20
responsibility because they are not Indonesian citizens. They came from Afghanistan and other countries.
‟ According to the 1982 United Nations Convention on United Nations
Convention on the Law of the Sea UNCLOS, ships have an obligation to rescue persons in distress at sea.
60
Yet no clear legal obligations were imposed on any state to take responsibility for ship crash survivors who did not wish to return
home.
61
Meanwhile the UNCLOS Article to rescue persons in distress at sea had convinced Arne Rinnan, the Tampa Captain, to rescue the wrecked Palapa.
Rinnan even pleaded to Australian authorities to receive the survivors.
22
His act relied on the commitment of Australia to treat boat people according to the
International Rules of Sea Rescue, as codified in UNCLOS.
62
Yet more than two hours after his plea, Australian authorities continued to eschew responsibility for the sea rescue operation.
63
The proposal to have Indonesia as the spot of disembarkation was un-agreed upon. In fact, at the end,
Indonesia agreed to allow the Tampa survivors to disembark on the Merak port of Indonesia, but unfortunately the survivors rejected it.
64
Australia‟s response delivered a clear message that it would assist the Tampa
survivors to disembark on any place but Australia. To confirm it, a policy has been executed by the Australian government, assigning their regional
60
Preambule to the United Nations Convention on the Law of the Sea. Available at: http:www.un.orgdeptslosconvention_agreementstextsunclospart7.htm, accessed in the 4
th
of September 2014.
61
The Pacific Solution or A Pacific Nightmare?: the Difference Between Burden Shifting and Responsibility Sharing. Asia Pacific Law and Policy Journal. Vol, 6. Issue, 1. Winter 2005. Available at:
blog.hawaii.eduaplpj...APLPJ_06.1_taylor.pdf, accessed in the 13
th
of June 2014.
62
The State of The World‟s Refugees 2006. The UN Refugee Agency. April 2006. Available at: http:www.unhcr.org4444d3c320.html, accessed in the 4
th
of September 2014.
63
Ibid.
64
Refugee Ship: Who should take Responsibility? BBC UK. September 4, 2001Available at: http:news.bbc.co.uk2hitalking_point1514960.stm. Accessed in the 13
th
of December 2014.
21
diplomats to find location on which the survivors could be temporarily settled.
65
Meanwhile Australian also approached the government of Timor Leste for a negotiation but it did not succeed.
66
The Tampa case was eventually resolved in a dramatic twist. After their efforts, Au
stralia‟s search ended when New Zealand agreed to be the host for the 208 survivors in 2001.
67
It was unclear whether New Zealand was giving its favor or disdain in agreeing Australia‟s suggestion to receive the survivors. As New
Zealand Prime Minister, Helen Clark, recalled, the event of Tampa was an untold lesson. Australias refusal to accept the asylum seekers made her learned of „the
stand- off.‟
68
In 2002, New Zealand had accepted 208 Afghan refugees from the Tampa, including 131 Tampa survivors and another 77 who waiting their refugee
status determination in Nauru by UNHCR.
69
On 17 September 2001, Australia established an emergency bill named „Border Protection Bill 2001.‟
70
The bill provided Australia with the authority to remove the MV Tampa and any ships or other vessels found in the territorial
waters of Australia.
71
The United Nations, the government of Norway, legal
65
. Accessed in the 13
th
of December 2014.
66
The Pacific Solution or A Pacific Nightmare?: the Difference Between Burden Shifting and Responsibility Sharing. Asia Pacific Law and Policy Journal. Vol, 6. Issue, 1. Winter 2005. Available at:
http:blog.hawaii.eduaplpjfiles201111APLPJ_06.1_taylor.pdf, accessed in the 13
th
of June 2014.
67
We are the Truly Lucky Ones. The New Zealand Herald. April 9, 2005. Available at: http:www.nzherald.co.nznznewsarticle.cfm?c_id=1objectid=10119544, accessed in the 20
th
of September 2014.
68
Ibid.
69
UNHCR warmly welcomes New Zealand citizenship for Tampa Boys. The UN Refugee Agency. April 8, 2005. Available at: http:www.unhcr.org4256678014.html, accessed in the 20
th
of September 2014.
70
Border Protection Bill 2001. Parliament of Australia. August 29, 2001. Available at: http:www.aph.gov.auParliamentary_BusinessBills_Legislationbdbd010202bd041, accessed in the 17
th
of October 2014.
