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South Africa and Civil and Political Rights.

1 Introduction

At the UN Human Rights Council (UNHRC), South Africa has a record of defending human rights-abusing regimes. (1) South Africa admits that it opposes "naming and shaming" countries over their rights records, but insists that internationally it is a defender of human rights. South Africa's former deputy foreign minister Aziz Pahad has argued that if one were to exclude country-specific resolutions and instead looked at South Africa's other actions at the UNHRC, South Africa's commitment to defending human rights "can never be challenged." (2) In other words, if one excluded Agenda Item 4, "Human rights situations that require the Council's attention," and judged South Africa on the remaining nine, mostly thematically organized agenda items, South Africa's record would appear first-rate. In this study, I examine South Africa's UNHRC positions on one thematic human rights area: civil and political rights.

Quantitative studies of human rights voting at the Human Rights Council are not unanimous but allow the tentative prediction that, because South Africa is a democracy and because it respects human rights domestically, it will likely support civil and political rights at the UNHRC. (3) Some theories of international relations provide further grounds for expecting South Africa to support civil and political rights at the UNHRC. The expectation that democracies will support international human rights exists in liberal international relations theory, (4) but is most prominent in constructivism. Constructivists see national identity as an important determinant of a state's international behavior. From a constructivist perspective, officials adopt certain policies because they chime, and because they believe they should chime, with the identity they see their state as holding. (5) The identity of a state implies its preferences, interests, and resultant actions. (6) While national identity shapes foreign policy choices, leaders also justify their choices by referring to the relevant elements of the national identity. (7) We should therefore expect democracies to support human rights internationally--such support is a reflection of the values and self-understandings that predominate in democratic countries.

National identity can change, which means that a state's interests and expected international behavior will also change. (8) The factors that uphold and change a state's identity are both domestic and external and mutually influence each other. Constructivists see states as having more agency than do, say, neorealists, but view states as nevertheless restricted in rearticulating their identity. As Ted Hopf points out, "Choices are rigorously constrained by the webs of understanding of the practices, identities, and interests of other actors that prevail in particular historical contexts." (9)

An initial glance at South Africa's identity suggests that it is likely to be an international defender of civil and political rights. Human rights were central to the fight against apartheid and have remained so in postapartheid South Africa. The 1955 Freedom Charter articulated the core principles of the antia-partheid struggle, envisioning a country in which "all shall enjoy equal human rights." The end of apartheid and South Africa's democratization are held up as a victory of human rights over racial hatred and discrimination, an achievement South Africans celebrate every year as Human Rights Day and Freedom Day. For South Africa's diplomats, the country's Bill of Rights is supposed to be their "Bible," their guide to creating "a better world with more justice and more human rights." (10) Indeed, ever since Nelson Mandela declared in 1993 that human rights will be the light to guide democratic South Africa's foreign policy, foreign policy officials have offered assurances of South Africa's international commitment to human rights. (11) South Africa has defined itself as above while, additionally, the international community has tried to hold South Africa to its pronouncements on human rights and has expected its foreign policy to be consistent with its human rights struggle against apartheid. (12)

Newly democratic South Africa started off with a foreign policy devoted to human rights, but before long this commitment was scaled back. A crucial moment in this redirection took place in 1995 when Mandela called for sanctions against Nigeria after the Sani Abacha regime executed Ken Saro-Wiwa and eight other activists. Mandela's call left South Africa isolated--the Organization of African Unity described Mandela's actions as "not an African way to deal with an African problem." (13) As South Africa became less strident in defending international human rights, other foreign policy priorities came to the fore. One change was more emphasis on pursuing economic opportunities, (14) another was a stronger association with Africa. Laurie Nathan remarked that Thabo Mbeki's approach to international affairs was grounded in three commitments: democracy, Africanism, and anti-imperialism. The latter two were rarely in conflict, but sometimes clashed with an adherence to democracy. When this happened, Nathan argues, democracy usually gave way. (15) A more recent assessment found that South African foreign policy has continued to become less liberal and increasingly "counter-hegemonic," "Third Worldist," "solidaristic," and "anti-imperialist." (16) Domestically, alongside a liberal political culture, "liberationist" political values (influenced by socialism and third world nationalism) have long been present. (17) Between 1995 and 2014, there was a 19 percent drop in South Africans' support for democracy. (18) In addition, the ruling African National Congress (ANC) seems to have become more anti-imperialist. The ANC's 2015 foreign policy discussion document, whose authors included past and present cabinet ministers, (19) complains that the collapse of socialism "altered completely the balance of forces in favor of imperialism" and describes Chinese human rights activists as U.S.-directed "counter-revolutionaries" and pro-democracy protests in Russia as "counter-revolutionary." (20) Significantly, in 2011, South Africa joined Brazil, Russia, India, China, and South Africa (BRICS). BRICS is a grouping that pushes for economic cooperation, multilateralism, and global institutional reform and occasionally hints that it is a counterweight to the West, perhaps even a foundation for an alternative framework of global governance. (21) A leaked diplomatic cable revealed that, at the UNHRC, the United States regards South Africa as a delegation "unfriendly" toward itself. (22) Friendship with the BRICS countries, however, considering that two BRICS members are authoritarian, has constrained South Africa's ability to stand up for human rights. (23)

