International Advocate Volume 2 Issue 1 by ANU International Law Society

INTERNATIONALADVOCATE February 2013 Volume 2 Issue 1

Feature Article

In Bed Listening to Missiles By Ming Yu

The International Advocate is published by the ANU International Law Society with the proud support of the International Law Studentâ&#x20AC;&#x2122;s Association

Publications Director Nishadee Perera Publications Team Sherwood Du, Cheng Ho, Rui Lam, Mallory Wankel, Nina Yap

The opinions expressed in the articles are those of the contributors and do not necessarily reflect those of the ANU International Law Society, its partners or the Australian National University.

ANU International Law Society Student Facilities Building 17a Australian National University Canberra ACT 0200 Australia

President Andrew Swanson Vice President Claire Wilson Finance Director Chloe Sevil Careers Director Rebecca Williams Competitions Director Jedda Elliot Education Director Parissa Tosif Events Director Kerin Callard Publications Director Nishadee Perera

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Patron’s Address

In Bed Listening to Missiles

Hilary Charlesworth

Ming Yu

The Right to Truth and the Convention on Enforced Disappearance

Australia’s International Obligations to Unaccompanied Refugee Children

The (Working) Life on an International Lawyer

Course Guide

Carolyn Skorupa

Clarie Bruen

Rowan McRae and Simona Timmins

LAWS2214: International Law of the Sea

President’s Welcome Welcome to Issue 1 of The ANU International Advocate, back in 2013 for a whole new year of firsts. This year the team is being led by Nishadee Perera, who has already grasped the editorial reigns with as much enthusiasm as any publication could hope for. Inside this issue you’ll find articles on the negotiations for a new arms treaty, an insight into the daily working life of an international lawyer, a note from our esteemed patron Hilary Charlesworth and an essay by a recent ANU graduate Claire Bruen. Also, recent graduate and ILS-luminary Carolyn Skorupa reflects on the Convention on Enforced Disappearance and an emerging right to truth in international law. And our course guides series continues, helping you navigate through your degree. Happy reading, Andrew Swanson

Patron’s Address Hilary Charlesworth

Welcome to the International Advocate’s O-Week edition and to the world of the ANU’s International Law Society. The ANU has rich formal and informal

offerings in international law and it benefits from being situated in the nation’s capital where much international law work takes place.

When I was a law student in the 1970s, international law was often dismissed as an arcane area of study, indeed irrelevant to the Australian

legal practitioner. This view is much less prevalent today as there is a greater understanding of the way our legal system is entwined with the international legal system.

There are still passionate debates about the utility of international law. Some scholars see it as offering a purely idealistic vocabulary, while others point

to the significance of international law in regulating basic services such as aviation and postal traffic. One often overlooked feature of international law is its capacity to empower marginalised groups. An example of this is in

the struggle for independence in Timor-Leste where the international legal language of self-determination won out politically over the language of

territorial integrity. This suggests that, as my colleague John Braithwaite

has pointed out, it is important to understand international law as one thread in a tapestry of effective regulation. It can break if too much weight is placed

on it alone and its strength depends on being woven with other types of controls.1

I wish the International Law Society a fruitful and productive year. Hilary Charlesworth Hilary Charlesworth is Professor and Director of the Centre for International Governance and Justice in the Regulatory Institutions Network at the Australian National University and is an Australian Research Council Laureate Fellow. In 2011, she was appointed to the International Court of Justice as a Judge ad hoc in the Whaling Case taken by Australia against Japan.

1 John Braithwaite, ‘Conclusion: Hope and Humility for Weavers with International Law’ in Brett Bowden, Hilary Charlesworth & Jeremy Farrall eds, The Role of International Law in Rebuilding Societies after Conflict Cambridge: Cambridge University Press 2009, 270-288, 276. 4 | INTERNATIONAL ADVOCATE

IN BED LISTENING TO MISSILES A History of the Arms Trade Treaty By Ming Yu

I remember listening to missile strikes

campaign, the civil war finally came to

thunder, as the glass window rattled.

Sri Lankan Government are alleged to

as I lay in bed. It almost sounded like I had seen signs of armed violence everywhere.

Homes gouged out by

bullets but still lived in by hopeful families;

tall

palm

trees

standing

resoutely, though headless from missile fire; dark scars on my colleagueâ&#x20AC;&#x2122;s body from being tortured by an armed group.

an end. Both the Tamil Tigers and the have committed war crimes and gross

human rights abuses throughout the duration of the civil war. An independent international

investigation

into

the

extent of violations of international human rights law and international humanitarian law is still pending.

From late 2005 to mid 2008, I was

Despite the credible and persistent

for the United Nations and an NGO.

by the UN Secretary Generalâ&#x20AC;&#x2122;s Panel of

working in Sri Lanka as a volunteer

A bloody civil war had been raging in the country since the 1980s, with the separatist

militant

organisation

the

Liberation Tigers of Tamil Eelam (or

the Tamil Tigers) fighting against the government to create an independent Tamil state. In

2009,

after

26-year

military

allegations of war crimes recognised

Experts on Accountability in Sri Lanka, the USA, Russia and China supplied a range of conventional weapons to Sri Lanka between 2000 and 2009.

How did the USA, Russia and China

get away with this? How does any government get away with supplying

weapons to a country where there

Demobilised child soldier asleep at a demobilisation centre, outside Bunia, Democratic Republic of Congo, July 2003. (Photo credit: Amnesty International)

INTERNATIONAL ADVOCATE | 5

are systematic and pervasive human

The question must be asked: how can

simple: there is currently no single set of

torturers and rapists, yet fulfil the UN

rights abuses occurring? The answer is

global regulations set up to adequately guide when and to where weapons can be sold or transferred.

