The Counter-Judicialization of Migration and Asylum Controls: Safe Third Country in Comparative Context

This article bridges research on the dynamics of judicialization and changes to asylum and immigration controls across Western liberal democracies. Research on judicialization finds that the expanding role of the courts and judicial processes encroaches on the authority of other branches of government. It suggests that the rise of constitutionalism and the globalization of legal norms have empowered courts to increasingly intervene in public policy. We discuss the case of asylum policy in Western liberal democracies as an example of judicialization, where key aspects of immigration policy became judicialized in response to international law via domestic court rulings and the creation of administrative tribunals. However, this case also reveals more recent efforts by states to engage in counter-judicialization by developing international agreements that restore authority and discretion over asylum policy to the executive and legislative branches of government. We examine processes of counter-judicialization by analyzing the politics of the safe third country agreement between Canada and the US (2002; 2023), placing this case in comparative perspective with the EU-Turkey deal and the Greek Joint Ministerial Decision (2016, 2021) and the Australian “Pacific Solution” (2001-2008; 2012). While these agreements and decisions have faced court challenges, they have been largely sustained as legally legitimate frameworks, often by appealing to soft law standards articulated by the United Nations High Commissioner for Refugees Executive Committee. These cases demonstrate how states use international law in order to evade domestic constitutional challenges to the counter-judicial restoration of executive and legislative authority.