1. South African Human Rights Commission South Africa’s International and Regional Human Rights Obligations Presentation to the Portfolio Committee on Justice & Correctional Services 12 September 2014

2. Outline of Presentation
South African Human Rights Commission’s (SAHRC) monitoring of international obligations
Role of Parliamentary Committees in ratification and monitoring of international instruments.
United Nations (UN) human rights system
Overview of treaties
South Africa’s status of ratification
Regional human rights system
South Africa’s reporting record
Feedback on outstanding matters
Conclusion
Contact details

3. SAHRC’s monitoring of international obligations

4. Role of SAHRC
SAHRC has a constitutional and legislative mandate to promote and protect human rights.
At the international level, SAHRC complies with the Paris Principles and is South Africa’s National Human Rights Institution (NHRI) with A status.
SAHRC has speaking rights at the United Nations Human Rights Council and may speak to any agenda item under discussion in the Council.
At the national level, the new Human Rights Commission Act 40 of 2013 also mandate SAHRC to monitor South Africa’s international obligations.

5. Broad level Specific level CAT Section 5 (Sec 11) Committee Torture
Criminalisation of torture
Ratification OPCAT (Drug Rehab Centre research)
Establishment of NPM
CRPD
Section 5 (Sec 11) Committee Disability
CRPD Awareness raising, CRPD Toolkit. Art 33. monitoring mechanism
CRC
Establishment of section 5 committees
Ongoing violence against children / corporal punishment work
CERD
NHRI parallel report
Hate crimes legislation
Xenophobia Reports
CEDAW
Consultation with CGE on NHRI report.
Mainstreaming of gender within Commission activities.
SAHRC Policy Papers
Annual Human Rights International Report Development Report
ICESCR Ratification campaign
Universal Periodic Review / APRM
Liaison with the OHCHR
Engagement with NHRIs and role of NHRIs within UN system & UN reform
Creation of Treaty Body Database
International & Regional HRs CD Toolkit

6. The importance of SAHRC’s international engagement
Demonstrates to peers and citizens the commitment of human rights.
Provides opportunities to reflect on the promotion, protection and realisation of rights within a country.
Provides opportunities for technical assistance to be provided to the State through the UN mechanisms.
Provides opportunity to give NHRI perspective on human rights situation in South Africa and critically comment on the government reports.

7. Role of Parliamentary Committees in ratification and monitoring of international obligations

8. Parliament’s constitutional designation
Sections of the Constitution govern international law obligations for South Africa.
Section 231(2) states that “an international agreement binds the Republic only after it has been approved by resolution in both the National Assembly and the National Council of Provinces …”
Section 231(4) states, “Any international agreement becomes law in the Republic when it is enacted into law by national legislation; but a self-executing provision of an agreement that has been approved by Parliament is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament.

9. Parliamentary oversight
Increase awareness within the committee about the international and regional system.
Encourage ratification of outstanding international and regional obligations.
Monitoring the implementation of recommendations made by international and regional bodies to the South African government.
Call relevant government departments officials to account on the status of South Africa’s reporting obligations.
Ensure that new legislation is in line with international law.

10. Constitutional imperative on applicability of international law
Interpretation of Bill of Rights
Section 39. (1) When interpreting the Bill of Rights, a court, tribunal or forum -
(b) must consider international law;
Section 233:
‘’When interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law.’’

11. United nations human rights system

12. United Nations (UN) system
The UN oversees a number of international human rights mechanisms that bind state parties to protect and to take positive action to facilitate the enjoyment of basic human rights.
By adopting these, member states send a strong message to the world community about their commitment to defending human rights.
This commitment is not only symbolic- states that ratify international human rights treaties must implement domestic measures and legislation compatible with their treaty obligations and duties.

13. The binding nature of international instruments
Politically Binding:
Declarations
Proclamations
Statements
Programmes of Action
Legally Binding:
Treaties
Covenants
Protocols
Conventions
These instruments commit the state to uphold legal obligations as espoused under the document

14. Universal Declaration of Human Rights (UDHR)
On December 10, 1948 Universal Declaration of Human Rights was adopted and proclaimed by the General Assembly of the United Nations .
Defines “human rights”- 30 Articles.
Countries undertook to publicize and disseminated the text of the Declaration.
6 countries abstained including South Africa.
Many rights in the UDHR are considered binding.
Sets for foundation for subsequent international instruments.

