- South Africa as a Party to the ICERD:A briefing paper*
International aversion to doctrines and practices of apartheid was one of the influences that led the United Nations General Assembly, by a unanimous vote on 21 December 1965, to adopt the International Convention for the Elimination of All Forms of Racial Discrimination (ICERD). In the drafting process it had been decided to make no reference to specific forms of racial discrimination, yet on only the previous day the drafting committee had made an exception, since Article 3 condemns ‘segregation and apartheid’.
Adoption of the Convention was a major advance in at least two respects. Firstly, it was an advance upon the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, because it included an enforcement process. States Parties to the ICERD undertook to submit to the UN, every two years, reports on what they were doing to implement the obligations they had undertaken. The States Parties were to elect a committee of 18 experts, to be known as the Committee on the Elimination of Racial Discrimination (CERD). This committee was to report annually to the General Assembly. It was empowered ‘to make suggestions and general recommendations based on the examination of the reports and information received from the States Parties’. [End Page 86]
Secondly, the ICERD provided in Article 14 that a state might, by a separate declaration, authorise CERD to issue an advisory opinion on any communication from an individual within that state’s jurisdiction who claimed to be a victim of a violation by the State Party of any of the rights set forth in the Convention.
In 1960 the United Nations had ‘condemned colonialism and all practices of segregation and discrimination associated therewith’ (as quoted in the fourth of the ICERD’s preambular paragraphs). So it was not surprising that CERD’s task (starting in 1970) was seen as political, and that many of the experts elected to it were diplomats. Since then, and particularly since the ending of the so-called Cold War, CERD’s activities have expanded (Banton 1996). I was a member of CERD from 1986 to 2001. By 2012, 170 of the UN’s 193 states had become parties to the ICERD, although so far only 47 have made a declaration permitting communications under Article 14.
In late 1992, as a member of CERD, and as representing the UN High Commissioner for Human Rights, I participated in a conference in the University of Pretoria on De Facto Racial Discrimination (Heyns et al 1994). Arrangements were made for me to visit the head of the South African diplomatic corps at the Ministry of Foreign Affairs. I put it to him that the ICERD provided a means of protecting certain rights of all persons. Ratification at that time would entail an acceptance by future South African governments of obligations to protect the rights of persons who in 1992 might not feel the need for additional protections. My representations were courteously received but I was given no indication about whether they might win favour with the government of the day.
On 10 December 1998 a different government of South Africa ratified the ICERD and, at the same time, made the declaration permitting communications under Article 14.
To follow the resulting proceedings, it is best to consult the UN Human Rights website and to look for the Treaty Bodies database. There, one can select CERD (as the convention), South Africa (as the country) and go to ‘type of document’. Under ‘State Report’, one can locate CERD/C/46/ Add.3. This is a document of December 2, 2004 that contains the initial, second and third periodic reports of South Africa submitted as one document. Under ‘Summary Record’, one can locate CERD/C/SR.1766 and 1768, being a record of the examination of that report in Geneva on August 6-7, 2006. In the future one may be able to consult the ‘Core Document’, a state [End Page 87] report bringing together basic constitutional and demographic information relevant to all the human rights conventions to which the state is a party. South Africa is yet to submit a Core Document...