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Australia's international obligations

The Universal Declaration of Human Rights (UDHR) is the foundation of international human rights law. Proclaimed by the UN General Assembly in 1948, it was the first universal statement of the fundamental human rights to which all human beings are entitled.

Universal Declaration of Human Rights

The UDHR is not a legally-binding treaty – States cannot sign on to the UDHR and it cannot be enforced. Rather, it is an aspirational statement which aims to set ‘a common standard of achievement for all peoples and all nations.’ Despite not being enforceable itself, the UDHR is widely regarded as a benchmark for a nations’ human rights compliance.

Legal enforceability comes via the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). These elaborate on the principles outlined in the UDHR and contain implementation guidance. Collectively, the two Covenants and the UDHR are often referred to as the International Bill of Rights.

The UDHR acknowledges the right to seek asylum as a fundamental human right. Article 14 of the UDHR states that ‘Everyone has the right to seek and to enjoy in other countries asylum from persecution.’

(Full text of the Universal Declaration of Human Rights.)

There are nine core international human rights instruments. These are:

  • International Convention on the Elimination of All Forms of Racial Discrimination (CERD);
  • International Covenant on Civil and Political Rights (ICCPR);
  • International Covenant on Economic, Social and Cultural Rights (ICESCR);
  • Convention on the Elimination of All Forms of Discrimination against Women (CEDAW);
  • Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT);
  • Convention on the Rights of the Child (CRC or CROC);
  • International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families;
  • International Convention for the Protection of All Persons from Enforced Disappearance; and
  • Convention on the Rights of Persons with Disabilities.

Australia is party to seven of the nine core international human rights instruments and the Optional Protocols on the ICCPR, CEDAW and CROC. Australia is not currently party to the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, or the International Convention for the Protection of All Persons from Enforced Disappearance.

(The text of the core international human rights instruments can be read online.)

Hot Tip: Optional protocols

‘Optional Protocols’ are common additions which complement the already signed treaty. A Protocol could further detail a key part of the original treaty, it may address a new or emerging concern or it may add a procedure for the operation and enforcement of the treaty—for example a complaints procedure for individuals. The Protocol is ‘optional’ because States already signed on to the main treaty are not automatically part of the Protocol, they choose whether or not to sign and ratify.

Statelessness

A stateless person is someone who is not considered as a national by any country. In some cases, they are not legally recognised as a citizen by any country (a situation known as de jure statelessness). In other cases, a person may possess a legal nationality but cannot in practice exercise their citizenship rights (known as de facto statelessness).

People can become stateless through various means:

  • gaps or conflicts in nationality laws;
  • forced displacement;
  • arbitrary deprivation of nationality;
  • discrimination against minority groups in legislation;
  • a lack of effective birth registration procedures; and
  • failure to include all residents as citizens when a state becomes independent.

It is not necessarily a feature of statelessness that the person is facing persecution. However, due to their precarious situation, stateless persons are in need of international protection and assistance.

Stateless persons are generally unable to exercise the basic rights associated with citizenship or face serious difficulties in doing so. They are typically excluded from political processes, cannot travel freely and lack access to publicly funded services such as education, health care and welfare support. They often face difficulty in obtaining identity documents and securing employment and in many countries face the threat of detention and exploitation because they lack official status. Research carried out by UNESCO, for example, has shown that a lack of legal status is the single greatest risk factor for a highland person in Thailand to be trafficked or exploited. (See United Nations Educational, Scientific and Cultural organisation (UNESCO) 2011, Combating lack of legal status among ethnic groups.)

Statistics

The UNHCR estimates that there are 12 million stateless persons worldwide. However, only 6.6 million of these have been formally identified by the organisation. Below are the 20 largest documented stateless populations worldwide.

 

Country Stateless persons
Thailand 3,000,000
Nepal 800,000
Burma 723,571
Latvia 344,263
Syria 300,000
Iraq 230,000
Estonia 104,813
Kenya 100,000
Kuwait 93,000
Saudi Arabia 70,000
Ukraine 56,500
Russian Federation 50,000
Malaysia 40,001
Kyrgyzstan 24,615
Serbia 16,700
Bosnia and Herzegovina 9,688
Germany 8,226
Belarus 7,799
Sweden 7,758

 

Article 15 of the UDHR states:

  1. Everyone has the right to a nationality.
  2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

There are two key international legal instruments relating to stateless persons:

(1) The 1954 Convention relating to the Status of Stateless Persons. This defines a stateless person as “a person who is not considered as a national by any State under the operation of its law.” This Convention includes the same qualifier as the Refugee Convention about persons convicted of certain crimes.

Under the 1954 Convention the only way a signatory country can expel a stateless person from their territory is on the basis of national security or public order.

(2) The 1961 Convention on the Reduction of Statelessness, which outlines measures to prevent statelessness. These measures fall into four main categories:

  • the requirement that states parties grant nationality to children who would otherwise be stateless and have ties with that state either by born in that territory or through descent from a national of that state;
  • the loss or renunciation of nationality is conditional on the possession or acquisition of another nationality;
  • States cannot deprive a person of nationality on racial, ethnic, religious or political grounds or if it would render the person stateless; and
  • where there is transfer of territory resulting from one state replacing (or ‘succeeding’) another special provision is made for persons who could be made stateless by the transfer.

The two Conventions on statelessness are not as widely ratified as the Refugee Convention. There are currently 65 parties to the 1954 Convention, and 37 states parties to the 1961 Convention. Australia has ratified both.

