Safe Third Country

This Article examines the recent proliferation of walls and fences in Europe, fueled by the Dublin Regulation’s failure to distribute responsibility for asylum seekers equitably among European states. Legal scholarship does not lack literature bemoaning the failures of the E.U.’s Dublin Regulation — which dictates, generally, that the country where an asylum seeker first enters the E.U. is responsible for processing his or her claim for protection. Yet scholarship on border walls and fences, and what induces European states to construct them, is not prominent in the literature. The critiques lodged against the Dublin Regulation have primarily focused on its futility and unworkability. This Article argues that Dublin has failed asylum seekers in a more insidious way — by catalyzing the construction of Fortress Europe. The actions of European states during the contemporary refugee “crisis” illustrate this phenomenon particularly well.

Section II of this Article examines the contours of the international principle of responsibility-sharing; a principle that is supported throughout the history of refugee law as an ideal modality for managing refugee flows. Section III provides an overview of the Dublin Regulation and how it distorts the international responsibility-sharing principle and violates E.U. law requiring “solidarity and fair sharing of responsibility” among member states. Section IV traces the proliferation of border walls and fences in Europe around the height of the recent refugee crisis, arguing that the Dublin Regulation’s failure fueled European states to erect physical border barriers. It also explores the formidable combination of physical and legal barriers and how these mechanisms violate member states’ non-refoulement obligation. Section V analyzes proposals for improving Dublin, including efforts to better protect refugee rights and achieve a more equitable sharing of responsibility for protection seekers. This Article concludes by questioning how the E.U. can move forward and uphold the right of all persons fleeing persecution to seek and enjoy asylum in Europe.

Keywords: border wall, border fence, 1951 convention, 1951 refugee convention, asylum seeker, european union, eu law, nonrefoulement, border walls, dublin regulation, international responsibility-sharing, refugee law

This paper examines the dynamics and implications of the increasing influence yielded by private security companies on the formulation and practices of EU immigration and asylum policy. The implications of the corporate turn in European immigration politics is exemplified by the detention camps, transport- and deportation-operations of G4S in the UK and Finmecanicca´s intimate collusion with the Libyan authorities under first Gaddafi, and later, the New Libyan authorities. It is argued that the current European trend towards advanced and high tech control of migrant mobility via UAV-drones, satellites surveillance and military robots is not only due to nationalist policies in member states, but also caused by lobbyism by the European military-industrial complex in structures such as the the European Security Research Programme, the ”Group of Personalities” and the Frontex R&D Unit. The paper conceptualizes the commodification of immigration control as a neoliberal reconfiguration of EU border politics meaning that control elements are decentralized and diffused among new actors. Central EU structures emerge as the transnational regulators of this transformation through the subsidising of the security industry. Linking the evolution of the industry for border control with underlying financial actors and dynamics in the political economy of borderscapes, such as debt financing, the European Investment Bank and export credit agencies, the paper argues that this development has vast humanitarian and democratic implications for both immigrants and the population of Europe.

Over the past few years, states have been entering into international agreements that increasingly displace their non-refoulement obligations. Non-refoulement is a legal norm that protects vulnerable people from being expelled and returned to a state where they might face serious mistreatement. This rule has been a cornerstone of the law on international migration and forced movement for a considerable period, even being viewed as a human right by some. However, recently states have begun entering into international agreements and treaties that overcome the non-refoulement obligation through a number of arrangements. This study will proceed by looking at three forms of contracting out of non-refoulement: agreements that establish facts, agreements that establish jurisdiction or agreements creating competing norms. This article seeks to draw attention to these effects, criticize them and emphasize that we should not lose sight of the need to protect vulnerable people from expulsion to situations of serious mistreatment.

This article assesses the claim that the EU secures basic rights for citizens and migrants because externalization facilitates solidarity between EU states, third countries and migrants (the EFS-argument). However, it is argued that practices like European Commission (EC)-donations to UNHCR, the outsourcing to Private Security Companies (PSCs) like Finmeccanica or the subsidising of EUROSUR-projects do not facilitate solidarity. Rather they place the largest responsibility for refugees on the world’s poorest states, and consolidate the criminalization of irregular migration. Furthermore, Dublin-concepts like “safe third countries” (STCs) and “first country of arrival” are criticized for being instrumentalised by Northern European states’ to deflect responsibility for migrants. The EU border control has thus developed into a transnational regime that systematically creates border-induced displacement of migrants. Consequently, a critical evaluation of the EFS-argument reveals a grave inconsistency between the EU’s stated value and the consequences of externalization.

