Below are the public comments delivered by Kaldor Centre Senior Research Fellow Madeline Gleeson at the day of general discussion on the draft General Comment of the Subcommittee on Prevention of Torture on Article 4 of the Optional Protocol to the Convention against Torture in Geneva on 8 June 2023.
Distinguished Subcommittee members,
Thank you for the opportunity to address you today.
Our primary concern relates to the definition of ‘jurisdiction’. The scope of a State’s jurisdiction, and thus its obligations under international human rights law, is subject to much debate, especially in the context of extraterritorial migration controls.
To avoid any risk of confusion, we suggest that the Subcommittee repeat verbatim the definition of ‘jurisdiction’ previously affirmed by the Committee against Torture, omitting the words ‘legal competence’ from paragraph 26.
Apart from that, we endorse the Subcommittee’s definition, which is otherwise consistent with that of other treaty bodies.
We note that the Australian government disagrees with various aspects of the Subcommittee’s definition of ‘jurisdiction’. We believe those views to be ill-founded, and prefer the Subcommittee’s formulation.
We also note that Australia asserts that ‘a very high degree of control is required for the extraterritorial application of international human rights law obligations’. The Committee against Torture cautioned Australia against adding the qualifier of ‘a very high degree’ back in 2014, but Australia maintains this stance, possibly as an attempt to avoid the true scope of its obligations with respect to offshore processing and maritime interception of asylum seekers.
Finally, our submission also requests that the Subcommittee consider providing further guidance about situations of deprivation of liberty at sea in the context of migration maritime interception, and situations where States enter into arrangements with other States or non-State actors to ‘outsource’ detention as a way to avoid engaging their obligations under the Optional Protocol.
Photo credit: UN Photo/Loey Felipe