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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0

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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1 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

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2

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.

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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.

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5 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}

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6 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. As the facts of the situation in the RPC remain largely unknown, some arguments are based on the little information available and can thus be seen as assumptions.

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7 Chapter 1

The Right to Education in the Regional Processing Centre

“Our friends are going to school in Iran and we are not … [child crying]. This was a mistake to come to Australia”

(9 year old girl, 2 March 2014)11

This chapter will explain the importance of the Convention of the Rights of the Child (or CRC) on international children’s rights. It will elaborate on the various dimensions the right to education entails and the obligations it imposes on State Parties. It will furthermore show the extent to which the refugee children on Nauru suffer from discrimination in their right to education. Concluding remarks will be given on the failure to meet the obligations of the relevant States.

Australia has been transferring refugees and asylum seekers for detention and status determination to offshore centres since 2001 under a government policy called the “Pacific Solution”. This policy was focused on deterrence; intended to discourage anyone from entering Australia irregularly. The policy was dismantled in 2008, following a change of government and an overwhelming proof of the physical and emotional harm the prolonged detention caused. In 2012, the increase of refugees arriving in Australia caused the government to establish an even more stringent policy through the Regional Processing Centres (or RPC) in Nauru and Papua New Guinea. Any person arriving in Australia by boat will be prohibited from seeking asylum in Australia and will be moved to an offshore centre under the policy “Operation Sovereign Borders”.

The RPC on Nauru has been operating since 2012 through a Memorandum of Understanding (or MOU) between the government of Australia and the government of Nauru. Pursuant to the MOU, the tiny rock island owns and administers the centre under Nauruan law, while Australia provides capacity for building and funding. The precise role the two

11_{Australian Human Rights Commission, The Forgotten Children, National Inquiry into Children in}

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8 governments play will be discussed further below. The processing centre has been heavily criticised for violating human rights. In a joint report by Amnesty International and Human Rights Watch, the situation at Nauru is described as refugees suffering from severe abuse, inhumane treatment, and neglect. Amnesty, in its October 2016 report, even concluded that the conditions on Nauru amount to torture.12 These conditions, combined with the indefinite nature of the detention, have caused severe mental health consequences in children. They are suffering from “extreme levels of physical, emotional, psychological and developmental distress”13_{, which causes “serious long term impacts, including developmental delays,}

anxiety, depression, posttraumatic stress disorder, memory loss, and other mental health consequences.”14 As the RPC is operating under Nauruan law, the main concern is the lack of a child protection framework in Nauru. The first Child Protection Act in Nauru was adopted in June 2016. In that same year, the severe inadequacies of Nauru’s child protection framework were brought to light in a joint study by UNICEF and the Ministry of Home Affairs. The study established that “Nauru does not have a consistent reporting, data collection or monitoring system in relation to child maltreatment”15.

1.1 The United Nations Convention on the Rights of the Child

Through the CRC States are obliged to take appropriate measures to protect children. As the world’s most widely ratified human rights treaty16

, it is the bearer of international children's rights17. It defines children, their rights and entitlements and society's duties and obligations to them18. Their special needs and vulnerabilities are recognised, with States carrying the obligation to always act in the best interest of the child. The responsibility is not only carried by States, but is also carried by both parents and children through respecting

12_{Amnesty International, Treasure Island, Submission 6, to the Australian Legal and Constitutional Affairs}

References Committee, in the inquiry ‘Serious allegations of abuse, self-harm and neglect of asylum seekers in relation to the Nauru Regional Processing Centre, and any like allegations in relation to the Manus Regional Processing Centre, p11 (Further: Treasure Island)

13

Human Rights Watch Submission to the Select Committee on the recent allegations relating to conditions and circumstances at the Regional Processing Centre in Nauru, June 5 2015, p2

14_{ibid, p2}

15_{UNICEF Pacific and Nauru Ministry of Home Affairs, Review of the Child Protection System in Nauru,}

2016, p18, https://www.unicef.org.au/Upload/UNICEF/Media/Documents/Nauru-ChildProtection-Review.pdf, accessed on 01-06-2017

16_{T. Liefaard & J. Sloth-Nielsen Brill, The United Nations Convention on the Rights of the Child: taking stock}

after 25 years and looking ahead, Nijhoff. (2017) Leiden, p1

17_{D. Reynaert & M. Bouverne-de-Bie & S.Vandevelde, A Review of Children’s Rights Literature Since the}

Adoption of the United Nations Convention on the Rights of the Child, Childhood, vol. 16, 4, November 18, 2009, p518

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9 each other’s rights.19

There are four core provisions in the Convention which the State Parties are particularly obliged to comply with: non-discrimination; the best interest of the child; the right to life; and the right of children to express their views in all matters affecting them and for their views to be given due weight in accordance with their age and maturity.20

Nauru and Australia have both ratified the Convention and its first and second protocol.21 Nevertheless, the Committee of the CRC in it’s review of Nauru has established “persistent discrimination against asylum-seeking and refugee children in all areas, in particular with regard to access to water, sanitation, education, health care and adequate housing”22

. The Centre has been found to be unsafe and unsupportive for children, with incidents of unpunished abuse, assault and sexual assault by service providers and locals. The principle of non-discrimination, or positively worded the principle of equality23, is one of the most frequently protected norms in international human rights law. In the CRC, the importance of this overarching principle is projected in it being established in the second article. It provides protection for discrimination of “any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status”. Because of the interconnected nature of the Convention, the principle of non-discrimination covers the entire convention. The right to education will serve as an illustration to show the extend to which discrimination takes place at the RPC.

