Sovereignty and refugees (I)

The Tampa affair precipitated a change in refugee policy and political discourse, but also in perceptions of the sovereign body politic. In the first days of the crisis, Ruddock, in statements to the media and to Parliament, was still committed to a policy of deterrence by example. To him, the introduction of new refugee legislation was ‘crucial to ensuring that we reduce Australia’s relative attractiveness’,[16] while the deportation of unsuccessful asylum-seekers was regarded as ‘a strong message to the world that Australia intends to fight people trafficking’.[17] Australian refugee policies were not directed at subjects under Australian jurisdiction but at potential refugees who could neither be engaged nor specifically located. With the emphasis shifting from dealing with asylum-seekers on shore to protecting the borders against their arrival, the tone of the political debate also changed. When Howard first announced to the House of Representatives that the merchant vessel Tampa had picked up refugees who were on their way from Indonesia to Australia, he reiterated his mantra that it was Australia’s right as a sovereign nation to determine who came into the country and under what circumstances.[18] Within days, sovereignty changed from being the foundation of the polity that needed protection against stateless asylum-seekers to being the reason for policies to exclude refugees.

The new policy of deterrence by force seemed appropriate for the new situation. It was, however, founded on the basic contradiction of sovereign power. The Tampa’s breach of Australia’s territorial sea border off Christmas Island on the morning of 29 August prompted several responses. On the practical side, Special Air Service (SAS) elite troops intercepted the Tampa in inflatable Zodiac boats. In order to prevent the refugees from engaging Australia’s protection obligations as a sovereign nation under the 1951 Refugee Convention, the boats did not fly Australian flags.[19] At a first glance, this action appeared to invert the relation between refugees and border control. The refugees were on a huge ship under Norwegian jurisdiction while the Australian soldiers approached them in tiny vessels that did not display any sign of sovereignty. It seems the Australian troops were attempting to take advantage of the precarious position of stateless ‘boat people’ not affiliated to a sovereign. They were, however, Australian military forces, displaying the Australian flag on their uniforms and they acted on behalf of the sovereign in Australian territorial waters. Besides, the power relations were made obvious when armed Australian soldiers boarded the Norwegian ship. The captain had no choice but to let the SAS proceed with its operation. In the same instance, however, the refugees could not claim their rights to apply for asylum. The Australian soldiers were at once representatives of Australian sovereignty and not. Being subject to the power of sovereignty but having no rights to asylum posed a pertinent contradiction and a dilemma for the refugees.

This contradiction of sovereignty was also true in relation to the Norwegian ship and had been highlighted under different circumstances 20 years earlier. The UN High Commissioner for Refugees (UNHCR) argued in response to Indochinese ‘boat people’ who had been rescued in 1981 by cargo ships on the high seas:

While…there is a clear duty for ships’ masters, their owners and their Governments to rescue asylum-seekers at sea, there is no obligation under international law for the flag State of a rescuing vessel to grant durable asylum to rescued refugees. It is, of course, correct that by boarding a vessel, the refugee comes under the jurisdiction of the flag State which is considered to exercise jurisdiction over the ship on the high seas.[20]

The responsibility for asylum-seekers rescued at sea has since been disputed and remains unresolved.[21] Due to the ambiguities surrounding the issue of sovereign power on the high seas, having powers of jurisdiction on the one hand and the absence of obligations to asylum-seekers on the other, rescued refugees are caught in a legal limbo.

Refugees aboard the Tampa were thus ‘caught’, not only physically but legally between two sovereign powers, Australia and Norway. The situation reflected the potential for both conflict and cooperation between two overlapping sovereign entities: a Norwegian boat within Australian territory. More importantly, the engagement allowed Australian executive powers to position refugees as legal objects, in between the two powers, and to deal with them accordingly.

As a legal reaction to the border breach by the Tampa and the refugees aboard, and in response to the apparently delicate contradiction of sovereignty, the government introduced the Border Protection Bill 2001 into Parliament. This proposed to legalise the removal of unwanted ships from the territorial sea (Sections 4–6), to render any actions of Australian officers in regard to those ships not reviewable in any Australian court (Section 7) and to invalidate any application for a protection visa from aboard such a ship (Section 9).[22] It was to apply retrospectively from the morning of 29 August, just before the SAS boarded the Tampa (Section 11). When Prime Minister Howard informed the Opposition of the bill, 40 minutes before it was to be debated in the House of Representatives, he asked for it to be approved in both chambers that same night. After a lengthy debate, however, the Senate, in which the government parties did not have a majority, rejected the bill.

In Parliament, the dispute centred on the issue of where sovereignty lay within the body politic. Howard underlined the importance of the bill by saying that ‘[i]t is essential to the maintenance of Australian sovereignty, including our sovereign right to determine who will enter and reside in Australia’.[23] Every breach of the Australian border seemed to question the authority of the government and therefore undermine Australia’s sovereignty. Senator Robert Hill (Liberal) declared: ‘Surely, a reasonable person would say that the Australian government should have all necessary powers to do what is necessary to protect the integrity of Australia’s borders.’[24] It seemed unreasonable not to use all force available to the government in order to re-establish the sovereignty that seemed to be violated by the Tampa’s border breach. The government’s interpretation, however, reduced sovereignty to only the executive power within Australian territory, represented of course by the government itself.

