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RIGHT TO LIFE: A COMPARATIVE ANALYSIS OF NIGERIA LAW AND SOUTH AFRICAN LAW
CHAPTER ONE
1 [1]Definition of terms
This research deals with the diplomatic protection of right to life as practised by the Republic of South Africa and Nigeria. According to the International Law Commission’s (ILC) Draft Articles on diplomatic protection
Diplomatic protection consists of the invocation by a State, through diplomatic action or other means of peaceful settlement, of the responsibility ofsec another State for an injury caused by an internationally wrongful act of that State to a natural or legal person that is a national of the former State with a view to the implementation of such responsibility.1
The word ‘diplomatic’, which qualifies the noun ‘protection’, is derived from the word diplomacy, which in turn is derived from the Greek word diploma meaning ‘folded in two.’ In ancient Greece, a diploma was a certificate confirming the completion of a course of studies typically folded into two. In the days of the Roman Empire, however, the word was used to describe travelling documents such as a passport.2 Later, the meaning of diploma was extended to cover treaties and other official documents.3 In the 1700s, the French called that body of officials attached to a
foreign legation the corps diplomatique.4 Today however, the term ‘diplomatic’ has acquired a narrow and technical meaning as well as a broad and popular one. Technically, the term ‘diplomatic’ means ‘relating to, or involving diplomacy or diplomats.’5 In a broad popular sense, the term means tactful, adroit, or ‘using tact and sensitivity in dealing with others.’6
The word ‘protection’ means defence or shelter.7 It is derived from the verb to ‘protect’ which means to shield from danger.8 In ordinary parlance therefore, diplomatic protection is the action taken by a state against another state in respect of an injury to the person or property of a national of the former state caused by an internationally wrongful act or omission attributable to the latter state.9
Since the term ‘diplomatic’ has to do with diplomacy and diplomats, diplomatic protection is not just an action taken by a state to protect its nationals abroad, but also an institution10 and a function.11 This function is performed by diplomatic envoys and missions12 in respect of their nationals who are in need, or are in distress abroad.13 The term is therefore used in this research in a dual sense – as an institution, and as a function. It is used firstly to refer to the institution under customary international law whereby a state may invoke diplomatic action to protect [2]its nationals who have suffered a wrongful act abroad, but have not been compensated or redressed under international law.14 Secondly, it is used to refer to the general assistance rendered by states through their diplomatic missions and agents to those of their nationals who are in need or are stranded in foreign countries.15
Right to lifes are those fundamental and inalienable rights which are essential for life as a human being.16 These rights can not be sold, mortgaged, donated, forfeited or transferred, and should therefore not be taken away by any other person or state.17 As a result, steps must be taken within each and every society to protect them. This is because, right to lifes affirm that all individuals, solely by virtue of being human, have moral rights which no society or state should deny.18 This idea has its classic source in seventeenth and eighteenth century theories of natural rights.19
The protection of right to lifes by nations occupies a centre stage in present day political, legal, social and economic realities the world over. A nation’s right to lifes record has become the yardstick by which its democratic status in the world is measured.20 Foreign nationals are particularly vulnerable to right to lifes abuses. With regard to foreign nationals, diplomatic envoys are accredited to various states and are empowered to safeguard their “interests” generally, which include their right to lifes.21
Consuls are also required to help nationals of their home states in the states of their accreditation.22 They are required to safeguard the interests of minors, and to represent or arrange representation for nationals of their states before the tribunals of the receiving states.23 Moreover, a General Assembly Resolution was adopted in 1985 regarding the right to lifes of individuals who are not nationals of the country in which they live.24 This resolution is one of the international legal instruments spelling out the rights of individuals living outside the country of their nationality.25 The question however is, to what extent can the right to lifes of foreigners be diplomatically protected in the receiving state? This is the focus of this research.
