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

History and more recent developments - such as the Tampa incident - appear to confirm that self-interest continues to count first for states when dealing with refugees.

The immense gap between a literal reading of international provisions for refugees and the reality could hardly be more compelling. And yet still there is evidence pulling in the other direction.

Today, the institutions of international co-operation are more comprehensive, universal and firmly established than at any time in the past, but the idea of pursuing an idealised “obligation” of co-operation on refugees is probably pointless.

Self-interest drives co-operation, and action in pursuit of solutions for refugees depends on the formal consent of states, staggering from one crisis to another.

And, ironically or understandably, it’s the largest emergencies, such as the Indo-China refugee crisis in the 1980s, that engage self-interest rather than the persistent niggling of small, distant humanitarian situations.

It would be nice to be able to assert confidently there is at least an emerging legal principle requiring states to co-operate on a basis of international solidarity and burden sharing.

But engagement remains a political matter - and a matter of discretion - in a context in which each and every state appears to act first and foremost in the light of its own self-interest. And the trend seems to be getting stronger.

Many states seem to want to put yet further distance between themselves and the United Nations ideal of co-operation in the resolution of humanitarian problems.

This is quite strange in many respects, for policies now being adopted and put into practice stand at odds with the lessons of experience, however much they may reflect the desire of many states to assert their sovereignty even in the face of humanitarian need.

The benefits of co-operation, however, are not just theoretical, as the successful resettlement of 1.4 million South-East Asian refugees after 1975 demonstrates.

The dangers of unilateralism are equally self-evident. Co-operation leads to solutions and a fair allocation of responsibilities among nation states. But unilateral measures lead to isolation and a greater unwillingness to help, as the 2001 Tampa incident showed.

The Tampa incident shows, however, what might be done - and what ought to be done - in this and other similar circumstances in the future. It also discloses a wider context, particularly in relation to human rights, and typifies a scenario in which no single issue, such as rescue at sea and disembarkation, can ever be considered in isolation.

Tampa usefully reminds us that neither the law of the sea nor international refugee law provide clear guidance on the landing of rescued refugees - or on responsibility to determine their claims for refugee status, or on solutions. But the premises of the international protection regime a normative and institutional framework within which states ought to seek solutions.

Primary rules lay down the parameters for state action, indicating the limits beyond which the state cannot go without incurring responsibility for its (unlawful) actions. They don’t necessarily provide solutions for every resulting problem, but they are the essential juridical basis from which “subsidiary” rules will take their normative and constructive force.

The first undisputed primary rule in the Tampa situation was to rescue those in distress at sea. The second undisputed was non-refoulement, which prohibits returning any individual to persecution or risk of other relevant harm.

But there was no rule prescribing disembarkation, or identifying the appropriate port of call, let alone requiring the grant of asylum.

The fundamental rules of the international refugee regime are primary in the sense that - unless there are very exceptional circumstances - they override other important interests, commonly expressed in terms of sovereign powers.

They change the picture, not just by creating an exception in the instant case, but also by laying down the conditions for subsequent state conduct. Identifying such primary rules is important for many reasons: they establish “priorities” and establish the parameters for state action - boundaries that may not be crossed.

For example, it’s a fact refugees will often use the same means of travel or facilitation of entry or residence that illegal, irregular and undocumented migrants use. They will often face the same or greater exploitation - but for many of those in search of protection, these will be the only means by which they can leave their country of origin or an intermediate country of temporary or ineffective refuge.

Of course, states may lawfully take measures to combat smuggling and trafficking, even though they have a major impact on refugee protection. The primary rules remind them, nevertheless, that in this context of control, the necessary clear distinctions between refugees and others must always be made - even though many of the rules of international human rights law also apply, irrespective of status.

It is in the very process of making such distinctions, moreover, that the key to the appropriate solutions may also be found.

In recent years, states have come to accept they must not only co-operate to deal with trafficking, but must also take steps to ensure humane options for returning victims to their home countries, and for their reintegration.

The issue, then, is not just about securing rescue and access to territory for refugees and asylum seekers. Rather, it’s a multifaceted problem covering different interests, many of which will likely pull in different directions.

The problem with knee-jerk reactions is that while they may satisfy short-term electoral or political goals, they divert energy from truly international approaches. By sending out a message of unilateral disregard of the principles of international co-operation, they inevitably lead to disinclination on the part of others to contribute to solutions.

No one anywhere else in the world sees the Tampa incident - the Pacific “solution”, or the Pacific “strategy” - as anything but Australia’s problem. This is a pity, because the incident raised a host of truly international issues which are not confined to the Pacific region - issues which are ripe for a truly co-operative approach.

Of course, one should be beware of exaggerating the extent of Australia’s challenge to refugee law and the impact of its practice on others. Norway - the Tampa’s flag state - rejected the Australian position, and no other maritime state indicated any support for its approach.

Nevertheless, aspects of Australian policy and practice ought to give cause for concern. International refugee law acknowledges refugee movements are likely to be irregular or unlawful, but that individuals, nonetheless, have the right to seek asylum from persecution.

Australia’s position aims to confound that principle and allow no room to claim rights or protection.

The denial of access to procedures and to recognition as a refugee in appropriate cases - and thereafter to the rights of a refugee - is thus tantamount to a rejection of the system of international protection as a whole - a system which is premised on the acceptance of responsibilities, within the rule of law, and on a commitment to work co-operatively in pursuit of solutions.

In 1982, when it was a major donor to refugee needs generally and a leading country of resettlement for Indochinese refugees, Australia promoted Executive Committee Conclusion No. 22 on Temporary Refuge, precisely because it feared being abandoned by other states in the case of a mass influx of refugees and asylum seekers.

Its recent essays in unilateralism, and its steps outside the rule of law, have certainly made it harder for other states to go on thinking of Australia as a trustworthy partner in refugee protection and solutions. And this too is a pity, because Australia continues to play a critically important role in refugee resettlement.

The persistence of “grey areas” and unregulated gaps in and among different legal regimes nevertheless stands as an open invitation for exploitation by any number of states anxious to place self-interest ahead of international co-operation.

Rescue at sea needs no explanation or justification. It’s a custom and a rule of indisputable authority, and an area in which law and practice continue to develop with a view to improving the safety of life at sea.

During the Indo-China refugee crisis, governments, often driven by public opinion, ultimately responded to the needs of refugees in distress at sea, and to the challenges posed by states also initially unwilling to play their part.

Today, no comparable refugee crisis galvanises states or the public in quite the same way. Flows are more mixed than they were, migrants now joining refugees and asylum seekers.

But the difficulties for ships’ masters fulfilling their legal duty are the same. We know what the law requires and that solutions must be found. The challenge is the good faith implementation of the rules.

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 ...?