The ILA is proud to support a presentation to be given by Henry Burmester AO QC in Sydney on 14 March 2017 on the implications of the recent Brexit decision of the UK Supreme Court for Australian treaty making.
On 28 January 2017, American President Donald Trump made a phone call to Australian Prime Minister, Malcolm Turnbull. During that conversation, Turnbull pressed Trump on whether he would honour the refugee resettlement arrangement that was struck by the Australian Government with the outgoing Obama administration. While President Trump said that he would honour the deal, he later tweeted that it was a “dumb deal” and that he was going to study it.
On the same day, Trump signed an executive order to ban nationals from seven countries (Syria, Iran, Iraq, Lybia, Somalia, Sudan and Yemen) from entering the United States (“US”) for 90 days, indefinitely bar entry by Syrians into the US and suspend the US Refugees Admission Program for 120 days, subject to a review to institute ‘extreme vetting’ measures.
Background to the resettlement arrangement
Since 2012, the Australian Government has held asylum seekers who have arrived in Australia by boat on offshore processing centres on Nauru and Manus Island. Under a policy of deterrence that has bi-partisan support, those on the island who are found to be refugees are not eligible for resettlement in Australia. For the last few years, the Australian government has sought to find resettlement options for them, but with limited success. Only a handful of refugees have been resettled pursuant to an agreement with Cambodia. New Zealand has a long-standing offer to resettle 150 refugees a year from the islands, but this offer has been rejected on the grounds that it might offer people a back-door way into Australia. This is due to special arrangements that make it easy for New Zealand citizens to enter and stay in Australia.
As of 20 February 2017, 689 people on Manus Island and 998 on Nauru have received positive refugee status determinations. The Australian government has come under intense political pressure to find resettlement options and close the offshore detention centre amid mounting evidence of abuse and systemic dysfunction. A number of asylum seekers have died on the island since 2012 and the situation has arguably damaged Australia’s international reputation.
What we know about the Australia-US arrangement
According to evidence given by Australia’s Department of Immigration to a Senate Inquiry in late 2016, the arrangement is a bilateral agreement entered into ‘through diplomatic means’. The arrangement follows an announcement by the Australian Government to assist the US with the resettlement of Central American refugees currently in Costa Rica. The Australian government has strongly denied that the arrangements constitute in any way a ‘refugee swap’.
Under the arrangement, refugees on Manus Island and Nauru will be referred by Australia to the US for resettlement under its Refugees Administration Program (USRAP). The United Nations High Commissioner for Refugees (UNHCR) is not a party to the arrangement, but has stated that it will endorse referrals made by Australia ‘on a one-off, good offices, humanitarian basis, in light of the acute humanitarian situation’. It is then a matter for the US to consider whether to accept any refugees after it has conducted health, security and character checks.
Beyond this, little else is known about the arrangement. There is no timeframe or indication as to how many refugees may be resettled or who may be prioritised. According to evidence given by Australian officials, this is a ‘process driven’ rather than a ‘numbers driven’ exercise. There were reports that US officials had begun to arrive on Nauru and Manus Island in December 2016 in order to start the vetting process. Since the Trump administration has taken office, those officials have left and it is unclear when new officials will come.
It is important to emphasise that time is of the essence for refugees on Manus and Nauru, many of whom have waited 4 years for a durable solution. Trump’s executive order suspends the USRAP for 120 days, although exceptions can be made on a case-by-case basis. Normal resettlement procedures under the USRAP can take up to 18-24 months. It is a complex process that involves numerous government agencies, security checks, and personal interviews. Even on the most optimistic outlook, it may be many months before any refugees are resettled.
A number of other issues also remain unclear. What will happen to those who have been positively identified as refugees but are rejected by the US as a result of the screening process? Will family members of refugees who are resettled to the US — some of whom are in Australia — be able to join them?
International law Implications
It is important to recognise that the arrangement does not constitute a treaty. As such, the Trump administration is under no international legal obligation to honour the arrangement.
The US has ratified the 1967 Protocol to the Refugee Convention, which requires it to apply the provisions of the Refugee Convention. However, important protections under the Convention that include prohibition on return (non-refoulement) to a place of persecution (Article 33) and non-discrimination (Article 3) only apply in respect of refugees within a state’s jurisdiction. So, while the travel ban contained in the executive order is clearly a breach of the Convention in relation to those who can access US territory, the same protections do not apply to resettlement.
