The Australian government’s policy of towing boats back to Indonesia could be a breach of Australia’s commitment to international law. Babar Baloch, the Press Representative for the United National Refugee Agency (UNHRC), recently stated that his organization is seeking to procure an official report from the Australian government over a multitude of asylum-seeking boats that were returned to the waters surrounding Indonesia. The Australian’s act of “towing” the boats, or “pushing” back asylum-seeking boats has been deemed very concerning by the UNHRC. This is seen as a breach of duty by Australia under the refugee convention and international law. Through various acts of diplomacy, the modern international community recognizes that when people are in need of international protection and seek the safety of another country, these people must be allowed to go through a procedure to determine if help is actually needed. Australia’s act of “towing” the boats back towards Indonesian territory without the proper discovery procedure dictated by international law is a questionable practice and fails to abide by this custom.
Currently, members of the Australian Government, including the immigration minister, Scott Morrison, refuse to comment on the reports that Australian Navy personnel and customs officials towed as many as five boats in the last few weeks. Australia has a history of questionable tactics protecting their boarders and shores. The relationship between Indonesia, the world’s largest archipelago nation, and Australia, has been colorful in the past. Morrison did state that boarder protection is an “issue of national sovereignty.” He further stressed Australia’s position by saying the “government is taking the steps necessary to protect our borders consistent with our domestic laws and international obligations.” However there might be ramifications for Australia due to these tactics in either the courts or international acts of diplomacy.
Do you think that Australia’s practices abide by international law? What ramifications should be sought for these actions? Will they be efficacious?
Source: UNHRC
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The question of whether Australia is abiding by its international obligations per the Refugee Convention probably turns on where Australia is intercepting the Indonesian ships. Article 33 of the Refugee Convention mandates that a State party to the Convention has a duty of non-refoulment––a duty not to return refugees to the place from which they are fleeing persecution. However, credible arguments have been made that Article 33 really only applies once the (potential) refugees enter the sovereign territory of a State party––meaning that it does not have extraterritorial effect. See Sale v. Haitian Centers Council, Inc., 509 U.S. 155 (1993).
Moreover, pursuant to customary international law, every nation has the right to prevent infringements of their immigration law by stopping ships that are believed to pose a reasonable risk within the Contiguous Zone. Therefore, if Australia is intercepting these boats before they enter Australian territorial waters, then it is likely that there is no clear violation of international law. Given the dissension among scholars and the disparate State practice on this issue, however, it is hard to tell one way or the other.
This is clearly a tactic used by Australia to avoid its responsibilities under customary international law, and it may in fact be an effective tactic. As Mr. Boussias explained, States (whether parties to the Refugee Convention or not) have a duty not to expel or return refugees who fear for their life or freedom if returned to their home State. International opinion, however, is split on when this duty arises. Some, including the SCOTUS would argue that the duty does not arise until they enter the territorial jurisdiction of the State. Since there is no clear international consensus, then there is likewise no binding customary international law. Under this approach, accepting refugees is merely a moral duty, but would not give rise to a legal duty. Others would say that the Refugee Convention itself forbids a State to return refugees, whether or not they have entered the State’s territory. Article 33 of the Convention states, in pertinent part, “No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened….” Given the uncertainty in the state of the law, I do not see Australia facing any international ramifications in the near future, although it would be interesting to see how the ICJ interprets Article 33.
I don’t think it really matters whether it is a violation of international law or not. First, what obligation does a sovereign nation have to asylum seekers if they don’t want them within their borders? All developed countries have laws based on the issue – although separate but not completely divorced – of immigration. Specifically, how many and what types of individuals are allowed within their borders and who can become permanent citizens. Moreover, how are countries supposed to know whether or not the asylum seekers are actually what they purport to be? Is there some litmus test for asylum seekers? I am not attempting to belittle the plight of the refugee, for by all means it is an important problem in an ever-changing global landscape. However, there seems to be: (1) a problem wit recognizing the validity of whether a refugee is who he or she purports to be; and (2) a problem with State Sovereignty and a State’s right to accept and keep out who they please.