15. UN Charter and Treaty systems
Charter system
– Commission on Human Rights/Human Rights Council
– Sub-Commission on the Promotion and Protection of Human Rights
– Special Procedures and Working Groups
Treaty body system
Nine different human rights treaties
Committees under these treaties

16. International human rights mechanism
Treaty-based
ICESCR
ICCPR
CERD
CEDAW
CAT
CRC
CMW
CRPD
Charter-based
Human Rights Council
Special Procedures
Universal Periodic Review
CED 16 16

17. Domestication of a Treaty
(state not bound to treaty provisions).
Signature
(state becomes bound).
Ratification / Accession
(‘enabling legislation’).
Legislative conversion
Implementation in practice.

18. Functions of the Treaty Body Committees
Receive Reports; issue Concluding Observation
Assess Individual Complaints
Issue General Comments
Convention Treaty
• Consider periodic State Reports and issue concluding observations.
• Consider individual communications (complaints mechanism) and issue views.
• Conduct inquiries.
• Issue recommendations and General Comments that help define the human rights standards e.g. right to water, right to life etc.
The Committees are composed of ‘independent experts’. (This differs from the UN Human Rights Council which is composed of State party representatives).

19. Reporting cycle & input
Informal
Report or
Addt’l Info.
Opportunity for Inputs from NHRI’s, NGO’s

20. Overview of Treaties TREATY CONTENT ICCPR
International Covenant on Civil and Political Rights (1966)
A treaty that safeguards the right to life, liberty, and security; to freedom from torture and slavery; to equality before the law; to freedom of movement, association, thought, religion and expression; to privacy; and to the enjoyment of culture .
ICESCR
International Covenant on Economic, Social and Cultural Rights (1966)
Protects a range of economic, social, and cultural rights without prejudice to creed, political affiliation, gender, or race.

21. TREATY
CONTENT
ICERD
International Convention on the Elimination of All forms of Racial Discrimination (1965)
Instrument prohibiting discrimination based on race or national origin, sex, language, or religion.
Committee also focuses on trafficking and violence against women; the lack of prosecution of hate crimes; LGBT rights etc.
CEDAW
International Convention on the Elimination of All forms of Discrimination against Women (1979)
Establishes an international bill of rights for women by defining gender equality and setting an agenda for state action to guarantee the enjoyment of equal rights.

22. TREATY
CONTENT
UNCAT
Convention Against Torture, and other Cruel, Inhuman or Degrading Treatment or punishment (1987)
OPCAT
Optional Protocol to the Convention Against Torture (2003)
Requires states to implement measures to prevent torture within their jurisdiction and forbids them to return persons to a country where there is reason to believe they will be tortured. Establishes the Committee against Torture, which monitors UNCAT.
Establishes a system of regular visits to places where persons are deprived of their liberty.
Sets up a monitoring mechanism i.e. National Preventive Mechanism.
CRC
Convention on the Rights of the Child (1989)
A comprehensive instrument that sets out rights and defines universal principles and norms regarding the status of children.

23. TREATY
CONTENT
ICRMW
The International Convention on the Protection and Promotion of All Migrant Workers and Members of their family (1990)
Establishes the economic, social, cultural, civil and political rights of all persons who are currently engaged or will engage in employment in a country of which they are not a national.
ICRPD
Convention on the Rights of Persons with Disabilities 2006 (Disability Convention)
Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.
ICPED
International Convention for the Protection of All Persons from Enforced Disappearance (2006)
Defines enforced disappearances as a human rights violation and imposes a duty on state parties to criminalize such acts. The Convention recognises the right of families to know what happened to victims and also the right to reparations for victims of enforced disappearances.