1.2 Discrimination in the Right to Education

Crucial to the development of a child is the right to education. It is a human right itself, but it also entails a means in order to realize other human rights.24 Children have a right to education, which entails the access to quality education; they have a right in education, which involves a non-discriminatory environment based on the best interest of the child and respect for its rights; and they have a right through education by having the ability to claim

19_{A. Anderson & J. Hofmann, P. Hyll-Larsen, The Right to Education for Children in Emergencies,}

International Humanitarian Legal Studies 2 (2011) p88

20_{United Nations Educational, Scientific and Cultural Organization, A Human Rights-Based Approach to}

Education For All, United Nations Children’s Fund, 2007, p7

21

Unfortunately, with the exception of the third protocol, which allows individual children to submit complaints regarding specific violations of their rights under the Convention and its first two optional protocols.

22_{CRC Report; CRC/C/NRU/CO/1, para 22.}

23_{S. Besson, The Principle of Non-Discrimination in the Convention on the Rights of the Child, The}

International Journal of Children’s Rights,13, 2005, p434

24_{R. Thomas, The Right to Quality Education for Refugee Children Through Social Inclusion, Journal of}

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10 its other rights.25 Furthermore, school can provide a stable and safe environment with physical, psychosocial and cognitive protection26 by providing a sense of routine, structure, stability and hope for the future.27 It allows people to rebuild their communities and pursue meaningful lives. The United Nations Educational, Scientific and Cultural Organization (UNESCO) has described education as “the entire process of social life by means of which individuals and social groups learn to develop consciously within, and for the benefit of, the national and international communities, the whole of theirs personal capacities, attitudes, aptitudes and knowledge”28

. For this reason, it is of crucial importance for children and society, whether in conflict situations or in peace time, to have the right to education fulfilled.

In the Convention, the right to education is enshrined in articles 28 and 29; providing not only access to education but also ensuring the aims of education are achieved. The first article is focused on the various obligations of the State while the latter underlines the individual and subjective right to a specific quality of education.29 Article 28 provides a separation into primary, secondary and higher education but the outcome is equivalent; education needs to be available and accessible, with respect to the cultural identity of the child and needs to uphold international human rights law standards with a key provision being the principle of non-discrimination.30 The principle of non-discrimination is stressed in the article in the words “on the basis of equal opportunity”. Certain groups – such as refugees and girls - are especially vulnerable to suffer from discrimination, and thus deserve a higher level of protection. For children seeking refugee status this is ensured through article 22 of the Convention. They require special protection and humanitarian assistance which is provided for by the minimum standards set out in the Convention. Article 29 is designed to allow States to arrange their own forms of education, provided that the aims of education as described in this article are fulfilled.31 Education needs to be child-centred, child-friendly and in both an empowering and protective way.32 According to the Committee on the Rights of

26_{ibid, p87} 27_{ibid, p88}

28_{General Conference of UNESCO at its 18}th_{session (19 November 1974) Recommendation concerning}

Education for International Understanding, Co-operation and Peace and Education relating to Human Rights and Fundamental Freedoms, article 1(a)

29_{CRC General Comment: CRC/GC/2001/1 General comment no. 1, Aims of Education, p4} 30_{A. Anderson & J. Hofmann, P. Hyll-Larsen, The Right to Education for Children in Emergencies,}

31

R. Hodgkin & P. Newell, Implementation Handbook for The Convention On The Rights Of The Child, The Aims of Education, Article 29

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11 the Child, the aim of education should be “to provide the child with life skills, to strengthen the child’s capacity to enjoy the full range of human rights and to promote a culture which is infused by appropriate human rights values. The goal is to empower the child by developing his or her skills, learning and other capacities, human dignity, esteem and self-confidence”33

To ensure an education system is of the highest quality; financial and technical actions need to be undertaken by State Parties. The CRC Committee has stated in this regard that the arrangements may differ according to the developmental context of a State.34 To determine which actions a State needs to undertake in order to comply with its obligations, Anderson et al. have divided the right into four components. Education needs to be available, accessible, acceptable and adaptable.35 Below, these four components will be discussed in more depth in relation to the circumstances at the RPC.

On 30 September 2016, 45 children were accommodated at the RPC, of which 34 were transferees and 11 were refugees. There were also 128 refugee children residing in the Nauruan community under temporary settlement arrangements.36 Up to 2015, the education system for refugees was provided for by Save the Children, an independent international children’s rights organisation. Allegations on the RPC being too comparable to a detention camp caused the RPC to change to open arrangements in 2015. This not only meant that refugees were allowed to move around freely between certain hours, but also that the government of Nauru agreed for children to be educated in the Nauruan school system. This was supposed to be a positive change for the refugee children, however, the leaked Nauru files and interviews with refugee children have reported violence, harassment and bullying; not only by locals, but also by service providers and Nauruan and Australian teachers. The files include “seven reports of sexual assault of children, 59 reports of assault on children, 30 of self-harm involving children and 159 of threatened self-harm involving children”.37 This has led refugee children to stop going to school all together. The question thus rises whether the situation in the RPC leads to a violation of the right to education.

