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

42 Pages Posted: 14 Sep 2021

See all articles by Paul Linden-Retek

Paul Linden-Retek

Yale Law School; University at Buffalo School of Law

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.

Keywords: asylum, refugee law, international human rights, democratic responsibility, safe third country, Dublin Regulation

Suggested Citation

Linden-Retek, Paul and Linden-Retek, Paul, ‘Safe Third Country’: A Theory of a Dangerous Concept and the Democratic Ends of International Human Rights. Available at SSRN: https://ssrn.com/abstract=3922374 or http://dx.doi.org/10.2139/ssrn.3922374

Paul Linden-Retek (Contact Author)

University at Buffalo School of Law ( email )

School of Law
528 O'Brian Hall
Buffalo, NY 14260-1100
United States

Yale Law School ( email )

127 Wall Street
New Haven, CT 06510
United States

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