Seeking Asylum isn't Illegal but Australia's Border Policy May Be

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The Australian government’s tough asylum seeker policy, particularly the forcing of boats back to Indonesia, has had everyone talking; everyone except the Australian government that is. However, last week Immigration Minister Scott Morrison broke from his long-running tactic of not commenting to media and actively defended the Government’s Operation Sovereign Borders policy. He told The Australian newspaper, “This government reserves the right to protect Australia's sovereignty by preventing any vessel illegally entering our territorial waters," and continued "In these circumstances, it is the policy and practice of this government to intercept any such vessel and, where safe to do so, remove it outside Australia's territorial waters and beyond our contiguous zone".

But while the government continues to manipulate the discourse by incorrectly referring to the arrival of asylum seeker boats as illegal, human rights organisations and the legal community have questioned whether it is the Australian government who are in fact breaking a number of international laws.

The Australian government’s policy of turning back boats is currently under investigation from the UN’s refugee agency UNHCR to examine whether it’s in breach of the 1951 UN Refugee Convention. The convention defines the term refugee as well as outlines the rights of refugees and responsibilities of the countries that signed on to the Convention. By turning boats away from Australia without first assessing the refugee claims of those on board Australia risks breaching the agreement.

A factsheet released by the University of New South Wales Kaldor Centre for International Refugee Law specifically warns that Australia is vulnerable of breaching the section of the Convention relating to non-refoulment. Non-refoulment highlights Australia’s responsibility not to return people to countries where they might face persecution. Currently Indonesia is not a signatory to the Refugee Convention, and refugees are treated as illegal migrants making them liable to detention and deportation. Meaning asylum seekers could be sent back to their origin country and risk facing the persecution they originally fled.

Daniel Webb, the Director of Legal Advocacy at the Human Rights Law Centre, says defying international laws results in consequences mostly for Australia’s international reputation “[It’s] important for our reputation on the world stage. We need to be regarded as a nation of integrity—a nation that stays true to the promises we make. It takes a long time to develop a strong international reputation but a short time to trash it”.

“Turn backs are a cynical way of trying to dodge our legal and moral obligations to refugees. Boat turn backs show that we’re not keeping our promise to protect under the Refugee Convention. Instead, we’re just trying to stop anyone from getting here and relying on it.”

Maritime law experts are also concerned about the legality of Operation Sovereign Borders. Australia has obligations at sea since ratifying the UN Convention on Law of the Sea, the international treaty that defines the rights and responsibilities of nations using the world’s oceans.  Under the Convention vessels at sea are subject to the exclusive jurisdiction of their country of registration, also known as their ‘flag state’. With most asylum seeker boats originating from Indonesia, Australia has no right to board these ships except in limited situations, mostly relating to piracy and rescue operations. Although Australia is permitted to exercise necessary control to enforce its immigration policies within the contiguous zone, the response must be proportional. There is support for the warning and inspection of vessels in the contiguous zone surrounding Australia, but many question whether forcibly removing boats would be a proportional response.

If Indonesia wanted to, it would be within its rights to take Australia to the International Court of Justice over the matter. Although, as yet Indonesia has not indicated that they are considering a case. Interestingly, Australia is no stranger to the International Court of Justice in relation to maritime issues, as it’s currently pursuing a case against Japan for whaling offences. Highlighting other nation’s human rights violations has never been an issue for Australia either, with concerns previously raised at the UN over violations in countries like Sri Lanka, Afghanistan, and Iraq.

By turning back asylum seeker boats to Indonesia Australia is ignoring its responsibilities and eroding a system it’s previously relied on and advocated for. So which is it Australia? Are you in, or are you out?

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