The events currently unfolding in Iran and across the region have sparked lively debates among international lawyers regarding the lawfulness and legitimacy of “Operation Epic Fury” and its aftermath. In a recent Just Security article, Yuval Shany and Amichai Cohen suggested those events may signal a resurgence of a right to self-preservation understood as overriding the constraints of positive international law. While some recent statements by members of the international community are indeed alarming, I do not believe that they signal the resurgence of such a right. Rather, what we are witnessing is the misuse of the language of self-preservation in ways that risk undermining the very framework of positive international law. This brief response does not seek to argue that Israel cannot consider Iran an existential threat. As several courts have noted in different cases, “the national authorities are in principle in a better position than the international judge to decide (…) on the presence of such an emergency” (see European Court on Human Rights (ECHR), Ireland v. UK, 1978, para. 207). My objective here is simply to recall that even the raison d’État must remain limited by international law (see ECHR, Streletz v. Germany, 2001, para. 72).
Admittedly, some recent statements may cast doubt on that assumption. While the French president recently recalled that the United States and Israel have acted “outside of international law,” he underlined that Iran “bears primary responsibility for this situation,” adding that the regime of the mullahs poses “existential threats to global security.” Such a statement echoes the one delivered by Israel’s prime minister on Feb. 28 and repeatedly invoked by the Israeli authorities, including to justify conduct widely regarded as violations of international law. In advisory proceedings at the International Court of Justice (ICJ) regarding its obligations related to the U.N. and others in Occupied Palestinian Territory (OPT), Israel suggested that its obligations are “neither absolute nor qualified” because the rules of international law “are intended to safeguard the sovereignty and security of States” (para. 5 of its written statement). Referring to former U.S. Ambassador to the U.N. Jeane Kirkpatrick’s famous dictum that the U.N. Charter “is not a suicide pact,” Israel extended this conclusion to the whole of international law, stating that it “prescribes the right and obligation of a State in acting to defend its existence.”
By doing so, Israel reframed what would otherwise appear to be violations of international law as compliance with its rules. This reasoning rests on the assumption that legal rules ultimately revolve around the self-preservation of the States that created them. As Shany and Cohen recalled, “the 19th-century right of self-preservation represented the apex of Westphalian sovereignty, serving as an ‘absolute’ or ‘inherent’ right that preceded – and often superseded – the formal obligations of international law.” As I have argued elsewhere, although international law ultimately rests on a broader logic of self-preservation, this does not amount to a freestanding right capable of overriding other rules. Rather, self-preservation operates as a structural principle embedded within the legal order, one that helps explain the existence and coherence of its rules while remaining constrained by them. In this sense, it is closer to the general principles identified by the International Law Commission which are “intrinsic to the international legal system” (Draft conclusion 7(1)). In more philosophical terms, it may also be understood as what Immanuel Kant described as transcendental knowledge: a form of knowledge that allows one to outline the whole plan “in an architectonic manner – that is, according to principles – while at the same time guaranteeing the completeness and solidity of all the parts that compose the edifice” (translated from Critique de la raison pure, Paris, Félix Alcan, 1905, p. 56).
Self-preservation should therefore not be invoked as a justification for distorting or bypassing the existing rules of international law, but rather as a reminder that these rules should already provide the means for States to secure their own existence while respecting that of others. This does not mean that the existing rules always provide a satisfactory response to existential threats as perceived by particular States. It means only that unilateral reinterpretations of those rules cannot provide a sustainable solution.
How Existential Threats Distort International Law
States are often tempted to elaborate a bold interpretation of positive international law when they believe they are facing an existential challenge. Shany and Cohen themselves point to the “inherent” character of the right to self-defense to explain recent attempts to stretch this right beyond its traditional limits, notably towards preemptive self-defense. Such developments challenge the well-established principle that exceptions to the prohibition of the use of force must be interpreted restrictively. Taken to its logical conclusion, this reasoning risks turning a narrow exception into a flexible justification for unilateral action, thereby distorting the positive law governing the use of force. When Israel justified the destruction of the Iraqi nuclear reactor Osirak in 1981, it declared that it had “performed an elementary act of self-preservation” and exercised its right to self-defense (§ 58, S/PV.2280). The U.N. Security Council, however, unanimously “[s]trongly condemn[ed] the military attack by Israel in clear violation of the Charter.” Yet such “crystal clear” condemnations have become increasingly rare. This evolution cannot be explained by the mere invocation of arguments relating to self-preservation. The fact that a rule ultimately serves – or may serve – self-preservation does not permit States to distort its meaning in order to reach that objective. Rather, recent developments may point to a gradual transformation of the rules through evolving State practice (see § 186 of the 1986 Nicaragua case).
