On 14 April 2022 the UK published a Memorandum of Understanding (MoU) with the Republic of Rwanda. The objective of this MoU is to relocate asylum seekers whose claims are not being considered by the UK to Rwanda. The Rwandan government will then process these claims and either settle or remove these asylum seekers in accordance with Rwandan and international law.
CONFLICT WITH THE REFUGEE CONVENTION
The British Prime Minister Boris Johnson stated that “anyone entering the UK illegally – as well as those who have arrived illegally since January 1 – may now be relocated to Rwanda”. It is clear that this agreement seeks to penalise asylum seekers for their irregular entry into the UK in violation of article 31 of the 1951 Convention and Protocol Relating to Status Refugees (refugee convention), to which the UK is a state party, and which provides that states should not penalise refugees “on account of their illegal entry or presence”. Additionally, it can be argued that this agreement violates the international law principle of non-refoulement contained under article 33 of the refugee convention 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 [or her] race, religion, nationality, membership of a particular social group or political opinion”.
VOID UNDER INTERNATIONAL LAW?
It is imperative to see if this agreement between the UK and Rwanda can be invalidated under international law and for this, three criteria need to be assessed. Firstly, that the agreement constitutes, or has the same effect of a bilateral treaty, and is binding under international law and therefore should be interpreted in light of the Vienna Convention on the Law of Treaties 1969 (VCLT). Secondly, that the agreement is a bona fide violation of the principle of non-refoulement. Thirdly, that the principle of non-refoulement has attained the status of jus cogens under international law. It is when these three hurdles have been satisfied that one can invoke article 53 VCLT which provides that any treaty concluded in violation of peremptory norms of international law (jus cogens) is void ab initio. The United Nations High Commissioner for Refugees (UNHCR) as well as other international law scholars posit that the principle of non-refoulement has attained jus cogens status under international law. This entails that no state is allowed to return refugees to a territory where their freedom or life would be in danger. Now that the third hurdle has been addressed, it is essential to turn to the second one which seeks to assess if the agreement is a genuine violation of the principle of non-refoulement.
Although the Rwandan government has stated that it would “prefer not to receive people from immediate [neighbours] like the DRC, Burundi, Uganda and Tanzania,” asylum seekers from other African countries as well as members of the LGBTQI+ community could be in danger if they were relocated to Rwanda. The UK Home Office published an equality assessment policy in which it admitted that Muslim and LGBTQI+ refugees who are deported to Rwanda could be persecuted on the basis of their sexual orientation and religious beliefs but plans to send them there anyway. Human Rights Watch states that 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 the previous arrest and killings of refugees by Rwandan security forces. Rwanda’s human rights track record has also been criticised by the UK itself. Given this track record, it can be said that the freedom or life of refugees would be in danger if they are sent to Rwanda, and therefore the agreement violates the principle of non-refoulement under international law.
It is necessary to now turn to the final hurdle which seeks to assess if the agreement between the UK and Rwanda constitutes or has the same effect as a bilateral treaty and is binding under international law. Article 2(1)(a) VCLT provides that a treaty means “an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation”. Essentially what makes an agreement a treaty that is binding under international law does not depend on the title of the agreement but whether the parties intend the instrument to be governed by international law.
Even though certain aspects of the asylum partnership agreement are governed by international law, for instance section 2.1 provides that claims of whether an asylum seeker relocated to Rwanda can be settled or removed will be based on Rwanda’s domestic law as well as “the Refugee Convention, current international standards, including in accordance with international human rights law”. This should not be taken as intention by the parties for the agreement to be governed by international law, as this only governs whether an asylum seeker is settled or removed from Rwanda and does not relate to the entirety of the agreement. Section 1.6 of the agreement however governs the entire agreement and provides that “[t]his Arrangement will not be binding in international law” and therefore it is evident 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 for the sake of the VCLT. Although the asylum partnership agreement is not governed by international law, it still constitutes a bilateral act that violates jus cogens and therefore illegal under international law.
It can be argued that the legal consequences of a treaty that violates jus cogens should be equally applicable to a bilateral agreement that might not be bound by international law. The recent text of the draft conclusions on peremptory norms of general international law by the International Law Commission indicate that both the UK and Rwanda have a legal obligation to “eliminate as far as possible the consequences of any act performed in reliance on any provision of the agreement which conflicts with a peremptory norm of general international law” and bring this agreement in conformity with jus cogens. Since jus cogens give rise to obligations owed to the whole international community (erga omnes) this entails that all states have a legal interest and therefore, any state is entitled to invoke the responsibility of the UK or Rwanda for the breach of jus cogens in relation to the asylum partnership agreement.
RECOURSE BEFORE THE INTERNATIONAL COURT OF JUSTICE
The International Court of Justice (ICJ) has the authority to interpret international treaties such as the refugee convention and, more specifically, article 38 of the refugee convention provides that states can approach the court whenever there is a dispute on the interpretation and application of the convention. Therefore, a state can apply to the court against the UK or Rwanda for a violation of the refugee convention. However, the state applying to the court needs to prove that there is a bilateral dispute between it and the respondent, be it the UK or Rwanda before the court can apply its jurisdiction. A dispute usually exists when states hold two opposing views concerning the question of performance and non-performance of international obligations. In the recent case of Marshall Island v. UK, the ICJ narrowly interpreted the existence of a dispute, arguing that the respondent must be aware that a dispute exists. In addition to this, as seen in the case of The Gambia v. Myanmar, a state can communicate its opposition to the agreement between the UK or Rwanda and its violation of the refugee convention either on a bilateral basis or in a multilateral fora, and even if the UK and Rwanda does not respond to such opposition, this could be enough to establish a dispute before the ICJ.
Furthermore, under article 65(1) of the ICJ statute, recourse could be sought before the court through an advisory opinion, however, procedural hurdles could impede this. Article 96 of the UN Charter provides that only UN organs and UN specialised agencies are allowed to request advisory opinions from the ICJ. There are three conditions that need to be met before the court renders such an opinion: first, the body requesting the opinion should be authorised to do so under article 96(1) of the UN Charter; secondly, the advisory opinion should be a legal question; and thirdly, if the body is not the UN General Assembly or the UN Security Council then the legal question should be in regard to the body’s area of competence or activities. Since the UNHCR is not a UN specialised agency, this leaves the UN General Assembly as a viable option to ask an advisory opinion to the court in relation to the asylum partnership agreement between the UK and Rwanda. However, scholars argue that this might not be feasible as this would entail persuading the UN General Assembly to adopt a resolution requesting an advisory opinion. Although it is clear that the agreement between the UK and Rwanda constitutes an illegal act under international law, the chance of recourse before the ICJ is unlikely.
Nigel has an LLB in International Law from Near East University (Cyprus). He is currently a member of an NGO called VOIS Cyprus which advocates for the rights of international students in Cyprus.