¹ The fate of Jewish refugees fleeing Nazi persecution is well documented in Thomas, G and Witts, M Morgan, The Voyage of the Damned (LondonCoronet 1976).Google ScholarDuring the 1970s thousands fled Indo-China. See Grant, B, The Boat People (MelbournePenguin 1980);Google ScholarAlso Pugash, JZ, ‘The Dilemma of the Sea Refugee: Rescue without Refuge’ 18 Harvard International Law Journal (1977) 577.Google ScholarMore recently America has faced problems dealing with a large number of refugees from Cuba and Haiti. See Frelick, B, ‘Haitian Boat Interdiction and Return: First Asylum and First Principles of Refugee Protection’ 26 Cornell International Law Journal (1993) 675.Google ScholarAlthough the particular plight of those on board the MV Tampa has since been resolved, other cases are likely to arise. The incidence of people smuggling by sea is steadily increasing. See Oceans and the Law of the Sea: Report of the Secretary General, UN GAOR, 56th Sess, Agenda Item 30(a), at 11, UN Doc A/56/58/Add 1 (5 Oct 2001).Google Scholar

² See Derrington, S and White, M, ‘Australian Maritime Law Update 2001’ 33 Journal of Maritime Law and Commerce (2002) 275.Google Scholar

³ Vardarlis v Ruddock 64 ALD 67Google Scholar

⁴ See Peyser, E, ‘“Pacific Solution”? The Sinking Right to Seek Asylum in Australia’ 11 Pacific Rim Law & Policy Journal (2002) 431.Google Scholar

⁵ United Convention on the Law of the Sea 1982, XXI ILM (1982) 1245. Hereinafter, ‘1982 Convention’.Google Scholar

⁶ Convention for the Safety of Life at Sea 1974, 1980 UKTS 46.Google Scholar

⁷ Entry into force 1986. 1986 UKTS 59. As amended in 1998. Cmnd 7994. Also available at <http://www.austlii.edu.au/au/other/dfat/treaties/1986/29.html> (checked 1 Dec 2002)+(checked+1+Dec+2002)>Google Scholar

⁸ Convention Relating to the Status of Refugees 1951, 189 UNTS 150.Google Scholar

⁹ See.eg, Art 14 of the Timor Gap Treaty 1989, 1991 ATS 9. In any case, the role of Indonesia in the incident was minimal. As the ferry's State of origin, and the transit State, more might have been expected of Indonesia, but this was limited to an offer to bring the refugees to the port of Merak. Once it was clear that the refugees would be heading for Australia this offer was withdrawn. This does not of course free Indonesia from criticism.Google Scholar

¹⁰ In the eighteenth century de Vattel recognized the special humanitarian consideration owing to vessels in distress. de Vattel, E, The Law of Nations (Chitty, J, trans) (London 1834), 170.Google Scholar

¹¹ The humanitarian aspect of this rule is well reflected in the dicta of Cockburn, CJ in Scaramanga v Stamp [1880] 5 CPD 295, 304. ‘To all who have to trust themselves to the sea it is of utmost importance that the promptings of humanity in this respect should not be checked or interfered with by prudential considerations as to injurious consequences which may result to a ship or cargo from the rendering of the needed aid.’ This view was shared by the International Law Commission with regard to Art 12 of the Geneva Convention on the High Seas 1958. See UN doc A/3179 (1956). The obligation is well founded in conventional law. See Art 11 of the 1910 International Convention for the Unification of Certain Rules Relating to Assistance and Salvage at Sea, British and Foreign State Papers, vol 103, 434; Art 12 of the 1958 Geneva Convention on the High Seas, 450 UNTS 11; Chapter V, Reg 10(a) of SOLAS above n 6; Art 10 of the International Convention on Salvage 1989,1996 UKTS 93. Doctrinal opinion fully supports the obligation.Google ScholarSee Colombos, CJ, International Law of the Sea(LondonLongman Green & Co 1954), § 304;Google ScholarO'Connell, DP, The International Law of the Sea (OxfordClarendon Press 1982) 813–14.Google Scholar

¹² In the UK the master of a vessel has the duty, upon receiving a distress signal, to proceed to their assistance unless he is unable, or in the circumstances it would be unreasonable or unnecessary to do so. Failure todo so is a criminal offence. See sub-sections 93(1) and (2) of the Merchant ShippingAct 1995.Google Scholar

