18 October 2009

Refugee boats: what about innocent passage?

One of the front page stories in the Weekend Australian of 17-18 October 2009 (Indonesia key to boat solution by Stephen Fitzpatrick and Patrick Walters) advises us, as its name suggests, that the Government will be relying on the Indonesian Navy to solve the problem he thinks he has with the recent increase in asylum seekers arriving by boat:

Kevin Rudd is seeking a new strategic compact with Jakarta to halt the transit of asylum-seekers through the Indonesian archipelago to Australia.

A massively expanded Australian aid package to fund detention centres and training and broader intelligence-sharing between the two nations lie at the heart of Mr Rudd’s sweeping plan.

The Prime Minister wants a new bilateral dialogue that would make Indonesian co-operation the foundation of Australia’s strategy to stop the tide of boats and boatpeople.

Mr Rudd’s proposal echoes John Howard’s Pacific Solution, which relies on co-operation with the smaller Pacific states in managing the Australia-bound refugees.


Under the Rudd Government’s plan, Australia would fund the cost of Indonesian naval pursuits of asylum boats and boost financial support for the detention centres, deportations and voluntary returns.

Australia would also boost training and intelligence-sharing arrangements with Jakarta and would upgrade military and police co-operation.

That sounds all very fine, certainly “tough” – an important public value these days – and possibly even “clever”.

The question it leaves in my mind, however, is what happened to the right of innocent passage which is enshrined in the United Nations Convention on the Law of the Sea (UNCLOS).

The relevant UNCLOS articles are to be found in Section 3: Innocent Passage in the Territorial Sea, Sub-section A: Rules Applicable to all Ships:

Article 17: Right of innocent passage

Subject to this Convention, ships of all States, whether coastal or land-locked, enjoy the right of innocent passage through the territorial sea.

Article 18: Meaning of passage

1. Passage means navigation through the territorial sea for the purpose of:

(a) traversing that sea without entering internal waters or calling at a roadstead or port facility outside internal waters; or

(b) proceeding to or from internal waters or a call at such roadstead or port facility.

2. Passage shall be continuous and expeditious. However, passage includes stopping and anchoring, but only so far as the same are incidental to ordinary navigation or are rendered necessary by force majeure or distress for the purpose of rendering assistance to persons, ships or aircraft in danger or distress.

Article 19: Meaning of innocent passage

1. Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with this Convention and with other rules of international law.

2. Passage of a foreign ship shall be considered to be prejudicial to the peace good order or security of the coastal State if in the territorial sea it engages in any of the following activities:

(a) any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations;

(b) any exercise or practice with weapons of any kind;

(c) any act aimed at collecting information to the prejudice of the defence or security of the coastal State;

(d) any act of propaganda aimed at affecting the defence or security of the coastal State;

(e) the launching, landing or taking on board of any aircraft;

(f) the launching, landing or taking on board of any military device;

(g) the loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State;

(h) any act of wilful and serious pollution contrary to this Convention;

(i) any fishing activities;

(j) the carrying out of research or surveying activities;

(k) any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal State;

(l) any other activity not having a direct bearing on passage.

The boatload of Tamil refugees that is on the front pages of our newspapers boarded a boat in Malaysia and set sail for Australia, for a purpose that is lawful provided they have a well founded fear of persecution – they wish to avail themselves of their rights under the UN Refugee Convention to claim asylum in a country that is a signatory to the Convention. Provided they sailed with due despatch through the waters of the Indonesian archipelago, and did not engage in any of the activities at (a) – (l) above, they would appear to have a right of innocent passage, so the questions in my mind are:

(1) On what basis does the Prime Minister of Australia ask the President of Indonesia to intercept them? Their arrival here might be inconvenient to him, but their passage through Indonesian waters would not appear to be contrary to the peace, good order or security of Indonesia.

(2) What standing under UNCLOS does Indonesia have to interfere with the innocent passage of these boats?

International law is a complex area and I am not an international lawyer, so I do not know the answer to these questions, but they seem to me to be questions worth asking.

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