Australia breaches RI sovereignty?

Hikmahanto Juwana, Jakarta | Opinion | Thu, March 13 2014, 11:04 AM
Jakarta Post

There have been two incidents where orange lifeboats filled with asylum seekers bound for Australia were found in Indonesian territory. One boat was found in early February in Pangandaran in West Java and the other in late February in Kebumen, Central Java.

The boats are sophisticated, fully enclosed and submersible. They are fitted with safety belts, life jackets, navigational equipment, food, water and an inboard diesel motor. There are no signs whatsoever indicating the nationality of the boats. There are only labels stating that they were made in China.

It is believed that the boats were coming from Australia and were purchased by the Australian government. There are several indications of this. First, there has been news that the Australian government in recent times purchased similar orange lifeboats.

Second, Australian authorities need to ensure the safety of asylum seekers when they are turned back to Indonesia. This is because, since last November, the Australian authorities no longer work with the Indonesian Search and Rescue Team in returning the asylum seekers to Indonesian territory.

Last, purchasing the lifeboats seems to fit in with Prime Minister Tony Abbott’s tough policy against asylum seekers, who the Australian government has dubbed illegal immigrants. By labeling the asylum seekers as illegal immigrants, the Australian government is exempt from its obligations under the 1951 Refugee Convention.

To date, however, the Australian government has neither formally confirmed nor denied speculation that the vessels belong to and are used by Australian authorities. Currently the Indonesian police are investigating who the owners of the boats are.

If the boats are later proven to belong to the Australian government, the country has profoundly violated international law and infringed on Indonesia’s territorial sovereignty.

There are at least three fundamental legal bases for this accusation. First, Australia dispatched boats that it owns without the proper documents. Under international law, vessels are not allowed to conduct international navigation without proper registration, which can be identified by the flags they carry.

Under Article 4 of the 1958 Convention on the High Seas, to which Australia is a party, “Every state, whether coastal or not, has the right to sail ships under its flag on the high seas”.

Based on this article, the question is, if Australia owns a boat but has not registered it and has made the boat sail without any flag of state, would this not be a violation of the international law of the sea? Can Australia argue that the boat is a lifeboat, which does not necessarily carry a national flag? If it is a lifeboat, is it attached to the boats that were used by the asylum seekers?

The Australian government may argue that it only returned the asylum seekers to the place from which they originated, which is Indonesia. It may also argue that the lifeboats simply replaced the boats that were formerly used by the asylum seekers.

But of course, such arguments are baseless. The situation would be different if the asylum seekers went to Australia from Indonesia. To start with, the Indonesian government was not the one that purchased or hired the boats used by the asylum seekers in their attempts to reach Australia.

The boats used by the asylum seekers were rented from Indonesian fishermen.

Second, Australia infringed on Indonesian sovereignty because it enabled unregistered boats to sail to Indonesian territory illegally.

Third, Australia intentionally caused the entry of illegal immigrants from its territory to Indonesia.

The asylum seekers are referred to as illegal immigrants because, when they were evacuated from distressed boats that they had rented to Australian ships, they did not have any formal documents.

It is different when the same people come to Indonesia to go to Australia. They arrive with proper documents, including passports. However, on their way to Australia, they intentionally throw their documents away. By doing this, they will be regarded as stateless and can seek asylum to Australia.

The above accusation will be clear if the Indonesian authorities can prove that the lifeboats are owned by Australian government.

This is where the police in Indonesia play an important role. Once they have gathered evidence and can conclude that the orange lifeboats are owned by the Australian government, Indonesia as a sovereign country has the right to lodge a strong protest against Australia’s infringement of Indonesia’s sovereignty and its violation of international law. The Australian government should therefore be held responsible.

For such purposes, if the Australian government does not want the bilateral relations with Indonesia to deteriorate, as happened recently following the issue of spying, then it would be wise for the Abbott administration to stop its unilateral policy of sending asylum seekers back to Indonesia aboard orange “suspected” Australian government lifeboats.

The writer is professor of international law at University of Indonesia, Depok, West Java.


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