The Legality of the 'Safe Third Country' Notion Contested: Insights from the Law of Treaties. By V. MORENO-LAX


The Legality of the 'Safe Third Country' Notion Contested: Insights from the Law of Treaties. By V. MORENO-LAX

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Cite as: Moreno-Lax, V. 2015, "The Legality of the “Safe Third Country” Notion Contested: Insights from the Law of Treaties", in G.S. Goodwin-Gill and P. Weckel (eds), Migration & Refugee Protection in the 21st Century: Legal AspectsLeiden ; Boston : Martinus Nijhoff Publishers.

Throughout the 1970s and 1980s, in parallel to changes in the volume and composition of asylum seeker flows, European Governments closed their borders to permanent settlers, discontinuing “guest workers” schemes and erecting barriers to family reunification. Humanitarian admission became virtually the only option for legal immigration in several States. Many were believed to misuse the asylum channel and the lines distinguishing refugees from other migrants started to blur. Simultaneously the rise in asylum applications was perceived as a generalized abuse of status determination procedures. Although no conclusive statistical or other evidence was provided in support of this association, the tendency to characterize asylum seekers as economic migrants in disguise took hold. Thereafter, fearing to attract a disproportionate amount of unfounded claimants, many developed countries have introduced unilateral measures restricting access to both their territories and asylum systems, disclaiming responsibility for the protection requests they received in certain circumstances. As a result, numerous refugees are put “in orbit”. Without being directly returned to persecution, but left without asylum, “they are shuttled from one country to another in a constant quest for protection”.

The “safe third country” notion is one such measure, coined supposedly with a view to bringing the orbiting phenomenon to an end. It initially emerged as the “country of first asylum” idea in the legal systems of the Scandinavian countries in the mid-1980s. The amendments of October 1986 to the Danish Aliens Act constitute the first formal example, but the principle spread rapidly during the 1990s to other European States, where it adopted different forms and nomenclature. Thereafter, the concept has been implemented in other parts of the world and has also been formalized in a range of bilateral and multilateral instruments...