¹³ Art 11 of the Brussels Salvage Convention provides that the duty to assist applies to ‘everybody, even though anenemy, found at sea in danger of being lost’. Above n 11. Art 2.1.10 of the SAR Convention requires assistance to be provided regardless of the nationality or status of personsto be rescuedor the circumstances in which that person is found. Above n 7.Google Scholar

¹⁴ See Report of the 28th Session of the Executive Committee, A/AC.86/549, paras 21–36 B(d), (e). Also EXCOM Conclusions No 23 (XXXII) 1981 and No 38 (XXXVI) 1985; IMO Resolution 920(22) 2001.Google Scholar

¹⁵ Norway, under s 135 of the Norwegian Maritime Code, imposes a general obligation on masters to render assistance. This does not apply to masters of foreign vessels. Neither is it a criminal offence to violate the rule. Section 12 of the Norwegian Penal Code only extends to crimes committed onboard Norwegian vessels. Davies notes that both the US and Australia have not fully translated the obligation into domestic law. See Davies, M, ‘Obligations and implications for ships encountering persons in need of assistance at sea’ 12 Pacific Rim Law & Policy Journal (2003) 128–133.Google Scholar

¹⁶ Oxman and Coombs note that in practice no-one expects Liberia, a flag of convenience State, to extradite, try and punish those committing crimes on board vessels flying their flag. Oxman, BH and Coombs, M, ‘Jurisdiction—Constitutionality ofthe U.S. State's Jurisdiction Over Criminal Acts Occurring on the High Seas—Consistency of Such Jurisdiction With International Law—Effects Doctrine’ 95 AJIL (2001) 438, 442.Google Scholar

¹⁷ Davies stresses that the commercial consequences to the ship operator of assisting those in distress can be considerable. Davies, above n 15, 133. Either the ship owner or charter will bear the costs of delay, which can run into tens of thousands of pounds per day, and such losses are not normally covered by ship's P & I insurance cover. See, eg, Rule 2 Section 7 of UK P & I Club cover. Available at <http://www.ukpandi.com/Rules2002/Rules_02.pdf> (checked 1 Dec 2002). In the case of the Tampa only 30–40 per cent of the owners losses were reimbursed by their P & I insurer. The Tampa was covered by Assuranceforingen Gard. Rule 32 of the cover provides that: ‘The Association shall cover costs and expenses reasonably incurred in consequence of the Ship having stowaways, refugees or persons saved at sea on board, but only to the extent that the Member is legally liable for the costs and expenses or they are incurred with the approval of the Association. The cover does not include consequential loss of profit or depreciation’. Available at <http://www.gard.no/Publlications/statutesandrules/rules/p2_chapterl.html> (checked 1 Dec 2002)+(checked+1+Dec+2002).+In+the+case+of+the+Tampa+only+30–40+per+cent+of+the+owners+losses+were+reimbursed+by+their+P+&+I+insurer.+The+Tampa+was+covered+by+Assuranceforingen+Gard.+Rule+32+of+the+cover+provides+that:+‘The+Association+shall+cover+costs+and+expenses+reasonably+incurred+in+consequence+of+the+Ship+having+stowaways,+refugees+or+persons+saved+at+sea+on+board,+but+only+to+the+extent+that+the+Member+is+legally+liable+for+the+costs+and+expenses+or+they+are+incurred+with+the+approval+of+the+Association.+The+cover+does+not+include+consequential+loss+of+profit+or+depreciation’.+Available+at++(checked+1+Dec+2002)>Google Scholar

¹⁸ Under the common law, commercial considerations are no reason for failing to respond to a distress call. See Scaramanga v Stamp above n 11. It is notable that although vessels assisting people in distress may be severely inconvenienced, they are protected against loss by P & I cover, which specifically provides for cover to reimburse vessel owners against such losses. However P & I cover is often inadequate in this respect.Google Scholar

¹⁹ Para 1.3.2.Google Scholar

²⁰ Vol III, s 2.Google Scholar

²¹ Although the survivors must be brought to shore, there is no authoritative determination of this. This point is discussed below as it is also relevant to an evaluation of the coastal States obligations.Google Scholar

²² This is now regulation V–7(3) under the SOLAS 2000.Google Scholar

²³ As per Arts 58(2) and 86.Google Scholar

²⁴ Oxman denies that the coastal State could somehow rely on its sovereign authority in the territorial sea to exclude itself from any search and rescue obligations, arguing that preclude emergency rescue is a perverse insult to any rational concept of territorial sovereignty at sea. Oxman, BH, ‘Human Rights and the United Nations Convention on the Law of the Sea’ 36 Columbia Journal of Transnational Law (1997) 399, 414.Google Scholar

²⁵ Para 2.1.1. Above n 7.Google Scholar

²⁶ Ibid, para 2.1.10.

