Outline of Presentation

1. South African Human Rights Commission South Africa’s International and Regional Human Rights ObligationsPresentation to the Portfolio Committee on Justice & Correctional Services12 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 231-233 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. Domestication of a Treaty

17. Functions of the Treaty Body Committees • 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 standardse.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).

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

19. Overview of Treaties

23. South Africa’s Status of Ratification

24. African regional human rights system

25. 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.

26. 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 1998 (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.

27. Overview of AU Instruments

29. 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.

30. 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.

31. Links between national, international and regional protection systems 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. South africa’s reporting record

33. International Covenant on Civil and Political Rights (ICCPR)

34. International Convention on The Elimination Of All Forms of Racial Discrimination (ICERD)

35. Convention on Elimination of All Forms of Discrimination Against Women (CEDAW)

36. Convention Against Torture (CAT)

37. Convention on the Rights of the Child (CRC)

38. Convention on the Rights of Persons with Disabilities (CRPD)

39. Protocol to the African Charter on Human & People’s Rights on the Rights of Women in Africa

40. Feedback on outstanding international matters

44. 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.

45. 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.

46. Contact Details SOUTH AFRICAN HUMAN RIGHTS COMMISSION (SAHRC) HEAD OFFICE: Braampark Forum 3, 33 Hoofd Street, Braamfontein, JohannesburgTelephone: +27 (0)11 877 3600 WEBSITES / EMAIL: www.sahrc.org.zaGeneral information:info@sahrc.org.zaComplaints:complaints@sahrc.org.za SOCIAL MEDIA: Twitter: @SAHRComissionFacebookSAhumanrightscommissionYouTube: SAHRC1

47. Thank You