ASYLUM SEEKERS: THE RIGHT TO HUMANE LIVING CONDITIONS

February 2014

This article is about the right to humane living conditions for asylum seekers. The case of Australia is only used as an example to explain what this right involves. It can apply to any other state.

For nearly a year now Australia has used “mandatory offshore processing” for asylum seekers. Asylum seekers trying to reach Australia by boat are transferred to offshore locations, among them camps in the Republic of Nauru and on Manus Island which is part of Papua New Guinea. An article in the Guardian Weekly[1] describes the grim conditions in these camps that were revealed because two teenage boys ended up in the adult camp by mistake. The Australian Government regards the harsh conditions “as a necessary deterrent to asylum seekers”.[2] At the same time the Government claims that Australia meets its international and humanitarian obligations. This raises some questions with regard to the actual realisation of a right to humane living conditions for asylum seekers.

The Australian Government knows it has to fulfil certain international and humanitarian obligations, otherwise it would not claim that it meets them. Reports by the United Nations Refugee Agency[3] however show that this organisation thinks there are some problems here. The regional office of the UNHCR undertook monitoring visits to both Manus Island (23 to 25 October 2013) and Nauru (7 to 9 October 2013) to “assess the progress in (…) implementing (the) commitments under the 1951 Refugee Convention” and to “review the reception conditions”.[4] The reports on both visits conclude that the policies, the operational approaches and the conditions at the camps do not comply with international standards because, among other things, they “constitute arbitrary and mandatory detention under international law” and “do not provide safe and humane conditions of treatment in detention”.

Australia may have good reasons for wanting to deter asylum seekers, but as the UNHCR’s Director of International Protection made clear: “When policies and practices are based primarily on deterrence, they can have harmful and, at times, punishing consequences for people affected”.[5] Creating harsh conditions to deter asylum seekers can easily result in insufficient compliance with international humanitarian obligations, even when it is not intended to breach those obligations.

In 1999 the UNHCR issued guidelines containing criteria relating to detention of asylum seekers.[6] They are based on the 1951 Convention Relating to the Status of Refugees. The general principle is that asylum seekers should not be detained. To ask for asylum is a basic human right[7] and often asylum seekers will be forced to arrive illegally. Only in exceptional situations the freedom of movement can be restricted, for instance to protect national security. Detention “as part of a policy to deter future asylum-seekers, or to dissuade those who have commenced their claims from pursuing them, is contrary to the norms of refugee law”.[8] Also the Guidelines state that if asylum seekers are detained then there are criteria for the conditions, which should be “humane with respect shown for the inherent dignity of the person”.[9] Some points with regard to the conditions in detention are emphasised in particular. Among these are the following rules:

• They should be detained separately from convicted criminals or prisoners on remand.
• They are entitled to appropriate medical treatment, physical exercise, education and exercising their religion.
• Access to basic necessities has to be provided. Beds, showers and toiletries are mentioned explicitly but we must assume the guideline also includes food, clothing etcetera.

The UNHCR rules may be guidelines only that as such are not legally binding, yet they have authoritative value, coming from a body with the power to interpret the provisions of a binding treaty, the Refugee Convention. Also they fit in with other provisions of international law that are binding. There are human rights treaties that contain provisions that are relevant here. Most important in this respect is the International Covenant on Economic, Social and Cultural Rights (ICESCR) of 1966. Australia is bound by this treaty.[10] Article 11 ICESCR says: “The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and the continuous improvement of living conditions.” This right has to be guaranteed for everyone in the territory and/or under the jurisdiction of the state involved.[11] Even if the asylum seekers are not in the territory of Australia, because they are detained in offshore camps, they still come under the jurisdiction of that state. Australia is imposing its laws and policies on them, therefore they have to abide by the rules of international law in doing so. If asylum seekers are detained in cramped conditions in camps where there are issues with hygiene, also in relation to food, with health care and with basic facilities in general[12] the right to an adequate standard of living is still a long way from being realised for them. The same goes for the right to health that is laid down in article 12 ICESCR.

Even though there is no clear single human rights provision explicitly referring to “a right to humane living conditions for asylum seekers”, the provisions described above as well as other similar provisions together form an implicit reference to such a right.