Is it illegal to turn back boats in international waters to Indonesia?
Indonesian politician Tantowi Yahya was asked on Lateline whether he believed that "the policy of turning back these boats in international waters is legal or illegal in international law".
Mr Yahya, a Golkar Party member of the Indonesian People's Representative Council, said: "It's illegal".
ABC Fact Check examines whether international law allows the Coalition Government to turn back asylum seeker boats.
The issue is likely to come up next week when Prime Minister Tony Abbott meets Indonesian president Susilo Bambang Yudhoyono in Jakarta. The Indonesian foreign minister, Marty Natalegawa, has warned that Jakarta "cannot accept any Australian policy that would, in nature, violate Indonesia's sovereignty".
- The claim: Indonesian politician Tantowi Yahya says it is illegal for Australia to turn back asylum seeker boats in international waters.
- The verdict: Mr Yahya's statement is correct, but there is more to the story. The Government cannot legally turn back boats in international waters. But the Government can legally turn back asylum seeker boats intercepted within 24 nautical miles of the Australian coastline, provided it is safe to do so.
The Government's policy
Apart from the much repeated promise to turn back the boats, the new Abbott Government has provided little detail on the promise and how it will be implemented.
When Fact Check asked the Department of Immigration and Border Protection for details it was referred to the office of the Minister for Immigration, Scott Morrison. His office did not respond to emails.
However, the election promise is set out in one sentence in the Operation Sovereign Borders Policy released in July. It says a key initiative to be undertaken in the first 100 days of the Government is to "Issue protocols for Operation Relex II, to turn back boats where it is safe to do so".
Operation Relex was an Australian Defence Force operation initiated by the Howard government on September 3, 2001 following the August 2001 arrival of the MV Tampa. It ended on March 13, 2002.
Fact Check understands that under Relex, vessels transporting asylum seekers without visas to Australia were intercepted by the ADF when they entered Australia's 'contiguous zone,' 24 nautical miles from the coast of Australian territory. The ADF took control of the vessels and navigated them back through international waters to just outside Indonesia's 'territorial sea,' starting at 12 nautical miles from Indonesian territory. Only a small number of boats, less than 20, were intercepted and returned under the operation.
Philip Ruddock, the immigration minister at the time, confirmed to Fact Check that this was his understanding of how Relex operated.
Fact Check has taken the statement in the sovereign borders policy document as a commitment to replicate the original Operation Relex.
The legal situation
Whether Australia can legally stop a boat with asylum seekers travelling to Australia depends on precisely where the vessel is intercepted.
Australia has limited rights over boats sailing in the sea between Australia and Indonesia. Both countries are signatories to the United Nations Convention on the Law of the Sea. Under this convention, the sea is divided into maritime zones.
Australia has jurisdiction over an area 12 nautical miles from the Australian shoreline (including the mainland and territories such as Christmas Island and the Ashmore Reef), which is in effect part of Australia and is known as the 'territorial sea'.
Foreign vessels have the right to 'innocent passage' through the territorial sea. Australia also has rights over a further 12 nautical miles of territory, which makes up the 'contiguous zone', within which Australia can exercise the control necessary to deal with infringement of "customs, fiscal, immigration or sanitary laws" within Australia or its territorial sea.
Where the boats can be boarded
Professor Donald Rothwell of the Australian National University College of Law, one of several legal experts consulted, told Fact Check the Government has a legal right to stop boats with suspected unlawful non-citizens if the boats are within Australia's territorial or contiguous zones, in other words, within 24 nautical miles of Australian shores.
He said Australia can only stop boats located outside these zones in rare situations such as illegal fishing in some areas or a breach of UN resolutions (such as the carrying of weapons of mass destruction) in international waters. It can also stop boats if it has the consent of the flag state of the vessel, in this case Indonesia.
Analysis about Operation Relex in the 2002 Senate 'SIEV X' inquiry notes that while the Navy sent warnings to boats carrying asylum seekers in international waters, they were only stopped when they entered the contiguous zone.
