Australia’s turn-back boat policy : There is always a choice

Australia’s turn-back boat policy : There is always a choice Sunan J Rustam  ;  The writer, who obtained a law doctorate degree from Indiana University, works for the Foreign Ministry

JAKARTA POST,  27 Januari 2014

                                                                                                                        

                                                                                         

                                                      

When Indonesian Foreign Minister Marty Natalegawa identified three main challenges facing the Asia Pacific in 2014, one of them was at home — a trust deficit in bilateral relations between Indonesia and Australia.   A new spat over spying has taken its toll on the two neighbors, bringing their relations to a new low. Indonesia summoned its ambassador from Canberra, froze security and defense cooperation and made it crystal clear that Australia had to follow a six-point roadmap if relations were to return to normal. Australia has been reluctant to do so and in reply exercised a policy of turning back boats carrying suspected asylum seekers. Australian Border Protection Command (ABPC) recently interdicted, boarded, towed, forced and steered boats carrying suspected asylum seekers to Indonesian waters, heaping more pressure on diplomatic relations between the two states.  The media reported Australia had apologized while Indonesia emphasized it would protect its sovereignty at all costs and reiterated its rejection of Australia’s policy.  The incident may have been resolved diplomatically. Nevertheless, given the nature of the issue, it will not be long before a similar incident takes place. Next time, things could turn ugly, with two navies possibly facing each other to protect their interests, as happened in the Ambalat spat between the Indonesian and Malaysian navies a few years ago. The Australian government argues that denying these particular boats is permissible under international law, provided the policy does not endanger the safety of the people on board.  In practice, exercising this act can be challenging, if not daunting, considering the length of distance and the minimum preparations these boats have made.  Many times the media has highlighted the poor condition of the people onboard these boats. They are either in urgent need of help or are unaware of their situation. It is unclear how the ABPC rendered its decision to turn back these boats, particularly when the people on board were in a poor condition.   The Indonesian government says the turn-back boat policy does not solve the issue as it will only create an endless vicious cycle. It does not take a genius to understand how the cycle works if all related states — be it origin, transit or destination states — practice the same approach.  It is the people on the boats that will suffer the most should the turn-back policy be adopted by all related states. Given the aforementioned conditions, there are at least two main issues at hand. First is sovereignty — being the acts of boarding, towing and forcing boats to another state’s waters — and second is the humanitarian issue — with regard to the safety of the people aboard the boats.  On the first issue, towing and forcing boats out of one’s waters may be justifiable under international law, particularly under the 1982 United Nations Convention on the Law of the Sea (UNCLOS) where both states are parties, but certainly a clear violation thereof is if such acts are stretched to steering into another state’s territorial or contiguous waters. The rule of the thumb of the international law on sovereignty is that consent of the relevant state is mandatory — consent that is clear and explicit and does not rely on the doctrine of acquiescence or an assumed one.   The ABPC should first secure Indonesia’s explicit consent before the former decides to tow, force and steer boats to the latter’s waters.  The requirement of consent continues that before boarding the boat, the ABPC must also obtain explicit consent from the relevant flag state. Thus, if the boat is under the Indonesian flag, then the ABPC not only must secure boarding but also steering consent from the Indonesian authorities.  In the absence of such consent, the Indonesian authorities have every right with the necessary means under international law to protect the country’s sovereignty and interests. In some extreme cases, it is considered an act of war to board a foreign boat without the consent of the relevant flag state, let alone infringing another state’s waters.   With regard to the second issue — humanitarian concerns — the UNCLOS mandates member states to render assistance to any person or boat found in danger on the high seas. Further, a regional arrangement is called upon coastal states to ensure safety on and over the sea.  The 2013 Jakarta Declaration on addressing the irregular movement of persons and the 2002 Bali Process on people smuggling, trafficking in persons and related transnational crime were among the answers to the call.  Alas, these answers are now only pro forma due to the standoffs between the two major players. Taking into account the final destination of these boats, Australia carries a relatively higher burden to render assistance compared to that of origin or transit states. Australia may continue the turn-back boat policy, but Indonesia’s strong protests indicate that this issue is not cricket. Although Indonesia is not designed to be invasive in character, history has shown that when it comes to an infringement of sovereignty, its people will defend their territory at all costs. As a matter of choice, Indonesia has set out the six-point roadmap as a prerequisite for the resumption of cooperation on security and defense, including on the irregular movement of persons. It is not clear whether Australia will agree and go along with the prerequisite, but looking at its response by exercising the turn-back boat policy, including the alleged infringement of Indonesia’s sovereignty, one can assume it will be long before cooperation on the irregular movement of persons takes full effect.  In the meantime, flocks of boat people, including women and children, will continue to stream into the region. Similar incidents will likely to occur in the future. Do we have a choice to resolve the issue? Yes we do.  In his book, President Susilo Bambang Yudhoyono argues that there is always a choice for everything. I could not agree more with the President and in the current context the choice is clear — it’s either with us or against us. ●