Emilie McDonnell, Adjunct Researcher, University of Tasmania *
The trend of typically wealthy countries seeking to shift and shirk their international obligations towards refugees raises serious questions about their adherence to the principle of good faith in international law. Using the UK-Rwanda asylum scheme as a case study, this article examines whether good faith has been fully utilised in challenging externalisation measures. It argues that preserving the international protection system requires that externalisation measures, which serve to shift rather than share responsibility for refugees, be widely understood as a breach of good faith.
Good faith is a bedrock principle of international law. The trend of typically wealthy States seeking to externalise their international obligations towards refugees by shifting them onto third countries or shirking them all together raises serious questions about their commitment to performing their obligations in good faith. As externalisation continues to proliferate globally, it is pertinent to consider whether good faith has been fully utilised in challenging externalisation measures that undermine international protection and the rights of asylum seekers and refugees. This article begins by briefly explaining the principle of good faith in international law before considering what it means for States to implement their migration controls and asylum obligations in good faith. It takes the UK-Rwanda asylum scheme as a case study, examining whether the litigation before the UK courts adequately considered compatibility with the letter and spirit of the 1951 Refugee Convention and the repercussions of rendering such measures lawful in principle. This article argues that to preserve fundamental tenets of the international protection system, externalisation measures that shift rather than share responsibility for refugee protection ought to be widely recognised as a breach of good faith and per se unlawful.
I The Good Faith Principle in International Law
The good faith principle is of central importance to international treaty law and international relations. It has been described “as an absolutely necessary ingredient to the operation of the whole international legal order, namely, to the creation and performance of law”.[1] Good faith is embodied in the Latin maxim of pacta sunt servanda, meaning “agreements must be kept”, and is widely accepted as a general principle of law.[2] The Preamble to the Vienna Convention on the Law of Treaties (VCLT) specifies that “the principles of free consent and of good faith and the pacta sunt servanda rule are universally recognised”. In the Nuclear Tests Case, the ICJ held that:
“One of the basic principles governing the creation and performance of legal obligations, whatever their source, is the principle of good faith … Just as the very rule of pacta sunt servanda in the law of treaties is based on good faith, so also is the binding character of an international obligation assumed by unilateral declaration. Thus interested States may take cognizance of unilateral declarations and place confidence in them, and are entitled to require that the obligation thus created be respected.”[3]
Article 26 of the VCLT expresses that State Parties to a treaty must perform their obligations in good faith. Pursuant to Article 31(1) of the VCLT, treaties must also “be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. While the principle of good faith is not in itself a source of obligation where none would otherwise exist,[4] it plays an essential function in delimiting the lawful extent of State action and defining how States should fulfil their existing obligations.[5] It requires States to exercise their rights with a sense of responsibility and for bona fide reasons, not arbitrary or capricious ones.[6] Determining whether a State is acting in good faith is based on an objective assessment, looking at the consequences of State actions rather than its intentions.[7]
II Implementing Migration Control and Asylum Obligations in Good Faith
States owe numerous obligations towards asylum seekers and refugees under international law, such as the obligation of non-refoulement, due process guarantees, non-discrimination, the right to seek and enjoy asylum, the right to leave any country, and the duty to rescue people in distress at sea. It is beyond question that States must implement and interpret their obligations in good faith and, more specifically, that Contracting Parties must refrain from acting against the object and purpose of the Refugee Convention to assure refugees “the widest possible exercise of … fundamental rights and freedoms” and principle of international cooperation.[8]
Even so, what it means concretely for States to execute their migration controls and obligations towards asylum seekers and refugees in good faith is less clear. The UNHCR and scholars have interrogated the compatibility of externalisation measures with the principle of good faith and sought to delimit how far a State can lawfully go to avoid its obligations. As Goodwin-Gill has argued, a breach of good faith can be shown by acts or omissions that render the fulfilment of a treaty obligation remote or impossible or that defeat the object and purpose of the treaty.[9] Thus, a State’s performance of its obligations towards refugees falls to be assessed against the general legal standard established by the Refugee Convention and its specific undertakings in the context of the international protection regime as a whole.[10] Responding to the emergence of new externalisation proposals, the UNHCR has concluded that “measures designed, or effectively serving, to avoid responsibility or to shift, rather than share, burdens are contrary to the 1951 Refugee Convention and principles of international cooperation and solidarity”.[11]
