The Role of Diplomatic Missions in the Protection of Human Rights

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Existence of an international wrong

Apart from the exhaustion of local remedy rule, another condition for the exercise of diplomatic protection is the existence of an international wrong. Hence, it must be proved that the harm complained of is an international wrong, committed by the state itself or its agents by action or omission, and that the injury occurred within the jurisdiction of the state.640 Thus, the injury must have been caused by the state itself
– either by the executive, legislative or the judicial arm of government but not by a private individual.641 This condition involves the existence of an injury or wrong as defined by international law.642 The term “international wrong” in this context refers to the breach of some duty which rests on a State in terms of international law and which is not a breach of a purely contractual obligation. The term “international delinquency” is often used to describe such wrongs.
A state is only allowed to intervene if the wrongful act is contrary to international law. If the act or omission complained of is not contrary to international law, then the other state has no basis to interfere diplomatically, otherwise it will be regarded as an invalid interference in the domestic affairs of another state.Despite the difficulty in establishing this rule however, it has been adopted by codification drafts,court decisions,and writers.
The concept of wrong within this context covers situations in both public and private law.Thus in the Mavrommatis case,649 the PCIJ stated that the question whether the dispute originated in an injury to a private interest or not was irrelevant.The law is that even an ultra vires act of a state, must be imputable to the state concerned.

Continuous nationality

A further condition for the exercise of diplomatic protection is the rule of continuous nationality of the claimant. Traditionally, the rule’s first requirement was that the individual must have the nationality of the protecting State at the time of the internationally wrongful act. The second requirement was continuity of that nationality either until the claim was presented by the protecting State, or settled on the international level.
Although some treaties for the protection of aliens make exceptions,652 this rule has recurred in innumerable treaties,653 and has come to be regarded as a rule of customary international law.654 Hence, article 5(1) of the ILC Draft Articles on Diplomatic Protection provides that:
A State is entitled to exercise diplomatic protection in respect of any person who was a national of that State continuously from the date of injury, to the date of the official presentation of the claim. Continuity is presumed if that nationality existed at both these dates.
This rule has been subjected to considerable criticism.655 It has been said that, the rule of continuous nationality can leave an individual’s claim unprotected if the claim has passed onto a holder of a different nationality between the time of the injury and the time of presentation of the claim.656 This can occur inter alia through succession on death, an assignment of the claim to a non-national, or even as a consequence of change in the nationality of the injured individual. Suggestions that this condition be abandoned have been resisted for fear of abuse that may lead to “nationality shopping” for the purposes of diplomatic protection.Hence, draft article 5 retains the continuous nationality rule, but allows exceptions to accommodate cases in which unfairness might otherwise result.State practice and judicial opinion, however, seem to favour the date of presentation of the claim over the date of settlement of the claim.660 Thus article 5(2) of the ILC Draft Articles on Diplomatic Protection provides that:
Notwithstanding paragraph 1, a State may exercise diplomatic protection in respect of a person who is its national at the date of the official presentation of the claim but was not a national at the date of injury, provided that the person had the nationality of a predecessor State or lost his or her previous nationality and acquired, for a reason unrelated to the bringing of the claim, the nationality of the former State in a manner not inconsistent with international law.
Paragraph 2, therefore, makes an exception to the general rule in paragraph 1 provided three conditions are met. These are, first, the injured person has lost his or her former nationality; secondly, the new nationality was acquired for reasons unrelated to the bringing of the claim; and third, the new nationality was acquired in a manner not inconsistent with international law.
Paragraph 3 provides a further safeguard: A claim cannot be brought by the new state of nationality against a former state of nationality if the injury was incurred when the person was a national of the former state of nationality. Finally, in accordance with paragraph 4, a diplomatic protection claim lapses if the injured person acquires the nationality of the respondent state after the date of the presentation of the claim.