The opposition parties rejected the bill for several reasons—one being that the government had not consulted them about the legislation ahead of its introduction. Apart from such formal objections, the Labor Party doubted the severity of the situation. The Leader of the Opposition, Kim Beazley, rejected the government’s alarmism, saying that ‘we do not face in these circumstances a national catastrophe; we face a serious problem’.[25] While the Opposition agreed with the government on Australia’s sovereign right to determine questions of immigration, it did not equate sovereignty merely with the executive power of the government but with the institutions of the State. For the Opposition, it was not so much the refugees who were a threat to sovereignty; rather, it considered the bill a danger to Australian sovereignty because it undermined the balance of power. That actions committed under the law proposed by this bill would not fall under Australian jurisdiction was considered a threat to the balance of power and therefore, as one parliamentarian suggested, the bill might even undermine the constitution.[26] Overall, the debate about a bill designed to prevent refugees from entering Australian territorial waters turned into a debate about the legal parameters of the State’s sovereign power.

The problem of sovereignty in relation to refugees is not new. Hannah Arendt describes this problematic relationship in her 1948 book The Origins of Totalitarianism.[27] The nation-state, she argues, is based on two doctrines: the universal rights of man—or human rights—and the sovereignty of people as citizens. Refugees, who lose the protection of their state, are not citizens anymore but can still claim human rights—in principle at least. With regard to refugees, the doctrines of the nation-state are therefore separated. This has grave consequences for the idea of sovereignty, as Agamben explains:

If in the system of the nation-state the refugee represents such a disquieting element, it is above all because by breaking up the identity between man and citizen, between nativity and nationality, the refugee throws into crisis the original fiction of sovereignty.[28]

Sovereignty presupposes a solid concept of self-determination with a clear distinction between those who belong and those who do not. It has, however, both a civic foundation, originating from people’s self-rule as citizens, and a universal foundation, the universal recognition of people’s right to sovereignty. In respect to refugees, however, these two concepts collide because stateless people reveal, qua their existence, the fiction of the right to sovereignty. For a state, this means, on the one hand, that it has an obligation to recognise the refugees’ universal right to sovereignty, because the State itself is based on this recognition; on the other, it can do so only under its sovereign powers, which by definition are limited to citizens. With regard to refugees, a state has to be a sovereign and a non-sovereign power at the same time, thereby undermining its legitimacy.

The challenge of refugees to the government was (and always is) to translate this ‘fiction of sovereignty’ into politics. In 1992, the Labor Government under Paul Keating confronted this dilemma by enforcing the distinction between citizens possessing and non-citizens not possessing civil rights under a sovereign power by introducing administrative immigration detention for non-citizens who did not hold a valid visa. That same year, the High Court ruling on immigration detention in Chu Kheng Lim vs Minister for Immigration, Local Government and Ethnic Affairs asserted the distinction of this policy, according to which those who were not Australian citizens had no claims against administrative incarceration.[29] The policy and the ruling affirmed in principle, however, that refugees in detention retained the human right to claim asylum within a sovereign territory.

What was new after Tampa was that refugees were denied civil rights and their human right to asylum. Australian authorities now completely separated sovereignty from universal rights. For one, they acted as a sovereign power against the Norwegian vessel, practically detaining the stateless refugees at sea. With the Border Protection Bill 2001, the government attempted to legalise this approach. Furthermore, the authorities prevented the refugees from reaching the migration zone or from applying for asylum by other means.[30] They confronted refugees with sovereign power without conceding that the new arrivals had any rights under this power, especially the right to claim asylum. The Migration Amendment (Excision from Migration Zone) Act 2001 would later establish exactly this separation in the distinction between territory and migration zone. In order to deal with stateless people, the government separated human rights not just from citizenship but from sovereignty altogether.

Conversely, this meant disaggregating sovereignty from the expression of pure power directed at stateless people when preventing them from claiming asylum. This had implicit repercussions for Australian sovereignty, rearranging the relationship between Australian citizens and the State. In the parliamentary debate about the Border Protection Bill 2001, this new situation was interpreted as denoting a shift in sovereign power. The Opposition pointed to the danger of separating sovereign powers from rights, not just in relation to refugees but to all citizens. Some parliamentarians noted that sidelining the judiciary and giving unlimited powers to the executive with regard to unwanted vessels in the territorial sea would undermine the rule of law and the balance of power within state institutions.[31] Since the balance of power is to safeguard democratic self-rule, an executive power without institutional checks and balances would not only be uncontrollable with regard to refugees, it would separate the power of the State from the broader principle of sovereignty.

