Deepening Rivalry between Municipal and International Law: The Israelo-Mexican Saga, by Prof. Bola Akinterinwa

The conduct and management of international affairs clearly show increasing nationalism at the level of the Member States of the international community. The observation is not different at the level of regional politics. The most recent example is the disagreement between some Francophone West African countries, on the one hand, and the Economic Community of West  African States (ECOWAS), on the other.

The ECOWAS has a policy of zero-tolerance for unconstitutional change of government in the West African region. Consequently, the ECOWAS frowned at the coups d’état in Mali, Burkina Faso, and Niger Republic. While efforts were being made to address the cases of Mali and Burkina Faso, another coup occurred in Niger and the ECOWAS decided to take the bad end of the stick in handling the matter with the Tchiani junta in Niamey. In fact, the ECOWAS did not hesitate to give a 7-day ultimatum to the military junta to release the detained elected president of Niger Mohammed Bazoum and return power to civilian rule or face military intervention. This threat seriously angered Niger, Burkina Faso and Mali as sovereign states. The misunderstanding led to the decision of the three countries to give notice of the withdrawal of their membership from the ECOWAS.

Even though the three countries are founding Members of the ECOWAS and they voluntarily conceded part of their national sovereignty to the ECOWAS to make it a supranational authority, the recent decision to withdraw from the ECOWAS is an expression of protest against the supranational authority of the ECOWAS, which is an embodiment, or a depository of the many agreements negotiated, signed, and ratified by the Member States.

At the global level, disregard for supranational obligations created by treaties is also increasing. Israel is a leader in this regard. It hides under the international principle of legitimate self-defence by bombing the consular and diplomatic premises of the Embassy of Iran in Damascus Syria. Mexico consciously break into the Embassy of Ecuador in Mexico to kidnap the Mexican Vice President seeking political asylum in Ecuador. How do we explain the rising municipal law to the detriment of International law?

The Israelo-Mexican Saga

The Israeli bombing of the diplomatic premises of Iran in Damascus, Syria, and the Mexican engagement in terroristic kidnapping in the Embassy of Ecuador in Quito, Mexico, are not simply about violation of international diplomatic law, but also an expression of strategic miscalculations with potential deleterious consequences for which the whole world is least or not even prepared. They are additional pointers to another World War in the making. 

True enough, the Western leadership of the world has been under increasing threats in recent times. Discontent with the Breton Woods institutions prompted the growing interest in the BRICS. The policy of duplicity of the West in the management of the Israelo-Palestinian conflict, in which case the sermons of peace are preached and, at the same time, arms and weapons are made and supplied to Israel to engage in genocidal crimes, is a case in point. It is ridiculous that the great powers preach democratisation, particularly from the time of the La Baule Franco-African Summit of 1990, on the one hand, and, at the same time, refuse democratisation of the whole United Nations system, on the other. And perhaps most disturbingly, the Permanent Members of the United Nations Security Council (UNSC), who are also referred to as the nuclear weapons states, have constituted themselves into an informal nuclear club, preserving the right of exclusiveness in the conduct and management of nuclear politics. They do not want any other state to have access to nuclear power status, but secretly aid and abet their allies to acquire same. This is partly why global efforts are difficult to succeed in the maintaining international peace and security. The gospel of ‘do what I say, but not what I do,’ cannot be helpful to the maintenance of orderliness, and to the removal of the growing discontent with the mania of global governance as it is today.

Without any jot of doubt, Israeli attacks on Iranian interests cannot be said to be new. The attacks, stricto sensu, fall under the doctrine of pre-emptive self-defence in international security relations. It should not be forgotten that Iran was suspected to have aided the deadly 1994 bombing of the Jewish Centre in Argentine. As reported on April 12, 2024 by Lucila Sigal and Lucinda Elliot of the Reuters, there was a new ruling by the highest criminal court in Buenos Aires that has ‘blamed Iran for a fatal 1994 attack against the AMIA Jewish community in Buenos Aires.’

More notably, Sigal and Elliot noted further that ‘the judges ruled that the bombing of the Argentine Israelite Mutual Association (AMIA) – the deadliest of its kind in the country’s history, with 85 people killed and hundreds wounded – was carried out by Hezbollah militants responding to “a political and strategic design” by Iran.’ It took the highest criminal court 30 years of investigation and trial. Iran denied any form of involvement but refused to hand over any of its suspected citizens to the court for possible trial. The point here is that, in the eyes of Israel, there is no way Iran would not be listed as a security threat, and therefore as a target for future attack.

Apart from this, two years earlier, in 1992, the Argentinian court recalled that the same Iranian-backed Lebanese armed group Hezbollah attacked the Israeli embassy in Argentina.  22 people died in the attack, meaning that, in the two attacks reportedly sponsored by Iran, 22 plus 85 (107) people were killed. While internationally condemning the Israeli violation of international diplomatic law, by bombing Iranian Consulate in Damascus, it should therefore not be quickly forgotten that there was an Iranian precedent. 

