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Reflecting Australia’s Immigration Detention Issue in relation to Article 9 of the ICCPR
Introduction
This essay seeks to examine the pro and cons of a World Court of Human Rights (WCHR) mechanism in line with the current global human rights system dominated by the United Nations. It then argues that WCHR is most likely a new utopia in the legal field. Next, the essay illustrates Australia’s immigration detention issue in the perspective of both national interest and international legal frame. It also discovers the implications of a system with strong political power and the weak judicial power. In the end, it concludes that unless a culture of human rights rooted in every corner of this world, WCHR cannot dissolve the clash between national interest and international ‘good faith’.
UN vs. WCHR
For a WCHR – “A right ought to have a judicial remedy’’
A very basic premise, also the legal principle, behind such proposal is, that ‘human rights imply that rights-holders must be able to hold duty bearers accountable and must have a right to reparation’. [1] This is clearly linked to the implementation issue.
Jesse conducted a structural review on the current Human Rights system and points out that such a deficient mechanism without implementation is the key reason why we need a WCHR. Jesse went further to explain, two of three working groups tasked with different proposals, drafting the International Bill of Human Rights, already achieved their goals respectively. Only the third working group on the implementation of human rights didn’t succeed. [2]
As UN plays a vital role in devising, interpreting, and monitoring human rights issues, it’s reasonable to advance our analysis by framing UN as a ‘nation’ with the separation of powers, namely, legislative, executive, and judicial power. [3]
Top 1 Systematic Problem: Executive Power – UNHR Treaty Body System
UN Treaty Bodies, as ‘executive power’, ‘are committees of independent experts that monitor implementation of the core treaties.’ [4] Among ten human rights treaty bodies, Human Rights Committee (HRC) oversees implementation of the ICCPR and its optional protocols. [5]
However, even the resolution 68/268 advocates the biennial reporting system and speeding up the review over effectiveness of the measures before 2020, [6] the growing backlog of reports reveals the role of HRC as a ‘bureaucratic’ organization with low efficiency.
First, there are limited monitoring and enforcement of HR through UN treaty body system. Treaty bodies comprise of ‘under-resourced experts and obtain insufficient information for full analysis of implementation; besides, overlapping competence compromised entire system’s coherence’.[7]
Second, neither mandatory nor optional interstate communication procedures are available to State Parties. [8] This directly causes State Parties unwillingly to conduct an official communication even in the breach of treaty obligation. [9]
Last, while the individual complaints against a State regarding the rights in the ICCPR can be lodged to the First Optional Protocol to the ICCPR, but the entire process is confusing due to ‘both lacking political will and the requisite technical capabilities’. [10]
In Jesse’s holistic examination, new HR council and UPR (Universal Periodic Review) has the potential to pair with WCHR to improve HR worldwide as follows: 1) UPR’s mandatory reporting and equal treatments in assessments were intended to reduce the high level of politicization. 2) UPR will be served as a follow-up mechanism like Council of Europe in relation to the European Convention on HR. In a word, the new WCHR may depoliticize a bureaucratic HRC and shift its focus to the legalization.
Top 2 Systematic Problem: Judicial Mechanism – International Courts, Regional Courts and Ad Hoc Tribunals
Due to the restriction of both ratione materiae and ratione personae, International Court of Justice (ICJ) faces fundamental barriers in assessing various cases as well as International Criminal Court. As both courts have Statutory limitations of jurisdiction, they are nullified to be recognized as full human rights courts. [11]
Similar problem lies ahead of regional courts as the disparity among jurisdiction and regional culture weakens the possibility. As for Ad Hoc Tribunals which are ‘specialists’ in the legal field, the weakest point is its ‘susceptibility to the political power’, which may force it to support ‘selective justice’. [12]
As none of these existing courts can enhance worldwide Human Rights system as judicial power, it’s reasonable to expect a WCHR to act as a complementary role within HR judicial system, particularly compared with ICC, the new WCHR might benefit many individuals by accepting more ‘civil’ type cases. It sounds very promising to fill the gap, but there is a problem – which treaty does this new court intend to interpret?
