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

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.