Academic journal article American University International Law Review

Australia's Guantanamo Bay: How Australian Migration Laws Violate the United Nations Convention against Torture

Academic journal article American University International Law Review

Australia's Guantanamo Bay: How Australian Migration Laws Violate the United Nations Convention against Torture

Article excerpt

I. introduction

In 2013, a Sri Lankan man was brutally beaten and tortured by the police, after being forcibly returned to Sri Lanka by the Australian government.1 Even though Australian officials were aware of the risks of torture in Sri Lanka, the man was still deported and, as a result, subjected to cruel, inhuman and degrading treatment.2

Australian refugee and asylum law has been consistently criticized by human rights treaty bodies and other United Nations experts.3 Both the United Nations Committee Against Torture in 2008, and the Human Rights Committee in 2009 expressed grave concern for Australia's Migration Act 1958 (the "Migration Act").4 Their concerns centered on Australia's method of refugee status determination, use of regional processing centers for those arriving by sea, and failure to enshrine into legislation a refugee's right to not be returned to his or her country of persecution.5

Australia claimed to the U.N. Committee against Torture (the "Committee") that: (1) the Migration Act is in compliance with the Convention Against Torture; and (2) no torture or other ill-treatment occurs in Australia's regional processing centers, located in Papua New Guinea and Nauru.6

This comment argues that Australian law does not comply with the U.N. Convention Against Torture7 because: (1) the language of the Migration Act greatly diverges from the language of the Convention Against Torture; and (2) in practice, Australian law permits noncompliance with the Convention Against Torture, specifically torture, ill-treatment, and indefinite detention. Part II of this comment provides an overview of articles 3 and 16 of the Convention Against Torture and explains what it means for a state to be in compliance with these Articles.8

Part III compares the language of article 3 of the Convention Against Torture with language of the Migration Act. Part III also describes the conditions in Australia's regional processing centers.9 Part IV recommends that Australia should cease use of its regional processing centers.10 Furthermore, this comment recommends that Australia heed the recommendations of the Committee Against Torture and, if not, the Committee should be allowed to implement consequences when states do not comply with the Convention.11 Finally, Part V concludes that Australia remains in violation of articles 3 and 16.12

II. BACKGROUND

A. The Convention Against Torture

The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("CAT") was adopted and open for signature, ratification, and accession by a U.N. General Assembly resolution on December 10, 1984.13 Under the CAT, each state commits to prohibit and prevent torture and other cruel, inhuman or degrading treatment or punishment.14 The CAT has eighty-one signatories and 156 parties to it.15

Article 3 of the CAT provides that no state shall "expel, return ('refouler') or extradite" a person to another state where there are "substantial grounds" to believe that he or she would be subjected to torture or other ill-treatment.16 Pursuant to this article, the state's competent authorities are obliged to take into account "all relevant considerations" when assessing this risk of torture.17 Significantly, because the CAT also requires signatory states to take all necessary legislative, judicial, and administrative measures to comply,18 a state's legislation-including its policies towards asylum seekers and refugees-must likewise comply with the CAT.19

Article 1 of the CAT defines torture as any act where:

[S]evere pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. …

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