Africa seems to be towing down the lane of the biblical Israelites’ ordeal after they requested from God for a king and to which He obliged them with their request: Self-rule. Since the abolishing of slavery and the independence of many African states, the continent has only transitioned from one crisis to the other and more recently, xenophobia in South Africa. It is ordinarily expected that nations of Africa would gather to embrace themselves, unfortunately there seems to be brazen enmity among the sovereign states of Africa. This negative energy has even led to neglect for one another in business; for instance, the Dangote Group from Nigeria had faced similar circumstances when it was disallowed from selling its cement products in Ghana, yet Chinese cement products are imported from faraway China as the Ghanaian Government considered it preferable. Being Nigerian, the author can authoritatively say that Africans do not cherish its own. Nevertheless, the issue of state responsibility is one which needs review in Africa as the concept may be far away from the continent due to its impracticability.

The Core Principle of State Responsibility

The laws on state responsibility are the principles governing when and how a State is held responsible for a breach of its international obligations. In traditional international law, state responsibility constitutes a classic way of dealing with violations of customary international law.[1] From an injured State’s point of view, state responsibility represents the State’s power to protect its citizens outside its national boundaries or a State’s exercise of its right and duty to do so. This means that although all States are independent and should be accorded full sovereignty in terms of territorial rights and non-interference in decisions of its affairs. It is also important to mention that each national of a State carries the identity and the sovereignty of his/her nation where he/she resides in a foreign country; such that the country which he now resides in is made responsible, under international law to respect the national as it would do to the nation. The native country of this “foreigner” is also obligated to take reasonable steps to protect its citizens in whichever country the citizen resides. This is the law of state responsibility.

The usual problem with this law is simple. How can one resolve that a state is liable for wrongs done to a foreign national when the acts are not perpetrated by the host Government? Following the recent unjustifiable xenophobic attacks on Nigerians in South Africa, the South African President had publicly condemned this unfortunate event, this may be tantamount to maintaining the political image that the government does not support the activities of the perpetrators. In the light of state responsibility, is this enough? The author wonders if “talks and roundtable discussions” are the right steps to remedy a wrong caused by “actions”. But the law on state responsibility affords three effects: protection, punishment, or/and compensation.

One may reasonably ask if the South African State can be liable for these wrongs perpetrated by its citizens against its fellow Africans particularly Nigerians. Well, this is a question of fact that could be answered only if the Nigerian Government commenced proceedings at the African Court of Human and People’s Rights in order to protect its own citizens. Nevertheless, the author submits that under the concept of state responsibility, a state is never liable for the acts of its private citizens. But the acts of private citizens may be accompanied by some act of omission (failure to act) on the parts of the State, for which it can be held liable. Such act or omission may take one of the six forms:

  1. Encouraging individuals to attack foreigners;
  2. Falling to take reasonable care to prevent the attacks. What constitutes reasonable care will depend on the circumstances; foreigners who remain in remote areas of the countryside in times of unrest cannot expect the same police protection as a foreigner in a peaceful capital city[2] – but special care must be taken to prevent injury to diplomats;
  3. Obvious failure to punish individuals[3];
  4. Failure to provide the injured foreigners with an avenue to obtain compensations from wrong-doers in the local courts;
  5. Obtaining some benefits from the individual’s acts, i.e. keeping looted property[4];
  6. Expressly approving acts and stating that such person acted in the name of the state[5].

In 1969, the South African embassy in London was attacked by demonstrators. The demonstration had been advertised several days in advance, and an attack on the South African embassy was foreseeable, although the demonstrators’ main target was the Rhodesian house. The demonstration was carried out and damage caused after the United Kingdom ridiculously positioned one policeman to protect the embassy on the day of the demonstration.[6] However, it is on record that the United Kingdom compensated the South African government for damage. This is a clear example of a nation that understands the principle of state responsibility.

In the light of the occasional xenophobic attacks against Nigerians, a menace that surprisingly always successfully repeats itself, it may be safe to say that under the international law on state responsibility, South Africa should be found liable for omitting to discourage its own people from attacking foreign nationals or failure to publicly prosecute and punish the offenders of the previous xenophobic attacks to serve as a deterrence to others.

Thus, with the apparent failure of the South African government to efficiently protect foreign nationals especially Nigerians coupled with the lack of public reports of serious prosecution and punishment of the perpetrators of previous xenophobic attacks; further lack of willingness or attempt to compensate Nigeria for the damage done; the author believes that there is little or no regard for the International law on state responsibility by South Africa.

Further, up till the moment of writing and publishing this article, the Nigerian government has not made any efforts to meet with the South African government to consider this affront on the citizens of Nigeria in South Africa which the author considers as a blow to the sovereignty of Nigeria and a complete disregard of the law and concept of state responsibility. Clearly, both Nigeria and South Africa have proved to be irresponsible entities in this regard.

In the interest of International law there is a dire need for Africans to love and respect Africans of other nationalities residing in their countries; also the sovereign states of Africa should be responsible enough to take steps to protect, prevent or compensate and remedy damages done to Africans of foreign nationalities who suffer unjustifiable attacks within its territory.

Talk is cheap and speeches won’t heal stitches.

The author of this article is a legal practitioner from Nigeria. You can reach him via

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[1] “International law” is defined as “[t]hose laws governing the legal relations between nations.” BLACK’S LAW DICTIONARY 816 (6th ed. 1990).

[2]Home Missionary Society claim (1920), UNRIAA VI 42. The case concerns injuries caused by rebels, a topic which                              

   Gives rise to special problems. See Michael Akehurst, “state responsibility for the wrongful acts of rebels- An aspect of southern Rhodesian problem”, British Year Book of International Law, Vol. 43, 1968 P. 49.  

[3] Brierly J.L, “The Theory of Implied State Complicity in International claim” British Year Book of International Law, Vol. 9, P. 42. Compare Neer’s claim (1926) UNRIAA IV 60, with Jane’s claim (1926), UNRIAA IV 82.

[4] Mazzei’s claim (1903), UNRIAA X525.

[5] Moore,J.B, A Digest of International Law, 1906, Vol. 6, P.989.

[6] The Times of January 1969