UN Convention against Transnational Organised Crime and Protocols: Ratification

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Justice and Correctional Services

23 October 2003
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Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
24 October 2003
UN CONVENTION AGAINST TRANSNATIONAL ORGANISED CRIME AND PROTOCOLS: RATIFICATION

Chairperson:
Adv J H de Lange (ANC)

Documents Handed Out
Explanatory Memorandum: Ratification of the UN Convention against Transnational Organized Crime (the Convention) and Protocols
Implementation Plan: UN Convention against Transnational Organised Crime and Protocol
Report on United Nations Convention against Transnational Organized Crime

Committee Reports supplementing the United Convention against Transnational Organized Crime:
-Protocol against trafficking in Persons, especially Women and Children (Appendix 1)
Protocol against the smuggling of migrants by Land, Sea and Air (Appendix 2)
-Illicit Manufacturing and trafficking in firearms (Appendix 3)

SUMMARY
The Committee was briefed on the provisions of the Convention and Protocols that imposed obligations on the Republic of South Africa. It was indicated that South Africa has various legislation catering for the offences mentioned in the above instruments. However, some of the offences, such as, trafficking in persons, are not dealt with in legislation. It was also indicated that South Africa had reservations against the compulsory jurisdiction of the International court of Justice regarding the interpretation or application of the convention. South Africa believes that parties should consent to the jurisdiction of the International Court of Justice on a case by case basis.

MINUTES
United Nations Convention
Mr N.J Makhubele (Director: International Affairs-Department of Justice) sought to explain the UN Convention as well as the Protocols thereto. The Chairperson suggested that he should deal with the main provisions that potentially imposed obligations on the Republic of South Africa. Please refer to attached Explanatory Memo on Ratification of UN Convention.

The presenter said that the Convention establishes four specific crimes:
article 5, participation in organised criminal groups;
article 6, money laundering;
article 8, corruption; and
article 23, obstruction of justice

Mr Makhubele said that the Convention requires states parties to enact legislation making these activities domestic offences if they are not already offences. He said that South Africa complies with this requirement in that there is the, inter alia, Prevention of Organised Crimes Act; Financial Intelligence Act; and the Corruption Act.

The presenter said that article 18 states that Parties shall afford one another the widest measure of mutual legal assistance in investigations, prosecutions and judicial proceedings in relation to offences which are transnational in nature and involve an organised criminal group. He said that Parties may decline to render assistance on the ground of absence of dual criminality.The article furthermore requires a State Party to designate a central authority that shall have the power to receive requests for mutual legal assistance and shall either execute them or transmit them to a competent authority for execution. The Director General of the Department of Justice and Constitutional Development shall be designated as such authority.

Advocate de Lange said that the Director General of the Department of Justice has already been designated as such central authority and therefore the presenter should have said that the Director General had been designated as such authority.

The presenter agreed that the director General of the Department of Justice had already been designated as the central authority. He said that the main issue is to inform the Secretary-General of the UN of such designation.

Advocate de Lange felt that the use of 'shall' was wrong. He said that it would be better if the presenter just indicated in the memorandum that the designation had already been made and was merely confirmed.

Mr Makhubele said that article 25 requires States Parties to take appropriate measures to provide assistance and protection to victims covered by the convention. He said that the Convention said that parties shall establish appropriate procedures to provide access to compensation and restitution for victims of offences covered. He also said that an opinion sought and received from the state law advisers said that article 25 did not envisage that states must establish a compensation fund for victims. Law advisers feel that what is required are legislative procedures allowing victims to claim compensation from the perpetrators of the crimes.

The presenter said that no compensation existed for victims of offences in South Africa. He indicated that there were various Acts providing for mechanisms in terms of which victims may be awarded compensation for damage suffered that caused by a person convicted of an offence that had caused damage to or loss of property. He referred to section 300 of the CPA, 51 of 1977 and sections 30 and 69A of the Prevention of Organised Crimes Act. Although there was no obligation on South Africa to establish a compensation fund, the SA Law Reform Commission was investigating the possibility of establishing such a fund.

The Chairperson said that there were more measures that facilitation claims for compensation and that they should be reflected.

