Will captains ignore SOS calls?

By Myint Zan

SUVA, Fiji Islands (JP): In the "stand off" concerning the Norwegian ship Tampa with its human cargo of more than 400 people off Christmas Island, Australia appears to be moving toward some sort of temporary solution or arrangement.

The 438 Afghan "would be asylum-seekers" or "illegal entrants" (according to the Australian government) have been transferred from the Tampa to an Australian ship, which in turn is scheduled to take them to Papua New Guinea before they go to the tiny South Pacific island nation of Nauru -- which will process their applications for refugee status. Some of those found to be eligible for refugee status would then and only then be allowed to enter Australia. New Zealand has agreed to take about 150 of these Afghans.

Australian Prime Minister John Howard claimed that, as a matter of Australian sovereignty, its Special Air Service troops' measure of boarding the Tampa to prevent it from proceeding any further was justified. Opinion polls indicate that his action to prevent the refugees disembarking at Christmas Island was "popular" among Australian voters, an influential factor in the lead-up to federal elections expected later this year.

A judge in Melbourne is considering an application by a civil rights group and lawyers to order the Australian government to allow the Afghans to enter Australia and have their applications for refugee status processed while they are on Australian soil.

Initially, the Australian government had in effect claimed that the "boat people" were not entitled to be considered for refugee status in Australia because Indonesia, from where the ship originated, and Norway, whose vessel found and rescued the refugees, should take all of the Afghan boat people. Based on Howard's statements in the early days of the Tampa crisis, those who found the refugees at sea, or the "finders", should be the "keepers".

Indonesia turned Howard down and said it would not accept any of the refugees. Norway also criticized if not condemned Australia's attitude in shifting the burden onto others.

So what are some of the international law issues concerning this Tampa crisis?

The captain of the Norwegian ship fulfilled his legal and humanitarian obligations by rescuing the boat people. The 1979 International Search and Rescue Convention does not indicate that the flag state of the rescuing ship has to take responsibility -- as in letting them enter its territory -- for people rescued at sea. Hence, Howard's initial or implied claim that it is Norway that must take responsibility for these people rests on shaky legal grounds.

Australia appears to be the nearest destination where the Tampa could have taken these rescued Afghans.

An important article of the 1951 Refugee Convention, to which Australia subscribes, mandates that refugees inside a Convention State (party to the Refugee Convention) should not be "returned" to the countries or territories where their lives or freedoms are threatened.

This is known as the principle of non-refoulement. In the early 1990s the United States Supreme Court, in a classic act of "legalism" or "strict construction", endorsed a lower court's ruling that the United States did not violate international laws or the principle of non-refoulement when its coast guard interdicted boats containing Haitian asylum-seekers inside U.S. territorial waters and returned them to the high seas.

According to this line of legal reasoning endorsed by the U.S. Supreme Court, there was no breach of international law because the Haitians were not (literally) being sent to the countries or territories where their lives or freedoms were threatened, but merely to the high seas.

In his initial comments, Howard appeared to be implying that by not allowing the Tampa to proceed and by insisting that the Afghan refugees should go to Norway, he was acting in conformity with international law since these people were not being sent back to Afghanistan, where their lives or freedoms are threatened.

Australia was on firmer legal grounds though, when it stopped the Tampa from proceeding to Christmas Island and its troops boarded the ship. The 1982 Law of the Sea and principles of customary international law require that passage of a ship inside the territorial waters of a party to the Convention must be "innocent" and must have permission from the coastal state authorities.

Since permission was not granted for the Tampa to enter Australian territorial waters, the Australian coastal authorities had the right to stop it. The 1982 Law of the Sea also authorizes a coastal state to take necessary actions for health, immigration and law enforcement purposes.

But what is "legal" may not always necessarily be the moral or the humanitarian thing to do. And Australia prides itself as being a "fair-dinkum" immigrant nation. The Australian government's actions, at least in the initial stages of the crisis, were not very humanitarian or moral, albeit maybe or maybe not (just) being "legal".

At least as far as the initial refusal to allow the Tampa to enter Australian territorial waters, the government spokesmen's legal position were not fully informed or justified.

Regardless of the judicial outcome or the eventual fate of the refugees, a few issues or lessons partly based on international law can already be postulated from this crisis.

First, international law principles cannot always be consistent and systematically applied to all crisis situations. Although the Australian government's initial rejection of the Tampa may have been in violation of at least the spirit of some principles of international law, once the ship entered its territory it was legally justified to stop the ship.

That "sovereignty" -- as much a political as it is a legal principle -- has been and can be used to justify "inhumane" actions, which indicate that governments would rather withstand criticism or lose face internationally rather than lose popularity at home.

Finally, one could only guess the "precedent value" of this incident. Prime Minister Howard and other Australian government officials justify their actions by saying that a message needs to be sent to people smugglers or "queue jumpers" that Australia is not a "soft target" as far as illegal arrivals are concerned.

But perhaps from a humanitarian viewpoint, an equally if not more important question is: would future rescuers -- like the Tampa's captain -- shy away from making similar rescues for fears that they might end up having to keep them?

Worse still, will some governments instruct their ship's captains, perhaps even on pain of penalties, not to save and indeed to ignore any distress calls at sea? The government of Norway acted in a humanitarian and admirable way when it agreed to allow some of the Afghans its ship had rescued to be settled in Norway, regardless that applications for refugee status would be processed in Nauru, Australia or elsewhere.

Though not in law but probably in fact, the "finder" may end up being a "keeper" of some of the Afghan refugees. One can only hope that this postulated outcome of an aspect of the Tampa imbroglio will, on the whole, establish a positive rather than negative precedent.

The writer lectures at the School of Social and Economic Development at the University of the South Pacific in Suva, Fiji Islands.