[Slide 1] Is Australia Responsible for Protecting the Human Rights of Asylum Seekers in Papua New Guinea?

Paper presented by Dr Savitri Taylor, Senior Lecturer, La Trobe Law, La Trobe University as part of the SCHOOL OF LAW COLLOQUIUM SERIES on 12 August 2008

[Slide 2] Introduction

I am currently engaged in a study which involves, among other things, examining arrangements which Australia has in place with Indonesia and PNG providing for interception and processing in those two countries of third country nationals who appear likely otherwise to attempt to travel to Australia in an irregular fashion. One of the many questions which arise in relation to these arrangements is the question of which actor or actors bear responsibility for protecting the human rights of intercepted persons while they are in the intercepting country. Because of the time constraint I shall confine myself to consideration of this question in relation to the PNG arrangement.

[Slide 3] 2005 Australia/PNG/IOM MOU

In December 2005 Australia entered a Memorandum of Understanding (MOU) with PNG and with the International Organisation (IOM) for Migration on the Care, Protection and Voluntary Return of Certain Irregular Migrants from PNG. According to the press release issued by the Australian Minister for Immigration upon the signing of the MOU, it sets out an arrangement under which “PNG, Australia and IOM will co-operate in the areas of identification and processing of irregular immigrants transiting PNG who might attempt to enter Australia unlawfully”.¹ If Australia bound individuals are intercepted “and there is no way of funding their subsistence until their cases are looked into”,² the MOU provides that Australia will fund IOM to meet those subsistence needs including accommodation and basic health care.³ The MOU further provides that PNG will consider any claims for refugee status made by such individuals,⁴ with IOM (funded by Australia) continuing to meet their subsistence needs through that process.⁵ In selected cases, Australia will also pay the subsistence costs of individuals found to be refugees while they were awaiting resettlement to a third country.⁶ Finally, if intercepted individuals wish to return home country but do not have the funds to do so and the PNG government does not have the funds to assist them either, Australia will fund IOM to arrange for their return⁷ and care for them pending return.⁸

The Office of the United Nations High Commissioner for Refugees (UNHCR) also has a presence in PNG pursuant to a cooperation agreement with the PNG Government.⁹ UNHCR has stayed “at arms length” from the arrangements just described but is engaged in discussions with IOM to see how its “capacity building work, in terms of [refugee protection] training and mentoring and supervision, can be complementary to” IOM’s work.¹⁰

Although the Australia/PNG/IOM MOU was signed in 2005, the related project funding agreement between Australia and IOM was only signed on 20 June 2007.¹¹ The currently specified end date of the project is 2010.¹² The funding agreement covers not only the care of irregular migrants under the 2005 MOU but also research into the nature and dimensions of the irregular migration problem in PNG and migration management capacity building activities such as the training of PNG immigration officials in conjunction with the Australian officials posted in PNG pursuant to the Enhanced Cooperation Program¹³ (now renamed the Strongim Gavman Program or SGP).¹⁴ The provision of the project funding enabled IOM, in mid-August 2007,¹⁵ to start setting up an office in Port Moresby office.¹⁶ As at 16 July 2008 (my most recent available information), IOM had not yet commenced caring for irregular migrants under the 2005 MOU.¹⁷ Even in advance of commencement, however, I think it is useful to ask whose responsibility is it to protect the human rights of the individuals who may find themselves caught by the arrangement. I’ll start with a quick survey of the possible sources of international legal obligation.

[Slide 4] Refugees Convention Obligations

Australia and PNG are both parties to the 1951 Convention relating to the Status of Refugees (Refugees Convention)¹⁸ and the 1967 Protocol relating to the Status of Refugees (Refugees Protocol).¹⁹ Since these treaties are only open for signature, ratification and accession by States,²⁰ IOM and UNHCR neither are, nor could be, party to them. However, UNHCR is governed by a Statute which requires it to provide ‘international protection’ to refugees.²¹ Further the Refugees Convention and Protocol impose obligations on State Parties to cooperate with the UNHCR in the exercise of its functions.²²

The central obligation imposed on state parties by the Refugees Convention is the obligation in article 33 to refrain from sending a refugee to any country²³ where he or she has a well-founded fear of being persecuted on Refugees Convention grounds. It is well-established that the phrase, ‘in any manner whatsoever’ has the effect of prohibiting indirect as well as direct, expulsion or return of the refugee to a persecuting country²⁴

It is also well-established that the article 33 obligation applies in respect of any refugee who is physically at or within the territorial borders of a State.²⁵ What is less clear is whether a state’s article 33 obligation is potentially engaged in relation to individuals who are affected by its extraterritorial activities. However, I think the better view is that a State’s article 33 obligation is engaged at the moment when a person who is in fact a ‘refugee’ comes within the effective control of an agent²⁶ of that state, wherever in the world this occurs²⁷ and that is the view on which this paper proceeds.

[Slide 5] As well as protecting them from refoulement, the Refugees Convention also gives refugees certain rights relating to juridical status, employment and welfare. However, most of these rights are clearly only owed by states parties to refugees within their own territory. The only provisions which are not territorially limited and therefore even arguably binding on Australia within the territory of PNG are art 3 (non-discrimination), art 13 (moveable and immovable property), art 16(1) (access to courts), art 20 (rationing), art 22 (education), art 29 (fiscal charges), art 34 (naturalisation) and, as previously mentioned, art 33(non-refoulement).²⁸

[Slide 6] As for PNG, it has made reservations to articles 17(1),²⁹ 21,³⁰ 22(1),³¹ 26,³² 31,³³ 32³⁴ and 34³⁵ of the Refugees Convention³⁶ and for that reason is not bound by the obligations contained therein.

