Does A State Have The Right To Protect Its Citizens Abroad?

There has been a huge amount of analysis, editorials, and speculation about the immediate and potential consequences of the Russia-Georgia conflict, not only for the two countries involved but for the world as we know it.

Much has been written about the disproportionate use of force by the Russian armed forces and the violation of Georgia's territorial integrity and sovereignty. However, the main premise of the Russian argument -- that Russia acted fully within its rights in defending its citizens in South Ossetia -- has gone unchallenged.

Russia, the argument goes, had to resort to the use of force to fulfill its constitutional responsibility to protect its citizens who faced the threat of genocide. In an attempt to claim both international legitimacy and the moral high ground, Russian leaders described the military operation against Georgia interchangeably as either a "peace-enforcement operation" or "a humanitarian intervention."

Arguments Rang Hollow

As events unfolded and the Russian military extended its area of activities far beyond the zone of conflict or "the danger zone for its citizens" and attacked both military and civilian targets in Georgia proper, Russia's "humanitarian" arguments began to ring hollow. However, nobody seemed to be in any rush to remind Russia what responsibility to protect means under international law.

Furthermore, Russia's claims to have the right to protect its citizens abroad were received with a degree of sympathy and understanding by the European Union Presidency and a number of European leaders. The Russian Foreign Ministry said in a press release on August 8 that German Foreign Minister Frank-Walter Steinmeier expressed "understanding" for Russia's motives and actions, just as did Italian Prime Minister Silvio Berlusconi. French President Nicolas Sarkozy, whose country holds the EU Presidency, was quoted as saying that "it is perfectly normal that Russia should want to defend its interests, those of Russians in Russia and Russian speakers outside Russia."

The fact that this announcement came during an open military confrontation is doubly troubling.

On the one hand, it acknowledges the right of one state to intervene under the pretext of "protection" in any other state where its citizens happen to reside, and on the other, it accepts that this intervention may take the form of a military operation, as in the case of Georgia. In other words, Russia claimed special rights in relation to its citizens and ethnic kin abroad, and the international community remained silent in response.

The first to draw conclusions from this silence was Russia itself. At a joint press conference on August 15 with German Chancellor Angela Merkel, Russian President Dmitry Medvedev said that Russia acted fully in accordance with international law to protect its citizens from grave danger, and will act in the same way in the future. He then proclaimed Russia the only guarantor of stability and security in the Caucasus, adding that "any aggression against Russians will be met with a crushing response."

Ukraine and the Baltic states, all of which host large Russian minorities, were quick to draw conclusions.

Protecting Its Citizens

The Latvian parliament issued a statement on August 14 condemning Russia's action in Georgia, which it said raises concerns for "the security, territorial inviolability, and independence of every neighbor state of Russia." The Ukrainian authorities have reportedly ordered an investigation into holders of dual citizenship in Crimea after allegations surfaced that Russia was speeding up the distribution of passports among Crimea's Russian-speaking population.

So, does a state have the right under international law to protect its citizens or ethnic kin residing abroad?

First, it should be noted that both respect for principles of sovereignty and friendly, good neighborly relations require that states refrain from granting citizenship en masse to citizens of another state without that state's explicit consent. Russia violated the above principles by conferring citizenship on residents of Georgia's breakaway regions of South Ossetia and Abkhazia, since Georgia not only did not consent to Russia's handing out passports to its citizens, but also repeatedly objected to it.

Second, states have only limited jurisdiction over their citizens residing abroad, such as consular protection, and this should be exercised with respect for the principles of sovereignty and friendly relations. The primary responsibility for the protection of its residents, including persons belonging to national minorities and those who hold multiple citizenship, lies with the state of residence.

At the same time, protection of human rights is a matter of international concern and other states, including the so-called "kin states," may have an interest in the well-being of certain groups of people, particularly those with whom they share ties of kinship and/or citizenship. This interest, however, does not translate into a right under international law.

Russia, therefore, may have a constitutionally declared responsibility to protect and support Russians abroad, but this does not in any way imply a right under international law to exercise jurisdiction over those persons on the territory of another state, and without that state's consent.

If a state is unable or unwilling to protect persons residing on its territory from mass murder and large-scale ethnic cleansing, then the protection of human life and dignity becomes the responsibility of the broader community of states. This is when the so-called humanitarian intervention, also known as the international responsibility to protect (R2P), may be considered.

Conditions Need To Be Met

For such intervention to be legitimate, however, certain conditions need to be met. These include the existence of undisputed evidence of crimes committed against the civilian population; international authorization for the use of multilateral force; the objective must be limited to preventing human suffering and protecting the population; and the use of force should not exceed that required to achieve the humanitarian objective. Even at the risk of delaying an adequate response to a humanitarian catastrophe, these conditions need to be met in order to avoid the possible abuse of the precedent with damaging consequences for both the principle of intervention and its practical application.

In sum, a state's rights in relation to its citizens or ethnic kin abroad are limited and, as a rule, require the consent of the state of residence. In the event of a major humanitarian catastrophe, the international community has the right to act, provided the conditions listed above are met. Unilateral intervention, particularly on the part of a neighboring state, cannot be justified because the motivation for such intervention will invariably be open to question.

Russia's action in Georgia not only violated international norms and principles, but also demonstrated how and to what extent the notion of humanitarian intervention can be abused. It showed clearly that the misapplication of the R2P can result in a punitive, rather than a humanitarian intervention, and that the unilateral and disproportionate use of force by a single power pursuing its own questionable objectives can lead to a counterwave of ethnic cleansing and human suffering on a massive scale.  

Natalie Wild is a political scientist at Oxford University. The views expressed in this commentary are the author's own and do not necessarily reflect those of RFE/RL