No legal obligation to recover asylum seeker bodies

Samantha Donovan reported this story
Monday, June 10, 2013 18:22:00

ASHLEY HALL: The Customs and Border Protection Service has intercepted another suspected asylum seeker boat carrying 30 people off Christmas Island. It follows the decision to call off the search for survivors of another boat that sunk off the island at the weekend.

Customs also decided not to try to recover bodies from that boat, to allow it to respond to others that may need help. One expert on the law of the sea says there is no obligation under international law to recover the dead from the water.

Samantha Donovan reports.

SAMANTHA DONOVAN: This afternoon the Australian Customs and Border Protection Service confirmed that that all ships and aeroplanes had been withdrawn from the search for the missing asylum seekers. And no attempts are being made to recover bodies from the water today.

Customs says its priority is protecting life and responding to other boats which may be in distress. But Border Protection Command will try to recover any bodies that may be located in the coming days, if it's not too busy with other operations and it can be done without risk to life.

At least 55 people, including women and children, are thought to have been on the asylum seeker boat. About 13 bodies have reportedly been spotted in the water.

Don Rothwell is a professor of international law at the ANU and an expert on the law of the sea. He says there is no obligation on Australia's search and rescue boats to try to recover bodies from the water.

DON ROTHWELL: No the relevant convention within the law of the sea which applies here is the 1979 Convention on Maritime Search and Rescue. And that convention makes it quite clear that the obligation for countries like Australia have are towards vessels in distress and then the survivors from those vessels in distress. There's no reference at all under the convention to an obligation with respect to persons who are deceased.

SAMANTHA DONOVAN: So if an Australian vessel is going past and sees some of these bodies in the water it's under no obligation to stop and try and retrieve them?

DON ROTHWELL: I'm not aware of any international legal obligation. There may well be arguably a very broad overarching humanitarian obligation with respect to bodies at sea. If any vessel was to encounter bodies at sea, the normal response I suspect, in terms of general maritime practice, would be to retrieve that body. But there's no legal obligation as such to do so.

SAMANTHA DONOVAN: Would you expect in this situation, if there are smaller merchant vessels or other vessels in the area and they do come across that situation that they would in fact retrieve the body?

DON ROTHWELL: Yes I think that would be normal maritime practice that would be applied. And that's to a degree the sort of rules of the road that seafarers would often apply in these cases.

So, yes masters of ships certainly do have obligations to seek to retrieve crew members or passengers who've been lost a sea, but that's really not the scenario we're looking at in the Indian Ocean off the coast of Christmas Island here.

SAMANTHA DONOVAN: But Ian Rintoul, a spokesman for the Refugee Action Coalition, says regardless of the legal situation, the bodies of the asylum seekers should be recovered from the water.

IAN RINTOUL: I think it is just a downright indecent announcement. And it's shameful, you know, they are, the Australian Government authorities are saying they won't go to any effort to retrieve the bodies. If these were Australian citizens on a ferry coming from Indonesia to Australia there would be no question whatsoever, the bodies would be retrieved.

And I think it's even more reason why we need to have an inquiry into the whole situation, because if this is reflective of the kind of attitudes that the Australian Government and the rest of the authorities have to the lives of people who are coming from Indonesia to Australia, then we seriously need an investigation.

SAMANTHA DONOVAN: Late this afternoon the Minister for Home Affairs, Jason Clare, announced that an Australian ship has intercepted another boat north of Christmas Island today. It's believed about 30 people are on board and they will now be transferred to Christmas Island.

ASHLEY HALL: Samantha Donovan.


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