[FOR MY INFORMATION

Martin Tsamenyi suggests that the reservations to articles 17(1) and 21 were made because of a misconception on the part of the Government that those provisions would have obliged it to provide refugees access to work and housing on the same highly favourable terms as the large numbers of foreign experts contracted by it.³⁷ The reservation to article 22(1) was made because Papua New Guinea did not feel able to give refugee children an entitlement to access elementary education on the same terms as nationals at a time when a large proportion of nationals had no actual access to such education.³⁸ The remaining reservations, however, appear largely motivated by a desire to ensure that accession to the Refugees Convention would not impede the government’s ability to deal with West Papuans in a way which kept Indonesia appeased.

The difficulties potentially caused in this respect by articles 26, 31 and 32 are obvious.³⁹ By contrast, the obligation in article 34 to “as far as possible facilitate the assimilation and naturalization of refugees” is so little of an obligation that there hardly seems any need to have made a reservation to it. However, Tsamenyi explains that acquisition of PNG citizenship had long been a politically sensitive issue and this was compounded in the case of West Papuans by allegations that some of the refugees, who were granted permissive residency by the colonial administration and citizenship after independence, were jeopardising PNG security through involvement in OPM activities.⁴⁰]

For a considerable time now the PNG Government has been in “the process of” withdrawing five of PNG’s reservations to the Refugees Convention. However, its present position is that it needs to consult further⁴¹ about withdrawal of reservations to article 17(1) and 21 given that it cannot even “provide these services to all Papua New Guinean citizens."⁴²

[Slide 7] Human Rights Treaties

Article 5 of the Refugees Convention provides:

“Nothing in this Convention shall be deemed to impair any rights and benefits granted by a Contracting State to refugees apart from this Convention.”

Apart from the Refugees Convention and Protocol, the other obvious sources of human rights obligations are, of course, the international human rights treaties. Australia is a party to all of the major human rights treaties except the Migrant Workers Convention. [Slide 8] PNG is a party to CEDAW,⁴³ CRC,⁴⁴ and ICERD.⁴⁵ On 21 July 2008 it also acceded to ICCPR ⁴⁶ and ICESCR⁴⁷ and those treaties will enter into force for PNG on 21 October 2008. [Slide 9] The only major human rights treaties to which PNG is not a party are CAT,⁴⁸ the two Statelessness Conventions⁴⁹ and the Migrant Workers Convention.⁵⁰ In contrast, since all of the major human rights treaties are open for signature, ratification and accession by states only,⁵¹ UNHCR and IOM are not parties to, and do not have obligations under, any of them.⁵² Moreover, although UNHCR is governed by a Statute and IOM by a Constitution, those documents probably do not impose obligations on those organisations which are of relevance in the present context.

[FOR MY INFORMATION

It is clear from article 8 of the Statute that the protection role that UNHCR was originally intended to play was one of legal and diplomatic advocacy⁵³ rather than the discharge of state-like functions. Unfortunately, it does not necessarily follow from the fact that in many parts of the world UNHCR has become, in practice, a service delivery substitute for the state that it has also come to have state-like accountability for those operational functions.

IOM Constitution Article 1

1. The purposes and functions of the Organization shall be:

a. to make arrangements for the organized transfer of migrants, for whom existing facilities are inadequate or who would not otherwise be able to move without special assistance, to countries offering opportunities for orderly migration;

b. to concern itself with the organized transfer of refugees, displaced persons and other individuals in need of international migration services for whom arrangements may be made between the Organization and the States concerned, including those States undertaking to receive them;

c. to provide, at the request of and in agreement with the States concerned, migration services such as recruitment, selection, processing, language training, orientation activities, medical examination, placement, activities facilitating reception and integration, advisory services on migration questions, and other assistance as is in accord with the aims of the Organization;

d. to provide similar services as requested by States, or in co-operation with other interested international organizations, for voluntary return migration, including voluntary repatriation;

e. to provide a forum to States as well as international and other organizations for the exchange of views and experiences, and the promotion of co-operation and co-ordination of efforts on international migration issues, including studies on such issues in order to develop practical solutions.

2. In carrying out its functions, the Organization shall co-operate closely with international organizations, governmental and non-governmental, concerned with migration, refugees and human resources in order, inter alia, to facilitate the co-ordination of international activities in these fields. Such co-operation shall be carried out in the mutual respect of the competences of the organizations concerned.

3. The Organization shall recognize the fact that control of standards of admission and the number of immigrants to be admitted are matters within the domestic jurisdiction of States, and, in carrying out its functions, shall conform to the laws, regulations and policies of the States concerned]

[Slide 10] Customary International Law

For the sake of completeness I should make some mention of customary international law as a possible source of international human rights obligations. The problem here is that while all states are, generally speaking, bound by customary international law, a fierce controversy rages about what human rights have customary international law status.