Although the current state of international law appears unfavorable to such claims, States may want to invoke the infamous “fundamental right to survival” in the hope of prompting a development in the law. The ICJ itself referred to this notion – by a narrow majority – in its advisory opinion on the Legality of the Threat or Use of Nuclear Weapons (§ 96). Similar rhetorical strategies can be observed in other areas of international law, often in contexts that are far more peaceful, when a legal principle is invoked not to alter existing rules but to reinforce their content by attributing to them a broader purpose – namely, the preservation of the very existence of States. In another ICJ advisory proceeding brought by States facing existential threats from sea-level rise, Obligations of States in respect of Climate Change, several States sought to link the aforementioned “fundamental right to [State] survival” with other rules of international law, such as the principle of State continuity (see El Salvador’s pleadings, § 17), the Paris Agreement (see § 4.42 of the written submission of the Dominican Republic), or even reparations (see § 111(c) of the written comments of the Cook Islands). The Court itself never referred to the State survival argument in its advisory opinion. Instead, it simply addressed the questions before it through an ordinary interpretation of the applicable international law rules – without relying on a concept that has deeply divided the doctrine the only time it was invoked by the Court.
The appeal of such distortions lies precisely in their ability to keep these claims within the framework of international law. However, when these arguments fail or are rejected, States confronted with existential threats may be tempted to go one step further and conceive self-preservation as a fundamental right that makes compliance with international law appear optional.
When Existential Threats Become a Justification for Ignoring International Law
A different step is sometimes taken when self-preservation is invoked not to reinterpret the law, but to set it aside altogether. One of the earliest and most influential formulations of this doctrine can be found in the words of former U.S. Secretary of State Dean Acheson, reflecting on the Cuban Missile Crisis and addressing the legality of the naval blockade of Cuba: “No law can destroy the State creating the law. The survival of States is not a matter of law” (p. 14). Here, self-preservation is not a fundamental right but rather a phenomenon operating outside the law and undermining its core principles. By assimilating this argument to raison d’État or realpolitik, Acheson’s approach deprives positive law of any meaningful capacity to regulate such conduct. In doing so, it ultimately endangers the very existence of international law, which could be set aside whenever a State considers such measures necessary for its survival.
This was certainly not the intention of the early authors who developed the theory of the “fundamental rights of States,” with the right to self-preservation occupying a central place among them. One should not forget that their primary concern was precisely to demonstrate the very existence of international law (Brierly’s critique captures it perfectly, pp. 3 et seq.). Such a project would have been difficult to sustain had they simultaneously endorsed a justification comparable to raison d’État. The aforementioned theory thus served to describe the dominant paradigm of positive international law: a legal order structured around sovereign States, whose main concern was – and still is – the preservation of their existence. Attempts to codify the rights and duties of States reflect this understanding. The 1949 commentaries on the Draft Declaration on Rights and Duties of States shows that the International Law Commission progressively reframed the right to self-preservation to a “postulate or presupposition underlying the whole draft Declaration.” Under this approach, self-preservation functions as a principle rather than a right. As such, it does not allow a State to disregard international law when facing an existential threat, since the rules themselves should already provide the necessary means for safeguarding its existence.
In the ICJ advisory proceedings concerning Israel’s obligations to the U.N. and others in the OPT, Israel’s position sought to give precedence to its security interests over its obligations under international humanitarian law. The Court, while remaining “conscious of Israel’s security concerns,” nonetheless emphasized that “the protection of security interests is not a free-standing exception permitting a State to depart from the otherwise applicable rules of international humanitarian law.” Instead, the Court added, “[a]ny limitations on Israel’s obligations under international humanitarian law based on its security concerns must be grounded in a specific rule” (§ 89) (emphasis added). In other words, it cannot be argued that such interests are ignored by the rules that a State claims to set aside. On the contrary, those rules were themselves shaped with such interests in mind – especially those governing jus ad bellum and jus in bello. As Vaios Koutroulis aptly concluded on behalf of Belgium, which participated as an intervenor in the advisory opinion proceedings: “A State’s military and security interests must be exercised in accordance with international law – not in spite of it” (p. 55, § 15 of the oral pleadings).
