-and-rescue organizations.

Tragic Events of Migrants Drowning

October 2013 marked a particularly devastating period for Mediterranean crossings. Two catastrophic shipwrecks within eight days claimed over 630 lives near the Italian island of Lampedusa. The first disaster occurred on October 3rd, when a vessel carrying migrants from Libya sank, killing 368 people. Just over a week later, another tragedy struck when a boat filled primarily with Syrian asylum seekers went down, drowning 268 individuals, including at least 60 children. These back-to-back catastrophes sent shockwaves through the international community and exposed the deadly consequences of dangerous sea crossings.

The crisis intensified in 2015, when the number of migrants dying at sea increased dramatically, with 3,771 reported dead, including over 1,200 migrants who perished while crossing the Mediterranean from North Africa in April alone.

Moreover, the recent data recorded by the International Organization for Migration (IOM) accentuates that 2,452 deaths of migrants were documented in the Mediterranean Sea in 2024, although not the largest annual total ever. IOM has, therefore, called for adequate search and rescue systems, as well as safer migration routes as an alternative to dangerous journeys.

The October 2013 disasters prompted Italy to take immediate action. Within two weeks, on October 18, 2013, the Italian government launched "Mare Nostrum," an ambitious military and humanitarian operation designed to prevent further loss of life in the Mediterranean while targeting human traffickers and migrant smugglers. The program proved remarkably effective at saving lives, facilitating the safe arrival of approximately 150,000 people to European shores. 

However, Mare Nostrum faced significant obstacles. The operation carried enormous financial costs, requiring over $11 million monthly to maintain. Critics argued that the rescue missions inadvertently encouraged more dangerous crossings by providing a safety net for smuggling operations. Italian officials grew increasingly frustrated, claiming that European partners had abandoned them to handle the crisis alone.

These pressures ultimately proved insurmountable. Mare Nostrum officially ended on October 31, 2014, after just over a year of operation. The European Union replaced it with Operation Triton, a border management initiative run by Frontex with significantly reduced funding and personnel. This transition marked a fundamental shift in European policy—from prioritizing rescue operations to emphasizing border security and surveillance. Tragically, migrant deaths in the Mediterranean increased following Mare Nostrum's termination. This sudden shift in Italy's humanitarian cause has severely impeded civilian efforts to rescue the people in distress at sea.

In 2021, 21 crew members from various NGOs were charged in Italy for aiding and abetting illegal immigration, in the context of their search-and-rescue missions conducted between 2016 and 2017. This includes four crew members of the Iuventa, which had reportedly rescued around 14,000 migrants in the Mediterranean Sea. 

The preliminary criminal proceedings, which began in May 2022, were criticized by Mary Lawlor, the UN Special Rapporteur on the situation of human rights defenders. In particular, she stated that the ongoing proceedings are “a darkening stain on Italy and the EU's commitment to human rights.” She further denounced that “They are being criminalised for their human rights work. Saving lives is not a crime and solidarity is not smuggling.” 

Although an Italian court in Trapani had dismissed the charges in 2024, there has not been any significant change in Italian government’s response to NGO efforts in search-and-rescue mission. 

In July 2025, Human Rights Watch (HRW) similarly criticized the Italian Constitutional Court’s ruling, which upheld a law that imposed sanctions on sea rescue groups, as “cast[ing] a dark shadow over sea rescue.” Despite that, HRW had acknowledged a silver lining in the Court’s judgment, wherein “an order that leads to a violation of the primary obligation to save human life and is likely to endanger it is not binding, and failure to comply with it cannot be sanctioned.” It follows that if an order illegitimately violates migrants’ fundamental right to life, rescuers are justified in disobeying such orders.    

Who should bear the responsibility of safeguarding the vulnerable migrants at sea?

The past events raise an urgent question from a humanist perspective: why did the surrounding countries not rescue the migrants drowning in the sea? A simple, yet profound, question serves to show the paradox of the class divide between legal and illegal migration. France, Greece, Italy, Spain and other countries situated around the Mediterranean Sea are state parties to the 1951 Refugee Convention, except for Lebanon and Libya. These countries undeniably provide better treatment to legal migrants, who serve their economic interests. By contrast, there's a stinging silence in matters pertaining to the imperilled seaborne migrants who embark on illegal voyages. 

