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“Safe Third Country Agreements” Violate the International Law Principle of Non-Refoulement


Photo by UNHCR/Roger Arnold


Article by Francesco Arreaga,


At the end of 2019, there were 79.5 million forcibly displaced persons worldwide. Of those 79.5 million people, about 40% of them were children below 18 years of age. Refugees, asylum-seekers, and migrants often must overcome very challenging life circumstances that force them to leave their homes in search of opportunity and safety. International law, such as the 1951 Refugee Convention, codifies explicit protections for refugees and provide a framework for safeguarding human rights and international agreements. This blog post portrays how the 45th President of the United States and his administration have failed to uphold the United States’ duties under international law to protect refugees. It shows how deceptively named “Safe Third Country Agreements” (STCAs) between the United States and other nations violate the principle of non-refoulement under international law. Finally, I describe how a Canadian Federal Court recently rebuked the United States’ treatment of refugees, and conclude by emphasizing the importance of electing leaders who will ensure that our nation lives up to its responsibilities under international law to respect refugee rights.


The Universal Declaration of Human Rights is considered the foundation of international human rights law and provides in Article 14(1) that “everyone has the right to seek and to enjoy in other countries asylum from persecution.” The principle of non-refoulement is enshrined in Article 33 of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. The Convention makes it clear that no country “shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his [or her] life or freedom would be threatened on account of his [or her] race, religion, nationality, membership of a particular social group or political opinion.” The 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment also contains an explicit non-refoulement clause in Article 3. The United Nations High Commissioner for Refugees (UNHCR), the UN Refugee Agency, is of the view that the non-refoulement principle is customary international law, and thereby applicable to all nations.


On September 19, 2016, the United Nations unanimously adopted the New York Declaration for Refugees and Migrants. The declaration reaffirmed the obligations that nation states have to respect the human rights of refugees and migrants, the importance of supporting countries that shelter refugees, and a commitment to adopting a global compact on refugees as well as a global compact for safe, orderly, and regular migration.


Unfortunately, under the 45th President’s administration, the United States has abandoned its responsibilities under international law to protect refugees and abide by the principle of non-refoulement. Instead of implementing policies that assist refugees, safeguard human rights, and give a helping hand to immigrants striving to achieve the American dream, this administration has committed human rights abuses by separating children from their parents at the border, is accused of forcefully sterilizing immigrant women at ICE facilities, and has disregarded the principle of non-refoulement by crafting deceptively named STCAs.


In 1991, UNHCR published a background note providing some guidelines as to how the term “safe country” can be applied. UNHCR explains how the safe country concept applies where a nation is a non-refugee producing country or is one in which refugees can enjoy asylum without facing any danger. After being coerced by the United States through threats of a travel ban or “significant actions on remittances and/or tariffs,” the government of Guatemala entered into an STCA with the United States. On July 26, 2019 a Guatemalan newspaper, Prensa Libre, reported that the agreement designated Guatemala as a safe country for refugees as they await the adjudication of their asylum cases. Just Security published an English version of an unsigned copy of the agreement that is similar to the signed version in Spanish. Until the agreement came to fruition, the only STCA into which the United States had entered was with Canada in December 2002.


In U.T. v. Barr, the ACLU and several other organizations filed a civil complaint alleging that the Asylum Cooperative Agreement, a regulation implementing the procedures for removing asylum seekers to nations like Guatemala under an STCA, is unlawful under domestic and international law. The individual plaintiffs in this lawsuit are being forced to choose between remaining in Guatemala, “where they fear for their lives, and returning to the countries from which they fled persecution.” Moreover, the complaint cites an asylum officer’s statement that the agreement between the United States and Guatemala is simply “a pretext to get rid of as many asylum claims as possible.”


In addition to the pending litigation challenging the legality of the agreement between the United States and Guatemala, there is ongoing litigation in Canada (Canadian Council for Refugees v. Canada) challenging the legality of the aforementioned STCA between the United States and Canada. A Canadian Federal Court ruled in July 2020 that the STCA between the United States and Canada is invalid because U.S. immigration practices reflect the “penalization of the simple act of making a refugee claim [and] is not in keeping with the spirit or the intention of the STCA or the foundational Conventions upon which it was built.”


In its opinion, the Canadian Court provided examples showing the plight of several refugees such as Ms. Mustefa and other unnamed persons. Refugees were “all placed in solitary confinement immediately upon arrival at US detention facilities.” R.S. “was left without food and was not given the opportunity to bathe for the first three days she was in solitary confinement.” J.K. describes “being unable to sleep due to the cold; P.Q. describes asking for extra blankets, but not receiving any until she had a fever and needed to see a doctor, and R.S. stated that when prisoners would huddle together for warmth, the guards would pull the blanket.” Medical attention was woefully inadequate at detention facilities and disproportionate, as “R.S. observed the nurse in her detention facility ignore Black detainees while going out of her way to address medical issues of White detainees.” The circumstances at these U.S. detention facilities were so dire that Ms. Mustefa described her time in solitary confinement as “a terrifying, isolating and psychologically traumatic experience.” All of this led the Canadian Federal Court to conclude that Canada’s STCA agreement with the U.S regarding refugees is in violation of Section 7 of the Canadian Charter of Rights and Freedoms, which provides that “everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”


The Canadian Court’s holding depicts how the United States is failing to abide by the refugee protections established by international law and cannot be considered a safe country for refugees. The United States has a troubling history of excluding people from our country based on racial animus, historically evident in laws such as the Chinese Exclusion Act of 1882. Still, it remains shocking, sad, and disgraceful to know that the President of the United States and members of his administration have degraded the nation’s legal system with respect to immigration and human rights, to the extent that a Canadian Court has rebuked the treatment of refugees in the United States. The United States cannot expect to be a leader on the world stage that champions human rights if we ourselves do not practice what we preach. It is essential that we elect leaders who will ensure that our nation respects human rights and upholds the principles of international law that protect the millions of refugees and forcibly displaced people facing dire life circumstances.


Author

Francesco Arreaga (J.D. Candidate, Class of 2021) is a Contributor to Travaux. He has been a

member of the Berkeley Journal of International Law since his first year of law school and has

enjoyed writing for Travaux. Francesco holds a B.A. in Political Science and Chinese, as well as a minor in Global Studies from UCLA. He is currently the co-President of the American

Constitution Society at Berkeley Law and last year served as the Co-President of the Berkeley

Immigration Group. Francesco is passionate about ensuring that the voices of immigrants,

working people, and communities of color are represented in government. Currently, Francesco is interning as a law clerk in the U.S. Senate.


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