71
How Tampa Become a Turning Point. Amnesty International. June 14, 2007. Available at: http:www.amnesty.org.aurefugeescommentshow_tampa_became_a_turning_point, accessed in the 17
th
of October 2014.
22
commentators, and human rights advocates strongly opposed this Bill.
72
The Border Protection Bill 2001 was accused of breaching the 1951 Refugees
Convention of non-refoulement
73
and for humanitarian reasons.
2. The Opening of Offshore Processing Facilities in Nauru and Papua New
Guinea ’s PNG Manus Island
The Tampa case became a turning point in Australian history.
74
This event totally
transformed Australia‟s point of view and attitude toward „boat people‟. Immediately Australia took precaution from the Tampa incident to strengthen its
border and immigration policy. As Australian Prime Minister, John Howard on 28 October 2001 displayed his distaste on boat arrivals, he
declared, „We decide who comes to this country and the ci
rcumstances in which they come.‟
75
Thus Howard initiated the establishment of the „Pacific Solution‟ as a deterrent policy to stop
the arrival of „boat people.‟ Pacific Solution initiated a significant change to the Australian Migration
Law. Under the new policy, the territories of Christmas Island, Ashmore Reef, and the Cocos Islands were excluded from „the apprehension of Migration Act.‟
76
In fact, these outer te rritories are the locations for „boat people‟ to disembark.
72
Ibid.
73
The Refugee Convention, 1951. Available at: http:www.unhcr.org4ca34be29.pdf, accessed in the 15
th
of October 2014.
74
How Tampa Become a Turning Point. Amnesty International. June 14, 2007. Available at: http:www.amnesty.org.aurefugeescommentshow_tampa_became_a_turning_point accessed in the 20th of
September 2014.
75
Terror and Performance. Routledge 2014, p, 176, availabet at http:books.google.co.idbooks?id=jgxgAwAAQBAJamp;pg=PA176amp;lpg=PA176amp;dq=statemen
t+E2809CWe+decide+who+comes+to+this+country+and+the+circumstances+in+which+they+come E2809Damp;source=blamp;ots=94as2mtq_kamp;sig=B4W7g7egrJHmjmVRV5tDU4kn4cE,
accessed in the 22
th
of September 2014.
76
Border Protection Bill 2001. Parliament of Australia. August 29, 2001. Available at: http:www.aph.gov.auParliamentary_BusinessBills_Legislationbdbd010202bd069, accessed in the 24
th
of September 2014.
23
According to the 1958 Australian Migration Act, refugees who reach Australian territory would have the opportunity to access Australian courts of law.
77
Therefore, for refugees who reach the excised parts of Australia, the right to seek asylum would be denied. Furthermore, the Pacific Solution commanded the
Australian Navy to intercept and transfer arriving „boat people‟ to detention camps on the small Pacific islands of Nauru and Manus for status processing and
detention.
78
Nauru and PNG have agreed Memorandum of Understanding MoU with Australia
to receive „boat people‟ arrivals. On September 10, 2001, Nauru signed a Statement of Principles and First Administrative Agreement FAA with
Australia agreeing to host 283 of the Tampa survivors and 237 other asylum seekers intercepted by the Australian Navy.
79
Later on December 11, 2001 the FAA was replaced by a new agreement to host up to 1,200 asylum seekers at a
time.
80
Meanwhile, on October 11, 2001, Australia and Papua New Guinea signed a Memorandum of Understanding to host 225 asylum seekers.
81
After they are taken to Nauru and PNG, their claim would be examined through a series of
administrative processes. Once it is granted, Australia and the UNHCR would search for third-party countries willing to resettle them.
82
However, recognized
77
Ibid.
78
Asylum Seekers and Refugees What are the Facts. Parliament of Australia. February 11, 2013. Available at:http:www.aph.gov.auAbout_ParliamentParliamentary_DepartmentsParliamentary_LibrarypubsBN20
122013PacificSolution_Toc334509636, accessed in the 23th of September 2014.
79
Chapter 10 : Pacific Solution: Negotations and Agreements. The Parliament House of Australia. Available at:http:www.aph.gov.auParliamentary_BusinessCommitteesSenateFormer_Committeesmaritimeincident
reportc10, accessed in the 23th of September 2014.
80
Ibid.
81
Ibid.