[FOR MY INFORMATION

For example, the International Monetary Fund, which seems prepared to concede that it is bound by customary international law, goes on to assert that ‘the norms contained in [ICESCR] have not attained a status under general international law that would make them applicable to the fund independently of the Covenant’.⁵⁴ ICESCR has been described as ‘perhaps the most violated human rights treaty’,⁵⁵ so it is not surprising that Professor Hathaway, who is rigorous in his insistence that human rights can only be said to have customary international legal status if supported by ‘constant and relatively uniform state practice’ (with words an unacceptable substitute for action), likewise does not consider any economic and social rights to have attained that status.⁵⁶ However, less positivist international lawyers who are prepared to substitute opinio juris for state practice ‘on a sliding scale’⁵⁷ point to documents like the Millennium Declaration as a basis for suggesting that customary international law has formed or is at least in the process of forming in the field of economic social rights.⁵⁸]

In the case of international organisations and other non-state actors, a further controversy exists about whether these entities have (or can have) obligations under customary international law even in the area of human rights.

[FOR MY INFORMATION

Some of the many commentators who treat the 1948 Universal Declaration of Human Rights (UDHR) as the primary underpinning of customary international human rights law⁵⁹ rely upon the language of the UDHR to argue that it sets out obligations binding not just on states but also on individuals and non-state actors of all kinds.⁶⁰ Although there is reason to be cautious about accepting the correctness of this particular argument,⁶¹ it can at least be said that there is ‘increased sympathy’ with the view that non-state actors have obligations under customary international human rights law.⁶² Moreover, the legal arguments in favour of the proposition that international organisations (in our context UNHCR and IOM) are bound by customary international human rights law are stronger than for non-state actors generally.⁶³ Stronger still are the legal arguments in favour of the proposition that at least the UN and its agencies (in our context UNHCR) are bound by customary international human rights law.⁶⁴ ]

I don’t have time to get into either controversy. In any event, the point I wish to make depends simply on the existence of these controversies. The enormous lack of clarity about what human rights obligations (if any) Australia, PNG, IOM and UNHCR have under customary international law is sufficient to ensure that in practical terms they can behave as if they have none.

[Slide 11] International Human Rights Obligations Summary

• Customary international law is useless because too much controversy re content and addressees.

• Since UNHCR and IOM don’t have any relevant treaty obligations, they are effectively off the hook altogether.

• Refugees Convention is not much use

  • In relation to PNG because it has made reservations to several provisions

  • In relation to Australia because few of the provisions are binding extra-territorially

• Major human rights treaties to which Australia and/or PNG are parties are worth a closer look. Since I don’t have time to work through them all, I shall focus on ICESCR in this paper.

[Slide 12] Breach of International Obligation

It does not follow from the mere fact that a particular individual does not enjoy the human rights standard in relation to a human right recognised under international law that the right has been violated by any state. A state is only regarded as having committed an internationally wrongful act if conduct attributable to it has resulted in the breach of one of its international obligations. It is always necessary, therefore, to analyse the particular circumstances in order to ascertain whether the deprivation of a human rights standard actually resulted from an act or omission of a state or states which amounted to a breach of obligations owed by that state or states to that person.

[FOR MY INFORMATION

Conversely, I don’t think there is any valid reason for positing that if State A is responsible for violating a given right of a given person, then State B cannot also be responsible for violating that right unless the two states acted in concert. It is now generally accepted that there are three obligations correlative to every substantive human right, i.e. the obligation to respect, the obligation to protect and the obligation to fulfil. If we accept this proposition, it follows logically that a given right of a given person can be violated simultaneously by more than one state without it necessarily being the case that they acted in concert. For example, State A may have taken an action which violated the duty to respect that right, but State B may have had a duty to protect which it violated by failing to take action to prevent the violation by State A. Both states are guilty of violating the right, albeit in different ways.]

[Slide 13] In our context, close analysis of a particular human rights deprivation suffered by an individual subject to the cooperation arrangement discussed in this paper may establish that no state bears responsibility for violating the relevant human right or that one or more states bear responsibility for it.

[Slide 14] Attribution of Conduct

Own state officials

[FOR MY INFORMATION

It is well-established in international law that the conduct of an official of a state, who appears to be acting in their official capacity, is attributable to that state, even if, in terms of the state’s domestic law, they are actually acting outside their competence.⁶⁵ It is irrelevant for the purposes of attribution whether an official’s conduct took place within or outside the territory of the state on whose behalf they are acting or appear to be acting.⁶⁶]

It is an uncontroversial proposition that the acts or omissions of Australia’s Department of Immigration and other officials in setting up and maintaining the 2005 MOU will be attributable to Australia. Likewise the acts or omissions of PNG officials will attributable to PNG.

[Slide 15] Foreign state officials

[FOR MY INFORMATION

According to article 6 of the Draft Articles on State Responsibility which codifies the existing customary international law rule:

The conduct of an organ placed at the disposal of a State by another State shall be considered an act of the former State under international law if the organ is acting in the exercise of elements of the governmental authority of the State at whose disposal it is placed.

In such cases, often described as ‘transferred servant’ or ‘loaned official’ cases, the conduct of the loaned official is attributed only to the state to which the official was loaned and not to the state that made the loan.⁶⁷ However, it does not appear from the available facts that the regional cooperation arrangement involves the loaning of officials by Australia to Indonesia or the other way around.]

Another principle relevant to the present context was articulated by the Human Rights Committee in Mohammed Alzery v. Sweden.⁶⁸ I’ll let you read the slide for yourself to save time.

