The Use of Force to Protect Nationals Abroad
| Published date | 01 April 1977 |
| DOI | 10.1177/004711787700500501 |
| Date | 01 April 1977 |
| Author | Michael Akehurst |
| Subject Matter | Articles |
3
THE
USE
OF
FORCE
TO
PROTECT
NATIONALS
ABROAD
By
DR.
MICHAEL
AKEHURST
THE
Israeli
raid
on
Entebbe
airport
in
July
1976
is
the
latest
in
a
number
of
episodes
which
have
raised
the
question
whether
international
law
permits
a
State
to
use
force
in
order
to
protect
its
nationals
abroad.
Such
interventions
were
frequent
in
the
nine-
teenth
century,
but
some
authors
argue
that
they
are
now
forbidden
by
the
United
Nations
Charter.&dquo;
Other
authors
disagree.2
Article
2
(4)
of
the
United
Nations
Charter
requires
members
of
the
United
Nations
to
&dquo;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
incon-
sistent
with
the
purposes
of
the
United
Nations&dquo;.
A
few
authors
interpret
Article
2
(4)
narrowly,
arguing
that
the
use
of
force
for
a
wide
variety
of
purposes
(e.g.
as
a
sanction
for
a
breach
of
inter-
national
law)
is
not
aimed
against
the
territorial
integrity
or
political
independence
of
any
State
and
is
not
inconsistent
with
the
purposes
of
the
United
Nations;3
such
an
interpretation
could
easily
be
used
to
support
the
view
that
it
is
lawful
to
use
force
to
protect
nationals
abroad.
But
the
narrow
interpretation
of
Artile
2
(4)
is
rejected
by
most
writers,
who
regard
Article
2
(4)
as
im-
posing
a
total
ban
on
the
use
of
force
in
international
relations
except
when
another
provision
of
the
Charter
recognizes
or
creates
an
exception
to
that
ban.4
This
broad
interpretation
of
Article
2
(4)
is
confirmed
by
the
travaux
prgparatoires
of
the
Charter,5
and
1
See,
for
instance,
Jessup,
A
Modern
Law
of
Nations
(1946),
p.
169,
and
the
authors
cited
in
note
11
below.
See
also
Wehberg
and
Verdross,
cited
in
note
4
below.
2
See,
for
instance,
Oppenheim,
International
Law
(eighth
edition
by
Lauterpacht,
1955),
vol.
1,
p.
309;
Bowett,
Self-Defence
in
International
Law
(1958),
pp.
87-105;
Brierly,
The
Law
of
Nations
(sixth
edition
by
Waldock,
1963),
pp.
427-8;
Fitzmaurice,
(1957)
92
Hague
Recueil
1
at
127 et
seqq.;
Hyde,
International
Law
(second
revised
edition,
1947),
pp.
646-9.
3
Notably
Julius
Stone,
Aggression
and
World
Order
(1963),
pp.
43,
95-6.
4
See,
for
instance,
Brownlie,
International
Law
and
the
Use
of
Force
by
States
(1963),
pp.
265-8;
Wehberg,
(1951)
78
Hague
Recueil
7
at
70
et
seqq.;
Verdross
(1953)
83
Hague
Recueil
1
at
14
Oppenheim,
International
Law
(seventh
edition
by
Lauterpacht,
1952),
vol.
2.
p.
154;
Akehurst,
A
Modern
Introduction
to
International
Law
(second
edition,
1971),
pp.
313-4.
5
See
the
works
by
Brownlie
and
Oppenheim
cited
in
the
previous
note.
4
in
recent
years
has
received
the
support
of
most
of
the
member
States
of
the
United
Nations.6
6
However,
a
broad
interpretation
of
Article
2
(4)
does
not
necessarily
mean
that
the
use
of
force
to
protect
nationals
abroad
is
illegal,
because
Article
51,
one
of
the
exceptions
to
the
ban
on
the
use
of
force
laid
down
in
Article
2
(4),
permits
members
of
the
United
Nations
to
use
force
in
self-defence,
and
it
could
be
argued
that
the
use
of
force
to
protect
nationals
abroad
is
a
form
of
self-defence.
Writers
like
Bowett,
who
regard
Article
51
as
preserving
the
nineteenth-century
law
on
self-defence,7
naturally
have
no
difficulty
in
justifying
the
use
of
force
to
protect
nationals
abroad
as
a
form
of
self-defence.°
Even
a
narrow
interpretation
of
Article
51,
which
would
allow
States
to
use
force
in
self-defence
only
after
an
armed
attack
has
occurred,9
would
not
necessarily
be
fatal
to
the
view
that
it
is
lawful
to
use
force
to
protect
nationals
abroad,
because
it
could
be
argued
that
an
armed
attack
on
nationals
abroad
is
equivalent
to
an
armed
attack
on
the
State
itself,
since
population
is
an
essential
ingredient
of
Statehood. 110
However,
most
of
the
authors
who
adopt
a
narrow
interpretation
of
Article
51
do
not
consider
that
it
is
lawful
to
use
force
to
protect
nationals
abroad;
they
believe
that
force
may
be
used
in
defence
of
a
State’s
nationals
only
when
they
are
present
on
the
national
State’s
territory.’:’
There
is
clearly
a
good
deal of
disagreement
about
the
inter-
pretation
of
Articles
2
(4)
and
51.
It
is
therefore
proposed
to
examine
State
practice
during
the
years
since
1945
in
order
to
see
what
light
it
throws
on
the
legality
or
illegality
of
the
use
of
force
to
protect
nationals
abroad.
Before
examining
State
practice,
however,
it
will
be
advisable
to
distinguish
two
situations
which
are
not
really
relevant.
First,
the
use
of
force
by
a
state
to
protect
its
nationals
in
its
own
territory
(or
in
territory
which
it
claims
as
its
own)
is
obviously
different
from
the
use
of
force
by
a
State
to
protect
6
See
the
survey
by
Fonteyne
in
Lillich
(ed.),
Humanitarian
Intervention
and
the
United
Nations
(1973),
pp.
209-218;
Meeker,
(1963)
57
A.J.I.L.
515
at
523.
7
Bowett,
Self-Defence
in
International
Law
(1958),
pp.
184-193.
8
Ibid.,
pp.
87-105.
9
This
is
the
interpretation
supported
by
the
majority
of
the
members
of
the
United
Nations;
see
the
survey
by
Fonteyne
in Lillich
(ed.),
Humanitarian
Intervention
and
the
United
Nations
(1973),
pp.
211-213.
10
Bowett,
op.
cit.,
pp.
91-4.
Cf.
van
Panhuys,
The
Rôle
of
Nationality
in
International
Law
(1959),
p.
114.
11
See,
for
instance,
Brownlie,
International
Law
and
the
Use
of
Force
by
States
(1963),
pp.
289-301,
especially
p.
299;
Delivanis,
La
légitime
défense
en
droit
international
public
moderne
(1971),
pp.
127-8.
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