A. Anderson & J. Hofmann, P. Hyll-Larsen, The Right to Education for Children in Emergencies, International Humanitarian Legal Studies 2 (2011) p98

33_{CRC/GC/2001/1 General comment no. 1 Aims of Education, p2}

34_{M. Verheyde, A commentary on the United Nations Convention on the Rights of the Child, Article 28 The}

Right to Education, Martinus Nijhoff Publishers, Leiden, 2006

36_{Australian Government, Department of Immigration and Border Protection submission 23, Serious allegations}

of abuse, self-harm and neglect of asylum seekers in relation to the Nauru Regional Processing Centre, and any like allegations in relation to the Manus Regional Processing Centre, p6

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12 Firstly, for education to be available, States need to provide free and compulsory primary education, whether in the form of a public school or a funded institution or a mixture of the two. Secondary education needs to be available and accessible to everyone and higher education needs to be based on equal opportunity. Moreover, appropriate infrastructure and facilities need to be created and financial help needs to be available. Teachers need to have been trained properly. Education in Nauru is compulsory for all children aged 7 to 18 years old38 and is based on Queensland’s (Australia) system. In the same year the open centre arrangements were installed, the Australian Department of Immigration and Border Protection has set up an Education Support Sector. This sector has provided Nauru with support on several levels such as funding, supplying facilities, organising activities and supplying 11 teachers in Nauru to support curriculum development and pedagogical practice.39

Secondly, States need to provide financially and physically accessible education. This means that schools need to be within a reasonable and safe distance, or accessible through technology, and affordable to all. To guarantee the accessibility of education, states need to ensure an absence of discrimination on any of the prohibited grounds mentioned in article 2. This, because discrimination “offends the human dignity of the child and is capable of undermining or even destroying the capacity of the child to benefit from educational opportunities”40. The Nauruan schools are free and a bus ride away from the centre in which the refugees reside. These rides and the children’s uniforms are being provided for by the Australian Government.

Thirdly, States need to provide acceptable education; teachers, parents and children need to be content with the education given. This means the education should overcome the boundaries of religion, nation and culture in order to provide a basis for understanding, tolerance and friendship.41 The system is based on Queenslands’, which provides for an inclusive education. The schools are supportive and engaging for all school community members, built on a community that values, celebrates and responds to diversity.42

Fourthly, States need to provide adaptable education; education needs to be altered to the specific situation and ability of the child. Maximization of “the child’s ability and

38

ibid, p58

40

CRC Report: CRC/GC/2001/1 p4

41_{ibid, p3}

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13 opportunity to participate fully and responsibly in a free society”43 is the overall objective of education. Achieving a child’s fullest potential requires development on all levels: the child’s personality, talents and mental and physical abilities. Special attention needs to be given to children with disabilities and learning difficulties. The children have individually assessed learning plans that take account of their schooling background, level of achievement and English-language skills.44

These facts were presented by the Government of Nauru in its submission before the Senate Committee while trying to prove the quality of education.45 The Nauru Files and interviews with refugees show another side of the story. Before the open centre arrangements, the children went to a school solely for refugees. The attendance rate was high and the kids loved going to school: “it was the only time they felt normal, closing the school was probably the worst thing they could have done”.46

The Nauru Files show that the situation described by the Government of Nauru is contrary to the circumstances at the local school. The attendance rate is being tracked by the Government of Nauru but these numbers have not been published. Save the Children has estimated that 85 percent of the refugee children are not attending school, but according to three service providers none go anymore.47 The discrimination present in the RPC and especially in schools is rendering the right to education ineffective.

Children have reported to Amnesty International and Human Rights Watch that they were bullied, harassed and physically and sexually assaulted by Nauruan students and teachers. They are being called names or called ‘refugees’, rather than by their names. They have had things thrown at them or have been hit. The complaints of children to their teachers have been ignored.48 For example a 15-year-old girl said that she stopped going to school “because Nauruan children always tried to pull off her headscarf and constantly taunted her”49

. While asking the principal and the teachers to help her they merely responded by saying they couldn’t do anything for her. Another girl was touched on her bottom and hugged

43_{CRC Report: CRC/GC/2001/1 p5}

45

ibid, p23

46_{Amnesty International, Island of despair, Submission 6 – Attachment 1 to Serious allegations of abuse,}

self-harm and neglect of asylum seekers in relation to the Nauru Regional Processing Centre, and any like allegations in relation to the Manus Regional Processing Centre, p31 (further: Island of Despair)

47

ibid p31

48_{ibid p5} 49_{ibid, p5}

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14 by local boys, which made her feel unsafe at school.50

Children do not only feel unsafe at school; they are also unsafe walking around the island. Wild dogs are roaming free around the island and local population has violent tendencies, especially towards refugees. One of the refugee children has been threatened with a knife by a local, saying the school was theirs and they are not welcome to come anymore. 51 The children are therefore brought to school by bus, on which they are being treated as prisoners. They are called by the number of the boat they arrived on, rather than their own names; they are being physically searched before entering the bus and; they are counted while entering the bus and are counted again while exiting.52

The UNHCR has concluded that the resources are not being dedicated to the individual learning plans, especially not for children with learning difficulties associated with chronic trauma.53 In addition, the facilities are inadequate; the amount of books, chairs, lesson plans, writing implements and paper is insufficient, there is a lack of air conditioning in temperatures of up to 50 degrees and the noise levels are extremely high.54 It is clear that the Nauruan school system is not reaching a sufficient level of quality on any of the four components of the right to education. The UNHCR concluded in this regard that “the educational needs of the refugee population on Nauru grossly exceed the capacity of Nauruan services”55

. Moreover, the indefinite detention causes the children to feel hopeless about their future, for them it is unclear what the use is of going to school if they are going to stay on the island forever. 56 The various reports have shown the children resort to self-harm and in some cases, suicide.