2 Purpose of the research
The main purpose of this research is to examine and assess the extent to which Nigeria and South Africa are prepared to exercise diplomatic protection to safeguard the right to life of their nationals living home and abroad Mobility is a fact of life. People travel to other countries for various reasons.27 One of the most common problems a person may face in a foreign land is that of discrimination.28 Such a person may be discriminated against in his or her daily life simply because he or she is a foreigner.29 This discriminatory attitude may emanate not only from laymen in their private lives, but may also extend to official circles – from national authorities like the police and immigration officials, to legislators and even judges.30
Regardless of the duration of time that foreigners must have lived in a foreign land, and notwithstanding the establishment of families where they have lived,31 they may never be sure of their personal safety nor the safety of their families or property. They may be expelled without due process of the law. They may be arrested and detained without good cause and may be unable to obtain justice because they may be deprived of of their right to fair hearing by being denied the opportunity of going to an appropriate court or tribunal to air their grevances.32 Their property may be seized, confiscated or expropriated without compensation33 and under extreme circumstances; they may be tortured and deprived of their lives without the due process of law.34 This gives rise to the following questions, which must be considered when the rights of foreigners are at hand. What rights do these persons possess? Are there international or municipal laws to protect them? If so, what are those laws and to what extent are they being enforced?
Under international law, it is only the State of the nationality of the injured alien that can invoke diplomatic means or measures to protect its national for injuries suffered in the territory of another state.35 Traditional international law therefore recognises the right of a state to bring a claim against another state in respect of the injury caused to the person or property of its nationals abroad. This is called diplomatic protection. The state that caused the injury is required to pay reparation for the injury caused. As the PCIJ said in the Mavrommatis Palestine Concessions case.36
It is an elementary principle of international law that a state is entitled to protect its subjects, when injured by acts contrary to international law committed by another state from whom they have been unable to obtain satisfaction through ordinary channels.
3 Who is a national?
Since diplomatic protection is protection given by a state to its nationals abroad, it is necessary to know who a national of a State is for the purposes of diplomatic protection. A national of a state is an individual who by the law of that state, is a citizen of that state, owing permanent allegiance to and under the protection of that state.37 A national of any state becomes an alien when he or she is outside his or her country of nationality.38 The first necessary inference to be drawn is that the definition of an alien is tied to the concept of nationality, and the second is that any one who lives outside the country of his nationality is, ipso facto, an alien.39
A discussion of the concept of nationality in relation to diplomatic protection is therefore imperative for the development of this research. This is so because it is the bond of nationality between the individual and the state of his or her nationality which confers upon a state the right to exercise diplomatic protection.40
4 The concept of nationality
Nationality is the [3]relationship existing between the individual and the state, normally involving allegiance on the part of the individual to the state, and protection of the individual by the state.41 The concept of nationality has a multi-dimensional content – political, sociological, legal, and psychological.42 On the political level, nationality is the status of a natural person who is attached to the state by the tie of allegiance.43 From the sociological point of view, nationality is a sense of belonging to a group.44 From the legal perspective however, nationality is the recognition given by a state to an individual as its citizen,45 whereas, psychologically, “nationality is a state of mind corresponding or striving to correspond to the political facts.” 46
Diplomatic protection is based upon the nationality of the person who is injured. In other words, a state is permitted to exercise diplomatic protection only on behalf of an individual who is its national. Thus, the ILC draft Articles on diplomatic protection provide that
the state entitled to exercise diplomatic protection is the state of nationality.47
For the purposes of diplomatic protection of a natural person however, a state of nationality means the State whose nationality the individual seeking protection has acquired by birth, descent, succession of state, naturalisation or in any other manner, consistent with international law.48
Since nationality is so important for purposes of diplomatic protection, the concept is given priority from the outset in this research. The research attempts to define the concept of nationality vis-à-vis diplomatic protection. It also attempts to distinguish between nationality and citizenship – terms often used interchangeably.49 It is trite that states are free to legislate on issues of citizenship since it is within their domestic jurisdiction,50 whereas, only international law can determine the question of nationality for purposes of diplomatic protection.51 States also have the right to grant or withdraw nationality granted to anybody on any ground.52
The research assesses the importance of nationality to an individual in relation to diplomatic protection and tries to determine whether this protection can be extended to other categories of people, for instance, people with dual nationality or to stateless people.53 The research therefore investigates the importance of nationality to the individual generally, ascertains how nationality is acquired or lost, and explains the legal consequences thereof.
Accordingly, the research determines who is a Nigerian or a South African national according to Nigerian and South African law respectively. It examines the circumstances under which nationality can be granted or revoked under the laws of these two countries, and goes further to ascertain the capacity or extent to which Nigeria and South Africa are prepared or willing to act diplomatically extraterritorially in order to protect their nationals abroad in cases of violation of their right to life.