Scholars have argued that barriers imposed on individuals seeking to leave their country or measures that attempt to deflect or obstruct access to asylum procedures may demonstrate a lack of good faith.[12] Excision of territory as a means to deny access to asylum procedures, pushbacks, offshore processing in third countries, and pullbacks have all been challenged on this basis.[13] The UNHCR intervened in the Roma Rights case concerning the UK’s pre-clearance scheme targeting Roma seeking to travel to the UK, challenging the lawfulness of measures taken to prevent the protection of the Refugee Convention from ever being triggered.[14] It submitted that a State lacks good faith “when it seeks to avoid or to ‘divert’ the obligation which it has accepted, or to do indirectly what it is not permitted to do directly”.[15] Although the House of Lords rejected the good faith argument in this case on narrow Convention grounds, the options available to States wishing to frustrate the flight of asylum seekers should nonetheless be limited by States’ obligations to fulfil their international commitments in good faith.[16] As the European Court of Human Rights held in Hirsi Jamaa v Italy, problems “managing migratory flows cannot justify having recourse to practices which are not compatible with the State’s obligations under the [European] Convention”, which must be interpreted in good faith and in accordance with the principle of effectiveness.[17]
Similarly, safe third country policies that seek to transfer asylum seekers elsewhere have raised serious questions about whether such arrangements uphold the object and purpose of the Refugee Convention to advance international cooperation, or deflect responsibility.[18] States may also display a lack of good faith in fulfilling their duties under the law of the sea, such as disembarking intercepted or ‘rescued’ asylum seekers to a pre-determined place, such as Libya, Nauru or Albania under the recent Italy-Albania offshore agreement, in disregard of their individual circumstances.[19]
III Case Study: The UK-Rwanda Scheme
In light of these powerful arguments that externalisation measures are inconsistent with the good faith principle and undermine global responsibility sharing, it is pertinent to consider whether the UK courts adequately considered the compatibility of the UK-Rwanda scheme with a good faith implementation of the UK’s obligations.
By way of brief background, in April 2022, the UK and Rwanda signed a Migration and Economic Development Partnership, entering into a Memorandum of Understanding for the provision of an asylum partnership arrangement.[20] Under this arrangement, asylum seekers in the UK would be transferred to Rwanda for determination of their protection claims by Rwanda under its national asylum system. Individuals granted protection would not be returned to the UK, and Rwanda would also be responsible for individuals whose claims are rejected.
The deal has spurred much attention, having been litigated all the way up to the UK Supreme Court and an urgent interim measure issued by the European Court of Human Rights against the UK in June 2022, grounding the first flight.[21] The primary question for the domestic courts was whether Rwanda is a safe third country to send asylum seekers to in accordance with accepted international standards. Both the Court of Appeal and Supreme Court declared the scheme unlawful because there were substantial grounds for believing that people removed to Rwanda would face a real risk of ill-treatment by reason of refoulement, disagreeing with the High Court.[22]
The Claimants and the UNHCR as intervenor moved beyond Rwanda’s safety and advanced arguments on good faith and compatibility with the object and purpose of the Refugee Convention. Before the High Court and Court of Appeal, the Claimants argued that there is an implied obligation under the Convention requiring the UK to determine an asylum claim made by a person on its territory and to not transfer them to another country, however safe.[23] This reading, the Claimants argued, would be consistent with the spirit and purpose of the Convention, as supported by Article 31(1) VCLT.[24] The Claimants further argued that deterring refugees from undertaking irregular journeys to the UK was entirely inconsistent with the spirit and purpose of the Convention.[25] Both courts disagreed. The High Court held that to infer the existence of such an obligation “would go well beyond the limits of any notion of judicial construction of an international agreement; and the protection that is necessary if the purpose of the Convention is to be met, is provided by article 33”.[26] If Rwanda can be considered a safe third country, then removal is not in breach of Article 31 (on non-penalisation) or Article 33.[27]
The Court of Appeal held that it is settled law that the Convention does not prohibit a receiving state from removing an asylum seeker to a State where they would not face persecution or refoulement and that there is no implied limitation when making a removal decision on considering the persons irregular arrival, even where there were no regular means to do so, or the aim of deterrence.[28]
The UNHCR submitted that the UK-Rwanda scheme is a burden-shifting measure incompatible with a good faith implementation of the UK’s obligations under the Refugee Convention, including because it serves “to shift, minimise or avoid responsibilities, notably to ‘less well-resourced and relatively inexperienced third countries’” and obstructs, rather than facilitates, access to protection through international cooperation.[29] It warned that such an arrangement risks eroding the international protection system and that its replication by many States would render international protection increasingly inaccessible.[30]
