As an Australian citizen living abroad a depressing feature of current electoral politics at home has been the race to the bottom on policy for asylum-seekers arriving by boat to Australia. The reasons for which the new policy of summarily deporting all boat arrivals to Papua New Guinea for refugee processing and resettlement are contrary to Australia’s international obligations have been ably articulated by Ben Saul and others.
However, an allied issue in the boat people debate has been the feasibility of “stopping the boats” at sea. The leader of the Coalition opposition, Mr Tony Abbott, has claimed “it’s standard naval practice to intercept and turn around boats on the high seas,” and Coalition policy has also reportedly “annoyed Indonesia by insisting Jakarta is open to talking on turning back boats when it most definitely is not”. Nonetheless, Mr Abbot has suggested that the “US Coast Guard has been turning boats around in the Caribbean for years” and that this points to maritime interception as a viable policy option.
So does US Coast Guard migrant interdiction provide a model Australia could adopt? In my view: no. The US Coast Guard does intercept thousands of migrants at sea every year from Cuba, Haiti and the Dominican Republic, but only under a very different operational and legal framework to that being proposed in Australia.
The three most important differences are: (1) the US Coast Guard does not turn back or tow back boats, it operates by removing migrants from their boats onto Coast Guard vessels; (2) it only returns interdicted migrants to their country of departure under bilateral agreements or with case-by-case consent; and (3) the US takes the view it is not strictly bound by its refugee protection obligations when it intercepts persons at sea (though it may chose to apply them).
First, the Coast Guard always removes interdicted migrants from their boats. The usual justification for this practice is simply that is save lives. Indeed, there is a duty under the law of the sea to rescue persons in distress at sea (Article 98, UNCLOS). Once migrants are rescued the question is, obviously, what to do with them.
The US has concluded agreements governing the return migrants to various countries over time and those countries sometimes impose conditions. For example, under the terms of its 1981-1994 agreement with Haiti the US had to agree to the presence (if requested) of a Haitian naval officer aboard vessels engaged in intercepting Haitian migrants. (Since 1994 returning migrants to Haiti requires case-by-case authorisation.) Agreements concluded on migrant return with Cuba in 1994 and 1995 were contingent on the US guaranteeing expanded opportunities for Cubans to migrate legally to the US. Under these agreements with Cuba, the US has achieved great success in preventing ‘rafters’ attempting to make the crossing to Florida; however, this has resulted in more crossings being made at night in overcrowded and unlit speedboats operated by people smugglers. Under the US-Dominican Republic agreement of 2003 the US has the right to intercept migrant boats leaving the Dominican Republic and the Dominican Republic agrees to facilitate their return. To the extent the US Coast Guard has a safe and effective policy of migrant interception and return, it is reliant on the cooperation of the country from which the migrants departed – preferably negotiated in advance and in writing. (See Chapter 8 of my book; I’ve checked, all the agreements cited remain in force.)
Compelling boats to return to their point of origin without such an agreement in place with their flag State would violate the Law of the Sea Convention. Other than cases such as slave trading and piracy, interference with the freedom of navigation of foreign vessels outside the territorial sea can only occur under treaty arrangements (Article 110, UNCLOS) or with case-by-case authorisation from the flag State.
The US approach is, perhaps, further facilitated by the fact it does not consider itself bound by the 1951 Refugee Convention when operating at sea (Sale v Haitian Centres Council). While it may conduct refugee screenings in such cases, that has not been its invariable policy. The US approach is thus open to the challenge that it may result in breaches of the Refugee Convention if it results in migrants being involuntarily returned to a place where they have a well-founded fear of persecution.
Indeed, one difficulty for Australia in adopting the US model would be that it has traditionally (and correctly) taken the view that once persons with asylum claims are removed onto an Australian government vessel, processing refugee claims become Australia’s responsibility. (E.g. the HMAS Swan incident of 1980 as detailed by R.P. Schaffer).
Nonetheless, the US has largely treated migrant interdiction as a question of rescuing people from unsafe boats and returning them to neighbouring States under previously negotiated agreements. It is certainly not a model of unilateral turn-backs or tow-backs.
Finally, one should note that such maritime operations are always fraught with hazard. Previous Australian efforts to tow vessels back to Indonesian waters, and not disembark those aboard so long as the craft involved remained even marginally seaworthy, resulted in loss of two lives in the SIEV-10 incident (see the SIEV-X report, pp.27-28).