Tony Abbott’s plan for Europe to “stop the boats” arriving on its shores cannot work.

While the former Australian prime minister said in the Margaret Thatcher lecture in London that “stopping the boats and restoring border security is the only truly compassionate thing to do”, there are fundamental reasons why a “turn-backs” policy is impractical, illegal, and an impossibility.

Scale

“The second wave of illegal boat people [in Australia] was running at the rate of 50,000 a year – and rising fast.”



This is not true.

Australia’s parliamentary library compiles comprehensive figures of the number of boat-borne arrivals. The largest number to reach Australia in a single year was 20,587 in 2013. The former PM’s figure is a two-and-a-half times exaggeration.

The semantic deception that it is illegal to seek asylum by boat in Australia is another persistent trope, despite also being untrue. Under international law, all people have a right to present to the borders of a country seeking asylum. They break no law by doing so.



But, on a practical level, the number of people seeking asylum in Europe is factors greater than those who ever attempted to reach Australia.

In a single week in August, 20,843 migrants reached Europe, more than Australia’s largest ever yearly figure.

In the month of August, 190,000 people reached Europe’s external borders, Europe’s border agency Frontex reported. The figure for the first nine months of 2015 was 710,000.

Australia’s “crisis” was infinitisimal in comparison to the movement of people into, and across Europe.

In Europe they are not coming by one or two sea routes - seeking Christmas Island from Cisarua in Java or Australia’s west coast from Batticaloa in southern Sri Lanka. Those reaching Europe are coming via at least eight established “routes”, which shift and move, wax and wane, with changing circumstances in home countries and host.

The forces that compel people to leave their home countries are far greater than governments’ abilities to stop them. When borders are blocked, people seek, and ultimately find, another way.

Governments absolutely must seek to manage flows of people across borders. Nation-states have the right, indeed the obligation, to control, as best they can, the movement of people across its frontiers.

But “stopping boats” at one single border, or pushing them back to another country, does not staunch the movement of people, as the Australian and European experiences both show.

It simply leaves people in limbo: in potential danger in their homeland, stuck in camps or in transit, or, at its most dramatic iteration, seen in the Andaman Sea this year, stranded at sea.



Politics and law

“The countries of Europe, while absolutely obliged to support the countries neighbouring the Syrian conflict, are more-than-entitled to control their borders against those who are no longer fleeing a conflict but seeking a better life. This means turning boats around, for people coming by sea. It means denying entry at the border, for people with no legal right to come.”

Australia is a single, sovereign nation-state.



It has a navy and a department of immigration and border protection, and the power to act unilaterally to enforce policies.

The European Union is a politico-economic union of 28 member states: each of which has different policies and polities towards asylum seekers and refugees.

Germany, outlining an economic case why migrant inflows will boost its already powerful economy, has indicated a willingness for refugees to make asylum claims, be processed, and, if successful, settle within its borders.

Efforts by Greek border guards to unilaterally, and forcibly return asylum seeker boats were widely condemned and ultimately proved ineffective. In the first nine months of this year, more than 350,000 people crossed via the Eastern Mediterranean Route, the vast majority by boat across the Aegean from Turkey to Greece.



A migrant swims as he arrives on the island of Lesbos after crossing the Aegean sea from Turkey to Greece on an overcrowded inflatable boat this week. Photograph: Santi Palacios/AP

There is additional law, too, governing European nations. Article 19(1) of the Charter of Fundamental Rights of the European Union prohibits “collective expulsions”, such as boat pushbacks. The article guarantees that any expulsion of a non-citizen is based on a specific examination and decision for that person.



The idea of a unified Europe openly acting to unilaterally ‘turn back the boats’ is a political unreality and an illegality.

Refoulement

“It’s good that Europe has now deployed naval vessels to intercept people smuggling boats in the Mediterranean – but as long as they’re taking passengers aboard rather than turning boats around and sending them back, it’s a facilitator rather than a deterrent.”

Australia says boat turnbacks “where safe” are a powerful deterrent to asylum seekers coming by boat. “Where safe” is the critical caveat, observed in the rhetoric though not always in the practice.



Australia has returned boats to Indonesia and to just-post-war Sri Lanka.

Neither country is party to the refugees convention, so does not, in law, offer protection to refugees. Evidence of torture of those returned to Sri Lanka has been consistently documented. Boats forced back to Indonesia have foundered on reefs and its passengers requiring rescue.

Australia is required, under the non-refoulement obligations of the refugees convention, not to return a refugee to a place “where their life or liberty would be threatened”.



Several international refugee law authorities have argued consistently that Australia is breaching its non-refoulement obligations, and is acting illegally when it returns boats.

Europe’s position is even more restricted. The ability for Europe to return boats is non-existent.

A significant number of boats are crossing the Mediterranean are coming from Libya, a country itself wracked by civil war and a place where those returned would almost certainly face a threat to life or liberty.



From May 2009 Italy began returning boats to Libya after signing an agreement with that country. However, the operation was suspended in 2012 after the European Court of Human Rights ruled that Italy’s actions violated the European Convention on Human Rights in failing to protect the people from torture and inhuman or degrading treatment or punishment.