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

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.