The circumstances described here are showing that even with the investments of the Australian Government and Nauruan Government, discrimination is present in all four components of the right to education. The State carries the obligation to ensure this right is

50_{exert from The Nauru Files, Australian Guardian, available at:}

https://www.theguardian.com/news/series/nauru-files, accessed on 01-06-2017

51

Zembla episode on Dutch television; de Vergeten Kinderen, available at: https://www.npo.nl/zembla/11-01-2017/VARA_101381855 , accessed on 01-04-2017

52_ibid

53_{Office Of The United Nations High Commissioner For Refugees, Submission 43 to Serious allegations of}

abuse, self-harm and neglect of asylum seekers in relation to the Nauru Regional Processing Centre, and any like allegations in relation to the Manus Regional Processing Centre, p23

Immigration Detention, 2014, p184

55_{Office Of The United Nations High Commissioner For Refugees, Submission 43 to Serious allegations of}

abuse, self-harm and neglect of asylum seekers in relation to the Nauru Regional Processing Centre, and any like allegations in relation to the Manus Regional Processing Centre, p19

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15 fulfilled, but education for refugee children in the RPC is neither accessible, available, accepted nor adapted and are thus causing a violation of an international obligation.

1.3 Conclusion

The CRC forms the basis of international children’s rights, in which the right to non-discrimination is a core provision. By using the right to education as an illustration, discrimination can be seen present in all its four components. States carry the obligation to provide free and compulsory primary education and available secondary and higher education; financially and physically accessible education; acceptable education based on content and adaptable education which is altered to specific situation of the child. The discrimination for refugee children in the RPC has rendered the right to education ineffective which has caused a violation of the right to education for child refugees in the RPC.

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16 Chapter 2

Responsibility of Australia

“I feel like I am in a prison. I am so bored and sometimes I think of killing myself”

(12 year old child, 11 April 2014)57

Having established the violations of children’s rights, it is the necessary corollary of law to determine responsibility. Alain Pellet has described responsibility as a necessity; without responsibility there is no law.58 Therefore, this chapter will explore the international responsibility. This thesis will focus on the responsibility of Australia, but this is closely linked to that of Nauru. It will therefore discuss its influence where relevant.

In order to establish responsibility, a State must have breached an international obligation. It does so by acting wrongfully.59 This wrongful act needs to consist of a breach which is attributable to the State under international law. What can be considered as a breach depends on the international obligations of the State concerned and can thus vary from State to State60. Determining the responsibility is therefore based on two components61; whether the conduct is 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.

When looking at attribution, the general principle is that States are only responsible for their own conduct. In certain circumstances other subjects can engage state responsibility.62 This can be inter alia the case if the conduct was executed by an organ of the State, or when persons or entities exercising elements of governmental authorities or when the conduct was directed or controlled by a State63. In order to attribute an act to the State, “it

Immigration Detention, 2014, p129

58

Max Huber, UNRIAA, vol. II (Sales No. 1949.V.1), p. 615, at p. 641 (1925).

59

Article 1 ARSIWA

60_{J. Crawford and S. Olleson, The Character and Forms of International Responsibility, International Law, 4}th

Edition, Oxford University Press, 2014, p447 (further: Crawford)

61_{Article 2 ARSIWA} 62

A Pellet, ‘The Definition of Responsibility in International Law’ in J Crawford, A Pellet & S Olleson, The Law of International Responsibility, OUP, Oxford 2010, page 9

63

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17 is necessary to identify with reasonable certainty the actors and their association with the State.”64

To establish the breach, the international obligation of the State needs to be determined. Following the CRC, the core obligations of a State are to always act in the best interest of the child; it needs to ensure the right to life; which should be free from discrimination; while being free to express their views in all matters affecting them.65 With regard to discrimination, a state should take all appropriate measures to ensure that the child is protected against all forms of discrimination. As the previous chapter has shown, the obligations in relation to the right to education for refugee children in Nauru are not met. The education provided for is in practice not upholding the standards of quality of the Convention. It is neither accessible, available, acceptable nor adapted and discrimination within these components is present. The obligations have therefore not been met which has resulted in the violations of children’s rights.

The question that remains is, whether the legal obligation in force at that time is a legal obligation for Australia or for Nauru; on who do these obligations rest? To answer this question, it is necessary to establish the applicability and scope of the CRC. Nauru and Australia have both ratified the Convention and are thus bound by its law. The scope of the CRC has jurisdictional limitations. This is worded in article 2, where “States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction”. It is thus necessary to determine under which States’ jurisdiction the refugees fall. As a defence, Australia often refers to the argument that it does not contain jurisdiction over the conduct as it takes place in another, sovereign, state. This points towards the assumption of territorial jurisdiction; a State, in principle, only exercises jurisdiction over persons within their territory.66 "State territory is that defined portion of the globe which is subjected to the sovereignty of a state."67 In this case Nauru has territorial jurisdiction. But, in exceptional cases, jurisdiction can exist extraterritorially. The Committee on the Rights of the Child has stated in this regard that “the Convention does not limit a State’s jurisdiction to “territory”. In accordance with international law, the Committee has previously urged States

64_{M. Leigh, Kenneth P. Yeager v. The Islamic Republic of Iran, The American Journal of International Law,}

vol. 17, 1987, p92

65_{United Nations Educational, Scientific and Cultural Organization, A Human Rights-Based Approach to}