Resettlement — the act of providing protection to refugees from another state’s jurisdiction — is purely a discretionary matter.
The question of Australia’s international legal obligations with respect to asylum seekers and refugees on Manus Island and Nauru is, I would argue, clear-cut. As noted above, a State that is a party to a human rights treaty is bound to respect and uphold the rights contained in that treaty for all persons within the State’s ‘jurisdiction’. A State is generally considered to have jurisdiction over persons outside its territory if it has a certain degree of power, authority or ‘effective control’ over them, or over the territory in which they are located. The legal question boils down to whether, as a matter of fact, Australia exercises effective control over Nauru and Manus Island.
The Australian government has repeatedly argued that it is not legally responsible for what happens to the asylum seekers and refugees on Nauru and Manus, either because they reside on the territory of another State, or that it does not have the ‘effective control’ necessary to establish jurisdiction.
However, several members the High Court of Australia in the case of Plaintiff M68 held that Australia was responsible for the detention of asylum seekers on Nauru. In doing so, members of the Court referred to facts that support the case that Australia exercises ‘effective control’ over the island. These facts include that Australia had removed persons to Nauru under the Migration Act 1958 (Cth), and through contracted service providers, funded and retained a degree of control over how the detention centres operated.
If it is accepted that Australia has effective control over Nauru and Manus Island, Australia must abide by its international obligations — under international refugee law and other international human rights law — to ensure that refugees are not subjected to cruel, inhuman or degrading treatment. It is arguable that the conditions on Nauru and Manus are so poor as to reach the level of severity necessary to constitute cruel, inhuman and degrading treatment. If Nauru and Manus Island are not places where effective protection can be found for refugees, Australia has an obligation to find suitable resettlement options elsewhere, or preferably, to resettle the refugees in Australia.
Where to from here?
For the refugees on Manus Island and Nauru, there is no doubt that resettlement to the US is a desirable outcome. The US has a rich history of refugee resettlement and robust settlement services capable of providing a durable solution. That said, the arrangement represents little more than a band-aid solution to a problem that requires major surgery. It is unlikely that all the refugees on Manus and Nauru will be offered resettlement by the US.
Australia can no longer pretend that, as a matter of international law, it is not responsible for the welfare and safety of those on Manus and Nauru. Offshore processing is not a sustainable solution for Australia or the refugees it is bound to protect. Yet it remains a major plank of current Australian refugee policy that also includes boat turnbacks and temporary protection visas. These measures, it is argued, save lives by deterring people from engaging in dangerous boat journeys to Australia. This justification lacks force when one considers that the offshore regime subjects people to cruel and inhumane conditions that have also resulted in deaths.
Australia does not, and arguably should not, have to rely on the US or other countries to help it discharge its international obligations.
If the primary policy objective is to deter people from undertaking dangerous sea journeys, there are alternative solutions to offshore processing. Australia could make available alternative and legal pathways for refugees to enter Australia, including introducing visas that allow people to travel safely to Australia to seek asylum. It could address barriers to family, skill and student visas that could provide an alternative avenue for entry and protection. It could also increase aid to countries in the Asia-Pacific region that host asylum seekers and help to promote laws and policies that allow them legal status and access work and education while waiting for a durable solution.
Khanh Hoang is an Associate Lecturer in the Australian National University’s Migration Law Program and a PhD Candidate at the Andrew and Renata Kaldor Centre for International Refugee Law at the University of New South Wales.
On 16-24 February, the Special Commission on the Recognition and Enforcement of Foreign Judgments (the “Judgments Project”) met for the second time in The Hague, on the grounds of the Peace Palace.
On 16 January 2017, Ukraine instituted proceedings against Russia before the International Court of Justice (“ICJ”). In its application, Ukraine bases the Court’s jurisdiction on the International Convention for the Suppression of the Financing of Terrorism (“CFT”) as well as the International Convention on the Elimination of All Forms of Racial Discrimination (“CERD”) (paras 7 and 13 of the application).
Concerning CFT, Ukraine contends that Russia violated its obligations by inter alia supplying funds, weapon and training to illegal armed troops, which engage in terrorism in Ukraine (para 134). Notably, it requests the Court to find that, by virtue of Russia’s sponsorship and failure to prevent the financing of terrorism, it bears international responsibility for matters including the shooting down of Malaysian Airlines Flight MH17 (para 135).