Despite South Africa's anti-imperial posture, human rights remain very much part of how South Africa defines itself. For instance, in 2017, South Africa's deputy foreign minister declared that "respect for human rights has been the defining feature of South Africa's political history. Our struggle in this regard spans over 350 years and therefore the Government and its peoples will never abandon the values it has cherished for so long." (24)

How will tension between human rights and anti-imperialism translate into action on civil and political rights at the UNHRC? Two options seem likely: considerable inconsistency or a tepid middle course. However, in this article I show that South Africa's actions ranged from failing to uphold civil and political rights to supporting their restriction. In other words, there is little reflection of the vaunted human rights part of South Africa's national identity.

This article consists of two main parts. First, I discuss South Africa's record on civil and political rights at the UNHRC. In the second part, I weigh likely explanations of South Africa's UNHRC record, arguing that South Africa's record is more regressive than South Africa's associations with Africa, China, and the Global South dictate. Anti-imperialist commitments explain South Africa's actions at the UNHRC, but this anti-imperialism cannot be explained by means of a national identity argument. Rather, the signs point to the influence of key foreign policy officials with strong anti-imperialist beliefs. In the concluding section, I consider the theoretical significance of South Africa's UNHRC record.

Given the large number of UNHRC resolutions--from 2006 (when the UNHRC first started) to 2016, the UNHRC adopted 868 resolutions--it is necessary to narrow the scope of this article in a number of ways. I examine solutions whose titles indicate that they are about civil and political rights. Civil and political rights protect individuals against undue restrictions of their liberty, and guarantee their participation in civil society and the political process. However, I excluded resolutions that focus on specific identities (e.g., gender, race, or sexual orientation) that are often placed in a civil rights frame because their focus often is only indirectly related to participating in political life. The following are examples of such resolutions: Elimination of Discrimination against Women, Women focused on women and health, (25) the 2015 version focused on culture and family life, (26) and the 2014 resolution concentrated on the economic and workplace dimensions of discrimination against women. (27) At the UN, South Africa has been a leader on antiracism and in June 2011 led the UNHRC to adopt the first-ever UN Resolution on Sexual Orientation and Gender Identity (SOGI). Will the exclusion of identity-based resolutions therefore not make South Africa's record look less supportive of human rights? Not really. South Africa uses racism resolutions to attack the West, (28) while letting slide "racism, racial discrimination, xenophobia and related intolerance" elsewhere such as its abstention on a 2017 resolution condemning the ethnic cleansing of the Rohingya in Myanmar. (29) Regarding SOG I, South Africa's leadership on the June 2011 resolution stemmed from a March 2011 attempt to strangle these rights at the UN. After June 2011, South Africa often opposed or frustrated progress on SOGI at the UN. (30) In 2016, South Africa abstained on the SOGI resolution.

Most UNHRC resolutions are adopted without a vote. It is difficult to know what this says about the human rights commitments of states who go along with such seeming consensus. Considering that, in 2016, 67 out of 100 general session resolutions were adopted without a vote, while the likes of Burundi, Cuba, China, and Saudi Arabia were members, it is safe to say that states often go along with resolutions with which they quietly disagree. The fact that states often do not explain their votes compounds our interpretative difficulties. Given the uncertain meaning of states' silence, in this article I focus on resolutions on which there was disagreement enough for a vote to take place--whether on amendments or on the final resolution--because votes force states to show their hand. South Africa's UNHRC statements provide further information. Given the aforementioned criteria, the discussion in Part 1 is organized around all of the 2014-2016 resolutions on peaceful protest, civil society space, human rights defenders, political participation, the Internet, rule of law, and judicial integrity.

In 2014, South Africa rejoined the UNHRC for the first time since its 2006-2010 membership. How do South Africa's earlier and later memberships compare? From 2006 until 2010, the UNHRC was dominated by opponents of civil and political rights and country-specific resolutions. (31) The ancestry of civil and political rights resolutions adopted during this period lay in the UNHRC's predecessor, the Commission on Human Rights--there were none on new themes. During the 2006-2010 period, the main civil and political rights disputes were on freedom of expression, especially speech critical of religion. (32) Put before a choice, South Africa always voted to restrict free expression. (33)

How does South Africa's consistent animosity toward civil and political rights compare to the trajectory of these rights from 2006 to 2016? In short, whereas South Africa remained illiberal, the UNHRC started out illiberally (34) but, by 2011, was moving in a liberal direction. Evidence for such increased liberalism is threefold. First, the various initial attacks on the right to free expression were subdued. (35) Of these, the Islamic bloc's Combating Defamation of Religions resolutions, which proposed changing international law to outlaw speech disrespectful of religion, (36) were the most significant. (37) The defamation resolutions were adopted annually from 2007 to 2010, but were replaced in 2011 with a consensus text that, instead of protecting beliefs from criticism, emphasized protecting believers. (38) Second, from 2011, the UNHRC increasingly imposed investigations on states whose human rights violations included extensive violations of civil and political rights. (39) Third, from 2011 onward, the UNHRC began adopting resolutions on new civil and political rights themes, including on human rights and the Internet, peaceful protest, and equal participation in public affairs.

