UK-Rwanda Memorandum breaching ius cogens: what the ECHR has done – and can practically do

On June 14, the chartered flight to send seven asylum seekers from the UK to Rwanda was blocked following the intervention of the European Court of Human Rights. The flight was the first of those planned under a bilateral agreement to screen the processing of asylum claims of migrants who entered the United Kingdom illegally, signed between London and Kigali last April. The UK’s new plan to deport asylum seekers has been sealed in order, according to the Johnson government, to deter migrants from crossing the English Channel bound for the UK. The measure issued by the ECtHR was directed specifically toward one of the passengers on the flight: in fact, the Court upheld an appeal that had been filed the day before by an Iraqi asylum seeker, a likely victim of torture according to its ruling, who was destined to be transferred to Rwanda. According to the European judges, no migrants can be transferred under the arrangement until it is submitted to the final opinion of the British High Court, expected at a hearing scheduled for next month. The Court’s decision triggered a series of appeals by the other passengers through domestic legal mechanisms that blocked the departure procedure for the other six to Rwanda. Although the measures indicated are temporary, the ECtHR may choose to extend them.

The purpose of this agreement is to create a mechanism for the transfer of asylum seekers – whose applications are not considered by the UK – to Rwanda, which will process their applications and resolve or remove individuals after their application has been decided, in accordance with Rwanda’s domestic law, the Refugee Convention, current international standards and international human rights law. Through this agreement – which has already passed into the news as a “one-way ticket” – the UK’s legal responsibility to such individuals ceases once they are relocated to Rwanda, as they cannot return to the UK. The policy marks the first agreement between the UK and another country to remove asylum seekers – thus described by the Home Secretary Patel as “the biggest overhaul of our immigration system in decades”. The agreement is part of the government’s New Plan for Immigration and was signed two weeks before the Nationality and Borders Act received royal assent. The goal of these new immigration measures seeks to fulfill the government’s promises to strengthen the country’s borders after Brexit and regain control of migration flows. But the executive is fighting record numbers of people using small boats to cross the channel from northern France. From January 1 to June 13, there were 777 attempted crossings involving 20.132 people, 68% more than in the same period last year and of which Britain has repeatedly blamed French authorities for not doing enough to stop the crossings.

The agreement, moreover, is perfectly legal – although UK Law Firm Leigh Day has already submitted a pre-action letter to the Home Office on behalf of the charity Freedom from Torture, citing “serious concerns about the lawfulness of the policy”. Under Section 345C of the Immigration Rules, an applicant whose application is deemed inadmissible may be transferred to a “safe third country”. An application can be deemed inadmissible for several reasons, including if the individual crosses to a safe third country and does not apply there. In theory, this provision would catch people crossing the Channel in small boats. It is important to notice, though, that there is a lack of oversight and accountability: there has been no prior parliamentary scrutiny of the merits, practicality, lawfulness, implications or costs of the agreement, even though it has such significant implications and effects on people. This was possible because the agreement was signed as a non-binding Memorandum of Understanding (MoU). Only certain categories of binding treaties are published in advance for parliamentary scrutiny and can be delayed if Parliament opposes them. Here, on the other hand, we have a very controversial policy that has not been subject to any scrutiny – let alone approval – by Parliament simply because it is non-binding. The government says that the reason a non-binding memorandum was chosen was to allow the two countries to amend it quickly if they both agreed. However, given its importance and controversial nature, it is hard not to infer that another reason was to avoid prior scrutiny. Of course, where there is no effective access to justice or where the principle of non-refoulement or individual rights are violated, a policy is illegitimate regardless of whether an MoU or a treaty was chosen.

However, the UK-Rwanda bilateral agreement has already come under criticism from the international community since its conclusion in April. In a note in the aftermath of the signing of the agreement, UNHCR – the UN refugee agency – had already expressed strong opposition and concern over the UK’s plans to outsource its asylum obligations and urges the country to refrain from transferring asylum seekers and refugees to Rwanda for processing of asylum claims. First of all, the Memorandum would constitute a violation of the 1951 Convention Relating to Status Refugees – to which the UK is a State party – which states in Article 31 that “the Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who […] enter or are present in their territory without authorization”. Additionally, it can be argued that this agreement violates the international law principle of non-refoulement contained under Article 33 as well, which provides that “no Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his [or her] life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”. The agency also remains firmly opposed to agreements with the aim of transferring refugees and asylum seekers to third countries, where subjects will be in the absence of sufficient standards of safeguards: such agreements in fact seek to shift responsibility regarding asylum, circumventing international obligations, as well as violating the letter and spirit of the Refugee Convention. If the goal of the agreement, as stated by the British administration, is to deter refugees from resorting to “perilous journeys”, they instead have the opposite result of increasing the risks, causing refugees to seek less safe alternative channels – the agency continues. Further, UNHCR believes that wealthier nations should show solidarity in supporting Rwanda and the refugees it already hosts, and not add to its burden. The UK has an obligation to ensure access to asylum for those seeking protection: through this arrangement, however, the British government seems to be moving away from the “long history of pride in providing protection to those in need, in accordance with international obligations” – as it states in the Memorandum. It is in fact taking steps that devolve responsibility to others and thus threaten the international refugee protection regime, requiring states to receive asylum seekers and protect refugees on their territory, regardless of race, nationality, or channel of entry. In addition, the fact that the MoU is non-binding makes it impossible for the UK to enforce it under international law: if people are mistreated in Rwanda or do not have access to a fair immigration process, there is no dispute resolution process and no recourse to international courts – in other words, legally there is nothing the UK can do to make things right.

