Immigration Article of the Day: Unsafe at Any Speed: "Safe Third Country Agreements"--Offshoring and Eroding Legal Protections Owed to Refugees and Asylum Seekers by Thomas M. McDonnell

Unsafe at Any Speed: "Safe Third Country Agreements"--Offshoring and Eroding Legal Protections Owed to Refugees and Asylum Seekers by Thomas M. McDonnell

Abstract

Immigration has become a politically toxic issue in many Western democracies. It played a critical role in the 2024 electoral victory of Donald J. Trump and is driving right-wing movements around the world. The rise of ultranationalist politics has pushed Western governments to adopt increasingly restrictive immigration statutes, regulations, and policies, including measures aimed at refugees and asylum seekers.

This Article challenges one of the most troubling of these restrictions: the forcible “transfer” of refugees and asylum seekers to so-called “safe” third countries. Neither the text nor the spirit of the 1951 Refugee Convention or the 1967 Refugee Protocol authorizes safe third-country agreements or other forms of compelled transfers. Had the framers intended to allow destination states—typically developed countries—to remove refugees to third states—typically developing ones—they could have said so explicitly. They did not.

During its first term, the Trump administration used such agreements to send asylum seekers to Guatemala. In its current term, it has gone even further, deporting immigrants, including refugees and asylum seekers, to a broader array of third countries without maintaining the pretense that they are “safe.” These include, among others, El Salvador, Eswatini (formerly Swaziland), South Sudan, Rwanda, Uganda, Panama, Costa Rica, Honduras, and Belize. Many of these countries have poor human rights records, fragile institutions, or active civil conflict. Transfers to El Salvador and its CECOT prison almost certainly constitute extraordinary rendition.

The Article also critiques the Office of the UN High Commissioner for Refugees. Although the UNHCR has generally vigorously defended refugee rights, it has too often acquiesced to developed states, particularly in Europe, enabling them to employ “safe” country transfer practices. This accommodation may have helped European governments and the United States—under the first and now second Trump administrations—to summarily deport refugees and asylum seekers to developing countries with primitive asylum systems and histories of serious human rights violations.

Safe third-country agreements are ostensibly justified as mechanisms for sharing the “burden” of refugee protection. In practice, however, responsibility is shifted not to wealthy states but to poorer ones. Seventy-one percent of refugees are hosted by developing or lower-middle-income countries, and twenty-one percent by the “Least Developed States.” The Appendix provides detailed statistics comparing major economies, countries that host the most refugees, and a sampling of states designated as “safe.”

These agreements raise grave legal and humanitarian concerns. Many “safe” states deport transferred refugees to their countries of origin. Others have weak or dysfunctional asylum systems that frequently produce unfair adjudications. Harsh conditions may pressure refugees to return home despite serious risks. And many such countries subject refugees and asylum seekers to violence, detention, and other human rights abuses. Collectively, these practices erode the principle of non-refoulement, the central safeguard in refugee law.

To protect the rights of refugees, nativist policies such as these forcible transfer agreements—now embraced by many Western governments and their ascendant ultranationalist movements—must be opposed.