One final point: When evaluating a vote, which is the strongest human rights position to take? My approach is to draw on the public positions of respected human rights nongovernmental organizations (NGOs) such as Amnesty International, Human Rights Watch, International Service for Human Rights, and Article 19 for guidance.

2 On the Human Rights Council

2.1 Human Rights and Peaceful Protest

Between 2014 and 2016, the resolution The Promotion and Protection of Human Rights in the Context of Peaceful Protests was presented twice. On both occasions, but especially in 2014, South Africa demonstrated its deep hostility to the right to peaceful protest. South Africa's record is astonishing if one considers the importance of mass protests in bringing down the apartheid regime. (40) Furthermore, the Sharpeville massacre, which took place in 1960 when police gunned down sixty-nine persons protesting against "pass laws," and the Soweto uprising, which refers to a day in 1976 when police opened fire on children protesting against having to learn Afrikaans at school, leaving 176 persons dead, are key events in South Africa's political history. In democratic South Africa, both events--failures of the state to respect the human rights of peacefully protesting citizens--are commemorated as public holidays.

Before the March 2014 session, the UNHRC had adopted one decision and two resolutions on peaceful protests without a vote. At the March 2014 session, however, opposition to the resolution spiked. The attack came from Algeria, Belarus, China, Cuba, Egypt, Ethiopia, India, Namibia, the Russian Federation, Saudi Arabia, and Venezuela, with South Africa acting as their spokesperson.

Introducing its four hostile amendments, South Africa claimed that the aforementioned countries were "fully supportive" of the rights of peaceful assembly, association, and free expression. (41) South Africa then proceeded to attack and qualify these rights. Protesters, South Africa argued, "should bear in mind the concomitant duties and responsibilities attached thereto," (42) a statement, as Human Rights Watch (HRW) noted, designed to deflect from the responsibilities of states to protect individuals from rights violations. (43) South Africa continued, "Leaders of protests must equally be held accountable for the preservation of the sanctity of life." (44) Note the misdirection: the resolution was about peaceful protest, yet South Africa was portraying protestors as violent.

South Africa further criticized the draft resolution for using a "conceptual framework that assumes there is a right to peaceful protest." (45) This is an awkward objection considering that South Africa's Bill of Rights grants everyone "the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions."

Echoing a Chinese talking point, (46) South Africa claimed that protest "should not constitute a threat to national security or stability.... In many cases, it has been proven that this incitement is orchestrated extraterritorially, and imported into a country to cause instability. The [resolution] actually aims at coercively extracting impossible undertakings from states, which, if accepted, would invariably lead to a total collapse of the governance systems and structures in states." (47) It is unclear which "many cases" South Africa was referring to. In addition, by alleging external incitement to protest, South Africa was deflecting from arguably the far more common source of protest action: Local dissatisfaction. Furthermore, with regard to protest and national stability, as HRW pointed out, this clause is subjective and open to abuse. It also assumes that political stability is always preferable over instability and regime change. Consider, for instance, this statement in a famous 1985 speech by Oliver Tambo, then president of the ANC: "The time has come that the rest of the black masses of our country, all 25 million of us, should join in one determined offensive to make all of our country ungovernable." (48) Finally, South Africa's direct linking of protest and the collapse of social order is empirically dubious. While protests have brought down governments--examples of protests causing a collapse of social order are harder to come by--in the vast majority of cases, life returns to relative normality once the protest is over.

South Africa's first proposed amendment emphasized nonintervention in the affairs of another state (49) South Africa's next proposed amendment--insisting that "national legislation... is the legal framework within which protests are conducted" (50)--took aim at the universality of human rights. The third and fourth amendments warned that protests should not threaten national security or state stability (51) and reminded protest leaders of their supposed duties when participating in protests. (52) All four proposed amendments were rejected, with between four and six African states (the African Group has thirteen members) joining South Africa. The original draft resolution was adopted by vote, with South Africa and Kenya the only African states to vote against it.

In March 2016, China tabled six hostile amendments to the peaceful protest resolution, all of which were defeated. South Africa voted for China's proposal to delete references to earlier resolutions on peaceful protest (53) and to delete a list of violations likely to occur during protests such as enforced disappearance or arbitrary arrest and detention. (54) South Africa supported (55) reminding protest leaders of their "duties and responsibilities," (56) an amendment intended to restrict rather than secure the right to peaceful protest. South Africa declared itself "fully supportive" of peaceful assembly and the right to free expression in "whatever form," but then abstained on the resolution vote. (57)

2.2 Civil Society Space

In September 2014 and June 2016, the UNH RC adopted resolutions titled Civil Society Space. On both occasions, there were extensive attempts to alter the resolution in an illiberal direction. In 2014, China, Egypt, Russia, Venezuela, and others tabled nine hostile amendments. In 2016, China and Russia proposed twelve hostile amendments. In 2014, South Africa voted for five of the amendments, voted against two, and abstained on two. In 2016, South Africa supported nine of the amendments and abstained on three. The 2014 resolution was adopted without a vote, but South Africa dissociated itself from the consensus. In 2016, the resolution was adopted 31-7-9, with South Africa voting against it alongside China, Cuba, Russia, Venezuela, and two African states, Republic of the Congo and Nigeria.