The Irresponsible Trade of Arms While

numerous

and

complicated

regulations exist to control the global

trade of different products, such as bananas,

bottled

water

and

MP3

players, there is far less control over the trade of weapons or bullets.

This means that governments and

private arms manufacturers around the world can make money selling weapons

to countries, even when there is a

substantial risk that those weapons can be used to kill or maim civilians.

In fact, the Permanent five members of the United Nations Security Council (‘the P5’- USA, Russia, China, UK and

France) supply a combined total of

two-thirds of the world’s arms exports.1 Many of these weapons have been

sent to countries such as Syria, Burma, Egypt, Bahrain, South Sudan and

the Democratic Republic of Congo; countries where horrific human rights atrocities have occurred and continue to occur.2

1 Richard F. Grimmett, ‘Conventional Arms Transfers to Developing Nations, 2003-2010’, (CRS Report for Congress R42017, Congressional Research Service, 22 September 2011) 77. 2 According to a wide range of Amnesty International research reports. 6 | INTERNATIONAL ADVOCATE

the P5 send weapons to dictators, Security Council’s primary responsibility

to maintain international peace and

security, as well as maintain the key purpose of the United Nations to promote respect for human rights?3

This absence of international common standards

adequately

regulate

conventional arms trading and transfers has meant that governments all around the world continue to permit the export

of weapons such as tanks, missiles, ammunition,

small

arms

and

light

weapons to countries where they are being used to kill, systematically rape, oppress, torture and maim their own people.

Weaknesses and loopholes in existing

national, regional, and multilateral arms control

mechanisms

have

enabled

states and other parties to continue trading arms irresponsibly and with impunity. And of

and this

every

people

singly

suffer

indirect

poorly

day,

from

the

millions

consequences

regulated

arms

direct

trade.

One person is killed every minute during

armed violence – whether in conflict or non-conflict settings. That’s over half a million people every year – more than

Darwin, Hobart and Canberra combined. 3 United Nations Security Council, What is the Security Council?, <http://www.un.org/en/sc/about/>.

12 billion bullets are produced each year – almost enough to shoot everyone on the planet… twice. Beyond

killing,

millions

people

have to live under the constant threat of weapons which are also used to

perpetrate thousands of human rights violations each year. The UN Refugee Agency

estimates

that

million

homes.

Since the start of the conflict

people have been forced to flee their 4

in 1998, the UN has also stated that

approximately 200,000 women and girls have been sexually violated and raped in the Democratic Republic of Congo

alone.5 And right now, there are tens

of thousands of child soldiers in armed conflict across 19 countries.6

The

irresponsible transfers of conventional

arms across the world have contributed

to the destruction of millions of lives and livelihoods.

The shockingly inadequate regulation of this multi-billion dollar a year industry is finally being addressed. Today, we are

weeks away from securing a new global deal – an Arms Trade Treaty (ATT) to

help stop weapons reaching those who abuse human rights.

4 United Nations, Refugees – Overview on Enforced Displacement, Resources for Speakers on Global Issues, <http://www.un.org/en/globalissues/briefingpapers/refugees/overviewofforceddisplacement.html>. 5 UN Department of Public Information, Violence Against Women (November 2011), <http://www.un.org/en/ women/endviolence/pdf/pressmaterials/unite_the_situation_en.pdf> 6 Coalition to stop the use of Child Soldiers, Facts and Figures on Child Soldiers (2009), Child Soldiers Global Report 2008, <http://www.childsoldiersglobalreport.org/ content/facts-and-figures-child-soldiers>.

Why an Arms Trade Treaty? Why does Amnesty International believe that regulating the global weapons

trade will strengthen protection of human rights? In a 10 year structured sample, we documented that 60% of

human rights violations involved the use of small arms and light weapons.

We also know that in 2008, the top six

countries of origin of refugees were also

locations of armed conflict. As part of our research, we have and continue to speak to thousands of people who have suffered at the hands of people

armed with weapons – despite the fact

that those responsible for exporting

them knew of the likely risk that these weapons would be used to commit atrocities.

One such person is 31-year old dentist Ahmed Harara in Egypt. Ahmed lost

the sight in one of his eyes during the

“Friday of Anger” in Cairo, Egypt in January 2011, after an injury caused by

shotgun pellets fired by Egypt’s Central Security Forces.

“I was on Qasr El Nile bridge, we had our hands up chanting ‘peaceful peaceful’.

We were confronted by Central Security, there were two armoured vehicles and

on top of them there were two soldiers holding shotguns. There are 64 pellet

bullets in my head, six in my neck and four in my chest. The retina in my right

INTERNATIONAL ADVOCATE | 7

eye was burned, there was bleeding in

code of conduct. In 1995 with Amnesty

I was in a coma for three days.” 7

drafted an instrument based on the

my lungs and I was taken to the hospital.

