The protection of asylum seekers in Australian-pacific offshore processing: The legal deficit of human rights in a nodal reality

Abstract

Under Australia's current border control policy, called 'Operation Sovereign Borders', migrants arriving irregularly by boat are transferred to offshore processing centres in Nauru and Papua New Guinea. On the basis of their poor human rights record, such centres are often criticized with reference to international human rights law. By conceptualizing the Australian-Nauruan arrangement as one of nodal governance, this article examines whether international human rights law constitutes an appropriate instrument to hold the involved actors responsible and accountable. The analysis of jurisdiction and attribution shows that it is difficult to establish responsibility on behalf of one of the involved actors. Yet even if responsibility can be allocated, proper human rights accountability is still impeded given the weak monitoring system and the nontransparent processing facilities. Establishing de jure responsibility in this context is thus extremely difficult but, even if one succeeds, accountability is not sufficiently effectuated de facto. The article concludes by questioning the actual legal value of human rights in nodal settings and by providing recommendations for further (extralegal) analysis.