Despite South Africa's own lively and protected civil society, the only example, in the context of the civil society space resolutions, of South Africa defending human rights took place in 2014 when South Africa opposed deleting the words "dissenting views" (58) from a paragraph reminding states to respect the human rights of all, "including for persons espousing minority or dissenting views or beliefs." (59) However, when in 2016, China and Russia again targeted those with "dissenting views," (60) South Africa abstained on the amendment vote.

Although South Africa said that it "would never challenge the legitimacy and role of civil society anywhere," (61) on the remaining amendments South Africa did not oppose or, more often, backed attempts to weaken human rights. A few examples include the following. In a paragraph reminding governments that "legal and administrative provisions should facilitate, promote and protect an independent, diverse and pluralistic civil society," South Africa approved of the addition of the adjective "responsible" to civil society, (62) thus agreeing that "irresponsible" voices may be obstructed. South Africa rejected a UN High Commissioner for Human Rights report (63) on best practices for creating an enabling environment for civil society, (64) and then voted for deleting references to this report in the 2016 draft resolution. (65) South Africa also played down threats to civil society by voting to delete a list of specific violations that human rights defenders often face. (66) South Africa rejected the claim in the 2016 resolution, accurate as it was, (67) that there was "a clampdown on civil society in many countries." South Africa's feeble counterevidence was: "In South Africa, there is no clampdown on civil society." (68)

2.3 Human Rights Defenders

South Africa's record on resolutions on human rights defenders are less antagonistic to human rights than its positions on peaceful protest and civil society space. The 2014 resolution was adopted without a vote. In 2016, South Africa voted for the resolution, voting with the West and against China and Russia. Nevertheless, on human rights defenders, South Africa's record is blemished.

In 2014, as the UNHRC considered renewing the mandate of the special rapporteur on the situation of human rights defenders, Russia introduced two written and two oral amendments to the draft resolution. The amendments were mild, proposing, for instance, to "take note" rather than to "take note with appreciation" of the special rapporteur's report. On all four amendments, South Africa voted, unsuccessfully, with China, Cuba, Russia, and Venezuela. No more than six other African states voted for the various amendments.

In 2016, Russia proposed thirty amendments to the draft resolution on human rights defenders. All were rejected. A number of amendments proposed replacing "human rights defenders" with "individuals, groups and organs of society," (69) seemingly to prevent this group from gaining focused attention or specific legal protection. The 2016 draft resolution strongly condemned "reprisals and violence against and the targeting, criminalization, intimidation, arbitrary detention, torture, disappearance and killing of any individual, including human rights defenders." (70) In response, China, Cuba, Egypt, Iran, Pakistan, and Russia proposed deleting references to "human rights defenders," the specific violations they suffer, and the suggestion that rights defenders sometimes suffer reprisals. The amendment added that reprisals against those who unlawfully report--according to domestic legislation--human rights violations were not condemnable. (71)

South Africa abstained on all the hostile amendments to the March 2016 draft, whereas Ghana and Botswana opposed all of them. Despite voting for the resolution, two weeks prior South Africa had taken a few cuts at protection for human rights defenders. Responding to a report by the special rapporteur on human rights defenders, South Africa complained that disagreement of who is a human rights defender impeded the work of "legitimate" human rights defenders. (72) South Africa found it "painful" that the report addressed state responsibilities toward human rights defenders, but not the "accountability" of human rights defenders. (73) Most chillingly, South Africa regretted the report's silence on the "important issue" of ensuring that human rights defenders operate within the national law, (74) effectively saying that human rights defenders who opposed apartheid would have had to abide by the apartheid government's laws.

2.4 Equal Participation in Political and Public Affairs

Resolutions titled Equal Participation in Political and Public Affairs have been adopted annually since 2013. These resolutions address matters that resonate strongly with South Africa's democratization and memories of the political disenfranchisement of black citizens under apartheid. The 2014 resolution, for instance, affirms "no distinctions are permitted among citizens in the enjoyment of the right to participate in the conduct of public affairs on the grounds of race." (75) Nevertheless, on each occasion, South Africa found a pretext to distance itself from at least part of the resolution.