In view of the remarks submitted by the UN agency, it is therefore essential to examine whether this Memorandum can be invalidated. First, it is necessary to ascertain whether the agreement constitutes, or has the same effect as, a bilateral treaty, and whether it is binding under international law and thus must be interpreted in light of the 1969 Vienna Convention on the Law of Treaties. Second, it must be examined whether the agreement constitutes a bona fide violation of the principle of non-refoulement. Third, whether that principle has achieved the status of ius cogens in international law. It is when these three obstacles have been met that Article 53 of the Vienna Convention can be invoked, which states that any treaty concluded in violation of peremptory norms of international law (ius cogens) is void ab initio. We begin with the last hurdle. The UNHCR High Commissioner, and generally the international community and international law scholars, argue that the principle of non-refoulement has achieved the status of ius cogens: meaning that no State is allowed to return refugees to a territory where their freedom or lives would be in danger. A territory, unfortunately, exactly like Rwanda: although this nation has generously provided safe haven for refugees fleeing conflict and persecution for decades, most live in camps with limited access to economic opportunities – though UK considers the protection systems offered by Rwanda to refugees to be “adequate and consistent with the principles of international solidarity”. Human Rights Watch says Rwanda has a track record of “extrajudicial killings, suspicious deaths in custody, unlawful or arbitrary detention, torture, and abusive prosecutions, particularly targeting critics and dissidents”, and has documented previous arrests and killings of refugees by Rwandan security forces. Rwanda’s human rights record has also been criticized by the UK itself, which in a Home Office statement admitted that Muslim and LGBTQI+ refugees deported there could be persecuted on the basis of their sexual orientation and religious beliefs – but it plans to send them anyway. In view of these precedents, it can be argued that the freedom or lives of refugees would be in danger if they were sent to Rwanda, and thus the agreement violates the principle of non-refoulement – thus verifying the second finding.

It is now imperative to examine whether the UK-Rwanda agreement constitutes, or has the same effect as, a bilateral treaty and is binding under international law. Article 2(1) of the Vienna Convention states that a treaty is “an international agreement concluded between States in writing and governed by international law, whether contained in a single instrument or in two or more related instruments and whatever its particular designation”: thus, it is not a so much the name that makes an agreement a binding treaty under international law, but the will of the parties for the instrument to be governed by international law. Indeed, some aspects of the Memorandum are governed by international law: for example, section 2.1 states that the assessment of the claims of refugees relocated to Rwanda will be based not only on Rwandan national law, but also on the Refugee Convention, existing international standards, and also in accordance with international human rights law. This, however, should not be interpreted as the parties’ intention that the agreement be governed by international law, as this governs only the settlement or removal of an asylum seeker from Rwanda and does not cover the entire agreement. Section 1.6, on the other hand, governs the entire agreement and states that “this agreement shall not be binding from the standpoint of international law”: it is thus crystal clear that the parties to the agreement do not intend for the instrument to be governed by international law. For this reason, the agreement does not constitute a treaty under the Vienna Convention. Although, therefore, the Memorandum cannot be considered void ab initio, it still constitutes a bilateral act that violates ius cogens and is therefore illegal under international law. It can be argued that the legal consequences of a treaty that violates ius cogens should be equally applicable to a bilateral “agreement” that may not be bound by international law. The recent text of the International Law Commission’s draft conclusions on peremptory norms of general international law indicates that both the UK and Rwanda have a legal obligation to “eliminate as far as possible the consequences of any act done on the basis of any provision of the agreement that conflicts with a peremptory norm of general international law” and to bring the agreement into conformity with ius cogens. Since ius cogens gives rise to obligations owed to the entire international community (erga omnes), this implies that all States have a legal interest and, therefore, any State has the right to invoke the responsibility of the UK or Rwanda for violating ius cogens in relation to the agreement.

However, it is important to note that with the current measure, the ECtHR has not declared the deportation plan illegitimate. At this point, it merely stated that national and European courts should be offered more time to decide the case, deferring to the UK courts finding that there were serious resolvable problems regarding removals to Rwanda – mainly concerning evidence that the UK government would have no effective mechanism to compel the Rwandan government to repatriate people to Great Britain and asylum seekers transferred will not have access to fair and efficient procedures if the British courts found the policy to be illegal when hearing the full case. Should, on the other hand, the UK decide to expel the person concerned before the ECtHR measures expire or are lifted, there would be a violation of international law. A situation that seems concrete and very likely as the UK Home Office is planning a second flight to deport asylum seekers to Rwanda. The flight could take off around early July and before the High Court has ruled on the legality of the government’s plans – in a hearing that does not begin until July 19.