Against a WCHR – “A New Utopia’’
Top 1 Can one treaty unite a broken and divided world?
Jesse Kirkpatrick argues that a new WCHR overcoming the above deficiency will be one of the most effective courts, as ‘a world standing court with increased scope of jurisdiction and uniformity across regions and States’ will have capability to fix the current system.[13]
However, according to Manfred, current HR system, as the legacy of cold-war, was born in a world divided by different ideology, from the West to the socialist countries, the flaw is obvious.
What Jesse might overlook is the hidden fact, that behind this current treaty system, particularly two dominant treaties ICCPR and ICESCR, actually two different ideology systems are still fighting and already separated the West and the East based on their different ‘favorite’ – The West favors ICCPR which defends individual liberty and freedom, such a ‘natural right’ given by God; the East accepts ICESCR which promotes economic social and cultural such ‘artificial rights’ given by the government.
If we ought to have ONE court, will we have ONE treaty to guide the entire world?
Whether we need a Constitutional Law of Human Rights to unite this broken and divided world is out of the scope of discussion in this essay. But without a unified legislation of HR, it is basically impossible to realize the ‘uniformity’ under a WCHR, even it speaks true that an effective court may enforce a more ‘legalized HR system’ to hold duty bearers accountable, instead of keeping an ‘’over politicalized HR system’’.
Top 2 Political Feasibility
Although many prominent scholars embrace such idea as the fundamental legal principle hardly to be confronted, judge Antonio Cassese has criticized ‘less on principle’ yet more on ‘a realpolitik assessment of how far governments could be expected to go in limiting their own sovereignty’. [14] He went further to paint it as pure ‘naive to think that States will submit domestic HR violations on their own territory to binding international judicial scrutiny’. [15]
Philip illustrated several possible scenarios:
- ‘Deep reluctance from States’
- ‘Regional Human Rights systems incapable of exercising such power’
- ‘Unlikely coalition of States willingly to push a global initiative‘[16]
He also argues that three significant concerns would place such global judicial power in a disadvantage: scale, power, and vision. [17] With respect to the scale, the WCHR’s competency would be questioned based on how to deal with such varied and vast domestic legal issues in addition to the cost incurred; pertaining to the power, as WCHR presuming the procedure increases the amount of individual complaints, the eternal conflict between domestic power and international authority will be unavoidable. This is largely because of the fact-finding works or the requirement of exhaustion of domestic remedy, etc., and without the cooperation of internal power, WCHR can hardly push its agenda. [18]
Philip’s third concern is related to the vision, on how WCHR maps out its entire elite judicial system regarding hierarchy and universality.[19] Philip is right that such a vision, both horizontally and vertically, may impose Orwellian fear onto this world – who wants a dictator-style court with ‘all mighty’ power?
Top 3 Binding power
WCHR argues that its advantage relies on ‘smooth introduction Court without Treaty Amendments’, as there will be a NEW treaty for WCHR. Australian government used to contend that it doesn’t accept HRC’s view on Australia’s violation against ICCPR 9 because no ‘legislative history’ indicates the original intent within ICCPR including the emphasize on the compliance with ‘international law’, so the OLD treaty doesn’t have binding power over Australia’s conduct. It is easy to imagine the difficulty to create and ratify a NEW treaty. ICCPR was luckily signed before Cold War started.
In current global political landscape where the Cold War 2.0 is emerging just as the globalization almost went bankruptcy, in the meantime the reputation of UN is also under scrutiny; it would be very hard to assemble States to unite again under a NEW treaty as the concept of Sovereignty will be placed as priority.
My Position with WCHR
On the basis of the above arguments, both current UNHR system and future WCHR represent a shared concern over the implementing issue within HR system worldwide. This uncovers some much more fundamental frustrations probably out of the scope of legal discussion. I am personally against the proposal of WCHR, mainly due to its shortage of feasibility, and ‘in a nutshell, a culture of human rights needs to be nurtured at all levels’.[20] This also holds true in the case of Australia’s contentious immigration issue in both national and international perspective.
