Human Rights and the Pacific Solution Mark II

By Benjamin Pynt

By Benjamin Pynt. This article is part of our December 2012 and January 2013 focus on Asylum Seekers.


Under the offshore processing regime, better known as the Pacific Solution Mark II (PSII), some asylum seekers are transferred to Nauru and Manus Island, where they face problems such as endemic antibody-resistant malaria, unsafe drinking water and inadequate sanitation facilities. Environmental hazards such as these mean Nauru and Manus Island are not suitable to house asylum seekers for any length of time, let alone for the five-year terms slated by the government under its “no advantage” rule.

The dehumanising and degrading effect of these policies make the government’s policy decisions easier to justify; when asylum seekers are seen to be “less deserving” of the Australian lifestyle (i.e. criminalised and sent to jail), there is less of a chance Australians will protest if their human rights are left unprotected. This article explores the relationship between the dehumanisation of asylum seekers at Regional Processing Centres (RPCs) and environmental and institutional threats to their lives and long-term health. It is imperative to remove asylum seekers from such a perilous situation as soon as possible.

Responsibility for asylum seekers at Regional Processing Centres

Australia has obligations to respect, protect and fulfill the rights to water and the highest attainable standard of health for all those under its effective control, no matter where they happen to be or how they got there.

Australia is responsible for the human rights consequences of its actions. Australia’s responsibility to protect asylum seekers comes from two main sources:

  1. Australia’s legal responsibility for asylum seekers occurs at first contact, meaning that we have a responsibility to ensure safety and human dignity starts as soon as an Australian official, acting in an official capacity, comes into contact with a person who claims asylum. Despite this, the government continues its attempts to shirk its duties to assess refugee status. For “unauthorised maritime arrivals” (or “boat people”), this almost invariably happens when their boat is intercepted by the Navy. The United Nations High Commissioner for Refugees (UNHCR) wrote letters to Immigration Minister Chris Bowen to remind him of these responsibilities in September and October 2012, and reiterated its opinion in a formal report in December. The High Court has, on numerous occasions, signaled that it also agrees with this view.
  2. Australia’s human rights obligations include a core duty to avoid causing harm anywhere. Australia must respect economic, social and cultural rights extraterritorially where it is in a position to “exercise decisive influence” or “take measures to realise” those rights. Removing asylum seekers from mainland Australia where they have access to fundamental human rights, to a country where they do not, violates the duty to avoid causing harm. 

Core standards

Minimum standards are required to maintain human dignity in humanitarian situations, and these are clearly set out in the Sphere Project Handbook. Sphere standards outline the provision of access to adequate, safe drinking water and sanitation; healthcare facilities; and shelter specifications. Compliance with Sphere standards is not indicative of full compliance with human rights obligations; however, the standards can be used as a baseline test for the protection of and respect for the fundamental determinants of human rights.

“A violation of human rights” doesn’t quite seem to cover the demeaning and dehumanising circumstances

Sphere standards are used in refugee camp planning across the world, including the Dadaab camps in Kenya that together accommodate over 450,000 refugees from across Africa. Under the government’s “no advantage” rule, it is logical to infer that PSII transferees’ human rights should be protected according to international minimum standards, to put them in the same situation as the government’s hypothetical “standard refugee”.

The right to health

The right to the “highest attainable standard of health” is protected by article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). States must use all available resources to protect, respect and fulfill the right to health without discrimination of any kind. A grave violation of the right to health can amount to cruel, inhuman or degrading treatment, known in international law as torture.

The ICESCR requires states to respect, protect and fulfill the right to health. Respecting the right includes refraining from doing anything that reduces access to health services and products. Protecting the right includes taking actions to prevent anyone or anything from causing health problems. Finally, states have to fulfill the right to the maximum extent of their available resources. All of these responsibilities must be undertaken without discrimination of any kind.

Physical health

Tent accommodations at Regional Processing Centres (RPCs) are a significant threat to asylum seeker health. Army tents that are unsuitable to tropical conditions are reportedly being used to house up to 14 detainees each, two more than capacity. Overcrowding can quickly lead to health problems, particularly when combined with poor adaptation to the environment. Amnesty International’s visit to Nauru in November 2012 revealed that the tents themselves, which are reportedly sodden, hot and cramped, have led to skin irritations and are contributing to poor health conditions.

Malaria is endemic to Manus Island, with 94 per cent of the local population infected and transmission described as “intense” by the World Health Organization (WHO). 80 per cent of the population have an antibody-resistant strain of malaria caused by Plasmodium falciparum. Quite simply, removing any group – let alone a vulnerable subset such as asylum seekers – from a place where they are unlikely to contract a harmful illness to a place where they are almost guaranteed to contract it is a cruel, inhumane and unlawful move. This is particularly clear given a lack of infection control measures in place; transferees are currently sleeping in tents with no air conditioning and as a result they are vulnerable to infectious mosquitoes.

The only lawful (and responsible) course of action is to bring RPC asylum seekers home to Australia.