[FOR MY INFORMATION

This was a case in which Alzery, an Egyptian asylum seeker rejected by Sweden for security reasons, was handed over by Swedish police to United States’ and Egyptian security officials at a Swedish airport.⁶⁹ The Swedish officials were present as the foreign officials subjected Alzery to an intrusive body search, drugged him, and then diapered, hooded, blindfolded, handcuffed and chained him in preparation for an air trip to Egypt.⁷⁰ In his complaint to the Human Rights Committee, Alzery claimed, inter alia, to be a victim of a violation by Sweden of article 7 of the ICCPR.

What I find significant about this case is that the Human Rights Committee didn’t simply say that the failure to intervene (i.e. omission) of Swedish police present during the incident was attributable to Sweden and amounted to a violation by Sweden of its obligation to protect Alzery from being deprived of his article 7 right, it said that the acts of the foreign officials were in these particular circumstances attributable to Sweden and amounted to a violation by Sweden of its obligation to respect Alzery’s article 7 right.⁷¹ As significantly, the Human Rights Committee emphasised that the acts complained of were also attributable to ‘the State on whose behalf the officials were engaged’ (i.e. the United States or Egypt as the case may be).]

In terms of the 2005 MOU, since the arrangement is in place with the consent of the PNG government, situations may arise which are caught by the principle articulated in this case such that actions of Australian officials in relation to the arrangement are attributable not only to Australia but also to PNG.

[Slide 16] Non-state actors

The conduct of non-state actors is not normally attributable to a state under international law. However, there are certain circumstances in which the general rule does not apply and attribution is possible.

Elements of Governmental Authority

[FOR MY INFORMATION:

International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts 2001

Article 5

“The conduct of a person or entity which is not an organ of the State under article 4 but which is empowered by the law of that State to exercise elements of the governmental authority shall be considered an act of the State under international law, provided the person or entity is acting in that capacity in the particular instance.”]

The rule of customary international law codified in article 5 of the Draft Articles on State Responsibility developed as a safeguard against states avoiding international responsibility for the consequences of governmental activity by simply ‘farming out’ the conduct of those activities to the private sector or for that matter an international organisation.⁷²

The functions fulfilled by the cooperation arrangement set up by the 2005 MOU are immigration control, protection claim determination and asylum seeker/refugee care, which can all be described as governmental functions. However, in order to work out whether the conduct of a non-state actor under any particular arrangement is attributable to a state, it is necessary to ask is this an arrangement under which a non-state actor is being empowered by the internal law of that state to exercise ‘elements of [its] governmental authority’. It seems unlikely that the conduct of UNHCR could be attributed to Australia or PNG on this basis. It seems equally unlikely that the conduct of IOM could be attributed to Australia on this basis since IOM hasn’t been ‘empowered by law’ but rather funded (and perhaps contracted) by Australia to carry out its role under the 2005 MOU and it is, in any event, questionable whether Australia has any ‘governmental authority’ to farm out in the territory of PNG. Possibly the conduct of IOM could be attributed to PNG on this basis but more would have to be known about the details of the arrangement before a judgment could be made.

[Slide 17] Acting on Instructions, or under Direction or Control

[FOR MY INFORMATION

International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts 2001

Article 8

“The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.”]

Turning to article 8 of the Draft Articles on State Responsibility, what matters here is not the nature of the activity but the nature of the state’s involvement in it. Article 8 in fact specifies two different scenarios in which the conduct of non-state actors can be attributed to a state.

In the factual scenario which is the focus of this paper, it cannot be said that UNHCR is ‘acting on the instructions of’ Australia or PNG. However, it may well be the case that IOM is acting on the ‘instructions of’ Australia in carrying out its role in under the 2005 MOU in PNG. More would need to be known about the details of the arrangement in order to make a judgment.

[FOR MY INFORMATION

Rudiger Wolfrum, ‘Chapter 35: State Responsibility for Private Actors: An Old Problem of Renewed Relevance’ in Maurizio Ragazzi (ed), International Responsibility Today: Essays in Memory of Oscar Schachter (Leiden/Boston: Martinus Nijhoff Publishers, 2005) 423, 427-8: Article 8 {of the Draft Articles on State Responsibility} is meant to reflect such rules which emerged in customary international law. That provision, in fact, deals with different scenarios. The first one covers private persons acting on instructions of a state when carrying out the wrongful conduct; in the second scenario the relationship between the state and the private persons is more remote. One may wonder whether the first scenario really describes a case of attributing the conduct of private persons to a State. By acting on instructions such persons become the extended arm of the instructing organ and the attribution in the sense that the conduct is to be considered as State {what??} is a matter of consequence. These are the cases where a state supplements its own staff by recruiting private persons to act as auxiliaries which {ren… side} the official structure of the State while performing functions as instructed.

In these cases it is not the position of the respective person which matters but the performance of functions as directed by public officials. What is decisive, though, is that the authorities giving instructions exercise either legislative, executive or judicial functions. In such cases it does not matter that the person or persons involved are private individuals nor whether their conduct involves ‘governmental activities’. To give an example, torturing prisoners in order to extract more information by private teams entrusted with the task to interrogate prisoners and doing so on the basis of specific instructions or general instructions on the methods of interrogation would certainly come within the first alternative of article 8 of the commission’s draft.]