²⁷ Ibid, para 1.3.2

²⁸ Rosaeg, E, ‘Refugees as rescuees—the Tampa problem’ (pending publication in SIMPLY. Copy on hand with the author), s 3.4. It is possible to argue the refusal to allow persons to disembark only arises when enshrined in a law, rule of regulation, and not as a matter of policy.Google Scholar

²⁹ Ibid.

³⁰ Para 3.1.2.Google Scholar

³¹ The question of whether the Tampa was actually in distress is considered in below in respect of access to ports and rights of refuge.Google Scholar

³² See Davies, M, above n 15. Cf White, M, ‘MV Tampa Incident and Australia's Obligations’ 122 Maritime Studies (2002) 7,10.Google Scholar

³³ Arts 2 and 3.Google Scholar

³⁴ Art 18.Google Scholar

³⁵ Ibid.

³⁶ Art 21(l)(h) provides coastal States with the corresponding authority to enact laws to prevent the infringement of customs, fiscal, immigrations or sanitary laws, and regulations of the coastal State.Google Scholar

³⁷ Art 21(3). Notably there was no legislation in force that justified Australia's actions at the time, and this was only achieved through legislation purporting to have retroactive effect. See below n 90 and the accompanying text.Google Scholar

³⁸ Art 32(2).Google Scholar

³⁹ Peyser notes that over 100 asylum-seekers had entered Australia the week preceding the Tampa crisis. Peyser, above n 4, at 448, citing Mason, J, ‘Paying the Price: Australia, Indonesia Join Forces to Stop “Irregular Migration” of Asylum-seekers’, 22 Refugee Reports (2001) 1, 8. Of course there is a difficulty with this argument, in that the conduct of a State in exercising its discretion cannot be presumed to give rise to an estoppel against a change in the exercise of that discretion. However, it may suggest that the State is not acting in accordance with the principle of good faith.Google Scholar

⁴⁰ Art 25(1).Google Scholar

⁴¹ See Goodwin-Gill, GS, The Refugee in International Law (2nd ednOxfordOxford University Press 1996), 162Google Scholar

⁴² Shaw, makes the point that ‘international law permits freedom of action for states, unless there is a ruleconstraining this’.Google ScholarShaw, M, International Law (4th ednCambridge Grotius Press 1997), 150. See the Lotus case, (1928) PCIJ Series A, No 10, 18.Google Scholar

⁴³ Lowe, AV, ‘The Right of Entry into Maritime Ports in International Law’ 14 San Diego Law Review (1977) 597, 619Google Scholar

⁴⁴ In the Nicaragua case, the ICJ confirmed that internal waters are subject to the sovereignty of the State and that it is ‘by virtue of its sovereignty that the coastal State may regulate access to its ports’, ICJ Reports (1986) 14, at paras 212–13.Google Scholar

⁴⁵ 515 UNTS 205.Google Scholar

⁴⁶ See Art 2 of the Convention and Statute on the International Regime of Maritime Ports, 119 BFSP (1924) 568; 58 LNTS 287.Google Scholar

⁴⁷ Chircop, notes that many States have entered into bilateral agreements to guarantee port access. However, theseagreements are not of a ‘norm creating character’ and do not establish a customary right or entry.Google ScholarChircop, A, ‘Ships in Distress, Environmental Threats to Coastal States and Places of Refuge: New Directions for an Ancien Regime’ 33 Ocean Development and International Law (2002) 207, 210.CrossRefGoogle Scholar

⁴⁸ Art 16 of the Maritime Ports Convention. Above n 46. See also Art 5(2) of the Convention for the Facilitation of International Maritime Traffic, which provides for denial of entry on the grounds of ‘public morality, order, and security or to prevent the introduction or spread of disease or pests affecting public health, animals, or plants’. 4 ILM (1965) 501. Doctrinal opinion is predominantly in favour of States having the power to limit entry to their ports. See McDougal, MS and Burke, WT, The Public Order of the Oceans (New HavenYale University Press 1962), 93;Google ScholarO'Connell, DP, above n 11, 848.Google ScholarCf Colombos, CJ, above n 11, § 141.Google Scholar

⁴⁹ Churchill, RR and Lowe, AV, The Law of the Sea (3rd ednManchesterManchester University Press 1999) 62.Google ScholarSee also Fayette, L de La, ‘Access to ports in international law’ 11 International Journal of Marine and Coastal Law (1996) 1.CrossRefGoogle Scholar

⁵⁰ The Creole (1853) Moore, , International Arbitration 824;Google ScholarThe Kate E. Hoff case (The Rebecca) (1929) VI RIAA 444.Google Scholar

⁵¹ Colombos, , above n 11, p 129. Churchill, and Lowe, , above n 49, 63.Google Scholar

⁵² The Toledo, MV [1995] 2 ILRM 30, at 48–9.Google Scholar

⁵³ [1809] Edw 135.Google Scholar

⁵⁴ Ibid.

