Australia's refugee policy, specifically with regards
Indonesia, can be summed up as calculatingly brazen or breathtakingly
incompetent. Having admitted that Australian vessels entered Indonesia waters
six times during the months of December and January, an internal report found
that such incidents are the result of challenged calculations on the part of
the Royal Australian Navy (RAN).
In so doing, the Australian government breached the Law of
the Sea. As Tim Stephens explains in simple terms, "You can't enter the
territorial sea of another state unless you have the state's permission or if
you're exercising something called innocent passage" (Sydney Morning
Herald, Jan 17). Cold water has been thrown on the prospects of legal
action by Indonesia, largely, claim international law authorities, because of
Canberra's swift move to apologise and initiate a review.
The report "Joint Review of Positioning of Vessels
Engaged in Operation Sovereign Borders" doesn't give high marks to the
Australian Defence Forces and the Border Protection Service. Nor is it
particularly condemning. The scope of the Review was to "independently
investigate the facts and circumstances surrounding the entry of Australian
vessels into Indonesian waters in connection with Operation Sovereign Borders
(OSB) during the period 1 December 2013 to 20 January 2014."
According to the report, "Crews intended to remain
outside Indonesian waters." Each one of these was "inadvertent and
occurred as a result of miscalculation of Indonesian maritime boundaries by
Australian crews."
Two policy "constraints" are noted. Activities
must be conducted in a manner deemed safe by the Commanding Officer of the
assigned vessel. The second note of constraint is that, "Activities are
only to be conducted outside 12 nautical miles from Indonesia's archipelagic
baseline." These limits were reiterated in mission instructions.
The underlying tone to the report, however, is not that
Australian personnel breached international law and the sovereignty of another
state. Instead, emphasis is placed on contraventions of "Australian
Government policy and operational instructions in relation to Operation
Sovereign Borders." (A point worth noting is that such policy itself is
probably a contravention of Australian law.) The focus is probably intentional
– to stress violations in international law would be an embarrassing detail to
a government keen to speak about its own sovereign entitlements. The very name
of the operation conducted against asylum seekers arriving by boat emphasises
sovereign borders to begin with. A play here is a battle of sovereign powers,
staking their ground in the refugee debate.
The report has made 10 findings, accompanied by five
recommendations. The Chief of Navy and the head of Customs have been urged to
review breaches "with regard to any individual lapses in professional conduct."
The recommendations point to a worrying reality – that Australian personnel
behind Operation Sovereign Borders are not necessarily well versed in the Law
of the Sea. In wording that again understates breaches of international law,
the joint task force speaks of the need for a "tactical appreciation of
UNCLOS [UN Convention of the Law of the Sea]."
While RAN Commanding Officers had "received the
requisite professional training and experience" to be aware of UNCLOS
provisions in calculating Indonesia's maritime boundaries, the customs
commanders did not. The question of how these errors could have possibly been
committed – repeatedly – remains.
The Australian Foreign Minister, Julie Bishop, is keen to
draw a line under the episode. Grovel, a touch, and move on. "Australia
has been very candid and open about what was clearly an inadvertent
understanding of the territorial boundaries." Rather disingenuously, the
minister proceeded to explain that Australian authorities did, in fact, respect
Jakarta's territorial integrity. Sounding like the dispensing powers granted by
a priest to his confessor, the mistake, once acknowledged with profuse
apologies, could be made good.
The head of Customs and Border Protection, Michael Pezzullo,
has also followed Bishop's example. "The Government has apologised to that
country, Indonesia, unreservedly for the incursion… and ... I add my apology to
what's already been stated" (ABC, Feb 14).
The countries have also shown different interpretations as
to what an apology in this episode means. As Untung Suropati, a spokesperson
from the Indonesian Navy explained to the ABC, the Federal Government's
official stance was effectively an apology via media release. Besides, given
the state of equipment available to the navy, it would have been inconceivable
that the RAN had made the mistake, not once, but six times. "In this day
and age, navigation equipments [sic] to determine [the] position of war vessels
are very modern" (ABC, Feb 20). To paraphrase Oscar Wilde, to err once
might have been deemed a misfortune; to have done so five times more suggests
an astonishingly high degree of carelessness.
In 2012, a secret draft study authored by Border Protection
Command outlined the risks adopting such a policy as Operation Sovereign
Borders would entail. It would pit Australian sailors in pitched battles with
asylum seekers. It would demoralise the Defence forces – "possible
consequences will be greater incidents of post-traumatic stress disorder."
Countries that have embarked on a path of forcibly returning
boats to their origins have had to relent, be it Italy in 2009 with Libyan
vessels, or Thailand's policy of pushing boats filled with Rohingya Burmese to
sea (The Australian, Mar 10, 2012). The Howard government similarly followed
that path between 2001 and 2003, turning eight boats back into Indonesian
waters. The Abbott government has taken heart from it. Breaching the Law of the
Sea is becoming habitual. For the government, it has even become an imperative.
About the Author
Binoy Kampmark was a Commonwealth Scholar at Selwyn College,
Cambridge. He currently lectures at RMIT University, Melbourne
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