Blog post by Yazdan Kargaran who holds a LLM in Human Rights from Nottingham Trent University and currently works as a youth worker at the Nottingham Refugee Forum.
Rishi Sunak’s government faces a significant legal and ethical challenge following the UK Supreme Court‘s unanimous ruling against the plan to deport asylum seekers to Rwanda. The decision not only strikes a blow to one of the Prime Minister’s key promises to “stop the boats” but also raises profound questions about the principle of good faith in international law.
The court found that there was a real risk that deported refugees would face mistaken assessments or persecution in Rwanda, undermining the government’s claim that the £140m Rwanda programme would deter asylum seekers from travelling to the UK. Despite this setback, Mr Sunak is determined to push ahead with an emergency bill to override the Court’s ruling, with plans to elevate the agreement with Rwanda to the treaty level.
As the government scrambles to implement this policy, one can’t help but ponder the relevance of the Latin expression “pacta sunt servanda,” meaning “agreements must be respected.” This principle, enshrined in Article 26 of the 1969 Vienna Convention on the Law of Treaties (VCLT), underscores the obligation of nations to perform treaties in good faith. In this context, how does the UK’s proposed policy align with its international commitments? Does Sunak’s approach towards the Rwanda plan honour or violate this fundamental tenet of international law? This blog post delves into these pressing questions, exploring the intricate balance between national immigration policies and international legal standards.
The essence of good faith in international obligations
In the complex landscape of international law, the principle of good faith is a cornerstone. Referred to in Articles 26 and 31 of the VCLT, this principle guides the way in which states fulfil their treaty obligations. More than a mere legal formality, this principle requires states to respect not only the letter but also the spirit of their commitments. Breaches of good faith are not only direct violations but also a series of acts or omissions that, cumulatively, render treaty obligations ineffective or deviate from the intended purpose of the treaty.
It is important to note that this lack of good faith is not always linked to the violation of an express clause of a treaty but rather to the general commitment to genuinely respect the treaty’s objectives. A State is considered to lack good faith when it seeks to circumvent its obligations, either by indirect means or by actions that fundamentally undermine its ability to honour the treaty.
The assessment of good faith is objective and focuses on the practical effects of States‘ actions rather than on their intention or motivation. This objective approach is crucial, especially when interpreting treaties whose terms are unambiguous. The principle of good faith does not extend a state’s treaty obligations beyond what is agreed in the text. However, it is fundamental to the creation and enforcement of legal obligations.
In the field of multilateral human rights treaties, where the text may be ambiguous and individual rights are at stake, a good faith interpretation often requires a nuanced approach. This approach must be reasonable, account for all the circumstances and align with the evolving understanding of rights and obligations.
Through this prism, we can better understand and assess the actions of states such as the UK in the context of their international commitments, particularly with regard to asylum and refugee protection. The question then is: Do the UK’s recent actions regarding the Rwanda asylum plan reflect this principle of good faith, mainly where individual rights and international humanitarian obligations are at stake?
Navigating the tightrope: Asylum rights and state sovereignty
In the complex interplay of international obligations and state sovereignty, the UK’s approach to asylum seekers is very delicate, particularly in the context of its Rwanda Plan. International human rights and refugee law explicitly protect the right to seek asylum. The unanimous decision of five Supreme Court judges upholding an appeal alleging a real risk of incorrect assessment or persecution in Rwanda for deported refugees illustrates the complexity of such measures.
This decision highlights the need to thoroughly examine conditions in countries of origin and the impact of policies on rights and obligations under international law. While states are not obliged to facilitate the movement of asylum seekers, their ability to restrict such movement is constrained by international law and the duty to respect those obligations sincerely. The UK’s actions, particularly those involving extraterritorial measures such as interception or pre-entry clearance, must align with international obligations, follow general international law and apply rights reasonably and proportionately.
These policies, particularly those aimed at preventing the arrival of people needing international protection, raise important legal and ethical issues. They contrast sharply with efforts to create safe zones, as in northern Iraq in 1991, and raise questions about potential violations of rights and the principle of good faith under international law.
The complexities of good faith in asylum law: Lessons from the Roma Rights case
The Roma Rights case (UK House of Lords, 9 December 2004), while ultimately rejecting the good faith argument under the 1951 Refugee Convention, provides crucial insights into the complexities of asylum law and the responsibilities of states. Lord Hope’s observation in this case highlights a key point: the 1951 Convention does not explicitly prevent states from controlling the movement of asylum seekers outside their borders.
This interpretation suggests that measures taken by States before individuals reach their borders are not necessarily incompatible with obligations undertaken once refugees arrive on their territory. However, this narrow view of the principle of good faith, focusing solely on the 1951 Convention, ignores the wider implications of other aspects of human rights law, such as the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR).
This case highlights that while certain non-arrival measures do not directly contravene the 1951 Convention, they can nevertheless be challenged under the wider concept of good faith in human rights law. This broader perspective is essential when it comes to actions such as physical bans, where the risk of refoulement or “chain” refoulement is present.
The advisory opinion of the International Court of Justice on the Genocide Convention reiterates this point. It states that in human rights law, which includes refugee law, treaties are motivated by a humanitarian purpose. In these treaties, states share a common interest beyond individual gains or losses, focusing on achieving the lofty goals of the conventions. This perspective challenges the notion of maintaining a perfect contractual balance between rights and duties in human rights treaties, further complicating the application of the principle of good faith in asylum and refugee matters.
Reflection on the responsibilities of States and the spirit of the 1951 Convention
The 1951 Refugee Convention, while not explicitly requiring states to process asylum seekers within their borders, implicitly imposes a comprehensive set of responsibilities through its various provisions. These include non-punishment for illegal entry, non-discrimination, non-refoulement, access to courts and guaranteeing fundamental rights and freedoms for refugees.
States are responsible not only for refugees on their territory but also those affected by enforcement measures they take beyond their borders. In particular, they must ensure that refugees are not forcibly returned to places where they are likely to suffer serious harm and that, if they are resettled, they have access to adequate protection and solutions.
Furthermore, attempts by States to externalise their obligations to other States run counter to the objectives of the multilateral treaty regime and violate the spirit of the 1951 Convention. The principle of good faith requires States to seek reasonable and proportionate alternatives consistent with their international commitments.
The broader framework of international protection, encompassing refugee law, human rights law and the principles of good faith, creates a normative structure for dealing with refugee issues. At the heart of this framework is the expectation that states will cooperate rather than act unilaterally in their own interests. Unilateral disregard of these principles by one state can erode international cooperation and hinder collective efforts to find solutions, underlining the importance of adhering to these fundamental principles in international relations.
Conclusion
In conclusion, the UK’s approach to managing asylum seekers, particularly through the Rwanda Plan, raises crucial questions about adherence to the principle of good faith in international law. The Supreme Court ruling and the broader context of human rights law highlight the delicate balance between state sovereignty and international obligations. States must meet their responsibilities to refugees while respecting international treaties and principles, including non-refoulement and the fair treatment of asylum seekers. The UK’s actions and policies, both current and proposed, highlight the continuing challenge of aligning national interests with international commitments, which is crucial to maintaining the integrity of international cooperation and the protection of human rights.
The views expressed in this article belong to the author/s and do not necessarily reflect those of the Refugee Law Initiative. We welcome comments and contributions to this blog – please comment below and see here for contribution guidelines.
Trackbacks/Pingbacks