⁵⁵ Ibid.

⁵⁶ See UN Press Releases GA/9980 27 11 2001 and GA/9981 28 Nov 2001.Google Scholar

⁵⁷ According to Chapter 1, Regulation 2(g) a cargo ship is any ship which is not a passenger ship. Regulation 2(f) provides that a passenger ship is a ship which carries more that twelve passengers. Passenger ships are under a series of additional safety requirements under Chapter III, part B, section II.Google Scholar

⁵⁸ Art 94(1) of the 1982 Convention, above n 5.Google Scholar

⁵⁹ Ibid, Art 94(3).

⁶⁰ As the Norwegian Ambassador to Australia stated: ‘The Norwegian position is that we have fulfilled all our obligations, that we have rescued the people and brought them to the closest harbour’. See McDonald, Hamish and Crichton, Sarah, ‘We've Done All We Can, Says Norway's Shuttle Diplomat’, SydneyMorning Herald, 1 09 2001, at 1.Google Scholar

⁶¹ Chircop, , above n 47,215.Google Scholar

⁶² Warrior, Rainbow (New Zealand v France), France New Zealand Arbitration Tribunal 30 Apr 1990. Reproduced in 82 International Law Reports (1990) 499. Although distress is discussed as a circumstance precluding international responsibility it remains applicable to the present case. The decision of the tribunal relies on the commentary of the International Law Commission, which itself draws upon maritime practice as the basis of the notion of distress.(1973) Yearbook of the International Law Commission, vol II, 134, para 4.Google Scholar

⁶³ ILC, ibid, 135, para 10.

⁶⁴ Rainbow Warrior arbitration, above n 63, para 79.Google Scholar

⁶⁵ A similar rational appears to underpin Devine distinction between true distress and selfinflicted distress. Thus the element of volition that characterises self-inflicted distress results in a loss of immunity from coastal State jurisdiction. Devine, DJ, ‘Ships in distress—a judicial contribution from the South Atlantic’ 20 Marine Policy (1996) 229Google Scholar

⁶⁶ Notably, the ILC refer to the element of choice, or rather the lack of choice as being a highly relevant consideration concerning distress. ILC, above n 62, 133, para 2.Google Scholar

⁶⁷ See Art 1 of the UDHR, General Assembly Resolution 217A(III) GAOR, 3rd Session, part I, Resolutions, 71; the preamble of the International Convention on the Elimination of All Forms of Racial Discrimination 1966, 60 UNTS 195; the preamble of the ICCPR, 999 UNTS 171; the preamble of the ICESCR 1966, 993 UNTS 3.Google ScholarThe Human Rights Committee have on a number of occasions reiterated that human rights obligations cannot be avoided by extraterritorial exercises of jurisdiction. See Nowak, M, UN Covenant on Civiland Political Rights: CCPR Commentary (KehlNP Engel 1993) 41–3.Google Scholar

⁶⁸ See, eg Art 2 of the Universal Declaration of Human Rights, which provides that: ‘Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’ Ibid.Also, Art 2(1) of the International Covenant on Civil and Political Rights 1966. Ibid.

⁶⁹ The relevance of general human rights is apparent when the specific refugee rules are read in accordance with instruments such as the ICCPR. Art 9 of the ICCPR guarantees the right ‘not to be deprived of [one's] liberty except on such grounds and in accordance with such procedures as are established by law’.If a person has been deprived of his liberty, he is entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention. See Carballal v Uruguay 1 Selected Decisions Human Rights Committee (1981) 63. Voulanne v Finland HRC Report, GAOR, 44th Sess, Supp 40 (1989) 249.Google Scholar

⁷⁰ UDHR, above n 67. It should be noted that a number of commentators have denied Art 14 any legal status. Thus, Brownlie does not consider Art 14 to be indicative of a legal rule. Brownlie, I, Principles of Public International Law (OxfordClarendon Press 1988) 575.Google ScholarAlso Lauterpacht, H, International Law and Human Rights (LondonStevens 1950) 421.Google ScholarCf Pallis, , who argues that subsequent declarations and statements mean that such a right cannot be ignored.Google ScholarPallis, M, Obligations of States towards Asylum Seekers at Sea: Interactions and Conflicts Between Legal Regimes' 14 International Journal of Refugee Law (2002) 329, 346.CrossRefGoogle Scholar