In a $60 billion a year industry, now is

the time to put people before profits. International

momentum

continues

International and other NGOs, they text for the draft EU Code – which

was eventually made legally binding in December 2008. 10

to build in the twenty years Amnesty

Amnesty International and those NGOs

have been campaigning for the highest

arms transfers be responsible and

International and partner organisations possible standards in global weapons regulation.

shared a vision that all international

address the underlying need to prevent

grave human rights violations. They formed a “Code Working Group” to

The History of Arms Trade Treaty

collaborate in the promotion of the EU Code. By 2000, the draft International

The first attempt to introduce global

Code

was

transformed

with

the

League of Nations in 1920.8 However,

University and Amnesty International

instrument, drawing on existing relevant

Framework Convention on International

standards to prevent irresponsible arms

to all member states, parliamentarians

between

order to reach out to a wider audience,

weapon regulations were made by the

assistance of lawyers from Cambridge

the specific idea for a legally binding

into a more refined proposal: “the

principles of international law and

Arms Transfers”. This was circulated

transfers emerged from discussions

and other relevant opinion formers.11 In

and

from 2001 the Convention proposal

three

Amnesty

organisations.

other

International

non-government

In 1993, with help from international

began to be promoted by the NGOs as “the Arms Trade Treaty”.12

lawyers, these NGOs began work to

In December 2006, the United Nations

the European Union” (EU) intended

overwhelming majority in favour of

draw up a draft “Code of Conduct for

(UN) General Assembly voted by an

as a legally binding instrument. The

a process “towards an Arms Trade

Arias Foundation (Costa Rica) was

Treaty”, passing UN Resolution 61/89.13

7 Amnesty International, ‘Agents of Regression – Egypt’s Police and the Case for Reform’ (Report, Amnesty International, 2012) 8-9. 8 Sarah Parker, ‘Implications of States’ Views on an Arms Trade Treaty’ (Report, United Nations Institute for Disarmament Research, January 2008), 2. 9 Parker, above n 8, 4.

�� Ibid 4. �� Ibid 5. �� Ibid. ��Towards an arms trade treaty: establishing common international standards for the import, export and transfer of conventional arms, GA Res 61/89, UNGAOR, 1st Comm, 61st sess, 67th plen mtg, Agenda Item 90, UN Doc A/Res/61/89 (18 December 2006).

also working toward an international

8 | INTERNATIONAL ADVOCATE

Out of the 153 Member States, only

Among

United States.

voting. China joined France, the United

one voted against the Resolution – the

In October 2009 during the UN First

Committee, the new USA government

the “P5”

arms-exporting

countries, only Russia abstained from Kingdom and the USA in supporting the resolution.

under President Obama reversed its

Amnesty International has continued

an ATT. With 153 states voting ‘yes’, 19

and influential countries to secure the

stance and announced its support for

abstaining, and only Zimbabwe voting

‘no’, the resolution established that

2010 and 2011 would see Preparatory Committees (PrepComms) to discuss treaty

elements

and

text,

and

negotiating conference in 2012. This

was a huge step from three years of discussions, and a momentous leap in UN terms. 14 The

historic

Arms

Trade

Treaty

Conference in July 2012 produced the current draft treaty text with rules to protect human rights and covering

most arms. This is a huge achievement.

Although a handful of countries held up the negotiations and the text’s adoption

in July, governments supportive of the

treaty are using the delay to resolve technical issues.

to systematically campaign strategic

strongest human rights protection. We continue to provide alternative legal

options for treaty text and mechanisms which have been well received by supportive states.

Where to Now? We are at the final leg of a 20-year global campaign by Amnesty International and

its partners to achieve an Arms Trade

Treaty to help protect people on the ground. In March 2013, The United Nation’s Final Conference on the Arms Trade Treaty will be held in New York.

If the March Conference fails to finally adopt the treaty text, it will almost

certainly be tabled by a large majority for adoption by a vote in the 2013 UN General Assembly sessions.

In November 2012, in the biggest show

Under the current draft, states must

at the UN General Assembly’s First

overriding risk that they would be

York voted in favour of finalising the ATT

war crimes. States will also have to

of support so far, 157 governments

refuse arms transfers if there is an

Committee on Disarmament in New

used for human rights violations or

next March.

work much closer together to interpret

�� Parker, above n 8, 7.

common rules, and report annually. If they do so in good faith, much of today’s

INTERNATIONAL ADVOCATE | 9

A sculpture of a 45-caliber revolver with its barrel knotted, titled Non-Violence but frequently referred to as the “knotted gun”, outside the UN in New York, USA. (Photo credit: Mira66)

irresponsible arms trading will become illegal and easier to spot.

Once the treaty is adopted, it is likely

and air drones and laser weapons. And

the treaty does not cover domestic gun sales.

65 ratifications are needed to bring it

But when it comes into force, the new

in the European Union alone, this is

global process that can be strengthened.

into force. With 27 potential ratifications achievable. The new treaty could be

treaty will be the starting shot for a new

implemented as early as 2014. Then it’s

up to states to put their commitments into action. The treaty won’t be a panacea for all problems associated

with armed violence, but a critical and

historical milestone on the long journey of human rights protection

Unscrupulous governments will try to bend and ignore the new rules. We need to keep working on critical issues,

including new technology such as sea 10 | INTERNATIONAL ADVOCATE

Ming Yu is the Arms Trade Treaty campaigner for Amnesty International Australia. She holds a Master of International Social Development from the University of NSW and Bachelor of Arts (Government, Political Economy) from the University of Sydney.

THE RIGHT TO THE TRUTH AND THE CONVENTION ON ENFORCED DISAPPEARANCE By Carloyn Skorupa

The Right to Truth Pre- 2007

truth. In contrast, the special procedure

Prior to the Convention on Enforced

Rights Council have promoted a broader

Disappearance (CED), the right to truth could best be described as an emerging norm of international human

rights law. While it was recognized by the European and American regional

human rights bodies, by resolutions of the Human Rights Commission, the

Human Rights Council and the General Assembly, and by several of the special

procedure mandate holders, the right was not formulated consistently among these sources, nor evident in the practice or opinio juris of States.

In cases of enforced disappearance, the lack of truth by State authorities

regarding the whereabouts or fate of

mandate-holders of the UN Human

interpretation of the right, as has the Inter-American Commission on Human

Rights (IACHR). These mechanisms have

promoted

autonomous,

inalienable right that belongs not only to the individual, but also to society as a whole. The lack of a uniform

formulation or approach to the right to truth is damaging to its recognition as

an international customary rule, but contributes to the development of a principle of international law.

