David Adeyemi-Abere LLB Student University of Hertfordshire[1]
On 5 December 2023, the UK and Rwanda signed an asylum partnership treaty.[2] Since then, much ink has been spilled discussing the practical difficulties of the Rwanda scheme. This post will make a theoretical contribution to the discussion: it will conjecture what John Locke’s stance would be on the scheme. It will do so on the sole basis of his essay Concerning the True Original Extent and End of Civil Government (i.e. his Second Treatise).[3] Whilst he wrote other, potentially relevant works (like his For a General Naturalisation essay)[4], his Second Treatise is his major political work. It is his attempt to theorise government. Accordingly, it is a valid basis on which to theorise his stance on the Government’s Rwanda scheme.
Sections one and two of this post will argue that Locke would oppose the scheme. First, he would oppose the Government’s exercise of power. He would say that the Government cannot employ extra-community force, or determine the facts, re Rwanda. Secondly, he would oppose the Government’s compulsion of asylum seekers. He would say that the Government cannot legally force them to become members of Rwandan society. The third and final section of this post will argue that Locke, unlike many today, would not use international law to oppose the scheme. Said law has four potential features: an origin in the unification of powers, a reliance on self-enforcement, an intention to benefit third parties and a lack of individuals’ consent. In light of these, Locke would protest against the UK’s international legal obligations.
I. Of Political Power
Locke says that political power can be exercised to ‘secure the community from inroads and invasion’ (131). The former Immigration Minister, Robert Jenrick, said that the Rwanda scheme will help ‘secure our borders’.[5] Hence, prima facie, it seems Locke would approve of the scheme. However, on closer inspection, it is clear that the scheme exceeds Locke’s limits on political power, on two counts.
First, Locke limits political power to the right of ‘employing the force of the community’ (3). However, the Rwanda scheme employs the Rwandan Government. Indeed, the full title of the UK-Rwanda treaty is: Agreement 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 to strengthen shared international commitments on the protection of refugees and migrants.[6] The Rwandan Government is not the force of the community; it is force outside of the community. Therefore, Locke would say that the treaty (and thus, the scheme more broadly) is ultra vires.
Secondly, Locke limits political power to the ‘right of making laws’ (3). However, the Rwanda scheme relies not only on the making of law, but also on the determination of fact (or, more accurately, the enactment of fiction)[7]. The Safety of Rwanda (Asylum and Immigration) Bill seeks to incorporate the treaty into domestic law.[8] Clause 1(2)(b) of the Bill says: this Act gives effect to the judgement of Parliament that the Republic of Rwanda is a safe country.[9] Likewise, clause 2(1), which is probably the key provision in the Bill,[10] says: Every decision-maker must conclusively treat the Republic of Rwanda as a safe country.[11] Evidently, these provisions do not seek to make law; rather, they seek to settle fact. The former falls within the parameters that Locke sets for political power, but the latter falls outside. Consequently, as with the treaty, Locke would say that the Bill (and thus, the scheme more broadly) is ultra vires.
With respect to the second count, one might object that the Rwanda scheme gives rise to specific facts which are for the determination of the Government. Whilst individuals are entitled to determine domestic facts, one might object that the Government is entitled to determine foreign facts. One might support this view by pointing to Locke’s ‘federative’ power (i.e. the power concerned with society’s international relations) (146), which is ‘hardly to be separated’ from his ‘executive’ power (e.g. the Government) (148). Granted, the federative power is tasked with the management of foreign affairs, but this does not include the determination of foreign facts. To the contrary, Locke gives an explicit example wherein individuals determine the foreign facts. He reasons that monarchical governments existed, because individuals thought such governments would help them ‘secure themselves against foreign force’ (107). In other words, individuals (not governments) determined the foreign facts (in this example, the existence of foreign force). Following their factual determination, they formed governments, not to determine facts for them, but to protect them from foreign forces and to ‘be their ruler[s]’ (107). It should be presumed that factual determination remains the role of individuals. The burden of proof to disprove this presumption lies with its opponent. Therefore, Locke would oppose the Rwanda scheme, because the Government cannot frustrate the rights of the community (by employing foreign force), or frustrate the rights of individuals (by determining facts).
