What's going on with Australia's legal obligations to refugees?
If you believe the government, there are hordes of refugees storming Australia’s borders. Milly Stilinovic takes a look at the murky – and downright confusing – world of international law in relation to Australia’s treatment of refugees.
A sea breeze cut through the thick, balmy air that had accumulated in the luxurious West Timor hotel room where Edward had been residing for the past few days. The cool gust licked over the sweat patches that had formed under his armpits – offering some form of comfort – as he settled into a cushy arm chair that overlooked the azure seascape. It was mid-afternoon. There was not much else to do in Kupang but indulge in a Bintang beer while flipping through the latest edition of Victory.
“Reading local newspapers helps with getting a grasp on a country’s language and interests,” he said. “Besides, one of the articles really caught my eye.”
The article pertained to the deployment of an Indonesian navy ship to the territory of Nusa Tenggara Timur to assist with maintaining their maritime borders against incursions from the Australian Navy. The copy, written in a foreign language, seemed foreign in sentiment to him. It was information gathered, sorted and edited from the flip side of the coin. It was in stark contrast to the usual message that he had been absorbing from the various Australian news outlets he followed. A reaction to the Liberal government’s action. A retaliation to Operation Sovereign Borders.
Edward looked up from his newspaper to observe the various ships dotting the horizon. West Timor was fishing territory and so it was natural to see fishing boats sailing to and from the markets.
“However, these boats looked exactly like images I’d seen of asylum boats,” he said.
They were rickety, not seaworthy.
“They were already getting knocked about,” he said. “Some were being towed by another boat.”
Later that evening Edward met with a group of locals. Images of the vast number of boats he’d witnessed had firmly entrenched themselves into his thoughts.
“The boats,” he said. “They look like the boats that we see on TV that carry pencari suaka [asylum seekers] to Australia?”
“Oh, yes,” a local replied. “We get many Africans in Kupang. There are many of them staying at the hotels, waiting for boats to Australia.”
Edward wondered what they meant by “Africans” and if the boats he had witnessed were headed for Australia. He was keen to press on further with questioning but realised that a wall of silence had descended around the topic. This was familiar territory. Unlike the contents of the newspaper article, Edward had become accustomed to the bureaucratic and societal muzzling of the asylum seeker topic during his time in Australia.
DON’T ASK, DON’T TELL
Similarly to Edward’s predicament, Australians have also taken the vague procession of information regarding asylum seekers as a given. On one hand, locals are bombarded with the image of the asylum seeker as a criminal or victim of an organised people smuggling ring. Their journey from Indonesia to our island continent is seen as a “cheat sheet” intrusion into the sovereign borders of Australia, jumping the cue and living a cushy life supported by benefits and privileges. Deterring the asylum seeker, stopping the boats, is seen as a matter of national security.
On the other hand, a procession of UN Human Rights Committee (UNHRC) reports condemn the conditions of Australia’s off-shore detention centres. Activists disseminate images of asylum seekers sowing their lips together in protest at the lengthy duration of their confinement. With the initiation of Operation Sovereign Borders, there has been an increase of eye-witness accounts of the alleged misconduct of the Australian Navy. The plight of the asylum seeker, in this context, is seen as a humanitarian issue.
Yet their rights, our government’s rights as the sovereign, along with our responsibilities and duties in accordance to international human rights law, are rarely analysed. Any attempt to further our understanding, as Sneaky soon realised, was largely deterred by the wall of silence.
BREAKING THE “LAW”?
This hushed standpoint was exacerbated when reports surfaced that the UN had found Australia guilty of 150 violations of international law. While experts and officials had their hands tied, unable to comment on the situation, public opinion on the matter became further entrenched on both sides. Yet this opinion was based on the meagre and obscure commentary provided by mainstream media.
“See!? Abbott and his Nazi policies are now putting our position in the international community in jeopardy,” Nicky, a young activist from Sydney, said.
“What laws are they breaking?” I asked.
“You’re a journalist!” he replied. “Why are you asking me!?”
He was right. I am a journalist and, much like my colleagues who have disseminated the message in our various news outlets, I have the responsibility to report on the facts. However, I soon came to realise that this was not the case. Articles based on the alleged misconduct were a cornucopia of mishandled information, ill-conceived claims and a lack of regard for observing the operations and purpose of international law.
In short, claiming that the “UN” has found the Australian government “guilty” of 150 breaches of international law is a fallacy.