The opposite argument advanced by Israel and other States in support of the attack on Iran casts doubt on the very possibility of complying with international law without jeopardizing a State’s own existence. Framed in this way, no viable alternative appears to remain, and violations of positive law risk appearing legitimate. It appears then that we would have to agree with Shany and Cohen about the danger such rhetoric poses to the effectiveness of international law. My argument, however, is that positive international law, far from rejecting self-preservation, incorporates it within its very structure as a means of ensuring the peaceful coexistence of States – rather than undermining it.
Why Self-Preservation Should Not Undermine the Peaceful Coexistence of States
Self-preservation reflects a dialectical dynamic that should neither be underestimated nor overstated. The argument certainly enables States to formulate claims that play a significant role in international law, thereby revealing its influence over the normative process – over the creation, interpretation, and contestation of legal rules. Yet that influence ultimately depends on the consent of other States, which likewise have an interest in ensuring that such claims remain framed and constrained by law. In other words, although self-preservation lies at the heart of the creation and application of positive law, the law in turn exerts its own discipline upon it. What is ultimately required is a balance capable of ensuring the coexistence of all States, rather than conceiving international law as a discipline designed to preserve the existence of one State at the expense of others. The difficulty therefore lies not in choosing between law and survival, but in ensuring that the pursuit of survival does not undermine the legal framework on which the survival of all States ultimately depends. If existing rules prove insufficient to address certain existential threats, the appropriate response should be their progressive development through State practice – not unilateral reinterpretations.
It is therefore the violation of the fundamental principles of international law – those enshrined in the U.N. Charter – that ultimately constitutes an existential threat to all members of the international community. This becomes particularly clear when one considers how existential rhetoric was mobilized by the Russian Federation to justify its invasion of Ukraine on Feb. 24, 2022. According to President Vladimir Putin, Ukraine’s potential accession to NATO posed a threat to Russia’s very existence, thereby justifying the exercise of preventive self-defense (S/2022/154, p. 5). The reasoning ultimately mirrors the arguments advanced by Israel and its allies in recent months with regard to Iran. Yet from Ukraine’s perspective, Russia’s breach of the Charter’s principles has itself been characterized as a denial of its “right to exist.”
The threat posed by violations of these principles extends far beyond the State directly affected. It concerns all those States that rely on the observance of such rules to safeguard their own existence – the “powerless,” to borrow the controversial expression used by Canadian Prime Minister Mark Carney in Davos. In a 2021 statement during U.N. proceedings on multilateralism, for example, Saint Vincent and the Grenadines’ prime minister and minister of foreign affairs described the “small country” as one “whose continued peaceful existence depends on the norms and principles of international law and the multilateral system in which those tenets are enveloped” (S/2021/456, p. 5). Perhaps the clearest expression of this view was offered by Kenya in reaction to Israel’s diversion of a civilian aircraft in Lebanese airspace in 1973:
“Let me add that it is our deep conviction that in the long run nothing so endangers the self-preservation, security and integrity of a nation or a State, especially a small one, as the belief and practice that it does not need to root itself in the strictest possible observance of international law and the Charter, and that it can, even temporarily, dispense with them” (S/PV.1737, p. 4, § 30).
Strong States may be convinced that such a warning does not apply to them. Yet it should not be forgotten that the United States itself once fell victim to the invocation of this “right” to self-preservation, as illustrated by the Caroline incident in 1837. And conflicts waged in the name of “self-preservation” have far-reaching consequences across the globe, eroding international law and the global stability from which powerful States have benefited – perhaps most benefited. As former U.S. Secretary of State Elihu Root observed during the First World War, invoking the words of Chief Justice John Marshall, “[T]he law of nations must be made, not by one nation, but by all nations” (J. B. Scott, The American Institute of International Law: Its Declaration of the Rights and Duties of Nations, 1916, p. 3).
– Jean-Baptiste Dudant, Published courtesy of Just Security.
