The ‘Protection of Nationals’ Doctrine Revisited
* Research Fellow of the Fund for Scientific Research Flanders, Institute of International Law, University of Leuven, B-3000 Leuven, Belgium. E-mail: Tom.Ruys{at}law.kuleuven.be. This paper was presented during the ACUNS Conference in Marseille, 25–26 September 2008. The author wishes to thank Frederik Naert for his helpful comments.
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Abstract |
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Legal scholars as well as states have long disagreed on the compatibility with the UN Charter of the so-called ‘protection of nationals’ doctrine. This doctrine suggests that states are allowed to forcibly intervene in other countries for the protection of their nationals abroad, subject to the following (cumulative) conditions: (i) there is an imminent threat of injury to nationals; (ii) a failure or inability on the part of the territorial sovereign to protect them and; (iii) the action of the intervening state is strictly confined to the objective of protecting its nationals. This article re-examines the available evidence in customary practice, while taking account of two new elements: on the one hand, the increased tolerance on behalf of the international community vis-à-vis unauthorised evacuation operations, and, on the other hand, the critical attitude of many states throughout the UN General Assembly debate on diplomatic protection in 2000. After finding that customary evidence fails to offer conclusive answers, the author makes some tentative suggestions de lege ferenda to find a way out of the existing legal impasse.