In 2014, South Africa dissociated itself from a paragraph requesting a UN High Commissioner for Human Rights (UNHCHR) report on "best practices, experiences and challenges and ways to overcome them with regard to... the right to participate in public affairs." (76) South Africa complained that the requested report was for "a similar study albeit with a few additional elements" to the report requested in the 2013 resolution. (77) South Africa also worried about the costs of such a (desk) study and questioned whether the UNHCHR should carry it out. These alleged problems left South Africa with "no option" but to dissociate itself from the paragraph requesting the report. (78)

In October 2015, South Africa concluded that it was "unable to fully associate itself" with the resolution. (79) South Africa argued that the draft resolution did not address the "imperative need" for internet governance. Somehow, South Africa was also "unclear" whether the resolution was addressing "issues of equal participation in political and public affairs within states or among states." (It was clearly focused on domestic affairs.) South Africa also brought up the issue of felony disenfranchisement in "mature democracies... in certain parts of the world"--the United States--and suggested that this omission was a reason for distancing itself from the resolution. (80) However, South Africa's argument is unconvincing. The resolution before South Africa was broad enough to include felony disenfranchisement, asking the Office of the United Nations High Commissioner for Human Rights to organize "an expert workshop to discuss existing guidance on the right to participate in public affairs with the aim of identifying possible gaps and making recommendations." (81) Part of the "existing guidance" was a UNHCHR report, commissioned by the 2014 resolution on equal participation, which noted that "in many countries there is evidence of overrepresentation of minorities in the criminal justice system. Coupled with restrictions on the right of prisoners to vote, this has a disproportionate impact on the realization of the right of minority groups to participate in political and public affairs." (82)

In 2016, South Africa supported the "spirit and letter" of the resolution, but nevertheless dissociated itself from those parts requesting reporting from the UNHCHR. South Africa's reason was that these requests were "outside of the ambit of multilateralism"; that is, too distant from a foundation in "intergovernmental negotiations and discussions." (83)

2.5 Human Rights and the Internet

UNHRC resolutions titled The Promotion and Enjoyment of Human Rights on the Internet are mostly concerned with the right to free expression. During South Africa's 2014-2016 term, the UNHRC twice adopted the aforementioned Brazil-led resolution without the need for a vote, but beneath this consensual veneer flowed much disagreement. In both 2014 and 2016, China, sometimes with partners, brought unfriendly amendments against the resolution; all were rejected. South Africa voted for all of China's amendments, while most African states did not. In 2014, South Africa dissociated itself from the consensus resolution.

In June 2014, South Africa cosponsored an amendment (84) that tried to shift the resolution's emphasis toward restricting free speech. The draft resolution already stressed "combating advocacy of hatred that constitutes incitement to discrimination and violence on the internet, including by promoting tolerance and dialogue," (85) but South Africa found this inadequate. South Africa wanted to add Article 20 of the International Covenant on Civil and Political Rights (ICCPR)--"any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law." The amendment was rejected and the resolution was adopted without a vote, but with South Africa dissociating itself from the consensus.

In June 2016, China, Russia, and Belarus sponsored three amendments to the draft resolution. South Africa cosponsored one of these, which proposed replacing a "human rights-based approach" to providing Internet access with a "comprehensive and integrated approach" that included "security concerns," (86) a vague term with ample scope to restrict Internet access. The second amendment, which South Africa supported, (87) wanted an injunction to combat "advocacy of hatred that constitutes incitement to discrimination or violence on the internet," should be about racial hatred and incitement. (88)

The third amendment proposed inserting three more references to the right to privacy. Introducing Amendment L.86, (89) Russia objected that the resolution's sponsors did not "give the right to privacy the significance it deserves." (90) This is unconvincing--the draft resolution already mentioned "privacy" seven times. (91) Russia's concern was ridiculous because six days after its statement the country adopted legislation that, according to HRW, included "numerous deeply disturbing provisions that severely undermine the right to privacy." (92) Rather, L.86 was a vehicle for attacking the United States, a ploy that South Africa, as its vote shows, supported. The amendment allowed Russia to mention Edward Snowden and to suggest that opposition to L.86 was because some of the resolution's main sponsors wanted "to divert attention" from their violations of these rights. (93)

2.6 Human Rights, Democracy, and the Rule of Law

In March 2015, Resolution 28/14 established a forum to discuss the links between human rights, democracy, and the rule of law. (94) The most contentious aspect of this resolution was overparticipation of NGOs in this forum. South Africa supported what amounted to censorship of civil society organizations.

Operative Paragraph 3 of the draft resolution specified that NGOs with UN Economic and Social Council (ECOSOC) consultative status and--this was the controversial part--NGOs "whose aims and purposes are in conformity with the spirit, purposes and principles of the Charter of the U N based on... an open and transparent accreditation procedure... which will provide for timely information on the participation of and consultations with the states concerned" may participate in the proposed forum. (95)

In response, China, Cuba, Pakistan, Russia, Saudi Arabia, and Venezuela proposed an amendment limiting participation to only NGOs that respect "the sovereignty, territorial integrity and independence of states," a way of saying that national sovereignty took precedence over universal human rights. South Africa supported this, questioning the right of NGOs to participate by insisting that the UN is an "intergovernmental system and therefore state-driven." At the UN, South Africa continued, civil society should engage "constructively and collaboratively"--code for not criticizing states. (96) The amendment further left the decision on whether to accredit NGOs with states concerned "for consideration on a no-objection basis," a procedure that one human rights NGO described as "severely flawed," "arbitrary," and potentially leading "to censorship and politically motivated exclusion of critical voices." (97) South Africa was one of five African countries to vote for China's amendment, which was defeated. China next called for a separate vote on Operative Paragraph 3. The paragraph was adopted 28-0-19, with South Africa and seven other African countries among those abstaining. The resolution was then adopted 35-0-12, with South Africa and three other African countries among those abstaining.