⁷¹ Convention relating to the Status of Refugees 1951. 189 UNTS 150. The Refugee Convention has a protocol—United Nations Protocol to the Convention relating to the Status of Refugees 1967, 606 UNTS 267.Google Scholar

⁷² Art 31(1): ‘The Contracting State shall not impose penalties, on account of their illegal entry or presence, on refugees who coming directly from a territory where their life or freedom was threatened in the sense of [A]rticle 1, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.’ It may be open to argue that as the Tampa refugees did not come directly from the State of origin, they are not covered by this provision.Google Scholar

⁷³ This provision is important as it ensures that refugees are entitled to protection under due legal process. This would include protection against retroactive penalties. This aspect of the Tampa crisis is commented on below. See n 90 and the accompanying text.Google Scholar

⁷⁴ Similar difficulties arise in respect of stowaways. Thus the provision for the disembarkation of stowaways to the appropriate authority under Art 2(2) of the Stowaways Convention 1957 has proved to be unacceptable to States, and has lead to rejection of the Convention.Google Scholar

⁷⁵ It has been common practice for flag States to provide resettlement guarantees to coastal States before they can disembark asylum-seekers. However it is doubtful that this expedient practice has become customary international law according to the criteria set out in the North Sea Continental Shelf cases ICJ Reports (1969) 1, at paras 73 ff.Google Scholar

⁷⁶ There is no general obligation to allow the disembarkation of refugees. See Goodwin-Gill, , above n 41, at 138;Google ScholarPugash, J, ‘The Dilemma of the Sea Refugee: Rescue Without Refuge’ 18 Harvard International Law Journal (1977) 577.Google ScholarSchaffer, R, ‘The Singular Plight of Sea-borne Refugees’ 8 Australian Yearbook of International Law (1983) 213.Google ScholarAlso, see the discussions at the IMO Facilitation Committee. IMO Doc FAL29/18, para 7.Google Scholar

⁷⁷ Goodwin-Gill, , above n 41, 157.Google Scholar

⁷⁸ They have suggested this procedure was considered so obvious that it was not found necessary in any of the relevant instruments to stipulate an express obligation for the country of the first port of call to permit the disembarkation of rescued persons. See UNHCR, Problems Related to the Rescue of Asylum-Seekers in Distress at Sea, 26 08 1981. UN Doc EC/SCP/18, paras 19–20. The disembarkation of persons rescued at sea can be taken ‘as implicit in the practice of States and in the various provisions referred to above’. Ibid, para 21.Google Scholar

⁷⁹ Ibid.

⁸⁰ Difficulties may arise when asylum is refused by a State on the grounds that asylum could be sought from another State. Unless a particular State is under an obligation to admit such persons, rejection at the frontier may result in refugees being left in orbit. Although this situation is highly unsatisfactory, nothing has, as yet, been done address this aspect of non-refoulement. See, eg, the additional para to Art 1 of the obsolete 1977 Draft UN Convention on Territorial Asylum, UN doc A/CONF.78/12 21 (04 1977).Google ScholarThere is some support for the view that refusal to admit persons in such circumstances amounts to a breach of non-refoulement. See EXCOM Conclusion No 15 (XXX)—1979.Google ScholarAlso Goodwin-Gill, , above n 41, p. 90;Google ScholarCrawford, J and Hyndman, P, ‘Three Heresies in the Application of the Refugee Convention’ 1 International Journal of Refugee Law (1989) 155, 167–73.Google Scholar

⁸¹ Goodwin-Gill notes that national security and public order has generally been recognised as an exception to non-refoulement. Above n 41, 139. See, eg, Art 3 of the Refugee Convention 1933, 159 LNTS 199;Google ScholarArt 5(2) Convention concerning the status of refugees coming from Germany 1938, 192 LNTS 591;Google ScholarArt 111(3) of the Asian-African Refugee Principles 1966, Report of the Eighth Session of the Asia-African Legal Consultative Committee (Bangkok, 8–17 Aug 1966), cited in E Lauterpacht and D Bethlehem, ‘The Scope and Content of the Principle of Non-Refoulement’ (UNHCR Opinion, 20 06 2001), para 218. Available at <http://www.unhcr.ch> (checked 18 Apr 2003);+(checked+18+Apr+2003);>Google ScholarArt 3(2) of the 1967 General Assembly Declaration on Territorial Asylum, UNGA Res. 2312(XXII). Cf Art II of the OAU Convention relating to the Specific Aspects of Refugee Problems in Africa 1969, 1000 UNTS 46. More recently the issue of national security has arisen in the context of refugee camps or settlements, where armed group may be organised and military objectives promoted. See Executive Committee of the High Commissioner's Programme, Report of the Fifty Third Session of the Executive Committee of the High Commissioner's Programme (Geneva, 30 09–4 10 2002), para 23. UN Doc. A/AC.96/973Google Scholar

