The Safe 3rd Country and Relations in Turbulent Times

Author: David King

Since the 2nd World War one of the dominant issues facing the international community has been the movement of refugees and migrants. The characteristics of the movements have changed, through many cycles, but the issue itself remains, and gets worse from year-to-year and from decade-to-decade. Since 1945 Canada has welcomed newcomers:

• from western Europe in the immediate aftermath of the war;
• from eastern Europe in the aftermath of the Hungarian uprising and the crushing of the Czech spring;
• from the U.S. when it was in the throes of the civil war in Viet Nam;
• from Viet Nam itself, as that war ended;
• from Africa in the aftermath of the Rwandan bloodshed;
• from the Balkans after Yugoslavia disintegrated;
• from Syria and Libya recently.

There have been more.

In the course of dealing with this, trying to be humanitarian, and just, Canada and the United States have developed and invoked (by treaty of 2004) the idea of the “safe 3rd country” – that either country has robust and even-handed administrative and judicial systems that uphold shared concepts of fundamental human rights. The treaty allows Canada to return refugees who are not American to the U.S. if they have arrived in Canada from the U.S. (The U.S. has the same right to return refuges to Canada if they arrived in the U.S. by way of Canada.) The treaty reflects the conviction that refugees who have arrive in Canada by way of the U.S. could have – should have – made their refugee claim there because that country has a robust and even-handed administrative and judicial systems that upholds vital concepts of fundamental human rights in (more or less) the same way that Canada does.

Refugees in eastern Canada have launched a legal action, arguing that the administrative and judicial systems in the United States no longer meet the standards of independence and even-handedness required to defend fundamental human rights. They are arguing that the United States is no longer a safe 3rd country. On July 22nd, this year, the Federal Court of Canada decided that the Safe 3rd Country agreement is invalid. The decision has been stayed for 6 months in order to give the Federal Government time to respond. An appeal, perhaps ultimately to the Supreme Court of Canada, may be on the horizon.

The question left hanging in the air is this. What would be the political fallout if the Supreme Court of Canada decides that the United States is no longer a safe 3rd country. That would be a significant indictment of the current state of political and administrative institutions in the United States. It would likely anger the current leadership of the U.S. – our biggest, and nearest neighbour — our largest trading partner.

If you want to know more:

Canada–United States Safe Third Country Agreement

Safe Third Country

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