Incorporation Of International Human Rights In South Africa Date: 14 February 2023 Sources of human rights protection - Dualist legal system - Indirect (=constitutional) incorporation: Bill of Rights - Partial incorporation: e.g. CAT The Constitution of the Republic of South Africa 1996 - Purpose • 'Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights;' Bill of Rights - Rights from e.g. UDHR, ICCPR, ICESCR, CRC • 'The state must respect, protect, promote and fulfil the rights in the Bill of Rights.' - Double advantage: • Provides uniformity between South Africa's domestic law and international human rights standards • Directs courts to a 'legitimate international resource for the interpretation of these rights' - Articles 7-39 solely on human rights protection Role of international human rights treaties - Section 39: When interpreting Bill of Rights, court/authority must consider international law - Court must interpret all legislation in the spirit of the Bill of Rights - 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. ' Incorporation of the CAT - Partial incorporation - Prevention of Combating and Torture of Persons Act, 2013 incorporates offence of torture from CAT - Purpose: 'to give effect to the Republic's obligations in terms of the [UNCAT];' Enforcement of human rights - Minister of Health v Treatment Action Campaign (2002) • AIDS epidemic affecting millions - Court confirmed justiciability of ESC rights: state obligation to ensure healthcare - Resulted in difference on the ground: - policy change & estimated thousands of lives saved - Significant decline in infant deaths due to mother-to-child transmission of HIV/ AIDS Awareness and ownership of rights - A huge gap in human rights protection in law vs everyday life - Lack of national action plan on human rights - Duty bearers and rights holders: lack of awareness of rights - Effective local initiatives: e.g. Thuthuzela Care Centres Key lessons from South Africa - Strong legal basis and court application which does not effectively translate into protections on the ground • Poor implementation of incorporated treaties - Highest standard of protection for human rights in Constitution - Partial incorporation can leave gaps in protection: CEDAW