Australia in the Perspective of WCHR
Immigration detention has long been the focal point of debate. As a party to the core treaty ICCPR, Australia also has the non-refoulement obligations as to Human Rights. This is the dilemma of Australia’s migration detention.
Art 9 of ICCPR and Australia’s Immigration Detention
Arbitrary arrest or detention vs. Art 9 (1) & (2) –
Arbitrary arrest may refer to ’depending on individual discretion and not fixed by law’. [21] s 189(1) of Migration Act 1958 gives an officer absolute power to detain the person so long as s/he ‘knows’ or ‘reasonably suspects’ someone is an unlawful non-citizen. [22] ‘Knowing’ or ‘reasonably suspecting’ falls within the scope of individual discretion, as this is not the result of public trial, the arrest or detention is arbitrary.
Although Australian government would justify it as a ‘lawful’ conduct, UNHRC still finds that such ‘arbitrariness’ is not absolutely ‘equated with ‘against the law’ (particularly against the domestic law) but be interpreted more broadly to include elements such as inappropriateness and injustice’. [23] UNHRC also expresses that ‘remand in custody pursuant to lawful arrest must not only be lawful but reasonable and necessary in all the circumstances’. [24]
Another procedure in the violation of Art 9(2) of ICCPR is ‘’not to inform the reason for the detainee’s arrest’’. In line with s 194 of Migration Act 1958, detainee is only to be told of consequences of detention, yet not the ‘’reason’’. Reason, as a cause, should not be confused with ‘consequence’.
Administrative detention and Criminal Charge vs. Art 9 (3) –
Administrative detention is a special form which is ‘in general less regulated by law’.[25] ‘The objective is to guarantee that another measure, such as deportation or expulsion, can be implemented’. [26]
Usually Immigration detention adopts administrative detention, and the length only last till the deportation. However, historically the duration for mandatory detention is prolonged and punitive, thus it’s no different with punitive criminal detention. From the viewpoint of UNHRC, Australia has breached the Art 9 of the ICCPR. UNHRC stresses that the basic prohibition of discrimination stipulated in the para 2 of Art 1 under the Convention,[27] is also applied to non-citizens as the rights recognized in ICCPR, etc. [28]
HRC suggested that a ‘time limit’ should be introduced on the overall duration of detention, because ‘deprivation of liberty should never be indefinite’. [29] Also, Australia cannot use detention process as a general deterrent against unlawful entry. Without reasonable ground to justify the detention, the detention can still be regarded as arbitrary, ‘even if entry was illegal’. [30]
OHCHR believes that ‘infractions of immigration laws and regulations should not be considered as criminal offences’, also, ‘detention of migrants on the ground of their irregular status should under no circumstance be of a punitive nature.[31]
Unfortunately, in Australia, the obscure between administrative detention and criminal detention is caused by ‘the high degree of discretion and the broad power to detain accorded to immigration and other law enforcement official’.[32] One is because of the ‘absolute power’ of the officials given by s 189(1) of Migration Act 1958; another is due to anti-terrorism legislation.[33]
Judicial Review vs. Art 9 (4) –
Judicial review is a vital turning point for any victims. Considering that ‘the real tension lies in their interpretation and application’, [34] a World Court of Human Rights is supposed to be a further choice for such a contentious issue.
However, ‘the history of immigration law reform over the last decade has been dominated by attempts to restrict judicial review of decision making’. [35] Detainee in the mandatory detention cannot seek judicial review on the legitimacy of the detention; this has obviously breached Art 9(4) of ICCPR.[36] As a world court, the precondition to declare a complaint admissible is, according to Art 9(1) of WCHR’s Statute, the court may only deal with any individual complaint already submitted to the highest competent domestic court…[37]
Although according to Art 9(2) of WCHR’s Statute, the World Court also is entitled to exercise its discretion on the special case where there is no relevant domestic remedy or due process of law… [38] This is where the WCHR may step in but the resistance from Australian political system is possible.