⁸² See Lauterpacht and Bethlehem, ibid, para 218(e).

⁸³ Art 33(2). However these provisions are couched in terms of the individual rendering group refusals unlawful as in the case of the Tampa.Google Scholar

⁸⁴ See Goodwin-Gill, , above n 41, 191–3.Google ScholarLauterpacht and Bethlehem note that implementation of the non-refoulement provision indicates a range of exceptions to the principle often, though not always, reflecting the Art 33(2). Such practice indicates a broad support for the general principle. Above n 81, para 158, n 103. However it is the devil in the detail that serves to reduce the effectiveness of this obligation in practice.Google Scholar

⁸⁵ This restrictive approach is evident in a number of decisions of the immigration minister that adopt a restrictive definition refugee for purposes of the 1951 Convention.Google ScholarSee, eg, Gunaleela v Minister for Immigration and Ethnic Affairs (1987) 74 ALR 263.Google ScholarA decision of the Minister was challenged on the grounds that he had assumed that to satisfy the definition of refugee under the 1951 Convention it was necessary for a person to be singled out.Google ScholarCrawford, and Hyndman, point out a number of instances where this requirement for individualisation as an element of persecution has been a consideration of Australian immigration authorities. Above n 80, 159–67.Google Scholar

⁸⁶ Although Australia is a party to the Refugee Convention 1951 it has not implemented it directly into domestic law. See Crock, M, ‘A Sanctuary Under Review: Where to From Here for Australia's Refugee and Humanitarian Program’ 23 University of New South Wales Law Journal (2000) 246, 256.Google ScholarHistorically, Australia maintained a strict immigration policy based on racial and ethnic discrimination commonly known as the ‘White Australia policy’. This policy was reversed in the late 1950s.Google ScholarIt has, however, been making something of a revival. Australia's geographic position and relative economic wealth and stability make it the main destination for both economic migrants and genuine asylum-seekers.Google ScholarThe large influx of legal and illegal aliens means that border control has been a key feature of the domestic political agenda. See Birrell, R, ‘Immigration Control in Australia’, 534 Annals of the American Academy of Policy & Social Science (1994) 106,108.CrossRefGoogle Scholar

⁸⁷ Migration Regulations of 1994, sched 2, pt 866Google Scholar

⁸⁸ Migration Regulations 1994, sched 2, pt 785.Google ScholarEsmaeli and Wells are critical of this process as inconsistent with the non-refoulement principle in that holders of Temporary Protection Visa will eventually be returned to their country of origin.Google ScholarEsmaeili, H and Wells, B, ‘The “Temporary” Refugees: Australia's Legal Response to the Arrival of Iraqi and Afghan Boat-People’ 23 University of New South Wales Law Journal (2000) 224, 238–40.Google Scholar

⁸⁹ Ruddock, Hon Phillip, ‘Refugee Claims and Australian Migration Law: A Ministerial Perspective’ 23 University of New South Wales Law Journal (2000) 1, 4Google Scholar

⁹⁰ 183 ALR 1. In Vardarlis v Ruddock, above n 3, it was argued that the Federal Government had acted unconstitutionally by detaining the asylum-seekers onboard the Tampa.Google Scholar

⁹¹ Border Protection (Validation and Enforcement Powers) Act 2001;Google ScholarMigration Amendment (Excision from Migration Zone) Act 2001;Google ScholarMigration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001;Google ScholarMigration Legislation Amendment Act, No 1, 2001;Google ScholarMigration Legislation Amendment Act, No 5, 2001;Google ScholarMigration Legislation Amendment Act, No 6, 2001;Google Scholarand the Migration Legislation Amendment (Judicial Review) Act 2001.Google Scholar