24. South Africa’s Status of Ratification
TREATY BODY
STATUS OF RATIFICATION
International Covenant on Civil and Political Rights (ICCPR) 1966
Ratified
International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966
Not ratified
International Convention on the Elimination of All forms of Racial Discrimination (ICERD) 1965
International Convention on the Elimination of All forms of Discrimination against Women (CEDAW) 1979
Convention Against Torture, and other Cruel, Inhuman or Degrading Treatment or punishment (CAT) 1987
Optional Protocol to the Convention (OPCAT)
Convention on the Rights of the Child (CRC) 1989
International Convention on Protection and Promotion on the Rights and Dignity of Persons with Disabilities (ICRDPD)
The International Convention on the Protection and Promotion of All Migrant Workers and Members of their family (ICRMW) 1990
The International Convention for the Protection of All Persons from Enforced Disappearance (ICPED) 2006

25. African regional human rights system
Introduce this section...

26. African Union (AU)
The African Union was officially launched in Durban, South Africa, on 9 July 2002 to replace the Organisation of African Unity.
The African Union upholds the sovereign equality and independence of its 53 member states and aims to promote peace, security and solidarity on the African continent.
The African Union is made up of both political and administrative bodies.
The highest decision-making organ of the African Union is the Assembly made up of all the heads of state or government of member states of the AU.

27. AU Human Rights Instruments
Charter on Human and Peoples’ Rights (Banjul Charter) (1981/1986).
Protocol (to African Charter) on the Rights of Women in Africa (2003/2005) aka the Maputo Protocol.
African Charter on the Rights and Welfare of the Child (African Children’s Charter) (1990/1999).
A protocol to the Charter was subsequently adopted in (effective 2004) establishing an African Court on Human and Peoples' Rights . The aim of the court is to make judgments on African Union states' compliance with the African Charter on Human and Peoples' Rights.

28. Overview of AU Instruments
CONTENT
African Charter on Human and Peoples’ Rights (ACHPR)
Created to protect the human rights and basic freedoms of people living on the African continent. Since its creation, the ACHPR has had significant normative impact on the status of human rights in Africa.
One of the unique features of the ACHPR is the recognition of the economic social and cultural rights on the same footing as civil and political rights.
The African Charter came into effect on 21 October 1986 (this day now known as "African Human Rights Day“)

29. INSTRUMENT
CONTENT
African Charter on the Rights and Welfare of the Child (ACRWC)
(In 1990, the predecessor to the African Union, namely the Organisation of African Unity, formally adopted the African Charter on the Rights and Welfare of the Child)
 Sets out rights and defines universal principles and norms for the status of children.
As with CRC it covers the whole spectrum of civil, political, economic, social and cultural rights.
Establishes the  African Committee of Experts on the Rights and Welfare of the Child to promote and protect the rights established by the ACRWC.
Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (also known as the ‘Maputo Protocol)
(In 2003, the African Union adopted the ‘Maputo Protocol’). The Protocol entered into force in 2005.)
Complementary legal instrument to the African Charter by expanding the substantive protection of women’s rights in Africa, and explicitly providing for women’s health and reproductive rights.

30. African Commission on Human and Peoples Rights
The African Commission on Human and People’s Rights, in existence since 1986.
Established under the  African Charter on Human and People’s Rights (the African Charter) rather than the Constitutive Act of the African Union.
Monitors and promotes compliance with the African Charter.
The African Court on Human and Peoples’ Rights was established in 2006 to supplement the work of the Commission.

31. Reporting in African System
In terms of Article 62 of the AU Charter - submit a report on legislative and other measures every 2 years.
Reporting has been criticized as arduous and too heavy a burden resulting in many states not reporting or reporting late.
Quality of reports have been a matter of concern due to lack of expertise, resources or political will.
ACHPR issues General Comments.

32. Links between national, international and regional protection systems
Int’l
Global & regional protection are complementary
Global & regional norms / principles require national implementation
Global & regional protection if national remedies have been exhausted
National norms / principles should be consistent with global and regional standards 32 32

33. South africa’s reporting record

34. International Covenant on Civil and Political Rights (ICCPR)
Responsible Department
Relevant department
(To give inputs)
Report cycle
Status of reporting
Date of next report
Consultation and approval process
Department of Justice and Constitutional Development
Department of International Relations and Cooperation Department of Women, Department of Social Development
4 years
Due: Initial report and country report --In process
n/a
ICCPR report was approved by Cabinet. Report was submitted to DIRCO for submission to UN. Target date June 2014.

