The sights and sounds of young children being forcibly removed from their parents as they cross the border from Mexico into the United States have recently dominated news media around the world.
With World Refugee Day just past on June 20, Canadians would be well-served to take the opportunity to reflect on our government’s implicit endorsement of such cruelty.
Since 2004, Canada has used the “safe third country agreement” to reject asylum-seekers arriving from the United States on the basis that the United States is a “safe” place to make a refugee claim. The past six weeks have proved that claim undeniably false. The test for what makes the United States “safe” is its compliance with international refugee law and human rights norms, but virtually all American policy changes this spring (and many pre-existing policies) violate one such rule or another.
That list is a long one, but three stand out: Denying asylum to those fleeing domestic and gang-related violence; the caging and separation of children from their parents — who are often deported without seeing their children again — even when the family enters legally; and criminally prosecuting every adult who crosses the border without using an official border entry point.
This last policy is particularly cynical. As Canadian courts have noted, international law forbids punishing asylum-seekers who cross borders irregularly. This recognizes that while asylum claims should be properly tested, asylum-seekers cannot be penalized for their desperation in fleeing persecution.
However, American policy not only treats all such migrants as criminals, but induces irregular crossings by refusing to open official border posts to anyone who looks as though they might claim asylum, while allowing others to enter. Unable to go home, and unable to enter legally, these migrants take dangerous routes through deserts or across rivers. If they survive and then attempt to make an asylum claim, they are arrested and jailed pending trial. Those proceedings are now routinely mass trials, where up to 40 defendants with inadequate legal representation are convicted at a time.
Despite such blatant violations of international laws on the rights of children, refugee claimants and to fair trials, the Canadian federal government has been silent. This ignores the government’s legal obligation under the agreement to continually monitor compliance with the law.
Instead, the government has offered no explanation as to why the United States — where asylum seekers are refused entry, are criminally prosecuted, are unable to claim protection for domestic violence, and are forcibly separated from their children — is still “safe.” This is not only a question of morality, it is one of legality and democratic accountability: The government is disregarding its own law that is intended to cover exactly this situation.
Instead of justifying its position or using its unilateral legal right to suspend the agreement, the government is trying to strengthen it. The agreement has one major qualification: Migrants who cross into Canada between official entry ports are exempted.
This has led to an increase in irregular (and dangerous) crossings, and discussions with the United States to eliminate that exemption. In other words, at the same time as thousands of migrant children are being caged, our government is insisting America is so “safe” that it should be more difficult for asylum-seekers to seek refuge in Canada.
This government, like those before it, is avoiding its responsibility to answer to the Canadian public on this issue. It is understandable why: The government would have to explain what definition of “safe” encompasses forcing children into cattle pens while deporting their parents, or denying abused women asylum.
Silence is not an oversight. It is the government’s tacit acceptance, on behalf of but without explaining to or consulting with Canadians, of policies that resemble our own worst abuses — including Japanese internment camps and Indian residential schools — if it means fewer refugees in Canada.
American refugee policy is American, but it directly implicates Canadians. We ought to demand at a minimum that our elected representatives explain their apparent disregard for basic rights and obligations under both international and domestic law. It is a question of adhering to professed Canadian values, of respecting the public’s right to know the basis on which policies are sustained, and of adhering to the law’s demand to monitor compliance and act accordingly.
Canadians are right to question not only American policy, but their own government’s unwillingness to live up to its democratic obligations.
Asad Kiyani is an assistant professor of law at the University of Victoria.