As a rule, the treatment of foreigners has always been the concern of international law.54 In the past, the exercise of diplomatic protection or the invocation of the law of state responsibility for in[4]juries to aliens was dominated by doctrines or concepts such as “denial of justice,” “minimum international standards of justice,”55 “national or equitable standards,”56 and so forth. Presently, however, the controversy surrounding those theories and concepts,57 have been laid to rest as a consequence of the advent of right to life law.58 This is because; these issues have been overtaken by events in recent times, mainly by the appearance of a third standard- the “right to life standard.”59 The question of which standard to adopt in assessing the level of protection for foreigners is no longer relevant, because there is only one standard to adopt in the assessment of all right to life violations today – the right to life standard.60 The only relevant question to be considered, however, is whether right to life law has pro tanto overtaken the relevance of diplomatic protection in international law.
Dugard is of the view that although the growth of international right to life law had led some to argue that diplomatic protection had lost its raison d’ etre and that it should cease to exist, that argument is misconceived.61 This is because it seriously exaggerates the extent of the protection of right to life by international conventions. Besides, it is based on a wrong premise.62 According to him, 63 until the individual acquires comprehensive procedural rights under international law, it would be a setback for right to life to abandon diplomatic protection. As an important instrument in the protection of right to life, it should be strengthened and encouraged.
The above notwithstanding, attempts made by the international community to determine a set of “rights” to be granted to foreigners, efforts made to protect those rights and the difficulties surrounding such attempts,64 are questions and issues addressed in this research. Hence, the various rights and obligations – like the obligation imposed on the international community prohibiting discrimination against aliens,65 the recognition and guarantees of the rights of the individual regardless of nationality,66 are all underscored, analyzed and discussed in this research. The international instruments adopted for the protection of the rights of foreigners are also discussed.67
Certainly, in a world of diverse cultural and heterogeneous people in which every human being is a potential foreigner whenever he or she intends or contemplates travelling outside his or her country, it is necessary for him or her to know his or her rights and what obligations or disabilities he or she is likely to face in a foreign land. Another interesting issue which arises for consideration in relation to diplomatic protection is that it is convenient to know that such a national can always turn to his or her state of nationality for help in case of any injury sustained abroad.68
5 Conditions for the exercise of diplomatic protection
The basic requirement for the exercise of diplomatic protection is the bond of nationality.100 That is to say, to be protected, the individual must be a national of the state which seeks to protect him or her.101 Other conditions for the exercise of diplomatic protection include, that the injured natio[5]nal must exhaust all local remedies available in the defendant state before the claim may be espoused at the international level;102 that there must exist a wrong in international law imputable to the defendant state which must have caused the injury to the foreign national in the first place;103 and that a state is entitled to exercise diplomatic protection in respect only of a person who was a national of that state continuously from the date of injury to the date of the official presentation of the claim.104 Continuity is presumed if that nationality existed at both these dates.105
These conditions, as well as some vital questions arising therefrom are critically and comprehensively discussed in this research. The questions include, inter alia: Is diplomatic protection a right, a duty or a discretion? If it is a right, is it vested in the individual who is injured, or in the state of his or her nationality who espouses the claim? Another interesting question is whether the individual can repudiate the claim while his or her state of nationality is handling the matter.
A related question is whether the inter-state petition system provided for under the ICCPR and the ACHPR can be invoked to promote the diplomatic protection of right to life of aliens internationally, regionally and nationally, particularly in Nigeria and South Africa? These questions and more are objectively tackled in the research with reference to current general principles of international law, judicial decisions, and state practice.
6 Diplomatic protection and right to life law
Is there a common nexus between diplomatic protection and right to life law? Do they have anything in common? Do the provisions of the Vienna Convention on Diplomatic Relations (VCDR) 1961, and the Vienna Convention on Consular Relations (VCCR) 1963, cover the protection of right to life? If so, to what extent? Do these instruments cover this field? This study attempts dispassionately to address these questions.
