Beyond self-interest: Australia’s post-Tampa choices

What we need is an Inter-Agency Action Group on Humanitarian Problems at Sea, bringing together those with recognised legal and practical interests in this increasingly humanitarian issue.

Its function would be to propose, promote and coordinate responsibilities in rescue-at-sea situations, - generally, regionally, and in specific instances. Its mandate would be to take into account and apply existing rules and arrangements, and its goal would be to resolve differences in pursuit of solutions.

The Inter-Agency Action Group would necessarily involve those United Nations agencies with, or likely to have, competence, and would necessarily include states, either ad hoc or from among those willing to provide resettlement places for refugees.

It would also have places for others unable, for good reason, to repatriate or return in safety and dignity refugees to their country of origin.

So far as protection issues had already been resolved compatibly with international standards, the International Organisation for Migration might also be invited to assist with migration solutions. This an important qualification, because the agency is not part of the United Nations and does not consider itself internationally accountable in matters of human rights.

But there would be a limit to this inter-agency group’s formal responsibilities. Save in exceptional circumstances and with the agreement of its membership, it would not be competent in matters of unilateral maritime interception by states of boats or ships believed to be carrying irregular migrants or refugees or engaged in any other “prejudicial” activity.

In this context, international law already regulates the issue of responsibility, which falls squarely on those doing the intercepting. Neither international human rights law nor international refugee law are limited, in their most fundamental provisions, to the territorial domain of states.

This means the intercepting states must ensure any refugees among the intercepted receive protection and aren’t returned to persecution, torture or death, and that they’re offered appropriate solutions.

No obvious international responsibility falls on states not engaging in interception operations, and there is thus no formal basis on which the intercepting state is entitled to invoke the co-operation of other members of the international community.

The intercepting state’s primary responsibility has many legal consequences. For example, the state must ensure basic principles of protection are factored into its operations if loss of life, violation of human rights, and damage to long-standing and mutually beneficial rules and principles are to be avoided.

State sovereignty is still very much a part of the international scene, as is the tension between obligation and humanitarian commitment. Co-operation may be the poor relation of duty, but experience shows it is essential if refugee and humanitarian problems at large are to be solved compatibly with fundamental human rights.

In the matter of the high seas, standard-setting is ongoing within the International Maritime Organisation and the UN system at large. It is in the interests of all states to co-operate in this exercise, but also in new initiatives.

Not only will this ensure that law and obligations are observed, but it could equally serve as a model of co-operative effort for many of the complex situations which we are surely likely to face in the future.

Given Australia’s position, as well as its manifest interests in the field, this is precisely the sort of initiative in which it should take leadership. Whether the leaders are there, of course, is another matter. One for the people ...?