1. The United States-Israel v. Iran Armed Confrontation
A few years ago, Martti Koskenniemi, professor at the University of Helsinki and director of the Erik Castren Institute of International Law and Human Rights, published the Spanish version of the book The Politics of International Law, in an edition by Editorial Trotta with a prologue by Cristina García Pascual. This book is a collection of essays of varying scope and content, including the one that gives the work its title and others, such as The Law and Politics of Collective Security or The Limits and Possibilities of International Law. These are highly relevant today, not only because of the armed confrontation between the United States and Israel with Iran, but also due to its legal, political, and economic consequences. Among others, in the first case, the breakdown of the rule of law in the international sphere; in the second, the emergence of Hormuz as a strategic center of gravity; and in the third, de-dollarization, with the acceleration of energy transactions in yuan.
2. The United Nations Collective Security System
In the present case, the breakdown of the rule of law in the international sphere—specifically regarding the two basic principles upon which the collective security system established in the Charter of the United Nations rests, namely the prohibition of the threat or use of force (with the well-known exceptions of self-defense or authorization by the Security Council) and the Council’s primary responsibility for maintaining international peace and security—has once again led to doubts about the validity, and even the existence, of international law. This occurs in a context where a certain skepticism about the instrumental nature of law and its capacity to provide security takes center stage. This crisis and this doubt seem to overlook, as we shall see later, that international law in a state-centric system is the product of an adjustment between conflicting national interests and that its application is a fundamentally political act.
Doubt regarding the validity or existence of international law, despite the efforts made by its founder Francisco de Vitoria, its systematizer Hugo Grotius, and their successors to establish its legitimacy and reality, has grown since then, especially starting with Hobbes, with the objection to the binding legal force of its norms due to the lack of an external power to enforce compliance. This weakness, which is real—especially when compared to domestic law—does not mean that, as Oppenheim points out, international law ceases to be law, however weak it may be. Furthermore, in cases like the armed confrontation I am discussing, the parties in conflict, when violating international law, not only do not deny its existence but affirm it by attempting to interpret it in a way that justifies their conduct. Even when this and other violations diminish the legal force of international law and reduce its effectiveness, the resounding, sometimes cynical, affirmation of its binding force is significant.
In this context, it is striking that some States have not hesitated to denounce the violation of international law by the United States and Israel and to project an image to public opinion as firm defenders of it, while ignoring their own violations, particularly in the field of human rights. These are violations that led the United Nations Security Council, in a meeting of heads of state and government held in 1992, to broaden the scope of threats to international peace and security, considering that these threats can arise from internal conflicts. And it led Koskenniemi, recalling them in one of his essays, to consider—after asking what happens if the advancement of human rights implies the destruction of an unjust peace—that when there is oppression instead of autonomy, it does not seem essential for formal sovereignty to constitute a barrier against intervention in favor of the population, since a State, by oppressing its people, undermines its own sovereignty.
3. International Law Today: Between Consolidation and Questioning
Despite the undeniable interest of the Council’s declaration, it does not seem likely that it will use its powers in collective security matters to intervene in these issues, given the limitations that the Charter itself imposes on its collective action, or the interest of some permanent members, such as China, in emptying any concept related to human rights of its content, or even the purposes and principles of the Charter, by reinterpreting treaties, creating allied blocs, or promoting alternative structures based on the Five Principles of Peaceful Coexistence, which are nothing more than a clear rejection of current international law while simultaneously being an unlimited instrumentalization of it. Nevertheless, between a problematic consolidation and opportunistic questioning, international law continues to show its utility, since, as Henkin says, almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.
