Between Moral Blackmail and Moral Risk

October 6, 2001, the Adelaide cruised the Indian Ocean-part of an Australian

Navy operation aimed to unauthorized migrants from accessing the country's territory.
Not only now days, but in the previous month or so, unauthorized migrants making
attempts to enter Australia. Commander Norman Banks and the Adelaide edged to the
migrant boat. Following their operational guidelines, they stopped nine or ten nautical
miles away without becoming visible from migrants' perspective.
Under the law of the sea, this would force the Australians to initiate rescue,
creating subsequent legal obligations towards the rescue party. Such obligations were
precisely what the guidelines from Canberra were designed to avoid "moral
blackmail".
In this section, it informs that chapter 1 : outlined the general structure of the
human rights encounter, chapter 2 : focused on the nature of the human rights claim,
chapter 3 : developed a theory of the human rights commitment.
Building on insights from the previous one, this chapter will further characterize
the inconsistent commitments that many of us have, both to (non-positive) human
rights law and to the positive law of the social contract. When migrants challenge and
strain the human rights commitments of personnel carrying border guard duties in the
name of developed states, the basic characteristics of such commitments are
highlighted.

The Tampa Encounter

Australian public support for refugee protection declined as early as 1977, when
the first Vietnamese asylum seekers reached its shore. As the influx of Southeast
Asian refugees continued into 1990's and the Orderly Departure Program ended. The
Australian government introduced mandatory detention in 1992. But the truly decisive
and much-commented-upon policy change in Australia occurred in 2001, when the
Norwegian MV Tampa sought to disembark 438 Afghan migrants it had saved.
Australian authorities informed the Tampa that entering Australian territorial
water would not be illegal: "Australian Government at the highest level formally
requests that you not approach Christmas Island and that you stand off at a distance at
least equal to your current position- 13,5 nautical miles from the island. They
enforced a closure on the port of Flying Fish Cove pursuant to a law providing for
"special powers of harbor master in emergencies", triggered when "the harbor master
of a port is satisfied that a dangerous situation exists".
Canberra instructed boats from Christmas Island to not attempt reaching The
Tampa: Physical contact with the rescues stranded on board could mean jurisdiction
over them, and legal obligation would follow.
On August 29, 2001, Captain Rinan who had Afghans refugees with him had his
own Mayday emergency signal have been ignored. He decided to proceed into
Australian territorial waters. Then, Armed members of the Special Air Service
Regiment boarded to Tampa. Captain Rinan thought that it was a humanitarian matter
of saving life at sea, not a matter of politics. The Afghans appealed not only to
morality but also to international law as the sources for their please to be admitted
into Australia. But it was not clear how - or if at all - their arguments could be voiced
in an Australian court.
The asylum seekers were transferred from the Tampa to an Australian military
vessel under an agreement between the parties to litigation. By the politic agreements,
the asylum seekers had been accepted to be transferred to New Zealand and the
Republic of Nauru. But they not granted access to asylum procedures in Australia
under the Refugee Convention and Protocol.

From Ruddock to The Pacific Solution

To understand the majority opinion, one must first recognize a rather peculiar
fact : Australia's territory and its migration zone are not identical under Australian law.
The Migration Act of 1958 only applies to what it designated as the Australian
Migration Zone - a definition that excluded Australia’s territorial waters outside the
country's seaports.
The trial judge (and Justice Black) held that the asylum seekers would have to
be brought into the migration zone for deportation proceedings to be ignited. But that
was precisely what government sought to prevent. Under the Migration Act, The
Refugee Convention and its remedies would kick in. The rescues would gain a right to
be heard, in justice Blackmun's memorable formulation from sale. Justice French
explained that the matter was not one of immigration, but one of border control.
The very first proposition provided in support of this international law
that : ..."the supreme power of every state has a right to make laws for the exclusion
or expulsion of a foreigner..."
Offense to an individual asylum seeker under the Refugee Convention - or
under human rights law - is not even contemplated. The asylum seekers on the Tampa,
have no right to enter Australia's territory. The Tampa was free to travel anywhere it
wanted in the world, but Australia.
Black's dissent takes a markedly different approach, adopting a construction of
the writ that realizes the right of encounter, the right to be heard, or simply human
rights. Black quotes the European Court of Human Rights, "The mere fact that it is
possible for asylum seekers to leave voluntarily the country where they wish to take
refugee can not exclude a restriction of liberty..."
One might say that the majority imagines a transcendent sovereignty which is
entrusted with securing its citizens by being beyond "The People". The dissent
imagines an immanent sovereignty that is "The People". The People must decide the
statute when they want or do not want to open the border.
On the day trial court handed down its decision upholding the rights of the
Tampa asylum seekers to enter the Commonwealth, terrorist attacked the World Trade
Center. One may speculate on the question of the High Court would have decided the
government's appeal were it not for the 9/11 attack. The influence the attacks had on
the legislature was far more apparent. Through six legislative amendments, Australia
removed numerous Pacific islands from its migration zone. The islands were
redefined so as not to be part of Australian sovereign territory for the purpose of
refugee protection. The legislative amendments, which began late in September 2001,
created a mechanism through which the government responded to those who sought to
impose Australia duties that could fulfill their own rights.