First and foremost, these claims were made by the UN Human Rights Commision. The UNHRC is a creature/body of the General Assembly, which is the policymaking and representative branch of the UN, comprised of all 193 member states. The UNHCR’s main purpose is to monitor the implementation of the International Covenant of Civil and Political Rights (1976) (ICCPR). The ICCPR pertains to the protection of an individuals’ right to self-determination, ethnicity and civil freedom. Having ratified it in 1980, Australia has the responsibility to maintain its obligations in accordance to the covenant’s principles. The point of contention resides in Article 9:
“…No one shall be subjected to arbitrary arrest or detention…”
While this may all seem straight forward, the crux lies in the role and jurisdiction of the UNHRC. The UNHRC can be considered an advisory body. It has the capability to provide recommendations to the Security Council but it does not have the jurisdiction to determine verdict or impose law. That authority, according to Article 24 of the Charter of the United Nations (1945), lies with the Security Council that has the “…primary responsibility for the maintenance of international peace and security…”. In ratifying the UN Charter, states have agreed that the “…Security Council acts on their behalf…”
Furthermore, the matter has not yet been heard by the International Court of Justice (ICJ). For a matter to reach third party mediation, states must agree to take their dispute to the ICJ. Ratifying the Statute of the International Court of Justice (1945) does not provide the courts with jurisdiction to enter into the affairs of a sovereign state. This means that Australia has to provide consent for the ICJ to deal with the matter. At this present moment, since the Security Council has not authorised an investigation, Australia has not given consent.
As a result, no matter how many “F”s received on our UN Report card for the treatment of our refugees, Australia is not “guilty” of anything. At best (or worst), there is a claim that Australia is in violation of its responsibilities in accordance to international law. The matter will remain so until the Security Council – coincidentally chaired by Australia since September 2013 – proposes action and the ICJ has issued a verdict.
THE STATUS OF “REFUGEES”
The situation becomes even more ambiguous when the issue of international law is raised.
Headlines claiming that Australia is guilty of 150 violations of international law opens up a proverbial Pandora’s box of provisions and state responsibilities. A breach of international law can be as elusive as the definitions contained within law itself.
First and foremost, one must consider which treaty takes precedence in this situation.
With the jurisdiction of the UNHCR built on the implementation of the ICCPR, one has to ask if all violations are based solely on this single covenant. If they are not, then such claims are based on other treaties, whose assessment is the jurisdiction of other UN bodies.
For example, reports surfaced last year on the inhumane detention of children on Manus island. This would be a situation that could pertain to the ICCPR, or the Universal Declaration of Human Rights (1948) or, more specifically, to the Convention of the Rights of the Child (1989) (CRC). To determine which treaty takes precedence to any given situation, one must refer to the Vienna Convention of the Law on Treaties (1969) (VCLT), or the overarching law on treaties and their function. Article 30(3) stipulates that if parties to an earlier treaty are also parties to a later treaty then:
“…the provisions of that other treaty shall prevail…”
If that is the case, since Australia has ratified all three, the CRC becomes predominant. In that situation, the body authorised to assess the implementation of the CRC would be the Committee on the Rights of the Child, not the UNHCR.
While the question of treaty jurisdiction remains hotly contested within academic and policy making circles, it still remains a point that should be acknowledged.
Nevertheless, it’s not at the matter of treaty precedence that the debate begins and ends.
When one delves into the provisions of a treaty, the situation is further aggravated. It is at this point that the ambiguity of law and the definitions contained within its provisions comes to light.
As discussed, the status of our asylum seekers can fall under various treaties and the assessment of their implementation under a multitude of inter-governmental bodies. Within these treaties resides a great number of provisions containing varying definitions. This means that there are a variety of ways that a state can interpret a treaty and its obligations towards it. Of course, this interpretation should be, according to the VCLT, done “in good faith”. However, this is not always the logic that states follow.
Case in point, Australia has ratified the Convention Relating to the Status of Refugees (1951). While the convention does contain a description of who is considered a “refugee”, the description of an asylum seeker may or may not fall within this category. It is up to the state and its “good faith” to interpret the treaty as written and the state’s legal team to not find loop holes that would exclude the state from its responsibilities.
For that reason, while many who read this article may perceive an asylum seeker to be akin to the universal definition of refugee, it may not be the case.
While all this is being hashed out we, along with asylum seekers, remain in limbo. Answers to whether we are a state that is in breach of its obligations to international law are pending. The future of the asylum seeker remains unanswered. Much like Edward’s boats we no longer know, as a state, whether we are coming or going, bound for an appearance in front of the ICJ or are cleared of all convictions.
What is certain is that the lips of experts and policy makers will remain as sealed as that of those protesting against their detention.
Head to Sneaky Mag to read the original article.