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16 November 2023

The Rwanda ruling

The barrister and professor of law Philippe Sands on what the Supreme Court decision means for the government, and the politics of the European Convention of Human Rights.

By Gavin Jacobson

Philippe Sands is a barrister, and professor of laws and director of the Centre for International Courts and Tribunals at University College London. He is the author East West Street (2016), which investigates the development of international law, crimes against humanity and the crime of genocide at the Nuremberg trials after the Second World War. The New Statesman spoke to him about the Supreme Court’s ruling yesterday (15 November) that the government’s plan to deport migrants to Rwanda was unlawful.

Gavin Jacobson: What’s your reaction to the ruling?

Philippe Sands: Unanimous, clear, no hint of ambiguity, a decisive ruling that, on the facts of the case, confirms that to send people to Rwanda would violate the principle of “non-refoulement”, the obligation not to send someone to a place where they are likely to be subject to abusive behaviour.

What is interesting for me is that the judges base the conclusion on the principle of “non-refoulement” not on the European Convention on Human Rights, but on a range of international treaties as well as on customary international law. In other words, you cant blame the ECHR. A judgement that is crystal clear on the facts, leaving no wiggle room.

GJ: Do you think reaching a judgement that essentially bypassed the ECHR was by design on the part of the Supreme Court, to avoid Conservative backlash?

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PS: I don’t know whether that was by design or simply accident. Maybe the judges had in mind the possibility that if they were to ground the judgement exclusively on the European Convention, or largely on the European Convention, that would add fuel to those who are calling for withdrawal from the ECHR. By drafting it as they have, they’ve limited the weight of the charge that somehow the European Convention is all that stands between the government and the enactment of its policy towards refugees. How absurd and tragic is the animus towards the ECHR. Rishi Sunak seems at this point committed to remaining in the ECHR, but his former home secretary [Suella Braverman] plainly is not and there are a growing number of Conservative MPs calling for withdrawal.

Do such positions influence the judges? Well, it’s just part of the background noise that they will have been aware of, but this judgement avoids that issue. Then we get the Prime Minister’s reaction yesterday afternoon, first in parliament and then in a televised statement, in which he proposes a workaround, entering into a treaty with Rwanda and then fast-tracking domestic legislation to directly contradict and undermine the ruling of the highest court in the land. The Supreme Court of the United Kingdom has concluded on the facts, by a unanimous judgement, that Rwanda is not a safe place to send people. Parliament will now apparently be asked to determine that it is in fact a safe place to send people.

If I was a member of parliament, I would think very carefully about what such an approach does to the rule of law in this country. In theoretical terms, of course, we have this notion of parliamentary sovereignty, and if parliament wants to override a judgement of our Supreme Court on law, it is free to do so. But on such an issue this raises fundamental concerns. The judges of the Supreme Court have made findings of fact. They’ve looked at the evidence carefully and have determined that on those facts it would not be consistent with our international legal obligations to send people to this particular place at this particular time. To override such a ruling – to change the facts – would be extraordinary, it would grossly undermine the idea that the Conservatives are the party of rule of law and order. The PM also said that once that treaty and that domestic law is adopted, if an international court determines that you cannot even then send someone to Rwanda, he will ignore that ruling. What he has in mind is a future judgement by the European Court of Human Rights. What would ignoring such a judgement do to the UK’s international reputation? What would such an approach do to the UK’s ability to hold others to account?

Sunak has actually done quite a lot to repair the damage of the Boris Johnson years, where the rule of law was shredded. Does he want to return to such lawlessness? Is his Attorney-General, Victoria Prentis, someone I know to be deeply committed to the rule of law, going to support that?

The fundamental issue here is the relationship between the rule of law at the national level and at the international level. Those who wish to pursue the Rwanda plan will say that the rule of law is determined by English law not by international law. But I would disagree – that’s the significance of the 1945 moment, which the UK led, which maintained that the sovereignty of the state is not absolute and that nations are subject to constraints under international law. The approach that Sunak appears to wish to take is to drive a coach and horses through all that. It’s deeply worrying.

GJ: How legitimate is the Supreme Court compared to parliament? Do you have a sense of what the public’s attitude might be towards the former? Do you think the Supreme Court, and its judgements, carry any real political legitimacy with the nation at large?

PS: I can’t speak for the British public on what it believes about the rule of law. I live in a bubble with a strong attachment to the idea of a rule law. But as you go around the country, what you notice is that one of the things that does characterise large sections of the population across the four nations is this idea that principles of fairness are important, and fairness is closely connected to the idea that we follow the rules, and the rules in this case are set by parliament and applied by the judges.

There is a perception outside of the UK that it is a place that has a deep, historic commitment to the ideal of the rule of law, even if it’s not been perfectly complied with across time. This goes back centuries – Magna Carta is regularly wheeled out to show that since 1215 the idea that those with power should be subject constraints under law has been an established principle.

But as I said, all of this comes back to the question of whether the sovereignty and the power of a state is absolute. I don’t think it is – there are limits placed on states by international law, and if you’re going to start ignoring them it makes it more difficult to hold others who may want to break international rules to account. The danger is that the UK, which is losing political power on the international stage, is also losing its moral authority, too. Do you want to damage that in the name of a policy – sending a few people to Rwanda – which is plainly not going to have the dissuasive effect its architects believe it will have? It’s a rather desperate and sad moment.

GJ: There’s a lot of debate in the UK about what is and is not a “genuine” or “legitimate” refugee. Do you think the definition of refugee will change substantially from what we currently understand it to mean in future? 

PS: I think we have to be cognisant of the fact that the regime of laws and institutions created to deal with the issue of refugees dates back to 1951. States have generally come to the position that this regime remains fit for purpose, they don’t want to replace it.

The situation that we are dealing with today is as nothing compared to what is said to be coming in relation to the consequences of climate change. The issue of refuges is likely to be overwhelming. Against that background, what kind of regime do we want to move towards when vast swathes of territory across the world become uninhabitable? If people and politicians are reacting like they are to this case of Rwanda, what is the reaction going to be in the future when the issue of refugees and migration goes mega?

GJ: Other European countries want to do something similar to what the UK wanted to on Rwanda – does this put the future of international refugee and human rights legal frameworks at risk, as surely more and more countries will be under pressure to pull out of them as migrant numbers increase?

PS: International law is here to stay. If you look at the history of international law over two or three centuries you’ll see that it is a history of construction, then disaster strikes – a conflict or war – and then there is a rebuilding, which always seeks to improve on what came before, then the cycle happens again. I take a very long view – centuries – on the construction of an international legal order and we’re in a relatively early stage. There will be challenges, and rules will be revisited and torn down, and eventually they will be rebuilt. We live in one world, we live on one planet and have to live together. The only language we have in common is the language of international law. It’s always under challenge but it will constantly reinvent itself, and this is true of refugee situation.

GJ: When we look at Europe, it seems as if some sort of dangerous threshold is being crossed when it comes to policies and proposals relating to migration. Or to put it another way, Europe’s darkening horizon can’t be separated from the issue of migration. How worried are you?

PS: There’s a trajectory that’s been unfolding for the last seven or eight years during which we’ve seen the rise of nationalism and xenophobia, so that the anxieties of regular folk about what is going on in the world are on the rise. I don’t know if this means we’re returning to the 1930s (history doesn’t repeat it itself exactly), but there is a sense that as the generation that lived through that period leaves the table, an opening has arisen through which rather nasty forces seek to pass. You sense this now, especially, against the background of wars in Ukraine and now the Middle East. The consequences may be huge. It’s a very dangerous moment.

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