As regards CERD, Ukraine argues that Russia, “through its State organs and agents, as well as other persons and entities exercising governmental authority, including the de facto authorities administering the illegal Russian occupation of Crimea”, systematically discriminates against and mistreats Crimean tartars (para 137). Notably, Ukraine also submits that, in the Autonomous Republic of Crimea, Russia has “brazenly defied the UN Charter, seizing a part of Ukraine’s sovereign territory by military force” (para 5).
Ukraine’s application raises a number of controversial issues. This article deals with one of them, namely Russia’s responsibility for the shoot-down of MH17. In this regard, it will first pinpoint potential issues of jurisdiction and admissibility. Subsequently, with respect to the merits, it will discuss possible obstacles relating to the attribution of the shoot-down to Russia.
- Issues relating to jurisdiction and admissibility over Russia’s responsibility for the shoot-down of MH17
States may confer jurisdiction upon the ICJ in four ways. First, states may confer jurisdiction by both submitting a declaration under Art 36(2) of the ICJ Statute, whereby they consent ipso facto to the ICJ’s jurisdiction. Second, both states may be parties to a treaty containing a relevant compromissory clause. Third, the parties may conclude a compromis after the dispute has arisen or, lastly, the respondent State may consent implicitly by virtue of forum prorogatum after the issue is referred to the court.
Russia has neither lodged a declaration under Art 36(2), nor does there seem to be a compromis. It is too early to judge whether the ICJ could base its jurisdiction on forum prorogatum, as Russia has not yet submitted any response to the ICJ. Thus, Ukraine’s only option was to rely on a compromissory clause contained in a treaty to which both Ukraine and Russia are parties. Specifically, Ukraine relied on the compromissory clauses contained in Art 24 CFT and Art 22 CERD. Hence, Ukraine seems to be attempting to package the actual issues, that is the shooting down of MH17, in a manner so as to fit within the compromissory clauses of those treaties.
This practice of “shoehorning” is not novel: this approach was utilised by the Philippines in the South China Sea dispute and Georgia in Georgia v Russia. The ICJ’s role in this context is the following: it first must establish the applicability of CFT and/or CERD. Second, it must find that there is a dispute and that this dispute concerns the interpretation or application of CERD and/or CFT (cf Art 22 CERD and Art 24 CFT). It is at this point that the art of framing the dispute accordingly comes in. Thus far, as Tzanakopoulos points out, tribunals, including the ICJ, have reacted in a rather lenient way to cases of shoehorning.
However, as explained above, Art 24 CFT establishes the ICJ’s jurisdiction for disputes regarding its “interpretation or application” only. Yet, it may be difficult to see how the responsibility for the shooting down of MH17 is a question relating to the interpretation or application of CFT. This is so because the responsibility for the shoot-down of a plane only tangentially touches upon the financing of terrorism. Consequently, this issue could fall outside the Court’s jurisdiction.
Even if the ICJ finds jurisdiction in this regard, the matter may be inadmissible. By shooting down the plane, Russia did not per se injure Ukraine. Neither were Ukrainian citizens hurt, nor was the aircraft Ukrainian. Therefore, Ukraine might lack locus standi (cf. Art 42 of the ILC’s Articles on State Responsibility, see also Tomuschat in Zimmermann, Commentary on the ICJ Statute, Art 36, paras 132 et seq). Moreover, Ukraine thus far has not asserted that Russia has breached any erga omnes obligation, which could have given it some standing (cf. Barcelona Traction; Commentary on the ICJ Statute, Art 36 para 133).
In all, the ICJ may not have jurisdiction over the question of Russia’s responsibility for the shooting down of MH17, as this may not pertain to the interpretation or application of CFT. Additionally, Ukraine may not have standing to bring this issue before the ICJ.
- Obstacles relating to the attribution of the shoot-down to Russia
In the event that the issue indeed reaches the merits stage, another problem could potentially arise, namely that of attribution. In order for a state to bear state responsibility, two cumulative criteria must be fulfilled. First, the state must have committed an internationally wrongful act and, second, this conduct must be attributable to that state.
Ukraine argues that the wrongful act is the shooting down of MH17. As regards attribution to states of conduct committed by non-state actors, Art 8 of the Articles on State Responsibility stipulates that the “conduct of a person or group 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.” Different standards are applied by the ICJ and the ICTY when it comes to the degree of control required. In particular, the ICJ established in Nicaragua the effective control standard, which necessitates the issuance of orders pertaining to specific operations. By contrast, the ICTY in Tadic was satisfied with overall control in the case of organised groups, that is, the equipping, financing or training and providing operational support to the group, as well as the coordinating or helping in the general planning of the group’s military or paramilitary activity. However, and although the ICTY dealt with attribution to a state of the conduct of non-state actors, it did not do so within the realm of state responsibility. Moreover, the ICJ upheld the applicability of the effective control test within the ambit of state responsibility in the Bosnian Genocide Case.
