Between the Pundits: Incoherence upheld

The Federal Court of Appeal has overturned a Federal Court ruling that had essentially scuppered the Canada-US Safe Third Country Agreement on refugees. (That’s the thing that got rid of all those unsightly northbound queues of the world’s downtrodden at various points along the 49th parallel, which you may remember from the 1990s, by prohibiting most refugee claims at land border crossings and forcing asylum-seekers already in the U.S. to try their luck in the less permissive American system.) The provisions of the agreement had remained in effect while the government appealed, but as the editorial notes, getting rid of it would have meant “a nightmare of complications” for a refugee system that’s already stretched to its breaking point. So I was rather surprised to learn all this from an approving Globe and Mail editorial, which, bizarrely, seems to be the only mention of this very important event anywhere in the entire media.

The Globe‘s main point is that the original ruling was a vast overreach based on a woefully superficial negative assessment of the American refugee system, and I have no quarrel with that. But particularly in the absence of other coverage, readers of that editorial could be forgiven if they thought the Safe Third Country Agreement was a coherent, mutually beneficial, fair deal for Canada and the United States, and for refugees. This is a pet issue of mine, and I must protest that it is not any of those things. At best, it’s a fudge.

This, from the Globe, is the idealized version of the STCA:

Canada and the U.S. had agreed that refugees who arrive in one of these two countries cannot cross through a land border to the other (with a few exceptions, such as if the refugee has a spouse or close relative in the other nation). That’s not a trick to keep people out. It’s a way to conserve resources for refugees who really need protecting.

The devil is in those other exceptions, which include the following:

  • Mexicans, who now far outnumber any other nationality of refugee claimants even though their chances of acceptance are relatively tiny.
  • Anyone else who doesn’t need a visa to come to Canada—that’s everyone from Spaniards to St. Lucians, Western Samoans to Swazilanders and Brits to Americans. All are free to claim asylum at the border, or anywhere else, regardless of their situations. (The fact that Americans, Brits and Spaniards can claim asylum at all is a separate absurdity, but an absurdity nonetheless.)
  • My personal favourite: people who sneak across the border, such as some Venezuelans and Colombians have done into Quebec. They would have been turned back had they presented themselves to Canadian border guards, but were instead rewarded with refugee hearings.

It’s true that many of the STCA’s problems are really problems with the refugee system writ large—for example, from what I’m told, most of the sure-to-be-unsuccessful Mexican claimants currently choking the system touched down at Canadian airports, where the agreement doesn’t apply. But Mexico highlights the fatal flaw in the argument that the STCA is just “a way to conserve resources for refugees who really need protecting.” Mexicans can claim asylum at the Canadian border, but not Hondurans; Americans can claim asylum at the Canadian border, but not, say, Tibetans. In short, the STCA privileges nationality above actual persecution—and not the least advantaged nationalities either, but the most advantaged. People will argue that’s a necessary compromise in principles, even given the many loopholes in the system. But don’t try to tell me it’s logical.

UPDATE: As noted in the comments, the Federal Court of Canada helpfully underscored the absurdity today by sending the case of an American army deserter—who voluntarily enlisted in the armed forces, but wouldn’t fight in Iraq—back to the refugee board to reconsider. Meanwhile, if a rag-clad Tibetan had thrown himself upon the mercy of Canadian border officials today, he’d have been turned back to the United States because it’s a perfectly safe country with perfectly adequate protections for human rights.