Experts say international law does not automatically entitle the Nigerian government to seek compensation on behalf of its citizens who allegedly lost or abandoned property while fleeing anti-illegal immigration protests in South Africa.
Experts argue that any claim would depend on whether the South African government failed to meet its legal duty to protect people and property.
Nigeria says it intends to demand compensation for its citizens for their property left in South Africa.
About 1,159 Nigerians were repatriated, and some allege they were forced to abandon businesses, homes and other properties in South Africa.
Minister in the Presidency Khumbudzo Ntshavheni indicated the South African government will give no compensation to Nigerian citizens repatriated from the country.
Adv Justice Khoza, a constitutional law expert and lecturer at North West University’s law faculty, said any claim by Nigeria would require evidence that South Africa failed to discharge its legal obligations to maintain public order or protect people and property within its jurisdiction.
Where property is stolen, vandalised or destroyed during unrest, liability generally rests with the individuals who committed those acts. Merely abandoning property while fleeing violence does not automatically shift responsibility to the state
— Molya Vundamina, the Centre for Human Rights at the University of Pretoria
Khoza said international law recognises the doctrine of diplomatic protection, which permits a state to espouse claims on behalf of its citizens where they have suffered injury attributable to another state.
“This principle is reflected in the International Law Commission Draft Articles on Diplomatic Protection (2006) and has long been recognised in customary international law,” he said.
However, Khoza said the existence of losses suffered by foreign nationals does not automatically establish liability on the part of the host state.
“For state responsibility to arise, it must generally be demonstrated that the loss resulted from an internationally wrongful act attributable to the state. The governing principles are found in the International Law Commission Articles on Responsibility of States for Internationally Wrongful Acts (2001),” Khoza said.
Molya Vundamina, a project officer and doctoral candidate in public law at the Centre for Human Rights at the University of Pretoria, said when people abandon property while fleeing unrest, ordinarily the person who causes the damage bears primary legal responsibility.
“Where property is stolen, vandalised or destroyed during unrest, liability generally rests with the individuals who committed those acts. Merely abandoning property while fleeing violence does not automatically shift responsibility to the state,” she said.
Khoza agreed and said states are not insurers against all losses caused by civil unrest.
Khoza believes the Nigerian government may engage South Africa through diplomatic channels and may, where appropriate, invoke diplomatic protection on behalf of its nationals under international law.
“In practical terms, however, disputes concerning ownership, valuation and proof of loss are often more appropriately pursued by the affected individuals themselves before the competent courts or tribunals,” he said.
Both experts stressed that any compensation process requires rigorous evidentiary standards, including proof of ownership, valuation and a direct causal link.
Practically, Vundamina and Khoza suggested that disputes over property loss were best pursued by the affected individuals themselves through South African domestic courts, criminal processes or local tribunals before any international legal claim is considered.
While Vundamina confirmed that politically, Nigeria can claim, she emphasised that legally it is not necessary.
“Nigeria is entitled to raise the matter through diplomatic channels. It may: make diplomatic representations to South Africa; request information or explanations; seek consultations or negotiations; and advocate on behalf of its nationals,” she said.
She further noted that a formal request by Nigeria for compensation would have implications beyond the immediate legal questions.
Vundamina said even if a legal claim is ultimately unsuccessful, it could influence bilateral relations, regional diplomacy and discussions on the protection of migrants within Africa.
Ultimately, she said the broader implications are likely to be political and diplomatic rather than legal.
