Canada–United States Safe Third Country Agreement and the Refugee Convention
Vol. 43 Associate Editor
In 2004, Canada and the United States enacted the Canada–United States Safe Third Country Agreement (STCA), an agreement designed to manage refugee claims at the shared land border. Per the terms of the agreement, a refugee who enters via a land border port of entry is required to claim asylum in whichever of the two countries they arrive in first, with some exceptions. Should they try to make a claim in the nation in which they did not first arrive, that state is obligated to return the claimant to the arrival state for their claim to be adjudicated. The STCA is built on the premise that both Canada and the United States are considered safe third countries for claim adjudication as defined by the 1951 Refugee Convention, to which they are both signatories. In recent years, however, the asylum practices of the United States have drawn scrutiny and criticism, calling into question its status as a safe third country, the legality of the STCA, and more broadly, the United States’ compliance with the Refugee Convention; in analyzing these practices and their effects on claimants against the United States’ signatory obligations, it is reasonable to conclude that the U.S. – and, through the STCA, Canada – are currently out of compliance. Safe Third Countries and Non-Refoulement The concept of “safe third countries” does not stem directly from the Refugee Convention, and instead derives from international agreements which apply the principles of the Refugee Convention, such as the European Union’s Dublin Regulation. Thus, while there is no explicit set of guidelines defining a “safe third country” under the Refugee Convention, the primary concerns of the Convention that are communicated through these agreements are that there is no risk of serious harm towards the claimant within the state, the claimant’s basic human rights are respected, and perhaps most importantly, that there is no risk of refoulement, of being returned to the state where the claimant is at risk and which they are fleeing. Refoulement is discussed and expressly barred in Article 33 of the Refugee Convention, which states: “No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” Indeed, non-refoulement is considered to be the paramount goal of international asylum law and the “cornerstone of international refugee protection,” to the extent that the upholding of this principle is understood to reflect “the commitment of the international community to ensure to all persons the enjoyment of human rights, including the rights to life, to freedom from torture or cruel, inhuman or degrading treatment or punishment, and to liberty and security of person.” The STCA and the Refugee Convention As noted, the STCA is built on the premise that both Canada and the United States meet these criteria, and can be considered “safe” for claimants to be sent to each respective nation for claim adjudication. However, the agreement has been met with some controversy from both the Canadian judiciary and the international community, with questions arising around if the United States can still be considered a safe third country and meet its international obligations per the Refugee Convention, especially as it has adopted more stringent and restrictive asylum procedures and guidelines over the past five years. The volume of asylum seekers to the United States has risen considerably over the last several years as record-breaking numbers of migrants converge at the southern border — nearly 200,000 encounters with migrants at the southern border were reported in July 2021, the highest in 21 years — in what has come to be regularly identified as a humanitarian crisis. In the last fiscal year, from October 2020 to September 2021, more than 1.7 million migrants were apprehended by Customs and Border Protection, the highest number of crossings ever recorded. As the United States struggles to handle this influx of claimants, it has come under fire for its practices, including the use of arbitrary detentions, the forcible separation of children from their parents, forced and unnecessary medical procedures, and inhumane detention conditions, in conjunction with the tightening of asylum criteria and claims. Against this backdrop, the STCA has faced legal challenges in Canada for several years, with the Canadian Federal Court ruling the STCA unconstitutional in Canadian Council for Refugees v. Canada (2020). The Court found that the United States’ low standard of proof for exclusion of asylum on national security grounds, its detention practices and lack of access to counsel, its insufficient protection for gender-based claims, and its one-year filing deadline for claims all demonstrated lesser access to asylum than in Canada that “shocks the conscience” and presents a high risk of refoulement to the claimant. Though the Canadian government successfully appealed the ruling, and the Canadian Federal Court of Appeal overturned it in April 2021 (the claimants intend to appeal to the Canadian Supreme Court), these findings match similar criticisms of the United States’ present practices around asylum that call into question its compliance with the Refugee Convention and its status as a safe third country. As discussed, non-refoulement is the paramount goal of international refugee protection. That the United States has adopted practices that make virtually every stage of the asylum process more difficult, laborious, time-consuming, and potentially harmful – ranging from initial intake, unfeasible filing deadlines, to numerous grounds for exclusion on even commonly impacted groups such as women – makes refoulement a high risk for claimants entering this country, directly contravening that goal. Conclusion The United States’ lack of compliance with the Refugee Convention means that it should no longer be considered a safe third country and that, therefore, the STCA should be invalidated to uphold Canada’s commitment to preserving the human rights of asylum claimants.
 Safe Third Country Agreement, Can.-U.S., Dec. 5, 2002, T.I.A.S. 04-1229 [hereinafter STCA].  Id., art. 4.  Id., art. 5.  United Nations Convention on the Status of Refugees, July 28, 1951, 189 U.N.T.S. 150 [hereinafter UN Refugee Convention].  See, e.g., Assessment: U.S. Compliance with the Refugee Convention at Its 70th Anniversary, Human Rights First (July 27, 2021), https://www.humanrightsfirst.org/resource/assessment-us-compliance-refugee-convention-its-70th-anniversary.  Eirik Christophersen, What is a Safe Third Country?, Norwegian Refugee Council (Mar. 9, 2016), https://www.nrc.no/news/2016/march/what-is-a-safe-third-country.  James Hathaway, The Law of Refugee Status 36 (2nd ed. 2014).  UN Refugee Convention, supra note 4, art. 33.  United Nations High Comm’r for Refugees [UNHCR], Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (Jan. 26, 2007), https://www.unhcr.org/4d9486929.pdf.  United Nations High Comm’r for Refugees [UNHCR], UNHCR Note on the Principle of Non-Refoulement (Nov. 1997), https://www.refworld.org/docid/438c6d972.html.  Amanda Ghahremani & Jamie Liew, Why the Safe Third Country Agreement Must Go, Open Canada (June 1, 2021), https://opencanada.org/why-the-safe-third-country-agreement-must-go.  John Gramlich, Migrant Encounters at U.S.-Mexico Border are at a 21-year High, Pew Research Center (Aug. 13, 2021), https://www.pewresearch.org/fact-tank/2021/08/13/migrant-encounters-at-u-s-mexico-border-are-at-a-21-year-high.  Audie Cornish, How the Southern U.S. Border Has Become a Nearly Constant Humanitarian Crisis, Nat’l. Pub. Radio (Sept. 24, 2021), https://www.npr.org/2021/09/24/1040550699/how-the-southern-u-s-border-has-become-a-nearly-constant-humanitarian-crisis.  Southern Border Humanitarian Crisis, Ctr. Disaster Philanthropy (Oct. 22, 2021), https://disasterphilanthropy.org/disaster/southern-border-humanitarian-crisis.  Ghahremani & Liew, supra note 11.  Canadian Council for Refugees v. Canada,  F.C. 770 (Can.).  Id. at 136-37.  Canada v. Canadian Council for Refugees,  F.C.A. 72 (Can.).  UNHCR, supra note 9.  See, e.g., Jaya Ramji-Nogales, Non-Refoulement Under the Trump Administration, ASIL Insights (Dec. 3, 2021), https://www.asil.org/insights/volume/23/issue/11/non-refoulement-under-trump-administration; Ghahremani & Liew, supra note 11.