We live in a world where civilization is treading backwards, with the persistent existence of a class society - the class that divides legal and illegal migrants. Often, the former who yearn for protection are being abandoned by States merely because they travel through illegal routes. These States micro-focus on the word "illegal" by casting off the morality of saving lives.

In contemporary society, where there are numerous ways to breach the fundamental human rights of individuals, a stronger humanization of such rights is a necessity to reflect the inextricably intertwined morality. The humanization of contemporary international human rights would mean imposing the responsibility of rescuing sea migrants on the surrounding countries in whose territory the migrants are found. 

Indeed, the EU Assembly, in a recent report, reinforced the right to life guaranteed to sea migrants as entrenched in Article 2 of the European Convention on Human Rights (ECHR), referring to the European Court of Human Rights’ (ECtHR) landmark decision in Safi and Others v. Greece. In particular, the ECtHR underscored the States’ positive obligation to effectively investigate violations of Article 2 in the context of migrant rescue operations, adopting the test propounded in the case of Amaç and Okkan v. Turkey. 

The test requires “the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.” 

The obligation supplements the existing international legal frameworks, such as Article 98 of the UN Convention on the Law of the Sea, which stipulates that member States must ensure that shipmasters promptly render assistance to anyone who is in distress at sea. Other similar instruments include the International Convention for the Safety of Life at Sea, the Council of Europe Convention on Action against Trafficking in Human Beings, and the Protocol against the Smuggling of Migrants by Land, Sea and Air (Palermo Protocol). 

However, the Court refused to interpret Article 2 of the Convention as guaranteeing an absolute level of security to seaborne migrants where their right to life may be in jeopardy. This is particularly pertinent to migrants who bear a degree of responsibility for the accident that exposed them to an unjustified risk. The Court further took into account the unpredictability of human conduct and the choices of priorities and resources, to avoid imposing an impossible burden on national authorities. 

From the decision, it can be discerned that although the law, as it stands today, preserves migrants’ right to life as long as they are within the constructive knowledge (or ought-to-know element) of the State authorities, it does not impose an absolute obligation on States. Besides, whether the State has violated the migrants’ right depends on the specific circumstances of each incident, having regard to the availability of resources of the country. In my opinion, while this approach balances the migrants’ right to life with States’ interests on a thin line, a comprehensive approach is required to address the root causes of the issue. 

The best alternative solution to avert the tragic fate of seaborne migrants imperiled at sea is to establish safer routes for them. The question of illegality should be peripheral to the primary responsibility of protecting these vulnerable migrants. Moreover, there must be effective investigation into the deaths of the migrants, as well as swift procedures for handing over their bodies to the next of kin. 

This aligns with the UNHCR’s 2015 report, in which the UN Refugee Agency urged European countries to adopt a comprehensive approach to illegal migration, reiterating that “fences and borders will not stop people fleeing for their lives. They will come. The question facing the international community is not whether to engage with this crisis, but how best to address it, and how humanely.” The UNHCR’s call substantiates the fact that toughening up border control will only contribute to more illegal migrants resorting to dangerous paths. Therefore, it is crucial for countries to adopt laws that mitigate such dangerous situations. 

Furthermore, as reiterated by the Assembly, the States’ responsibility under Article 3 of the Convention extends to respecting the principle of non-refoulement, which was applied by the ECtHR in Hirsi Jamaa and Others v. Italy concerning maritime search and rescue operations. The principle requires States to abstain from forcibly deporting rescued migrants to where they may face torture and inhuman or degrading treatment. 

It is imperative that the countries in whose territorial waters migrants are found drowning shoulder the responsibility of guaranteeing their safety at all costs. The lives of those who travel dangerously, albeit illegally, are not just statistics. Their lives should be seen as equally valuable to those of people who enter a country lawfully. Instead of viewing them as enemy aliens, countries should start treating them as human beings with the right to life. 

