Haitian William Pierre Louis, 23, left, helps to build the boat he hopes will one day take him to the United States. Photo: Carolyn Cole
It is unclear what Indonesia would hope to achieve in raising its objections to Australia's push back the boats policy with the United States this week. Indonesia may wish to drive home its disapproval of the policy with another of Australia's great allies, but it is unlikely to find a sympathetic ear.
The United States has a long history of pushing back boats from its coasts, particularly those originating from Haiti and from Cuba.
The early practice of the US was based on a bilateral agreement it concluded with Haiti in 1981, allowing the United States to board Haitian vessels and upon discovery of a violation of immigration laws, return the vessel to Haiti after notifying that country's government. US officials initially screened persons interdicted at sea to make a preliminary assessment on refugee status but subsequently abandoned this practice. The bilateral agreement was terminated in 1994, but the United States has continued to interdict Haitian vessels.
Despite the froideur that typically characterises US-Cuba relations, the United States concluded a joint communique with Cuba in 1994 to enable each government to take ''effective measures in every way they possible can'' to prevent irregular migrants from reaching the United States from Cuba. It was further agreed that ''migrants rescued at sea attempting to enter the United States will not be permitted to enter the United States, but instead will be taken to safe haven facilities outside the United States''.
Ultimately, it was agreed between the two countries that Cuban migrants who were intercepted at sea by US officials would be taken to Cuba.
The United States has concluded a significant number of bilateral treaties with Caribbean and Central American states to facilitate US Coast Guard operations in maritime areas near the United States. These bilateral agreements are not limited to people smuggling, but also address drug trafficking and illegal movement of weapons of mass destruction.
The agreements permit the United States to exercise authority, particularly policing powers, over foreign flagged vessels outside US maritime zones. The ad hoc consent of the flag state to interfere with one of its vessels on the high seas would otherwise be necessary.
European states bordering the Mediterranean have similarly conducted maritime interdictions of vessels carrying irregular migrants in an attempt to prevent their arrival onto their shores. Italy, Spain and Malta have reached agreements in some instances with the states from which irregular migrants are departing to board and return those vessels.
Human rights and refugee advocates have maintained that these maritime interdiction agreements cannot in any event negate the right of an irregular migrant to have any claim to refugee protection assessed. This right is said to arise once another state has effective control over the vessel and those on board.
To turn the boat back before assessing the claim to refugee status is a potential violation of the obligation of non-refoulement. Non-refoulement requires, at a minimum, states not to send refugees back to places where they would be at risk of persecution.
The US did at first process claims to refugee status for those fleeing from Haiti. When the volume became too great, immediate return to Haiti became the alternative solution. This policy shift was challenged before the US Supreme Court in the 1993 case of Sale v Haitian Centers Council. The Court concluded that the obligation of non-refoulement did not apply on the high seas.
This decision has been soundly criticised for its narrow application of refugee law. The European Court of Human Rights reached the opposite conclusion in a 2012 case brought against Italy for intercepting irregular migrants on the high seas and returning them to Libya. Italy was found liable for violating the human rights of these asylum seekers and was required to pay €15,000 ($22,698) in reparations to each of them. Sale remains the applicable law in the US.
At the moment, Australia's push back the boats policy appears to take a leaf out of the US's book when it comes to irregular migration. Indonesia's complaints would be better received by other countries that are subjected to forcible return of vessels - Haiti, Cuba, Mauritania, Senegal and Libya.
Dr Natalie Klein is Professor and Dean of Law at the Macquarie University Law School.