Mental health

Arbitrary and indefinite detention is a well-established cause of mental illness and trauma, and is strictly forbidden under international law. Numerous non-government organisations, along with the UNHCR, UN Working Group on Arbitrary Detention, Australian Human Rights Commission and even Parliamentary Inquiries have confirmed that immigration detention is arbitrary and indefinite, and all have recognised its negative mental health impact. Importantly, they note collective depressive syndrome – a common consequence of indefinite detention – and recent high instances of attempted suicide and hunger strikes (10 and 25 respectively in one week alone in Nauru). Earlier this year, the Australian Human Rights Commission described immigration detention mental health services as “entirely inadequate”.

Asylum seekers detained under PSII don’t know how long they will be held in detention, and have no ability to appeal the decision to detain them. Not only does this violate international law, it goes against the very essence of our legal system and Australian core values of egalitarianism and “a fair go”. Stripping asylum seekers of their fundamental right to appeal their detention means they are taken to be guilty without the ability to prove themselves otherwise. Under new provisions of the Migration Act, asylum seekers won’t even be told why any of this is taking place. This treatment is cruel and inhuman punishment for the act of seeking asylum, and such treatment can have significant long-term implications.

The right to safe water

The right to adequate, safe water exists as a fundamental precondition to the rights to health and an adequate standard of living. Articles 11 and 12 of the ICESCR are the legal embodiment of these rights. The Committee governing the ICESCR has explained that a responsible government has obligations to ensure adequate supply of safe water and protect water supplies from interference and contamination. Moreover, these obligations must be carried out without discrimination of any kind, and governments must provide justification for any measure that threatens a group’s access to adequate, safe water.

Sufficient water for drinking

Sphere standards set a baseline of 1.5-3L of drinking water, and 3-6L for sanitation per person per day. The WHO and UNHCR water guidelines set an absolute minimum of 7.5L per day with an optimal minimum of 15L, and provision for further allowances made for climate and cultural practices. In tropical Nauru, temperatures regularly soar to 40 degrees and humidity is consistently oppressive.

Seven litres of water per day would fill just under three-quarters of a standard watering can. The Australian water-saving “gold standard” shower-head uses 5.5L per minute, which would leave a person with just 2L for hand washing and personal hygiene for the rest of the day after a mere one minute shower under UNHCR standards. This benchmark hardly comes close to requirements in the Australian Water Guidelines, and is hard to reconcile with a typical Australian’s water usage.

Water for sanitation

Sphere establishes two fundamental human waste (excreta) disposal standards that are necessary to protect life and dignity: an environment free from fecal contaminants, and appropriate and adequate sanitation facilities. This includes provision of water for hand washing, which, with soap and water, can reduce diarrheal disease by 40 per cent. Under the Australian Building Act 2011, constructing or maintaining a building with inadequate sanitation facilities can result in a fine of up to $100,000 and jail time. Needless to say, the Australian concept of adequacy is markedly different to the standard required in the humanitarian context.

9am-5pm water curfews during the first Pacific Solution left asylum seekers thirsty and unable to control their personal hygiene adequately, with toilets unable to be flushed and “pretty gross” for long periods. Recent reports reveal the situation has barely changed in the past decade; Nauru is still described as being “chronically short of clean water”, with “tainted groundwater” so heavily contaminated Nauru has double the diarrhea rate of other Pacific nations. Nauru has no building code, which is contributing to water contamination by failing to regulate cesspit systems that, without proper lining, leach bacteria into the water table.

The whole Nauruan water table is infested with fecal matter and e-coli bacteria, so the island is heavily reliant on diesel-powered desalination units to provide safe drinking water. Of Nauru’s 1000 rainwater tanks, about a quarter need repair or replacement. There is currently very little reserve water available in case of drought, natural disaster or lack of fuel due to an extended port closure.

Nauru RPC facilities fall short of international water and sanitation standards. For asylum seekers this means there isn’t always enough water to drink, even less for hand washing, and the toilets don’t always flush. “A violation of human rights” doesn’t quite seem to cover the demeaning and dehumanising circumstances.

Freedom from Discrimination

Less-than-standard access to healthcare and water for a particular social group is a violation of the obligation to fulfill human rights without discrimination. Putting that group into a situation where their lives and dignity are inherently under threat is discriminatory treatment. Considering that asylum seekers are particularly vulnerable, it is necessary to make “reasonable accommodations” to ensure they face no greater threats than others.

A lack of drinkable water for everyday use and significant environmental health threats combined with a severe inadequacy of healthcare services is unacceptable treatment for any person, and asylum seekers in particular.

With over 7000 people claiming asylum since the PSII’s introduction, immigration detention facilities are overcrowded and some new arrivals have already been transferred into community detention in communities all around Australia. Subjecting RPC asylum seekers to oppressive conditions whilst granting others community orders is clearly discriminatory, violating Refugee Convention, ICESCR and other treaty prohibitions.


The government has stated that the goal of the PSII is to deter people smuggling and prevent more dangerous boat journeys to Australia. However, the policy punishes RPC asylum seekers with inhumane, undignified and inhumane living conditions while smugglers are kept in Australian jails. The only lawful (and responsible) course of action is to bring RPC asylum seekers home to Australia. Although this may not fix problems inherent in our onshore immigration detention network, it is the only way to deal with immediate threats to asylum seekers such as inadequate water, endemic communicable disease, and the evils of discrimination.

Benjamin Pynt is Director of Human Rights Advocacy, Humanitarian Research Partners.