The Supreme Court limited its analysis primarily to the issue of non-refoulement. It did not consider any good faith arguments, such as the existence of an implied obligation under the Refugee Convention, the shifting of responsibility as incompatible with the letter and spirit of the Convention, or the fact that the primary aim and effect of the scheme was to avoid the UK’s asylum obligations.[31] In comparison, Briddick and Costello highlighted the salience of the Supreme Court of Canada taking into account, as required by Canadian domestic law, whether the purpose of Canada’s safe third country agreement with the US was to share responsibility fairly for considering refugee claims.[32] None of the UK courts appear to have considered or unpacked Lord Steyn’s conclusion in Roma Rights that controlling the movement of asylum seekers outside a State’s territory “is not incompatible with the acceptance of the obligations which arise when refugees have arrived in its territory”, despite the fact the asylum seekers earmarked for removal to Rwanda had already arrived in the UK to seek protection.[33]
IV Lawful in Principle, but Unlawful in Practice: Dangers and Next Steps
The UK courts’ decisions on the UK-Rwanda scheme could be read as supporting the view that externalisation arrangements that seek to shirk responsibility are lawful in principle but, on the facts, unlawful in practice. However, as Briddick and Costello argue, the Supreme Court’s ‘strategic silence’ on this neither precludes nor permits responsibility sharing or shifting arrangements.[34] Nonetheless, the former UK Government asserted that “[c]rucially, the Supreme Court – like the Court of Appeal and the High Court before it – has confirmed that the principle of sending illegal migrants to a safe third country for processing is lawful”.[35] On this basis, in a last ditch attempt to get flights off the ground, the former government sought to usurp the Supreme Court’s judgment by signing a treaty with Rwanda and passing legislation requiring decision-makers to conclusively treat Rwanda as safe.[36]
The former UK Government’s response to the Supreme Court judgment and externalisation measures that shirk responsibility being considered lawful in principle pose serious threats not only to the rights of refugees and migrants but to international protection norms, as the UNHCR argued in its interventions. Cantor has aptly argued that if all States interpreted the Refugee Convention so that they could decline to determine asylum claims made on their territory and instead seek to remove them to so-called safe countries most refugees would end up in a state of transfer or limbo, risking the integrity of the global refugee system and institution of territorial asylum.[37]
The newly elected UK Government has already said that it is scrapping the Rwanda scheme. Nonetheless, externalisation being understood as lawful per se sets a dangerous global precedent and may trigger a race to the bottom. We have already seen countries looking to the UK-Rwanda offshoring ‘model’ and proposing their own forms of outsourced asylum processing in third countries, such as 15 EU Member States, Germany and Italy under its agreement with Albania,[38] alongside problematic deals with countries such as Egypt and Tunisia to prevent irregular departures to Europe.[39] Foreign officials previously questioned why they should heed the UK’s calls for them to uphold their obligations towards refugees, given the UK’s disregard for refugee rights.[40]
While we must continue to document and interrogate whether the next country designated as a so-called safe third country meets the requisite international standards (given such arrangements are often ridden with violations), we equally and perhaps even more so now need to be forceful in our position that many forms of externalisation breach the State’s duty to implement its treaty obligations in good faith and are thus inherently unlawful. It is beyond question that offshoring processing/detention in less developed countries, pushbacks, pullbacks and the like do not ensure or enhance protection. Developing and mid-income countries host the vast majority of the world’s refugees, while the wealthiest host just 24%.[41] Even if Rwanda were safe, there is something fundamentally problematic in overlooking how wealthy countries with greater capacity to provide effective protection are using safe third country policies and other externalisation measures to flagrantly disregard their international obligations and commitments to responsibility sharing, including towards asylum seekers already in their territory/jurisdiction, and act in their own in self-interest. These are essential considerations pertaining to good faith that should be duly regarded by courts and decision-makers, as well as advocates and practitioners, when scrutinising refugee and migration laws and policies.
A reasonable and proportionate approach to managing migration that is consistent with a good faith reading of States’ obligations would see wealthy, developed countries like the UK admitting asylum seekers and processing protection claims on their territory, greatly expanding safe routes to reduce the need for irregular migration, and cooperating with States to truly enhance protection and ensure they do their fair share.[42] We ought to mainstream these and other good faith arguments much more into our work challenging externalisation before different courts and adjudicative bodies, including in partner states and regional litigation, at the UN, and in our advocacy with governments and key bodies. The African Union’s strong condemnation of Denmark’s externalisation plans and call for States to remain true and faithful to their commitments and obligations under the Refugee Convention is a noteworthy example.[43]
One can only hope that mainstreaming good faith will help curb the proliferation of harmful externalisation measures and uphold the protections owed to people on the move.