Mr Makhubele said that article 35 provides for settlement of disputes concerning the application or interpretation of the convention through negotiation or arbitration. He said that the convention also covers reservations regarding the settlement of disputes through arbitration or requesting the International Court of Justice (ICJ) to do so. He said that South Africa does not recognise compulsory jurisdiction of the ICJ. Consequently the following reservation has been entered:
Pending a decision by the government of the Republic of South Africa on the compulsory jurisdiction of the International court of Justice, the government of the Republic does not consider itself bound by the terms of article 35(2) of the Convention which provides for the compulsory jurisdiction of the ICJ in differences arising out of the interpretation or application of the Convention. The Republic will adhere to the position that, for the submission of a particular dispute for settlement by the International court, the consent of all parties to the dispute is required in every individual case.

Protocols
The protocols supplement the Convention and should be interpreted together with the Convention.

Protocol Against Trafficking in Persons

The presenter said that article 5 of the Protocol requires States Parties to adopt legislative and other measures necessary to establish as criminal offence the trafficking of persons, including attempting to commit an offence and participating as an accomplice. He said that there is currently no legislation criminalising such conduct.
Please refer to Appendix 1.

Advocate De Lange thought that the Sexual Offences Bill has a clause bearing on this issue. Ms S Camerer (DA) added that a suggestion has been made that a provision against trafficking in persons be included in the Bill.

The presenter said that article 6 provides that each state party shall consider implementation measures for the physical, psychological and social recovery of victims of trafficking in person, including the provision of appropriate housing, counselling and information regarding their rights in a language they understand. He indicated that South Africa had no measures to deal with this. State Law Advisors advised that States Parties are only obliged to consider and not obliged provide assistance to victims.

The presenter said that article 8 provides for the repatriation of victims of trafficking in persons. There is a common understanding with the Department of Home Affairs that this article imposed some financial obligations. He said that the Department of Home Affairs would provide the necessary documentation and be responsible for facilitating repatriation.

The presenter concluded by adding the reservation that was added under the Convention.

Advocate de Lange suggested that it should be mentioned that the Portfolio Committee on Justice and Constitutional Development would include aspects of trafficking in persons in the Sexual Offences Bill so far as they relate to sexual offences.

Protocol against smuggling of migrants
The presenter said that this protocol also concluded with the same reservation about the compulsory jurisdiction of the ICJ regarding the interpretation or application of the Convention. Please refer to Appendix 2.

He said that article 8 of this protocol deals with the measures against the smuggling of migrants by sea. He indicated that the protocol states that a flag state may authorise a requesting state to, inter alia, board and search a vessel. If evidence of smuggling of migrants is found the requesting state may take appropriate measures with respect to the vessel, persons and cargo on board, as authorised by the flag state. The protocol requires a party to designate an authority to receive and respond to requests for assistance, for confirmation of the registry or of the right of a vessel to fly its flag and for authorisation to take appropriate measures. South African Maritime Safety Authority (SAMSA) would be designated as such authority and that the Departments of Transport and Home Affairs, SAPS and the SANDF would complement SAMSA.

Mr Makhubele said that there was no legislation dealing with the smuggling of migrants and that special legislation was necessary. Responding to the chairperson's question as to whether there is absolutely no legislation dealing with this issue, the presenter said that there is the Immigration Act. He said that the problem with this Act is that it does not adequately cover the problem of smuggling as defined in the protocol.

Advocate de Lange said that the Department of Home Affairs should indicate how it proposes to address this issue. The presenter indicated that there was currently some debate as to who should deal with this issue. The Chairperson indicated that he did not understand how the Department of Home Affairs did not want to be responsible, as it is the one that deals with migrants.

Advocate de Lange said that he was worried with the designation of SAMSA as the authority to receive and respond to requests for assistance. He said his main concern was that SAMSA was not a government department and this would make it difficult for government to account on what happened with regard to the smuggling of migrants. He suggested that the Director General of the Department of Transport should be designated as such authority.