The Effect of the Convention on Enforced Disappearance

the “disappeared” person has been

In 1998 Juan Méndez, a legal expert

Rights Committee and regional courts to

emerging principle of international law

not to be subjected to torture. However,

as a norm clearly and unquestionably

the right to an effective remedy, or to

The CED now includes an express

consistently considered by the Human

on the right to truth, described it as an

constitute a violation of the relatives’ right

because it had not been “established

some courts have found a violation of

validated in an international treaty”.1

family life, while others have not. And

right

some courts have extended the right to all gross violations of human rights; even

within the regional jurisprudence there

is no cohesive treatment of the right to

the

truth

for

victims

�� Yasmin Naqvi, ‘The right to the truth in international law: fact or fiction?’ (2006) 88(862) International Review of the Red Cross 245, 268, quoting Juan Méndez, ‘The right to truth’, in Christopher C. Joyner (ed), Reining in Impunity for International Crimes and Serious Violations of Fundamental Human Rights: Proceedings of the Siracusa Conference 17-21 September 1998 (Erés, 1998) 255. INTERNATIONAL ADVOCATE | 11

Three children outside internally displaced persons camp, Bunia (Photo credit: Amnesty International)

enforced disappearance.2 How does

should specifically detail the scope and

international human rights convention

contained in Article 24(2) of the CED,

the codification of this right in an

affect the formulation of the right? First

those parts of the CED that relate to

effect of the right.3 The right to truth is which states that:

the right to truth must be interpreted,

“Each victim has the right to

the status of the right in the broader

circumstances of the enforced

law.

and results of the investigation

in order to analyse its overall effect on

know the truth regarding the

framework of international human rights

disappearance,

progress

and the fate of the disappeared

The formulation in the Convention on Enforced Disappearance

the

2002

the

independent

expert

Mr. Nowak opined that any binding instrument on enforced disappearance 2 International Convention for the Protection of All Persons from Enforced Disappearance, opened for signature 6 Februrary 2007 GA Res 61/177, 61st sess, Agenda Item 68, UN Doc A/Res/61/177 (entered into force 23 December 2010) art 24, (‘Convention on Enforced Disappearance’). 12 | INTERNATIONAL ADVOCATE

person. Each State Part shall

take appropriate measures in this regard.”4

Two critical definitional issues are the 3 Report submitted by Mr. Manfred Nowak, independent expert charged with examining the existing international criminal and human rights framework for the protection of persons from enforced or involuntary disappearance, E/ CN.4/2002/71, 8 January 2002, [80]. 4 Convention on Enforced Disappearance, art 24(2).

meaning of ‘victim’ and of ‘the right to know the truth’.

results of investigation, as well as the

fate of the disappeared person. This reflects the extent of development of the

right to truth between the time of the 1st

‘Right to know the truth’

Additional Protocol and the adoption of

Article 24(2) codifies the “right to truth”

the CED. The definition of substantive

enforced disappearances. According

the right to truth will help crystallise the

as an autonomous right in relation to

categories of information included in

to the ordinary meaning of the text,

content of the right in relation to other

it seems States are left a broad

grave violations of human rights. The

measures’ to give effect to the right to

of an investigation be provided make

this to a certain extent, requiring that

amnesty laws, designed to prevent the

locate the disappeared person or their

will continue and will be strengthened

discretion to choose the ‘appropriate

inclusion of the requirement that results

truth. Articles 24(3) and 24(4) clarify

it likely that the trend of invalidation of

appropriate measures be taken to

investigation of human rights violations,

remains and to ensure a legal avenue

by the Convention as an additional legal

for obtaining reparation.

paragraphs

incorporate

These two the

rights

by which regional bodies previously implied a right to the truth, by obliging

States to investigate the disappearance

by searching for the person and by requiring State Parties to ensure legal access to an adequate remedy.8

The art 24(2) right to truth is broader than

basis for their invalidation.

Article 24 legitimises the right to truth as

a legal and enforceable right, accepted

by the States Party to the Convention.

Although the Convention applies only to cases of enforced disappearance, the codification of the right will most likely

lead to increased recognition of the right in relation to other grave violations

the right expressed in the 1 Additional

of human rights. The crime of enforced

(‘1

Protocol to the Geneva Conventions st

Additional

Protocol’),

including

the circumstances of the enforced

disappearance, the progress and the 5 Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980), art 31(1) (‘VCLT’). 6 Convention on Enforced Disappearance, art 24(3). 7 Ibid art 24(4). 8 Ibid art 24(3), 24(4).

disappearance has been recognised encompassing

multiple

human

rights violations, including the right to life and the protection against arbitrary

arrest and against torture.9 Thus it is likely that the codification of the right

in relation to the aggregate violation 9 Declaration on the Protection of All Persons from Enforced Disappearance, GA Res 47/133,UN Doc. A/Res/47/133 (18 December 1992) art 1. INTERNATIONAL ADVOCATE | 13

will be extended, to a certain extent, to

However, it may be possible for an

violations as well.

to a particular disappeared person, to

apply to the encompassed human rights

be classified as a victim under article 24. In determining whether a particular

‘Victim’

person is a ‘victim’, the interpretation of

Under article 24 victims of enforced

disappearance hold the right to truth. A ‘victim’ is defined to be “the disappeared

person and any individual who has

suffered harm as the direct result of an enforced disappearance”.10 This appears to represent a compromise between the definition used by regional

human rights bodies in the past and the definition promoted by UN special

procedures. The definition is clearly broader than the ‘families’ of the First

Additional Protocol11 and the ‘relatives’ of

the

regional

individual member of society, unrelated

jurisprudence,

but

does not specifically adopt a collective dimension.12

the phrase ‘direct result of an enforced disappearance’ will be crucial.

