PROJECT ON PUBLIC INTERNATIONAL LAW

TOPIC- THE PROTECTION OF NATIONALS ABROAD

SUBMITTED TO- PROFESSOR KUMARJEET PEGU

SUBMITTED BY- AYUSHMAN NAG

ROLL NUMBER- 1783035

SEMESTER- 5th

STREAM- B.A LL.B.

BATCH OF – 2017-22
 ACKNOWLEDGEMENTS

I would like to express my thanks and gratitude to our Professor Anirudh Choudhary for his
guidance and support in completing my project and would also like to convey him my
deepest gratitude for allowing me to work on this topic.
I would also like to extend my gratitude to our librarian for his help, all the faculty members
who took some moments out of their precious time, along with my friends who have helped
me immensely in the completion of my project.
I am also sincerely obliged in thanking all the staff members who have helped me in the
accomplishment of my project.
 ABSTRACT

International law deals with the relationship between the different nation states and also
among the nationals of the different States themselves.
The present project deals with the doctrine of “protection of nationals abroad” which is one
the most highly debated doctrines in the context of international law. The main motive behind
this doctrine has been contended to be for the object of self-defense enshrined under Article
51 of the UN Charter, for protection of a State’s nationals and properties abroad.
But it is contended that this doctrine goes against the very principle of Article 2(4) of the UN
Charter. It is contended that this doctrine violates the territorial sovereignty of other nation
States.
Before WWII, the powerful countries frequently violated the territorial sovereignty of other
States either for the protection of its individuals or its properties or in the garb of it. But after
WWII, when the UN Charter came into force an attempt has been made to reign in this
doctrine by Article 2(4) of the Charter.
One of the classical examples of the application of the doctrine of protection abroad is the
case study of the Israeli raid on the Entebbe airport in 1976.
Lastly, it is still a matter of great debate of the usefulness and the desire for this doctrine and
the repercussions arising out of it.
 INTRODUCTION

International law, in the traditional sense, was regarded as the law governing the relationships
among the various sovereign States. However, with the ever-increasing complexities and the
rapid strides made in the international forum, the traditional definition of international law
has become obsolete.
According to Oppenheim’s definition of international law,” International law is the body of
rules which are legally binding on the States in their intercourse with each other. The
international organizations and, to some extent, also individuals may be the subjects of rights
conferred and duties imposed by international law.”1
International law can be sub-divided into two categories:
1. Public international law- This branch of international law governs the relationships
between the various nations States and the dispute resolution among them as per its
principles.
2. Private international law- This branch governs the relationships and the disputes
between the individuals.

International law consists of various doctrines, which the various States use for their
interaction among themselves as well as for their self-defence, ex- the doctrine of “Pacta Sunt
Servanda”, “Rebus Sic Stantibus”, etc. One of such doctrines of international law regarding
the matter of self-defence of a country is the doctrine of “protection of citizens abroad”.

1
Robert Jennings, Arthur Watts, Oppenheim’s International Law, 9th Edition, P.G.-4, 2008.
 DOCTRINE OF PROTECTION OF NATIONALS ABROAD

In today’s world, there is a huge inter-connection among the sovereign States, be it

economically, socially, for education or other purposes. So, nationals of one State are present
in other States for such purposes. Therefore, as per the principles of public international law,
it is the obligation of the States to give protection to the nationals of other States in their
territory.
In this context, when any State fails to give adequate protection to nationals of other Sates
within its territory, then intervention by that State into the latter’s territory is allowed for
providing protection to its nationals.
This theory is a very delicate but weighted concept in the sphere of public international law.
This particular doctrine has been a grey area for study for a very long time. Although a lot of
debate has been done, still this continues to be a complex issue and it is expected that the
utility of this will only increase with the further passage of time. This doctrine finds its place
under the category of self-defence of public international law.
Protection of a State’s nationals beyond its borders is legally justified by this doctrine.2It
indicates one State’s intervention into another State’s territory, represented by its military, for
the protection of its nationals in the latter.
Eminent British jurist Sir Humphrey Waldock expressed three prerequisites for claiming this
right-
1. Imminent threat of injury to the nationals
2. The territorial sovereign’s inability to provide protection to them
3. Measures taken for protection restricted only for the protection of the nationals from
injury.3
Over the past decades, more codification of the doctrine has been done and now it is
generally termed as the Non-Combatant Evacuation Operations (NEO).4

2
Tom Ruys, The “Protection of Nationals” Doctrine Revisited, 13th Edition, p.g.- 233-234 (2008)
3
Sir Humphrey Waldock, The Regulation of the Use of Force by Individual States in International Law, Vol. 81,
5th Edition, p.g.- 455, 467 (1952).
4
DEP‘T OF NAT‘L DEFENCE, Joint Doctrine Manual: Non-Combatant Evacuation Operations,
B-GJ-005-307/FP-050 (Ottawa: National Defence, Can., 2003), https://lawsdocbox.com/amp/80152285-
Immigration/Doctrine-of-the-protection-of-nationals-abroad-rise-of-the-non-combatant-evacuation-
operation.html, Last visited on Sept. 12, 2019, 10:10 PM
 JUSTIFICATION