35. International Convention on The Elimination Of All Forms of Racial Discrimination (ICERD)
Responsible Department
Relevant department
(To give inputs)
Report cycle
Status of reporting
Date of next report
Consultation and approval process
Department of Justice and Constitutional Development
Department of International Relations and Cooperation, Department of Women , Department of Social Development, Department of Home Affairs, South African Police Service
2 years
Due: 7th in 2012
In process
2nd – 6th
OVERDUE
2014
8th report
ICERD report was approved by Cabinet. Report was submitted to DIRCO for submission to UN. Target date June 2014.

36. Convention on Elimination of All Forms of Discrimination Against Women (CEDAW)
Responsible Department
Relevant department
(To give inputs)
Report cycle
Status of reporting
Date of next report
Consultation and approval process
Department of Women
Department of International Relations and Cooperation,
Department of Justice; Department of Social Development.
4 years
Or upon request from Committee
2nd 3rd, 4th  reports consolidated and submitted in 2010. 
Concluding observations issued 2011
5th was due 2013
OVERDUE
2015
No update from DOJCS.
Note that on 18 April 2014, CEDAW Rapporteur for Follow-up on Concluding Observations sent second reminder letter to the SA government  regarding
 its lack of response to the Committee’s request that the State provide information on the steps undertaken to implement previous CEDAW Committee 2011 recommendations.

37. Convention Against Torture (CAT)
Responsible Department
Relevant department
(To give inputs)
Report cycle
Status of reporting
Date of next report
Consultation and approval process
Department of Justice and Constitutional Development
Department of Telecommunications and Postal Service, South African Police Service, Department of Home Affairs
Department of Correctional Services
4 years
Due in 2003
In process Combined report 2002-
2013
OVERDUE
2017
CAT report has been re submitted to the Minister for consideration and approval by new Cabinet. subsequently. Report was considered by JCPS Cabinet Committee. Report was revised as decided by the Committee, and now waiting for revised statistics from Correctional Services. Target date August 2014

38. Convention on the Rights of the Child (CRC)
Responsible Department
Relevant department
(To give inputs)
Report cycle
Status of reporting
Date of next report
Consultation and approval process
Department of Social Development
Department of Justice and Constitutional Development
Department of International Relations and Cooperation
5 years
Due in 2002
In process Combined report 2nd, 3rd & 4th report ( ). 02
2017
- Report submitted to DIRCO for depositing with treaty body.

39. Convention on the Rights of Persons with Disabilities (CRPD)
Responsible Department
Relevant department
(To give inputs)
Report cycle
Status of reporting
Date of next report
Consultation and approval process
Department of Social Development
Department of Justice and Constitutional Development Department of International Relations and Cooperation
4 years
Due in 2010
In process
2015
- Report submitted to DIRCO for depositing with treaty body.

40. Protocol to the African Charter on Human & People’s Rights on the Rights of Women in Africa
Responsible Department
Relevant department
(To give inputs)
Report cycle
Status of reporting
Date of next report
Consultation and approval process
Department of Women
Department of Justice and Constitutional Development
Periodic reports
Due in 2002
In process
Combined report for Submitted to DOJ&CD
Committee to
determine
- Combined report for merged with report on rights of women.
- Report finalized in March To be presented to Cabinet in June 2014 for approval.
- Approved report to be forwarded to African Commission.

