BY SARAH STEPHEN
The Australian government is planning legislation that will make it illegal for civilian ships to pick up refugees at sea without permission. Such a law would have prevented Arne Rinnan, captain of the MV Tampa, from rescuing asylum seekers from their sinking boat last August.
An article in the January 12-13 Weekend Australian reported that the office of federal transport minister John Anderson had confirmed that the minister had ordered his department and the Australian Maritime Safety Authority to draft new protocols for merchant ships that encounter refugee boats in distress at sea.
Determined to avoid a repeat of the Tampa standoff, the legislation would, according to government sources, "force ships to leave asylum seeker rescues to the navy or seek its approval before taking boat people aboard".
The government is no doubt aware that if an Australian ship saves the next group of asylum seekers from a sinking boat, it would be difficult for Canberra to refuse its right to dock at an Australian port.
It is a concern echoed by Australian Shipowners Association chief executive Lachlan Payne, who told the Weekend Australian that "it is still unclear what would happen if an Australian rather than a foreign ship picked up asylum seekers in circumstances such as the Tampa's. We contend if it was an Australian ship, the Australian ship could expect that it would not be refused entry to an Australian port and would be able to land people in that situation without any questions asked. We want a guarantee that an Australian ship would in no circumstances be refused entry to an Australian port."
No other country has carried out such a flagrant violation of international maritime law. A government source insisted to the Weekend Australian that "international conventions requiring mariners to help ships in distress were designed for leisure and commercial craft, not refugee boats. The Tampa situation was a pretty unique one — this sort of situation was never envisaged. All the search-and-rescue rules are based on the assumption that the people being rescued are two yachties."
The obligation of ships to go to the assistance of vessels in distress was enshrined both in tradition and in international treaties, in particular the International Convention for the Safety of Life at Sea, adopted in 1974. The convention makes no distinction between "yachties" on solo trips around the world and boats carrying asylum seekers.
The human consequences of the government's legislative change could be appalling. If ship owners face obstacles or fines, it is possible they may decide not to take the risk of rescuing asylum seekers and leave people to drown. Even in circumstances where a ship alerts the navy to a sinking boat, the time it takes for a navy vessel to reach the area may be long enough for the boat to sink.
The Tampa situation was not a unique one, as the Australian government seems to believe. During the late 1970s, many Vietnamese people leaving their country by boat were picked up by civilian vessels. In early November 1978, the captain of the Hai Hong, a Panamanian-registered freighter passing through Indonesian waters, told Kuala Lumpur that when his ship had stopped off Vietnam with engine trouble, it had been surrounded by a flotilla of little craft, crammed with refugees. He had no option but to take them aboard — more than 2000 of them — and requested assistance.
The Hai Hong ended up anchored offshore, its sick and thirsty passengers waiting and suffering, while a number of countries argued about their fate. In the end, they did get ashore and all were resettled, but it was the first of many such situations. Naval and coast guard vessels tried to bounce the ships out of their waters and on to the next country, towing them out to the high seas.
Singapore, Taiwan and Japan would not allow refugees to land unless they secured guarantees that Western countries would eventually offer permanent resettlement. However, resettlement quotas set by the US, Canada and Australia remained too low to be able to make this guarantee. The results were devastating. Many crews, fearing being unable to unload refugees, began to refuse to pick them up. Asylum seekers starved and drowned in one of the world's busiest shipping lanes.
In June 1979, Malaysia announced that Vietnamese refugees arriving in Malaysia would be shot. During June, with the typhoon season coming on, 2500 Vietnamese in mostly unseaworthy vessels were towed out into the South China sea by Malaysian authorities and set adrift.
It is thought that as many as 10-15% of Vietnamese who fled by boat died at sea. At least 500 cases of drowning were documented to be due to the Malaysian government's policy of forcing boats back to sea. Despite the arrival of hundreds of Vietnamese asylum seekers on Australia's north coast, the Australian government refused to follow a similar policy at the time, not only because it was illegal under international law but because it was profoundly inhuman.
Canberra's proposal to change domestic maritime law is certainly not the first time the Prime Minister John Howard's government has resorted to changing domestic laws in violation of international law or international conventions, in order to justify its actions against asylum seekers.
Legislation passed in September gave Australian officials the authority to board and turn around asylum seekers' boats using "reasonable and necessary force". Referred to as "push-offs", this is in violation of the refugee convention. It puts asylum seekers in great danger of — at best — running out of food and fuel or, at worst, sinking and drowning.
As far as the government is concerned, however, Australia's responsibility is absolved as soon as the boat is back in international waters.
The Howard government is also spearheading moves to bring international agreements into line with its domestic policy. At a United Nations meeting on December 12 to celebrate the 50th anniversary of the refugee convention, immigration minister Philip Ruddock argued strongly for radical and immediate "reform" of the international migration system.
Ruddock argued that the convention is failing genuine refugees by focusing disproportionately on the legal rights of asylum seekers and refusing to deal harshly with those who are not found to be refugees.
From 91×ÔÅÄÂÛ̳ Weekly, January 23, 2002.
Visit the