Tough political stand of denying or excluding court’s jurisdiction on migration issues will put WCHR in an adverse position. Particularly the coalition government has intentionally imposed ‘restraints on judicial review by use of an ouster clause or privative clause’.[39] Often, minister’s personal discretionary power will finalize a detainee’s case.
s 474(1) of Migration Legislation Amendment (Judicial Review) Act 2001 provides that ‘a privative clause decision’ is final, conclusive, and unchallengeable…[40] Decisions that are not privative clause only cover detentions centers or detention of vessels, still leaving detainee issues ‘irrefutable’.
Art 14(3) of WCHR Draft Statute sets out that the State Party ‘shall grant access to all places of detention and other facilities while carrying out a fact-finding mission’,[41] while Australian government might improve the living condition of detention centers as this is not covered by ‘’privative clause’’, but for the detainees, the ‘luxurious prison’ is still the ‘prison’ where ‘the right to liberty’’ has been deprived.
In the case like F.J. v Australia, when the adverse security assessment denies the due process of law and the complainant doesn’t even have ‘statutory basis for challenging the substantive necessity of detention’, [42] can a WCHR help the author find a solution?
First, based on the Art 7 of WCHR Draft Statute, the Court may ‘receive and examine complaints from any individual claiming to be the victim of a violation to any human right provided for in any human rights treaty…’[43]
Second, according to Art 9 of WCHR Draft Statute, while the submission to the highest domestic court is the pre-condition to lodge a complaint with the World Court, the exception may apply if ‘the relevant domestic remedy does not afford due process of law’ in line with the Art 9(2) of WCHR Draft Statute. [44] If the complaint is admissible, WCHR shall carry out investigation including to the places of detention, etc.
Unfortunately, under Art 50 (1) of WCHR Draft Statute:
Each State may, at the time of ratification of this Statute or accession thereto, declare that it does not recognize the jurisdiction of the Court in relation to certain human rights treaties or certain provisions thereof.
With this entitled right for reservation, Australia can still escape its responsibility when ratifying the WCHR Draft Statute. Furthermore, Australia may argue that the arrest or detention is ‘’lawful’’. In response to the view of the HRC to the case F. J. v Australia, Australia robustly pushes back against HRC’s view by using extrinsic materials:
‘…In Australia’s view, there can be no doubt that the term ‘lawfulness’ refers to lawfulness according to the Australian domestic legal system.’[45]
‘There is nothing apparent in the terms of the Covenant that suggests that ‘lawfulness’ was intended to mean ‘lawfulness at international law’ or ‘not arbitrary’. Where the terms ‘law’, ‘lawful’ and ‘lawfully’ are used in other provisions of the Covenant they clearly refer to domestic law: …In Australia’s view, if the drafters of article 9(4) intended the concept of ‘lawfulness’ to be interpreted broadly to include lawfulness under international law, this would have been reflected in the debate preceding the settlement on the form of words contained in this article. Instead, the negotiating history indicates that ‘the principle enunciated in paragraph 4…did not give rise to much discussion’. Accordingly, Australia does not accept the Committee’s view that Australia has breached article 9, paragraph 4. ‘ [46]
Enforced judicial remedy vs. Art 9 (5) –
An underlying logic of WCHR, initially promoted by H.V. Evatt, stressed that ‘where there is a right there ought to be a judicial remedy’.[47] In contrast to ICC, we might have an ‘’International Tort Court’’ to deal with any Human Rights complaints which cannot be accepted by ICC due to its level of less severity.
If domestic remedy is not available, WCHR may exercise its discretion to investigate what internal remedies related to reparation are available. In the meantime, according to Art 39 of WCHR Draft Statute, the Trust Fund may be used for supporting States Parties to improve their domestic judicial remedies…
However, even though Art 39 of WCHR’s Draft Statute stipulates that a Trust Fund shall be used to assist victims and States Parties to improve domestic judicial remedies, it is in accordance with Art 9 of WCHR’s Draft Statute.[48]
Art 9 of WCHR’s Statute emphasizes the importance of exhaustion of domestic remedies but offering the optional choice to State Party to identify during the ratification the correspondent judicial remedies which must be exhausted within domestic system, [49] weakens the binding power of such provision. This is a dilemma for a World Court, particularly for Human Rights which are not ‘absolute’. But if WCHR raises the bar to formulate mandatory clauses it will scare away State Parties too.
