The domestic impact of the international convention on the elimination of all forms of racial discrimination in South Africa

Abstract

10 December 2023 marks 25 years of South Africa’s ratification of the International Convention on the Elimination of Racial Discrimination (ICERD). The creation of this treaty was a response to apartheid in South Africa, in addition to other racial calamities across the globe. The ratification took place as the Truth and Reconciliation Commission’s proceedings were happening, providing a good opportunity for an international mechanism on racial discrimination to influence the country’s transition. It is thus necessary to take stock of what the Convention has done in South Africa in the past 25 years after the transition. This study assesses the domestic impact of the ICERD in South Africa, and it uses the themes of land rights, prosecution of apartheid crimes (‘TRC-related prosecutions’), and racial equality, to assess impact. It aims to assess whether there has been impact both in law and in practice, and also uses a comparative analysis to assess whether the full potential of ICERD has been put to use in addressing the study themes in the South African context. The study employed a working definition of impact, considering impact to be the ability of ICERD to ensure the realisation of its norms within RSA, both in law and in practice, and as a result of engagements between all relevant domestic and international actors. In the assessment of the Convention on the study themes, this study found that there is impact in law, although sometimes it is delayed and legislative processes are prolonged. However, there were gaps between the law and realities on the ground, such that impact in practice was limited across the themes. Having analysed the domestic impact, this study discusses some of the reasons that have led to the current levels of impact. In this regard, the study assesses the limitations that each actor within the State reporting system faces. The limitations varied from institutional constraints and resource limitations to actors not accurately understanding the value of the engagements on the Convention. The study ends with recommendations for each of the actors to enhance their contributions in the State reporting process, which will enrich the discussion and potentially improve overall impact.