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Responsibility of Australia for the Violations of the Right to Education As a Child Refugee in Australia’S Regional Processing Centre on Nauru

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Responsibility of Australia for the Violations of the Right to Education As a Child Refugee in Australia’S Regional Processing Centre on Nauru Responsibility of Australia for the Violations of the Right to Education as a Child Refugee in Australia’s Regional Processing Centre on Nauru 0 Sanne Haringa A Thesis Submitted in Partial Fulfilment of the Requirements for the Degree of Master of International and European Law: Public International Law (LLM track) University of Amsterdam – Amsterdam By Sanne Haringa Student number 10751998 Supervisor Mw. Dr. Mr. P.A. Hildering Word Count Around 12.100 words Date July 28, 2017 1 Abstract Refugees arriving Australia irregularly are indefinitely detained in Australia’s Regional Processing Centre Nauru. The circumstances of their living arrangements has been heavily criticized for breaching various human rights. Children are a particularly vulnerable group and thus deserve special protection. The UNCRC, ratified by both Nauru and Australia, poses obligations upon States to ensure this protection. Nevertheless, discrimination is present against asylum seeking and refugee children in all areas. This thesis aims to establish if Australia can be held responsible for the breaches of the right to education for refugee children, through showing the extend to which they are being discriminated against. The obligations of the State are divided into the four components of education; available, accessible, adaptable and acceptable education. In all these four elements, discrimination against refugee children is evident. This thesis further describes the high level of control by Australia over the RPC. Even though the RPC is on the territory of another state, it can be found to be within Australia’s jurisdiction. This extraterritorial jurisdiction is based on the financial support by Australia; the level of decision making throughout the process by Australia; the regular reporting mechanisms between the two States; the contracting of service providers whom run the RPC by Australia; the statements of the parties involved and the (silent) consent of Nauru. The various breaches can be attributed based on the ILC articles on State Responsibility. Invoking the responsibility of Australia can only be done by a State to whom the international obligation is owed. This injured State is in most refugee cases the country of origin; it thus is not likely the invocation by that State will happen. But certain obligations provide a legal interest to all States; obligations erga omnes. The Barcelona Traction case has categorised discrimination as an obligation erga omnes and thus all States have the possibility to invoke the responsibility of Australia and end these violations. 2 Table of Contents Introduction 4 The Right to Education in the Regional Processing Centre 7 1.1 The United Nations Convention on the Rights of the Child 8 1.2 Discrimination in the Right to Education 9 1.3 Conclusion 15 Responsibility of Australia 16 2.1 Extraterritorial Jurisdiction of Australia 19 2.2 Responsibility of the Violation of the Right to Education 24 2.3 Conclusion 26 Invocation of Responsibility 27 3.1 Invocation by a State 27 3.2 Actions Other Than by a State 28 3.3 Conclusion 30 Conclusion 31 Bibliography 33 3 Introduction Australia has been using the island of Nauru as a remote site for offshore processing of asylum seekers since 2001. As part of the ‘Pacific Solution’1 and ‘Operation Sovereign Borders’2 has the country been using a policy of deterrence to shy off new refugees. None of the refugees that arrive in Australia by boat are being settled in Australia.3 Instead they are sent to Nauru or Papua New Guinea, located in the South Pacific Ocean. The indefinite settling of refugees in Nauru has been found to be arbitrary and illegal4. The leaked Nauru Files5 have shown over 2.000 incidents, of which more than half are incidents involving children.6 466 People are currently documented to be detained in Nauru, of which 50 are children7. As this last group is particularly vulnerable to violations of their fundamental human rights, they deserve specific protection. This is ensured through the United Nations Convention on the Rights of the Child, which has been ratified by Australia and Nauru. Nevertheless, allegations of physical and sexual abuse, self-harm and neglect of asylum seekers is being investigated by the Legal and Constitutional Affairs References Committee of Australia at the moment of writing this thesis. Furthermore, the Committee of CRC already issued a report on the situation in Nauru where it found “persistent discrimination against asylum seeking and refugee children in all areas”.8 The Australian and Nauruan Government are keeping the situation well hidden from international scrutiny. It is extremely difficult to obtain access to the island, as visa’s are 1 Memorandum of Understanding Between the Republic of Nauru and the Commonwealth Of Australia, Relating to the Transfer to and