Australia had an obligation to render assistance to the latest boatload of Sri Lankan asylum seekers, an obligation to render assistance to vessels in distress  well established in international law.

It’s the same obligation that saves sailors like Tony Bullimore when their vessels are overcome by the elements.

Australia is a party to the International Convention for Safety of Life at Sea 1974, also known as SOLAS, and has often gone to the aid of vessels in distress within Australia’s area of responsibility.

When that vessel is a merchant ship or an around-the-world yachtsman then the rescue, whilst perhaps inconvenient, is at least straightforward. Render aid and the crew go on about their business.

When the vessel is laden with homeless persons who have paid over a lifetime’s fortune to an immoral people smuggler, the issue becomes problematic. Not necessarily because the law is less clear. It’s just that when homeless people or refugees or illegal boatpeople (chose your label) are involved, the question of what to do with them becomes the priority.

The duty to go to the assistance of vessels in distress is paramount. Even in times of conflict, once a vessel is sinking, there is an obligation to rescue the shipwrecked sailors. Fulfilling that obligation may include towing the vessel to the nearest port or abandoning ship and saving the crew/passengers.

The State rendering the assistance is not obligated to try to repair the vessel in distress. There is no obligation to make it seaworthy. That is the responsibility of the boat owner after all.

It has been reported that the Australian Navy has attempted to make the vessel in question seaworthy and that is a policy decision for the government.

However one cannot imagine the Government offering to fix a merchant ship or the yacht of a solo sailor. They would simply deal with the immediate threat to life and property issues would become the responsibility of the vessel owner.

Peter Fray

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