2.7 Integrity of theJudicial System

In March 2014, the UNHRC adopted Integrity of the Judicial System, a follow-up to a 2012 resolution. A third was adopted in 2016. Judicial integrity, which encompasses principles such as equality before the law and fair and public hearings, is central to protecting human rights. (98) The resolutions concentrate on human rights violations committed as part of the United States' war on terror and address abuses such as detention without trial, torture, arbitrary arrest, enforced disappearance, and secret rendition.

The aforementioned violations are condemnable, but the problem with the judicial integrity resolutions is their preoccupation with US wrongdoing. Other violations are hardly mentioned, as the broad title of the resolutions suggest they should. The 2014 resolution, for instance, repeatedly raises problems related to military tribunals (a clear reference to Guantanamo Bay), but says nothing, for instance, about political interference in the courts. Such willful bias suggests that the resolutions are a vehicle for skewering the United States, a suspicion that is strengthened when it is recognized that the sponsors of the resolutions are hardly paragons of judicial integrity--the 2014 sponsors were Belarus, China, Cuba, North Korea, Kyrgyzstan, Russia, Sri Lanka, Sudan, Tajikistan, and Venezuela. For instance, Russia, the main driver of these resolutions, had a criminal justice system that allowed evidence obtained through torture to be used in court. (99)

As earlier examples have shown, South Africa will, on the slightest of premises, oppose or distance itself from resolutions supported by Western states, yet South Africa never addressed the glaring bias of the judicial integrity resolutions. In 2014, the United States called for a vote. The resolution was adopted 27-1-19. South Africa voted for the resolution, the United States opposed it, while European states, Benin, Cote d'lvoire, Gabon, Japan, Kenya, and a few others abstained.

2.8 Explaining South Africa's Actions

This study covered fourteen civil and political rights resolutions. Six were subject to a vote. Of these, South Africa voted for the clear pro-human rights option on only one occasion (on human rights defenders in 2016), as well for the biased resolution on judicial integrity. Of the eight resolutions adopted without a vote, South Africa dissociated itself from five. Out of the sixty-seven hostile amendments covered in this study, South Africa only twice voted for the strongest human rights option (on civil society space in 2014). In sum, at the UNHRC, almost all of South Africa's actions on civil and political rights spanned from failure to defend these rights to attempts to restrict them.

Before considering South Africa's record in terms of its national identity, it is necessary to address other plausible explanations. Thomas Risse points out that a norms or identity-based approach is unlikely to fully explain a state's behavior--strategic utility-maximizing behavior is also likely to be present. (100) Among other possible explanations, a "logic of consequences" is often present, but cannot fully account for South Africa's record. What is needed is a reference to the role of ideas, norms, and beliefs.

Could it be that a regressive African Group keeps South Africa, who wants to maintain African unity, from acting in line with its human rights identity? Such an expectation aligns with what some observers of South African foreign policy have argued, (101) as well as with research that found that the general level of respect for human rights in the region to which a state belongs strongly affects the way a specific country votes on human rights issues at the UN. (102) However, there are at least three problems with this explanation. First, South Africa has occasionally shown a willingness to support liberal positions despite opposition from other African states, most notably on SOGI. (103) Second, while bloc solidarity is the default option for African states, such unity has weakened. (104) Third, when South Africa failed to vote for the strongest human rights option on civil and political rights--which was almost always the case--there were always African states adopting a more pro-human rights stance than South Africa. Of the four times South Africa failed to support a pro-human rights resolution, at least seven of the African Group voted for a stronger human rights option. On each of the sixty-five amendment votes, South Africa failed to cast the most pro-human rights vote possible. On each of the sixty-five votes on which South Africa failed to cast the most pro-human rights vote possible, at least two African states cast a more pro-rights vote than South Africa, while on thirty-two of the sixty-five votes, at least six African states cast a more pro-human rights vote. In short, South Africa has ample freedom from the African Group to vote as it sees fit.

Could it be that South Africa, an aspiring "mouth of the South," (105) opposes human rights at the UN to shield developing countries? South Africa's yearning for a permanent seat on a reformed Security Council, for which it would need the backing of the numerically superior developing world, makes this explanation more compelling. Nevertheless, this explanation is not persuasive. Fellow BRICS member Brazil, for instance, also aspires to international leadership and a permanent Security Council seat, but has a superior record of defending human rights at the UNHRC. (106) South Africa and Brazil's membership overlapped in 2014 and 2015. With regard to civil and political rights, during this period Brazil and South Africa voted the same on three out of nineteen amendments and one out of three resolutions, but not once did South Africa vote for a more pro-human rights option than Brazil.

