Unsafe in America: A Review of the U.S.-Canada Safe Third Country Agreement

Abstract

Under the U.S.-Canada Safe Third Country Agreement (STCA), Canada can turn away refugees seeking protection if they first arrived in the United States en route to the Canadian border. Instead, the United States must accept responsibility for determining refugee status. However, the principle of complicity in international law provides that Canada cannot return an asylum seeker to the United States if U.S. law is inconsistent with international law protecting refugees. Under the complicity principle, Canada would violate its obligations under the Refugee Convention and other human rights treaties if a refugee were denied protection in the United States and returned to the country where he or she faced persecution.

This article applies the complicity principle to Canada's participation in the STCA. It reviews the features of the United States' refugee processing system that clearly violate international law, thereby fobidding Canada from returning refugee applicants to the United States. These features include a high burden of proof for those seeking refugee protection, broad exclusions from protection, and the widespread practice of detention for those in the process of having their claims heard. The article also discusses more arguable bases for concluding that the United States fails to provide minimum protections consistent with international law. It concludes with a review of the ways that the Safe Third Country Agreement can be challenged in domestic, regional and international fora.

Keywords: Refugee, International Law, Complicity