Perspective“Safe Third Country” Agreements with Mexico and Guatemala Would Be Unlawful

Published 16 July 2019

News reports that the United States seeks to sign “Safe Third Country” agreements with Mexico and Guatemala – possibly as soon as today – mark the latest phase in the Trump Administration’s efforts to keep Central American asylum seekers from reaching the country. Such agreements would bar asylum applications in the United States from thousands fleeing El Salvador and Honduras, as well as claimants from other world regions who transit Central America and Mexico to reach our border. And they would be contrary to both U.S. and international law on the protection of asylum seekers.

News reports that the United States seeks to sign “Safe Third Country” agreements with Mexico and Guatemala – possibly as soon as today – mark the latest phase in the Trump Administration’s efforts to keep Central American asylum seekers from reaching the country. Such agreements would bar asylum applications in the United States from thousands fleeing El Salvador and Honduras, as well as claimants from other world regions who transit Central America and Mexico to reach our border. And they would be contrary to both U.S. and international law on the protection of asylum seekers. Susan Gzesh writes in Just Security that “Safe Third Country” agreements are part of the arsenal nation-states use to prevent the arrival of asylum seekers into their territories, where national legal obligations and rights would adhere. That arsenal also includes high seas interdiction, offshore detention facilities, fortification of borders forcing migrants into dangerous terrain, payment of neighboring states to detain refugee flows, and the Trump Administration’s “Remain in Mexico” policy.

Whether international human rights law can effectively stop these measures to block asylum seekers is constantly tested. In 2012, the European Court of Human Rights penalized Italy (in Hirsi Jamaa and Others v. Italy [GC]) for intercepting asylum seekers in international waters in the Mediterranean and returning them to Libya where they faced torture, among other abuses. As the New York Times reported, Italy paid the damages mandated by the Court, and then switched its tactics from using its own navy to intercept the migrants to financing reinforcement of the Libyan Coast Guard to accomplish the same ends.