Confusion over Australia-Indonesia rescue responsibilities
SBS World News Australia Radio
The Abbott government says it made an unsuccessful request for Indonesia to take responsibility because the incident occurred well inside its search and rescue zone.
But at least one Indonesian international law expert disagrees - saying Australia received the distress call, so it should have launched the search and rescue operation.
Australian authorities say the first time they got a location for the boat carrying around 80 people, it was 190 nautical miles north-northeast of Christmas Island and just 25 nautical miles south of West Java.
By the time the vessel sank, it was much closer to the Indonesian coast.
Professor of international law at the Australian National University, Donald Rothwell, says in theory, Indonesia's search and rescue operation, Basarnas, should have been handling the response to the distress call.
But he says in this instance, there were some complicating factors.
"We do know that the Australian Maritime Safety Authority were contacted first on this particular occasion and we also know that they sought to refer the matter on to Basarnas and there are procedures that exist under which referrals can take place and ultimately the agency to which the response is referred to ultimately will take responsibility for coordinating the rescue."
Acting Commander of the Abbott government's Operation Sovereign Borders, Air Marshal Mark Binskin, says when informed of the incident, Basarnas replied that it was unable to accept the co-ordination role.
Does that mean the legal responsibility fell back to Australia?
Professor Rothwell says the law is unclear on that point.
"This is one of the cloudy areas that exists in this particular field. There is a bilateral agreement that is in place between the two agencies to deal with precisely this type of situation. I'm not aware of an example in the past where Basarnas has on face value apparently refused to take coordination for a maritime incident occurring within the Indonesian search and rescue zone. So at one level this particular incident is setting something of a precedent and clearly it's a precedent that is not desirable to have repeated."
Professor Rothwell says Australia and Indonesia need to better coordinate their responses to distress calls from boats.
He says top-level bilateral talks may be required to clear up future interpretation of the International Convention on Maritime Search and Rescue.
Adjunct Professor at Griffith University, Colin Brown, is a specialist in Australia-Indonesia relations.
He says Basarnas may have been unwilling to take up responsibility for the distress call, simply because of a lack of resources.
"The search and rescue capacity is minimal to say the least. So in the first instance I think that it might reflect no more than simply a recognition that their capacity is highly limited and certainly in Australia's capacity in that area. Does it mean more than that? Is there a political message in that? I have my doubts. I don't think that we can really take it as a deliberate message in the way that some in Australia are doing."
But Professor of law at the University of Indonesia Hikmahanto Juwana says the reported response from Basarnas may reflect Indonesian displeasure with Operation Sovereign Borders.
"This is due to the hostile policy of Prime Minister Abbott. When he said that he's going to institute the Operation Sovereign Borders, he wants to push back illegal immigrants coming to Australia then it offended Indonesians and of course the Indonesian authorities in charge of the sea will not (be) in agreement of that policy."
And Professor Juwana says that under international law, Australia was responsible for rescuing the asylum seekers.
"You know our search and rescue agency was not contacted by the sinking boat. Then it is the Australians who got the first notice, of course it's going to be the Australians who have the responsibility."
At least twice since the Coalition came to power, Australian authorities rescuing asylum seekers off the coast of Indonesia have insisted on survivors being sent back to that country.
Professor Juwana says he suspects Australia has been paying Basarnas to take them.
"I was surprised that the Indonesian search and rescue agency was readily willing to take these illegal immigrants and then put them on Indonesian soil. My concern is whether the policy of Prime Minister Tony Abbott has been in operation. Money has come from the policy to the Indonesian authorities so that Indonesian authorities wanted to take these illegal immigrants."
SBS is seeking comment on the allegations from Australian Immigration Minister Scott Morrison.
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