41. Feedback on outstanding international matters

42. MATTERS
PROGRESS
INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS(ICCPR)
The ICERD Report has been approved by Cabinet. The report has been submitted to DIRCO for onward submission to the UN through mission in Geneva. A target date for submission to the UN is June 2014.
INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION(ICERD)
The ICERD Report has been approved by Cabinet. The report has been submitted to DIRCO for onward submission to the UN through mission in Geneva.
A target date for submission to the UN is June 2014.
CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT(CAT)
The CAT Report has been re-submitted to the Minister for consideration and approval by the new Cabinet subsequently. The report was considered by the JCPS Cabinet Committee. The Report has been revised as decided by the Committee. DoJ awaiting revised stats from DCS for submission to the Ministry and Cabinet subsequently.
A Target date for approval by Cabinet is August 2014

43. MATTERS
PROGRESS
INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS (ICESCR)
The accession on the ICESCR was approved by both Cabinet and Parliament and was submitted to DIRCO to prepare an instrument of accession for submission to the UN.
The target date for submission of the instrument of accession by DIRCO was June 2014.
The instrument of accession includes a declaration that the Government of the Republic of South Africa will give progressive effect to the right to education with the framework of its National education Policy and available resources.
The SAHRC notes with concern the delays in this process. The Commission has consistently called on government to expedite its efforts in this regard. Ratification of the ICESCR complements and strengthens the existing economic, social and cultural rights as contained in the Constitution. This matter requires urgent attention.

44. MATTERS
PROGRESS
OPTIONAL PROTOCOL TO THE CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT(OPCAT)
The Ratification of OPCAT is receiving the attention of the JCPS Cluster of DG's.
The target date for approval by Cabinet is November 2014.
ACCESSION TO THE INTERNATIONAL CONVENTION FOR THE PROTECTION OF ALL PERSONS FROM ENFORCED DISAPPEARANCE (ICPPED)
The accession to the ICPPED was consulted on and approved by DG Clusters. A ministerial memo has been submitted to the Ministry for consideration and approval by Cabinet.
A target for approval by Cabinet is August 2014
REPORT TO THE AFRICAN COMMISSION ON HUMAN AND PEOPLE'S RIGHTS AND WOMEN PROTOCOL
The Report has been finalised and has been re-submitted to the Ministry for approval by the new Cabinet.
A Target date for approval by Cabinet is August 2014.
Thereafter, the Report will be forwarded to the African Commission by DIRCO through mission in Addis Ababa.

45. LGBTI Rights and South Africa’s International Obligations
On 4 March 2014, the Hon. Minister Nkoana-Mashabane, Minister of International Relations and Cooperation presented to the UN Human Rights Council stating:
‘South Africa is committed to host the African regional seminar focusing on the plight of the LGBTI during the first half of this year, mindful that this challenge is a global challenge that is widespread far beyond South Africa and the African Continent’
In 2011, the DOJ established a National Task Team (NTT) addressing violence against LGBTI persons. During working group meetings of the NTT, DIRCO announced that a regional seminar on LGBTI rights would be organised by government.
The SAHRC is a constituent member of the NTT and has received several requests from civil society regarding government’s failure to arrange an African regional seminar on LGBTI rights .
The Commission has written to the Hon. Minister requesting feedback on when the regional seminar will take place . Neither the Minister nor DIRCO have replied to the Commission’s request and at present there is no date set for this seminar.
There will be a follow-up meeting with the UN Human Rights Council where all global regions will report on outcome of the regional seminars If the seminar is not convened, Africa is the only region which will not provide a positive report to the Human Rights Council.

46. Conclusion
When governments ratify treaties, they commit to put domestic legislation in place within their countries so as to ensure that they are meeting their international human rights obligations.
International human rights obligations strengthens the national human rights system often providing enhanced protections.
Parliament’s role is critical, as envisioned by the Constitution to ensure ratification where necessary and that government adheres to its international commitments, including reporting obligations.
Ensuring a sound and active human rights track record is important for South Africa’s standing within the international community of nations.

47. SOUTH AFRICAN HUMAN RIGHTS COMMISSION (SAHRC)
Contact Details
SOUTH AFRICAN HUMAN RIGHTS COMMISSION (SAHRC)
HEAD OFFICE:
Braampark Forum 3, 33 Hoofd Street, Braamfontein, Johannesburg Telephone: +27 (0)
WEBSITES /
  General
SOCIAL MEDIA:
FacebookSAhumanrightscommission YouTube: SAHRC1

48. Thank You