Disappearing Refugees: Reflections on the Canada-Us Safe Third Country Agreement

62 Pages Posted: 23 Dec 2005

See all articles by Audrey Macklin

Audrey Macklin

University of Toronto - Faculty of Law


Refugees are vanishing from the territory of wealthy industrialized nations. I do not mean that refugees are literally disappearing. Despite the best efforts of western governments to deter them, thousands of asylum seekers do manage to arrive and lodge refugee claims each year. I refer here not to the legal and material reality of refugees, but rather to the erosion of the idea that people who seek asylum may actually be refugees. This dispiriting turn in public sentiment is enabled by a series of legal and popular conjunctions that produce what I call the discursive disappearance of the refugee. This erasure performs a crucial preparatory step toward legitimating actual laws and practices that attempt to make them vanish in reality. While such policies can never entirely succeed in preventing entry, they may reduce numbers, and they can and do consign a growing proportion of entrants to the illegal category. This article explores one such legal instrument designed to constrain the movement of asylum seekers, namely the Canada-U.S. Safe Third Country Agreement (Agreement). The Agreement was negotiated by Canada and the United States as part of a package of post-9/11 measures, is presented as furthering security, and is modeled on the Dublin Convention (now the Dublin II Regulation) of the European Union. It requires asylum seekers to lodge their refugee claims in the first country of arrival. In other words, asylum seekers on the U.S. side of the border who are attempting entry into Canada will be deflected back to the United States and vice versa. I will use the preamble to the Agreement to illustrate how the legal text tacitly profits from the popular blurring of asylum seekers and "illegals." I will also consider the extent to which the Agreement is likely to advance the principles and objectives attributed to it.

Keywords: migration, asylum, refugees, smuggling, trafficking, international law, rights discourse

Suggested Citation

Macklin, Audrey, Disappearing Refugees: Reflections on the Canada-Us Safe Third Country Agreement. Columbia Human Rights Law Review, Vol. 36, pp. 365-426, 2005, Available at SSRN: https://ssrn.com/abstract=871226

Audrey Macklin (Contact Author)

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
416-946-7493 (Phone)
416-978-7899 (Fax)

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