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Doctrine of the Protection of Nationals Abroad: Rise of the Non-Combatant Evacuation Operation

Publication Title

Washington University Global Studies Law Review

Abstract

The purpose of this Article is to show that the doctrine of the protection of nationals abroad exists within the right of self-defense; with contours of the doctrine shaped in recent years by the practice of states in their conduct of NEO. This right is limited to the removal of the intervening state‘s citizens abroad through the use of force subject to necessity and proportionality in order to move the foreign nationals to a safe location, Part II discusses the origin of the doctrine of protection of nationals abroad and the legal bases that have been used to justify that protection. It also considers the impact of the misuse of the doctrine throughout its evolution. This explanation includes the claim that the protection of nationals abroad does not impugn Article 2(4) of the U.N. Charter which prohibits a state‘s use of force against another state and the justification that the protection of nationals is an exercise of the right of self-defense which complies with a state‘s right of self-defense enshrined in Article 51 of the UN Charter. It assesses the doctrine‘s place in self-defense at customary international law. Furthermore, this Article reviews state practice and the debate that has ensued among states and academics when states have asserted the doctrine to justify their use of force abroad. This Article also assesses the difficulties in determining the legality of the doctrine based upon the divided opinion of states. Part III surveys the military operational doctrine pertaining to NEO. Part IV assesses the recent invocation of the doctrine by the Russian Federation in its conflict in South Ossetia. Part V provides an analysis of the how NEOs as state practice have acted to limit the extent of protection to nationals abroad. Finally, in Part VI this Article concludes with an assessment of the state of the doctrine in contemporary international law.

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