Education For All, United Nations Children’s Fund, 2007, p7

66_{Al-Skeini and others v. the United Kingdom, European Court of Human Rights, Grand Chamber, Application}

no. 55721/07, Judgment, Strasbourg, 7 July 2011, para131

67_{R. Jennings and A. Watts, Oppenheim's International Law, Longman Group UK, Limited 9th edition, parts}

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18 to protect the rights of children who may be beyond their territorial borders. It has also emphasized that State obligations under the Convention and the Optional Protocols thereto apply to each child within a State’s territory and to all children subject to a State’s.”68

In 1972, the Permanent Court of International Justice established in the Lotus case, that unless there is a permissive rule to the contrary - derived from international custom or from a convention - a State may not exercise its power in any form in the territory of another State.69 Thus, when a State executes a sufficient amount of control over conduct or consequences of an event, it can displace the territorial jurisdiction.70 This means that it is possible that the control of Australia over the RPC is of such a nature that Australia might displace the jurisdiction of Nauru or that the States may have joined jurisdiction.

Extraterritorial jurisdiction has also been acknowledged by The European Court of Human Rights In the Banković case.71

Although formulated by a European court, its decision is based on article 31 and 32 of the Vienna Convention and on scholarly writings on international law. The Court furthermore based its reasoning on the notion that jurisdiction in Art. 1 ECHR reflected the ordinary and essentially territorial notion of jurisdiction in public international law.72 It will therefore be used to answer this international question on jurisdiction. In the Banković case, the Court ruled that the exception to the rule of territorial jurisdiction can be established in two cases. The first case is the exercise of jurisdiction involving the activities of diplomatic officials abroad; and acts on board craft and vessels registered in, or flying the flag of, the State in question. 73 The situation in the RPC does not fall within this category as there are no diplomats, crafts or vessels involved. The second case is where a State has effective control over a territory through exercising public powers normally to be exercised by that Government. A form of public authority is a requirement and can be done through consent, invitation or acquiescence. The ECHtR further explained in the Al-Skeini case; “Thus where, in accordance with custom, treaty or other agreement, authorities of the Contracting State carry out executive or judicial functions on the territory of another State, the Contracting State may be responsible for breaches of the Convention

68_{CRC General Comment: CRC/C/GC/16 General comment No. 16 (2013) on State obligations regarding the}

impact of the business sector on children’s rights, p12

69_{S.S. Lotus, France vs Turkey, Permanent Court Of International Justice, series A, Number 10, Sept. 7 1927,}

para45

70

D. Kamchibekova, State Responsibility For Extraterritorial Human Rights Violations, 13 Buffalo Human Rights Law Review, 87, 2007, page 90

71_{Banković and others v Belgium and others, Admissibility,12th December 2001, European Court of Human}

Rights, Grand Chamber, para71

72

ibid, para64

73_{Charlotte Steinorth, Banković Case, Max Planck Encyclopedia of Public International Law [MPEPIL],}

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19 thereby incurred, as long as the acts in question are attributable to it rather than to the territorial State”74. The UN High Commissioner for Refugees has stated in this regard that a state has jurisdiction if “it has effective de jure [legal] and/or de facto [actual] control over a territory or over persons. The existence of jurisdiction under international law does not depend on a State’s subjective acknowledgment that it has jurisdiction. Jurisdiction is established as a matter of fact, based on the objective circumstances of the case.”75 Thus, the following paragraphs will elaborate on the control Australia is exercising over a territory or persons and whether this is done while exercising the public powers of Nauru.

2.1 Extraterritorial Jurisdiction of Australia

The RPC is operating pursuant to two memoranda of understanding (or MOU) between the government of Australia and the government of Nauru. Following both the MOU, Nauru owns and administers the Centre while Australia provides capacity building and funding and coordinates the contract administration process. The organ in charge of the management of the RPC is Nauru’s Department of Justice and Border Control. This means that on paper, the Nauruan Department of Justice and Border Control is controlling the operation and management of the Centre.76 Attribution to Nauru would then be possible on the basis of article 4 ARSIWA, where all acts or omissions of organs of the state should be regarded as is they were of the State.77 But in reality, the Australian Government is exercising more control than mere capacity building, funding and coordination, which could be cause for Nauru’s responsibility to be displaced by Australia’s, or cause for joined responsibility.

The refugees detained in Nauru have either arrived Australia by boat or have been intercepted in Australian territorial waters. They have been taken into custody by the authorities of Australia and have often been detained in Australia for several days before being transferred to Nauru or Papua New Guinea. The final decision on whether a person will be transferred to Nauru for offshore processing remains with the Australian Government. The

74_{Al-Skeini case, p135} 75

UNHCR, Maritime Interception Operations and the Processing of International Protection Claims, November 2010, paras. 10, 11

76_{S. Morisson, The Moss Review, Review into recent allegations relating to conditions and circumstances at the}

Regional Processing Centre Nauru, 2015, p21 (further: The Moss review)

77

Commentary DARSIWA, p40, Organs cover ‘all the individual or collective entities which make up the organization of the State and act on its behalf’77_{. Whether or not an entity is considered an organ of the state can}

be established through the internal law of the state but international law nevertheless prevails. This is the difference between a de jure organ, which is established through the law of the state and a de facto organ which is an entity equated with an organ of the state because it acts in ‘complete dependence’ from the State.77

This means that a state cannot avoid responsibility by shaping its national law to exclude an entity from being an organ. All conduct of state organs can be attributed to the state, even when acting ultra vires.