Aljazeera reported on December 28, 2023 that ‘since its formation in 1982, Iran-backed Hezbollah has grown into powerful “State within a State” in Lebanon, and has also backed Hamas in Gaza. Of course the biggest threat so far has been from the Iranian-backed group Hezbollah in Lebanon that has been firing every single day. This is just showing that despite Israel’s continued war in Gaza, these attacks are going to continue.’ How do we reconcile this prescription with the declared Israeli policy decision to wipe out Hamas and Gaza? Does it not imply that even in the absence of Gazans, the friends of Gazans will still remain to be contended with? Does it not also mean that decisions taken at the municipal level, legal or illegal, will continue to disregard the provisions of relevant international law?

As regards Ecuadorian relations with Mexico, Mexican Foreign Minister, Alicia Barcena, called, on April 11, 2024, for Ecuador to be suspended from the United Nations until Ecuador tenders a public apology for its raid on Mexico’s embassy in Quito, in Mexico City, Mexico. And true enough, Ecuador’s policemen forced their way into the Embassy of Mexico in order to arrest Ecuador’s former Vice President, Jorge Glas, who was at the embassy to seek political asylum. He had been an asylee in the Mexican embassy since December 2023 and was only waiting for final approval from the Mexican government back home to be flown to Mexico. This was what the Ecuadorian government wanted to prevent by raiding the embassy contrary to the 1961 Vienna Convention on Diplomatic Relations which provides for the grant of permission of the Ambassador before the agents of the receiving State can enter the embassy. 

According to the Associated Press (AP), the Mexican President, Andrés Manuel Lôpez Obrador, has filed a complaint at the International Court of Justice. He said ‘the court, in accordance with the UN Charter, should approve the expulsion, and there should be no veto’ from the United Nations Security Council? The Mexican prayer is quite interesting from its unwanted application of the right of veto by the five Permanent Members of the UNSC. True, veto has been more used in protection of the national interest than in the maintenance of international peace and security. This is a major problem.

The Associated Press noted further that the Ecuadorian Foreign Minister, Gabriela  Sommerfeld, said her country would defend its actions and that an apology ‘is not something that is under discussion at this moment.’ The alleged offences of the former Ecuadorian Vice President are not political but criminal, and as such, Mexico should not have considered Mr Glas for possible political asylum. In this regard, while the distinction between political and criminal offences is tenable, the point by Mr. Luis Almagro, the Secretary-General  to the Organisation of American States (OAS), that ‘the use of force, the illegal incursion into a diplomatic mission, nor the detention of an asylee are not the peaceful way toward resolution of this situation,’ could not have more correct. Mr. Almagro is right by suggesting that Ecuador’s actions should not be allowed to become a precedent.

Without doubt, before the raid by Ecuador’s policemen, the Mexican plenipotentiary to Ecuador had been declared persona non grata, meaning that there had been strained ties before Ecuador’s state terrorism which has compelled Mexico to also break off diplomatic relations with Ecuador. Ecuador has argued that ‘Ecuador is a sovereign nation,’ and will not be prepared ‘to allow any criminal to stay free.’ The Mexican leader responded that the detention of Mr. Glas was an ‘authoritarian act and a flagrant violation of international law and the sovereignty of Mexico,’ especially in light of the fact that several Mexican diplomats were injured. These arguments have raised many other questions about the relationship between municipal and international law. First is that Julian Assange, the founder of Wikileaks, was an asylee at the Embassy of Ecuador in London for 7 years but the UK government never violated the embassy. Why has Ecuador therefore forgotten that it played host to a fugitive who was seen as a political offender and a criminal depending on whose side one wants to be?

Secondly, Ecuador raised the argument and right of sovereignty, but forgets that the Embassy of Mexico is also an ‘exterritorial’ of Mexico in international law and relations, implying that the Ecuadorian invasion of the Mexican embassy is also a violation of the sovereignty of Mexico. In other words, the exercise of sovereign right of one country must not be detrimental to that of other sovereign states. Thirdly, the mere fact that the main argument of Ecuador is predicated on its right of sovereignty, this means preference is for municipal law. How should the international community address this growing national protectionism which has been to the detriment of international law? Fourthly, and perhaps most importantly, Ecuador violated international law but achieved its objective. Quo vadis for international law?  

Municipal, and International, Law 

As we noted above, Israel’s attacks on Iranian interests fall under the purview of the doctrine of pre-emptive self-defence. One major rationale for the doctrine is the recognition of the dangers newly posed by non-state actors’ capability to project extreme violence across the globe, as particularly shown in the September 11, 2001. Terrorists can have access to Weapons of Mass Destruction (WMD), though generally believed to be difficult. It is the fear of uncertainty over the extent to which non-state actors can seriously threaten the security of States that partly explains the raison-être of the doctrine of pre-emptive self-defence.