A study of thirty-five General Assembly human rights resolutions over the period 1999-2009 found that amid deepening economic and diplomatic relations between South Africa and China, South Africa in the mid-2ooos began to align with China's preferences. (107) Do closer relations with China explain South Africa's UNHRC record? On the six resolution votes, South Africa sided with China (and Russia) four times (and the West once). Out of sixty-seven amendment votes, South Africa voted with the West twice and China (and Russia) thirty-one times. If we exclude the warping effect of the twenty-seven amendment votes related to the 2016 human rights defenders resolution, then South Africa voted with China (and Russia) thirty-one out of forty times. The high voting coincidence rate between South Africa and China at the UNHRC suggests that China is part of the answer. However, there is a limit to a China-centered explanation. At the UNH RC, South Africa is closer to China than mere material interests necessitate. As The Economist points out, many countries have close trade relationships with China yet do not ally with it politically. (108)

While the influence of China, of South Africa's leadership aspirations, or of African and South solidarity should not be dismissed, South Africa acts more regressively than these roles and associations seem to dictate. At the UNHRC, South Africa's antagonism to civil and political rights, its voting coincidence with known anti-Western actors such as China and Russia, the rarity of South Africa voting alongside the West, and, in the statements covered in this study, the absence of instances of South Africa speaking in support of Western positions confirm the anti-imperial dimension that various scholars have identified in South African foreign policy. (109) From a constructivist perspective, South Africa's actions at the UNHRC are a reflection of an anti-imperial national identity. The problem with this explanation, however, is that human rights remain central to South Africa's national identity, yet hardly any of this identity has found expression at the UNHRC, at least as far as civil and political rights are concerned. A Washington Post column captured this disjuncture: South Africa is "an example of freedom while devaluing and undermining the freedom of others. It is the product of a conscience it does not display." (110)

With a national identity that contains both anti-imperial and human rights elements, South Africa's representatives are able to justify the anti-imperial actions I have described in this article. However, if South Africa had chosen to defend civil and political rights at the UNHRC, it would have been able to find justification for such actions too. In a decision-making environment in which much is permitted and justifiable, it matters greatly who is making the decisions. Recent research on South Africa and the SOGI issue at the UN claimed that South Africa's positions--which fluctuated wildly--depended considerably on who the ambassador in Geneva was and on the influence of other senior diplomats. (111) The inner workings of the South Africa Foreign Ministry remain obscure and understudied. (112) What can be reported, based on numerous interviews with diplomats, UN officials, and human rights activists for other research projects at the UN H RC, is that these Geneva insiders often point to the considerable influence of one particular South African foreign policy official (not an ambassador) to explain South Africa's anti-imperialism at the UNHRC. (113) In March 2011, this diplomat was behind a South African-led effort to suppress discussion of sexual orientation at the UN, only for South Africa's ambassador in Geneva to reverse course and lead the UNHRC to adopt the first UN resolution on sexual orientation three months later. (114) While there are thus limits on this diplomat's influence, the sense among interviewees was that he is able to interpret and stretch South Africa's official positions--in this, he is helped by a shortage of technical skill and a confused policymaking process in South Africa's Foreign Ministry (115) in a way that gives them a more anti-imperialist tenor.

3 Conclusion

South Africa's uncertain identity shows the limits of predicting a state's international behavior with reference to its national identity. Hopf characterizes the conventional constructivist approach: "Discover identities and their associated reproductive social practices, and then offer an account of how those identities imply certain actions." (116) It is difficult to imagine that an attempt to discover South Africa's identity would fail to spot the important place of human rights. This investigator would then predict that human rights--and civil and political rights especially, considering their centrality in the fight against apartheid--would inform, to a reasonable degree, South Africa's engagement with the rest of the world. What I showed in this article, however, is that South Africa failed to express this identity and, more significantly, repeatedly chose to contravene it.

David Forsythe has identified four traditions that have formed the "psychological background" to recent US foreign policy: American exceptionalism, neoisolationism, liberalism, and realism. (117) With regard to India, Rahul Sagar identified four foreign policy traditions rooted in competing local visions of what the country is and should be: "moralism," based on Gandhian nonviolence; "Hindu nationalism," driven by pride in Hindu civilization and shame in India's past subjugation; a "strategic" vision, based on belief in national military and power; and "liberalism," born from frustration with domestic stagnation, poor governance, and a Southern solidarity that has yielded little material benefit. (118) These are but two additional examples of states that have conflicted national identities. Given that there are likely to be many such states, a constructivist identity-based approach will frequently run into cases that undercut its predictive power. The South African case thus alerts us to constructivism's limited ability to explain and predict a state's international behavior and prompts us to look elsewhere; for instance, inside a state's foreign policy machinery or in rationalist theories of international relations.


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Eduard Jordaan

Department of Political and International Studies, Rhodes University


(1) Jordaan 2014a.

(2) Pahad 2007.

