Australia has one of the strictest refugee policies in the world. Although it is party to the Convention and Protocol relating to the Status of Refugees, the Australian government pursued immigration policies throughout the last fifteen years that many international human rights lawyers consider violations of the Convention’s refugee asylum requirements. The terms of the Convention are clear: “no one shall expel or return a refugee against his or her will…to a territory where he or she fears threats to life or freedom.” Government reforms implemented to deter seaborne asylum seekers, however, have potentially done just that by authorizing the Australian Border Force to intercept boats carrying refugees and return them back to transit states like Indonesia and Sri Lanka.
The Australian government’s position is that the policies, known collectively as Operation Sovereign Borders, exist to combat illegal immigration. In the year before the program was instituted, 20,000 irregular migrants attempted to reach Australia by sea. In 2014, a year later, that number dropped to 161. Proponents of the program argue that the program’s success prevents deaths at sea and combats the mercenary trade of people smuggling. International law experts, however, note that the “how, where, when, and why boats are being pushed back” is unknown–the Australian government, citing national security concerns, will not disclose the details of the operation.
From a legal perspective, the details make all the difference. Migrants who assert formal claims for asylum become eligible for refugee status. Refugees have special rights, and the legality of Australia’s Operation Sovereign Border hinges on whether its maritime operations violate one of the most essential afforded to them: the right to non-refoulement. Migrants are only entitled to non-refoulement – the right that protects them from indiscriminate expulsion –after pleading asylum, which begs the question: is the Australian government denying migrants due process when its Border Force turns boats of migrants away before they ever reach Australian shores?
The answer to that question depends on where and how the Border Force operates. Interceptions that take place on the high sea, beyond Australian territorial waters, may not require the Australian government to exercise jurisdiction. This is the Australian government’s stance, as well as their defense against claims that the Border Force is violating Australia’s commitment to the Convention. Simply put, the government feels it has no asylum obligations where it does not exercise sovereign control. This is a tricky position, as Article 8 of the Draft Articles on the Responsibility of States for Internationally Wrongful Acts defines the conduct of state agents acting under the direction of a state to be an act of the state itself. If agents of the Border Force are taking control of boats, they could be exercising Australian jurisdiction and should therefore initiate immigration proceedings for any migrant who claims asylum.
Unfortunately, the Australian government’s lack of transparency makes it almost impossible to determine whether the activities of the Border Force are in violation of Australia’s international commitments. Even if more documentation existed, it would still be difficult to predict how the international community could hold the Australian government accountable. The Articles on the Responsibility of States is only a recommendation from the UN’s International Law Commission, and high courts in other parts of the world have split decisions on the limits of non-refoulement.
In Sale v. Haitian Centers Council, Inc., the United States Supreme Court issued a verdict upholding an Executive Order to indiscriminately return all Haitian migrants intercepted on the high seas back to Haiti. The Inter-American Commission of Human Rights challenged this holding in Haitian Centre for Human Rights v. United States, which found that state agents intercepting vessels at high sea extended state jurisdiction over those they detained. Concordant with Haitian Centre, the European Court of Human Rights in Hirsi Jamaa and Others v. Italy rejected Italy’s claim that it did not exercise jurisdiction in intercepting migrants at high sea before returning them to Libya, holding that Italy violated its duty to initiate asylum proceedings under the 1967 Protocol relating to the Status of Refugees, even though the intercepted claimants only made informal pleas. The United Nations High Commissioner for Refugees is even less equivocal, stating “the principle of non-refoulement does not imply any geographic limitation.”
While Australia’s reputation as a defender of global human rights is subject to international scrutiny, its current government, however, is not accountable to any legal authority but its own. Barring diplomatic pressure, the legality of Operation Sovereign Borders will remain in question until it is challenged, perhaps by a migrant in an Australian court, or, albeit less likely, through a claim filed at the International Court of Justice by a transit nation like Indonesia, which has been critical of the Australian solution.