Divyabharthi Baradhan, an LLB (Hons) Graduate from the University of London (External Program), and currently working as an Assistant Editor at JURIST. ]]></content:encoded>
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            <title>The Supreme Leader&#8217;s Word as Law: Iran&#8217;s Constitutional Path to Nuclear Crisis</title>
            <link>https://www.jurist.org/commentary/2025/06/the-supreme-leaders-word-as-law-irans-constitutional-path-to-nuclear-crisis/</link>
            <pubDate>Tue, 17 Jun 2025 10:56:27 EDT</pubDate>
            <dc:creator>Faraz Firouzi Mandomi | University of Hamburg</dc:creator>
                            <category><![CDATA[Uncategorized]]></category>
                        <guid isPermaLink="false">https://www.jurist.org/commentary/?p=108606</guid>
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            <content:encoded><![CDATA[On June 4, Iran's Supreme Leader, Ali Khamenei, issued a statement that may seem, to external ears, like political posturing: "The United States and Israel can't do a damn thing." Yet within the constitutional framework of the Islamic Republic, such utterances do not function as rhetoric alone. They operate as binding pronouncements under the system of Velāyat-e Faqīh, where the Supreme Leader's speech can constitute normative legal command. This legal dimension is not merely theoretical—it shapes how Iranian institutions respond to questions of war, diplomacy and nuclear policy. As Iran's nuclear program enters a new phase of confrontation—punctuated by a fresh IAEA censure and intensifying Israeli threats—the legal status of the Supreme Leader's speech must be understood as a central force structuring state action. This op-ed argues that Khamenei's June 4 declaration amounts to a constitutional directive that forecloses de-escalation, consolidates confrontation, and potentially clears the path for suspending Iran's nuclear self-restraints under Shia jurisprudence.
The Legal Force of Speech in a Theocratic Constitution
In Iran, the Supreme Leader occupies a unique intersection of theological authority and constitutional power. Article 110 of the Islamic Republic's Constitution grants him final authority over military, judicial, religious and strategic matters. His directives—particularly those articulated in the form of ḥukm-e ḥokūmatī (governance rulings)—bind all institutions of the state and remain immune from judicial oversight.

Khamenei's use of the phrase "they can't do a damn thing" must be read within this legal context. Originally popularized by Khomeini in 1979 after the US embassy seizure, the phrase first gained juridical relevance when the International Court of Justice (ICJ) ruled that Iran bore legal responsibility for the crisis. Although non-state actors initially carried out the embassy seizure, Iran's leadership ratified the act. The ICJ found that this endorsement transformed it into state action, thereby violating the Vienna Conventions.

Khamenei's invocation of the same phrase today serves a similar purpose. It signals constitutional commitment to defiance and resistance. In doing so, it shapes legal and strategic boundaries for Iran's executive and military organs. When spoken by the Supreme Leader, this phrase becomes a performative constitutional utterance, not just a populist flourish.
Nuclear Policy as a Legal Battlefield
Khamenei's June 4 speech marked a pivotal constitutional moment in Iran's nuclear trajectory. Delivered amid rising speculation about Israeli military plans and ongoing stalemates in nuclear diplomacy, the speech sent an unambiguous message of defiance. Its impact was immediate and measurable. In the days that followed, Iran's Atomic Energy Organization declared that nuclear activities would proceed "with full force," and the General Staff of the Armed Forces warned of a severe response to any "strategic miscalculation." These statements echoed—not preceded—Khamenei's directive, illustrating how his language functions as a legal cue for institutional alignment.

On June 12, the IAEA Board of Governors passed a resolution censuring Iran for non-compliance. Tehran responded by threatening further escalation. Iranian officials publicly linked this posture to concerns about Israeli attacks and foreign pressure. But the path had already been signaled by the Supreme Leader. His June 4 declaration, framed in constitutional terms, laid the legal and strategic groundwork for Iran's posturing. What external actors interpret as a reaction to international developments should instead be seen as the internal operationalization of a speech that—within Iran's legal system—constituted binding state doctrine.

Khamenei's phrasing did not describe such a mood. It legally defined Iran's nuclear stance. By pre-emptively constitutionalizing confrontation, he foreclosed diplomatic flexibility and signaled that future escalation would not be accidental but authorized.
The Fragility of Restraint: The Reversible Fatwā
For years, Iranian officials have pointed to Khamenei's fatwā prohibiting the acquisition, development and use of nuclear weapons as evidence of Iran's peaceful intentions. Western negotiators have often treated this decree as a moral and religious guarantee against weaponization. However, that interpretation reflects a profound misunderstanding of the fiqh-based logic underlying Iranian constitutionalism.