The European Court of Human Rights (‘ECtHR’) has required the “existence of special factors which give the suffering of the person concerned a dimension

and character distinct from the emotional

distress which may be regarded as

inevitably caused to relatives of a victim of a serious human-rights violation”.13 The

Human

Rights

Chamber

for

Bosnia and Herzegovina (‘HRCBiH’) in

Unković elaborated on this, with factors including

the

gravity

emotional

distress suffered by the claimant, their relationship with the missing person,

Interpretation according to the ordinary

efforts made to discover the truth, and

a victim must be an individual, and that

role of the respondent in the underlying

rejected by the Convention. Thus, while

the violation was triggered not by the

truth to society as a whole, it would not

lack of participation in the information

meaning of the words would indicate that

the response of the authorities and the

the collective dimension of the right is

criminal act. 14 The ECtHR found that

a State may choose to disseminate the

disappearance itself but by the state’s

be obligated to do so by the Convention.

seeking process.15

10 Convention on Enforced Disappearance, art 24. �� Susan McCrory, ‘The International Convention for the Protection of all Persons from Enforced Disappearance’ (2007) 7(3) Human Rights Law Review 545, 557. �� Tullio Scovazzi and Gabriella Citroni, The Struggle against Enforced Disappearance and the 2007 United Nations Convention (Martinus Nihjoff Publishers, 2007) 359. 14 | INTERNATIONAL ADVOCATE

These courts were defining ‘victim’ in 13 Cyprus v Turkey [2001] IV Eur Court HR 1, [156]. 14 Unković v The Federation of Bosnia and Herzegovina, Case No. CH/99/2150, Decision on Review, Human Rights Chamber for Bosnia and Herzegovina, [114-15] (May 10, 2002). �� Ibid, [157].

the context of an implied right to truth

various other express rights, but there

contrast,

right was implied or implemented by

in the protection against torture. In refers

the

Convention

expressly

the

definition

enforced

disappearance as the cause of suffering.

The factors in Unković relating to the claimant are persuasive in proving the

causal connection between the harm

and the enforced disappearance, but the government participation factor would not be determinative. It is also

was no uniform standard for how the

these bodies. Simultaneously, ‘soft law’ instruments in the UN human rights

system were promoting the right to truth as an autonomous and often collective

right. The right emerged as a principle

of international law, which was finally codified in 2006.

important to note that the definition

The right to truth is now a legally

possibly allowing an argument that the

disappearance against those States

generally has caused harm to a

this instrument will also serve as a

upon a particular case of enforced

human rights law, contributing to the

is likely the Committee will apply a less

to truth for a broader range of human

someone is a ‘victim’ for the purposes

manifestation of tireless pressure by

influence regional bodies to expand

translated into a substantive human

a broader class of person.

will of the international community to

refers to ‘an enforced disappearance’,

enforceable right in relation to enforced

occurrence of enforced disappearances

party to the CED. It is likely that

person, rather than requiring reliance

catalyst in other areas of international

disappearance. For these reasons, it

recognition of a legally enforceable right

rigorous test in determining whether

rights violations. The Convention is a

of the Convention. This may in turn

civil society to have the need for truth

their interpretation of ‘victim’ to include

right. It should bolster the political continue the development of the right

more broadly, to define its contours

Conclusion

and to improve the process of holding

Prior to the CED, the right to truth was developed in a slow and fragmented

manner because it was derived from different

international

instruments

and considered in relation to different areas of human rights law. Regional

human rights courts attempted to grant

victims the right to truth by implying it in

States accountable for gross violations of human rights.

Carolyn Skorupa graduated from the ANU in 2012 with a BA(Hons)/ LLB(Hons). She was the winner of the Thomson Reuters Prize for “International Organisations (Geneva)” in 2012. This article is an adapted version of the prizewinning essay.

INTERNATIONAL ADVOCATE | 15

AUSTRALIA’S INTERNATIONAL OBLIGATIONS TO UNACCOMPANIED REFUGEE CHILDREN By Claire Bruen

I The Phenomenon of Children

Refugees (Refugee Convention).4 That

Seeking Asylum Alone

is, the term applies to any child who:

The United Nations Children’s Fund (UNICEF),

the

Committee

the

Rights of the Child, the UN High Commissioner for Refugees (UNHCR),

and the Australian Government all

have a different understanding of what constitutes an unaccompanied refugee child,1 which results in unaccompanied

children being denied access to their rights due to technicalities.

For the

purposes of this article a combination of

the United Nations (UN) and Australian definitions will be used.

Therefore,

an unaccompanied refugee child is

a child (as defined by Article 1 of the Convention on the Rights of the Child2

(CRC)) who has been separated from both parents and other relatives and is

not being cared for by an adult who, by law or custom is responsible for doing so.3

The child must also satisfy the

criteria of ‘refugee’, as defined in the Convention Relating to the Status of 1 International Organisation for Migration, ‘Protection of Unaccompanied Migrant Children’ (Information Note, IML, January 2011), 1. 2 Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990), Art 1. 3 Committee on the Rights of the Child, Treatment of Unaccompanied and Separated Children Outside their Country of Origin, 6th Comm, UN Doc CRC/GC/2005/6 (1 September 2005), para 7. 16 | INTERNATIONAL ADVOCATE

“owing to a well-founded fear

of being persecuted for reasons of

race,

religion,

nationality,

membership of a particular social group

political

opinion,

outside the country of his or her nationality ... is unable or, owing

to such fear, is unwilling to return to [their home]”.5

For the Refugee Convention to be

properly recognised as relevant to the claims

unaccompanied

children,

care must be taken to consider the

specific nature of the harms that can and do befall children. The key is that

the Refugee Convention needs to be read with the image of the child at

the front and centre of the mind of the

decision-maker;6 decision-makers need

to consider the procedural concessions

that are necessary to allow a child to tell their story and to examine what persecution

means,

specifically

4 Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954). 5 Ibid art 1A(2). 6 Mary Crock, Seeking asylum alone: a study of Australian law, policy and practice regarding unaccompanied and separated children (Themis Press, 2006), 170.

