A Tug of War between National Security and UN Security Council Resolutions – Deniz Kayis

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.

UNSC Resolutions enacted under Ch VII of the United Nations Charter are binding on member states. This is due to the requirement in Art 25 of the UN Charter that member states “carry out and accept the decisions of the Security Council” (for a more detailed discussion of how to interpret the binding nature of UNSC Resolutions, see Michael Wood, “Interpretation of Security Council Resolutions” in Jochen A. Frowein, Rüdiger Wolfrum and Christiane E. Philipp (eds), Max Planck Yearbook of United Nations Law (1998)).

Australia is not the only country adopting citizenship revocation laws. In Europe, over 20 countries have started using or adopting denationalisation laws for conduct prejudicial to the state, such as the United Kingdom (British Nationality Act 1981 (UK), s 40(2)) and Switzerland (Verordnung über das Schweizer Bürgerrecht (AS 2016 2577)). By implementing and enforcing laws which enable revocation of citizenship in the context of terrorist activity, these member states may be in contravention of at least four UNSC Resolution obligations.

UNSC Resolution obligations

  1. To criminally prosecute terrorists

UNSC Resolution 1373 (2001) was made in response to the 9/11 attacks. Among other things, this Resolution mandates that member states deal with any person participating in or supporting terrorist acts by way of the criminal justice system. This was reaffirmed in UNSC Resolution 2178 (2014). Resolution 2178 requires that member states establish “serious criminal offenses sufficient to provide the ability to prosecute and to penalize”. Even the Australian Government’s 2015 Counter-Terrorism Strategy includes the use of the criminal law as one of its three core principles.

The Citizenship Act amendments do not deal with terrorism as a criminal matter. By revoking an overseas citizen’s citizenship, the laws negate the possibility for Australian officials to extradite and prosecute that individual, even though that possibility may be slight.

  1. To prevent the international movement of terrorists

Another UNSC obligation potentially contravened relates to preventing the international movement of terrorists. First noted in Resolution 1373 (2001), this obligation was more recently reiterated in Resolutions 2170 (2014) and 2178 (2014).

The Citizenship Act applies to physically displace terrorist threats to outside of Australia, whether by deportation or by denying re-entry. But, if an individual is stranded outside of Australian borders, there is no guarantee they will be subject to any other law enforcement measures. To the contrary, cross-border movement and continued terrorist involvement by that individual is much more likely.

So, revoking such an individual’s citizenship does not interdict the terror risk they pose. It simply displaces that risk to another jurisdiction, while evading Australia’s UNSC obligation to prevent the international movement of terrorists.

  1. To take action in accordance with international human rights obligations

The relevant provisions of the Citizenship Act likely conflict with international human rights, like the right to nationality and to enter one’s country, rights of the child, and the right not to be detained indefinitely. This is examined in depth in the Australian Human Rights Commission’s submission on the draft legislation. As a result, the provisions also likely contravene Resolutions such as 2178 (2014), which note that member states must adhere to international human rights, humanitarian and refugee law when pursuing counter-terror security measures.

This is concerning from a practical perspective. As UNSC Resolution 2178 (2014) notes, human rights law is important when combatting risks like domestic terrorism because adherence to those laws can complement and reinforce security measures. In contrast, failure to do so ‘is one of the factors contributing to increased radicalization.’

  1. To work cooperatively with other states in tackling terrorism

Finally, the purpose of UNSC Resolutions is to foster a coordinated and collective approach to global terror threats. Resolutions 1566 (2004) and 2178 (2014) require that member states work cooperatively to fight terrorism, recognising its global impact.

In stark contrast to this responsibility, denationalisation of a citizen for terrorist conduct undermines collective efforts to counter terrorist activity. It hoists one country’s terror threat onto another country and onto the global community as a whole, rather than taking action towards actually resolving the threat.

Why contravening UNSC Resolutions is a problem

In the past, the Australian government relied on the very UNSC Resolutions it is now likely contravening to validate counter-terror legislation. For example, in the High Court case Thomas v Mowbray [2007] HCA 33, part of the Commonwealth Government’s argument in defence of the constitutional validity of interim control orders invoked UNSC Resolution 1373 (2001). A similar route was adopted in the 2015 New South Wales Supreme Court case Alqudsi v Commonwealth [2015] NSWSC 1222. The Commonwealth invoked Resolution 2178 (2014), alleging that it enlivened the external affairs power and rendered the provision under challenge constitutionally valid.

One of the arguments posited by supporters of the citizenship revocation provisions is that since the laws move terror threats offshore, protecting national security, they are justified. Michael Phelan, Deputy Commissioner National Security of the Australian Federal Police, frames the new laws as leaving Australia with “one less thing” to deal with.

This position is flawed. It dismisses international security obligations and assumes that by shifting terror threats to outside Australian territory, domestic terror attacks can be effectively prevented. Yet, revoking citizenship and physically excluding a terror threat does not interdict the threat. It merely displaces it, potentially onto Australian allies. This fails to take into account the global nature of terrorism, and just how connected Australia’s stability and national security is to its allies’. As noted by Professor Ben Saul from the University of Sydney:

“A responsible government would not foist its terrorists onto other countries, but bring them home to face justice. This is not only the responsible thing to do from a national security perspective, but is also required of Australia by international law”.

Contravention of UNSC Resolution obligations is unlikely to have any legal consequence. Realistically, the Resolutions are unlikely to be enforced against countries like Australia and the United Kingdom. Nevertheless, as terrorism’s global dimension becomes ever more apparent, the importance of these international obligations amplifies.

Deniz Kayis is a final year student at UNSW Law School, who completed her thesis on the Citizenship Act under the supervision of Prof George Williams AO.