IT cannot be helped. With the outbreak of war between the United States and Israel on one side and Iran on the other, it seems that international law has failed the world yet again. There can be no legitimation of what is clearly aggression, a crime in fact under the Rome Statute — as well as under customary international law.
And alarmingly, all indications point to an escalation: Because Hezbollah in southern Lebanon lobbed rockets into Israel, the Israeli Defense Forces have retaliated with characteristic determination. And when an enraged Iran flailed about after having been stung by the US’ initial attack, it sent drones and rockets into the Gulf States that host US facilities and bases. Allison Minor of The Atlantic Council writes: “Saudi Arabia and the United Arab Emirates have made it clear that Iranian attacks crossed a red line, and that they reserve the right to respond.” They have, in fact, responded in varying degrees.
But that is the trouble with red lines — because they tend to shift and they are in fact largely arbitrarily drawn. At first, we thought that Iranian attacks on American outposts in the Middle East were the red line. The US pounded Iranian missile launching sites after that incident. Then, there was Donald Trump telling the world about uranium enrichment and Iran’s aspirations at being a nuclear power. He proclaimed that to be a risk that the United States, under his watch, was not willing to take. Was that the red line? But there are military observers who note that Iran was still years away from developing nuclear military capability, to which Trump would of course respond: Why wait for that eventuality? But Iran was no hapless victim either. All along, under the leadership of the ayatollahs who kept the nation under their thumb since the ouster of the Shah, “Death of America-Death to Israel” has been the unrepentant mantra — and it did not remain a malign wish. It took lethal form whenever the opportunity presented itself. Iran, after all, has had its own proxies.
But if we persist in our cynicism over international law, what do we have in its place? Clearly, “might is right” will be the untrammeled reality — as in fact it is now, whenever the measures of the international legal order are not persuasive or forceful enough to keep it in check. I have always taught my students in the compulsory law course, “Public International Law,” that it would be a mistake to think of international law as “globalized municipal or domestic law.” It is not, and it cannot be so. The features of domestic legal systems that engender law and maintain it as society’s cohesive force are lacking. There is no such thing as an international legislature, an international executive power and an international judiciary. In the domestic legal system, there is a Constitution to which the entire nation, by a tacit fundamental contract, binds itself to go by. And because the State assumes a stature that rises above the citizens, its instrumentalities and agencies compel compliance with law and sanction violations.
International law will be a credible institution of the international order only when it becomes effective. But we are probably misplacing our hopes, because if we await the imposition of international law by a superior force that binds all States to submission, that is not forthcoming. After all, the notion of States as “principes non recognoscentes” — sovereignties recognizing non sovereigns — remains aptly descriptive of how States conduct their affairs with each other. And if it is true — as indeed it is — that the only law that can bind sovereign entities is the law that they accept to bind them, whether this takes the form of convention or practice that coalesces into legal obligation — then international law can never be the imposition of a higher power on nations, simply because there is no such higher power, but the collective decision of States to abide by it, to follow its rules and uphold its institutions.
Many will dismiss this as an effete aspiration — as old as the end of the Second World War. But really, what other option do we have? International law is the choice of communicative action over strategic confrontation — for fruitful interlocution: the exchange between postulation and contestation, affirmation and rebuttal by which there can be a common definition of the situation and a collective position. But communicative action is itself not some magical configuration. It exacts of participants “responsibility” and “accountability” — but these are not impositions from without but intrinsic to the practice of communication itself. Anyone who says anything must accept the responsibility of accounting for the truth of his assertion, as well as for the normative rightness of the relations he seeks to establish by that communicative act. When one says “Death to Israel,” whoever does so must accept the responsibility of showing why urging the demise of any nation is legitimate. And when Trump arrogantly insists that America decides when and how the war ends, then we must all ask for the warrant of that assertion. Communicative action is the choice to be rational — and we cannot, for our own sakes, give up on rationality. International law is the juridification of communicative action.
What we can all set ourselves to do is to address the misgivings of some nations about international law. If it is complained that international law as we currently have it is law in the image and likeness of former colonial overlords, that is something we should look into keenly and resolutely address, because doing so works either to debunk the charge as completely fatuous, or refashioning international law into a normative system that is capable of winning over nations and powers that remain skeptical about it. And it is probably not as fruitful to be so concerned with devising sanctions that, so far, only the strong have been able to impose, as with the collective undesirability of uncertainty that comes about with an eclipse of international law. Perhaps, it is not asking too much of nations that one fundamental proposition to begin with is that no State should wish — either as a matter of national aspiration or of implementable policy — the demise of another.
rannie_aquino@sanbeda.edu.ph
Rannie_aquino@csu.edu.ph