Complementary protection

There is no existing legislation in Australia for an asylum seeker who is deemed not to need protection but for whom there is a genuine risk of torture and inhumane treatment. Presently, the only protection available to this person is if the Minister chooses to exercise his or her power and grant the person a visa, which could be a permanent or a temporary one with limited rights.

This could, and in past cases, has, left Australia in breach of its obligations under CAT and ICCPR with people being returned to their country of origin and later tortured and even killed. The latest attempt to codify Complementary Protection was a model put forward by the Government in late 2010. This would see a claim for protection first assessed against the refugee definition and if this is not met, complementary protection considered. The transparent guidelines for this would avoid Australia’s complicity in refoulement and improve our commitment to international obligations such as CROC (explored below).

In 2009 the UNHCR made detailed comments on Australia’s draft complementary protection visa which are availabe online.

Convention on the rights of the child

The Convention on the Rights of the Child (CROC) ties together human rights particular to children that are articulated in other international instruments and provides a set of guiding principles. Australia signed and ratified the CROC in 1990.

Article 22 of the Convention applies specifically to refugee children and stipulates that:

States shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties.

Other articles in the CROC that are of particular relevance to refugee and asylum-seeker children are explained further.

Deprivation of liberty

Article 37(1)(b) of the CROC states that:

No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.

The issue of children in Australian detention centres is discussed in detail in Children in immigration detention.

Best interests of the child

Article 3 states that the best interests of children must be the primary concern in making decisions that may affect them. All adults should do what is best for children. When adults make decisions, they should think about how their decisions will affect children. This particularly applies to budget, policy and law makers.

Registration, name, nationality, care

Under Article 7, all children have the right to a legally registered name, officially recognised by the government. Children have the right to a nationality (to belong to a country). Children also have the right to know and, as far as possible, to be cared for by their parents.

Family reunification

Article 10 states that families whose members live in different countries should be allowed to move between those countries so that parents and children can stay in contact, or get back together as a family.

Children of minorities/indigenous groups

Minority or indigenous children have the right to learn about and practice their own culture, language and religion (Article 30). The right to practice one’s own culture, language and religion applies to everyone; the Convention here highlights this right in instances where the practices are not shared by the majority of people in the country.

War and armed conflicts

Governments must do everything they can to protect and care for children affected by war (Article 38). Children under 15 should not be forced or recruited to take part in a war or join the armed forces. The Convention’s Optional Protocol on the involvement of children in armed conflict further develops this right, raising the age for direct participation in armed conflict to 18 and establishing a ban on compulsory recruitment for children under 18.
(Adapted from UNICEF Summary of CROC)

International Covenant on Civil and Political Rights

The Universal Declaration of Human Rights of 1948 was codified into two Covenants – the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), adopted by the UN in 1966. Together with the Optional Protocols, these create what is often referred to as the ‘International Bill of Human Rights’.

The ICCPR defends the right to life and stipulates that no individual can be subjected to torture, enslavement, forced labour and arbitrary detention or be restricted from such freedoms as movement, expression and association.

Article 9 and mandatory detention

Article 9(1) and 9(3) of the ICCPR are particularly relevant to Australia’s policy of mandatory detention for all irregular maritime arrivals who arrive without visas and subsequently seek asylum in Australia. The Articles state that:

  1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
  2. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

Australia’s obligations as a signatory to the ICCPR (except for Article 41) came into force on 13 November 1980.

UN Convention on the Law of the Sea

The 1982 United Nations Convention on the Law of the Sea (UNCLOS) was brought about to regulate all aspects of the resources of the sea and uses of the ocean beyond the limits of national jurisdiction, providing a foundation for the settlement of disputes between States.

For people seeking asylum in Australia who arrive by boat, UNCLOS as well as other international treaties (including the International Convention on Maritime Search and Rescue, the International Convention on Salvage, and also through longstanding maritime custom), ensure a Master of a ship must go to the assistance of those in peril on the seas, unless the actions would put the master’s vessel or crew in danger.

Article 98 of UNCLOS in particular, details a ship’s duty to render assistance to any person found at sea in danger of being lost or to rescue people in distress if informed of their need for assistance. Additionally, under Article 98(2), every coastal State shall promote the establishment, operation and maintenance of an adequate and effective search and rescue service.

Australia and Indonesia have both ratified the UN Convention on the Law of the Sea.

 

The Rohingya– over 1.5 million people made stateless overnight

The Rohingya are a Muslim minority group from western Burma. The Burmese military regime declared the Rohingya to be non-nationals under the Burma Citizenship Law of 1982. As such, the Rohingya are unable to move, marry, or find jobs without obtaining permits or paying bribes. Without the basic rights afforded by citizenship, they are helpless to avoid arbitrary taxation, forced labour, or confiscation of their land.

In the 1990s, nearly 250,000 Rohingya fled into neighbouring Bangladesh in the hope of escaping persecution in Burma. The government of Bangladesh declared the Rohingya illegal immigrants and placed them in refugee camps.

Since the mass exodus two decades ago, 28,932 Rohingya still live in official camps in Bangladesh, with another estimated 17,000 living without support in nearby makeshift camps. Around 200,000 more, denied official refugee status and labelled ‘illegal economic migrants’, are living in the cities of Bangladesh. These Rohingya live without protection of the law and are restricted from formal education, reliable healthcare and regular sources of food or income. Those who remain in Burma continue to face similar and systematic discriminations.

It is estimated that 1.5 million Rohingya are currently living in exile in countries including Bangladesh, Pakistan, Saudi Arabia, United Arab Emirates, Malaysia and Thailand.