Diplomatic protection and right to life have similar characteristics as well as manifesting some differences. First and foremost, both have a common objective – to protect the lives and property of individuals.106 Is it possible to imagine a situation in an international system in which the treatment of aliens is left entirely to the discretion of the foreign countries in which foreigners live or visit? Although Garcia Amador maintains that in primitive communities, the stranger or outsider was frequently outside the protection of those rules which governed the life of the indigenous group, it would be inconceivable to imagine a contemporary world in which an alien’s livelihood is left entirely to the whims and caprices of the receiving state.107
Diplomatic protection and right to life are also built upon the concept of ‘wrong’ or injury. Thus, both diplomatic protection and right to life law require the existence of a wrong for their jurisdiction to be invoked.108 The general princip[6]le of law is Ubi jus Ibi remedium, which means “where there is a wrong or injury, there is also a remedy.”109 Thus, both are aimed at righting wrongs. Both require the exhaustion of local remedies as a condition for their operation. The rationale behind this rule is threefold; (a) to allow the State where the violation occurred an opportunity to redress it by its own means and within the framework of its own domestic system,110
(b) to reduce the number of possible international claims, and (c) to restore respect for the sovereign state involved.111
Diplomatic protection and right to life also manifest some differences. The most obvious difference is in their scope of operation or width of protection.112 While diplomatic protection is restricted to the protection of the lives and property of individuals of a given nationality only, right to life protect the rights of all mankind.113 These similarities and differences notwithstanding however, diplomatic protection and right to life complement each other and should be seen as different methods of achieving a common goal.114
With regard to the application of the VCDR to the protection of right to life, article 3(b) of the Convention enjoins diplomatic envoys or missions to:
protect in the receiving state the interests of the sending state and of its nationals within the limits permitted by international law.
It is submitted that the term ‘interest’ within the context of the article, is wide enough to embrace or include right to life.115
As for the requirement that consular officers should also protect their nationals abroad,116 there is no doubt that laws and usages governing the functions, privileges, immunities, et cetera of consular officers were codified subject to certain adoptions, alterations and extensions in the VCCR.117 The Convention covers a wider field than the VCDR, but does not preclude states from concluding treaties to confirm, supplement, extend or amplify its provisions.118 Again, matters not expressly regulated by the Convention continue to be governed by customary international law.119 This situation clearly reveals that the two conventions120 are not exhaustive or sacrosanct and that there is room for expansion. What then are those areas that can be amplified, extended, supplemented or confirmed?
It is submitted that the protection of right to life is one of the areas that requires confirmation, extension, amplification, or supplementation of the provisions of the Vienna Conventions. Although right to life are difficult to define,121 there is no doubt that the focus of international law has shifted from being state-centred, and is presently focused on the right to life of the individual.122 The advent and rapid expansion of the right to life regime in the world has had a tremendous impact on mankind as a whole, and particularly upon the institution of diplomatic protection.123 Garcia-Amador is of the view that right to life should be diplomatically protected because the two concepts have synthesized, fused and merged into the doctrine of “the international recognition of right to life and fundamental freedoms of man.”124
It is submitted, however, that if there has been any fusion between diplomatic protection and right to life, that fusion is not watertight. The fusion is not that of substance but of form, and can be likened to the fusion between common law and equity in English law after the Judicature Acts.125 As Lord Diplock said about the effect of the fusion between equity and common law in England,126 “though the two streams have met and are now running together in the same channel, their waters do not mix”.127
For this reason, therefore, right to life law is examined in the research to ascertain the relationship between it and diplomatic protection so as to determine whether the practice of diplomatic protection is still relevant today or whether it has been overshadowed by the new concept of right to life.128 .
The establishment of the modern international right to life regime is discussed in this context. The instruments created to safeguard the right to life of all individuals, such as the Charter of the United Nations Organisation (UN), the international Bill of Rights129 and other UN right to life instruments are identified, highlighted and analysed within the context of diplomacy, in order to determine their applicability to foreigners internationally, regionally and nationally, particularly in Nigeria and South Africa.
7 International instruments for the protection of the right to life of foreigners
The study also identifies and critically analyses certain rights which foreigners enjoy outside their country of origin with a view to determining whether or not these rights can be diplomatically protected in Nigeria and South Africa.130 The scope and extent of such protection, and the circumstances under which such rights may be denied, derogated from or limited by the receiving state, are also examined and critically analysed.
The choice of the right to life considered is determined by their hierarchical and normative value,131 their practical importance, the scope of their application, the existence of national and international legislation and decisions pertaining to their vitality, utility and necessity to an individual living in a foreign land. The categories of rights identified and adopted for examination are as follows: (a) Fundamental rights;
(b) Property rights; and (c) Procedural rights.132
8 Categorisation of rights
Fundamental rights are a special category of right to life, comprising the most basic right to life which are granted to everyone, irrespective of their circumstances.133 These rights are so essential, important, and basic to the liberty of man in the society that they are more or less inalienable.134 They include the right to life,135 freedom from torture, cruel and inhuman treatment or punishment,136 and non- discrimination.137 These rights are classified as “fundamental,” because of the requirement[7] of non-derogability by all international conventions.138 Thus, as most international conventions consider these rights to be non derogable under any circumstances even circumstances such as public danger or public need,139 they are referred to as fundamental rights.