Shiʿia jurisprudence permits the suspension or revision of prior rulings under the doctrine of aḥkām al-ḍarūriyya—for legal rulings issued in conditions of necessity. The Supreme Leader, as the Wali-ye Faqih, retains the discretion to override earlier fatwās in response to new strategic imperatives. This capacity to recalibrate moral prohibitions according to evolving threats reflects the inner logic of fiqh al-ḥukūmah (governance jurisprudence). It does not violate Islamic legal norms; rather, it expresses their flexibility in the hands of the jurist-ruler.

Recent signals from Khamenei's advisory circle suggest that this recalibration may be underway. Several senior clerics and policy advisors have proposed revisiting the anti-nuclear fatwā in light of mounting external threats. The legal infrastructure required to reverse this doctrinal constraint already exists within Iran's constitutional framework. If such a reversal occurs, it would eliminate the last internal normative brake on weaponization.

In this scenario, escalation would not be accidental. It would emerge as a legally sanctioned pathway chosen by the state's highest authority. The transition from a religious prohibition to a constitutional mandate would take place not through parliamentary vote or judicial ruling, but through a sentence from the Supreme Leader.
Legal Misreading as Strategic Miscalculation
Policymakers and observers often dismiss Khamenei's statements as ideological bravado. That approach obscures how legal authority functions in the Islamic Republic. In systems like Iran's, language performs law. Khamenei's declarations—particularly when made on institutional occasions—constitute operative legal acts. They do not merely express preferences or rhetorical postures. They draw the boundaries of permissible state behavior and signal alignment across Iran's bureaucratic and military architecture.

Misreading these signals risks severe strategic error. For instance, interpreting Khamenei's June 4 statement as "bluster" ignores how the Iranian system processes legal authority. That misreading fosters the illusion of negotiation space that may not exist. As a result, international actors may pursue diplomatic options that Iranian institutions no longer recognize as viable.

Moreover, the timing of the speech matters. Delivered at a moment of acute geopolitical pressure, it serves not only as a response but as a legal act of resistance. By embedding confrontation into Iran's constitutional order, Khamenei legally narrows the scope of de-escalatory diplomacy. That gesture has consequences that extend far beyond Iran's borders.
From Internal Collapse to External Escalation
Khamenei's speech also emerges amid a crisis of domestic legitimacy. Widespread economic deterioration, social unrest and elite fragmentation have weakened the regime's internal authority. Historically, states under such pressure often externalize conflict to consolidate power and redirect popular grievances. In Iran's case, the path to external escalation is not only political—it is constitutional. The fusion of theology and law provides a mechanism to legalize confrontation and redefine strategic objectives.

As internal consensus frays, the Supreme Leader can reassert ideological coherence through calibrated conflict. A limited military engagement—especially one cast as a defensive response to Western or Israeli aggression—could serve as a unifying force. That move would not just be politically advantageous; it would be constitutionally legitimate under the doctrine of defāʿ (religious self-defense), which allows the jurist-ruler to override earlier restraints in the name of national survival.
Conclusion: Missiles Begin with a Sentence
Khamenei's June 4 speech should not be seen as rhetorical defiance. It functions as a constitutional signal—one that reverberates through Iran’s military and political institutions. His statement binds the state to a path of resistance, narrows the scope for compromise, and prepares the ground for escalation under legal cover.

The international community must stop treating Iran's constitutional structure as opaque or irrational. It must instead engage with the logic of a system where theology, law and sovereignty fuse into a singular authority. In this system, a sentence does not precede war—it initiates it.

If the anti-nuclear fatwā is suspended, that act will not emerge from technical necessity or diplomatic breakdown. It will result from a deliberate, legal transformation driven by the Supreme Leader's speech. Recognizing this legal architecture is not academic pedantry—it is strategic foresight.

Khamenei has spoken. The question now is not whether the Islamic Republic will act, but whether the world understands what he has already done!