Although what I do know of the arrangement leads me to think that a positive answer is likely, there remains a significant obstacle to attribution of an IOM action to Australia in any particular case. In its commentary on article 8 the International Law Commission, draws a distinction between acting under ‘direction or control’ and acting on instructions. According to the ILC: ‘In general a State, in giving lawful instructions to persons who are not its organs, does not assume the risk that the instructions will be carried out in an internationally unlawful way’.⁷³ The ‘excess of authority’ escape clause in relation to acting on instructions seems out of keeping with the underlying rationale of attribution rules and not everyone agrees that the escape clause exists, but as always the legal ambiguity is itself the enemy of accountability.

[FOR MY INFORMATION

Rudiger Wolfrum, ‘Chapter 35: State Responsibility for Private Actors: An Old Problem of Renewed Relevance’ in Maurizio Ragazzi (ed), International Responsibility Today: Essays in Memory of Oscar Schachter (Leiden/Boston: Martinus Nijhoff Publishers, 2005) 423, 431-2: This, however, does not yet answer how to deal with situations where private groups overstep their mandate. In this respect it is appropriate to consider the relationship between Article 8 and article 7 of the Commission’s draft. Article 7 concerns the issue that an illegal conduct may be attributed to the state concerned even if an organ or a person or an entity in position to exercise governmental authority may have exceeded its authority or contravened instructions. It is the underlying philosophy of this rule that violations of international law which give rise to State responsibility are the result of exces de pouvoir. States should, however, take precautions // against such exces de pouvoir. If such precautionary measures do not exist or fail, the respective state has failed in its responsibility to provide for adequate organisation and supervision of those public officials acting on its behalf. This indicates that a state cannot claim that a private person or group has overstepped his or its mandate. By entrusting private persons with the conduct of activities the State sets a causal development into motion which may result in State responsibility, depending on whether the threshold of Article 8 of the Commission’s draft is met.}]

The ILC does accept, as I think it should, that the ‘excess of authority’ escape clause is not available to a state where a person or group is acting under its ‘direction or control’,⁷⁴ but the problem with this limb of article 8 is that we get mired in legal controversy about the requisite degree of control. I don’t have time to get into the controversy apart from noting that UNHCR definitely is not, and it is unlikely that even IOM would be, acting under the direction or control of either PNG or Australia to the degree required by the ICJ in the Nicaragua case.

[FOR MY INFORMATION

The ILC commentary suggests that article 8 is intended to embody the test of attribution articulated in Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America) (Merits) (Nicaragua case). In the Nicaragua case, the International Court of Justice had to consider whether certain actions of the Contras in Nicaragua could be attributed to the United States. The Court held that ‘United States participation, even if preponderant or decisive, in the financing, organizing, training, supplying, and equipping of the contras, the selection of its military or paramilitary targets, and the planning of the whole of its operation, is still insufficient in itself, on the basis of the evidence in the possession of the Court, for the purposes of attributing to the United States the acts committed by the contras in the course of their military or paramilitary operations in Nicaragua.’⁷⁵ Rather attribution was only possible if the specific paramilitary operation in which the impugned act was committed was carried out under the ‘effective control’ of the United States or the impugned act was carried out pursuant to a specific instruction of the United States.⁷⁶

{Rudiger Wolfrum, ‘Chapter 35: State Responsibility for Private Actors: An Old Problem of Renewed Relevance’ in Maurizio Ragazzi (ed), International Responsibility Today: Essays in Memory of Oscar Schachter (Leiden/Boston: Martinus Nijhoff Publishers, 2005) 423, 428-9: The issue is more complex when conduct was carried out under ‘the direction or control of a state; the second alternative of Article 8 {of the Draft Articles on State Responsibility}. It is commonly held that such conduct may be attributed to the state only if that state directed or controlled the specific operation and the conduct. There are several questions which will need to be considered, namely whether the state concerned must be in control of the activity in question in general or whether it is necessary that the specific activities which may give rise to international responsibility must have been controlled by the state. Finally, it is questionable whether the activities violating international law must be an integral part of the conduct the private persons are undertaking on behalf of the state or whether it is sufficient that such illegal activities have been undertaken at the occasion of the tasks they were to perform.

The standard of control was a key issue in the case of military and paramilitary activities in and against Nicaragua. Although the ICJ stated that the US was responsible for ‘planning, direction and support’ given to the contras by the US the court rejected// the claim of Nicaragua that the whole conduct of the Contras could be attributed to the US. The Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia addressed a seemingly similar issue in the case Prosecutor v Tadic. It held that: ‘[T]he requirement of international law for the attribution to States of acts performed by private individuals is that the State exercises control over the individuals. The degree of control may, however, vary according to the factual circumstances of each case. The Appeals Chamber failed to see why in each and every instance international law should require a high threshold for the test of ‘control’.}

Smita Narula argues that the 2004 European Court of Human Rights decision in Ilascu and others v. Moldova and Russia is indicative of a loosening of the ‘effective control’ standard to a ‘decisive influence’ standard.⁷⁷ Applying this ‘decisive influence’ standard to the relationship between home states and transnational corporations (TNC) she argues that ‘a home state should be held responsible for the actions of a TNC abroad where it can be shown that the TNC survives by virtue of the home state's economic, financial and political support’.⁷⁸ It seems unlikely that Australia or Indonesia has ‘decisive influence’ over UNHCR or IOM in this sense.