82
UNHCR: Australia-Papua New Guinea asylum agreement presents protection challenges. The U.N Refugee Agency. July 26, 2013. Available at: http:www.unhcr.org51f2426e6.html, accessed in the 23th of
September 2014.
24
refugees also given the same treatment as rejected asylum seekers and asylum seekers who awaiting status determination.
83
They disallow to go outside but to spend months within the offshore processing areas while waiting for their
placement.
84
The opening of the offshore processing facilities in Nauru and Manus Island were highly provocative. Neither Nauru nor PNG were parties to the Convention
against Torture CAT and the International Covenant on Civil and Political Rights ICCPR.
85
Consequently, asylum seekers right is limited. Therefore, the offshore processing needed to be done under sufficient watch to keep the
prosperity and human rights obligations in order. In the long term it could cause some problematic issues. In 2003 for example, 9 residents of the processing
centers in Nauru launched „a hunger strike‟ protesting their detention.
86
Ironically, both Australia and Naur
u responded by blaming each other. Nauru‟s Finance Minister accused Australia of having failed to provide adequate medical
assistance.
87
On the other hand, Australia argued that it was not responsible for the protest, since it occurred outside Australia‟s authority. Sadly, the protest
which launched by the asylum seekers failed to free them from the detention.
83
Ibid.
84
The Pacific Solution or A Pacific Nightmare?: the Difference Between Burden Shifting and Responsibility Sharing. Asia Pacific Law and Policy Journal. Vol, 6. Issue, 1. Winter 2005. Available at:
blog.hawaii.eduaplpj...APLPJ_06.1_taylor.pdf, accessed in the 13
th
of June 2014.
85
Monitoring the Core International Human Rights Treaties. United Nations Human Rights. Available at: http:www.ohchr.orgENHRBodiesPagesTreatyBodies.aspx, accessed in the 23th of September 2014.
86
Migration Information Source. December 1, 2012. Available at: http:www.migrationpolicy.orgarticletop- 10-2012-issue-8 -major-immigration-countries-take-crack-addressing-thorny-issue-immigrant, accessed in the
24th of September 2014.
87
Hunger strikers are Naurus problem: Ruddock. Fairfax Digital. January 7, 2004. Available at: http:www.theage.com.auarticles200401071073437341216.html, accessed in the 24th of September 2014.
25
3. Critics from International Human Rights Organizations
The Refugees Convention and the ICCPR questioned the „Pacific Solution‟ as it might harm three legal obligations of: 1 „the prohibitions on refoulement;
2 discrimination due to illegal entry; and 3 detention.‟
88
The ICCPR has clearly stated its non-acceptance of refoulement
of refugees at a state‟s frontier.
89
However Australia‟s policy of sending refugees to excised territories imply otherwise. While the Refugee Convention has declared that refugees may not be
penalized despite their legality coming on a territory,
90
in actuality, „boat people‟ were detained in inhumane offshore facilities for uncertain lengths of time as the
result of Australian policy. Moreover, Australia has been applying detention system for arriving „boat people‟ since 1992. Unlike Australia, PNG and Nauru
are not familiar and inexperienced to implement the detention system.
91
Therefore, the offshore processing arrangement stands in stark contrast to the
standard of lawfulness in the ICCPR.
In response,
Philip Ruddock, Howard‟s Immigration Minister responded
that he would like to reevaluate Australia‟s obligations under the United Nations Refugee Convention on Refugee Status.
92
He argued that the structure of the UN Refugee Convention was no more suitable to the present
88
Australia International Obligations. Parliament House of Australia. Available at: http:expertpanelonasylumseekers.dpmc.gov.ausitesdefaultfilesreportattachment_3_australia_internationa
l_obligations, accessed in the 17
th
of September 2014.
89
Ibid.
90
Convention Relating to the Status of Refugees and its 1967 Protocol. UNHCR. 28 July, 2951. Available at: http:www.unhcr.org496365eb2.pdf. accessed in the 25th of September 2014.
91
Fact sheet 82 - Immigration detention. Australian Department of Immigration and Border Protection. Available at: https:www.immi.gov.aumediafact-sheets82detention.htm, accessed in the 25th of
September 2014.
92
The Conversation. July 18, 2013. Available at: http:theconversation.comexplainer-australias-obligations- under-the-un-refugee-convention-16195, accessed in the 17
th
of September 2014.
