Thursday, February 13, 2014

Chinese Navy to Join Operation Sovereign Borders?

Greetings from the Australian National University in Canberra, where Professor Donald R Rothwell, Penelope Mathew, Clive Williams and David Letts are speaking on "Operation Sovereign Borders: Charting the legal issues". The Operation Sovereign Borders (OSB) tasks the Australian Defence Force and civilian agencies to prevent asylum seekers arriving by boat in Australia. Media reports indicate that a Chinese flotilla (two destroyers and a landing ship) is conducting an exercise in the waters to the north of Australia, in international waters near Indonesia. Perhaps the People's Liberation Army Navy (PLAN) are intending to assist with Operation Sovereign Borders and the Australian government has negotiated the "Beijing Solution"? ;-)

More seriously,  Professor Williams provided a brief history of OSB, concluding that it seemed to be effective, but it may be simply that there are fewer vessels at present due to the time of year.

Professor Rothwell outlined the Law of the Sea. He said Australia is entitled to stop and remove ships in territorial waters carrying people arriving contrary to the migration act. But he said it was not clear if this applied in Australian and Indonesian economic zones. It may be that as the people smuggling boats are not properly registered they may able to be stopped, but not returned to Indonesia, without Indonesia's approval. Australian naval vessels can legally enter Indonesian waters for "innocent passage" but not towing a people smuggling vessel. Professor Rothwell then discussed if the lifeboats which OSB is apparently forcing people into are seaworthy. He said Australia has "considerable" responsibility if there is an incident with a lifeboat.

Professor Mathew discussed the rights of refugees and the rights of Australians to know what is happening. She asserted that under Article 33 of the UN Refugee Convention, Australia cannot turn away a person at the border who is seeking asylum, with some form of hearing. Professor Mathew questioned if a lifeboat was a "place of safety" and if therefore Australia was acting lawfully by forcing asylum seekers into them. She also said Australia was bound to conduct an investigation into allegations that RAN personnel mistreated asylum seekers. Professor Mathew argued that the Australian people had the right to know what was happening with OSB.She gave the example of the symbolism of the German parliament building which has a glass roof, whereas the Australian parliament has a grass roof.More serious, she argued that there has to be a good reason for limiting information access.

Professor Letts said that OSB was clearly not an operation carried out during wartime. Loose talk of "war on asylum seekers", "enemy" and "war footing" unhelpfully inflames the situation. OSB is conducted under directions from the Australian government. Article 110 & 111 of the Law of the Sea refer to actions taken against a vessel to have it stop or turn about. This allows the vessel to be fired upon. The people on the vessel may be asylum seekers or crew. Professor Letts said their is a right for Australia to comply arrivals to comply with directions. Professor Letts said that the Australian migration act allows government aircraft and ships to  use necessary and reasonable force, including firing on the ship to stop and board it.


Thursday, 13 February 2014 - 5:30pm - 7:00pm

Venue: The Australian National University Speaker:
Donald R Rothwell Professor of International Law and Head of School, ANU College of Law
Penelope Mathew Freilich Foundation Professor, ANU
Clive Williams Adjunct Professor, Centre for Military & Security Law, ANU
David Letts Associate Professor and Co-Director, Centre for Military & Security Law, ANU
The Centre for Military & Security Law will host an open forum to examine some of the key legal issues that have arisen so far under Operation Sovereign Borders.
This Forum will provide an opportunity to understand and discuss key legal issues including sovereignty (Australian and Indonesian), law of the sea, refugee/human rights law, and the law that governs the use of force in border protection operations. These issues have arisen as a result of the Federal Government’s decision, after winning the election last year, to establish Operation Sovereign Borders which is a “military-led, border security operation supported and assisted by a wide range of federal government agencies”. Shortly after Operation Sovereign Borders commenced on 18 September 2013, the Minister for Immigration and Border Protection stated: “… those seeking to come on boats will not be getting what they have come for. They will be met by a broad chain of measures end to end that are designed to deter, to disrupt, to prevent their entry from Australia and certainly to ensure that they are not settled in Australia”.
Legal experts associated with the Centre for Military & Security Law, Professor Donald R. Rothwell, Professor Penelope Mathew, Adjunct Professor Clive Williams and Associate Professor David Letts, will lead the discussion for this open forum in an attempt to navigate through the legal complexities that have arisen under Operation Sovereign Borders.

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