Footnotes
* Adjunct Researcher, University of Tasmania, emilie.mcdonnell@utas.edu.au. This paper was presented at the Refugee Law Initiative’s 8th Annual Conference on ‘Pacts, Promises and Refugee Protection’ in London, June 2024. The author is grateful to everyone who provided feedback.
[1] Michel Virally, ‘Review Essay: Good Faith in Public International Law’ (1983) 77 AJIL 130, 133.
[2] See Certain Norwegian Loans (France v Norway) [1957] ICJ Reports 9, 53 (Lauterpacht J); Malcolm Shaw, International Law (6th edn, CUP 2008) 103-04; James Crawford, Brownlie’s Principles of Public International Law (9th edn, OUP 2019) 363.
[3] Nuclear Tests Case (Australia v France) [1974] ICJ Rep 253 [46].
[4] Border and Transborder Armed Actions (Nicaragua v Honduras) [1988] ICJ Rep 69 [94].
[5] See e.g., Hirsi Jamaa v Italy (2012) 55 EHRR 21 (Pinto de Albuquerque J); Virally (n 1) 132-34; Shaw (n 2) 104; Guy S Goodwin-Gill and Jane McAdam, The Refugee in International Law (3rd edn, OUP 2007) 389.
[6] Gerald Fitzmaurice, ‘The Law and Procedure of the International Court of Justice, 1951–54: General Principles and Sources of Law’, (1950) 27 BYIL 1, 12-13.
[7] Goodwin-Gill and McAdam (n 5) 387.
[8] Preamble, Refugee Convention; Guy S Goodwin-Gill, ‘State Responsibility and the “Good Faith” Obligation in International Law’ in Fitzmaurice and Sarooshi (eds), Issues of State Responsibility before International Judicial Institutions: The Clifford Chance Lectures (Hart Publishing 2004) 93. See also R v Asfaw [2008] UKHL 31 [8].
[9] Goodwin-Gill (n 8) 84.
[10] Ibid 84-85.
[11] UNHCR Note on the “Externalization” of International Protection (28 May 2021) [4].
[12] Goodwin-Gill and McAdam (n 5) 370, 387-390. See Violeta Moreno-Lax, Accessing Asylum in Europe: Extraterritorial Border Controls and Refugee Rights under EU Law (OUP 2017) 354, 393-94.
[13] See UNHCR, Migration Amendment (Designated Unauthorised Arrivals) Bill, Submission of the Office of the United Nations High Commissioner for Refugees to the Senate Legal and Constitutional Legislation Committee, 22 May 2006 [7]; Goodwin-Gill and McAdam (n 5) 256; UNHCR Position: Interception and turn back of boats carrying asylum-seekers, 23 July 2015; Daniel Ghezelbash et al, ‘Securitization of Search and Rescue at Sea: The Response to Boat Migration in the Mediterranean and Offshore Australia’ (2018) 67 ICLQ 315, 346.
[14] R v Immigration Officer at Prague Airport, ex p European Roma Rights Centre [2004] UKHL 55. See UNHCR intervention before the Court of Appeal of England and Wales in the case of the European Roma Rights Center and Others v (1) The Immigration Officer at Prague Airport, (2) The Secretary of State for the Home Department, 30 January 2003; UNHCR intervention before the House of Lords in the case of European Roma Rights Centre and Others v Immigration Officer at Prague Airport, Secretary of State for the Home Department, 28 September 2004.
[15] Ibid, House of Lords [81]. cf. James Hathaway, The Rights of Refugees under International Law (CUP 2005) 367.
[16] Goodwin-Gill and McAdam (n 5) 388-390.
[17] (n 5) [179].
[18] See Michelle Foster, ‘Responsibility Sharing or Shifting? “Safe” Third Countries and International Law’ (2008) 25 Refuge 64; Violeta Moreno-Lax, ‘The Legality of the “Safe Third Country” Notion Contested: Insights from the Law of Treaties’, in Goodwin-Gill and Weckel (eds), Migration & Refugee Protection in the 21st Century: Legal Aspects – The Hague Academy of International Law Centre for Research (Martinus Nijhoff 2015) 702-03.