As per article 2(4) of the United Nations Charter, the countries must not violate the territorial
sovereignty of another country at any cost. Use of force against the countries is not allowed
under the international law and it can include a country’s territory.
In spite of this, the justification behind this principle is enumerated in Article 51 of the UN
Charter which allows a nation to use self-defence under the conditions specifically mentioned
by Sir Humphrey Waldock.
Therefore, this doctrine does not impugn the provisions of Article 2(4) as because the
protection of the nationals abroad comes under the purview of self-defence which is
enumerated under Article 51 of the Charter. This reflects the placing of the doctrine in public
international law under the notion of self-defence.
 HISTORICAL OVERVIEW

The States earlier exerted a right of rescuing their nationals and property, which were present
in other countries, before the adoption of the UN Charter. Even during the period of the Cold
War, the powerful Sates (mainly the USA and the USSR) applied this pretext as and their
superiority for intervention, intended for entirely different objectives and such interventions
were met with oppositions.5
Before the coming of the UN Charter, i.e., 1945, interventions of such kinds were permitted.6
During the nineteenth century, this principle was generally accepted by the States that it was
up to them to decide where there existed particular circumstances warranting seeking remedy
by the armed forces.7Traditionally, state responsibility contemplated individuals as objects,
and not subjects of international law. Thus, they had no rights of their own and it was
considered to be the State’s extension. So, on the commission of any wrong, the injured State
had the right to redress the wrong either-or diplomatic process or through actual war.8
Customary international has for a long time allowed the use of force by one State upon
another for protecting the nationals and property of that State. Before World War I, this was
reaffirmed at the Hague Convention no. II of 1907, wherein the major powers insisted on
retaining this power, excepting the case of contract debts. 9 This doctrine was further sharply
curtailed because of two factors- League Covenant of 1920 and the Pact of Paris of 1928. the
loopholes in these were addressed by the Kellogg- Briand Pact. This Pact prohibited
absolutely any resort to war for purely national objects, excepting self-defence.10

5
Tarcisio Gazzini, The Changing Rules on the Use of Force in International Law, p.g.- 170 ,1st Edition,
(Manchester University Press 2005).
6
Tom Ruys, The Protection of Nationals Doctrine Revisited (2008) 13 (2) Journal of Conflict & Security Law, p.
235
7
C. Fenwick, Intervention: Individual and Collective, Vol.-39, Issue 5, p.g.-645-647 (1945)
8
E. Borchard, THE DIPLOMATIC PROTECTION OF CITIZENS ABROAD, p.g.- 448-53, (1915)
9
supra at 4
10
id
 POST WW2 SCENARIO

However, after the adoption of the UN charter in 1945, the scenario has changed. After the
UN charter came into force, the new convention is that a country can only carry out territorial
operations or evacuations in another country, only when the other country consents to such
operation or evacuation.
Legality of this doctrine is highly debatable. Some scholars advocate the view thatuse of
force for the protection of a country’s citizens abroad is legitimate, but this is uncertain. 11
Article 2(4) of the UN charter states that countries must not violate the territorial sovereignty
of other countries at any cost12. The use of force in any way against countries is not allowed
under international law, and it include a country’s any territory.13 But, scholars supporting
this doctrine contend that such intervention is merely for the purpose of self-defence, and not
any other ulterior motive.14
It is a very generally accepted principle that the provision enshrined in Article 2(4) of the UN
Charter is a part of the customary law and hence they are a part of the jus cogens norms. 15
This doctrine of forcible self-help to the nationals abroad also met with restrictions, it did not
develop unrestrained and faced with another well recognized principle, the principle of non-
intervention. Intervention, usually defined as one State’s dictatorial interventioninto another
State’s matters resulting in the hampering the latter’s independence16 is against the principles
of international law and hence is restricted.17

11
James Crawford, Brownlie’s Principles of Public International Law, 8th Edition p.g.-754-755 (2012)
12
UN Charter Art. 2(4)
13
USA vs IRAN, 1981 ICJ
14
Supra
15
Christine Gray, International Law and the Use of Force, Vol.29, 3rd Edition (2008).
16
J.L.Brierly, The Law Of Nations, 6Th Edition, p.g.-402 (1963)
17
Id.
 CASE STUDY

THE ISRAEL RAID ON ENTEBBE, 1976

FACTS OF THE CASE:

