State Practice with Respect to the Safe Third Country Concept: Criteria for Determining that a State Offers Effective Protection for Asylum Seekers and Refugees
36 Pages Posted: 30 Nov 2017 Last revised: 10 Dec 2017
Date Written: November 20, 2017
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.
Keywords: International Law, Opinio Juris, State Practice, Refugee Law, Asylum, Refugees Convention, Safe Third State, Safe Third Country, Immigration
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