Breaching Sovereignty

Australia, Indonesia and the Law of the Sea

To seek to tow the boats back on to the high seas or to the Indonesian exclusive economic zone well exceeds Australia’s legal rights under the 1982 UN Convention of the Law of the Sea.

— Donald Rothwell, The Australian, Mar 10, 2012

Australia’s refugee policy, specifically with regards Indonesia, can be summed up as calculatingly brazen or breathtakingly incompetent.  Having admitted that Australian vessels entered Indonesia waters six times during the months of December and January, an internal report found that such incidents are the result of challenged calculations on the part of the Royal Australian Navy (RAN).

In so doing, the Australian government breached the Law of the Sea. As Tim Stephens explains in simple terms, “You can’t enter the territorial sea of another state unless you have the state’s permission or if you’re exercising something called innocent passage” (Sydney Morning Herald, January 17).  Cold water has been thrown on the prospects of legal action by Indonesia, largely, claim international law authorities, because of Canberra’s swift move to apologise and initiate a review.

The report “Joint Review of Positioning of Vessels Engaged in Operation Sovereign Borders” doesn’t give high marks to the Australian Defence Forces and the Border Protection Service.  Nor is it particularly condemning.  The scope of the Review was to “independently investigate the facts and circumstances surrounding the entry of Australian vessels into Indonesian waters in connection with Operation Sovereign Borders (OSB) during the period 1 December 2013 to 20 January 2014.”

According to the report, “Crews intended to remain outside Indonesian waters.” Each one of these was “inadvertent and occurred as a result of miscalculation of Indonesian maritime boundaries by Australian crews.”

Two policy “constraints” are noted.  Activities must be conducted in a manner deemed safe by the Commanding Officer of the assigned vessel.  The second note of constraint is that, “Activities are only to be conducted outside 12 nautical miles from Indonesia’s archipelagic baseline.”  These limits were reiterated in mission instructions.

The underlying tone to the report, however, is not that Australian personnel breached international law and the sovereignty of another state.  Instead, emphasis is placed on contraventions of “Australian Government policy and operational instructions in relation to Operation Sovereign Borders.”  (A point worth noting is that such policy itself is probably a contravention of Australian law.)  The focus is probably intentional – to stress violations in international law would be an embarrassing detail to a government keen to speak about its own sovereign entitlements. The very name of the operation conducted against asylum seekers arriving by boat emphasises sovereign borders to begin with.  A play here is a battle of sovereign powers, staking their ground in the refugee debate.

The report has made 10 findings, accompanied by five recommendations.  The Chief of Navy and the head of Customs have been urged to review breaches “with regard to any individual lapses in professional conduct.”  The recommendations point to a worrying reality – that Australian personnel behind Operation Sovereign Borders are not necessarily well versed in the Law of the Sea.  In wording that again understates breaches of international law, the joint task force speaks of the need for a “tactical appreciation of UNCLOS [UN Convention of the Law of the Sea].”

While RAN Commanding Officers had “received the requisite professional training and experience” to be aware of UNCLOS provisions in calculating Indonesia’s maritime boundaries, the customs commanders did not.  The question of how these errors could have possibly been committed – repeatedly – remains.

The Australian Foreign Minister, Julie Bishop, is keen to draw a line under the episode.  Grovel, a touch, and move on.  “Australia has been very candid and open about what was clearly an inadvertent understanding of the territorial boundaries.”  Rather disingenuously, the minister proceeded to explain that Australian authorities did, in fact, respect Jakarta’s territorial integrity.  Sounding like the dispensing powers granted by a priest to his confessor, the mistake, once acknowledged with profuse apologies, could be made good.

The head of Customs and Border Protection, Michael Pezzullo, has also followed Bishop’s example.  “The Government has apologised to that country, Indonesia, unreservedly for the incursion… and … I add my apology to what’s already been stated” (ABC, Feb 14).

The countries have also shown different interpretations as to what an apology in this episode means.  As Untung Suropati, a spokesperson from the Indonesian Navy, explained to the ABC, the Federal Government’s official stance was effectively an apology via media release.  Besides, given the state of equipment available to the navy, it would have been inconceivable that the RAN had made the mistake, not once, but six times.  “In this day and age, navigation equipments [sic] to determine [the] position of war vessels are very modern” (ABC, February 20).  To paraphrase Oscar Wilde, to err once might have been deemed a misfortune; to have done so five times more suggests an astonishingly high degree of carelessness.

In 2012, a secret draft study authored by Border Protection Command outlined the risks adopting such a policy as Operation Sovereign Borders would entail.  It would pit Australian sailors in pitched battles with asylum seekers. It would demoralise the Defence forces – “possible consequences will be greater incidents of post-traumatic stress disorder.”

Countries that have embarked on a path of forcibly returning boats to their origins have had to relent, be it Italy in 2009 with Libyan vessels, or Thailand’s policy of pushing boats filled with Rohingya Burmese to sea (The Australian, March 10, 2012).  The Howard government similarly followed that path between 2001 and 2003, turning eight boats back into Indonesian waters.  The Abbott government has taken heart from it.  Breaching the Law of the Sea is becoming habitual. For the government, it has even become an imperative.

Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne and can be reached at: bkampmark@gmail.com. Read other articles by Binoy.