‘Safe Third Country’: A Theory of a Dangerous Concept and the Democratic Ends of International Human Rights

Abstract

This article develops a critique of the ‘safe third country’ concept in international asylum law. Thus far, a rich scholarly literature has scrutinized the concept within a particular analytic frame: that of individual rights protection. Focusing on effects of STC rules in EU and N. American jurisdictions, the article proposes a change in perspective. The change reconceives the fundamental harm of ‘safe third country’ as a violation not, in the first instance, of individual rights but instead of the principle of democratic responsibility. The wrong is better conceptualized as a relational and distributive harm before it is felt as an individual one: relational in that it changes the character of the relationship between removing states and individual refugees; and distributive in that it unfairly maldistributes responsibilities among states for the protection of refugee rights. The article details this analytic shift’s consequences for vertical and horizontal dimensions of asylum law. In so doing, it emphasizes an essential, though strangely neglected purpose of international human rights law more generally: the democratic responsibility of states.