Following the Labor Party’s policy shift at their National Conference in July, turning back asylum seeker boats now has bipartisan support in Australia. This is despite international condemnation of the practice, including by UNHCR two days before the Labor party voted in favour of keeping turn-backs on the table.

Boat turn-backs are criticised because of the risk of refoulement: the return of people to a country where they may face persecution or torture. Refoulement is prohibited under international law. And yet Australia is by no means the only, or indeed the first, country to have a boat turn-back policy. The United States and Italy are two other countries that have employed the practice.

The US has been unapologetically turning back boats since at least the 1980s. In the Supreme Court case of Sale, the US Government relied on an interpretation that actions carried out extraterritorially in international waters (that is, outside the land and sea borders of any country) are not subject to the Refugee Convention’s prohibition on refoulement.  The argument flies in the face of a common understanding that the prohibition is not jurisdictionally limited in this way.

Both Australia and Italy followed in the footsteps of the US and adopted this argument. After the decision in CPCF, the Australian Government, aware of the weaknesses in the US approach, introduced retrospective legislation to prevent legal challenge. In Italy’s case, the European Court of Human Rights decisively rejected such an argument.

In all three cases, the underlying facts were similar. A boat had been intercepted at sea, outside of the territorial boundaries of the intercepting State. It was either turned-back or was about to be turned-back to its country of origin or to a third country, without those on board having their claims to asylum adequately assessed. The differences in outcome came down to judicial interpretation, parliamentary interference and regional regulation.

United States

In the 1980s, the US began intercepting, screening and turning back boats carrying Haitian asylum seekers. Following a coup in Haiti in the early 1990s, the number of asylum seekers fleeing towards the US increased dramatically. The US responded by restricting access to lawyers and lowering quality of screening processes. Eventually, under Presidential order and purportedly for the purpose of saving lives at sea, screening processes were removed altogether.

The case of Sale started in 1993. It was brought on behalf of Haitian asylum seekers who had been intercepted in international waters and were due to be returned to Haiti. The case questioned the legality of the Presidential Order to turn back boats without screening claims for asylum. The US Government argued that prohibitions on refoulement did not apply to these turn-back actions as neither the Refugee Convention nor the domestic implementing legislation showed a clear intention to operate beyond US borders. The boats in question were in international waters, not US territorial waters.

The Supreme Court agreed, finding that the Refugee Convention could not “impose uncontemplated extraterritorial obligations on those who ratify it through no more than its general humanitarian intent”.  This judgment has been thoroughly criticised as “isolated state practice, due little deference”. The fact that the Refugee Convention is silent as to whether the prohibition on refoulement is to be applied beyond territorial borders was used by a judiciary who at the time was willing to bend common understandings of the principle to match the executive will of the day. The judgment has paved the way for the US to continue, with impunity, to seek out and return asylum seeker boats before they enter US territorial waters.

It has also set an example. Other countries looking for ways to circumvent their international obligations have followed suit.

Australia

Australia is one of those countries. However, with a less compliant judiciary, the Government response has been to repeatedly push through retrospective legislation to alter the scope of executive and legislative powers and head off judicial challenge.

In 2014 an Indian-flagged asylum seeker boat carrying Sri Lankan nationals was intercepted by an Australian border force vessel in international waters. After first attempting and failing to return the vessel to India without conducting appropriate screening of claims, the Australian Government placed the asylum seekers in offshore detention on Nauru.  In CPFC, the legal proceedings brought by one of the asylum seekers, the government relied on Sale to argue that the prohibition against refoulement did not apply extraterritorially. Aware that this claim was questionable given Sale has been internationally denounced, the government pushed through legislation validating its actions regardless of whether they violated international law or breached principles of natural justice.

Much of the debate in Australia has revolved around whether executive powers can be limited by Australia’s international law obligations. Each time the judiciary raises the prospect of interpreting domestic legislation in light of international law, the government takes action to firmly close the door.

Italy

The situation in Italy is significantly different. Member states of the Council of Europe are subject to the European Convention on Human Rights and the Convention trumps domestic law. Hirsi, the first case on turn-backs at sea heard in the European Court of Human Rights, is a case in point.

In 2009 Italy intercepted numerous boats in international waters and turned them back to Libya, with Libya’s consent. A claim was brought on behalf of some of those turned back, contending that Italy had breached its obligations under the Convention, including the prohibition on refoulement.

Italy, like the US and Australia, tried to evade its international obligations by claiming that the prohibition of refoulement does not operate extraterritorially. The Court unanimously disagreed, finding that Italy had violated the rights of the asylum seekers by returning them to Libya without any procedural safeguards. This constituted refoulement.

Although Italy sought to rely on a territorial limitation to the prohibition on refoulement, Judge Pinto de Albuquerque found that:

the prohibition of refoulement is not limited to the territory of a State, but also applies to extraterritorial State action, including action occurring on the high seas … [t]he fact that some Supreme Courts, such as the United States Supreme Court and the High Court of Australia, have reached different conclusions is not decisive.

Each of the US, Australia and Italy have attempted to sidestep the prohibition on refoulement in order to implement turn-backs. In the cases of Sale, Hirsi and CPFC, each nation has argued that actions carried out extraterritorially, in international waters, are exempt, despite widespread condemnation of such an interpretation.

As a direct result of the judgment in Hirsi, Italy and other member countries have been put on notice that “… ‘push-back’ operations performed on the high seas, without any assessment of the individual needs for international protection, are unacceptable”. However, for asylum seekers heading towards Australia and the US, the situation remains bleak. Unless there is political will to implement the letter and spirit of international law within both the judiciary and the parliament, the US and Australia will continue to turn back and refoule asylum seekers intercepted in international waters.

Tara Crisp is currently studying international refugee law as part of a Master of Laws (Human Rights and Social Justice) program at the University of New South Wales. She is also a founding member and Co-Convenor of Mums 4 Refugees.