Operation "Sovereign Borders": the High Court of Australia Considers Implications of International Law

Introduction

On January 28, 2015, the High Court of Australia (Australia’s highest court) issued a decision examining the question of where to take a person who flees a country for fear of persecution and is intercepted in international waters by national authorities. The judgment arose from operation “Sovereign Borders,” Australia’s latest effort to stem the flow and resultant loss of life of people travelling without authorisation to Australia by sea.

In CPCF v Minister for Immigration and Border Protection (CPCF),[1] the Court had to determine the extent to which certain powers of detention and removal by maritime officers were constrained by Australia’s non-refoulement obligations (the duty not to return a person to a country in which he or she claims to have a well-founded fear of persecution). The judgment has since been legislatively overtaken by clarifying, for example, that the failure by these officers to consider such obligations did not invalidate the exercise of statutory power.[2] Nevertheless, the Court traversed several issues of broad international interest, in particular the extraterritorial application of these obligations and a state’s ability in the contiguous zone to prevent and punish infringements of specific laws applicable in the territorial sea.

Background

CPCF was a man of Tamil ethnicity who feared persecution in Sri Lanka, his country of nationality. He and 156 other persons were on board an Indian vessel bound for Christmas Island that was intercepted in the Indian Ocean on June 29, 2014 by an Australian border protection vessel within Australia’s declared contiguous zone. The Indian vessel became unseaworthy. The passengers were detained and transferred to an Australian vessel that then sailed towards India while diplomatic negotiations occurred. The Australian government decided on July 22, 2014 that it was not practicable to discharge the passengers in India within a reasonable time. The vessel then sailed to Australian territory at Cocos (Keeling) Islands, where the individuals were put into immigration detention. CPCF initiated proceedings in the High Court, alleging unlawful detention and seeking damages for wrongful imprisonment.

The Extraterritorial Application of Australia’s Non-Refoulement Obligations

Section 72(4) of the Maritime Powers Act 2013 (the Act) relevantly provided that a maritime officer may detain a person on a detained vessel and take the person to a place outside Australia. Under Section 74, the officer must be satisfied on reasonable grounds that it is safe for the person to be in that place.[3]

The plaintiff contended that the power conferred by Section 72(4) did not extend to taking a person to a place if that would occasion a breach of Australia’s non-refoulement obligations. These obligations arise from Article 33 of the 1951 Convention relating to the Status of Refugees (Refugee Convention)[4] and other human rights instruments.[5]

The United Nations High Commissioner for Refugees, as amicus curiae, submitted that the obligation of non-refoulement applies when states exercise effective control over asylum seekers outside their territory on board national vessels. States must first inquire whether third countries will guarantee that individuals will not be removed to places where they fear persecution without a refugee status determination.

The Australian government responded that the non-refoulement obligation under the Refugees Convention applies only to receiving states in respect of refugees within their territory, citing national judicial decisions.[6]

The High Court held by majority (4 to 3) that Section 72(4) authorised an officer to take certain steps by way of implementing an executive decision to detain the plaintiff and take him to India. For example, Chief Justice French concluded that the terms of Section 72(4) did not support a construction limiting the power “by reference to Australia’s non-refoulement obligations assuming they subsist extra-territorially.” However, Section 74 embraced risks of the kind to which those obligations were directed;[7] that is, both the statutory provision and non-refoulement obligations aim to protect the safety of people. Justice Keane considered the terms of the Act clear: the power conferred by Section 72(4) was not subject to observing Article 33 of the Refugee Convention.  Using compulsion to prevent the unauthorised entry into Australia of non-citizens outside Australia was consistent with both Australian legislation and the Convention, which concerns rights afforded to persons only within state territory.[8]

A minority of the justices concluded that the plaintiff’s detention was not authorised. Australia and India had no agreement about the plaintiff’s disembarkation, and he had no right or permission to enter India.[9] It was therefore unnecessary to decide whether the officer was empowered to act on the high seas contrary to Australia’s obligations.[10]

The Exercise of State Control to Prevent and Punish Infringements in the Contiguous Zone

