'Tampa' has entered murky legal waters

The plight of the refugees, still stranded last night in Australian territorial waters, has cast the spotlight on a legal situation that is, in the words of a UNHCR spokesman, "very murky".

While international opinion is upping the pressure on Australia to accept the refugees on humanitarian grounds, it is not clear whether Australia is legally required to do so.

What happens to the boat and its human cargo could be determined either by international maritime regulations or by the international conventions governing the treatment of refugees ­ or both. Had the refugees landed in Australia and claimed political asylum, they would have qualified for consideration under the 1951 Geneva Convention. If they had reached Australian territorial waters in the ship they originally embarked on, Australia might have been obliged to allow them to land ­ in which case the Geneva Convention on refugees would also have been invoked.

As it is, however, the refugees were picked up at sea ­ under international maritime regulations applying to vessels in distress. A ship that picks up refugees in such circumstances has the right to disembark them at its next scheduled port of call. But it is not clear what its scheduled port of call was, as the boat was, in effect, hijacked by the refugees and the crew forced to sail to Australia.

At this point, refugee and maritime regulations appear to conflict: refugees are to be disembarked at the next scheduled port of call, while vessels in distress may put in at the nearest port of call in an emergency.

The UNHCR says the priority is to determine the status of the refugees. Are they Afghans who fled Afghanistan, or ­ as some reports say ­ Afghans fleeing refugee camps in Pakistan? If, as the refugee convention stipulates, they should request asylum in the first place of safety they come to, is this Norway – because the ship is Norwegian territory and was in international waters at the time they boarded? Is it Australia, because they are now in Australian territorial waters? Or is it neither, because they are already deemed to have been given refuge in Pakistan?