The past fortnight has seen several shocking tragedies involving asylum seekers, with significant loss of life in yet another sinking near the Italian island of Lampedusa, and, much closer to home, the sinking of an asylum seeker vessel on 27 September near Indonesia. In that incident an asylum-seeker vessel bound for Australia sank near Java, claiming at least 28 lives with 22 still missing. There are conflicting reports surrounding the cause of the tragedy, and whether Australia could have mounted an effective search and rescue response.
It has also been claimed that the Australian government delayed for 26 hours before responding to an emergency call from the vessel. These allegations that have been vigorously denied by the Operation Sovereign Borders Acting Commander, Air Marshal Mark Binskin, who said that the response form the Australian authorities was “professional and timely”.
While the full facts surrounding the incident are yet to be determined, we do now have the benefit of a very searching analysis by the West Australian Coroner of a similar tragedy in June 2012 that has received surprisingly little attention. The Coroner’s report is a serious indictment on the capacity of Indonesia to deal with maritime casualties, and on the effectiveness of Australia and Indonesia’s cooperation in maritime search and rescue.
On 21 June 2012, an asylum seeker vessel, code-named the Kaniva, sank in international waters 110 nautical miles north-west of Christmas Island, within the Indonesian search and rescue region. Of the 212 persons on board, there were only 110 passengers rescued. The first rescue was made more than 10 hours after the capsizing and two days after the boat made its first distress call to the Rescue Coordination Centre Australia (RCC). A pattern can be seen here. The tragic repetition calls for a review of the nature of our obligations in asylum seeker rescues, and the reason for delays in mounting search and rescue operations.
The United Nations Convention on the Law of the Sea (to which Australia and Indonesia are parties) states in Article 98 that “Every State shall require the master of a ship flying its flag … to render assistance to any person found at sea in danger of being lost”. It provides further that every coastal state must “promote the establishment … of an adequate and effective search and rescue service regarding safety on and over the sea”. Other relevant conventions include the 1974 Safety of Life at Sea Convention 1974, its Protocol of 1988 and the 1979 International Convention on Maritime Search and Rescue.
To give more detailed effect to their general obligations under the law of the sea, in 2004 Australia and Indonesia concluded an agreement to promote cooperation in rescue efforts for incidents in their search and rescue regions. The WA Coroner’s report on the Kaniva incident suggests that Australia and Indonesia did not live up to their obligations under the 2004 agreement.
While the Australian Maritime Safety Authority (AMSA) responded to initial distress calls from the vessel by contacting BASARNAS (Indonesia’s search and recue authority), subsequent communications between the two countries were riddled with delays and lack of clarity.
AMSA requested BASARNAS to accept coordination of the incident, yet a BASARNAS officer only responded a remarkable six-and-a-half hours later. BASARNAS failed to respond at all to AMSA’s request for advice on whether it should issue maritime broadcast to shipping.
Furthermore, the call between AMSA and BASARNAS a day before the sinking was understood by AMSA officer to mean that an Indonesian naval vessel had been deployed, which was never the case. It was only at 1pm of the date of the incident when Kaniva was located overturned a customs and Border Protection aircraft that RCC commenced distress broadcast to shipping. And three hours later, BASARNAS decided to request transfer of the rescue coordination back to Australia. RCC agreed, and sought advice on what Indonesian assets had been deployed, but received no response.
The poor level of communication and coordination between Australia and Indonesia concerning the Kaniva incident could well have amounted to a violation of both countries’ obligations under their 2004 agreement, and under the law of the sea more generally, to come to the aid of stricken vessels.
The question now becomes what can be done to improve the arrangements between Australia and Indonesia? How can the system of maritime search and rescue be reformed so that it is clear to authorities in both states, to the general public, and most importantly to persons in distress at sea, just what steps are being taken to respond to maritime casualties?
The first step must be to gain a better appreciation of the capacity of BASARNAS. The Kaniva incident, and the latest tragedy a fortnight ago, makes it clear that Australia cannot assume that Indonesia will live up to its obligations under the 2004 agreement.
BASARNAS appears to have insufficient capacity either to coordinate search and rescue efforts, or to mount them, even in respect of vessels within sight of the Indonesian coast. This suggests that AMSA should act on the assumption that it will have to take the lead in maritime search and rescue, quickening the response of AMSA to distress calls received from vessels even if they are well within the Indonesian search and rescue region. However, we cannot be sure of the actual capacity of BASARNAS without a better understanding of how the agency works, and indeed how maritime search and rescue issues are dealt within more generally within the Indonesian government.
In recent months there have been some initial steps to improve the system. In a media release in August setting out AMSA’s response to the WA Coroner’s Report, AMSA stated that it and BASARNAS have initiated a search and rescue officer capability development program to train six BASARNAS officers over two years. Two AMSA officers are to be stationed in Jakarta working with BASARNAS while one BASARNAS officer is to be located in AMSA’s Rescue Coordination Centre.
AMSA also undertook to assist BASARNAS and to train its officers to issue broadcasts to shipping and communicate with merchant vessels. However, given September’s incident, there is some reason to doubt AMSA’s statement that there has been “improved communications between the agencies following [the Kaniva]incident”.
Furthermore, with the election of the Abbott government and the implementation of its Operation Sovereign Borders, there is now significant lack of transparency over how the government responds to maritime casualties involving asylum seeker vessels. Operation Sovereign Borders has radically departed from the previous government’s approach of releasing information on maritime incidents (although in some respects the previous government was secretive, as seen in its initial refusing to disclose key information on the Kaniva incident to the WA Coroner).
One of Australia’s leading commentators on asylum seeker vessel tragedies, former Ambassador Tony Kevin, has argued that silence on border protection silence can be deadly, including because it reduces the accountability of government agencies.
While on paper, in their 2004 agreement, Australia and Indonesia have a good system in place for dealing with these incidents, in practice the system has major flaws. These can only be fixed, and future tragedies avoided as far as is possible, if we are able to look behind the veil of secrecy in both Australia and Indonesia to see how government officials in both countries are working to meet both states’ search and rescue obligations under international law.
As the government of Italy announces plans to hold a state funeral for victims of the most recent Lampedusa sinking, we should reflect on whether the Australian approach of ignoring, and hiding, the scandalous loss of life at our borders is an appropriate or effective response to a problem that shows no sign of going away.
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