On protection of National abroad

On protection of National abroad

Lilian Nyamwaro

There have been a number of debates over the doctrine of protection of nationals abroad. A number of states have occasionally affirmed a right to intervene in situations where their nationals have been in danger in the territory of another state. Some have viewed this as a pretext to interfere in a state’s domestic affairs while some have used reasonable legal arguments under the travaux of the UN Charter to justify their actions. More recently, several authors have identified a growing tendency to condone unauthorised operations aimed at rescuing and protecting nationals threatened by a breakdown of law and order in their host State.[1] This new element in state practice will be discussed in this article and the implication it bears on customary international law.

In evaluating the principle of protection of nationals abroad, this article will discuss three key issues. The first aims to explore the permissible use of self-defence in international law, the second issue looks at what legal argument is used to justify the use of force for the protection of nationals abroad and thirdly through citing of case law, how states have put this into practice.

The UN Charter expresses a general prohibition on the use of force. It states that:

‘All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations’.[2]

The travaux préparatoires of article 2(4) exposes an ‘absolute prohibition’ designed to ensure that there are no loop holes[3], a view shared by many legal scholars such as Charney[4] and Dinstein[5].

There are two exceptions however to Article 2(4) on the prohibition of the use of force. The first is under the authorisation of the Security Council in accordance with chapter VII of the UN Charter and the second is under Article 51 of the UN Charter which facilitates the right to individual or collective self-defence if an armed attack occurs against a member state of the UN.  Article 51 of the UN charter states that:

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.[6]

One might argue that the meaning of Article 51 seems clear, in limiting the use of force only in self-defence if an armed attack occurs against a state. However, this has been undermined by the different interpretations of Article 51 as to what amounts to an armed attack. The definition of an armed attack is broad as established in the Nicaragua Case,[7] where the ICJ in defining an armed attack said that this involves, “the sending by or on behalf of a state of armed bands, groups, irregulars or mercenaries and a states substantial involvement therein”.[8] This was later re-affirmed by the ICJ in the Oil platform case.[9]

The use of force for protection of nationals is uncommon but not new to the international scene. The Suez incident (1956)[10] and the Lebanon incident (1958)[11] were key indicators to the extent states would go to protect their nationals abroad. In all these cases, the states involved relied upon self-defence as a legal justification for their actions and ‘interpreted article 51 of the UN charter as allowing the forcible protection not only of a states territory but also of its nationals abroad’.[12]

The doctrine of protection of nationals is quite ambiguous and there is no legal definition to this principle. The principle of protection of nationals refers to the forcible military intervention into the territory of state A by state B with the aim of protecting and rescuing the nationals of state B during an armed conflict in state A. The protection of nationals is defined by legal scholars using the three collective requirements as reiterated by Sir Humphrey Waldock. He states that, ‘(1) there must be an imminent threat of injury to nationals; (2) a failure or inability on the part of the territorial sovereign to protect them, and; (3) the action of the intervening State must be strictly confined to the object of protecting its nationals against injury.’[13]

There is little doubt that intervention of this type has previously been permitted [14]  especially in the early days post 1945. One can argue that the use of force in self-defence of a state in protecting its nationals does not infringe the provisions of article 2(4) of the UN Charter since it does not impair the territorial integrity or political independence of a state; it merely rescues nationals from danger which the territorial state cannot prevent.[15] A second and probably more widespread approach holds that it constitutes an exercise of the right of self-defence.[16] Legal scholars such as Bowett advocate that there is a broader pre-existing customary right of self-defence which inter alia extends to the protection of nationals abroad. In addition to this, one can also argue that an attack against nationals abroad is an attribute to an attack on a state therefore putting article 51 of the UN charter in its right context. The reason for this is simply that the nationals abroad do form part of a state’s population and are therefore entitled to protection under the provision of article 51 of the UN Charter.

For the purpose of this article, it is important to examine whether the above doctrine is a principle that has been developed under customary international law. Customary international law refers to those aspects of international law that have been derived from customs, treaties and general principles on law. Customary international law is made up of two elements, opinio juris and state practice.  Opinio juris refers to a particular rule or practice that is legally required of a state. To put this into context, states can only use force in self-defence if there has been an armed attack upon them as stated in article 51 of the UN charter. State practice on the other hand refers to an international act that has been constantly and uniformly repeated over a long period of time.[17]   Article 38(1) (b) of the ICJ statutes speaks of a general practice as opposed to a universal practice of states where the most important aspect is not the number of states involved but the general practice of those states whose interests are actually affected.[18]   In the North Sea Continental Shelf Case, the ICJ asserted that in order to establish a rule of customary international law, state practice has to be virtually uniform, extensive and representative.[19] This means that the number of states is less consequential than is the identity of the states involved. Each alleged rule must therefore be examined and assessed in each individual circumstance. This will be illustrated below through relevant case law.

There have been numerous cases where states have invoked the right to self-defence in protecting their nationals abroad. The most notable and debatable cases are; Israel’s intervention in Entebbe and the US intervention in both Panama and Grenada. These cases illustrate both strengths and weaknesses of the doctrine of protection of nationals abroad.

