Australia's extraterritorial human rights obligations

Abstract

This thesis considers Australia's extraterritorial international human rights law (IHRL) obligations.

The thesis acknowledges the dominant approach to considering extraterritorial human rights obligations is known as 'effective control'. The thesis accepts that 'effective control' may be the definition ascribed to 'jurisdiction' in the European Charter of Human Rights (ECHR). However, Australia is not a party to the ECHR, and there is no legal basis for ascribing the effective control test to determining the extraterritorial operation of Australia's IHRL obligations.

The thesis argues that, when determining Australia's extraterritorial IHRL obligations, it is necessary to: 1. Consider the relevant IHRL obligation to determine the jurisdiction nexus that gives rise to the obligation. The relevant nexus may be jurisdiction, state agent, territory or a residual nexus. 2. Assess whether the relevant nexus exists in the specific situation in which Australia is acting extraterritorially. 3. If the relevant nexus does exist, the extraterritorial IHRL obligation is owed, and consideration must be given to whether there are any additional (legal) matters that affect the scope/nature of the extraterritorial IHRL obligation. 4. Australia must then consider what it will do to fulfil the extraterritorial IHRL obligation.

The thesis considers the potential extraterritorial operation of the jus cogens, United Nations Convention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) and International Covenant on Civil and Political Rights (ICCPR) prohibitions of torture. The potential extraterritorial operation of the prohibitions are assessed through the application of fundamental principles of international law and by reference to state practice (including the use of case studies). The key conclusions from that analysis are brought together in a decision-making matrix that assists in establishing when extraterritorial IHRL obligations are owed. The matrix is then tested using the prohibition of arbitrary detention (in ICCPR) and the non-refoulement obligation (in UNCAT). The testing confirms the validity and adaptability of the matrix. Show more