Choucha refugee camp, Tunisia, June 2011 (Photo credit: Amnesty International)

the context of a child who is alone

“that in all actions concerning children

responsible adult.

be the primary consideration”.7

and without the protection of family or

II Framework for Protection of Unaccompanied Children

There

guidance

now

exists

modern

considerable

international

law on the rights of unaccompanied

children and the responsibilities that

States have towards them. The most

significant obligations are provided for in the CRC, with reference back to the

provisions in the Refugee Convention.

This is supplemented by various nonbinding but aspirational guidelines and soft law from the UNHCR and the UN Committee on the Rights of the Child.

The underlying and most important

rule, outlined in Article 3 of the CRC, is

... the best interests of children shall

This

principle constitutes a basic standard

for guiding decisions and actions taken to help children – it must always be at

the heart of all procedures relating to

unaccompanied children and highlights that all unaccompanied children are

to be treated as children first and that their rights and immediate protection be identified and fully considered and

addressed, regardless of their migratory

status.8 Unaccompanied children are

also entitled to the same rights as any asylum-seeker,

under

the

Refugee

Convention; this includes the principle 7 Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990), Art 3. �� Global Migration Group, ‘Enhancing Cooperation on the Protection of Unaccompanied Migrant Children and Youth’ (Briefing Paper, UNICEF, IOM and UNHCR, May 2011), 1. INTERNATIONAL ADVOCATE | 17

of non-refoulment9 and prohibition on

and a disadvantaged person who does

country illegally.10

some or all of his or her rights.13

States to punish refugees who enter a

Specific attention, however, is given to unaccompanied children in Article 20 of the CRC, which places obligations

on State parties to provide ‘special

protection and assistance’11 to a child deprived of their family. This provision

will be the focus of the remainder of this article. It has been interpreted to compel States to appoint a guardian to

act in loco parentis; a person who can take the place of the child’s parents to

protect their rights and promote their best interests. Additionally, in June

2005, the Committee on the Rights of

the Child issued a General Comment

not have the legal capacity to exercise

This principle of guardianship is the

mechanism by which all the rights of a child can be respected during the refugee

determination process – for example, the right to life and full development, the

principle of non-discrimination14 and the

right to evolving capacities. Moreover, the

appointment

obligations under the CRC not to discriminate

against

these

children

based on their alienage and lack of legal understanding.

Importantly, the

Committee has also called on States to appoint guardians to all unaccompanied children.

Guardianship is the legally recognised

relationship between a competent adult 9 Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) arts 1A(2) and 33. �� Ibid art 31. �� Ibid art 20. �� Committee on the Rights of the Child, Treatment of Unaccompanied and Separated Children Outside their Country of Origin, 6th Comm, UN Doc CRC/GC/2005/6 (1 September 2005), para 7. 18 | INTERNATIONAL ADVOCATE

competent

guardian is a key procedural safeguard to ensure respect for the best interests of an unaccompanied child.15

III Australian Law and Policy in Practice

A The Implementation of International Law Generally

on unaccompanied children,12 calling

on States to take seriously their

Both

refugee

immigration status

processes

determination

and

are

governed by the Migration Act and the 16

Migration Regulations.17 This legislation

does implement some of Australia’s obligations

under

the

Refugee

Convention, but makes no distinctions between adult and child applicants. As

the CRC does not have the legal force that its international popularity and sweeping terms would suggest, the �� Carney, Law at the Margins: Towards Social Participation (Oxford University Press, 1991), 80. 14 Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990), Art 2. �� International Organisation for Migration, ‘Protection of Unaccompanied Migrant Children’ (Information Note, IML, January 2011), 2. 16 Migration Act 1958 (Cth). 17 Migration Regulations 1994 (Cth).

legal starting point for many children

supporting

is the Refugee Convention.

process, other than to ensure that they

entering

Australia

unaccompanied

children

who

For are

in need of protection, the Refugee Convention does not offer enough

guarantees and there are no special provisions made for unaccompanied children.

has

recognised

through the refugee status determination

receive an Immigration Advice and

Application Assistance Scheme (IAAAS) Provider like all other adult applicants.22

The decision for the Minister to play a limited role was a deliberate process to ensure that status deliberations management

the

vulnerability of unaccompanied children

and the need for special care to ensure

that all their rights are enjoyed,18 and as such, does assign a guardian to unaccompanied children who arrive in Australia.

children

are kept separate from the on-going

B Guardianship Provisions Australia

unaccompanied

The role of guardian over

unaccompanied children is given to

the Minister of Immigration, under the provision that any person under the age of 18 years, with no parent or guardian to care for them, must have a legal

guardian.19 The Minister has the “same

rights, powers, duties, obligations, and

liabilities as a natural guardian of the children would have”20 and remains

the legal guardian from the moment of arrival until the unaccompanied person turns 18 or leaves Australia.21

The Minister in reality has no role in �� Australian Human Rights Commission, A last resort? The National Enquiry into Children in Detention (2004), 267. 19 Immigration (Guardianship of Children) Act 1946 (Cth) s6. 20 Ibid ss4AAA, 6. �� Ibid s6.

children.