The UK post 1945 was the first country to rely on the ‘protection of nationals’ doctrine which it invoked to justify the Anglo-French intervention during the 1956 Suez crisis. The British authorities pointed to the need to safeguard British lives, arguing that “self-defence undoubtedly includes a situation in which the lives of a State’s nationals abroad are threatened and it is necessary to intervene on that territory for their protection.”[20]  Britain instead was more concerned with the restoration of peace between Egypt and Israel as opposed to its core objectives. The UK’s arguments were seen to lack any substance as none of the Waldock requirements, so rightly emphasised by their Foreign Secretary at the time, Sir. Selwyn Lloyd, were met. None of the British lives were imminently in danger and even if that argument was to suffice, Britain’s actions went too far in what was necessary to protect the British residents when they bombed the Egyptian airport. This clearly illustrates that the right to forcible protection may be open to abuse.[21]

The Entebbe incident if often referred to as a textbook example of this principle of protection of nationals abroad. It concerns a French airline that was hijacked by terrorists and forced to land in Uganda. The terrorist were after Israeli passengers and without authorisation by Uganda, an Israeli armed group stormed the plane, resulting in the killing of the hijackers as well as a small number of hostages. Several Ugandan soldiers were also wounded and about ten Ugandan aircraft were destroyed.[22]   Israel argued that they had acted in self-defence to protect their nationals abroad who were in mortal danger. In applying the three requirements laid down by Waldock, there was an imminent threat of injury to the passengers who were on board that French airbus. Secondly, Ugandan military assisted in separating some 100 non-Israeli passengers [23]  from Israeli ones making the terrorist targets more accessible therefore failing in their part to protect all the passengers and thirdly, although there were some casualties in the rescue attempt, based on the principle of proportionality, there was more gain in the operation outcome compared to the loss that was incurred. It is also important to note that once the operation was complete, the Israeli armed group evacuated Uganda immediately.

In contrast the US intervention in Grenada (1983) does not fulfil the three Waldock principles. In this case, the US used the same defence as in the Entebbe incident. They claimed that approximately 1000 medical students were in danger amidst the coup that ensued in Grenada.[24]  They however remained in occupation, for months, long after the evacuation of the US nationals had been completed.[25] The principle of proportionality requires that any incursion of this nature be terminated as soon as possible with a minimum infringement on the sovereignty of that state.[26]   The US forces remained in Grenada to oversee and influence the installation of a new government. The same case applied in the US invasion of Panama (1989) where the US also intervened under the pretext of self-defence to protect their nationals abroad. The US remained in occupation and installed a new government in Panama just as they did in Grenada. There was also controversy over the existence of an actual danger to the US nationals therefore the principle of imminence was never demonstrated.[27]

Analysis

Protection of nationals as stated earlier refers to a military intervention in the territory of a state aimed at protecting or rescuing the nationals of the intervening state. This type of operations bears some resemblance to the principle of ‘humanitarian intervention’ as they both use force to prevent danger to individuals in the terrain of another state. Why then can’t protection of nationals embrace a different form of humanitarian intervention under customary international law? The answer to this question is quite simple. Most humanitarian interventions are closely linked to gross human rights abuse in a state own territory against a large number of its population as opposed to protection of nationals that primarily deals with the intervening states nationals who represent a very minute proportion of the intervening states population.

Some authors have also argued that the use of force for the protection of nationals abroad is usually on a comparatively small scale therefore does not infringe article 2(4) since the political independence and territorial integrity of a state has not been affected.[28]  Regardless of the scale of the operation, state practice has often viewed such operations with approval. For instance, several member states of the European community expressed their satisfaction with regards to the Israel operation in Entebbe. The UN Security Council also did not determine the raid to constitute an act of aggression or a breach or threat to the peace and security.[29]

In contrast, the General Assembly condemned the US intervention in Panama as one that constitutes a ‘international law’.[30]  The UN Security Council also did not express their approval to the invasion. . ,,.  It can therefore be said that state practice at present does not rule out the use of force in self-defence for the protection of nationals abroad and if consistently practised, it will give rise to a rule of customary international law in statu nascendi. As the law stands at present, there is no rule of international law that facilitates the protection of a state’s own nationals abroad.[31]

Conclusion

There have been numerous interventions by states in the past that have invoked self-defence in the protection of their nationals abroad, but hardly constitute state practice for the purpose of this essay. A majority of these concern French military operations in various African countries.[32]  Of greater interests are the ones such as the Entebbe incidents, although it lacked approval from the Security Council, it was positively received by the states whose interests were affected. This is still a developing principle in international law yet to emerge as a customary international law norm. It is also clear that the doctrine in question can be open to abuse as a pretext for a states intervention in other states domestic affairs. There are also other areas of law that can be used to support the protection of nationals abroad such as the ILC Draft Articles on Diplomatic Protection, though not binding under international law; they do encompass customary international law norms.

While recognising the disparity between states and legal scholars, one cannot ignore the recent state practice interventions aimed at rescuing foreign nationals abroad that have virtually not been challenged. Nevertheless, it is also important not to ignore the fact that none of the above mentioned incidents were mentioned by the Security Council, and with no legal arguments, it makes it hard to refine opinio juris. In light of the above discussion, it is very hard to assert that there exists de lege lata customary right of forcible protection of nationals abroad. To break the impasse, it has been suggested that a shift towards a non-combatant evacuation operation is more credible than the principle of a protection of nationals.

Lilian Nyamwaro is International Relations Officer for Facilitate Global.  She can be contacted at  lilian.nyamwaro@facilitateglobal.org