bout de papier, Vol. 31, No. 2 (2021), pp. 41–42
BY OBIORA CHINEDU OKAFOR
VANCOUVER, UBC PRESS, 2020
ASIN B084P5QQ9T, 349 pp
OBIORA CHINEDU OKAFOR, YORK UNIVERSITY’S Inaugural Research Chair in International and Transnational Legal Studies, states that refugee laws and regimes in Canada and the USA “for the most part … reacted in strikingly similar ways to the heightened security vigil triggered by the 9/11 attacks”. His study treats refugee, security and criminality legislation and the security officialdom as part of a single continuum. It states that “in both countries, things were already so bad with refugee law before 9/11 that there was significantly less room than many have supposed for them to get all that much worse.” (Italics in original). The 9/11 terrorist attack was precedent setting. The US reacted by tightening immigration controls. Canada, sharing a long undefended land border with the US, tightened its own counter-terrorist measures.
The focus of the book is, in fact, not refugee law as such, but the lax application of international protection standards contained in the UN human rights instruments to the admissibility of asylum claimants as well as other non-citizens. Both Canada and the USA include these standards in their respective refugee laws. However, following 9/11 the US and Canada (but especially the US) have added new legal instruments like the US Patriot Act to enforce counter-terrorism measures against non-citizens considered to be terrorist threats.
The book examines the provisions of US and Canadian law on the legality of refoulement to torture and finds that the two law systems are similar. Both systems contain practical legal safeguards against removals to torture. However, in the US, deportations have been made to places of torture. In Canada, there are very few such cases and legal challenges have routinely ensured referral to the Supreme Court.
In comparing US and Canadian detention systems, the legal framework is relatively similar. But again, detention practices in the US are more severe than in Canada. In the US, detention of asylum seekers is routine, while in Canada rare. The US terrorist detention centre at the Guantanamo Bay military base became an example of dealing with terrorist suspects in an extralegal manner. Nothing in Canada resembles Guantanamo Bay. As with other aspects of the US immigration and refugee regime, the tightening of controls was not only after 9/11, but more so during the Trump administration. “In February 2017, the Trump administration issued three executive orders on immigration/refugees. Together they contained a dramatic push toward a new regime of large scale dete:
refugees and other non-citizens.”
A significant chapter deals with the US—Canada Safe Third Country Agreement. For both countries, the measure is a border protection and asylum claimant control instrument and as such contravenes the two countries’ responsibilities under international law to protect refugees. Okafor demonstrates how Canada has used immigration controls to keep asylum claimants from accessing Canada’s refugee determination system. A second control measure is Canada’s offshore interdiction system, specifically implemented to slow the influx of refugee claimants to Canada. It is mentioned in the book only in passing.
Tens of thousands of asylum irregularly crossed the land border from the US to Canada in 2017 and 2018, to “avoid President Trump’s harsh refugee/ immigration policies”. The long-term battle waged by Canadian refugee advocates against the Safe Third Country Agreement is dealt with by Okafor. The main argument of the Canadian Council for Refugees (CCR) in Canadian courts was that the US is not a safe country for refugees and that refugee claimants returned from Canada to the US would face harsh treatment in the US, including immediate detention. This argument was supported by the UNHCR in testimony before a House of Commons Committee, which the book examines in detail. Okafor does not clearly state that, during the Trump years, the movement of asylum seekers was one way, from the US to Canada, demonstrating that noncitizens in the US were fearful of the US immigration control system.
Okafor’s view of “bad refugee law” in both countries since before 9/11 is not factually demonstrated. Refugee laws in the US and Canada have been drafted in conformity with the UN Refugee Convention and Protocol. Measures that may be objected to in the two refugee regimes and may contradict refugee protection principles based on international refugee and human rights law, are, in fact, often based on legislation other than refugee law (e.g., the Patriot Act in the US), or administrative fiat, and usually apply to non-citizens in general.
In conclusion, this book provides a comparative examination of international refugee protection standards as they are applied by the legal regimes of the US and Canada to non-citizen admissibility, with special emphasis on refoulement to torture, detention, terrorists and the Third Safe Country Agreement. While demonstrating Okafor’s claim that the strictly legal elements of refugee law are similar in the two countries, it also tends to show the opposite as far as the practical implementation of the laws is concerned. The US is considerably harsher toward asylum seekers and other non-citizens than Canada, and the US system has been more negatively influenced by changes put into effect during the Trump presidency than by reactions to 9/11.
Originally published in bout de papier, Vol. 31, No. 2 (2021), pp. 41–42. Read the rest of this issue →