II. Of Political Societies
Although Locke does not use the term, his Second Treatise does allow for asylum seekers, at least in principle. Locke says that the ‘chief end’ to which societies are formed is the ‘preservation of property’ (85). Locke defines property broadly as ‘lives, liberties and estates’ (123). Hence, he would assent to the actions of asylum seekers (and even economic migrants), since they immigrate to the UK in order to preserve their property: their lives, liberties and estates. There is, however, an exception to Locke’s assent. In the final paragraph of his Second Treatise, Locke says that when someone becomes a member of a society, ‘they have given up their political power to the legislative, and cannot resume it’ (243). In other words, becoming a member of a society is an irreversible decision. But many asylum seekers were once members of another society. Does Locke thus deny them? No; at least, not all of them. In fact, he accounts for many of them. Individuals remain members of a society ‘unless by any calamity the government [they were] under comes to be dissolved’ (121). The ‘usual’ reason governments are dissolved is ‘the inroad of foreign force’, on account of which society ‘must necessarily cease’ (211). Many asylum seekers know this all too well. Indeed, ‘the world is too well instructed in, and too forward to allow of this way of dissolving of governments, to need any more to be said of it’ (211). When a society ceases, its individuals ‘return to the state [they were] in before’, that is the ‘state of Nature’, wherein they are free to incorporate ‘into one politic society’ (211). So Locke does not deny all asylum seekers. On the contrary, he describes the plight of many in detail, and he makes substantial provision for it.
In Locke’s view, ‘foreigners’ (122) are subject to society’s laws, for two reasons: ‘conscience’ (122) and ‘enjoyment’ (119). Locke says that foreigners are ‘bound, even in conscience, to submit to [society’s] administration’ (122). Conscience only binds when ‘foreigners… [are] enjoying the privileges and protection’ of the government (122). However, the Supreme Court found that the Rwanda scheme created a ‘real risk of refoulement’.[12] For this reason, asylum seekers do not enjoy all the privileges and protection of the Government. They only enjoy some of them. So they might not be bound, on this ground, to submit to the law. Even so, they are subject to society’s laws because of Locke’s other reason: individuals are ‘obliged to obedience to the laws of [a] government’, because of their ‘enjoyment of any part of the dominions’ (119). Such enjoyment need not be extensive. For Locke, ‘barely travelling freely on the highway’ is sufficient (119). Ergo, docking a dinghy in Dover is also sufficient.
Arguably due to one of Locke’s reasons, and certainly due to his other one, asylum seekers are subject to British laws. Nonetheless, said laws cannot force asylum seekers to become members of Rwandan society. The Safety of Rwanda (Asylum and Immigration) Bill cannot force asylum seekers to become members of Rwandan society. Membership of a society can only come about through ‘positive engagement and express promise and compact’ (122). Asylum seekers cannot unilaterally make themselves members of a society. Nor can they be unilaterally made members of a society by a government: ‘nothing [is] able to put [them] into subjection to any earthly power’ (119). And yet, the Government seeks to do just that. Article 10(3) of the UK-Rwanda treaty reads:
No Relocated Individual (even if they do not make an application for asylum or humanitarian protection or whatever the outcome of their applications) shall be removed from Rwanda except to the United Kingdom in accordance with Article 11(1). The Parties shall cooperate to agree an effective system for ensuring that removal contrary to this obligation does not occur, which includes systems (with the consent of the Relocated Individual as appropriate) for returns to the United Kingdom and locating, and regularly monitoring the location of, the Relocated Individual.[13]
In essence, the treaty forces asylum seekers to become members of Rwandan society, either as refugees (Article 10(1)),[14] or as individuals akin to refugees (Article 10(2)),[15] or as permanent residents (Article 10(4)(a)).[16] The treaty does not require any positive engagement on asylum seekers’ part. Even the exception only arises because of the UK’s positive engagement (following which, the ‘the consent of the Relocated Individual’ may be sought ‘as appropriate’).[17] Admittedly, Rwanda is not required to take steps to prevent asylum seekers from leaving the country (Article 10(5)).[18] However, leaving would not terminate their membership anyway, since members of one society can ‘[live their] lives under another government’ (122). Therefore, Locke would contest asylum seekers’ membership of Rwandan society.