Faraz Firouzi Mandomi is a Ph.D. candidate in law at the University of Hamburg. He holds an LL.M. in European Union Law from the University of Hamburg and an LL.M. in International Human Rights Law from Allameh Tabataba'i University in Tehran. His academic interests include constitutional law, human rights, and public international law. Before beginning his doctoral studies, he practiced law in Iran with a focus on public law and rights-based litigation.]]></content:encoded>
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            <title>Not Just Rockets: The Battle of Narratives Between Iran and Israel</title>
            <link>https://www.jurist.org/commentary/2025/06/not-just-rockets-the-battle-of-narratives-between-iran-and-israel/</link>
            <pubDate>Fri, 13 Jun 2025 19:46:00 EDT</pubDate>
            <dc:creator>Sharareh Abdolhoseinzadeh</dc:creator>
                            <category><![CDATA[Uncategorized]]></category>
                        <guid isPermaLink="false">https://www.jurist.org/commentary/?p=108593</guid>
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            <content:encoded><![CDATA[In today's world, military power is no longer measured solely by missile blasts and the roar of fighter jets. Alongside every military strike runs a quieter yet far more influential battle: the war of narratives. In the latest conflict between Iran and Israel, missiles matter—but perhaps not as much as the stories told about them. This is a war not just fought in the skies, but also in headlines, hashtags, and the minds of millions.
Who Started It? A Matter of Narrative
One of the first questions in any military conflict is, "Who fired the first shot?" Israel, with its display of large-scale aerial attacks on Iran's military and nuclear facilities, has tried hard not to look like the aggressor. Instead, its media has framed the operation against Iran as a preemptive, precision strike, repeatedly invoking phrases like "surgical deterrence" and "response to imminent threats."

Iran, on the other hand, has framed the Israeli attack as a clear act of unlawful aggression, justifying its counterattack under the mantle of "legitimate self-defense." Iranian state-aligned media used key phrases like "True Promise," "missile deterrence," and "breaking Zionist hegemony," presenting Iran's response not simply as revenge, but as a righteous assertion of sovereignty.
The Hero-Victim Dichotomy
In narrative warfare, the most successful player is the one who can cast itself simultaneously as both powerful hero and wronged victim. Israel has tried to maintain this balance by showcasing targeted assassinations of Iranian military figures—highlighting its intelligence prowess—while also broadcasting images of Israeli children in bomb shelters and families fleeing the south, reinforcing the victimhood angle.

Iran has adopted a similar duality: scenes of bombed-out facilities in Natanz and power outages in Isfahan were distributed alongside videos of missile launches striking Tel Aviv and drones breaching Israel's Iron Dome. Iran aimed to construct an image of a resilient, suffering nation that refuses to be silenced—embodying both grief and strength.
Social Media as a Battlefield
Platforms like Twitter and Instagram have become frontline arenas in modern conflicts. Hashtags such as #IranUnderAttack and #IsraelUnderFire aren't just labels—they are digital trenches. Iranian social media have seen stark polarization: some users proudly praised the missile responses, while others posted memes of fear, anger, or despair, using sarcastic hashtags like #UncleNetanyahu or sharing clips of families searching for shelter under red skies.

In Israel, a similar split has emerged. Alongside patriotic coverage and official military statements, some media outlets and citizens have expressed frustration over failed air defenses and criticized Netanyahu's escalation strategy. Public perception is no longer a passive reflection of state messaging—it's a volatile, active force in its own right.
Narratives as Strategic Weapons
Both Iran and Israel understand that in today's hyper-connected world, no missile flies without a message. Every video, every press release, every photo from a battlefield is part of a broader psychological and political operation. The true targets are not just cities and command centers—they're hearts and minds, both domestic and international.

This is not just about defending borders, but about defending legitimacy. The narrative of "resistance and dignity" promoted by Iran aims to resonate not just within its population, but across the Arab world. Israel's counter-narrative of "precision and protection" is crafted to reassure allies in the West and dissuade future retaliation.
The Battle That Never Ends
Even if this round of missile exchanges subsides, the narrative war continues unabated. The question is not just who has better drones or more advanced defense systems—it's who tells the more convincing story. And in an age where truth is often buried under competing narratives, winning that battle may be more consequential than anything that happens on the ground.

In this new era of hybrid warfare, each rocket may start a fire—but it's the narrative that fuels it.

Dr. Sharareh Abdolhosseinzadeh holds a PhD in Political Science and is a Researcher at the Middle East Strategic Studies Center in Iran.]]></content:encoded>
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