⁹² Part 2, s 4 provides that the ‘Validation period’ means the period starting on 27 08 2001 and ending at the beginning of the day on which this Act commences. Section 6 further provides that ‘All action to which this Part applies is taken for all purposes to have been lawful when it occurred.’ Thus the actions of those persons authorising and acting to detain the Tampa are deemed to be retrospectively lawful.Google Scholar

⁹³ Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001.Google Scholar

⁹⁴ Art 40 of the Refugee Convention, which details the territorial scope of the convention, envisages the extension of its application to territories under the control of the State party, rather than its withdrawal. To exclude significant parts of a State's territory from the scope of the convention would run counter to the object and purposes of the convention.Google Scholar

⁹⁵ Migration Legislation Amendment Act, No 1, 2001.Google Scholar

⁹⁶ For a summary of this see Goodwin-Gill, above n 41, 158–60.Google Scholar

⁹⁷ UN Doc A/AC.96/SR.317, para 47. Noted in Goodwin-Gill, above n 41, 159.Google Scholar

⁹⁸ UN Doc A/AC.96/SR.319, para 27. Ibid.

⁹⁹ UN Doc A/AC.96/SR.319, para 4. Ibid.

¹⁰⁰ Often the registration of ships is a paper exercise designed to generate some revenue for the flag economy, and it is often the case that States which operate open registries have little financial capacity for regulating and enforcing shipping regulations, much less absorbing the costs of resettling refugees.Google Scholar

¹⁰⁰ UN Doc EC/SCP/21, para 6.Google Scholar

¹⁰² Above n 41 at p 91. He notes that the South East Asia solution of resettlement guarantees was dictated by the exigencies of the time, rather than through the normal customary process.Google Scholar

¹⁰³ Ibid.

¹⁰⁴ This view was taken on board by the Executive Committee of the UNHCR. See the Report of the Working Group on the problems related to the rescue of asylum seeker in distress at sea, UN Docs EC/SCP/21 and EC/SCP/24.Google Scholar

¹⁰⁵ Fitzpatrick has criticized the Refugee Convention for its ambiguity, in particular for its lack of protection for refugees interdicted at sea. Fitzpatrick, J, ‘Revitalizing the 1951 Refugee Convention’ 9 Harvard Human Rights Journal (1996) 229, 232.Google ScholarCf Pallis, , who construct an argument in favour of allowing asylum-seekers rescued at sea to advance claims for asylum. Above n 70, 341 ff.Google Scholar

¹⁰⁶ Goodwin-Gill, above n 41, 178.Google Scholar

¹⁰⁷ The obligation of non-refoulement only applies to a certain category of persons. Therefore the State must, at the point any claim is advanced, consider the status of such persons. Once the status has been determined then the State becomes subject to further obligations under the 1951 Convention.Google Scholar

¹⁰⁸ Conventional obligations appear to be defined in terms of territory, the term being used repeatedly.Google ScholarSee, eg, Art 14–19, 23–8, 31, and 32. However, it must be noted that the Refugee Convention was designed to tackle the refugee situation in continental Europe post Second World War when most refugees arrived across land borders.This is clearly not always the case in contemporary international society.Google Scholar

¹⁰⁹ Thus Professor Rosaeg questions whether, as in the Tampa incident, it could apply to persons at the border, ie on board a vessel within the jurisdiction of the coastal State. Rosaeg, above n 28, s 4.2.2.Google Scholar

¹¹⁰ A distinction can be drawn between the scope of the non-refoulement obligation and the practical processing of asylum claims. The former may extend to those areas where the State exercises competence, whereas the latter are limited by practical convenience.Google Scholar

¹¹¹ Thus the UN Human Rights Committee has construed Art 7 of the ICCPR, as including a component of non-refoulement. See General Comment No 20 (1992), HRI/HEN/1/Rev 1, 28 07 1994, para 9.Google ScholarSimilarly, the ECHR has interpreted Art 3 of the European Convention on Human Rights as including an element of non-refoulement. See, eg, Soering v United Kingdom, 98 ILR 270, para 88.Google Scholar

¹¹² See Lóopez Burgos v Uruguay, Communication No 52/1979, Views of the Human Rights Committee of 29 07 1981, at para 12.1–12.3;Google Scholarde Casariego v Uruguay, Communication No 56/1979, Views of the Human Rights Committee of 29 July 1981, para 10.1–10.3;Google ScholarLoizidou v Turkey, repr in 103 International Law Reports 622, para 62–3.Google Scholar

¹¹³ International Law Commission, Articles on the Responsibility of States for Internationally Wrongful Acts, A/CN.4/L.602, 31 05 2001. See generally Arts 4–9Google Scholar

¹¹⁴ 1155 UNTS 331; (1969) 3 ILM 679.Google Scholar

¹¹⁵ Ibid, Art 31.

