As the UK Government prepares to announce its new Sovereign Borders Bill in parliament, David Forbes argues that the very idea of ‘sovereign borders’ is false and ignores both the reality of international legal commitments and the disastrous precedent of Australia’s flirtation with the concept.
The British people were invited to respond to a Consultation about Home Secretary Priti Patel’s New Plan for Immigration over the six weeks to 06 May. This has proved to be a highly contentious process, with almost 200 refugee, human rights, legal and faith groups publicly condemning the process, not least for excluding the perspective of refugees.
None of us were invited to challenge the title ‘Sovereign Borders’ attached to the post-Consultation Bill which will be announced in this week’s Queen’s Speech. Nor were we invited to question whether “sovereign borders” is an appropriate concept to apply to complex issues of migration and asylum which are defined in customary international law.
Sovereign Borders, as some will remember, is the title of the Australian initiative to turn back boat people from its territorial waters starting in 2013. It is perhaps no accident that Tony Abbot, the Australian Prime Minister of that day, has been appointed as a special adviser on post-Brexit trade arrangements.
It is also no coincidence that a similarly-structured (but much more limited) Consultation was held last year on the 2025 UK Border Strategy. This was in relation principally to trade and customs arrangements, but not excluding migration. There, in his foreword as Chancellor of the Duchy of Lancaster, Michael Gove prefaced his strategy with the words, “now that Britain has regained full sovereignty over its borders”.
At least the greater inclusiveness of this year’s Immigration Consultation is welcome. This openness reflects the government’s Section 23 agreement with the Equality and Human Rights Commission to ensure, in the light of the Windrush debacle and the recommendations of the Wendy Williams Report (2018) on lessons learned from it, that all relevant Stakeholders are properly engaged in the development of new immigration policy.
The myth of Sovereign Borders
But we should challenge the Sovereign Borders label as misleading because it implies that somehow Britain has acquired powers it lacked before Brexit and has shed supposedly burdensome human rights responsibilities. This is surely questionable and misleading. After all, Britain did have sovereign borders between 1973 and 2020; Brexit did not create or establish the borders freshly in 2020. Under the EU we had taken advantage of a right to opt out of the Schengen free movement area and opt in to its Information System. Meanwhile, progress towards the objective of “ever closer union”, to which Brexiteers objected, will not deprive EU member states of sovereignty over their borders, even while they share sovereignty increasingly in other areas of policy.
Viewed in the cold light of day, the final Withdrawal Agreement is far from facilitating the UK’s pursuit of increased sovereignty over its borders. A panoply of committees exists to resolve disputes and promote compromises and adaptations in a strictly multilateral framework. The UK continues to have a land boundary with the EU on Ireland as well as (via its overseas territories) on Cyprus and between Gibraltar and Spain. It also has maritime boundaries with these and another five EU member states. The UK will not be able to duck the need to negotiate through EU frameworks or, indeed, its ongoing involvement with the Council of Europe’s Commission and Court of Human Rights under the European Convention in Strasbourg.
In short, sovereignty will turn out to be, as it always has been since The Peace of Westphalia in 1648, a multilateral, not a unilateral, concept. Within this framework of multilateralism and collective human rights responsibilities, it is clear that ‘solutions’ to arrivals via the English Channel remain largely dependent on continuing bilateral agreements with France, the progenitor of the Human Rights concept. And, as Peter Ricketts, former UK Ambassador to France and National Security Adviser, has pointed out, the sub-text of Anglo-French cooperation on Defence and Security is France’s strong influence on the EU’s Political and Security Committee. It should be in Britain’s interest not to upset France or the EU as a quid pro quo for France’s acquiescence in ‘protecting’ England’s southern shores from the Channel arrivals. However, the military posturing over recent confrontations between UK-backed Jersey and France over local fishing rights demonstrate that other political logics will at times intervene.
Lessons not learned
This limitation to autonomous action is also the lesson learned from Australia’s “Sovereign Borders” initiative. Following its instigation, hot pursuit of people smugglers into Indonesia’s waters caused huge resentment in that country and a need for Australia to make a strategic climb-down. Meanwhile, in 2016, Papua New Guinea’s High court declared unlawful the treatment of rejected asylum seekers pushed on to its territory and detained on the remote Manus Island.
Australia did ‘solve’ its problem of ‘boat people’, but only at the cost of good relations with its neighbours and deep distress for thousands of former boat people, many of whom are still in limbo over seven years on. Australia’s international image as a signatory of the Refugee Convention and other international human rights instruments has been tarnished in the process.
If the Sovereign Borders Bill follows the Immigration Plan, it will not only imperil Britain’s relationship to international law but will also mean the UK openly challenging other countries’ sovereignty. The proposed resettlement process would require British consular officials who are hosted within the sovereign borders of other countries by bilateral agreement, publicly to intervene in their host country on behalf of certain individuals who are suffering persecution directly or indirectly from their governments. One can only imagine how this would impact on diplomacy in places like China or Iran even while the UK is seeking their cooperation in avoiding ecological or nuclear catastrophe. There would also be a clear risk that the home governments of UK-nominated refugees would disappear, imprison or kill them before they could be brought to the UK. The results could be disastrous all round.
Against the background of all this ‘realpolitik’ the fact is that since the Universal Declaration of Human Rights in 1948, the individual has shared sovereignty with the State. His or her rights have been enshrined within the Refugee Convention, the European Convention on Human Rights, the International Convention on the Rights of the Child and many other examples of customary international law.
The UK government, which is still digesting the Windrush Lessons Learned Review, needs to acknowledge this explicitly in its Immigration Plan. It should favour maximising security for all, including the unfortunate Channel ‘boat people’, over a false concept of sovereignty. Respecting human rights will do more for Britain’s image in the world than a quixotic pursuit of sovereign borders.
The views and opinions expressed in posts on the Rethinking Security blog are those of the authors and do not necessarily reflect the position of the network and its broader membership.
Image Credit: Photo composite of RAF P-8A patrol aircraft, UK Border Force patrol cutter HMC Seeker and migrant dinghy in the English Channel, from Navy Lookout.
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