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.