(3) Boockmann and Dreher 2011, 462; Hug and Lukacs 2014, 103.

(4) Houghton 2007, 29; Moravcsik 1997, 518.

(5) Sikkink 2003, 6-8.

(6) Hopf 1998, 175.

(7) Sikkink 2003, 6-8.

(8) Hopf 1998, 176.

(9) Hopf 1998, 177.

(10) Quoted in Fabricius 2011.

(11) Fransman 2012; Department of International Relations and Cooperation 2012, 3.

(12) Borer and Mills 2011, 77.

(13) Quoted in Vale and Maseko 1998, 272.

(14) Alden and le Pere 2004.

(15) Nathan 2005, 363.

(16) Black and Hornsby 2016, 154.

(17) De Jager and Steenekamp 2016, 921.

(18) Steenekamp and Du Toit 2017.

(19) "Clueless and Immoral" 2015.

(20) ANC 2015, 160, 162.

(21) Sidiropoulos 2018.

(22) US Government 2009.

(23) Donahoe 2013.

(24) Landers 2017.

(25) UNHRC 2016p.

(26) UNHRC 2015c.

(27) UNHRC 2014f.

(28) Jordaan 2014b.

(29) UNHRC 2017.

(30) Jordaan 2017a.

(31) Ramcharan 2011, 13.

(32) Attacks on speech critical of religious authority took place on two fronts. The first was an attempt to expand the International Covenant on Civil and Political Rights' (ICCPR) list of issues on which free speech may be limited to include "respect for religions and beliefs," see UNHRC 2007. The second was to use prohibitions in the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) on racist speech to also apply to religion, see Petrova 2010.

(33) Jordaan 2014b.

(34) Ramcharan 2011, 13.

(35) See Ramcharan 2011, 13.

(36) UNHRC 2007.

(37) Amnesty International et al. 2011.

(38) UNHRC 2011.

(39) Piccone 2017; Jordaan 2016.

(40) See Thompson 2001.

(41) South Africa 2014a.

(42) South Africa 2014a.

(43) HRW 2014.

(44) South Africa 2014a.

(45) South Africa 2014a.

(46) Sceats and Breslin 2012, 29.

(47) South Africa 2014a.

(48) Tambo 1985.

(49) UNHRC 2014a.

(50) UNHRC 2014b.

(51) UNHRC 2014c.

(52) UNHRC 2014d.

(53) UNHRC 2016d.

(54) UNHRC 2016e.

(55) South Africa 2016b.

(56) UNHRC 2016f.

(57) South Africa 2016b.

(58) UNHRC 2014h.

(59) UNHRC 2014g.

(60) UNHRC 2016k.

(61) South Africa 2016c.

(62) UNHRC 2016j.

(63) UNHRC 2016g.

(64) South Africa 2016c.

(65) UNHRC 2016l.

(66) UNHRC 2016i.

(67) Sherwood 2015.

(68) South Africa 2016c.

(69) UNHRC 2016b.

(70) UNHRC 2016a.

(71) UNHRC 2016c.

(72) South Africa 2016a.

(73) South Africa 2016a.

(74) South Africa 2016a.

(75) UNHRC 2014i.

(76) UNHRC 2014i.

(77) South Africa 2014b.

(78) South Africa 2014b.

(79) South Africa 2015b.

(80) South Africa 2015b.

(81) UNHRC 2015e.

(82) UNHRC 2015d, 9.

(83) South Africa 2016e.

(84) China 2014.

(85) UNHRC 2014e.

(86) UNHRC 2016m.

(87) South Africa 2016d.

(88) UNHRC 2016o.

(89) UNHRC 2016n.

(90) Russia 2016.

(91) UNHRC 2016h.

(92) HRW 2016

(93) Russia 2016.

(94) UNHRC 2015b.

(95) UNHRC 2015a.

(96) South Africa 2015a.

(97) International Service for Human Rights 2013.

(98) See, especially, Articles 6, 7, 8, 10, and 11 of the Universal Declaration of Human Rights.

(99) Amnesty International 2016, 305.

(100) Risse 2000, 3.

(101) Nathan 2005; Borer and Mills 2011.

(102) Boockmann and Dreher 2011, 462.

(103) Williams 2017.

(104) Dam 2014.

(105) Brysk 2009, 174.

(106) Jenkins and Mawdsley 2013; Jordaan 2015.

(107) Brazys and Dukalskis 2017, 760.

(108) "Clueless and Immoral" 2015.

(109) Black and Homsby 2016, 154; Nathan 2005, 363; "Clueless and Immoral" 2015.

(110) Gerson 2008.

(111) Jordaan 2017b.

(112) Masters 2012.

(113) Jordaan 2017a; Jordaan 2014b; Jordaan 2016.

(114) Jordaan 2017a.

(115) Alden and Schoeman 2013, 121.

(116) Hopf makes a distinction between "conventional" and "critical" constructivism; Hopf 1998.

(117) Forsythe 2002.

(118) Sagar 2009.
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Date:Jan 1, 2019
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