Assessment of Persons in Nauru, and Related Issues Signed on 10th September 2001which opened the centre 2 Operation Sovereign Borders, is a border protection operation led by the Australian Defence Force aimed at stopping maritime arrivals of asylum seekers to Australia 3 News Corp Australia Network, Turnbull to propose law that bans boat asylum seekers from Australia permanently, published: 31-10-2016, available at: http://www.news.com.au/national/turnbull-to-propose-law- that-bans-boat-asylum-seekers-from-australia-permanently/news-story/793919195011e35c15471918b007c8a1, accessed on 01-06-2017 4 The UN's Human Rights Committee; CCPR/C/116/D/2233/2013 5 The Nauru Files, Australian Guardian, https://www.theguardian.com/news/series/nauru-files, accessed on 01- 06-2017 6 Paul Farrell, Nick Evershed and Helen Davidson, The Nauru files: cache of 2,000 leaked reports reveal scale of abuse of children in Australian offshore detention, published Wednesday 10 August 2016, https://www.theguardian.com/australia-news/2016/aug/10/the-nauru-files-2000-leaked-reports-reveal-scale-of- abuse-of-children-in-australian-offshore-detention, accessed on 01-06-2017 7 Refugee Council of Australia, Refugee Needs and Trends: A Statistical Snapshot, 18-07-2016, available at: http://www.refugeecouncil.org.au/ourwork/refugee-needs-trends-statistical-snapshot-2/, accessed on 01-06-2017 Several hundred more live “in the community” of Nauru. They fall outside the scope of the government’s statistics but remain stuck on the tiny island. 8 CRC Report; CRC/C/NRU/CO/1 4 expensive and hardly ever granted.9 Moreover, public speaking about the centre by any staff member working directly or indirectly for the Australian Department of Immigration and Border Protection is a criminal offence, punishable by imprisonment for up to two years under the recently passed Australian Border Force Act. 10 Therefore, the description of the situation in Nauru in this thesis mainly relies on reports of the limited visits of Amnesty International and Human Rights Watch, submissions to investigating committees - including submissions by the governments of Australia and Nauru - interviews with refugees on the island and interviews with previous employees and the Nauru Files. The aim of this thesis is to determine if Australia can be held responsible for the above mentioned violations, specifically against the right to non-discrimination for refugee children in their right to education. It will attempt to appoint what can be done in order to make this party take responsibility and ultimately, to discard these policies. The key research question of this thesis is: Can Australia be held responsible for the violations of the right to education for refugee children in the Regional Processing Centre through discrimination? This thesis will start with a description of the obligations of the state in relation to discrimination in the right to education. By using the right to education as an illustration, the extent to which discrimination takes place will be evaluated. Through a description of the situation at hand, an evaluation of the breaches will be given. This first chapter will answer the question: has the right to education been breached through discrimination in Australia's regional processing centre Nauru? Having established the breach, it is the necessary corollary of law to determine who can be held responsible under international law. Evaluating the responsibility will be done on the basis of two requirements: is the conduct attributable to the state; and whether or not the conduct is (in)compatible with the international legal obligations in force for that State at that time. This thesis will focus on the responsibility of Australia, but as the conduct is taking place on the territory of Nauru, its responsibility will be evaluated where necessary. The 9 Media Visas cost $8000 USD, irrespective of whether or not granted. Source: website Government of Nauru 10 C.Fleay and S. Hoffman, Despair as a Governing Strategy: Australia and the Offshore Processing of Asylum- Seekers on Nauru, Refugee Survey Quartely, Vol 33, No.2, (2014) p9 5 second chapter will answer the question: is Australia responsible for the violation of the right to education? The final chapter will evaluate the possibilities of ending the violations. It will describe the invocation of the responsibility of Australia by another State and it will evaluate the possibilities of actors other than a State. The third chapter will answer the question: how can the responsibility of Australia be invoked? My final chapter will analyse the answers to the sub questions and will draw an overall conclusion on the key research question of this thesis. This research has been based on international human rights law - more specifically, international children’s rights – and the ILC articles on State Responsibility. It has been mainly external and descriptive, while describing the particular situation of a State which is not my home. However, in some arguments it can lean towards a normative point of view. The conclusion is prescriptive; advising the international community and the Australians to take action.
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