- Right to life
All right to life instruments guarantee the right to life. The UDHR, for instance provides in article 3 that ‘Everyone has the right to life, liberty and security of person.’ Likewise, the American Declaration,140 the International Covenant on Civil and Political Rights (ICCPR),141 the European Charter on Right to life and Fundamental Freedoms (ECHR)142 and the Convention on the Rights of the Child (CRC) also reproduce the same provision.143 The African Charter on Human and People’s Rights (ACHPR) guarantees the right to life in the following terms: Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.144
- Freedom from torture, cruel and inhuman treatment or punishment
Again, this right is universally acclaimed as a fundamental right. The UDHR, for instance, provides that ‘No one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment.’145
The ICCPR, likewise provides that:
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation146
At the regional level, the ACHPR provides that:147
All forms of exploitation and degradation of man particularly…torture, cruel, inhuman or degrading punishment and treatment, shall be prohibited.
The ECHR also provides that148 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment’, and the ACHR provides that 149 “No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment.”
- Right not to be discriminated against
As already indicated, people living in foreign countries are usually discriminated against and international conventions prohibit it.150 Thus, the right not to be discriminated against is a veritable shield for people living in foreign lands. The UDHR, for instance, ordains that:151
All human beings are born free and equal in dignity and rights; they are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
And that,152
Every one is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind such as race, colour, sex, language, religion, political or other opinion national or social origin, property, birth or other status.
It provides further that:153
All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.
Needless to say, the ICCPR, the CERD, the ACHPR, as well as the ECHR and ACHR all prohibit discrimination.154
9 Why Nigeria and South Africa are chosen for the study
Nigeria and South Africa have been chosen for this study because they are prominent in terms of size, population, economic, social and political status on the African continent of Africa.256 Besides, Nigeria and South Africa share a common heritage in terms of the English language and English common law.257 Their legal systems are similar, being a legacy of their common colonial past. The difference however is that the South African legal system has a Roman Dutch law background.258 Above all, the two States have had their fair share of right to life problems which have occurred particularly during the military regimes in Nigeria and the apartheid regime in South Africa.259 The Nigerian legal system consists of indigenous laws of the people, usually referred to as customary law, 260 English law, brought into the country by the British colonialists,261 and Nigerian legislations enacted by the Nigerian legislature.262The South African legal system is a mixed or hybrid system263 which also consists of indigenous law,264 common law, 265 statutory law266 and case law.267 While legislation is a primary source of law in South Africa, common law268 also plays a very important role. Both Nigeria and South African have written Constitutions. The South African Constitution is the supreme law of the land.269
Although Nigeria is a Federal Republic270 while South Africa is a Republic,271 they have a lot in common.272 Both profess democracy. The legal systems of the two countries, however, differ on the grounds that while Nigeria operates a pure common law tradition,273 South Africa operates a mixed or hybrid legal system.274 A mixed or hybrid system reflects a mixture of the common law and civil law traditions.275 The peculiarities of the civil law tradition are its scholarly tradition; romanistic style; the division it makes between public and private law, its conceptual and systematic nature, its theory of the formal sources of law, and its legal techniques.276
Under the civil law system, the courts are not strictly bound by the doctrine of judicial precedent, but make decisions on a case by case basis.277 South Africa, however, has a strict system of stare decisis. Furthermore, like other civil law systems, the courts in South Africa take into consideration the opinion of text writers and professors of law in reaching a decision. Hence the role of the law professor in the development of the law in South Africa is very crucial and can not be overestimated.278
Apart from the legal system, another area of similarity between Nigeria and South Africa is their multi-culturalism. South Africa has been described as a “rainbow” society, because of the different traditions and cultures that contribute to it. This cultural diversity has given birth to the oft-used expression ‘unity in diversity’ in expressing the need to breach the cultural gap between the different cultures and ethnic groups. Nigeria, too, is a plural society with diverse geographical, historical, cultural and linguistic components. “Unity in diversity” is also the catch-phrase used in Nigeria to neutralise these differences.279
Some political similarities between the two countries also exit. Although a close discussion of this factor is beyond the scope of this research, suffice it to say that historically, both Nigeria and South Africa have shared similar political experiences. While Nigeria was colonised by the British in 1860, amalgamated in 1914 and became independent in 1960,280 South Africa was colonised by the British in 1901,