CHAPTER ONE Introduction
1 Definition of terms
2 Purpose of the research
3 Who is a national?
4 The concept of nationality
5 Diplomatic protection and the Law of State Responsibility for Injuries to Aliens
6 Conditions for the exercise of diplomatic protection
7 Diplomatic protection and human rights law
8 International instruments for the protection of the human rights of foreigners
9 Categorisation of rights
10 The controversy surrounding the hierarchy of human rights norms
11 Political rights
12 Why Nigeria and South Africa are chosen for the study
13 Objectives of the study
14 Methodology
15 Issues for determination
16 Literature Review
17 Context of the research
CHAPTER TWO The Institution of Diplomatic Protection
1 Introduction
2 The status of the individual at international law
3 The changing status of the individual in international law
4 The position of the individual in municipal law
5 The law of diplomatic protection
6 Nationality as a precondition for diplomatic protection
7 Nationality and diplomatic protection
8 Stateless persons and refugees
9 Nationality of corporations and other legal persons
10 Other conditions for the exercise of diplomatic protection
11 Existence of an international wrong
12 Continuous nationality
13 The nature of diplomatic protection
14 Discretionary factors influencing diplomatic protection
15 Treatment of aliens
16 Synthesis of the standards
17 Codification of diplomatic protection
18 Should diplomatic protection be used to protect human rights?
19 Diplomatic strategies for the protection of human rights
20 Appraisal and conclusion
CHAPTER THREE The Role of Diplomatic Missions in the Protection of Human Rights
1 Introduction
2 The origin of diplomatic missions
3 Codification of Diplomatic Law
4 Functions of diplomatic missions
5 Limits of protection
6 When nationals seek diplomatic protection
7 Ways of effecting diplomatic protection of human rights
by diplomatic missions
8 Preferment of claims
9 Scope or extent of diplomatic protection of human rights by diplomatic missions
10 Consular protection of nationals abroad
11 Consular functions
12 Other consular functions
13 Amalgamation of diplomatic and consular functions: Effect on diplomatic protection
14 Diplomatic and consular privileges and immunity
15 Abuse of diplomatic and consular privileges and immunity: Effect on diplomatic protection
16 Conclusion
CHAPTER FOUR International and Regional Instruments for the Diplomatic Protection of Human Rights.
1 Introduction
2 Objective and approach adopted
SECTION ONE
3 THE UDHR
4 International instruments for the protection of human rights of foreigners
4.1 Rights of foreigners
5 Legally binding international instrument for the protection of the rights of foreigners.
6 Non-legally binding instruments for the protection of the human rights of foreigners
6.1 The Declaration on the Human Rights of Individuals who are not Nationals of the Countries in which they Live
7 Legal effect of declarations and resolutions of the General Assembly
8 Provisions of the Declaration on the Human Rights of Individuals who are not Nationals of the Countries in which they Live
9 Legally binding international instruments regulating the protection of human rights of all individuals
10 Fundamental rights
11 Right to own property
12 Procedural rights
13 The right to a fair trial
SECTION TWORegional Instruments for the protection of human rights: The African System
14 Introduction
15 OAU and human rights
16 Resolutions, declarations and decisions of OAU Heads of State and Governments (The Assembly)
17 Constitutive Act of the AU
18 The African Charter on Human and People’s Rights (ACHPR)
19 Implementation of the African Charter – The African Commission on Human and Peoples’ Rights
20 The African Charter and diplomatic protection: Rights of foreigners under the African Charter
21 Civil and political rights: Can a violation of civil or political rights under the African Charter trigger diplomatic protection?
22 The protection of socio-economic rights under the African Charter
23 Fundamental rights
24 Right to property under the African Charter: Are aliens protected?
25 Procedural rights under the African Charter
26 Conclusion
CHAPTER FIVE Diplomatic Protection of Human Rights in Nigeria: Legal and Constitutional Issues
1 Introduction
2 Relationship between international law and municipal law: A theoretical framework
3 Incorporation of International Law into Nigerian domestic law
4 Diplomatic protection and Nigerian Law
5 The principle of extraterritoriality
6 The Bakassi Peninsula incident
7 Nigeria’s reaction to the xenophobic attacks on foreigners in 2008
8 The British Airways incident
9 Judicial attitude to diplomatic protection in Nigeria
10 Protection of human rights in Nigeria
11 International instruments for the protection of human rights in Nigeria
12 Categorisation of human rights under the Nigerian constitution
13 Fundamental Rights
14 Right to own private property in Nigeria
15 Procedural rights
16 Enforcement of fundamental human rights in Nigeria
17 Treatment of aliens in Nigeria
18 Conclusion
CHAPTER SIX Diplomatic Protection of Human Rights in South Africa: Legal and Constitutional Issues
1 Introduction
2 The position of international law in South African municipal law
3 The status of customary international law in South African municipal law
4 Incorporation of international agreements into South African municipal law
5 Judicial interpretation of section 231(4) – the self execution provisions of the South African Constitution
6 The interpretational role of international law in South Africa
7 Diplomatic protection and South African law
8 Decided cases on diplomatic protection under South African law
9 Judicial attitude to diplomatic protection in South Africa
10 Extraterritoriality
11 South African government policy on diplomatic protection
12 Protection of human rights in South Africa
13 Human rights provisions under the South African Constitution
14 The Bill of Rights under the South African Constitution
15 International human rights instruments and South African law
16 Fundamental rights
17 Right to own private property
18 Procedural rights
19 Limitation on rights under the South African Bill of Rights
20 Enforcement of rights under the 1996 Constitution
21 Treatment of aliens in South Africa
22 Conclusion
CHAPTER SEVEN Conclusions
1 Introduction
2 Diplomatic protection in Nigeria and South Africa: A comparative analysis
3 The doctrine of ‘clean hands’
4 The protection of human rights in Nigeria and South Africa: A comparative analysis
5 Fundamental rights
6 Property rights
7 Procedural rights
8 Interpretation of human rights provisions in the Nigerian and South African constitutions
9 Limitation of rights
10 Procedure for enforcement of human rights in Nigeria and South Africa
11 Justiciability of ECOSOC rights
12 Other areas of comparison
13 General appraisal of the Nigerian and South African Constitutions
14 Peculiar human rights problems in Nigeria
15 Diplomatic protection and human rights: The final question
16 Lessons for Nigeria and the Republic of South Africa
17 Suggestions and recommendations
BIBLIOGRAPHY
INDEX