CPCF illustrates judicial scrutiny of national legislative provisions that authorise naval personnel to detain individuals at sea and take them to a third country. Australia has employed naval personnel in border control operations since 2001. The benchmark incident was the controversial Norwegian-flagged “Tampa” episode (2001).[11] This was followed by Operation Relex (2001–2006), the predecessor to Operation “Sovereign Borders.” Operation Relex involved intercepting vessels in the contiguous zone and occasionally escorting or towing vessels back to Indonesia, with Indonesia’s concurrence. Without that concurrence, Australia’s current practice in some instances of putting people in provisioned life boats close to Indonesian waters draws criticism.[12]

Justices Hayne and Bell gave substantial but indeterminate judicial consideration in CPCF to a perceived degree of controversy concerning a coastal state’s powers under Article 33 of the United Nations Convention on the Law of the Sea.[13] That article relevantly provides that in a zone contiguous to the territorial sea (the contiguous zone), a coastal state may exercise the control necessary to prevent and punish infringements of its immigration laws within its territory or territorial sea. The contiguous zone may not extend beyond twenty-four nautical miles from the baselines from which the breadth of the territorial sea is measured.[14]

Australia has legislated its contiguous zone to the twenty-four mile limit.[15] However, it has pointedly circumscribed the exercise of its rights of control as a coastal state in the contiguous zone to accord with applicable commonwealth, state, and territory laws.[16] On this basis, Chief Justice French (in the majority) found that the Act did not preclude the exercise of maritime powers to take persons detained in the contiguous zone to another country so as to prevent a contravention of Australian immigration law.[17] In contrast, Justices Hayne and Bell considered some of the powers granted to Australian officials “exorbitant” and to “run counter to the normal rules of comity among civilised nations.”[18] Justices Hayne and Bell were alive to the controversy surrounding whether Article 33 permits coastal states to take persons on a vessel into custody, to take command of the vessel, or to tow it from the contiguous zone. They did not consider it necessary or appropriate to resolve this controversy.[19]

Implications under International Law

Australia’s actions were found authorised by a slim majority because the stated case included no agreed facts on whether Indian law accepted non-refoulement obligations. Crucially, there was also no agreed fact that, if the plaintiff was taken to India and discharged, he would have been at risk of removal from India to a place where he would not have been safe.[20] Thus possible violations of Section 74 or Australia’s non-refoulement obligations did not have to be considered. 

The judgment cast a spotlight on Australia’s policy of intercepting and turning back vessels outside Australian waters. It contributes to a growing list of courts that have scrutinised governmental action taken outside national borders in an effort to address asylum seekers.[21] The High Court offered modest clarification of its views on the extraterritorial application of Australia’s non-refoulement obligations. Importantly, Australia cannot simply take someone “to any place on the earth’s surface.”[22]

The circumstances considered in CPCF also engaged several layers of complexity under the international law of the sea. The legality of preventive measures adopted by coastal states in contiguous zones is driven by the specific factual circumstances. The contiguous zone is not subject to extended coastal state jurisdiction but is juridically part of the high seas.[23]

The key considerations for vessels containing asylum seekers include whether the vessel is flagged to a particular state or is stateless; whether it is seaworthy (otherwise the legal regime on safety of life at sea applies); and whether the coastal and flag states have agreed either formally, or even on an ad hoc basis, to return the vessel and passengers to the departure point. Absent international arrangements of cooperation, the immediate and most defensible option under international law for a coastal state is to return flagged vessels to a place immediately beyond the contiguous zone.[24] Demonstrably stateless (that is, non-registered) but seaworthy vessels may be treated in this manner.

Conclusions

The prospect of national authorities intercepting asylum seekers in international waters and taking them to third countries is important to many states. CPCF contains judicial reflections on the question whether non-refoulement obligations apply to conduct beyond a state’s own territory. The judgment moreover focuses attention on the practice of coastal states in exercising control measures within the contiguous zone and conforming with their obligations under international law for the safety of life at sea. These topics raise compound issues of refugee law, international human rights law, and the law of the sea, which are intrinsic to the relations between nations and the welfare of individuals.

About the Authors: Stephen Tully is a barrister whose practice includes refugee law. Michael Smith is a barrister and Visiting Fellow at the Australian National University College of Law. Neither was involved in these proceedings and both express personal views.