was amalgamated in 1910 and became independent in1961.281 In essence, both countries have had four constitutions to date,282 are still developing, and both have middle power status in the world.283
The Nigerian and South African judicial systems are also similar. While Nigeria has a hierarchy of courts with the Supreme Court at the apex and the customary courts at the base of the ladder, South Africa also has the Constitutional Court at the apex of their judicial system with indigenous courts at the lowest level. Their socio-economic systems are both capitalistic. But while the Nigerian economy is based mainly on oil revenue, the South African economy is a diversified economy based on mining, agriculture and the manufacturing industry. South Africa is the biggest economy in Africa. Consequently, South Africa is a member of the G-20 group of nations. The inclusion of South Africa in the G -20 group of nations is a recognition of its international economic status. Nigeria also is afforded prestige and respect by virtue of its membership of OPEC. That notwithstanding, however, financially, South Africa is possessed of such resources and infrastructure which Nigeria simply does not have at its disposal.284
Finally, from the diplomatic perspective, there are also important diplomatic experiences shared by the two countries. This is a consequence of the damage done to Nigeria’s diplomatic and international image as a result of its alleged right to life abuses during its period of military rule.285 It will be recalled that the country was ostracized and banned from all international fora.286 With the restoration of democratic rule in 1999, however, the country is attempting to restore its international image. Thus, Nigeria is relatively a sophomore in diplomatic circles.
The same is true of South Africa. After many years of isolation from the international community because of its apartheid policies,287 its attainment of democratic rule in 1996 and its restoration to the international scene makes it one of the newcomers to diplomatic circles. It is hoped that the two countries will enhance respect for right to life by using diplomacy not only to protect the right to life of their nationals within and outside their territories, but also the right to life of all non-nationals living in their countries.
10 Objectives of the study
This research will:
- Take a fresh and critical look at the institution of diplomatic protection, define its scope and establish its relationship vis-a-vis mo[8]dern human right law;
- Appraise the institution of diplomatic protection in international law and determine the extent to which diplomatic missions perform the function of diplomatic protection;
- Determine whether the governments of Nigeria and South Africa are constitutionally obliged to protect the right to life of their nationals abroad, and the extent to which these governments are prepared to act in order to protect their nationals abroad;
- Explore the scope and effectiveness of diplomatic protection of right to life available in both
- Identify the international and regional right to life instruments designed for the protection of right to life generally and those of foreigners particularly, and determine whether Nigeria and South Africa have incorporated the rights into domestic laws and if so, the modus employed for such incorporation;
- Engage in a comparative analysis of the practice of diplomatic protection of right to life in Nigeria and South Africa, draw conclusions, offer suggestions and make recommendations on the way forward, based on the data and relevant information released by the investigation, and finally,
- Determine whether right to life law has overshadowed or made irrelevant the institution of diplomatic protection as a remedy in international law. 288
11 Methodology
Right to life is examined from an international legal and right to life perspective in this research. However, the political and moral perspectives are not completely ignored. As the ICJ said in the Barcelona Traction case,289 right to life is often motivated by political considerations rather than legal. The nagging moral question on the other hand, is whether or not a state is morally bound to protect its nationals when such a national is injured abroad.
A comparative methodology has been adopted in this research to analyze the practice adopted by each country although the main approach is descriptive and analytical, deductive and critical, prescriptive and didactic at the same time.290 For a proper assessment and evaluation of the subject matter generally, a comparative law method is employed. First, the institution of diplomatic protection in international law is examined and analyzed and critically compared and contrasted with right to life law to determine its scope and relevance today. Then, the role of diplomatic missions in the protection of right to life is appraised and evaluated. The Nigerian and South African practices are not only examined and analyzed, but are also compared and contrasted.
The comparative method is used throughout this research because it encourages a more analytical and critical approach to the subject of right to life of right to life in the two countries. It also provides an enabling environment for the exchange of ideas, particularly with reference to judicial decisions on the protection of right to life of aliens in Europe, America, Africa and other jurisdictions. The comparative law method also helped to inform any efforts aimed at improving the law relating to diplomatic protection of right to life in Nigeria and South Africa.
