The use of force in the protection of nationals abroad : a new outlook

Abstract

This thesis studies the subject of protection of nationals abroad by force from legal, historical and functional viewpoints. It deals with the subject from the nineteenth century to the present day. The first Chapter traces the historical development of the subject up to the emergence of the United Nations Charter. The rationale that was put forward as a general justification for the protection of nationals by force, legal concepts such as self­ preservation, self-defence and self-help that had been used in postulating a right to use force on behalf of a State's nationals in customary international law is analysed in perspective. The nature and scope of the doctrine and State practice in this area is discerned by reference to the nationality link, by reference to the goals of the State using force and by reference to the nature of the action taken. This analysis is made primarily to indicate the amorphous nature of the doctrine and the excesses that had often occurred during the period. The possible impact of the Hague Conventions of 1907, the Covenant of the League of Nations and the Kellogg-Briand Pact on the subject is also dis­ cussed in this Chapter. The second Chapter analyses the changes that have taken place in theory and State practice in this area since the emergence of the United Nations Charter. The impact of Articles 2 (4) and 51 of the UN Charter on the subject is discussed. A contextual analysis of the subject is made to determine the status of protection of nationals by force in Contemporary International Law. The analysis includes a review of the United Nations Charter norms concerning the use of force as well as other international instruments such as the Declaration of Friendly Relations Resolution, Definition of Aggression Resolution and Declaration of non­ interference in the internal or external affairs of State inasmuch as it relates to protection of nationals by force. A brief ap­praisal of State practice in the post-UN Charter period where claims were made that force was used to protect nationals (1956 Suez crisis, 1965 Dominican Republic intervention and the 1964 Stanleyville operations) is made to discern the trend of State practice and the reactions of the international community in each case. After an integrated analysis, a limited right to use force in the protection of nationals is advocated as permissible in Contemporary International Law where there are gross violations of their fundamental human rights. The third Chapter develops guidelines and criteria to determine the permissibility of the use of force on behalf of nationals in current times. Substantive, procedural and preferential criteria are stated and elaborated as 'frames of references' to assess the legality of the forcible protection of nationals in each case. The final Chapter analyses three specific instances involving the use of force on behalf of nationals in recent times by using the criteria developed in the preceding Chapter. The incidents that are analysed are: (1) The Mayaguez incident where United States forces landed on Cambodian territory to rescue the crew of the ship Mayaguez who were detained by the Cambodians a few days earlier in May 1975, (2) The Israeli use of force in the Entebbe airport incident to rescue its nationals hijacked by the terrorists to Uganda in July 1976 and (3) The unsuccessful attempt by the United States to rescue its diplomats held hostage by Iran in April 1980. The Conclusion suggests that even though there has been excesses and abuses in this area, in the past, there should not be an absolute prohibition on the use of force to protect nationals in Contemporary International Law. A proposal is made for a new outlook on the subject of forcible protection of nationals abroad. This new view is based on the need to protect the fundamental human rights of nationals or prevent them from being violated in times of crisis. The lack of an effective international machinery to prevent or stop such violations calls for the need to permit a limited unilateral use of force on behalf of nationals in Contemporary International Law inasmuch as inaction on the part of the protecting State would amount to foregoing the human rights of its nationals.