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Houston report's significance for deaths at sea

  • 16 August 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,