In sum, the Safety of Rwanda (Asylum and Immigration) Bill seeks to incorporate the UK-Rwanda treaty into national law. But the treaty contradicts Locke’s assertion that individuals are in a ‘state of Nature’ until ‘by their own consents, they make themselves members of some politic society’ (15). Consequently, Locke would oppose the Rwanda scheme, because the Government cannot compel asylum seekers to become members of Rwandan society, even if the law says it can.
III. Of International Political Societies
Public discourse on the Rwanda scheme has focused on its disregard for international law. Noticeably, in this post, it has not been argued that Locke would oppose the scheme on this ground. In fact, it will now be argued that he would challenge the legitimacy of the UK’s international legal obligations.
Locke’s theory has been characterised as a social contract. Individuals begin in a ‘state of Nature in reference to one another’ (14). Then, they enter into national societies, ‘by positive engagement and express promise and compact’ (122), ‘for the mutual preservation of their lives, liberties and estates’ (123). The same might be said for national societies themselves. They might be said to form international social contracts. They begin in a ‘state of Nature in respect of all other states’ (145). Then their governments enter into international political societies, ‘by positive engagement and express promise and compact’ (122) (i.e. signing treaties and conventions), ‘for the mutual preservation of their lives, liberties and estates’ (123). Social contract theory seems scalable, but Locke would not say so. He would oppose international law, for four reasons.
First, international law can originate from the unification of powers. The Government is the executive power. It ‘[sees] to the execution’ of law (144). Yet, it assented to international law like the Refugee Convention.[19] In doing so, it breached the separation of powers, since the ‘power of making laws’ is ‘the legislative power’ (143). Admittedly, treaty-making in the UK is a royal prerogative power, and Locke says that prerogative power is ‘left to the executive power’ (160). However, the royal prerogative of treaty-making is similar to Locke’s prerogative in name only. Locke’s prerogative is the power to act ‘without the prescription of the law’ (160). In contrast, the royal prerogative of treaty-making is the power to prescribe international law. It is a legislative power, so the Government should not possess it.
Secondly, international law can rely on self-enforcement. Locke’s social contract works, because there is consideration from both parties. Individuals give their power of ‘private judgment’ (88), and governments give a commitment to ‘act as the public good of the society shall require’ (89). But with international social contracts, national societies can retain their power of private judgment. When this power is retained, international social contracts are rendered invalid, since there is no consideration. Furthermore, there is a reliance on self-enforcement. By way of example, the UK would be obliged to abide by a final judgment of the European Court of Human Rights (Article 46(1) of the ECHR).[20] But the Court’s Committee of Ministers would merely ‘supervise’ the execution of the judgment (Article 46(2) of the ECHR).[21] The UK would be the one to execute the judgment on itself. Such enforcement surely leads to ineffective remedies, since national societies will be ‘partial to themselves’ (125). Granted, the Government (the power which is bound by incorporated international law) is distinct from the judiciary (the power which enforces incorporated international law), but this distinction would not appease Locke. This is because he argues for a single enforcement mechanism for all of society (i.e. the executive power). Accordingly, different parts of an international political society should not have different enforcement mechanisms (i.e. different judiciaries enforcing the law). Instead, different parts of international political society should be under ‘one supreme government’ (89).
Thirdly, international law can intentionally benefit third parties. The UK Government is party to the Refugee Convention, but it is individuals within the UK that are mutually preserved by the principle of non-refoulement; it is the rights of third parties that are preserved. For Locke, this is wrong. He conceives a simple bilateral contract between individuals and their government. He does not intend to afford rights to third-party individuals, because their governments, not they, consent to be governed by international law.
