Is Non-Refoulement Customary International Law?
This week on the podcast we come to the Rwanda judgment, arguably one of the most important decisions that the Supreme Court will hand down this year.
At the heart of those proceedings is the principle of non-refoulement which requires that refugees are not returned to a country where their life or freedom would be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion.
There is no doubt that non-refoulement forms an integral part of the law. It is contained within the Refugee Convention and the European Convention on Human Rights (via Article 3). The principle is also directly integrated into UK law via various asylum statutes as well as the Human Rights Act 1998. This was relevant because all the evidence suggests that Rwanda does not respect the principle of non-refoulement and so the UK would be acting unlawfully if asylum seekers were sent there.
The Safety of Rwanda (Asylum and Immigration) Bill seeks to bypass those concerns by preventing the courts from considering things like the Refugee Convention and relevant sections of the Human Rights Act (amongst other potential impediments). As such, one of the key questions will become whether the principle of non-refoulement is part of customary international law.
Customary international law is unique in that it is not written down anywhere but instead consists of certain principles that are so important that states are bound by them even if they have not signed a treaty to that effect. The UK has signed up to the Refugee Convention but if non-refoulement is indeed part of customary international law then the country is unable to derogate from its duty in this regard. Those provisions of the Bill would not be worth the paper they are written on.
In the judgment from the Supreme Court, the Justices strongly hint that non-refoulement is part of customary international law but do not lay down a formal decision at this point. Instead, they point to a 2001 declaration by state parties (including the UK) that acknowledges:
“the continuing relevance and resilience of this international regime of rights and principles, including at its core the principle of non-refoulement, whose applicability is embedded in customary international law”.
If the Safety of Rwanda Bill passes through Parliament and becomes law (a big ‘if’ in itself) then the chances are that another claim will make its way back to the Supreme Court.
At that point the Justices cannot simply ignore the legislation, yet they also cannot ignore the interests of vulnerable asylum seekers either. A large part of the argument before the courts will be about the status of non-refoulement as part of customary international law but how does something become part of customary international law in the first place?
That is not an easy question to answer because the process is not definitive. Customary international law is, by nature, unwritten. However, we can say that two things are required in order for something to be considered customary international law:
Consistent state practice; and
Opinio juris (an understanding that the state practice amounts to a legal obligation).
The United Nations High Commissioner for Refugees considers that these requirements are satisfied and this is a view supported by case law from other jurisdictions, academic writings and the 2001 declaration signed by the UK mentioned above.
None of those things are binding and ultimately the Supreme Court will have to come to its own conclusion based on the complete evidence but that evidence will mostly point away from the decision that the government wants the court to reach.
For full details of the Rwanda decision check out this week’s episode of the podcast.
Episode link: http://uklawweekly.com/2023-uksc-42/
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