Photo: Parts of Operation Sovereign Borders are legally dubious and raise serious questions.
Australia has a legal right to defend its shores, but the Abbott government's border protection policy has begun to drift into some legal grey areas, writes Donald Rothwell.
Images of bright red lifeboats appearing unannounced along the Indonesian coast and Australian diplomats being summoned in Jakarta to receive formal protests over the conduct of Operation Sovereign Borders are the latest chapter in the saga of the Abbot government's border protection policy.
An inquiry into the circumstances surrounding the violation by the Australian Navy of Indonesian sovereignty had also recently been completed with a public version of that report about to be released.
Meanwhile, the Indonesian Foreign Minister, Dr Marty Natalegawa, continues to voice his concerns over Operation Sovereign Borders, indicating that the use of lifeboats has escalated the diplomatic rift and that he will be raising Australia's conduct this week in talks with the US Secretary of State, John Kerry.
While the Abbott government refuses to discuss any "on water" matters associated with Operation Sovereign Borders, it would seem reasonable to conclude that lifeboats are being used to return asylum seekers to Indonesia.
The recent purchase of lifeboats by the Australian government has been confirmed. Video images of a lifeboat being towed by an Australian government vessel have not been disputed. At least two lifeboats have washed ashore in Indonesia, baffling local authorities as to their origin and ownership.
Australia has a considerable capacity to protect its sea borders with the Convention on the Law of the Sea providing the legal framework.
Both Australia and Indonesia are parties to the convention, which alongside provisions of the 2000 People Smuggling Protocol to the Convention against Transnational Organized Crime give to Australia a wide array of powers to stop, search and exercise control over vessels carrying asylum seekers that enter Australia's maritime zones. Those powers extend to taking control of those vessels, many of which are not flying the Indonesian flag and appear to be stateless, and removing them from Australian waters.
However, towing or escorting those vessels back into the adjoining Indonesian exclusive economic zone without Indonesia's consent is legally dubious.
In particular, Indonesia could assert that any Australian tow back operation within the Indonesian exclusive economic zone is inconsistent with the freedom of navigation.
Official descriptions of Operation Sovereign Borders as a "military-led, border security operation" in which Australia asserts sovereignty over its borders, necessarily leads to the conclusion that Australia is asserting an aspect of its sovereignty during a tow back or escort operation. Evidence in the public domain appears to support the view that Australian Navy and Customs ships have towed vessels, which may include lifeboats, into Indonesian waters and at some point that activity is discontinued with the expectation that the towed vessel make its way towards the Indonesian coast and eventual landfall.
Such an activity cannot be characterised as Australia exercising the freedom of navigation but rather bringing another vessel into Indonesian waters without consent.
While Australia is protesting the unauthorised entry of asylum seeker vessels into its waters, Indonesia also has equivalent rights and obligations to Australia within its maritime zones.
In that respect it needs to be made clear that the mere presence of an Australian Navy ship within the Indonesian 12 nautical mile (22km) territorial sea is not a violation of international law. Australian Navy ships enjoy a right of innocent passage within the Indonesian territorial sea and associated navigation rights throughout the greater Indonesian archipelago.
These navigational rights are critical to Australian trading interests in South-East Asia and are also a component of Australia's maritime security.
However, the entry into Indonesia's territorial sea by an Australian Navy or Customs vessel that has control over an asylum seeker boat by way of a tow line, with the intention of returning that boat to Indonesia, would not be consistent with the right of innocent passage.
In that instance, Indonesia could, under the law of the sea, take steps to prevent such passage, including interdiction by its Navy. Reports that Indonesia has increased maritime patrols of its southern borders suggests that Australia will need to exercise great care to ensure a maritime clash is avoided.
The use of lifeboats into which asylum seekers are transferred and returned to Indonesia raise additional legal issues. These extend to Australia's responsibility under international law for the control that it has exercised over the asylum seekers including the refusal to consider their asylum claims, providing them with a lifeboat by which they are directed to return to Indonesia, and the safety and security of that lifeboat.
Legal issues would arise if the lifeboat is not adequately provisioned with fuel, food and water and has appropriate navigational equipment. It also raises questions as to whether the persons placed in control of the lifeboat have the seamanship skills to be able to successfully navigate their way back to the Indonesian coast.
Variables would also need to be taken into account to ensure the safe return of the lifeboat to shore such as the prevailing sea conditions and the weather, both at the time of release of the tow line but also in the coming hours and days. If a maritime disaster was to strike a lifeboat resulting in loss of life then Australia's responsibility under international law could be considerable.
Donald R Rothwell is Professor of International Law at the ANU College of Law, Australian National University. View his full profile here.
Border policy strays into uncharted waters - The Drum (Australian Broadcasting Corporation)