Fourthly and finally, because governments (and not individuals) consent to be governed by international law, said law can lack individuals’ consent. Suppose a majority of UK individuals wish to do away with the principle of non-refoulement. If it were only a principle of national law, a majority of UK individuals would be able to bring about this change, since they ‘have a right to act and conclude the rest’ (95). However, because it is a principle of international law, a UK majority might not be able to bring about this change. It would only be able to do so if an international majority (i.e. a majority of individuals from all national societies that were subject to the relevant international law) desired that change. Therefore, the UK majority is potentially bound by law which it seeks to renounce. Locke would lament this, because ‘the liberty of man in society is to be under no other legislative power but that established by consent in the commonwealth’ (21). Admittedly, the Government could terminate its international social contracts. It could withdraw from the treaties and conventions with which the majority disagree. However, this might not have the intended effect. If non-refoulement is a principle of customary international law, ‘it is consequently binding upon all states in international law, regardless of whether they are party to any treaties which give it effect’.[22]
In summary, international law can have four features. It can originate from what should be separate powers; it can rely on self-enforcement; it can intentionally benefit third parties; and it can lack individuals’ consent. For these four reasons, Locke would definitely dispute the UK’s international legal obligations.
Conclusion
Many of those against the Rwanda scheme have objected on international legal grounds. This post has argued that John Locke would have no such objection. Notwithstanding, it has been argued that he would oppose the scheme. In his view, the Government cannot employ the force of Rwanda, or dictate the facts in Rwanda, or compel membership of Rwanda. He has taught us the rights of the Government; but more importantly, he has taught us. His 300-year-old essay has offered a fresh perspective on a fraught policy. So now and in the future, let us learn from the past. Critique new treaties using old treatises.
[1] I am very grateful to Jason Krentos, Kate Ollerenshaw and Laura Lo Coco for their comments on an earlier draft of this post.
[2] Agreement 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 to strengthen shared international commitments on the protection of refugees and migrants (UK–Rwanda) (5 December 2023).
[3] John Locke, Two Treatises of Government (first published 1689)<https://www.yorku.ca/comninel/courses/3025pdf/Locke.pdf> accessed 25 December 2023. In this post, references to the text are pinpointed using brackets.
[4] John Locke, For a General Naturalisation (unpublished 1693).
[5] HC Deb 12 December 2023, vol 742, col 766.
[6] UK-Rwanda Treaty (n 2).
[7] Adam Tucker, ‘The Rwanda Policy, Legal Fiction(s), and Parliament’s Legislative Authority’ (U.K. Const. L. Blog, 22nd November 2023) < https://ukconstitutionallaw.org/2023/11/22/adam-tucker-the-rwanda-policy-legal-fictions-and-parliaments-legislative-authority/> accessed 25 December 2023.
[8] Safety of Rwanda (Asylum and Immigration) HC Bill (2023-24) [38].
[9] Rwanda Bill (n 8), cl 1(2)(b).
[10] Ronan Cormacain, ‘What’s wrong with the Safety of Rwanda Bill?’ (U.K. Const. L. Blog,11 December 2023) <https://ukconstitutionallaw.org/2023/12/11/ronan-cormacain-whats-wrong-with-the-safety-of-rwanda-bill/> accessed 25 December 2023.
[11] Rwanda Bill (n 8), cl 2(1).
[12] R (on the application of AAA (Syria)) v Secretary of State for the Home Department [2023] UKSC 42, [2023] 1 WLR 4433 [102].
[13] UK-Rwanda Treaty (n 2) art 10(3).
[14] UK-Rwanda Treaty (n 2) art 10(1).
[15] UK-Rwanda Treaty (n 2) art 10(2).
[16] UK-Rwanda Treaty (n 2) art 10(4)(a).
[17] UK-Rwanda Treaty (n 2) art 10(3).
[18] UK-Rwanda Treaty (n 2) art 10(5).
[19] Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137.
[20] Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) art 46(1).
[21] Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR), art 46(2).
[22] AAA (Syria) (n 12) [25].
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