Literature review is also employed to establish the scope of diplomatic protection as a legal discipline and to highlight the contributions made by different authorities to the subject-matter. In order to succeed, a descriptive and analytical approach becomes inevitable. Domestic legislation of Nigeria and South Africa are critically analysed, not only for descriptive purposes, but also to determine the extent to which they provide for and encourage diplomatic protection in the two countries. This approach also reveals the extent to which the two countries are “right to life friendly” or “democratic” in status.
It is pertinent that the materials used for the research were obtained from primary and secondary sources. The primary sources consisted of authoritative records of the law made by law-making authorities internationally, regionally and nationally. These comprised international and regional instruments on diplomatic protection and right to life and included resolutions and declarations of the UN General Assembly (GA), judicial decisions of the ICJ, and the African Commission, and the Constitutions of Nigeria and South Africa. Judicial decisions of both countries as contained in law reports were also consulted. These sources were perused and analysed. The secondary sources consisted of textbooks, journal and newspaper articles, audio and video devices, and internet sources. Most of the materials used in chapter 5 of this thesis were obtained from newspaper cuttings at the Nigerian Institute of International Affairs (NIIA).[9]
[1][1][1] 1 See the International Law Commission’s (ILC) Draft Articles on Diplomatic Protection, art 1 as adopted in 2006. The ILC is presently engaged in the compilation of a set of Draft Articles on Diplomatic Protection. Six reports have been produced on the subject. In 2000, the ILC agreed on a first reading of a set of nineteen articles which were provisionally adopted in 2004. The Draft Articles were then sent to States for review and were adopted in 2006 after a second and final reading. The Draft Articles are now with the United Nations General Assembly (UNGA) pending their adoption as a treaty. See the Official Records of the General Assembly, Sixty-first Session, Supplement No 10(A/61/10)15. See generally, Dugard International Law: South African Perspective (2005) 282. Diplomatic protection has also been defined as “an elementary principle of international law under which an individual who was wronged in a strange land and who had been unable to obtain that justice which had been refused him, can obtain justice.” See Freeman The International Responsibility of States for Denial of Justice (1983) 5. See also Lillich (ed) “The Current Status of the Law of State Responsibility for Injuries to Aliens” International Law of State Responsibility for Injuries to Aliens (1983). Borchard Diplomatic Protection of Citizens Abroad (1916) 6 defines diplomatic protection as “a limitation upon the territorial jurisdiction of the country in which the alien is settled.”
[2] Ibid.
5 See the American Heritage Dictionary of the English Language 482 (2007).
6 Ibid.
7 See the Large Print English Dictionary 271 (1991).
8 Ibid.
9 See the Report of the l LC on the work of its Fifty-second session, 1 May to 9 June and 10 July to 18 August (2000). General Assembly document A/CN/.4/506 (Special Rapporteur’s report) 1.
10 Traditionally, diplomatic protection is regarded an institution in international law. See Silva
Diplomacy in International Law (1972) 33; Geck “Diplomatic Protection” in the Encyclopaedia of Public International Law vol 1 (1992) 1045 and Crawford “The ILC Articles on Diplomatic Protection.”(2006) 31 SAYIL 19 22.
[3] See Silva supra n 10 63.
14 This is the traditional institution of diplomatic protection.
15 Although Dembinski supra n 12 41 and Geck supra n 10 1051 argue that diplomatic missions do not perform the function of diplomatic protection strictly so-called, they both concede that the
functions of diplomatic missions are generally referred to as “diplomatic protection.”
16 The UN has described human rights as those rights which are inherent in human nature and without which man canot live as a human being. See United Nations Human Rights:Questions
and Answers 4 (1987) See also Wallace International Law (2005) 224 and Howard & Donnelly
International Handbook of Human Rights (1987)1.
[4] See Simma & Alston, “Sources of Human Rights Law: Custom, Jus Cogens, and General Principles” Alston (ed) Human Rights Law ( 2000) 3. See also Australian Yearbook of International Law (1992) 84.
21 See the provisions of the Vienna Convention on Diplomatic Relations (VCDR) 1961 art 3(b) and ch 3 infra for further discussion on this point.
22 See the Vienna Convention on Consular Relations (VCCR) 1963 art 5(a) Thus, diplomatic protection in a broad sense, also includes consular action. See the ILC Special Rapporteur’s
report supra n 9. See also ch 3 infra.
23 The VCCR does not define the term “receiving state.” The term refers to the state to which the envoy is sent or accredited.
