Jakarta Part Of Solution

Jakarta part of solution

Donald Rothwell
May 01, 2009
Article from: The Australian

AS two more boatloads of asylum seekers were detained this week by Border Protection Command and the federal Opposition called for an inquiry into the sinking of the SIEV 36 off Ashmore Island on April 16, the challenge for Australia in responding to the recent surge in asylum seekers may not be a new Pacific Solution but an Indonesian solution.

This requires an acceptance that Australian and Indonesian border security are intertwined on this particular issue. Even before the SIEV 36 incident the Rudd Government increasingly was seeing Indonesia as key to any longer-term solution to shutting down people-smuggling within the region.

Australia cannot deal with the cross-border movement of asylum seekers alone. People-smugglers do not operate within Australia but beyond our borders. Stopping their operations in Indonesia is crucial to disrupting the flow of boats. While people-smuggling is a crime under Australian law, because the activity occurs offshore prosecutions can succeed only if the perpetrators are extradited to Australia to face trial.

Significantly, on April 21 Indonesian President Susilo Bambang Yudhoyono approved the extradition to Australia of Hadi Ahmadi to face people-smuggling charges that relate back to 2001.

While this is a helpful sign of increased bilateral co-operation, it followed only direct intervention by Kevin Rudd. The considerable delay in the extradition also diminishes any deterrent effect for the people-smugglers.

There is also only a limited capacity at present to intercept boats heading to Australia. As Home Affairs Minister Bob Debus has been at pains to explain, Australia has no capacity to stop the boats within international waters. Under present Australian policy the Indonesian boats must enter the Australian contiguous zone, which extends 24 nautical miles out from Australian islands or the mainland, before they can be legally stopped. Within the vast Australian 200 nautical mile exclusive economic zone, Border Protection Command has even more limited powers.

While converted Indonesian fishing boats mostly are bringing the asylum seekers south, and as fishing boats they could be stopped and inspected within the EEZ, Australia has no capacity to turn back the boats. Even if this option did exist, there is the risk of a significant maritime tragedy given their often unseaworthy state, and the Rudd Government would not want a repeat of the 2001 SIEV X incident when 353 people drowned attempting to cross the Timor Sea. In the adjacent Indonesian EEZ, Border Protection Command has no legal interception powers.

What options are open to the Rudd Government, then, in working with Indonesia to address this issue?

The first is to give further support to the Bali Process.

Although it was sheer coincidence that Australia had just co-hosted with Indonesia the Third Bali People Smuggling Ministerial Conference at the precise time of the SIEV 36 sinking, the revival of this process after having been dormant since 2003 was a clear indicator that Australia was becoming increasingly alarmed as to how more effective regional mechanisms could be put into place to deal with people-smuggling.

With 33 participating countries, the Bali Process has a capacity to put a cap on people-smuggling, people-trafficking and illegal human movement within the region. One initiative would be to adopt more effective measures to halt the flow of asylum seekers via people-smuggling from Malaysia across the Malacca Strait to Indonesia, thereby cutting the eventual flow-on effect to Australia.

The second option is to explore ways in which Australia can more actively assist Indonesia in counter people-smuggling operations.

In 2006 the Howard government negotiated with Jakarta the Lombok Agreement on Security Co-operation, which provides for enhanced bilateral co-operation in addressing common security concerns including defence, law enforcement and maritime security.

Under the Lombok Agreement, Australia should be pushing for the Australian Federal Police to be more actively working alongside their Indonesian counterparts to detect and arrest Indonesian people-smugglers. Here, Indonesia's pending acceptance of the People-Smuggling Protocol to the Transnational Organised Crime Convention would open the door for further enhanced co-operation between the police forces.

Another option would be for Australia to work in assisting the Indonesians to patrol and police their waters so as to intercept and arrest asylum-seeker boats departing from Javanese ports.

While it would be a significant step for Indonesia to allow the Australian navy to enter and police their waters, there are precedents for these types of co-operative naval operations, of which the counter-piracy operations off Somalia are one example. A ship-rider agreement could be used to allow Indonesian officers to ride aboard with the Australian navy and undertake arrests.

By taking these steps, Australia would be seeking to stop the Indonesian boats from reaching Australian waters and encouraging Indonesia to take greater control of a problem that both countries need to work together to resolve.

Donald R. Rothwell is professor of international law at the Australian National University's college of law and a specialist in the law of the sea.


Your Comments:

2 Comment(s)
Jane 11:04am today

Australian Navy Patrols in Indonesian waters? Yeah, right. What next, an Army Brigade patrolling Indonesian coastal villages?
Boo of Ballarat 8:42am today

Indonesia will be happy to hand over the crooks for someone else to prosecute but I wouldn't expect them to do much else. As a land where corruption is almost a profession one has to wonder if considerable sums of money are being pushed toward those who could fix the problem. Until the first problem, corruption, is fixed you can't fix the second.