Sovereignty and jurisdiction: case of the Tampa Affair

Sovereignty and jurisdiction are two important terminologies that help us understand international relations (IR). A state is a key actor in the international system and it is sovereign. Its sovereignty is exercised within its defined jurisdiction when it makes decisions on behalf of its citizens.

This article will begin by discussing both key terms including the terms asylum seeker and refugee. In the discussion, the Tampa Affair will be used as a case study to help explain the key terms. In addition, a review of relevant domestic and international law texts that are connected to the Tampa Affair will be discussed to help one further understand the key terms.

Sovereignty

Shaw said that the doctrine came about after the birth of the modern state system and the emancipation of IR. Some scholars of IR believe that the modern state system began in 1648, after the Treaty of Westphalia.

The term sovereignty is derived from the Latin terms superanus through the French term souverainete. The terms were originally meant to be the equivalent of supreme power.  

Shaw and other other scholars recognized Jean Bodin as the first to analyzed this term systematically in 1576 in his work the Six Livres de la Republique. The term was used to deal with the structure of authority within the modern state. He said it was vital to have a sovereign power within the state that would make laws. Also, he said the sovereign power could not be bound by the laws he himself instituted but was subject to the laws of God and of nature.

Shaw states that the idea of the sovereign as supreme legislator was in the course of time transmuted into the principle which gave the state supreme power in relation to other states. He goes further by saying that the state was regarded as being above the law.  

Besson defines sovereignty as supreme authority within a territory. She said it is a pivotal principle of modern international law. All institutions and principles of international law rely directly or indirectly on state sovereignty. 

Australia felt that it was in her best interest to make tough legislation and policies to prevent people smugglers from smuggling asylum seekers into their territorial waters. Agents of the state played a pivotal role in setting up the legislative and policy framework.

Whittaker defines an asylum seeker as a person in transit who is applying for sanctuary in some other place than his native land. The migrant is in search for something better and in that sense is an intending immigrant. Moreover, the Refugee Council says that an asylum seeker is a person who has left their country of origin and formally applied for asylum in another country but whose application has not yet been concluded. 

The Tampa Affair happened on August 26, 2001. One month after on September 26, the Australian Senate passed the following bills relating to border protection:

• Migration Amendment (Excision from Migration Zone) Act No. 127 2001;
• Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act No. 128 2001;
• Migration Legislation Amendment (Judicial Review) Act No. 134 2001;
• Migration Legislation Amendment Act (No. 1) No. 129 2001;
• Migration Legislation Amendment Act (No. 6) No. 206 2001; and
• Border Protection (Validation and Enforcement Powers) Act No. 126 2001.

Australia acted as a sovereign nation by passing the following bills. The process of legislative changes is ongoing. The Australian government does not want transnational crime syndicates in the region specializing in human trafficking or people smuggling to continue illegally smuggling asylum seekers into their territorial waters.  

Jurisdiction
The word jurisdiction comes from the old french word jurediction and the Latin word jurisdictio. Jus or jur in Latin means law and dictio means saying (dicere means to speak). The term is used to refer to the geographical limitation of a particular government's legal authority.   

Besson said that all institutions and principles in international law rely directly or indirectly on state sovereignty. For example, the relationship between the conditions and attributes of statehood or the principles of territorial or personal jurisdiction, immunity, and non-intervention.

Australia has the supreme power to make laws and policies which affect persons, property and circumstances within its territory. One notable outcome of the legislative changes was the exclusion of certain territories from Australia's migration zone. Christmas Island, Ashmore and Cartier Islands, and the Cocos (Keeling) Islands were listed as excised offshore places.

In addition, unauthorized arrivals to these territories were not allowed to apply for a visa except by ministerial discretion. The unauthorized arrivals or 'offshore entry persons' are the ones moved to Manus Island or Nauru where they have access to refugee assessment processes.

The refugee assessment process or also known as the refugee status determination is a legal or administrative process by which governments or UNHCR determine whether a person seeking international protection is considered a refugee under international, regional or national law. 

The Refugee Council says that a refugee is:

"A person who owning to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owning to such fear is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owning to such fear, is unwilling to return to it."

Once when asylum seekers or refugees enter into the territorial jurisdiction of a particular state. It is up to the sovereign state to decide in relation to both international and domestic laws what is to be done. This is clear in the case of Australia.

The Director of Human Rights Watch in Australia called on the government to transfer the refugees to Australia or a third safe country. More then 1,000 people protested in Sydney and 500 in Melbourne rallied against the government's offshore detention centers. Apart from norm entrepreneurs and concerned citizens, not many states have come out openly to criticize what Australia is doing.

International law texts

Article 14 (Paragraph 1) of the Universal Declaration of Human Rights (UDHR) states that we all have the right to seek and to enjoy in other countries asylum from persecution. But if we look at Paragraph 2, it says that the right may not be invoked in the case of prosecutions arising from terrorist offences or acts contrary to the purposes and principles of the United Nations. 

The people smugglers have no respect for Australia's territorial sea as expressed in the United Nations Law of the Seas (UNCLOS). The UNCLOS as a convention is a source of international law. Both the people smugglers and the asylum seekers are guilty of breaking this international law.

Another key principle is faith in fundamental human rights. Article 3 of the UDHR states that everyone has the right to life, liberty and security of person. The number of people who died at sea between 2000 and December 2013 is said to be around 1900. Australia does not want more asylum seekers to continue to died at sea. They also do not want asylum seekers to travel in unworthy sea vessels that force them to endure inhuman conditions.   

The 1951 Refugee Convention prohibits states from imposing penalties on those entering 'illegally' who come directly from a territory where their life or freedom is threatened. However, Australia as a sovereign state decided not allow asylum seekers who travel illegally into their territorial waters regardless of the fact that some of them came from a territory where their life or freedom was threatened.

Various international law texts can be used to formulate arguments for and against what Australia has done to asylum seekers and refugees after the Tampa Affair. However, to complicate the matter, there is no strong international body equipped and authorized to enforce international law. This makes international law weak.

Canada and the US are helping Australia to resettle refugees. Both countries have not asked Australia to amend its legislation and policies in order to allow 'offshore entry persons' into Australia. Instead the US is hoping that if they help, then Australia will reciprocate by accepting refugees from Africa or central America.   

Conclusion
The case of the asylum seekers and refugees on Manus Island and Nauru is not so simple. Australia is a sovereign state, as such other sovereign states will find it difficult to tell them what to do in their own territory. The best they can do is provide help like what the US, Canada, Nauru and PNG is doing and hope that Australia will reciprocate.

Both key terms can be defined further using other cases and connecting concepts. The explanations given above are meant to give one a basic understanding of both in relation the concept of territory and to relevant domestic and international law texts.