unaccompanied

As a guardian, the Minister

is obliged to pursue the best interests

of the child. As a visa decision-maker

however, the Minister may need to make

decisions that are contrary to the child’s best interests.24 Therefore, in order to

avoid this significant conflict of interest,

the Minister’s duty has been interpreted to be extremely limited and not beyond

what his or her duty is for any other asylum-seeker, as the Minister cannot give due regard to what are inherently contradictory functions. Consequently,

despite

Australia’s

recognition of the importance of the provision of a guardian, in reality, unaccompanied children who arrive

in Australia are not granted such assistance. As such, the child is not �� National Communications Branch, Fact Sheet 63 Immigration Advice and Application Assistance Scheme (March 2012) Department of Immigration and Citizenship < http://www.immi.gov.au/media/ fact-sheets/63advice.htm>. �� Australian Human Rights Commission, above n 18, 268. 24 Odhiambo v Minister for Immigration [2002] FCFAFC 194 and Jaffari v Minister for Immigration [2001] FCA 985. INTERNATIONAL ADVOCATE | 19

properly represented during the refugee

expertise to ensure that the interests of

must take legal responsibility for his or

her immediate needs are met.

status

determination

process

and

her own self. This lack of guardian to advocate for the child and to oversee care and management of the child

means that the best interests of the child are not respected and the rights of the child are not protected.25

There is a large gap in Australia’s implementation

international

guidelines calling for the appropriate provision of guardians to unaccompanied

children. As a result, the domestic legal

policy framework does not truly address the issue and in reality, acts as a policy void.26

A Conclusion Unaccompanied children, whilst having the right to a legal guardian, are offered

a guardian who cannot, in reality, act in their best interests. The principle

of guardianship is an enabling right, and for unaccompanied children to

be left alone to navigate the complex, unfamiliar refugee status determination

process is profoundly detrimental to their best interests. Unaccompanied

children should be allocated a proper guardian

who

has

the

necessary

�� Refugee Council of Australia, Refugee Council of Australia, Submission to the Human Rights and Equal Opportunity Commission, Inquiry into Children in Immigration Detention, 2002, 25. �� Global Migration Group, ‘Enhancing Cooperation on the Protection of Unaccompanied Migrant Children and Youth’ (Briefing Paper, UNICEF, IOM and UNHCR, May 2011), 4. 20 | INTERNATIONAL ADVOCATE

the child are safeguarded and that his or

Claire Bruen graduated from the ANU in 2012 with a Bachelor of Laws/Bachelor of Economics. This article is a modified version of her paper for the Summer/ Winter in Geneva Program of 2012

THE (WORKING) LIFE OF AN INTERNATIONAL LAWYER By Rowan McRae and Simona Timmins Lawyers, it seems, are everywhere,

ocean space. Meetings held by these

no exception. But what in fact do we

cooperating States that are not parties

and public international lawyers are actually do? Sadly, it is not all hors

d’oeuvres in Geneva and cocktails on Pacific Islands, although admittedly

these are not outside the realm of possibility. Work ranges from writing

complex legal opinions in the office, to attending multilateral negotiations in foreign countries, to engaging with United Nations bodies on Australia’s

organisations are commonly open to to the treaty and non-governmental

organisations (although they cannot vote)

and

meeting

records

may

restricted

are

usually publicised. In contrast, other negotiations

enable free and frank discussion among participants, particularly on a sensitive political issue.

human rights record. This piece aims to

As with renovating a house, preparation

involved in practising international law,

government develops a negotiating

the authors.

attending multilateral meetings. For

give a flavour of the nature of the work

is essential. Typically, the Australian

based on the personal experiences of

mandate and prepares briefings before

Treaty negotiations One of the most interesting and challenging aspects of working in public

international law involves attending

multilateral negotiations or meetings.

These vary in terms of the number of participants, the subject matter and level of formality. For example, regional fisheries

management

organisations

may comprise a small number of

the international lawyer, key questions to address include: will the proposed

action be consistent with Australia’s existing treaty obligations or how will

it impact upon those obligations? Will Australia be able to implement the action on a domestic level? Will binding

treaty action be required and if so, what domestic processes need to be followed

before Australia could agree to such action?

countries dealing with a single species,

If a new treaty is being negotiated, a

with fisheries resources in a defined

meeting, with an opportunity to comment

or a large number of countries dealing

draft text might be circulated prior to the

INTERNATIONAL ADVOCATE | 21

on the text. It is the role of the lawyer to

also attend informal drafting groups to

Australia’s desired policy goals. At

plenary sessions.

consider whether the draft treaty meets times, it is beneficial to informally liaise

develop instruments for consideration in

with like-minded States to develop a

A key role of the international lawyer

the lawyer will consider drafting changes

both in the office and at international

might raise some curly international law

lawyers consider a range of sources,

back to the office. The lawyer might also

Convention on the Law of Treaties,

such as a binding fisheries conservation

often involve working with other foreign

is well thumbed in the authors’ office).

gauge their views before formally

prescriptive and broader than language

joint position. At the actual negotiations,

is to interpret binding instruments,

that are put forward on the floor. This

negotiations. In interpreting treaties,

issues, requiring a hasty telephone call

particularly

take the lead on drafting an instrument,

travaux

and management measure. This will

(Anthony Aust’s Treaty Interpretation

lawyers (usually in the margins) to

Treaty language is necessarily less

tabling the instrument. Lawyers might

used in Australia’s domestic legislation.

the

1969

préparatoires,

States

and

the

academic

Vienna

practice

literature

Room XX at the Palais des Nations, Geneva, where the Human Rights Council meets (Photo credit: Australian Permanent Mission, Geneva)

22 | INTERNATIONAL ADVOCATE

This reflects the fact that treaties are a

New York. The Australian delegation is

which have different interests and

government

product of compromise among States domestic requirements.