Eliminating The Encounter

Ruddock and the Pacific Solution illuminate two different though
complementary aspect of sovereignty. The judiciary emphasized unilateral executive
power. There are certain policies such as border enforcement has absolute discretion.
The concept of sovereignty that emerges from the judiciary's decision highlights the
exceptionalist, self-referential, aspect of sovereignty. It does not so much matter if
closing the border demanded the use of force in the form of an antiterrorism
commando operation, and it does not matter if closing the border frustrated the sole
opportunity that a particular individual may have had to build a life worth living.
Sovereignty is defined here by its capacity to take a life with impunity: strictly
speaking, this is neither warfare, no punishment.
Casting the problem of unauthorized migrants as regional, the policies of the
Pacific Solution demanded partnership, rather than exceptionalism. Instead of the
unilateral model of sovereignty the judiciary talked about, here the emphasis is on
multilateralism and mutual benefit. Rather than being opposing orientations,
unilateralism and multilateralism figure as two complementary aspects of the
transitional political environment.
In the present context, the different of the Australian government play
complementary roles in eliminating the human rights encounter. Now, when the navy
would stop a migrant boat beyond Australia's migration zone, it would no longer be
violating age-old rule such as the freedom of the high seas; and no longer exposing a
migrant to potential death. Offshore processing in Nauru or New Zealand would
transfer jurisdiction over the migrants to those countries, and those countries would
have to confront the migrants' human rights claim.

From Self-Help to Self-Harm

Commander Banks was sent out to sea with guidelines charging The Royal
Australian Navy with implementing the Pasific Solution. "Operation Relex " was to
prevent the migrants from submitting asylum request in Australia's Migration Zone.
Under Operation Relex, 12 suspected Illegal Entry Vessels were intercepted between
7 September and 16 December 2001. Where previously the Navy's role had been to
escort unauthorized arrivals to an Australian port.
By Operation Relex, the rumor that a child was thrown into the the water caught
on. Officials deployed on Adelaide later explained the boat communicated that a child
was held overboard. But a young Iraqi woman who was among the migrants on the
boat told: "We did not know the language and this was the only way to communicate
to these people, so he was holding his child to tell them, look we have children, if you
don't care about me, care about my child. But what the authorities heard and wrote
down was that the children were thrown.
After not having been able to turn previous boats back, the Adelaide fired across
the asylum seekers' bow, and the asylum seekers jumped into the ocean. Under
instruction from Canberra, Commander Banks decided not to pursue rescue. Then,
asylum seekers tore a hole in their boat's body and water began floading in, and their
boat sunk. Only then came the permission to begin rescue.
Whatever the reasons for the misinformation, the government took the report
about a child overboard as an opportunity to fuel its campaign against boat people.
The issue was boiled down to a statement about the range of acceptable human
behavior. A dozen boats were detected during Operation Relex from early September
to late December 2001. Only one boat was turned back, in a case in which the
Australian Navy boarded it and drove it back to Indonesia on its own. One boat sank,
drowning 350.
On September 7, 2001, Operation Relex encountered the first boat. The Aceng
was warned not to enter Australia water, and the Navy tried to turn if back toward
Indonesia. "When the Master realized that again he was heading North towards
Indonesia he became nervous and pointing to himself, made slashing motions at his
neck, and said "Indonesia". The behavior of those on board became abusive, with
threats of harm to the boarding party, smashing of windows in the wheelhouse, and
objects thrown at the boarding personnel.
The Wary of killing one of the asylum seekers, the Navy gave up. At sunrise all
237 asylum seekers were transferred to an Australian flag vessel that took them to
Nauru for offshore processing. The similar action was provoked by other boat which
wanted to enter Australian Migration Zone. The Australian government's narrative
presented to thr Committee was one of gradual escalation in measure of "self-harm".
Migrants and smuggles network well prepared for intensifying the confrontation.
There were sit-ins and hunger strikes; threats of self-harm and threats of harm to
others; "intimidating behavior" toward Australian forces, protest, and riots. In some
cases, asylum seekers sabotaged the boats they were in, and sometimes the Navy
attempted to deploy engineers to repair the boats while still at sea.