{Rudiger Wolfrum, ‘Chapter 35: State Responsibility for Private Actors: An Old Problem of Renewed Relevance’ in Maurizio Ragazzi (ed), International Responsibility Today: Essays in Memory of Oscar Schachter (Leiden/Boston: Martinus Nijhoff Publishers, 2005) 423, 431: On this basis {i.e. Ilascu and Others v Moldovia and Russia} the interpretation of Article 8 {of the Draft Articles on State Responsibility} should be reconsidered. States cannot circumvent the international rules on State responsibility by either transferring competence generally exercised by state officials, or by tolerating the takeover of such functions by private groups by claiming these groups were meant to or acted independently. International law on state responsibility does not honour the withdrawal of a state from its genuine responsibility. It is sufficient that states have entrusted private persons or groups with certain tasks and continue to exercise general control over the conduct of such persons or groups. It is not necessary that states control such conduct in detail to meet the standard ‘under direction or control’ in article 8 of the Commission’s draft.}

In any event, the International Court of Justice in its 26 February 2007 judgment in the case of Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) reiterated and endorsed what many would suggest is the unreasonably stringent test of control articulated in the Nicaragua case, even though a softening of the test had been discernible in the previous jurisprudence of other international tribunals.

{Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro)

Summary of the Judgment of 26 February 2007 http://www.icj-cij.org/docket/index.php?sum=667&code=bhy&p1=3&p2=3&case=91&k=f4&p3=5

Paras 377-415: The Court then determines whether the massacres at Srebrenica were committed by persons who, though not having the status of organs of the Respondent, nevertheless acted on its instructions or under its direction or control.

The Court indicates that the applicable rule, which is one of customary law of international responsibility, is that the conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct. This provision must be understood in the light of the Court’s jurisprudence on the subject, particularly that of the 1986 Judgment in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America).

Under the test set out above, it must be shown that this “effective control” was exercised, or that the State’s instructions were given, in respect of each operation in which the alleged violations occurred, not generally in respect of the overall actions taken by the persons or groups of persons having committed the violations.

The Court finds that in the light of the information available to it, it has not been established that the massacres at Srebrenica were committed by persons or entities ranking as organs of the Respondent. It finds also that it has not been established that those massacres were committed on the instructions, or under the direction of organs of the Respondent State, nor that the Respondent exercised effective control over the operations in the course of which those massacres, which constituted the crime of genocide, were perpetrated}]

Moving on from our rather depressing consideration of attribution, let us recollect that, at least, the acts or omissions of Australia’s Department of Immigration and other officials in setting up and maintaining the cooperation arrangement would be attributable to Australia. Likewise the acts or omissions of PNG officials would attributable to PNG. Unfortunately, it’s not all plain sailing from here. We still need to ascertain the nature and scope of Australia and PNG’s obligations under ICESCR before we can determine whether the acts or omissions of their officials in a given case have resulted in breach of those obligations. The legal controversies we encounter here are almost too many to list in the time available let alone discuss.

[Slide 18] Nature and Scope of ICESCR Obligations

Law or Aspiration? [Allow time to read slide]

[FOR MY INFORMATION

ICESCR article 2(1) provides:

Each State party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognised in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.

While the undertaking ‘to take steps … with a view to achieving’ in this provision seems weak by comparison with the undertaking in ICCPR article 2(1) ‘to respect and to ensure’, the obligations imposed on states are stronger than may at first be apparent.

There is an immediately applicable obligation of conduct:⁷⁹ ‘steps must be taken’ and they must be taken continuously, expeditiously and effectively toward⁸⁰ the full realisation of ICESCR rights utilising ‘the maximum of {the state party’s} available resources’.⁸¹ From a state perspective, the manner in which article 2(1) ICESCR has been framed has the merit of ensuring not only that developed and developing states are equally bound, but that they are equally able to comply.⁸² On the other hand, since the level of rights realisation expected of a state is calibrated to resources, from a right holder’s perspective it has the drawback of expecting a higher level of rights realisation by developed states than developing ones.⁸³ Moreover, too ready acceptance of a plea of lack of resources can easily eviscerate ICESCR altogether. Recognising this fact the Committee on Economic, Social and Cultural Rights has taken the position⁸⁴ that ‘a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State party’.⁸⁵ It has elaborated the concept of minimum core obligation as follows:

Thus, for example, a State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations under the Covenant…. By the same token, it must be noted that any assessment as to whether a State has discharged its minimum core obligation must also take account of resource constraints applying within the country concerned. Article 2 (1) obligates each State party to take the necessary steps "to the maximum of its available resources". In order for a State party to be able to attribute its failure to meet at least its minimum core obligations to a lack of available resources it must demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations.⁸⁶

Given that PNG’s GDP per capita is ranked 182nd in the world,⁸⁷ it may well be able to plead lack of resources as an excuse for failing to meet even its minimum core obligations. By contrast, Australia which comes in at 27 in the world GDP per capita rankings⁸⁸ could not plausibly do the same. Of course, even a developed country such as Australia may be able successfully to plead lack of resources as a reason for failing, at a given point in time, to realise fully the rights contained in the ICESCR.⁸⁹ However, such a plea will not avail in the absence of proof.