Where the boats can be taken
Stopping and boarding boats heading to Australia is only part of the story. They need to be taken somewhere.
What is clear is that Australia cannot return boats into Indonesian waters without Indonesia's permission.
Professor Rothwell says taking a vessel to just outside the Australian contiguous zone is acceptable, however the situation becomes more questionable the further it travels in international waters. Associate Professor Tim Stephens of the University of Sydney Law School told Fact Check that how far a boat can be taken away from the contiguous zone is legally debatable, but on one interpretation a boat could be returned to the border with Indonesian waters.
Alexander Downer, the foreign minister in the Howard government, recently wrote in an opinion article in the Adelaide Advertiser that the boats were "towed to the edge of Indonesia's territorial waters under Operation Relex - that is, 19km from the Indonesian coast - and provided with fuel and food and water to complete the journey".
Mr Ruddock told Fact Check that "legal advice was sought from the international division of the Attorney-General's department that all steps taken [under Relex] were lawful".
Other points to keep in mind
While in theory Australia is legally able to stop, board and turn around vessels, the situation is complex. Australia is a signatory of the 1974 International Convention for the Safety of Life at Sea. Under this and the Law of the Sea convention, Australia is obliged to render assistance to those in danger at sea.
Vessels carrying asylum seekers from Indonesia are often in poor condition and Australia is required to adhere to international safety at sea obligations. Occupants of an unseaworthy vessel cannot be left to their fate. There have also been incidents of boats being sabotaged requiring that the passengers be rescued. This possibility is acknowledged in the August 2012 Report of the Expert Panel on Asylum Seekers, which noted: "Irregular vessels carrying asylum seekers can often be quickly disabled or rendered unsafe to foil any attempted turn backs and to create a safety of life at sea situation".
The Abbott Government has said boats will only be turned back only "where it is safe to do so".
Comparison to United States
During the election campaign, Mr Abbott said in a television interview that the "US Coast Guard turns around boats between America and Cuba".
While Mr Abbott's statement is accurate, the situation is different.
Unlike Australia, the United States is not a signatory to the Convention on the Law of the Sea, so it is not subject to the same legal constraints. In addition, Associate Professor Stephens told Fact Check that the United States is able to take Haitian refugee vessels back to Haiti because it has reached an agreement with Haiti.
Mr Yahya was correct when he said that turning around boats in international waters is illegal, but there is more to the story. If the Government replicates the Howard-era policy, it will not be turning boats back in international waters.
The Government can legally turn back asylum seeker boats provided it is safe to do so and they are intercepted within 24 nautical miles of the Australian coastline. It is clear that Australia cannot steer the boats into Indonesian waters, but exactly how close they can legally get to Indonesia is up for debate.
- Alexander Downer, 'Turning back the boats to the right', The Advertiser June 30, 2013
- Antara News Agency, 'Indonesia issues warning against Australia's boat people policy', September 24, 2013
- 'A Certain Maritime Incident', Senate Committee Report, October 23, 2002, Chapter 2, pages 25-30
- Australian Navy, 'Australian Operational Service Medal'
- Coalition's Operation Sovereign Borders Policy, July 2013
- Tantowi Yahya, Lateline, September 19, 2013
- Liberal Party, 'Real Solutions', January 2013
- Marr & Wilkinson, Dark Victory, Allen & Unwin (2003)
- Report of the Expert Panel on Asylum Seekers, August 2012
- Tony Abbott, interview with David Koch & Melissa Doyle, Sunrise, August 5, 2013
- United Nations Convention on the Law of the Sea, 1984
- International Convention on the Safety of Life at Sea, 1974
Topics: immigration, refugees, federal-government, foreign-affairs, international-law, law-crime-and-justice, liberals, australia, indonesia, christmas-island, christmas-island-6798, cocos-keeling-islands