An Air France plane was hijacked by terrorists, going from Israel to France, on 27th June,
1976. the hijackers were a part of a group known as the PLO(Palestinian Liberation
Organization). The plane was landed in Libya first, and lastly at Entebbe, Uganda. The
hijackers demanded some of the terrorists who were jailed in Israel, West Germany and other
States to be released. After a few days, through negotiations, they freed all the non-Jewish
passengers, whereas the Jewish passengers were kept as hostages. The Israeli government
requested the Ugandan government to take measures for freeing the prisoners, but the same
was denied by the Ugandan government.
After this, on 3rd July, Israel launched an operation where airborne Israeli commandos were
landed in the Entebbe airport without the authorization of the Ugandan government. This was
followed by a brief exchange of intense firing between the Israeli commandos and the
Ugandan soldiers resulting in the freeing of the hostages and were brought to Israel,along
with killing and wounding of some Ugandan soldiers, coupled with destruction of a few
Ugandan aircrafts in the process.18

BEFORE THE UNITED NATIONS SECURITY COUNCIL:

The UNSC, thereafter, called a Meeting for discussing Israel’s actions.19Uganda contended
that Israel had engaged in an “act of aggression” by violating its sovereignty and territorial
integrity. Israel contended that there was a failure on the part of the Ugandan government to
abide by the duty imposed by international law for the protection of and determination of the
safety of the foreign nationals and in their compliance with the terrorists. Thus, the
intervening act was an “act of self-defense”. 20
Two draft resolutions in the UNSC followed this- the first by Benin, Libya and
TanzaniacondemningIsrael’s violation of Uganda’s sovereignty and territorial integrity, with
an addition that Israel should adhere by Uganda’s just claims and compensate for the
destruction wreaked upon.The second was by the USA and the UK which condemning the

18
Eleanor C. McDowell, International Legal Materials, Vol.15, p.g-1224 (1976).

19
Roderick D. Margo, Legality of the Entebbe Raid in International Law, Vol. 94, p. 309 (1977).

20
Mitchell Knisbacher, The Entebbe Operation: A Legal Analysis of Israel’s Rescue Action Vol. 12 (1) The
Journal of International Law and Economics, (1977).
hijack and the other acts which threatened passengers’ lives as well as of the crew coupled
with the international civil aviation’s safety, and thus calling States for taking necessary
actions for the prevention and punishment of such incidents. 21None of the resolutions were
passed, with the first being withdrawn.
The USA opined that although Israel’s action constituted a temporary breach of Uganda’s
territorial sovereignty and as per international law norms, such a violation is not allowed, but
such a violation was coupled with the imminent threat of life to Israel’s nationals who were
taken as hostage and thus held Israel’s actions as lawful and justified. UK’s held an
ambiguous position; looking for Israel’s clarification. France opined that violation of
international law and the act of infringing Ugandan territory by Israel was not intentional as
its motive was securing the lives of its citizens. Japan opined Israel’s act as an actviolating
Ugandan territory and sovereignty.
Many other States, like Uganda, Kenya, India, China, Pakistan, Soviet Union, condemned
Israel’s actions. Their argument was that Israel’s action constituted an “act of
aggression”,violating Article 2(4) of the UN Charter as well asArticle 51, because an “armed
attack” was the major pre-requisite for claiming a right of self-defense, but in the present case
no such armed attack was there.
Finally, no resolution could be adopted for the lack of consensus among the various States.

21
Francis A. Boyle, The Entebbe Hostage Crisis, Vol. 29 (1) Netherlands International Law Review (1982).
 CONCLUSION

From the above discussion and after going through the case study, it can be inferred that
although every State is under an obligation under Article 2(4) respect other nation’s territorial
sovereignty, still there can be certain circumstances where strict adherence to such norms
cannot be followed. Adherence to such norms depends upon the factual circumstances and
action is to be taken as required.
Further, under Article 51 of the UN Charter a country has got the right of self-defense. But
what is meant by right of “self-defense” is not static and is also subject to the facts and
circumstancesof each case. As is the responsibility of a State to not to infringe the territorial
sovereignty of a State, similarly there is an opposite obligation on the other State to ensure
the security and safety of the nationals of other States in its territory.
Now, when a State fails in its obligation to provide such security or safety to the foreign
nationals or, as in the above mentioned case, declines to provide or take appropriate
measures, then it is the duty of the State, whose nationals or property are endangered, to
ensure their protection, but such measure taken by the State should be proportionate to the
danger impending upon its nationals.
Thus, it can be concluded that although a State has an obligation under Article 2(4), being a
jus cogens norm, but it also has a right for the protection of its nationals and further of self-
defense under Article 51 of the UN Charter. So, this doctrine is a necessary evil in
international law domain, and its application is subject to the ground facts and conditions of a
particular case.
 BIBLIOGRAPHY

1. https://www.tni.org/en/article/article-51-self-defense-and-its-limits-in-the-un-charter
2. “Use Of Military Force In The Protection Of Nationals Abroad” by Preeti Lolaksha
Nagaveni
3. “Doctrine of the protection of nationals abroad: Rise Of The Non- Combatant Evacuation
Operation” By Andrew W.R. Thomson

4. “Use Of Force For The Protection Of Nationals Abroad: The Entebbe Incident” By
David J. Gordon