Respect, Protect, Fulfil

It has now pretty much become orthodoxy that corresponding to every human right, there are three types of obligation on states:

1) The obligation to refrain from depriving right holders of the content of a right, i.e. the obligation to respect the right;

2) The obligation to protect right holders from being deprived of the content of a right by a third party; and

3) The obligation to aid right holders who do not have enjoyment of the content of a right, i.e. the obligation to fulfil the right.⁹⁰

In the context of ICESCR, the obligation to respect a right is always going to be part of the minimum core obligation.⁹¹ Moreover, since all that is required of the state is the not doing of anything that would interfere with the exercise of the right in question no state can successfully plead lack of resources to excuse failure to discharge the obligation to respect.⁹² The obligation to protect a right is also always going to be part of the minimum core obligation because setting up the legislative and enforcement systems necessary to protect rights is, in Audrey Chapman’s words, ‘widely understood to form part of the basic responsibilities of government’.⁹³ It cannot be denied, however, that resources are needed to set up and maintain such systems and that some states may, objectively speaking, lack the resources to do so effectively.⁹⁴ Fulfilling rights can be more resource-intensive still. Since the minimum core obligation in relation to a right is one which all states are treated as prima facie being able to discharge regardless of their level of economic development, the fulfil aspect of minimum core obligations must be very minimal indeed to be realistic.⁹⁵ For example, Rolf Künnemann suggests that the minimum core obligation to fulfil the right to food (article 11 ICESCR) requires that ‘at least, physical access to essential food be fulfilled for each deprived person as expeditiously as possible.’⁹⁶ It is, of course, unlikely that a developed state such as Australia could discharge its obligation to fulfil the right to food by achieving only this minimum. Conversely, it is entirely possible that a developing state such as PNG could discharge its obligation to fulfil the right to food without achieving even this minimum.]

[Slide 19] Extra-territorial Application? [Allow time to read slide]

[FOR MY INFORMATION

The undertaking in ICESCR article 2(1) is not explicitly qualified by reference to either territory or jurisdiction. Any contention that a territorial⁹⁷ qualification is implicit in the provision is surely rebutted by the fact that some transnational dimension to ICESCR obligations seems contemplated in the undertaking by state parties ‘to take steps… through international assistance and co-operation’ to achieve the full realisation of ICESCR rights.⁹⁸ Moreover, Rolf Künnemann makes the point that there is no textual indication that the obligation ‘to take steps individually’ is only binding territorially or that the obligation ‘to take steps … through international assistance and cooperation’ is only binding extraterritorially. In other words, there is nothing in article 2(1) ICESCR to indicate anything other than that state parties are undertaking to take steps individually and through international cooperation both within and outside their territory to achieve full realisation of ICESCR rights.⁹⁹

There is, of course, no problem with requiring states to respect human rights everywhere in the world because all that is required here is the not doing of anything that would interfere with the exercise of these rights.¹⁰⁰ However, no state has enough resources single-handedly to protect and fulfil the ICESCR rights of every person in the world so it may well be necessary to read in some kind of limitation on the scope of states parties’ individual protect and fulfil obligations under ICESCR in order to render them meaningful.

In elaborating the obligations of states under ICESCR, the Committee on Economic, Social and Cultural Rights tends, in fact, to speak of the obligations being owed by state parties to persons within their ‘jurisdiction’.¹⁰¹ Every state has de jure and usually de facto jurisdiction over its own territory and the inhabitants thereof. Thus, PNG’s ICESCR obligations are owed to all persons within its territory, regardless of how they came to be there.¹⁰² Even if, in relation to intercepted asylum seekers, PNG has chosen to entrust the discharge of these obligations to IOM, UNHCR and the Australian Government, it does not thereby rid itself of the obligations.¹⁰³ The more difficult question is to what extent Australia can be held responsible for the manner in which intercepted asylum seekers are treated while in PNG.¹⁰⁴

The circumstances in which states have or purport to exercise jurisdiction beyond their own territory are limited. One clear cut case of the exercise of de facto jurisdiction is the situation of a state exercising ‘effective control’ over territory external to its own, for example, through military occupation. In its Advisory Opinion in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the International Court of Justice agreed with the Committee on Economic, Social and Cultural Rights that Israel’s ICESCR obligations ‘apply to all territories and populations under its effective control’.¹⁰⁵ Beyond this, it is worth turning to the Human Rights Committee’s interpretation of the ICCPR’s explicit jurisdiction provision for further guidance. Given that ‘[a]ll human rights are universal, indivisible and interdependent and interrelated’,¹⁰⁶ it seems reasonable to assume that ‘jurisdiction’ for the purposes of a state’s ICESCR obligations is as wide a concept as for the purposes of its ICCPR obligations. The view taken by the UN Human Rights Committee as expressed in its General Comment on article 2 of the ICCPR is that:

States Parties are required by article 2, paragraph 1, to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction. This means that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party.¹⁰⁷

Let us assume the same is true in relation to ICESCR. In other words, a state’s individual ICESCR obligations will be engaged extraterritorially whenever that state can be said to exercise effective control over the territory in which the impugned actions/omissions took place or effective control over the person who claims to be the victim of those actions/omissions.]

Clearly, Australia cannot be said to be exercising effective control over the whole or any part of the territory of PNG. The question, therefore, is whether the sort of control (if any) exercised by Australia over asylum seekers subject to the 2005 MOU in PNG can be described as an exercise of effective control over those asylum seekers. If a state detains an individual, the detained individual is, of course, subject as completely as it is possible to be to the power of the detaining state. However, it is likely that asylum seekers subject to the 2005 MOU will not be held in detention but will simply be prevented from engaging in onward movement to a country other than their own. Is curtailment of an individual’s freedom in only that specific respect, an exercise of ‘effective control’ over the person in question? Answering this question is a work in progress.