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20 control over this process is thus in the hands of the Australian Government. Nauru has agreed to accept Transferees from Australia through the hosting of one or more Regional Processing Centres. The arrangements made in the two MOU evidently state that Australia will bear all costs relating to the processing, offshore detention and settlement arrangements in Nauru. 78 The Government of Australia has spent AUD$9.6 billion between the financial years of 2013 and 2016, which means that the costs of detaining a single asylum seeker on Nauru costs an estimated AUD $400,000 per year.79

In 2015, the Australian Senate Committee started an inquiry into allegations relating to conditions and circumstances at the Regional Processing Centre. It consists of an extensive report on the situation in the RPC and elaborates on the roles the two governments fulfil. In the submission by the Australian government, it declares that the Processing Centre is ‘managed by the government of Nauru, under Nauruan law, with support from the Australian government.’80

The support the government mentioned here is only aiming at the financial support. In relation to the circumstances within the RPC, the Australian government further states that ‘the government of Nauru operates the RPC, assesses asylum claims and, where persons are found to be in need of protection, arranges settlement. The government of Nauru is specifically responsible for security and good order and the care and welfare of persons residing in the centre’81

. Through this statement Australia attempts to circumvent any responsibility for the breaches of any rights in the RPC by transferring the responsibility to Nauru. In another submission82 the government further declares that the arrangements are not within the jurisdiction of the government of Australia but of the government of Nauru, and

78

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, Dated 29 August 2012 And The Acceding Mou. In the first Nauru agreed to accept ‘certain persons’ on behalf of Australia ‘with the understanding that each individual will be processed within six months of their arrival in Nauru, or as short a time as is reasonably necessary.’ In the second MOU the timeframe was extended to ‘as short a time as is reasonably necessary’.

79_{Parliament of Australia, Law and Bills Digest Section, Australia’s offshore processing of asylum seekers in}

Nauru and PNG: a quick guide to statistics and resources, Updated 19 December 2016

<http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1617/ Quick_Guides/Offshore> accessed 01-06-2017

80_{Parliament of Australia, Recent Allegations Relating To Conditions And Circumstances At The Regional}

Processing Centre In Nauru, Final Report, para 2.3

81

Mr Michael Pezzullo, Secretary, Department of Immigration and Border Protection, Committee Hansard, 9 June 2015, p. 43, available at:

http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Regional_processing_Nauru/Regional_proc essing_Nauru/Final%20Report/c02#c02f43 , accessed 01-06-2017

82

Australian Government, Department of Immigration and Border Protection submission 23, Serious allegations of abuse, self-harm and neglect of asylum seekers in relation to the Nauru Regional Processing Centre, and any like allegations in relation to the Manus Regional Processing Centre, p15

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21 that it does not exert control over their respective executive, legislative, or judicial functions but merely provides support and assistance.83

Following Australia’s reasoning, it would mean Australia does not contain control over the arrangements in the processing centre resulting in violations of children’s rights nor does it exercise public powers. However, much to the contrary, in relation to the protection of refugees transferred to Nauru, the UNCHR has established ‘a high degree of effective control of Australia at the Centre’. This is not only based on the before mentioned financing, but also on the level of control over several processes within the Centre. To begin with, Australia has appointed a high amount of service providers. A large amount of Australian Government officials are present on the island, who assist in the management of the Centre. Furthermore, Australia is highly involved in the mentoring of Nauruan officials in respect of refugee status determination processing.84 Amnesty International arrived at the same conclusion after a thorough research in 2016. The organisation established that “the Government of Australia’s treatment of refugees and asylum-seekers on the island is a deliberate and systematic regime of neglect and cruelty, and amounts to torture under international law.”85 Through evaluation of the legal documents in place, Australia provides more than just financial support, capacity building and coordination. According to the MOU of 2013, the Nauruan government is required to file regular reports to the Australian government. Day-to-day operation of activities are communicated continually between the Nauruan Secretary for Justice and Border Control and the Australian Department of Immigration and Citizenship.86 A Joint Committee, consisting of both Australia and Nauru, is established to keep sight on the practical arrangements and meets on a regular basis.87 Not to mention, the immigration detention standards of the Department of Immigration and Border Protection of Australia provide that ‘ultimate responsibility for the detainees remains with [the department] at all times’88.

The control of Australia over the RPC is furthermore seen in the management of the RPC. The government of Australia has mainly outsourced the running of the RPC to private

83_{ibid, p15}

84_{Parliament of Australia, Recent Allegations Relating to Conditions and Circumstances at The Regional}

Processing Centre in Nauru, Final Report, para 2.3

85_{Island of Despair, p11} 86_{MOU 2013, art 21} 87_{MOU 2013, art 22} 88

Joint Standing Committee on Foreign Affairs, Defence and Trade, A report on visits to immigration detention centres, June 2001, pp 94-95 and Appendix H. Cited in Castan Centre for Human Rights Law, Submission 18, p. 3 and footnote 2; Australian Lawyers Alliance, Submission 14, p. 15.