Now, back to that cocktail: a Hendrick’s gin with cucumber will do just fine, preferably with an ocean view.

International human rights work Another area in which government

lawyers play an interesting role is

international human rights law. Lawyers (primarily in the Attorney-General’s Department) advise the government on international human rights treaties

and human rights obligations under customary international law.

usually made up of officials from federal departments,

including

government lawyers and policy experts, who have to answer questions from the Treaty Body members on a broad range of topics. Another

interesting

aspect

international human rights work is coordinating

Australia’s

participation

in the Universal Periodic Review. This is a relatively new process undertaken

by the United Nations Human Rights Council

that

provides

in-depth

analysis of Australia’s compliance with

all of our international human rights obligations. The UPR dialogue is also an opportunity for Australia to consider

One important aspect of this work is

making

human rights treaties, such as the

appearance takes place before all of

Preparing periodic reports to United

Human Rights Council, who can pose

human rights treaties ratified by Australia

and make recommendations.

Committee on the Rights of the Child.

the member and observer States of the

Nations Human Rights Treaty Bodies on

questions to the Australian delegation

policy measures taken to implement treaty obligations. In turn, this means extensive

consultation

with

federal

government departments and State and Territory governments. Engaging closely with civil society helps to ensure

that reports also recognize where there is room for improvement. Submission of a report is followed by an appearance

before the Treaty Body in Geneva or

rights

commitments’

working with the bodies that oversee

requires a thorough review of legal and

human

‘voluntary

measures.

The

Treaty Body appearances and the Universal Periodic Review both result in a detailed list of recommendations to the Australian Government. Government lawyers play a key role in reviewing recommendations progress

and

between

monitoring

appearances.

For Australia’s involvement in these processes

effective,

the

international engagement needs to feed INTERNATIONAL ADVOCATE | 23

Australia’s delegation to the Universal Periodic Review before the Human Rights Council, January 2011 (Photo credit: Australian Permanent Mission, Geneva)

into domestic human rights policy, such as the National Human Rights Action Plan.

Did someone say Swiss hors d’oeuvres? I’ll take the raclette, thanks.

Overall, the work of a government international lawyer is incredibly diverse and interesting, and is commended to anyone who relishes a challenge.

24 | INTERNATIONAL ADVOCATE

Rowan McRae and Simona Timmins are Senior Legal Officers with the Office of International Law, AttorneyGeneral’s Department. Rowan is currently in Washington DC on a leave of absence and Simona is currently on secondment with the Department of Agriculture, Fisheries and Forestry.

COURSE GUIDE

LAWS2214: International Law of the Sea Haven’t fully decided on your electives for this semester yet? How about LAWS2214: International Law of the Sea? The course hasn’t been offered at an undergraduate level since 2007 and won’t be offered in 2014 – even more reason to consider doing it this semester! To help you make your decision, we asked Don Rothwell (course convenor and International Law of the Sea expert) a few questions: 1. In terms of studying the material as an undergraduate, what should we know before doing the course?

The good thing is that one of the most famous of all the cases in undergraduate studies

in international law - the North Sea Continental Shelf Case - is an excellent foundation for further learning in the Law of the Sea. Recall that North Sea deals with the relevant treaties on the law of the sea, their status as customary international law, the ability

of states to claim a continental shelf, and how continental shelf boundaries need to be settled between neighbouring states. In a nutshell this one case encompasses

many of the core elements of the international law of the sea. But the course is much more than that, and will consider a range of contemporary issues such as fisheries

and resource management, environmental protection, the southern ocean, Japanese whaling, and also piracy.

2. Given the current nature of international law, why is studying International Law of the Sea a good idea?

The international law of the sea is one of the oldest continuous distinctive areas of study within public international law with publicists like Grotius having a profound impact upon its early development. It also deals with all activities at sea and, as such,

encompasses many of the distinctive elements of international law that apply on land.

Given the importance of the oceans to world trade and to the environment, there is also

an increasing recognition of the political and strategic importance of this fundamental area of international law

INTERNATIONAL ADVOCATE | 25

3.What is it like to work in an area concerning the International Law of the Sea? Very exciting because there is so much going on in the field whether it be disputes over territory and maritime boundaries in East Asia, controversies over whaling or piracy, the

need for enhanced environmental protection to deal with shipping and disasters such as the deepwater horizon oil spill, or the status of refugees at sea. The international

law of the sea is also relatively settled because much of the law revolves around the

1982 United Nations Convention on the Law of the Sea, an enormous convention with 320 articles! While that may be a little daunting, for an international lawyer it provides

a level of certainty about the status of the law that does not necessarily exist in some other areas of international law.

We hope that helps! If you have any more questions on the course, feel free to e-mail Don Rothwell at RothwellD@law.anu.edu.au or contact us and we’ll try to find an answer for you.

Donald R Rothwell is Professor of International Law and Head of School at the ANU College of Law. His research focuses specifically on the law of the sea, the law of the polar regions, and the implementation of international law within Australia. He is the convenor for LAWS2214: International Law of the Sea for 2013.

26 | INTERNATIONAL ADVOCATE

ABOUT THE

ANU INTERNATIONAL LAW SOCIETY The ANU International Law Society (ILS) is a student run orgnisation located at the Australian National University in Canberra. The society is dedicated to promoting interest in and the study of international law. Its activities include publishing the International Advocate featuing contributions from students, academics and practitioners, providing insightful events and valuble academic support to students. For more information on the societyâ&#x20AC;&#x2122;s activities, upcoming events and how you can get involved place visit www.anuils.com