Canadian Judge Rules U.S. Violates Refugee Mandates

Adam Liptak reports in the NY Times:

Late last month, a federal judge in Canada ruled that the United States had violated international conventions on torture and the rights of refugees.

The decision has caused quite a stir in Canada. The Globe and Mail, a Toronto newspaper, said it was “outrageous, and has the whiff of Canadian cultural superiority about it.”

The decision, by Justice Michael L. Phelan, does at first blush sound like a judicial stunt. You don’t often see judges instructing their own governments about how to conduct foreign affairs. It is less common still to see them engaging in freelance diplomacy by chastising foreign governments.

Justice Phelan’s decision was, moreover, based on affidavits from about a dozen American professors and lawyers. However sound their criticisms of American practices were, it was odd to see them addressed to a foreign judge. The mix of aromas surrounding the decision included a whiff of forum shopping.

And yet.

There was a sound legal reason for Justice Phelan to be addressing American practices and policies. The case concerned a 2002 agreement between the United States and Canada on the treatment of people fleeing persecution from other places, and the agreement itself requires compliance with international conventions on refugees and torture.

Under the deal, which became effective three years ago this month, people from other countries entering Canada from the United States by land could no longer ask for asylum, on the theory that they should have done so in the United States. (The agreement works in reverse, too, but most refugee traffic moves north.)

You get one bite at the asylum apple, the agreement says, because you will get a fair shake in either country.

But the deal, known as the Safe Third Country Agreement, sets conditions based on the international conventions, and Justice Phelan said the United States had in recent years not lived up to them. He acknowledged that an English court had turned back a similar challenge to American refugee policy in 2000. But things have changed since the Bush administration came to power, Justice Phelan said, and the reasons given in the English decision “clearly relate to a different time.”

Justice Phelan declared the 2002 agreement invalid. Click here for the full story.

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