¹¹⁶ Ibid, Ibid, Art 31(1).

¹¹⁷ Art 27.Google Scholar

¹¹⁸ Art 2(1) of the 1982 Convention provides that ‘[t]he sovereignty of a coastal State extends, beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea.’Google Scholar

¹¹⁹ See O'Connell, DP, ‘The Juridical Nature of the Territorial Sea’ XLV BYIL (1971) 303, 381.Google Scholar

¹²⁰ Eg, Australia specifically extends domestic legislation to the territorial sea. Acts Interpretation Act 1901, s 15B, 1(b). Aust notes that territory for the purposes of the Vienna Convention includes the territorial sea. Aust, A, Modern Treaty Law and Practice (CambridgeCambridge University Press 2000) 162.Google Scholar

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¹²⁴ Ibid 2563–6.

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¹³¹ Where the number of rescued persons is large the next port of call might be the nearest geographic port. Where the number is small then the next scheduled port of call could prove acceptable. See UNHCR, Background Note on the Protection of Asylum-Seekers and Refugees Rescuedat Sea (Lisbon, 25–26 Mar 2002), para 30. This document was discussed and approved by an expert round-table.Google Scholar

¹³² See EXCOM Conclusion No 14 (XXX)–1979, para C; EXCOM Conclusion No 15 (XXX)–1979, para c; EXCOM Conclusion No 23 (XXXII)–1981, para 3.Google Scholar

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¹³⁴ This could be achieved by, eg, redefining the extent of the obligation to deliver persons to a place of safety.Google Scholar

¹³⁵ See Fitzpatrick, J, ‘Temporary Protection of Refugees: Elements of a Formalised Regime’ 94 AJIL (2000) 279, 282 ff.CrossRefGoogle Scholar

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¹³⁸ Above n 135, 287.Google Scholar

¹³⁹ See, eg, France's introduction of international transit zones in airports, which were successfully challenged at the European Court of Human Rights. Amuur v France, 22 ECHR 533 (1996).Google Scholar

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¹⁴¹ Above n 135, 303 ff. Citing the Humanitarian Issues Working Group of the International Conference on the Former Yugoslavia, Survey on the Implementation of Temporary Protection (8 Mar. 1995) and Amnesty International, Former Yugoslav Republic of Macedonia: The Protection of Kosovo Albanian Refugees 18 (AI Index No EUR 65/03/99, 1999).Google Scholar

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¹⁴³ Fitzpatrick, above n 135, 295.Google Scholar

¹⁴⁴ Goodwin-Gill, , above n 41, 159.Google Scholar

¹⁴⁵ See, eg, EXCOM Conclusion No 22 (XXXII)–1981 and EXCOM Conclusion No 38 (XXXVI)–1985.Google Scholar

¹⁴⁶ Above n 131, para 39.Google Scholar

¹⁴⁷ Ibid, paras 40–5.

¹⁴⁸ Above n 131, para 40.Google Scholar

¹⁴⁹ Ibid, para 41.

¹⁵⁰ Ibid, para 42.

¹⁵¹ IMO Assembly Resolution A 920(22) (11 2001). These committees are further requested to take action to help ensure that ‘Survivors of distress incidents are provided assistance regardless of nationality or status or the circumstances in which they are found; ships, which have retrieved persons in distress at sea are able to deliver the survivors to a place of safety; and survivors, regardless of their nationality or status, including undocumented migrants, asylum seekers and refugees, and stowaways, are treated while on board, in the manner prescribed in the relevant IMO instruments and in accordance with relevant international agreements and longstanding humanitarian maritime traditions’.Google Scholar

¹⁵² 6th Session, 18–22 Feb 2002. Report available at: <http://www.imo.org/Newsroom/mainframe.asp?topic_id=271&doc_id=1989> (checked 1 Dec 2002).+(checked+1+Dec+2002).>Google Scholar

¹⁵³ Ibid.

¹⁵⁴ This meeting took place in July 2002. It is noted in Goodwin-Gill, , ‘Refugees and Responsibility in the Twenty First Century: More Lessons Learned from the South Pacific’ 12 Pacific Rim Law and Policy Journal (2003) 23, 43.Google Scholar

¹⁵⁵ Above n 131.Google Scholar

¹⁵⁶ Above n 81, para 21(b).Google Scholar

¹⁵⁷ Agenda for Protection, ibid, Annex IV, 38,49.