Safe Country Policies have been a central tool used by states to restrict access to asylum. Despite the salience of such policies for both host states and people seeking protection, we lack a coherent conceptualization of the different types of Safe Country Policies and systematic information on their adoption in all world regions. Aiming to fill these conceptual and empirical gaps, I introduce the Safe Country Policies Dataset (SACOP), which provides original information on the adoption and characteristics of Safe Country Policies in 195 states from 1951 until 2021. Drawing from this dataset, we learn that Safe Country Policies are not only widespread in the Global North but are increasingly being adopted by states in the Global South. The global spread of these policies does not only challenge the principle of responsibility-sharing in asylum governance, but it may also create new patterns of injustice between states in regions that host the bulk of displaced people.

The safe third country concept emerged at the end of 1980s as an antidote for the protection challenges associated with the travel routes of refugees. However, practices involving safe third country transfers have ended up rendering refugees' access to asylum even more difficult. The purpose of this article is to demonstrate, based on the example of Turkey, the challenges in refugee protection that the safe third country transfers create. The article begins with an overview of Turkey's situation with respect to trans-border migratory dynamics and Turkey's areas of engagement with international law on migration and asylum. Then, the evolution of the safe third country concept is analyzed with special reference to contributions made by Turkey. Finally, the current state of affairs and future prospects are discussed in view of Turkey's position as a safe third country with respect to EU countries, particularly with the execution of the EU-Turkey Statement of March 2016 and the EU-Turkey Readmission Agreement. In conclusion, with the execution of these two instruments, Turkey seems to have compromised its position regarding the conditions of the safe third country concept. Considering the current state of affairs, wherein the EU seems determined to make full use of the safe third country concept with respect to Turkey, Turkey's interpretation and attitude will continue to be crucial for the evolution of the safe third country concept, on account of the scale of transit asylum and migration flows through Turkey.

En este trabajo se abordará el papel que México ha tenido desde 2019 como “tercer país seguro” de facto, en virtud de los mecanismos que Estados Unidos ha implementado para desviar a territorio nacional (aunque también a otros países) a los solicitantes de asilo procedentes de Centroamérica —quienes desde fines de 2018 se han visibilizado de una mayor forma al migrar en caravanas—, y cómo el asilo como derecho humano se encuentra en disputa ante este panorama. Para fines de lo anterior, en primer lugar, se delineará la política del derecho de asilo, abordándose tanto la parte normativa de este derecho como su manejo político desde los inicios del régimen internacional de refugiados. En segundo lugar, se defini- rán qué son los “acuerdos de tercer país seguro”, discutiéndose su origen político y legalidad. En tercer lugar, se analizarán dos casos paradigmáticos y contemporáneos de acuerdos de tercer país seguro en Europa: el Sistema Dublín y el Acuerdo Unión Europea-Turquía, así como las desastrosas lecciones y los costos en materia de derechos humanos que han conllevado. Finalmente, en cuarto lugar, se abordará el papel de México como tercer país seguro de facto.

The 1951 Refugees Convention constitutes the core instrument of international refugee law.  In the years since its adoption, signatory states have come to exploit an apparent loophole: nothing in the text prevents a state from transferring asylum seekers to other states that it deems to be safe.  The text does not indicate how a state is to determine whether another state is safe.  Academic literature and guidance from the United Nations Human Rights Committee have sought to fill this void, enumerating factors that states should consider before transferring an asylum seeker elsewhere.  But guidance and academic commentary do not on their own constitute international law.  States are not bound by academic commentaries or guidance of United Nations bodies.  While states comply with some portion of the non-binding guidance, they do not comply with it in its entirety.  This study describes the current state of international refugee law as it operates in state practice, not the idealized form of international law described in legal journals.  In particular, decisions of domestic courts interpreting the 1951 Refugees Convention provide strong evidence of what states view as legally obligatory in this context.  For that reason, this study surveys how various domestic courts interpret and apply the 1951 Refugees Convention to constrain their respective states in the arena of transferring asylum seekers to other states.  The result is a standard that is authoritative and that has been incorporated into the state practice of the leading rule of law nations.  Where states fail to live up to their international obligations to asylum seekers and refugees, it is this standard that they should be held to rather than the admirable but perhaps overly ambitious standard embodied in the non-binding guidance.

The safe third country concept emerged at the end of 1980s as an antidote for the protection challenges associated with the travel routes of refugees. However, practices involving safe third country transfers have ended up rendering refugees’ access to asylum even more difficult. The purpose of this article is to demonstrate, based on the example of Turkey, the challenges in refugee protection that the safe third country transfers create. The article begins with an overview of Turkey’s situation with respect to trans-border migratory dynamics and Turkey’s areas of engagement with international law on migration and asylum. Then, the evolution of the safe third country concept is analyzed with special reference to contributions made by Turkey. Finally, the current state of affairs and future prospects are discussed in view of Turkey’s position as a safe third country with respect to EU countries, particularly with the execution of the EU-Turkey Statement of March 2016 and the EU-Turke...