Australia has probably broken the law, but it will get away scot-free

Australia has probably broken the law, but it will get away scot-free

The Royal Australian Navy has reportedly intercepted two boats carrying Sri Lankan asylum seekers on the high seas. It is further reported that Australian officials are summarily assessing their refugee claims at sea, and that those whose claims are rejected may be handed back to the Sri Lankan authorities at sea. The Abbott government has refused to comment. Is this illegal? And if it is, will Australia be held to account?

The operation raises a number of potentially serious violations of international law. An immediate problem is that it appears the asylum seekers have not been permitted to contact anyone, whether lawyers, the Australian courts, family, friends, or even the elected members of the Australian Parliament.

In legal terms, this means that the asylum seekers are being held in incommunicado military detention, also described as enforced disappearance. Under international law, it is illegal for any government to detain a person without access to a court or legal representation. Governments cannot simply disappear people into a legal blackhole. This is one of the most important of all red lines in international law.

A second legal problem is that the expedited processing of refugee claims on the high seas is almost certainly inconsistent with Australia’s obligations under the Refugee Convention and human rights treaties. These require Australia not to return a person to a place where they fear persecution, torture, or other serious harms.

Australia can only comply with that obligation if it provides asylum seekers with a fair procedure for determining their claims. While the Refugee Convention does not specify the procedure, minimum international standards have developed out of the guidelines of the UN High Commissioner for Refugees, the jurisprudence of United Nations human rights bodies, and the interpretive practice of governments worldwide.

Asking asylum seekers some questions over the phone while they are still at sea does not meet minimum international standards, as asylum seekers do not have adequate time to prepare their claims. They are deprived of legal assistance and other support. They may not have adequate interpreters. They may be confused or traumatised from their journey at sea and incommunicado military detention by our navy. Australian officials do not have adequate time to make the necessary further inquiries. No Australian tribunal or court is available to review and correct any mistakes bureaucrats may make.

The genuine dangers of return to Sri Lanka may not be properly appreciated. Sri Lanka is effectively a one-party, military-backed state, which peremptorily dismissed its Chief Justice, kills journalists and tortures political opponents. Contrary to what the Prime Minister says, it is not making progress on human rights. Every sign suggests regression.

So what remedies are available for these violations? As is well known, the United Nations has no binding power of its own to take enforcement action against human rights violators like Australia. There is no UN human rights police. There is also no international refugee court.

Any number of countries could sue Australia in the International Court of Justice for breaches of the Refugee Convention or human rights treaties, as Australia has submitted to its jurisdiction and the court’s decisions are binding. But countries are extremely reluctant to sue each other to protect human rights.

While the UN Security Council can impose sanctions on governments for human rights violations, realistically that is not likely to happen in this case. Nor is there any realistic prospect of a case being brought before the International Criminal Court.

All this leaves is the non-binding UN human rights mechanisms. Complaints could be made under a number of formal procedures Australia has agreed to participate in, including the UN Human Rights Committee and the UN Committee against Torture. If the asylum seekers could access these procedures, including through their representatives, the committees could issue “interim measures” to protect them from the immediate risks they face, namely incommunicado detention and possible return to persecution or torture.

Interim measures can be issued within a matter of days by the UN. Interim measures are binding on Australia, but although Australia often respects them, it sometimes ignores them, flouting its treaty obligations. A final decision on the merits of a complaint, however, can take five to six years to resolve, bringing little joy any time soon. Final decision are also not binding.

Australia may also claim that the Refugee Convention and the human rights treaties only apply in Australian territory and not on the high seas. That objection is, however, legally rubbish and certain to be rejected by UN bodies. In international law, countries bear human rights duties wherever they act outside their territory, especially where they detain people.

There is also a UN Working Group on Arbitrary Detention, and the meeting of peer governments, the UN Human Rights Council. Ultimately, all of the UN procedures rely on countries implementing their treaty obligations in good faith. Where the UN calls out a government for violating its obligations, all the UN can do is persuade or shame governments into doing the right thing, to living up to the bargain they made by signing the treaties, and to being a good international citizen that respects fundamental rights. The UN gets nowhere if a government is not open to persuasion, or simply has no sense of shame.

The current operation at sea involves extremely grave abuses of government power. It is not authorised by Parliament under the Migration Act and is being conducted purely under the sweeping, unwritten executive power of the government. It is not subject to public scrutiny or supervision by the Australian courts. Its secrecy is contemptuous of the rule of law and our democracy. It is a government out of control, overawed by its perverse obsession with border control at whatever the cost, and a danger to freedom, liberty and legality.

Professor of international law and barrister

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