If everything is acceptable, this direction may help safeguard the rights of victims under Art 9(5) of ICCPR.
Implications
In an age where sovereignty is a concept emphasized by the government, a tough border security law would naturally seem to be very necessary, particularly after examining Australia’s status quo. If WCHR wants to push its agenda, it must face tough resistance.
Strong political power, weak judiciary power – Australia is a country where ‘’the protection of human rights has been largely left to the political realm’’. [50] As Australia’s Human Rights system is under the full control of the government rather than answering to the judicial power. Hence, to legalize or to politicize modern HR system is a real question.
In fact, the reasoning behind Australia’s border policy can be explained as such: if you want to give ‘everyone’ equal ICCPR rights, then ‘everyone’s cost to protect human rights will have to rise because of the risk factor involved. Take America as an example. America has open border policy; illegal immigrants are acceptable in the States, so it’s an indispensable necessity for every American to defend its Second Amendment as ‘everyone’s freedom (human rights) is threatened by crimes brought by illegal immigrants who enter America because of ‘equal human rights’. As an individual, American takes the same amount of freedom and risk.
If Australia chose to follow America’s immigration model, then every Australian citizen would need to take back gun rights and defend it. Obviously, this was not Australia’s choice. We can argue Australia’s government is ‘bigger’ than America’s, it’s a society not that ‘individualistic’, but this is the way Australia chose to be.
Regarding mandatory detention, just like MP Andrew Wilkie argues that ’whenever the federal court rules against the government, the government just keeps changing the law until it finds a workaround for the federal court’.[51] This is for sure a fighting, but as Coleman stated, ‘the role of the Court is to resolve legal questions so that a political solution can be found’. [52]
Conclusion
The ongoing debate about the advantages and disadvantages of WCHR has helped us understood the Human Rights system in an anatomical way, yet the more practical questions such as implementation remains unsettled. Due to the different political choice, Australia’s approach to immigration detention is contentious from the viewpoint of international human rights system in relation to the Article 9 of the ICCPR. However, unless human rights as a culture and value deeply cultivated in our humanity, even a more advanced WCHR cannot straighten out the complex between national interest and international interference.
(END)
[1] Manfred Nowak, ‘The Need for a World Court of Human rights’ (2007) 7(1) Human rights Law Review 251, 254.
[2] Jesse Kirkpatrick, ‘A Modest Proposal: A Global Court of Human rights’ (2014) Journal of Human Rights 230, 231.
[3] Separation of powers: Parliament, Executive and Judiciary , https://peo.gov.au/understand-our-parliament/how-parliament-works/system-of-government/separation-of-powers/ .
[4] Monitoring the core international human rights treaties, https://www.ohchr.org/EN/HRBodies/Pages/Overview.aspx .
[5] Monitoring the core international human rights treaties, https://www.ohchr.org/EN/HRBodies/Pages/Overview.aspx
[6] Strengthening and Enhancing the Effective Functioning of the Human Rights Treaty Body System, GA Res 68/268, UN Doc A/RES/68/268 (21 April 2014, adopted 9 April 2014).
[7] Jesse Kirkpatrick, ‘A Modest Proposal: A Global Court of Human rights’ (2014) Journal of Human Rights 230, 234.
[8] Manfred Nowak, ‘The Need for a World Court of Human rights’ (2007) 7(1) Human rights Law Review 251, 253.
[9] Jesse Kirkpatrick, ‘A Modest Proposal: A Global Court of Human rights’ (2014) Journal of Human Rights 230, 235.
[10] Ibid.
[11] Jesse Kirkpatrick, ‘A Modest Proposal: A Global Court of Human rights’ (2014) Journal of Human Rights 230, 236.
