Is the United States Really Not a Safe Third Country?: A Contextual Critique of the Federal Court of Canada's Decision in Canadian Council for Refugees, et. al. v. Her Majesty the Queen
34 Pages Posted: 25 May 2009 Last revised: 15 Jul 2010
Date Written: May 23, 2009
This article is a critique of a November decision of the Federal Court of Canada striking the Safe Third Country Agreement that exists between the United States and Canada for the orderly and efficient adjudication of asylum claims regarding aliens who reach one or the other country from the other. The Canadian decision, in essence, finds that the United States is not a safe third country for refugees, and so the agreement is not in accord with the relevant international law (including the Refugee Convention and the Convention Against Torture) or domestic (i.e., Canadian) law. My critique focuses on the distinct U.S. interpretation of its obligations under international law, and the permissible domestic implementation of those obligations via the Immigration and Nationality Act and implementing regulations. Although the U.S. interpretation does differ from the UNHCR's interpretation, as well as the implementation other countries have pursued, the U.S. interpretation is legally valid and sufficient to meet our international law obligations. Accordingly, the Canadian Court erred in finding to the contrary.
Keywords: Immigration law, international law, Canadian law, comparative law
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