As pointed out, Ukraine claims that Russia bears the responsibility over the shooting down due to its sponsorship of terrorism and its failure to prevent the financing of terrorism. If the ICJ upholds its decisions in Nicaragua and the Bosnian Genocide Case, the mere sponsorship of “terrorism” as alleged by Ukraine may not suffice to attribute the shooting down to Russia. However, Ukraine also submits that the shooting down was attributable by virtue of Russia’s omission to prevent third parties from financing terrorism. In other words, Ukraine purports that the shooting down is to be considered an act of the Russian State because non-state actors shot down the plane, and though those non-state actors were financed by another party, Russia had violated its CFT obligations by not preventing this from happening. It does not seem to claim that Russia had any degree of control over the persons who shot down MH17. Ukraine merely states that the Court should find that Russia bears international responsibility for the shooting down of MH17 “committed by its proxies” “by virtue of…its failure to prevent the financing” of terrorism. Thus, Ukraine appears to be inferring and relying upon the violation of an obligation to prevent the financing of terrorism as a ground for attribution. Although some scholars have brought forth such a concept in the realm of the use of force and self-defence (see Starski, p 27 et seqq), the ICJ has not yet applied such a ground for attribution. Notably, this case is distinguishable from the Tehran Hostages Case, as Russia has not openly endorsed the activities of these non-state actors.
Ukraine’s application to the ICJ raises a number of complex issues. This article addresses one of them, namely the shooting down of MH17. It highlights the obstacles that may arise relating to jurisdiction as well as admissibility, and points out which issues could appear with respect to the question of attribution. With regard to the former, the difficulty in seeing how the shooting down relates to the application or interpretation of CFT was explored, and the potential issue of Ukraine’s standing was pinpointed. Moreover, it was contemplated that the mere sponsorship of non-state actors may be insufficient to attribute their conduct to Russia. Lastly, it illustrated what hurdles may arise in the context of attribution by virtue of a State’s violation of an obligation. With the preliminary objections hearing scheduled for early March 2017, it will be interesting to observe how the ICJ deals with these issues.
Andrea Raab is a Magister Juris (MJur) Candidate at the University of Oxford, where she focuses on public international law. Andrea completed her undergraduate law degree at the University of Vienna. She is a laureate of the Heinrich Klang Award for the best ten graduates of the Vienna Law Faculty.
Applications are now open for the role of Social Media Coordinator of the ILA (Australian Branch) for 2017! See below for details on the role and how to apply.
You are cordially invited to attend a seminar presented by Professor August Reinisch, Chair of the ILA Rule of Law and International Investment Law Committee and Member of the International Law Commission on “The Rule of Law in Investment Arbitration”.
At a formal dinner in the atrium of the High Court in Canberra on Saturday 11 February 2017 to mark the end of the Australian qualifying round of the 2017 Philip C Jessup International Law Moot Court Competition, the International Law Association (Australian Branch) presented the Harold Snelling Prize to the members of the winning team from the University of Sydney.
It has been a busy, and turbulent month for President Trump. With a series of executive orders, he has made it clear that campaign promises of a wall with Mexico, withdrawal from the Trans-Pacific Partnership (TPP) and immigration ban on Middle Eastern nations were not meant in jest. There are wide-reaching implications of these decisions for US Constitutional and International Law.
Recent years have seen an increase in the number of situations in which two rival individuals or entities claim to have the authority to represent the same State on the international stage. In the last few decades, disputed elections, coups, armed conflict or occupation have resulted in competing regimes in countries such as Cote d’Ivoire, Cyprus, Haiti, Honduras, Kuwait, Libya, Sierra Leone, Somalia, Ukraine (in respect of Crimea) and Yemen, to name just a few.
In December 2015, Australia’s Federal Parliament amended the Citizenship Act 2007 (Cth) (“Citizenship Act”) to add avenues by which dual citizens could lose their Australian citizenship for terror-related conduct. Much of the commentary on the amendments has focused on the justifications behind the legislation, and the implications for Australia’s compliance with international human rights. Less commentary has focused on how the new provisions interact with, and likely contravene, Australia’s international security obligations.