[12] Ibid, p238.
[13] Ibid.
[14] Philip Alston, ‘Against a World Court for Human Rights’, p201.
[15] Ibid, p200.
[16] Ibid, p201.
[17] Ibid.
[18] Ibid.
[19] Ibid, p205.
[20] Ibid, p210.
[21] Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/arbitrary.
[22] Migration Act 1958 (Cth) s 189.
[23] A. v. Australia, CCPR/C/59/D/560/1993, UN Human Rights Committee (HRC), 3 April 1997, para 9.2. Available at: https://www.refworld.org/cases,HRC,3ae6b71a0.html [accessed 3 June 2021].
[24] Hugo van Alphen v. The Netherlands, Communication No. 305/1988, U.N. Doc. CCPR/C/39/D/305/1988 (1990), para 5.8.
[25] Administrative Detention of Migrants, p2, also see the report E/CN.4/2003/85 of the Special Rapporteur on Migrants.
[26] See for example reports on the Special Rapporteur on the human rights of migrants on visits to Spain
(E/CN.4/2004/76/Add.2) and Italy (E/CN.4/2005/85/Add.3).
[27] International Convention on the Elimination of All Forms of Racial Discrimination, para 2, Art 1.
[28] General Recommendation No. 30, 01/10/2004, para 2. Article 1, paragraph 2 of the Convention on the
Elimination of Racial Discrimination provides for the possibility of differentiating between citizens and
non-citizens.
[29] Administrative Detention of Migrants, p4. This paper heavily relies on report E/CN.4/2003/85 of the Special Rapporteur on Migrants
[30] CCPR/C/D/59/560/1993 para. 9.4 and C. v. Australia (900/1999), ICCPR/C/76/D/900/1999 (28 October
2002) at para. 8.2.
[31] Administrative Detention of Migrants, p13. This paper heavily relies on report E/CN.4/2003/85 of the Special Rapporteur on Migrants.
[32] Ibid, p8.
[33] Ibid.
[34] Gabrielle Appleby et al, Australian Public Law (Oxford University Press, 3rd ed, 2019) 436.
[35] J. Basten, ‘Revival of procedural fairness for asylum seekers’, Alternative Law Journal, vol 28, no. 3, June 2003, p.114. See also J. McMillan, ‘Controlling immigration litigation a legislative challenge’, People and Place vol 10 no 2, 2002, pp 16-28, at http://parlinfoweb.parl.net/parlinfo/Repository1/Library/Jrnart/QO7761.pdf
(link not available outside Parliament).
[36] ICCPR art 9(4).
[37] WCHR Consolidated Draft Statute, art 9(1).
[38] Ibid art 9(2).
[39] Bills Digest No. 118 2003-04, Migration Amendment (Judicial Review) Bill 2004, At https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd0304/04bd118#Main [accessed 3 June 2021].
[40] Migration Legislation Amendment (Judicial Review) Act 2001, s474.
[41] WCHR Consolidated Draft Statute, art 14.
[42] F.J .v Australia, p5.
[43] WCHR Consolidated Draft Statute, art 7.
[44] WCHR Consolidated Draft Statute, art 9.
[45] F.J. v Australia, para. 8, p2.
[46] Ibid, para. 9, p2.
[47] Jesse Kirkpatrick, ‘A Modest Proposal: A Global Court of Human rights’ (2014) Journal of Human Rights 230, 232.
[48] WCHR Consolidated Draft Statute, art 39.
[49] WCHR Consolidated Draft Statute, art 9(1).
[50] Gabrielle Appleby et al, Australian Public Law (Oxford University Press, 3rd ed, 2019) 436.
[51] ‘’New law allows Australian government to indefinitely detain refugees’’, https://www.theguardian.com/australia-news/2021/may/13/new-law-allows-australian-government-to-indefinitely-detain-refugees-with-criminal-convictions
[52] Andrew Coleman, ‘The International Court of Justice and Highly Political Matters’ (2003) 4 Melbourne Journal of International Law 29, 74.