POLITICS
Houston report's significance for deaths at sea
Tony Kevin August 15, 2012
After the advice (or some of it) offered by the Houston report becomes law, smaller numbers of people will continue to try to come to Australia in boats. The demographic will shift to young single men and family groups travelling together — people who will be willing to sit patiently in Nauru for some years.
Will some of these people continue to drown? Will Australia's government and border protection system continue to evade responsibility for systemic failures, trying to shift blame onto the easy target of people smugglers?
The Houston report offers a powerful international law template by which to measure the border protection system's adherence to its safety-of-life-at-sea (SOLAS) obligations to asylum seekers in its detection, interception and rescue operations.
The Report's Attachment 3, 'Australia's International Law Obligations With Respect to Refugees and Asylum Seekers' charts the legal framework for the case studies of the operational SOLAS failures I discuss in depth in my book Reluctant Rescuers, and the more recent large failures of 21 June (capsize) and 28 June (lost boat).
Houston notes that the areas of international law relevant to Australian policies are the Refugee Convention, human rights law, law of the sea, and principles of state responsibility. Legislation alone is unlikely to be able to guarantee compliance with Australia's international law obligations. Compliance depends on what Australia does by way of legislation, administration and practice. Well said.
The law of the sea sets out a State's obligations relating to the interception of suspected irregular entry vessels, rescue of persons at sea, and safety of life at sea. Specific maritime law obligations arise from the UN Convention on the Law of the Sea (UNCLOS), the International Convention on Maritime Search and Rescue (SAR Convention), and the International Convention for the Safety of Life at Sea (SOLAS Convention).
UNCLOS stipulates a duty to render assistance. Every state must require the master of a vessel flying its flag 'to render assistance to any person found at sea in danger of being lost' and 'proceed with all possible speed to the rescue of persons in distress, if informed of their need of assistance' (note this duty applies anywhere at sea).
The SAR Convention says a party has an obligation to use search and rescue units, and other available facilities, to provide assistance to persons in distress at sea in its search and rescue region (SRR). Parties shall ensure that assistance is provided to any person in distress at sea, regardless of the nationality or status of a person or the circumstances in which the person is found. This obligation is thus not limited to a party's own SRR.
The SOLAS Convention says that on receiving information that persons are in distress at sea, the master of a ship in a position to provide assistance must proceed with all speed to their assistance. This applies regardless of the nationality or status of such persons or the circumstances in which they are found.
Where assistance has been provided to persons in distress in a state's SRR, that state is responsibile for ensuring coordination and cooperation occurs between governments so that survivors are delivered to a place of safety.
If a breach of an international obligation (such as a human rights obligation or an obligation to render assistance at sea) occurs, international law prescribes rules which determine when a particular state is responsible for that breach. Key principles of state responsibility include that a state is responsible for any actions of its officials.
One may infer here that if a state deliberately withheld from its search and rescue units information obtained from its intelligence resources regarding a real-time SAR emergency, in which the latter could have assisted had they known of it, that state could be held responsible for resulting deaths at sea.
The conduct of bodies which are not, or persons who are not, state organs may also be attributed to a state if, for example, the state instructs or directs or controls that conduct. In addition, a state may be responsible for wrongful conduct committed by another state, where the first state knowingly aids or assists in that conduct.
These laws are relevant to possible wrongful disruption activities funded by Australia and conducted in Indonesia by Indonesian agencies, an issue that arose in the 2002 Senate CMI inquiry.
Houston finds that the loss of life on dangerous maritime voyages in search of Australia's protection has been increasing, and the likelihood that more people will lose their lives is high. The panel notes the challenge of continuing to uphold Australia's obligations under the SOLAS and SAR Conventions and UNCLOS.
It says that 'Australia takes its SAR obligations under international and domestic law very seriously'. Most of the time this is true, though sadly, not always.
We just learned of a boat that disappeared on 28 June carrying 67 people, now presumed dead. The dysfunctional patterns of official behaviour we have seen in the past were repeated: tardy and reluctant response (six weeks) to family appeals, cruelly insensitive language, the blurring of dates, and finally shameless political exploitation by the responsible Minister. The system does not seem to know how to behave better.
I hope Houston's quiet hints that all is not well in this area, and his meticulous reminder of the international law obligations governing Customs and Border Protection doctrine and operations, might lead to a more compassionate and timely response in future to distress situations of which Australia's intelligence-based border protection system becomes aware by whatever means.
It is time for decent people in government to stop exploiting deaths at sea as deterrents.
Tony Kevin, author of A Certain Maritime Incident (2004) has published a new book, Reluctant Rescuers, available from leading bookshops or from the book website.
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SUBMITTED COMMENTS
Kate Ahearne16 Aug 2012
Yes, you have hit on, or at least touched on, the ugliest truth about our response to the boat people - deaths at sea are indeed the most effective deterrent.
Caroline Storm16 Aug 2012
There are these laws...abide by them. Even if our leaders refuse to use the sometimes unwritten laws of basic human rights, we must and will report any breach of the laws cited here to the United Nations
Dennis Green16 Aug 2012
Tony, I have read your excellent book, and also the full Houston report, and you are spot on. Alas, I fear, however, that a number of the Houston "quiet hints" are rather too "quiet" to cause a lazy press and many others to speak up on them. The points re legal obligations are indeed meticulous, but not sufficiently up in "neon lights". Likewise the cautions re the necessary attention to details of implementation. Already we have one side saying the report endorses the "turn back the boats" measure, when what it actually said was that it was only possible after many named serious hurdles were cleared, and that there is no way that will happen in the short term (Report Sections 3.77 to 3.80).
David16 Aug 2012
Indeed, Dennis the press is lazy. Not one reporter has taken Mr Abbott to task for describing Asylum Seekers as Illegal Immigrants and now we have the Shadow Minister regarding them as pirates. The time has well and truly come for Australian politicians to show a measure of compassion by respecting human rights for all.
Nguyen Duy16 Aug 2012
I remember just after Kevin Rudd dismantled the Pacific solution that Eureka Street was inundated with posts of joy. At last a cruel and dehumanising system had been removed. We no longer had to be ashamed amongst the nations of the world that we were Australians. Now that Gillard has done a monumental backflip, where are the howls of protest? When will read an article on Julia Gillard's missing moral core? When will she be decried for having morphed into one of Eureka Street's favoured whipping boys, John Howard or Tony Abbott?
Marilyn16 Aug 2012
No such luck Tony, the only thing the government saw was a red light to punish those who don't drown.
They will continue to kill those who send out SAR signals.
Ron Cini16 Aug 2012
The problem we are facing in Australia together with Europe, USA, Canada and all the other 1st world nations is that millions of people living in third world nations are forced to become asylum seekers. The answer is for 1st world nations to fix the problem of the 3rd world nations, so no human being of the third world nations has to run away from their country of birth in the first place. One example is Egyptian Christians who their forefathers go back to to Mark the evangelist around AD33, the founder of the Church in Alexandria, are now being persecuted by the Moslem Brotherhood, and are trying to legally find a safe country to live.
Ron Cini16 Aug 2012
Reading the various comments, most of them are critical of Tony Abbott, the Shadow Minister for Immigration and Citizenship, accusing Julia Gillard to do a back flip,demonising Tony Abbott and John Howard. A lot of negativity, but nothing positively. No solution to fix the problem.