International Treaty Body Monitoring

Judith Cohen

Head of Programme: Parliamentary and International Affairs

South African Human Rights Commission

Presentation to Portfolio Committee on Women, Youth, Children and People with Disabilities, 12 August 2009

Introduction

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

To demonstrate their compliance, states must abide by the treaty guidelines and periodically report to United Nations committees. Independent bodies of experts form the committees that monitor implementation by reviewing state reports and issuing concluding observations and recommendations. Although the exact reporting requirements vary, typically state parties must submit an initial report within one year of ratifying a convention. Periodic reports are subsequently due at regular intervals set by each committee. Additional reports may be required if state parties have acceded to any optional protocols.

UN Treaty Body System

International Covenant on Civil and Political Rights (ICCPR) (1966) and its Optional Protocol.

International Covenant on Economic, Social and Cultural Rights (ICESR) (1966).

International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) (1965).

Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (1979).

The Convention Against Torture and other Cruel, Inhuman or Degrading Treatment (CAT) and its Optional Protocol.

Convention on the Rights of the Child (CRC) (1989). International Convention on the Protection of All Migrant

Workers and Members of their Families (ICRMW) (1990) only entered into force 2003.

2 New Treaty Bodies

International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities (ICRDPD) (the Disability Convention)

International Convention for the Protection of All Persons from Enforced Disappearance

South Africa

Ratified International Covenant on Civil and Political Rights

(ICCPR) International Convention on the Elimination of All

Forms of Racial Discrimination (ICERD) Convention on the Elimination of All Forms of

Discrimination against Women (CEDAW) Convention against Torture and other Cruel, Inhuman

or Degrading Treatment (CAT) Convention on the Rights of the Child (CRC) International Convention on Rights of Person’s with

Disabilities (ICRPD)

South Africa still needs to ratify

International Covenant on Economic, Social and Cultural Rights (ICESR) signed 1994 A 2007 report by the National Assembly and the National

Council of Provinces Parliament of South Africa, Joint Coordinating Committee on the African Peer Review Mechanism, however, countered that there “is no apparent reason for the country’s failure to ratify the Covenant because it imposes no greater duties than the Constitution.”

Current campaign to ratify Optional Protocol to the Convention against Torture (OPCAT) International Convention on the Protection of All Migrant

Workers and Members of their Families (ICRMW) International Convention for the Protection of All Persons from

Enforced Disappearance (ICPED)

SA’s reporting status International Covenant on Civil and Political Rights (ICCPR) SA – r as

requested Initial report due March 2000 – South Africa submitted mid 2009, yet to

appear before Committee International Convention on the Elimination of All Forms of Racial

Discrimination (ICERD) SA – 1998 r 1/2 South Africa appeared before the committee in November 2006 and

presented initial, 2nd and 3rd report. 15 August 2007 progress report outstanding, hate crimes, xenophobia

Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) SA – 1995 r 1/4

2nd (2001) & 3rd (2005) reports submitted in 2008. Convention against Torture and other Cruel, Inhuman or Degrading

Treatment (CAT) SA – 1998 r 1/4 Initial report submitted 2005 (due 2000) considered Nov 2006, next

report due Dec 2009. Nov 2007, progress report outstanding (non refoulement; NPM, rights victims of torture to claim compensation; violence against women and children; legislation to criminalise torture

Convention on the Rights of the Child (CRC) SA – 1995 r 2/5 Initial report 1997, considered 2000; supplementary report 2002 – 2nd

and 3rd reports now outstanding

Treaty Bodies

Breakdown of Treaties

ICCPR civil & political rights

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 – economic social & cultural rights Protects a range of economic, social, and

cultural rights without prejudice to creed, political affiliation, gender, or race.

Ratification campaign by civil society. Commission also liaised with civil society and government departments to ratify.

ICERD - Discrimination

a comprehensive 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 - Women

the Elimination of All Forms of Discrimination against Women (CEDAW) 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

Committee often comments on violence against women, prostitution and trafficking, and women’s health.

CAT - Torture

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.

Recommendations from the Committee inlcude, the criminalization of torture; the need for training regarding the provisions of the Convention for law enforcement personnel and; difficulties of asylum seekers

OPCAT - Subcommittee

National Preventative Mechanism of all places where persons are detained against their will.

Commission advocating for the ratification of OPCAT and the establishment of a NPM.