[Slide 20] It is worth recollecting at this point that states parties to ICESCR must also engage in ‘international assistance and cooperation… with a view to achieving progressively the full realisation of’ ICESCR rights. The slide sets out the ICESCR Committee’s views on what is required here.

[FOR MY INFORMATION

Coming at this obligation from the other direction as it were, the Committee on Economic, Social and Cultural Rights takes the view that failure by states parties to take possible adverse impacts on the enjoyment of ICESCR rights into account when ‘entering into bilateral or multilateral agreements with other States, international organizations and other entities, such as multinational corporations’ is a violation of the obligation to respect those rights.¹⁰⁸ If Australia could be said to be guilty of such a failure in entering the 2005 MOU, then perhaps it could be said to have violated the rights not taken into account. Though funding the provision of social assistance to asylum seekers through the arrangement seems on the face of it a good thing to do, Australia should not assume without investigation that the arrangement has only positive impacts on the enjoyment of ICESCR rights by the asylum seekers in question.

In relation to the ‘international assistance and cooperation’ aspect of the obligation to protect ICESCR rights, Fons Coomans suggests that ‘[t]he obligation to protect includes an obligation for the state to ensure that all other bodies subject to its control (such as transnational corporations based in that state) respect the enjoyment of rights in other countries.’¹⁰⁹ Even more expansively, the Committee on Economic, Social and Cultural Rights takes the view that States parties must ‘prevent third parties from violating [ICESCR rights] in other countries, if they are able to influence these third parties by way of legal or political means, in accordance with the Charter of the United Nations and applicable international law’.

{General Comment 14

39. To comply with their international obligations in relation to article 12, States parties have to … prevent third parties from violating the right in other countries, if they are able to influence these third parties by way of legal or political means, in accordance with the Charter of the United Nations and applicable international law (emphasis added)¹¹⁰

General Comment 15

33. Steps should be taken by States parties to prevent their own citizens and companies from violating the right to water of individuals and communities in other countries. Where States parties can take steps to influence other third parties to respect the right, through legal or political means, such steps should be taken in accordance with the Charter of the United Nations and applicable international law (emphasis added)} ]

Clearly, Australia has put itself in a position to influence, if not control, IOM and also the government of PNG through its funding of the cooperation arrangement. I would argue, therefore, that it will be in violation of the ‘international assistance and cooperation’ aspect of its obligation to protect ICESCR rights if it does not use that influence as far as it is able to prevent IOM and/or the PNG government from depriving asylum seekers subject to the arrangement of their ICESCR rights.

[FOR MY INFORMATION

Finally turning to the ‘international assistance and cooperation’ aspect of the obligation to fulfil, in General Comment 15 the Committee on Economic, Social and Cultural Rights states:

34. Depending on the availability of resources, States should facilitate realization of the right to water in other countries, for example through provision of water resources, financial and technical assistance, and provide the necessary aid when required…. The economically developed States parties have a special responsibility and interest to assist the poorer developing States in this regard.

Similarly, General Comment 14 specifies that ‘[d]epending on the availability of resources, States should facilitate access to essential health facilities, goods and services in other countries, wherever possible and provide the necessary aid when required.’¹¹¹ Moreover, in its Concluding Observations on the reports of developed states the Committee often recommends that states whose overseas development assistance (ODA) falls short of the UN target of 0.7 per cent of GNP make greater endeavours to meet that target.¹¹² However, insisting that Australia increases its ODA from 0.3 per cent of GNP¹¹³ to 0.7 per cent of GNP is not necessarily going to help the asylum seekers subject to the regional cooperation arrangement. Is there a reason why Australia should fulfil (provide) the content of ICESCR rights to this particular subset of the rest of the world?

In discussing individual moral responsibility for the consequences of actions, the philosopher J R Lucas argued:

If I choose to act, I thereby take on a special responsibility of care, to consider all the possible consequences of my action, and to make sure that nothing untoward comes of it.¹¹⁴

By setting up the 2005 MOU arrangement, Australia is effectively treating PNG as a safe third country. Though the safe third country principle has thus far been explicitly invoked by states seeking to remove asylum seekers from their territory to the third country it must, if logic has anything to do with the matter, be applicable in the extraterritorial context also. As we have seen, by choosing to act, Australia has put itself in a relationship with the asylum seekers affected by its actions, which engenders extraterritorial obligations to respect and protect their ICESCR rights. Why not obligations to fulfill those rights as well?]

Conclusion

You’ll notice that thousands of words on from the beginning of this paper I have only just reached the point where I can start looking at the substantive content of the rights set out in ICESCR and considering whether Australia and/or PNG have, on the facts, breached their obligations to respect, protect and fulfil those rights. Answering these questions would take many thousands of words more, not least because, the manner in which article 2 of ICESCR goes about imposing obligations on state parties means that the substantive content of the obligations probably differ for Australia and PNG. However, the point I have reached is the point at which I have to concede that the game is already lost. The consequence of having lack of clarity about who bears legal responsibility for protecting the socio-economic rights of non-citizens caught by arrangements such as the one discussed in this paper is that in practical political terms it becomes nearly impossible to hold anyone accountable for human rights deprivations suffered by such individuals: and that is the main point I wanted to make.