FG to Seek Compensation from South Africa for Nigerians' Abandoned Properties

Nigeria's Federal Government has announced its intention to seek compensation from South Africa for properties and businesses abandoned by Nigerian nationals returning home due to escalating anti-immigrant tensions. This move highlights complex issues of state responsibility under international law, particularly concerning the protection of foreign nationals and their investments during periods of civil unrest. The claim will likely hinge on principles of diplomatic protection, the international minimum standard of treatment for aliens, and potentially the provisions of the Bilateral Investment Treaty between Nigeria and South Africa. Legal professionals must consider the intricacies of attributing private acts to state responsibility, the standard of due diligence, and the mechanisms for valuation and enforcement of such claims.

The Federal Government of Nigeria has declared its intention to pursue compensation from the South African government for businesses and properties abandoned by Nigerian citizens who have been compelled to return home amidst renewed anti-immigrant tensions in South Africa. This development, reported by Vanguard Nigeria, signifies a significant diplomatic and legal undertaking, as Nigeria seeks redress for its nationals affected by xenophobic violence and threats.

This initiative by Abuja underscores the critical importance of international law in safeguarding the rights and investments of foreign nationals, even in the face of domestic unrest. It raises fundamental questions about state responsibility, diplomatic protection, and the efficacy of bilateral and multilateral instruments designed to foster economic cooperation and protect citizens abroad. For legal practitioners, this scenario presents a compelling case study in the application of public international law principles to real-world geopolitical challenges.

The Nigerian government's decision to document abandoned assets and engage Pretoria diplomatically sets the stage for a complex legal battle, potentially involving the interpretation of international treaties and customary international law. The success of such a claim will depend on establishing South Africa's international responsibility for the losses incurred, navigating the nuances of attribution, and proving a breach of international obligations concerning the treatment of foreign investors and their property.

The legal framework governing a state's responsibility for harm to foreign nationals and their property is primarily rooted in customary international law and codified in instruments such as the International Law Commission's (ILC) Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA). Under ARSIWA, an internationally wrongful act of a State entails its international responsibility if conduct (action or omission) is attributable to the State and constitutes a breach of an international obligation. A crucial aspect is the concept of diplomatic protection, which allows a State to invoke the responsibility of another State for an injury caused by an internationally wrongful act to one of its nationals.

Historically, South Africa has experienced recurring waves of xenophobic violence, notably in 2008, 2015, and 2019, which have disproportionately affected foreign nationals, including Nigerians. These incidents have often involved looting, destruction of property, and forced displacement. The recent calls for mass deportation of undocumented migrants and anti-immigrant protests, particularly around June 2026, have heightened fears and prompted the voluntary evacuation of Nigerians. The Nigerian government has specifically instructed returning citizens to meticulously document their abandoned businesses, vehicles, and other properties to support future compensation claims.

Furthermore, Nigeria and South Africa are parties to a Bilateral Investment Treaty (BIT), signed in 2000 and entering into force in 2005. Such treaties typically include provisions for the reciprocal promotion and protection of investments, fair and equitable treatment, and compensation for losses due to expropriation or other forms of damage. Article 5 of the Nigeria-South Africa BIT specifically addresses compensation for losses, while Article 6 deals with expropriation. These provisions could provide a direct treaty basis for Nigeria's compensation claim, alongside general international law principles.

Nigeria's claim for compensation will primarily rely on establishing South Africa's international responsibility. This requires demonstrating that an internationally wrongful act occurred, attributable to South Africa, and that it breached an international obligation. While direct acts of violence are often perpetrated by private individuals, a State can incur responsibility through its omissions, such as failing to exercise due diligence to prevent harm, failing to prosecute perpetrators, or failing to provide effective remedies. The International Court of Justice (ICJ) in the *Tehran Hostages* case, for instance, found Iran responsible for its failure to protect the US embassy and diplomatic staff.

The concept of the "minimum standard of treatment for aliens" is central here. This customary international law principle dictates that states must afford foreign nationals and their property a baseline standard of justice and protection, irrespective of how they treat their own citizens. This standard includes protection against arbitrary or discriminatory measures, denial of justice, and ensuring full protection and security. If South Africa's actions or inactions, such as a persistent failure to protect foreign-owned businesses from looting or to adequately investigate and punish perpetrators, fall below this minimum standard, it could constitute a breach of international obligation.

The Nigeria-South Africa BIT offers a more specific avenue. Investment treaties often provide for compensation in cases of direct or indirect expropriation, or for losses due to war, revolution, or civil disturbance. Article 5 of the Nigeria-South Africa BIT, concerning compensation for losses, and Article 6, on expropriation, would be particularly relevant. The forced abandonment of properties due to an environment of insecurity, if demonstrably linked to a failure of state protection, could be argued as a form of indirect expropriation or a breach of the full protection and security standard often found in BITs. The challenge lies in proving causation between the state's conduct and the specific losses, as well as the accurate valuation of abandoned assets.

Furthermore, the principle of exhaustion of local remedies generally requires that an injured national must first pursue all available legal avenues within the host state before their state of nationality can exercise diplomatic protection. However, exceptions exist, particularly where local remedies are futile or ineffective. Given the widespread nature of the xenophobic attacks and potential systemic failures in protection or redress, Nigeria might argue that local remedies are unavailable or ineffective for its citizens. The African Union (AU) and ECOWAS protocols, while not directly binding on South Africa in this specific context, also promote the protection of migrants and their property, reinforcing the continental expectation for states to combat xenophobia.

The Federal Government of Nigeria's pursuit of compensation from South Africa for abandoned properties marks a significant assertion of diplomatic protection and state responsibility under international law. For legal practitioners, this case underscores the critical importance of understanding the interplay between general international law principles, such as the ILC Articles on State Responsibility and the minimum standard of treatment for aliens, and specific bilateral investment treaties.

Practitioners advising businesses and individuals operating across African borders should meticulously review relevant BITs and be aware of the mechanisms for diplomatic protection. The outcome of Nigeria's claim will set an important precedent for how African states address the economic consequences of xenophobic violence and the extent of state responsibility for protecting foreign investments during civil unrest. It will be crucial to monitor the diplomatic negotiations, the evidence presented regarding South Africa's alleged breaches of international obligations, and any potential arbitration or judicial proceedings that may arise from this claim.