CRC - children

A comprehensive instrument that sets out rights and defines universal principles and norms regarding the status of children

Areas of concern raised; about high rates of HIV infection in children, female genital mutilation, child physical and sexual abuse, and child prostitution

Requires review of legislation to ensure no violence of children in any setting

ICPMW – Migrant workers

Firmly 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

The need to protect particularly vulnerable groups of migrants, especially children, and recommended that steps be taken to eliminate hazardous forms of labor for migrant children, to prevent commercial sexual exploitation of migrant children, and to ensure that migrant children involved in trafficking and/or prostitution are properly treated as victims.

ICRPD - Disability

Comprehensive instrument that articulates the rights of person’s with disabilities.

The SAHRC also designed a Toolkit for training and awareness raising on the Convention, which was launched at a conference in December 2007.

Children with disabilities often face major barriers to education, including refusals to accommodate learners in mainstream schools to these schools not being accessible.

ICPED – Enforced disappearances

This Convention is significant as it defines enforced disappearances as a human rights violation and imposes a duty on state parties to criminalise 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. The Convention is novel in that family members are also recognised as victims.

Role of parliamentary committees

Monitoring as oversight

Ratification

Encourage ratification ICESCR – economic social and cultural rights OPCAT – establishment of national

preventative mechanism (NPM) ICRMW – Migrant workers and their families ICPED - Enforced Disappearance, victims

can be family members

1. Before the Treaty Body Session

Increase awareness about the Treaty Body systems through Information and training sessions Ensuring that members of the committee are aware of South

Africa international treaty body obligations Infuse the treaty body obligations into the daily work of the

committee Actively hold sessions on the treaty bodies and call

government officials to account on the process and specific issues

Request Department of International Affairs and Co-operation and responsible government departments to keep the committee up to date on the status of SA’s reporting obligations

2. During the Treaty Body session

Host meetings, create awareness in constituencies Issue press statements, participate in public

meetings, radio talk shows

3. After the Treaty Body session

Publicizing and awareness raising domestically about the proceedings before the Treaty Body and the concluding observations and recommendations.

Monitoring the implementation by government of the recommendations.

African Regional System

African Charter on Human and People’s Rights, 1981 In terms of Article 62 - 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

Makes General Comments

African Instruments

African Charter on Human and Peoples’ Rights The African Charter’s deals with gender in its preamble and

in Articles 2, 3, and 18(3). Article 18(3) addresses specifically the rights of women by making it a duty on States to "eliminate all forms of discrimination against women and ensure adequate protection of women and children’s rights as they are stipulated in international conventions and declarations".

The Protocol to the African Charter on Human and peoples’ Rights, relative to the Rights of Women in Africa was adopted in July 2003 and entered into force on 25 November 2005

African Charter on the Rights and Welfare of the Child

Corporal punishment provisions: Art 11(5): parties to the Charter should take all appropriate

measures to ensure that a child who is subjected to school or parental discipline shall be treated with humanity and with respect to the inherent dignity of the child.

Art21(1): parties should take all appropriate measures to eliminate harmful social and cultural practices affecting the welfare, dignity, normal growth, development of the child and those customs and practices prejudicial to the health or life of the child.

Disability provisions: Art 13: special mention of PWDs by calling for adoption of

special measures of protection, together with the principle of self-reliance, participation and access.

Universal Periodic Review

UPR is new mechanism established by the Human Rights Council (HRC).

Its aim is to improve the human rights situation on the ground, in every UN member state, by assessing the fulfillment of each country’s human rights obligations and looking at positive developments and challenges in this area.

All member states will be reviewed, in sessions, over a period of four years. South Africa was reviewed in the first session, which took place in April 2008.

Recommended to South Africa to systematically and continuously integrate a gender perspective in the follow-up process to the UPR (Slovenia);

UPR Recommendations

Recommended to take increased measures to protect and provide redress to women at risk of or subjected to gender-based violence (The Netherlands);

Recommended South Africa to follow up on the recommendation made by the Committee against Torture to adopt all necessary measures to prevent, combat and punish violence against women and children (Switzerland);

Recommended that concrete measures be taken to improve the handling by police of rape cases and to curb rates of violence, particularly against women and girls (Canada);

Recommended to South Africa to persevere in its efforts to promote the rights of education and to pay particular attention to continuing and disseminating the culture of human rights among young people as part of its educational and pedagogical programme (Tunisia);

Conclusion

South Africa’s standing in the international community.

Role of international law in ensuring that we achieve the full enjoyment of the rights in the constitution.

Contact Details

Parliamentary and International Affairs Programme – South African Human Rights Commission Head of Programme: Judith Cohen Email: jcohen@sahrc.org.za /

stula@sahrc.org.za Tel: 021 426 2277 Fax 021 426 2875 132 Adderley Street, 7th floor ABSA Building