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22 contractors. The leading private contractor is Broadspectrum,89 whom provides garrison and welfare services. This includes providing operational and support services such as facilities management, clothing, food, transport, cleaning and security services. Furthermore, they provide recreational and educational programmes to refugees and asylum-seekers. The outsourcing of the management of a service that is supposed to be provided for by the State does not circumvent its responsibility. The Committee of the CRC stated in this regard that decentralization of power, through devolution and delegation, does not reduce the direct responsibility of the State to meet its obligations to all children within its jurisdiction.90 When an organisation is exercising elements of governmental authority, attribution can be based on article 5 ARSIWA. This is even so while they are acting ultra vires; contrary to instructions or exceeding the authority.91 While examining whether the conduct is governmental one must look at the content of the powers, the way these are conferred on the organisation, the purposes for which they are to be exercised and the extent to which the entity is accountable to government for their exercise.92 Broadspectrum has entered into contract with the Australian Department of Immigration and Border Protection in September 2012 and has resumed its contract in March 2014, which is ongoing up to writing this. The continuation of the Centre is reliant on the involvement of Broadspectrum, as it provides core services on behalf of the Australian government. The company controls the “access to food, clothing, property and recreational activities, for dealing with incidents and behavioural issues at the RPC, and for monitoring entry and exit to and movement around the RPC.”93

These day-to-day operations are under constant review by the Department. Under the terms of its contract various oversight and control measurements are installed. The Department “can require Broadspectrum to remove staff and can terminate or reduce the scope of the services provided by Broadspectrum at any time and at its absolute discretion. The Department also has “step-in rights” under which it can suspend the services provided by Broadspectrum and arrange for a third party or the Department to provide those services instead. Broadspectrum can only enter into sub-contracts over a certain value with the Government’s approval. Broadspectrum has to submit performance reports to the Department regularly and must

89_{Broadspectrum on its turn has sub-contracted several services to Wilson Security. Both make a substantial}

profit, the contract is valued at AUD$2.5 billion.

90

Committee on the Rights of the Child, General comment No. 16 (2013) on State obligations regarding the impact of the business sector on children’s rights (CRC/C/GC/16), p5

91_{Article 7 ARSIWA}

92_{Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries (2001)}

International Law Commission at its fifty-third session, in Yearbook of the International Law Commission, 2001, vol. II, Part Two, p43

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23 immediately report certain welfare, safety and security issues to the Department”94. Broadspectrum also offers a range of programmes and activities at the Centre, providing for educational and recreational activities. If within its’ jurisdiction, the conduct of Broadspectrum could therefore be attributed to Australia. Amnesty International’s report titled “Treasure Island” even goes insofar as holding Broadspectrum liable for complicity in the Australian Governments violations of the rights of refugees on Nauru. This is concluded because Broadspectrum is well aware of the situation at Nauru, either through international, national or media attention, but continued its operations anyway.

If the conduct cannot be described as exercising elements of governmental authority, the conduct can possibly be attributed when it was directed or controlled by a State. Article 8 ARSIWA states that the responsibility of the State is only established when the entity is ‘acting on the instructions of, or under the direction or control of, that state in carrying out the conduct’. This means that the central question is which level of control Australia has over the conduct leading to the violations of the CRC. In the Military and Paramilitary Activities in and against Nicaragua case two tests have been created to establish the degree of control and with that the degree of responsibility. If the entity is ‘under such strict control’ by the outside power that the entity is nothing more than an instrument or an agent, it will be equated, for legal purposes, as an organ of the State.95 With that, all activities can be attributed to the responsibility of the State. As a subsidiary test to the ‘strict control’ test, the ‘effective control’ will qualify specific conduct under the responsibility of a State. It is not a question of complete dependence but of partial dependence, or rather partial control96; the single operation and the conduct that caused the breach have to be controlled or instructed by the State. Following the Nicaragua case, control or instructed is when a State “has a role in organizing, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group”97

.The question is thus whether the conduct described in chapter 1 that resulted in the violation of the right to education is under ‘strict control’ or under ‘effective control’ to establish the level of responsibility of Australia. As this has been established above in relation to article 5, elaboration on this is not necessary.

94

Treasure Island, p12

95_{Military and Paramilitary Activities in and Against Nicaragua, NICJ, Merits, Judgment, ICJ Reports 1986,}

para 109

96_{S. Talmon, A Plurality of Responsible Actors: International Responsibility for Acts of the Coalition}

Provisional Authority in Iraq, page 502

97_{Military and Paramilitary Activities in and Against Nicaragua, NICJ, Merits, Judgment, ICJ Reports 1986,}

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24 Ensuring the rights of the people within the territory of Nauru is a task supposed to be fulfilled by the Government of Nauru. But in the case at hand, Australia has taken over this task through financial commitment; exercising power on the process; regular reporting mechanisms and service outsourcing. Although the MOU between the two governments do not provide for Australia to establish such a high amount of control, the (silent) consent of Nauru ensures that the requirements for extraterritorial jurisdiction of Australia is fulfilled.

2.2 Responsibility of the Violation of the Right to Education

The discrimination in relation to the right to education is occurring in three different places: in school; on the way to school; and around school. Due to the deliberate policy of secrecy, the precise arrangements around these situations remain largely unknown. Nevertheless, based on the facts at hand, it may be possible for specific conduct to be attributed to Australia on several grounds. This will further be discussed based on the four components of education; accessible, adaptable, acceptable and available education.

The physical accessibility of the right to education is obstructed by the treatment of the refugees on the bus. The discrimination on these rides is of such grave nature that refugees are refusing to go on them and are thus hindered in the accessibility of their education. They are provided for by Broadspectrum, thus the discrimination that takes place here is done by employees of Broadspectrum. As established before, acts of Broadspectrum can be attributed to the Australian State on the basis of article 5 ARSIWA.