The ECtHR is a human rights tribunal based in Strasbourg that deals with compliance with the European Convention on Human Rights. It can issue legally binding judgments when the human rights of any person under the power of any of its Member States are violated. The Court is not connected to the European Union, and, after Brexit, the UK remains a member. The Court usually deals with violations that occur on the territory of the Member State, but with exceptions. Deportation is one of them: the Court can prevent the deportation of a person at risk of being tortured in the host country – a well-established principle of human rights law. Normally, victims turn to the ECtHR after the alleged violation has already occurred. However, in some cases where the situation is ongoing, the Court may order the authorities to act to prevent irreparable harm. When it comes to deportation, the rationale is that removing a person from a State that is a party to the European Convention on Human Rights to one that does not make it very difficult to ensure that his or her rights are adequately protected. In this case, the Court cited concerns raised by the UN High Commissioner that asylum seekers transferred to Rwanda would not have access to fair and efficient procedures related to their refugee status claims: there is no guarantee that they would be able to return to the UK from Rwanda to take part in future court proceedings related to their case. In accordance with the established practice of the Court, interim measures such as these are legally binding on States but are urgent measures issued only in extreme and rare cases where there is an imminent risk of irreparable damage, in order to prevent serious harm – the exact ones put in place in case of threat of extradition or deportation to the country where the victims might be mistreated are one example. An interim order can be reviewed at the request of either party and would normally be reversed only if the Court was satisfied that there was no imminent risk of irreparable harm to the claimant. This test would normally be met in a deportation case if there was no imminent risk of deportation, or the Court was convinced that, in the event of deportation, there would no longer be a real risk of irreparable harm.

However, the ECtHR decision does not block the British government’s intentions, who stated that it has no plans to backtrack on the agreement with Rwanda. As a result, the executive has stated that it will introduce legislation that will allow it to ignore ECtHR’s decision through the introduction of a new Bill of Rights in Parliament. This is an addition to planned changes to the Human Rights Act that would allow ministers to ignore ECtHR injunctions and could also affect future cases involving migrants. Indeed, this bill states that the Supreme Court in London is the final arbiter on human rights issues: this would also mean that the European Court’s interim measures issued under Rule 39 of the Rules of Court are not binding on UK courts. A decision that comes close to his party’s calls to quit the European Convention on Human Rights altogether, whose demands perfectly adhere to the new bill’s goal of strengthening the UK’s tradition of freedom. The idea of leaving the ECHR is something the British have been discussing for some time – at least since the May government. In the decision, UK would follow Putin’s Russia, which would be the first – after 50 years and after Greece’s temporary exit in 1967 – to cease to be a party to the European Convention this year – which we covered here. Certainly, not a good example to follow. But, considering Johnson’s recent resignation as Tory leader and Prime Minister, it is necessary to wait to observe the developments on immigration that the new British premier – surely a conservative exponent – will enact, and whether they will be in line with or totally detached from those of his predecessor.

Meanwhile, perhaps something could also be set in motion at the level of the International Court of Justice. As has been established, the Memorandum constitutes a bilateral act that violates ius cogens, giving rise to erga omnes obligations. Article 36 of its Statute says the ICJ has the competence to interpret international treaties such as the Refugee Convention: more specifically, Article 38 of the Refugee Convention provides that States may refer to the Court in the event of a dispute over the interpretation and application of the Convention. This means that a State can turn to the Court against the UK or Rwanda for a violation of the Refugee Convention. However, the State that goes to the Court must prove the existence of a bilateral dispute between it and the defendant, be it the UK or Rwanda, before the Court can apply its jurisdiction. A dispute usually exists when States have two opposing views on the issue of fulfillment and non-fulfillment of international obligations. Under recent jurisdiction, a State may communicate its opposition to the UK-Rwanda agreement and its violation of the Refugee Convention either on a bilateral basis or in multilateral fora, and even if the UK and Rwanda do not respond to such opposition, this may be sufficient to establish a dispute before the ICJ.

In addition, under Article 65 of the ICJ Statute, the Court could be approached through an advisory opinion, but Article 96 of the UN Charter provides that only UN organs and specialized agencies can request advisory opinions from the ICJ. There are three conditions that must be met before the Court will issue an opinion: first, the organ requesting the opinion must be authorized to do so under Article 96 of the UN Charter; second, the advisory opinion must be a legal matter; and third, if the organ is not the General Assembly or the  Security Council, the legal matter must relate to the organ’s area of competence or activities. Since the UNHCR is not a UN specialized agency, the General Assembly remains the only viable option for seeking an advisory opinion from the Court. However, experts argue that this may not be feasible, as it would involve convincing the General Assembly to adopt a resolution calling for an advisory opinion. Although it is clear that the agreement between the UK and Rwanda constitutes an illegal act under international law, the possibility of recourse to the ICJ is unfortunately difficult.