Professor Sean D. Murphy of the George Washington University Law School has explained the problem better: ‘although governments have possessed WMD for many decades, such weapons have rarely been used, largely because of the understanding by states that the use of WMD against another state would almost certainly lead to general, worldwide condemnation and possibly a response in kind.’ More importantly, ‘such notions of inter-state deterrence  and reciprocity, however, are far less apparent with respect to relations between a state and a non-state actor engaged in terrorist behaviour, especially if the non-state actor is not seeking broad sympathy for its cause.’ 

And most interestingly, Professor Murphy also has it that ‘the possibility of an attack by terrorists using chemical weapons was vividly demonstrated in March 1995 in Tokyo, Japan, when a religious cult released a form of sarin nerve gas in Tokyo’s subway system during  morning rush hour, killing twelve and injuring more than five thousand people.’ In this regard, for instance, Professor Murphy submitted that ‘the realities of the post-September 11 period led the Bush administration in 2002 to articulate, in very strong and public terms, a doctrine of pre-emptive self-defence… [T]he doctrine asserted an evolved right under international law for the United States to use military force “pre-emptively” against the threat posed by “rogue states” or terrorists who possess WMD.’ It is against this background of reasoning that many states ignore international law to the advantage of municipal law which underscores national security and survival first.

And true enough, customary international law also has it that a state does not have to wait to be a victim of unprovoked attack before engaging lawfully in self-defence attacks. The pre-emption of perceived threats therefore becomes legitimate the moment threats are visible: when mobilisation of armies or navies are seen to be preparing to launch an attack. This reasoning falls under municipal law. The need to respect international law obligation based on the principle of pacta sunt servanda, or sanctity of international obligations cannot override the survival of a state. In fact, it is when a state exists that it can have the luxury of meeting its international obligations. What makes pre-emptive self-defence a desideratum is because of the uncertainty over when and where the enemy could launch an attack. Consequently, rather than allow oneself to be cut unawares, it is considered better to carry the battle to the doorsteps of the enemy before the action of the enemy takes place.

Grosso modo, there is nothing yet to suggest the permissibility or non-permissibility of the resort to the use of pre-emptive self-defence in international law. The International Court of Justice has not ruled on it or given an advisory opinion on the matter. In the same vein, the United Nations Security Council (UNSC) has not adopted any resolution on it. By implication, the resort into the use of force, in whatever manner, for the purposes of self-defence, including pre-emptive measures, cannot but be a matter for academic debate.

In the eyes of Professor Murphy, ‘pre-emptive self-defence is used to refer to the use of armed coercion by a state to prevent another state (or non-state actor) from pursuing a particular course of action that it is not yet directly threatening, but which, if permitted to continue, could result at some future point in an act of armed coercion against the first state. Such pre-emptive self-defence is, of course, anticipatory and might even be called preventive self-defence.’

Initially, going by the 1928 Briand-Kellogg Pact, that is, the International Treaty Providing for the Renunciation of War, done on 27 August 27, 1928, the use of force in inter-state relations was prohibited. The 1928 Treaty provides that ‘the High Contracting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it as an instrument of national policy in their relations with one another.’ The use of force under the UN Charter is only legitimate in the context of collective defence provided for under Chapter VII of the Charter. Legitimate self-defence is authorised between the immediacy following an unprovoked attack and the time of eventual intervention of the UNSC.

As clearly also explained by Ian Brownlie in his International Law and the Use of Force by States in 1963, States have always found different excuses to justify the use of force in their international relations whenever there is violation of their sovereignty. This also partly explains the fundamental differentiation between ‘interference’ and ‘intervention’ on the one hand, and differentiation between ‘permissible’ and ‘non-permissible intervention’ in international relations, on the other. Interference and intervention are generally, but wrongly, used interchangeably. They do not really mean the same thing in terms of implication. Interference is when there is no involvement of the use of force. It applies when engagement is limited to the use of diplomacy. Intervention involves use of force. This is why Article 2(4) stipulates ‘non-intervention’ and not interference in its text.

Rivalry between municipal and international law should not be simply seen in terms of legal provisions. The rivalry is most visible and disturbing at the level of national protectionism of many powerful countries. The combined efforts of many international airlines to prevent Nigeria’s Air Peace from flying to their countries is not only a case in point, but also a reflection of conscious threat to the maintenance of global peace. For instance, the British Airways’ 6-hour flight from London to Lagos is costlier than its 9-hour flight from London to South Africa. Besides, British Airways has more than 20 flights a week to Nigeria while Britain finds it difficult to allow the Air Peace to fly to London. True, national protectionism is letting other people die to enable one’s self-preservation. This approach can never sustain peace and security in the world. In fact, the British Airways has reportedly reduced drastically the cost of London-Lagos flight by more than 50% in an attempt to frustrate the Air Peace out of business. Many Nigerians believe it is consistent with the trending Euro-American teaching that Africa, particularly Nigeria, must not be allowed to thrive if Europe and America are also to survive. Thus, who and what should survive first: respecting international law and die or seek survival to the detriment of international law?