RIGHT TO LIFE: A COMPARATIVE ANALYSIS OF NIGERIA LAW AND SOUTH AFRICAN LAW

CHAPTER ONE

Introduction

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 of 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

[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.

RIGHT TO LIFE: A COMPARATIVE ANALYSIS OF NIGERIA LAW AND SOUTH AFRICAN LAW