Could Australia Follow a US Lead on Maritime Interdiction of Migrants?

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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).

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    Rosemary Oetojo says

    August 19, 2013

    I too an am Australian living abroad. In a previous life I taught international law, and, like Douglas Guilfoyle, am aghast at the current desire by both the Australian Labor Party and the Liberal Party to use asylum-seekers as a political tool, thus displaying absolute contempt for Australia's obligations at international law. I am referring to the policy of deporting asylum-seekers who arrive by boat. Ben Saul, alluded to in Douglas Guilfoyle's comments, has highlighted major legal problems for Australia under the United Nations Convention relating to the Status of Refugees, for example: "Australia is likely to violate its obligation under Article 31 of the refugee convention not to penalise an asylum seeker on account of his or her “illegal” mode of entry to Australia. Only asylum seekers arriving by boat, not plane, will go to PNG. The former are thus subject to unjustified adverse differential treatment, partly because the government wishes to “deter” further arrivals." This is but one example of potential breaches.
    The UNHCR has warned Australia that the policy described above, will place Australia in breach of its legal obligations. “A recent UNHCR report on the facilities at Manus Island shows both Australia and PNG bear separate legal responsibility for their respective contributions in formulating and implementing the illegal detention regime.”(Ben Saul) Sadly however, there will be little heed paid to the UNHCR's warning(s) by policy makers. Adrienne Millbank, a researcher at Monash University, writing in The Australian newspaper on May 3 2013 stated: “We may have reached the point where the country's legal obligations need to be brought into line with public expectations that the government will control the borders and that migration will be managed. It is time to rethink dubious international obligations and to argue Australia's case. Australia should require asylum-seekers wanting to settle in this country to apply for a refugee or humanitarian visa offshore, through our overseas posts or the UNHCR”. Regrettably, this is the kind of rhetoric that feeds into the national psyche, seized upon by our politicians and policy makers.
    Regarding US Coast Guard policy vis-a-vis migrant interdiction, suffice to say I concur with Douglas Guilfoyle's conclusion that US Coast Guard policy is enacted on the basis of rescuing people, who are returned to their countries of origin under previously negotiated agreements,(from unsafe vessels). By asserting that the US Coast Guard is engaged in 'turning boats around in the Caribbean', indicating that this could be a viable policy for Australia, the would-be-prime-minister Tony Abbott is either ignoring the facts or, is woefully uninformed. Either way, this is not conducive to good governance.
    In an ideal world, being cognisant of legal obligations under the various conventions such as the United Nations Convention relating to the Status of Refugees is an absolute. Alas, an ideal world it is not, hence this writer is anticipating post-election legal challenges to the effectiveness of refugee protection in PNG, that could potentially redress the current appalling state of Australian defiance in the face of treaty obligations.

    Rosemary Oetojo says

    August 19, 2013

    A post script to my previous response to Douglas Guilfoyle's comments.
    The Australian Attorney-General Mark Dreyfus says a Federal Court challenge has been filed against the Government's plan to send asylum seekers to Papua New Guinea.
    From ABC online, Monday 19th August 2013.

    Nigel says

    August 21, 2013

    Thank you for this piece.

    If I may make one observation, it would appear that the Refugee Convention does not apply extra-territorially. Hence, it does not seem that the US interception operations were in violation of their non-refoulement obligations under the Refugee Convention. This was reflected in House of Lords' ruling in the European Roma Rights case, where the Court referred to Nehemiah Robinson's commentary to the Convention, in which he stated "Article 33 [which enshrines the non-refoulement obligation] concerns refugees who have gained entry into the territory of a contracting state, legally or illegally, but not to refugees who seek entrance into this territory" (¶ 17). The US Supreme Court referred to his commentary as well (fn 40). In fact, the Australian High Court reached a similar conclusion when it stated in the Khawar case that "the protection obligations imposed by the Convention upon Contracting States concern the status and civil rights to be afforded to refugees who are within Contracting States" (¶ 42).

    Douglas Guilfoyle says

    August 22, 2013

    Nigel, thank you for your thoughtful and considered comment. Certainly, the view that the refugee convention does not apply extraterritorially has judicial support. It is, however, a view which I do not think is sustainable either on legal policy grounds. First, article 33.1 of the Convention stipulates that states shall not expel or return a refugee "in *any manner whatsoever* to the frontiers of territories where his life or freedom would be threatened". That plain language has broad application. A number of judges in the cases you cite bolster their reasoning by taking the erroneous view that a refugee must have arrived in another country before they have any status under the Convention (e.g. Khawar per McHugh and Gummow JJ and Roma Rights [2005] 1 All ER 257 at 542-3, 551). However, the Convention only requires a refugee be outside their country of nationality. Finally, it seems to me that such an interpretation incentivises push back operations in a manner contrary to the object and purpose of the Convention. It is a point on which reasonable minds may differ, however. Hence my statement that it is an interpretation of the law which is open to challenge (in the sense of reasoned criticism).

    Alicia says

    August 22, 2013

    As a comment my previous commentator, I would like to add that the Refugee Convention might as well apply "extra-territorially" in the sense that migrants intercepted at sea and not only to those successfully crossing borders at land do fall under its protection. This is the case once the migrants enter territorial waters of a contracting state or maybe even its contigious zone and are intercepted. In addition, the Convention would also apply once a contracting state takes migrants onto its own boats on the high seas. The migrants are then subject to the contracting state's jurisdiction and hence have to be granted their rights under the Refugee Convention. This is the same rationale as the one applied by the ECHR in its Hirsi v Italy judgment of 23 February 2013.

    Marko Milanovic says

    March 10, 2014

    Further to Douglas Guilfoyle’s article,”Could Australia Follow a US Lead on Maritime Interdiction of Migrants?”, the Abbott-led government has put into practice since December 2014 a policy twist of the US model. Evidence (such as interviews, photos) reported in the public domain indicated that interdictions by the navy inside Australia’s contiguous zone (CZ) resulted in asylum-seekers being removed from their leaky ex-fishing boats and put into SOLAS-ready “places of safety” namely shiny new bright orange super-sized unsinkable lifeboats purchased for this task by the Australia Customs/Border Protection Command from Singapore/China. These (presumably non-flagged/non-registered)lifeboats are then towed by Border Protection Commmand vessels to the edge of Indonesian Territorial Waters (12 nautical miles offshore) and reportedly then are cut loose with just enough fuel, water, food to last a few hours it takes to reach the shores of Java. The legal basis appears to be as follows: 1/ Jurisdiction. Australia has ‘control’ over migration matters inside its CZ. 2/ Enforcement. Australian domestic law, the newly assented Maritime Powers Act 2013, gives maritime officers extensive coercive powers including powers over vessels – flagged or otherwise – outside Australia. Additionally, it is thought but rarely tested judicially, that the Executive Prerogative Powers of the Government – especially as regards ‘aliens’ and ‘sovereignty’ – is not replaced by domestic statute law. 3/ Norm of non-refoulement. Australia like USA has apparently placed extra-territorial constraints on the norm of non-refoulement. Nor does international law or convention even when ratified by Australia enter into domestic statute law unless expressly incorporated. For example, the Law of Sea Convention and Refugee Convention do not get any mention in the Maritime Powers Act. So it is very difficult to challenge the Act on the basis of international law.