[19] Violeta Moreno-Lax, The Interdiction of Asylum Seekers at Sea: Law and (Mal)practice in Europe and Australia (Policy Brief 4, Kaldor Centre for International Refugee Law 2017) 9. See Amnesty International, “The Italy-Albania Agreement on Migration: Pushing Boundaries, Threatening Rights” (19 January 2024) https://www.amnesty.org/en/documents/eur30/7587/2024/en/.
[20] Memorandum of Understanding between the government of the United Kingdom of Great Britain and Northern Ireland and the government of the Republic of Rwanda for the provision of an asylum partnership arrangement, 13 April 2022.
[21] N.S.K. v the United Kingdom App No 28774/22 (ECtHR, 14 June 2022).
[22] R (on the application of AAA and others) v The Secretary of State for the Home Department [2022] EWHC 3230 (Admin); R (on the application of AAA and others) v Secretary of State for the Home Department [2023] EWCA Civ 74; R (on the application of AAA and others) v Secretary of State for the Home Department [2023] UKSC 42.
[23] Ibid, High Court [39(7)]; Ibid, Court of Appeal [309]-[311].
[24] High Court [121]; Court of Appeal [311].
[25] Court of Appeal [315(2)].
[26] High Court [121].
[27] Ibid [125].
[28] Court of Appeal [316], [319].
[29] UNHCR Written Observations in the Divisional Court 19 August 2022 [59]-[60]; UNHCR Written Observations in the Court of Appeal 23 March 2023 [8]-[10]. See also UNHCR Analysis of the Legality and Appropriateness of the Transfer of Asylum Seekers under the UK-Rwanda arrangement, 8 June 2022, www.unhcr.org/uk/media/unhcr-analysis-legality-and-appropriateness-transfer-asylum-seekers-under-uk-rwanda.
[30] UNHCR Written Observations in the Divisional Court 19 August 2022 [59.6(iv)].
[31] See Catherine Briddick and Cathryn Costello, ‘Supreme Judgecraft: Non-Refoulement and the end of the UK-Rwanda ‘deal’?’ (VerfBlog, 20 November 2023) https://verfassungsblog.de/supreme-judgecraft/.
[32] Ibid. Canadian Council for Refugees v Canada (Citizenship and Immigration) 2023 SCC 17 [39], [128]-[139].
[33] R v Immigration Officer at Prague Airport, ex p European Roma Rights Centre [2004] UKHL 55 [64] (emphasis added).
[34] Briddick and Costello (n 31).
[35] UK Government, ‘PM statement on Supreme Court judgement’ (15 November 2023) https://www.gov.uk/government/news/pm-statement-on-supreme-court-judgement-15-november-2023.
[36] UK Government, ‘Treaty signed to strengthen UK-Rwanda migration partnership’ (5 December 2023) https://www.gov.uk/government/news/treaty-signed-to-strengthen-uk-rwanda-migration-partnership; Yasmine Ahmed and Emilie McDonnell, ‘UK’s Harmful Rwanda Bill to Become Law’ (Human Rights Watch, 23 April 2024) https://www.hrw.org/news/2024/04/23/uks-harmful-rwanda-bill-become-law.
[37] David Cantor, ‘Does the UK’s Illegal Migration Bill breach the Refugee Convention?’ (Refugee Law Initiative Blog, 16 March 2023) https://rli.blogs.sas.ac.uk/2023/03/16/does-the-uks-illegal-migration-bill-breach-the-refugee-convention/.
[38] Jessica Parker, ‘Germany agrees to consider UK-style plan on processing asylum abroad’ (BBC News, 7 November 2023) https://www.bbc.co.uk/news/world-europe-67343002; Joint Letter from the undersigned Ministers on new solutions to address irregular migration to Europe, 15 May 2024, https://uim.dk/media/12635/joint-letter-to-the-european-commission-on-new-solutions-to-address-irregular-migration-to-europe.pdf.
[39] See Romain Philips, ‘EU signs controversial migration agreements in Africa’ (InfoMigrants, 21 May 2024) https://www.infomigrants.net/en/post/57175/eu-signs-controversial-migration-agreements-in-africa.
[40] Ahmed and McDonnell (n 36).
[41] UNHCR, ‘Global Trends’ https://www.unhcr.org/uk/global-trends.
[42] See Refugee Law Initiative Declaration on Externalisation and Asylum (2022) 34 IJRL 114 [25].
[43] African Union, ‘Press Statement On Denmark’s Alien Act provision to Externalize Asylum procedures to third countries’ (Press Release, 2 August 2021) https://au.int/en/pressreleases/20210802/press-statement-denmarks-alien-act-provision-externalize-asylum-procedures.