Moral Risk and Moral Blackmail

Positive international law saturated the chaotic events that unfolded at
Australia's maritime frontier between September and December 2001. It not only
choreographed the moves of the Australian Navy. It also spelled out the modes of
action that asylum seekers employed. In declaring on emergency, the executive branch
rejected the idea that it owed legal duties to those who chose to enter Australia
without authorization. But Ruddock still left intact an extremely limited positive legal
duty to rescue humans drowning at sea.
By assuming volition on the part of the migrants on Tampa, the government's
argument that their situation was "self-inflicted" supported the Afghan migrants' own
view that freedom, not just survival, was at stake. It was not only about demanding a
life that is better than death. One of the migrant boats, Ms. Hassan told about a claim
of survival as a human can be transformed into a claim of freedom as a citizen.
 The political nature of the migrants' action is reflected by the means they used
in order to achieve their ends: their resistance to return to Indonesia, their
demonstrations and riots, and their appeal to the Norwegian ambassador. But the court
refused to follow the government's attempt to cast them as merely political. That
would presumably have canceled out any legal obligation toward these non-citizens.
All these facts and arguments had enormous influence on the public debate. "Moral
Blackmail" was the catchphrase coined to express the idea that such political
"exploitation" of humanitarian duties was illegitimate. The phenomenon is not only
moral, however but political and legal as well.
The statement quoted above by John Howard and Phillip Ruddock may seem to
have a family resemblance with the idea of "moral blackmail". Portraying the
disturbing events of Relex as they did, they suggested a distinction between members
of their own families. Ruddock suggested migrants were guilty of premedicated acts
of murder, victimizing the most helpless members of their own families.
Without human rights commitment, a re-interpretation of the law as inapplicable
to these cases would be readily available. Australian government lawyers could have
simply said that the duty of rescue's purpose was to provide for mutual assistance
between seafarers.
The idea of "moral blackmail" points to a duality of commitments within the
same individual. Explaining Emmanuel Levina's understanding of ethics, philosopher
Simon Critchley opposes it to that of Kant. For Kant, the moral imperative follows
from reason. Acting morally, we give ourselves the law. But when we respond to the
temptations our senses expose us to, or seek our own pleasure, we are not following
the dictates of reason but are subject to causation.
Closing the border is provided for by one's operational guidelines and is
supported by a decision like Ruddock. Saving at sea is provided for in treaty and
customary law of the sea. The migrants' strategy is to push state agents to decide
which task reflects a more fundamental commitment. To use Cricthley's language, this
"dividualism" of positive law and human rights commitments might characterize not
only an individual but also a polity. We were to do whatever we could in order to
avoid these people entering into Australian territory. And that would mean, if they
came on the boat, then they are in Australian territory.
Both the cruelty and the hope of human rights are framed between the two
conceptions of moral blackmail and moral risk. “Precisely because a demand to
ignore a drowning person puts a sailor at moral risk, people are amenable to moral
blackmail. Only someone who cannot be put at moral risk is absolutely immune from
such blackmail. Such immunity would mean stepping out of the group that self-
defines through human rights. It would also mean defining same persons or group as
less than human.
The experience figures as one of being bound simultaneously by two spheres of
obligation: the obligation to one’s state, which in this case is represented but the
operational guidelines, and the duties that emanate from the presence of another
person. For what it means to be acting in the name of government and indeed what it
means to be obeying the positive law of one’s country is precisely to assume such a
moral risk. Positive law may contradict one’s judgment or one’s own self-defining
convictions.
The experiences of moral risk and moral blackmail constitute the citizen who
claims to be bound by human rights. Since antiquity, political membership and
political freedom have been associated with the capacity for discourse. But today
migrants who make human rights demand do so, at least initially, with their bodies.
While remaining normally committed to human rights, governments of
relatively well of countries pursue policies designed to avoid the encounter in which
human rights are enforced. When these policies are successful, no human rights
remedies are provided. Human rights remain a dead letter on the books or empty
rhetoric in media.
Under these conditions, unauthorized migrants pursue various methods designed
to press human rights remedies back into existence. They cabin state authorities in the
limited space that exist between moral risk and moral blackmail. Employing measures
of self-harm, they stretch the nation of the rights of encounter to its conceptual limits.
They make political use of the meager legal categories that apply to all humans and
demonstrate that these categories are not reducible to positive law. An ethical force
field surrounds the unauthorized migrant boat.