The boundaries of religion, nation and culture have not been overcome in the Nauruan school system, which makes the education not acceptable. Much of the discriminatory practices are done by local school children, but the Nauru Files have also shown that teachers and principals are unwilling or unable to do anything. The specific situation of the child is not being taken into account and the resources are not dedicated to the individual learning plans, which has made education not adapted. As this is a local school, it is difficult to argue this is fully Australia’s responsibility. However, the system is based on Queensland’s and Australia has provided for a large amount of teachers. It is therefore possible that Australia has aided or assisted in the conduct, which causes a form of derived responsibility. These rules of connected responsibility have been created to ensure States who avoid responsibility by acting through, or with the help of, another State or organisation can still be held accountable. This, so States cannot hide behind the involvement of another State. 98 If states act together in

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25 conduct a wrongful act, each will be responsible for its own conduct.99 The attribution in this case would be based on article 16 ARSIWA. The article requires the establishment of an internationally wrongful act by the state that was aided or assisted. It thus presupposes a judgment in which the primary wrong needs to be established first. This means that the primary wrong - Nauru having discriminated in the right to education by not having acceptable education - would have to be established first. This primary wrong always requires a positive action.100 Assuming that the primary wrong can be established, the aid or assistance must have been given with a view to assist the act, with full knowledge of the circumstances of the internationally wrongful act.101 There are contrasting views on whether or not the intend of the act has to be shared between the accomplice and the principal perpetrator. As the conduct described here is taking place on a regular basis, with various incidents having been reported, it is safe to conclude there is full knowledge of the facts. The second requirement is that if Australia would have violated international children’s rights it would have been just as wrongful as Nauru committing it. Both States are bound by the same law of the CRC, which means the requirements of article 16 ARSIWAcan be fulfilled. This means that Australia can be held responsible, only for the aid or assistance itself, not for the primary wrong that has been committed.

Although primary education is free and compulsory for all children on Nauru, the discrimination within the school system has rendered the right ineffective. The school system is a local system, but when looking at the broader picture, the RPC in general is under the control of Australia. Its’ policy of deterrence is supposed to shy off any new refugees. This could point towards intentional violations of human rights by Australia. Statements of service providers have declared that Nauru does not have any say in what happens on the Island. Any decisions that need to be made, are made by Australia. The service providers do not act unless the Australian Government has told them to do so.102 In 2017, an investigation started in relation to serious allegations of abuse, self-harm and neglect of asylum seekers in relation

99_{Certain Phosphate Lands in Nauru (Nauru v Australia), Preliminary Objections, lCl Report 1992, p240} 100_{Corten, p329.}

G Nolte and H Aust, ‘Equivocal Helpers : Complicit States, Mixed Messages and International Law’ (2009) 58 International and Comparative Law Quarterly, p10 (further: Nolte)

ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Judgment, ICJ Reports 2007, para421

101_{S. Haringa, assignment number 2 on due diligence and complicity, for the course of International}

Responsibilty, UvA, 2016 and Corten p330 and Nolte p13 and S Talmon, ‘A Plurality of Responsible Actors: International Responsibility for Acts of the Coalition Provisional Authority in Iraq’ p39

102_{Zembla episode on Dutch television; de Vergeten Kinderen, available at:}

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26 to the Nauru Regional Processing Centre103. Amnesty International’s submission contained serious allegations of systematic human right breaches of refugees, which even amount to torture.104According to the organisation, the government of Australia has control over the Centre and is therefore responsible for the violations. In response to these allegations Australia admitted that it works in collaboration with the Government of Nauru ‘on long-term capacity-building initiatives by providing practical and financial assistance’ and will continue to do so to ensure the refugees have access to education.105 In the area of education, the Government of Australia delivers specialised settlement services. A list of services the Australian Government supports has been given, such as financial support in order to hire a guidance counsellor and four counsellors, provide school uniforms and facilities. Is has provided the school with 11 Australian teachers and has set up a range of programmes and activities. These developments show that Australia is extremely involved in the education system at Nauru, even though the school is local. Furthermore, Nauru is a phosphate rock island which has exhausted its phosphate reserves in the end of the 1900’s. Ever since it has been financially struggling and has resorted to ‘selling its sovereignty’106

. Nauru is seen as a client state of Australia as it is dependent on the State on several levels. Australia is Nauru’s main development aid donor; is providing Nauru with skilled personnel in the public sphere; legal personnel is often outsourced; and the Nauruan Police Force is under the management of Australia. That being said, it is not unimaginable that Australia has directed and controlled Nauru into the discrimination in the right to education, and possibly even other violations of children’s rights which can be attributed to Australia on the basis of article 17 ARSIWA. As the requirements for article 17 are equivalent to that of article 16, elaboration on this is not necessary. Assuming these are the facts of the case, attribution to Australia could be established through direction and control.

2.3 Conclusion

The breach of an international obligation should be followed by responsibility. Australia’s responsibility is established as it has such a high level of control of Australia over the RPC is that Australia’s jurisdiction reaches beyond its territory. Moreover, attribution to the State can be based on several articles of State Responsibility.

103_{and any like allegations in relation to the Manus Regional Processing Centre} 104_{Treasure Island, p11}

105

Island of Despair, p3

106_{D. Orlow, Comment: Of Nations Small: The Small State in International Law, 9 Temple International and}