Protocol against trafficking in firearms
Article 5 of the protocol states that state parties shall adopt such legislative and other measures to establish as criminal offences, illicit manufacturing of and trafficking in firearms, their parts, components and ammunition and falsifying or illicitly obliterating, removing or altering the markings on firearms. The presenter said that the SAPS has indicated that South Africa fully complied with this protocol. Advocate de Lange agreed that the law adequately covers the problem but there is a problem of implementation. Please refer to Appendix 3.

The meeting was adjourned.

Appendix 1
The Portfolio Committee on Justice and Constitutional Development, having considered the request for approval by Parliament of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime
, referred to it, recommends that the House -

  1. approve the said Protocol in terms of Section 231(2) of the Constitution; and
  2. approve that South Africa, in line with her previous position, when ratifying United Nations multilateral treaties, enter a reservation against the compulsory jurisdiction of the International Court of Justice with regard to settlement of disputes arising out of the interpretation or application of the Protocol as provided for in article 15(3) of the Protocol. The reservation has been formulated as follows:
  3. "Pending a decision by the Government of the Republic of South Africa on the compulsory jurisdiction of the International Court of Justice, the Government of the Republic does not consider itself bound by the terms of article 15(2) of the Protocol which provides for the compulsory jurisdiction of the International Court of Justice in differences arising out of the interpretation or application of the Convention. The Republic will adhere to the position that, for the submission of a particular dispute for settlement by the International Court, the consent of all the parties to the dispute is required in every individual case."

    Appendix 2
    Committee Report Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention against Transnational Organized Crime:

    The Portfolio Committee on Justice and Constitutional Development, having considered the request for approval by Parliament of the Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention against Transnational Organized Crime, referred to it, recommends that the House -

  4. approve the said Protocol in terms of Section 231(2) of the Constitution;
  5. approve that the South African Maritime Safety Authority (SAMSA) be designated as an authority to receive and respond to requests for assistance, confirmation of registry or of a right of a vessel to fly its flag and authorization to take appropriate measures as required by article 8(6) of the Protocol. Further approve that SAMSA will be complemented by the Departments of Transport and Home Affairs, SAPS and SANDF; and
  6. approve that South Africa, in line with her previous position, when ratifying United Nations multilateral treaties, enter a reservation against the compulsory jurisdiction of the International Court of Justice with regard to settlement of disputes arising out of the interpretation or application of the Protocol as provided for in article 20(3) of the Protocol. The reservation has been formulated as follows:
  7. "Pending a decision by the Government of the Republic of South Africa on the compulsory jurisdiction of the International Court of Justice, the Government of the Republic does not consider itself bound by the terms of article 20(2) of the Protocol which provides for the compulsory jurisdiction of the International Court of Justice in differences arising out of the interpretation or application of the Convention. The Republic will adhere to the position that, for the submission of a particular dispute for settlement by the International Court, the consent of all the parties to the dispute is required in every individual case."


    Appendix 3
    Committee Report on Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition, supplementing the United Nations Convention against Transnational Crime:

    The Portfolio Committee on Justice and Constitutional Development, having considered the request for approval by Parliament of the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition, supplementing the United Nations Convention against Transnational Crime, referred to it, recommends that the House -

  8. approve the said Protocol in terms of Section 231(2) of the Constitution;
  9. approve that the Central Firearm Register within SAPS be designated as a national body or single point of contact to act as liaison between it and other State Parties on matters relating to the Protocol as required by article 13(2) of the said Protocol; and
  10. approve that South Africa, in line with her previous position, when ratifying United Nations multilateral treaties, enter a reservation against the compulsory jurisdiction of the International Court of Justice with regard to settlement of disputes arising out of the interpretation or application of the Protocol as provided for in article 16(3) of the Protocol. The reservation has been formulated as follows:

"Pending a decision by the Government of the Republic of South Africa on the compulsory jurisdiction of the International Court of Justice, the Government of the Republic does not consider itself bound by the terms of article 16(2) of the Protocol which provides for the compulsory jurisdiction of the International Court of Justice in differences arising out of the interpretation or application of the Convention. The Republic will adhere to the position that, for the submission of a particular dispute for settlement by the International Court, the consent of all the parties to the dispute is required in every individual case."

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