Shaurya Shukla, a second-year law student at Chanakya National Law University in Patna, India, discusses Canada's recent ruling to declare the USA no longer a "Safe Third Country" for refugee purposes...
Recently a Canadian court threw out the Safe Third Country Agreement (STCA) with the USA because the detention centers in the USA violate the human rights of refugees. This pact compels the refugees seeking asylum in Canada through the US-Canadian border to first seek asylum in the USA. This pact was challenged last year by Amnesty International, the Canadian Council for Refugees and the Canadian Council of Churches. A lawyer for the refugees stated that the USA does not qualify as a “Safe Third Country” under the administration of Donald Trump as refugees have been subjected to family separation and illegal pushbacks in his government. The judge, Ann Marie McDonald, pronounced that the STCA violates the Canadian Constitution guarantees of life, liberty, and security.
In this ruling, Ann Marie cited the ordeal of a female immigrant of Ethiopia named Nedira Mustefa, when she was isolated in a US detention center for one week after being sent back by the Canadian authorities. Ann Marie suspended the decision of the court for six months to give parliament a chance to respond. This ruling can be appealed to the Federal Court of Appeal and the Supreme Court.
The STCA is a smart border action plan. This agreement was signed between the USA and Canada on December 5, 2002, and it came into effect on December 29, 2004. It was signed to maintain the refugee system in both the countries because this agreement forces the refugees to seek asylum in the first country they arrive unless they qualify for an exception to this agreement. This agreement has four kinds of exceptions.
First is the “Family Member Exception,” which applies if the family member of a refugee is a Canadian citizen or a permanent resident of Canada or has a work or study permit in Canada. Second is the “Unaccompanied minor exception,” refugees under the age of 18 years who are not accompanied by their mother, father, or legal guardian and also don’t have any parent or legal guardian in Canada and the USA are covered. The third is the “Document holder exception,” if a person holds a valid Canadian Visa, valid work or study permit then that person can take its advantage and stay in Canada. The fourth exception is “Public Interest Exception,” any person who is convicted of an offense which could subject that person to the death penalty in the US or in a third country can be given this privilege.
Section 102 of the Immigration and Refugee Protection Act (IRPA) permits the designation of safe third countries for the purpose of sharing the responsibility for refugee claims. To be considered as a safe country under section 102 (2) of IRPA, a country must be a party to the Refugee Convention and Convention against Torture. Additionally, its policies must follow the rules and regulations mentioned in these conventions. The country must hold a good track record in the precinct of Human Rights, and it should be a party to the agreement with the government of Canada for sharing responsibilities with respect to claims of refugee protection.
In the past, the USA has denied asylum to the refugees. The Inter-American Commission on Human Rights (IACHR) has also reported that the US had violated the right of refugees to seek asylum as well as their right to life, liberty, and security of the person. The immigration policies rolled out by the Trump administration in 2017 and 2018 have brutally transgressed the American as well as the International law and these policies are moving forward on their way to destroy the asylum system of the USA. These policies have created a lot of chaos in the life of refugees as it included illegal pushbacks at the borders.
These policies lead to a lot of illegal family separations. In one of many miserable instances, a mother was told that she doesn’t possess any rights in America, not even the right to stay with his son. Many asylum seekers were subjected to arbitrary and indefinite detention, where they were treated in an inhumane and degrading way. Such policies that assassinate the basic human rights of refugees deter asylum seekers from seeking asylum in the USA, which is against section 102 (2) of IRPA. The Canadian Court ruled that the USA is no more a safe country for refugees in the administration of Donald Trump in the light of such violations.
Such Draconian policies of the Trump administration which promote illegal pushbacks and illegal family separations violate some basic human rights and refugee rights guaranteed under American and international law. Article 27 of American Declaration of the Rights and Duties of Man and article 22 (7) of American Convention on Human Rights guarantee that every person has right to asylum in foreign territory in accordance with the laws of each country and with international agreements. Making such policies to create a sense of trepidation in the minds of asylum seekers because of which they refrain from seeking asylum in the USA is a gross violation of their right to asylum guaranteed by above mentioned American statutes.
Some international law obligations were also violated by the USA through these pushbacks, family separations, and inhumane treatment of refugees at detention centers. Article 7 of the International Covenant on Civil and Political Rights provides that no one should be subjected to cruel, inhumane and degrading treatment. On account of the statement of an Ethiopian female immigrant, Nedira Jemal Mustefa it can be easily apprehended, how this basic human right is violated in the detention facility of USA. Article 14 of Universal Declaration of Human Rights guarantees that everyone has the right to seek and to enjoy in other countries asylum from persecution and if a country is considered as a safe third country instead of giving asylum persecutes the refugees then it cannot be considered safe for the refugees anymore because it is an essential condition under Section 102 (2) of IRPA, that a country must maintain the standards of the human rights for being in STCA with Canada.
One more essential condition imparted in this section was that for a country to be considered a “Safe Third Country”, it must be a party to the Refugee Convention of 1951 and Convention against Torture of 1984 and it should also follow the rules and regulations of these conventions while forming its policies. Trump’s USA has also failed on this ground. Article 23 of Convention Relating to the Status of Refugees, 1951 states that all the parties to this convention must treat the refugees staying in their states in the same way as they treat their nationals and this regulation is violated in a ferocious way when the refugees are forced to live away from their family members and kin in the detention center amid torment and inhumane treatment. Article 3 (1) of Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or punishment is upheld in the ruling of Canadian court as it says that no state, which is a party to this covenant shall send a person to another state where there are substantial grounds of believing that he/she will be tormented or subjected to inhumane treatment.
The current situation of the human rights and refugee rights of asylum seekers in America is depressing and makes clear why the Canadian court decided to give such a ruling. This type of situation brings great disrepute to the image of a country that is considered to be a superpower in world politics. American Government must win back the trust of people across the world by passing strict legislation which bans illegal pushbacks and illegal family separations of refugees. America should maintain the standards of human rights in its detention centers. Separate State agencies must be formed which will be subordinate to an independent central agency made for looking into matters of basic human rights and refugee rights violations and initiate a criminal investigation against the people who are involved in such practices.
The USA should also ratify the UN Convention on the Rights of the Child, which the United States signed in 1995 and is the only country in the world which has not adopted it yet because article 22 of this convention says that States Parties shall take appropriate measures to ensure that a child, (whether accompanied by parents or not) who is seeking refugee status after following the due procedure in accordance with applicable international or domestic law shall, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties. The parties to this convention must do all efforts to reunite a child with his parents to avoid illegal family separations.
Shaurya Shukla is a second-year law student of 5-year B.A.LL.B.(Hons.) program at Chanakya National Law University, Patna, India.
Suggested citation: Shaurya Shukla, Why Canada Believes Trump’s America is No Longer Safe for Refugees, JURIST – Student Commentary, August 11, 2020, https://www.jurist.org/commentary/2020/08/shaurya-shukla-canada-safe-third-country/.
This article was prepared for publication by Tim Zubizarreta, JURIST’s Managing Editor. Please direct any questions or comments to him at firstname.lastname@example.org
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