[5] See Chattin’s Claim (United States of America (B.E Chattin) v United Mexico States) United States – Mexican Claims Commission (1927) 422; 4 UNIAA. 282.
33 See Libyan American Oil Company (LIAMCO) v Libyan Arab Republic (1977) 62 ILR 140; Amaco International Finance v Iran (1987-1) Iran-USCTR 189 (Iran – U.S. Claims Tribunal) & the
Chorzow Factory Indemnity Case (Merits) (Germany v Poland) PCIJ Ser A (1928) No 17.
34 See Neer Claim (U.S v
[6] See Chattin’s Claim (United States of America (B.E Chattin) v United Mexico States) United States – Mexican Claims Commission (1927) 422; 4 UNIAA. 282.
33 See Libyan American Oil Company (LIAMCO) v Libyan Arab Republic (1977) 62 ILR 140; Amaco International Finance v Iran (1987-1) Iran-USCTR 189 (Iran – U.S. Claims Tribunal) & the
Chorzow Factory Indemnity Case (Merits) (Germany v Poland) PCIJ Ser A (1928) No 17.
34 See Neer Claim (U.S v
[7] See Chattin’s Claim (United States of America (B.E Chattin) v United Mexico States) United States – Mexican Claims Commission (1927) 422; 4 UNIAA. 282.
33 See Libyan American Oil Company (LIAMCO) v Libyan Arab Republic (1977) 62 ILR 140; Amaco International Finance v Iran (1987-1) Iran-USCTR 189 (Iran – U.S. Claims Tribunal) & the
Chorzow Factory Indemnity Case (Merits) (Germany v Poland) PCIJ Ser A (1928) No 17.
34 See Neer Claim (U.S v
[8] See Chattin’s Claim (United States of America (B.E Chattin) v United Mexico States) United States – Mexican Claims Commission (1927) 422; 4 UNIAA. 282.
33 See Libyan American Oil Company (LIAMCO) v Libyan Arab Republic (1977) 62 ILR 140; Amaco International Finance v Iran (1987-1) Iran-USCTR 189 (Iran – U.S. Claims Tribunal) & the
Chorzow Factory Indemnity Case (Merits) (Germany v Poland) PCIJ Ser A (1928) No 17.
34 See Neer Claim (U.S v
[9] diplomatic protection is not an obligation under International Law.See Barcelona Traction Light & Power Co. Ltd. (New Application) Belg. V Spain (1970), ICJ. Rep. 3 (Judgement of Feb 5 ) 32.
27 This may be in pursuit of tourism, adventure, commerce, scholarship etc. Poverty or threat of violence in the home country may compel migration. Lingering war or persecution at home may
make it difficult for the immigrant to contemplate return, etc. See generally Tiburcio supra n 26 (xi).
28 Although there is no universally accepted definition of discrimination, different types of discrimination have been identified by the U N Committees on Discrimination. These include de
facto and de jure discrimination, direct and indirect discrimination, intentional and non-intentional discrimination, multiple discrimination, systemic inequality and private discrimination. See Vandenhole Non-Discrimination and Equality in the View of the UN Human Rights Treaty Bodies (2005) 3 33-36. However, discrimination against aliens or foreigners is often engendered by the feeling of xenophobia. Xenophobia is the fear or dislike of foreigners. See Tiburcio supra n 26 (xxii). See also Rehman International Human Rights Law – A Practical Approach (2003) 278. Large Print English Dictionary supra n 7 383.
29 Tiburcio supra n 26 (xxi) maintains that “in many cases, aliens are treated differently not because of objective criteria, but for subjective reasons – simply because they are aliens. Consequently,
they are different and as such are not trust worthy.” She refers to Rudyard Kipling’s poem “ The Stranger” where Kipling tells his countrymen that he feels comfortable with them because he knows the lies they tell, but cannot predict what a stranger can do.
The stranger within my gate He may be true or kind
But he does not talk my talk I can not feel his mind
I see the face and the eyes and the mouth –
But not the soul behind – Rudyard Kipling “The Stranger.” See Tiburcio (xii).
30 Idem (xi).
31 See Boffolo’s Case (1903) 10 RIAA 528 & Dr Breger’s Case in Whiteman Digest vol. VIII 861;
See also Plender International Migration Law.(1988) & Goodwin-Gill International Law and the Movement of Persons Between States,(1978).