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Explainer: the legal implications of 'tow-backs'
Explainer: the legal implications of ‘tow-backs’
Australia has been engaging in “tow-backs” of asylum-seeker boats. This has involved intercepting boats carrying asylum seekers at sea, before they reach Australia, and forcing them to return to Indonesia.
It has also emerged that Australia entered Indonesian territorial waters during at least some of these “tow-backs”. Indonesia has responded strongly, stating that Australia’s entry into Indonesian waters is “a serious matter in bilateral relations”. Indonesia also announced it would set up its own maritime patrols.
Refugee Convention obligations
“Tow-backs” that deny asylum seekers access to Australian waters and territory are an attempt to avoid Australia’s legal obligations to asylum seekers.
However, such practices are misguided. Australia owes asylum seekers it returns to Indonesia a number of rights. This is the case even if they do not land in Australian territory or reach Australian waters.
Australia has voluntarily signed and ratified the United Nations Refugee Convention, which gives certain rights to refugees “towed-back” by Australia. The convention defines a refugee as an individual who is outside his or her country and is fleeing persecution. This may be as a result of his or her race, religion, nationality, membership of a particular social group or political opinion.
Asylum seekers who do not have a well-founded fear of persecution are not granted any rights under the convention. However, until asylum seekers have undergone a fair and effective process to accurately identify whether or not they are refugees, they should all be granted rights under the convention. This is to ensure that those asylum seekers who are indeed refugees are not wrongly denied rights.
As discussed in a previous article, refugees have differing rights under the convention depending on their connection to Australia. Certain rights are triggered only when refugees are in Australia or even when they are lawfully in Australia (for example, when they are given a visa).
Other rights, however, come into play at the point when Australia starts to exercise power over refugees. During “tow-backs” at sea, this point could be reached when Australia transfers refugees onto its own vessels or takes control of boats that the refugees are travelling on. At the point Australia takes control of the refugees, it exercises “jurisdiction” over them and becomes responsible for them.
Rights owed by Australia to refugees it tows back (on the high seas or even in Indonesian waters) include the right of access to the courts of Australia and the right of refugees to elementary education. The most important right, however, is the right to be protected from being returned to persecution.
Australia is prohibited from sending refugees back to a place where their lives or freedom would be threatened. Australia is also prohibited from sending refugees back to a place that may not protect them.
That is, Australia cannot take refugees back to Indonesia because Indonesia is not a party to the Refugee Convention. There is therefore nothing stopping Indonesia from returning the refugees to their home countries where they face persecution. As such, Australia cannot simply wash its hands of the individuals it tows back.
More at: Explainer: the legal implications of 'tow-backs'
Explainer: the legal implications of 'tow-backs'
Explainer: the legal implications of ‘tow-backs’
Australia has been engaging in “tow-backs” of asylum-seeker boats. This has involved intercepting boats carrying asylum seekers at sea, before they reach Australia, and forcing them to return to Indonesia.
It has also emerged that Australia entered Indonesian territorial waters during at least some of these “tow-backs”. Indonesia has responded strongly, stating that Australia’s entry into Indonesian waters is “a serious matter in bilateral relations”. Indonesia also announced it would set up its own maritime patrols.
Refugee Convention obligations
“Tow-backs” that deny asylum seekers access to Australian waters and territory are an attempt to avoid Australia’s legal obligations to asylum seekers.
However, such practices are misguided. Australia owes asylum seekers it returns to Indonesia a number of rights. This is the case even if they do not land in Australian territory or reach Australian waters.
Australia has voluntarily signed and ratified the United Nations Refugee Convention, which gives certain rights to refugees “towed-back” by Australia. The convention defines a refugee as an individual who is outside his or her country and is fleeing persecution. This may be as a result of his or her race, religion, nationality, membership of a particular social group or political opinion.
Asylum seekers who do not have a well-founded fear of persecution are not granted any rights under the convention. However, until asylum seekers have undergone a fair and effective process to accurately identify whether or not they are refugees, they should all be granted rights under the convention. This is to ensure that those asylum seekers who are indeed refugees are not wrongly denied rights.
As discussed in a previous article, refugees have differing rights under the convention depending on their connection to Australia. Certain rights are triggered only when refugees are in Australia or even when they are lawfully in Australia (for example, when they are given a visa).
Other rights, however, come into play at the point when Australia starts to exercise power over refugees. During “tow-backs” at sea, this point could be reached when Australia transfers refugees onto its own vessels or takes control of boats that the refugees are travelling on. At the point Australia takes control of the refugees, it exercises “jurisdiction” over them and becomes responsible for them.
Rights owed by Australia to refugees it tows back (on the high seas or even in Indonesian waters) include the right of access to the courts of Australia and the right of refugees to elementary education. The most important right, however, is the right to be protected from being returned to persecution.
Australia is prohibited from sending refugees back to a place where their lives or freedom would be threatened. Australia is also prohibited from sending refugees back to a place that may not protect them.
That is, Australia cannot take refugees back to Indonesia because Indonesia is not a party to the Refugee Convention. There is therefore nothing stopping Indonesia from returning the refugees to their home countries where they face persecution. As such, Australia cannot simply wash its hands of the individuals it tows back.
More at: Explainer: the legal implications of 'tow-backs'
