By Maria O’Sullivan

This piece considers whether the opposition’s plan to “tow back” boats to Indonesia complies with international law.  On 17 July, our associate Azadeh Dastyari published this critique of the opposition’s claim that its plan is similar to the United States’ tow back policy.

For a number of years now, the debate about how to address the issue of asylum-seeker boat arrivals has been a highly politicised one. Recent tragic asylum-seeker deaths at sea and an upcoming Federal election have seen political representatives from both parties making strong statements. This week Minister for Home Affairs, Jason Clare, said the issue was being ‘poisoned by politics’ and Tony Abbott demanded parliament be recalled to debate the ‘national emergency’ of boat arrivals.

The ‘asylum-seeker issue’ in Australia is without doubt one that evokes strong opinions in the electorate, particularly in those marginal seats which will be pivotal in this year’s election. Both sides of politics have agreed on the need to find a ‘regional solution’ to the problem. However, the Government and the Opposition take quite different approaches to how best to formulate such a co-operative regional framework.

Controversially, a key plank of the Opposition’s immigration policy is to use the Australian Navy to intercept asylum seeker boats in international waters and ‘push’ them back the edge of Indonesian territorial waters.  Such actions will be carried out in the expectation that the vessels will then return to Indonesia as they are Indonesian-registered, and that Indonesia’s consent will not be required. Opposition leader Tony Abbott told ABC’s 7.30 report recently that ‘the facts are that these are Indonesian crewed, Indonesian flagged, Indonesian home-ported vessels that have a right to access Indonesia’. Shadow foreign affairs minister Julie Bishop made similar statements on ABC’s Q& A. Scott Morrison, Opposition Spokesperson on Immigration has also clearly stated that ‘the Coalition is not seeking the agreement of Indonesia’.

Although Indonesian officials have said they are open to talks to ‘better understand’ the Coalition’s asylum seeker policies, it is clear they are very reluctant to agree to the proposed ‘push backs’. This week, Indonesian foreign minister Marty Natalegawa clearly stated that ‘such a policy would constitute a unilateral type of measure that we do not support’.

The Opposition’s policy is therefore problematic on a number of levels. It fails to appreciate the legal complexities posed by interdictions at sea. It also does not adequately reflect Australia’s obligations under international maritime law, anti-smuggling protocols, and human rights law.

The first legal principle which is relevant is that vessels in international waters have freedom of navigation under the UN Convention on the Law of the Sea. No one single country has jurisdiction over international waters. Instead, each vessel carries the jurisdiction and protection of the country in which it is registered. This means that if an Indonesian boat is travelling in international waters, it cannot be boarded or otherwise interfered with by the Australian Navy unless it has the consent of Indonesia, or it can show due cause under international law.

Good cause can be demonstrated by evidence that the vessel is engaged in piracy or the slave trade under the Law of the Sea (unlikely to be shown in relation to asylum-seeker vessels), or smuggling as defined under the Protocol against the Smuggling of Migrants. Interdiction may be possible under the Smuggling Protocol, but this requires interdicting countries to obtain prior permission from the “Flag State” of the vessel (eg Indonesia). This contradicts the suggestion from the Opposition that it is not necessary to obtain Indonesia’s consent.

The need for consent prior to interdiction is supported by the practices of other nations. Italy and the United States have interdicted and returned asylum-seeker vessels from international waters (Italy to Libya, the US to Haiti). However, this has only occurred with the consent of the states concerned, and usually by way of a formal written agreement. Further, interdicted persons are generally taken into the territory of the relevant country (eg Italy returned migrants to the main port in Libya). The occupants are not merely left at the edge of territorial waters. In this sense, the proposal lacks a comparable precedent under international law.

On the question of the right of an Indonesian vessel to gain re-entry into Indonesian waters, I note that while the crew of an asylum-seeker vessel may have an enforceable right to enter Indonesia, the vast majority of people on these vessels are not Indonesian citizens and do not have such a right. Indonesia is not a party to the 1951 Refugee Convention and therefore is not under any formal obligation under international law to accept interdicted asylum seekers back into its territory. In this respect, a demarcation must be made between the vessel which is Indonesian-registered and the occupants of that vessel.

Finally, the act of interdiction by Australian authorities is likely to be seen as an exercise of control and jurisdiction over the asylum-seekers on board. Australia will accordingly incur responsibility for those asylum-seekers under international human rights and refugee law. Indeed, in 2012, the European Court of Human Rights held in Hirsi v Italy that Italy had committed human rights violations due to its interdiction and return of Somali and Eritrean asylum-seeker from international waters to Libya. Because of this principle of jurisdiction, Australia cannot simply leave the interdicted persons on the high seas near Indonesian territorial waters without incurring responsibility for what occurs to them afterwards.

In summary, the Opposition ‘push-back’ policy does not adequately reflect Australia’s obligations under international law. Interdiction of vessels in international waters will require Indonesian consent – so far not forthcoming – and it will not be possible to simply leave the vessels on the high seas in the expectation that they will be able, or willing, to re-enter Indonesian territory. Moreover, political statements which devalue the need for Indonesia’s agreement to such measures will not assist regional co-operation in this area.

In the lead up to this year’s election, asylum-seekers are likely to become the topic of an increasingly heated debate centred on border control and ‘stopping the boats’. During this period, it is imperative that political representatives on all sides recognise that asylum-seekers are, above all, human beings and not merely occupants of boats.

A shorter version of this article originally appeared as part of The Conversation’s series ‘Election FactCheck‘.