Sovereignty, the Opposition’s remarks implied, was a question not just of executive power but of all state institutions; yet, neither was it a privilege of state institutions as a means in itself. The sovereignty of the nation-state is, as Arendt observes, intrinsically bound to citizenship. The Opposition was concerned, as Labor MP Robert McClelland outlined in a later debate, that the implications of cutting off the control mechanism between the citizenry and the sovereign power would extend beyond stateless people. Contemplating the Opposition’s rejection of the border protection legislation, during the parliamentary debate on the so-called ‘Pacific Solution’, he pointed out:

Clause 6 [of the Border Protection Bill 2001] gave power for a Commonwealth officer, or a person assisting an officer, to return to a ship ‘a person’ who was on board the ship. Of course ‘person’ could mean an Australian citizen, a citizen of the United States, Canada, Great Britain or from anywhere in the world—‘a person’; a human being.[32]

The goal of deterrence by force, which, in the Opposition’s view, the Border Protection Bill 2001 failed to deliver, was of course intended to target unprotected humans without endangering citizens. Indirectly, the Opposition wanted to retain the old model based on the fiction of sovereignty without human rights.

The imaginary distinction between a migration zone and a territory, established during the Tampa crisis, created two seemingly distinct powers in regard to refugees: one within the migration zone being checked and approachable as a sovereign, and another outside being apparently pure power. This division, employed as a policy of deterrence by force, placed the executive power of the State in a new and unchecked situation outside the sphere of sovereignty. As a result of neglecting the sovereign source of its power, the government was able to use force outside the migration zone without exposing itself as a sovereign on which refugees could have called for protection. This meant excluding refugees’ access to sovereignty and splitting governmental power from citizenship. If sovereignty demarcates not only the reach of power but the confines of responsibility then Australian territorial integrity is defined by ‘pure’ governmental power and no longer by the principle of sovereignty. In the government’s policies—and legally since the Migration Amendment (Excision from Migration Zone) Act 2001—sovereignty extended to the migration zone only but not to Australia’s territorial seas and some excluded islands. This new understanding of sovereignty, which was created to exclude refugees, in turn had an immense impact on Australian self-conceptions, as expressed through social memories in the debates on refugee policies.

[16] Philip Ruddock, Commonwealth Parliamentary Debates [hereafter CPD], Representatives, 28 August 2001, p. 30362.

[17] Ruddock, Philip 2001, ‘Successful removal of 31 People from Australia’, MPS 128/2001, 28 August 2001.

[18] John Howard, CPD, Representatives, 27 August 2001, p. 30235.

[19] Marr and Wilkinson, Dark Victory, pp. 108–9.

[20] UNHCR 1981, Problems related to the rescue of asylum-seekers in distress at sea, EC/SCP/18.

[21] Pallis, Mark 2002, ‘Obligations of states towards asylum seekers at sea: interactions and conflicts between legal regimes’, International Journal of Refugee Law, vol. 14, nos 2–3.

[22] The last point was especially odd as the migration zone did not extend to the territorial sea like the sovereign power did; see Hancock, Nathan 2001–02, ‘Border Protection Bill 2001’, Bills Digest, vol. 41, Department of the Parliamentary Library, p. 13.

[23] John Howard, CPD, Representatives, 29 August 2001, p. 30570.

[24] Robert Hill, CPD, Senate, 29 August 2001, p. 26976.

[25] Kim Beazley, CPD, Representatives, 29 August 2001, p. 30571.

[26] Bob Brown, CPD, Senate, 29 August 2001, p. 26996.

[27] Arendt, Hannah 1994 [1948], The Origins of Totalitarianism, Harcourt, San Diego, pp. 269–302.

[28] Agamben, Giorgio 1995, ‘We refugees’, Symposium, vol. 49, no. 2, p. 117.

[29] High Court, Chu Kheng Lim vs MILGA [1992], 110 ALR 97. Mary Crock highlights the critical distinction between civic and international law made by the court in its ruling. Crock, Mary 1993, ‘Climbing Jacob’s ladder: the High Court and the administrative detention of asylum seekers in Australia’, Sydney Law Review, vol. 15.

[30] The refugees had to reach the migration zone, which did not include the territorial sea, in order to claim asylum. Alternatively, they could have claimed asylum through an Australian official. Refugees aboard the Tampa were prevented from lodging asylum claims with relevant Australian authorities and from receiving legal representation (Marr and Wilkinson, Dark Victory, pp. 145–68).

[31] John Faulkner, CPD, Senate, 29 August 2001, p. 26973; Natasha Stott Despoja, CPD, Senate, 29 August 2001, pp. 26979, 26980, 26982; Andrew Bartlett, CPD, Senate, 29 August 2001, p. 26995; Nick Bolkus, CPD, Senate, 29 August 2001, p. 26998.

[32] Robert McClelland, CPD, Representatives, 19 September 2001, p. 30965. The Pacific Solution was the result of legislation that was debated in Parliament between 18 and 26 September 2001: the Migration Amendment (Excision from Migration Zone) Bill 2001, the Migration Amendment (Excision from Migration Zone) (Consequential Provision) Bill 2001 and the Border Protection (Validation and Enforcement Powers) Bill 2001. The bills included the extended distinction between migration zone and territory, detention in foreign countries and removal of boats from territorial waters, of which the last provision had been rejected in its previous form on 29 August 2001.