Kennedy, Rachel --- "No Safety In 'Safe Third Countries': What Migration Ethics Can Tell Us About The Safe Third Country Agreements Of North And Central America" [2021] UNSWLawJlStuS 9; (2021) UNSWLJ Student Series No 21-9

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NO SAFETY IN ‘SAFE THIRD COUNTRIES’: WHAT MIGRATION ETHICS CAN TELL US ABOUT THE SAFE THIRD COUNTRY AGREEMENTS OF NORTH AND CENTRAL AMERICA

RACHEL KENNEDY

I INTRODUCTION

Safe third country policies consistently infringe international legal principles including both non-refoulement and the principle of the equality of states.^[1] There is no uniform legal definition of safe third country, though all encompass the following function. Safe third countries are states that intended destination countries send intercepted or deported asylum seekers, who in that third country, are either detained or offered to file asylum claims, or both. There is growing scholarly consensus that the Australian and European Union third country externalization practices violate international human rights law.^[2] These findings invite the reassessment of the sovereign right of rich global north countries to exclude asylum seekers arriving from demonstrably dangerous states. Safe third country laws can no longer be justified on the basis that they prevent individuals from illegal entry while protecting those persons from humanitarian harm.^[3] Yet the fact remains that the right of states to exclude migrants is enshrined in both national immigration laws and international human rights law. The right to exclude is also assumed by influential normative theories about legitimate migration and border enforcement.^[4] In this essay, I argue that the open borders debate developed by leading political philosophers over the preceding two decades was mistaken in failing to reject the right to exclude as a leading assumption.^[5] Throughout, I build a case for the claim that migration justice demands the dismantling of third safe country externalization laws and policies.

First, this claim is tested against the structural context of safe third country agreements between the United States and its northern and southern neighbors.^[6] The purpose of this exercise is to emphasize economic and political inequality as structuring power dynamics between contiguous countries responding to overlapping flows of asylum seekers. North and Central America presents a chillingly realist theater buttressed by the right to exclude. This remains an important example, even after the Biden administration decided to reverse safe third country ‘Asylum Cooperation Agreements’ between the US and each of the three Northern Triangle Central American countries that were all in force as of 29 December 2020.^[7] Both President Joe Biden and Vice President Kamala Harris had previously endorsed ending policies that prosecute asylum seekers in their first 100 days in office.^[8] However, a Canadian judge recently ruled that the Safe Third Country Agreement between the United States and Canada had become unconstitutional.^[9] The change of US administrations and immigration policies is likely to affect appeal proceedings in Canada. Nonetheless, the apparent illegality and easy reversibilty of the agreements between the US and Northern Triangle countries demonstrates the role of political and economic power in authorizing illegitimate means to deport prospective asylum seekers by a rich liberal democratic nation.

Second, an expanded discussion of the open borders debate that continues to rage within political philosophy introduces the key arguments in terms of the various safe third country agreements of which the United States is party. The debate as originally developed by communitarian Michael Walzer, liberal egalitarian Joseph Carens, and liberal nationalist David Miller, revolves around the question of whether rich liberal democracies are morally obligated to admit migrants.^[10] These first generation theories of just international migration regimes offer no shortage of imagination in defending impressively divergent migration policies. But they largely evade the conflictive relationship between modern human rights and the aging Westphalian sovereign right to exclude.^[11]

The next part of my discussion of the open borders debate reviews two non-ideal theories. Violeta Moreno-Lax and Martin Lemberg-Pederson’s EU-law informed irresponsibilisation vis-à-vis distance-creation argument, and Alison Jaggar’s decolonial and interdisciplinary prescriptions for a new migration ethics are outlined.^[12] Relevant features of each stance are discussed in relation to the obligations of Canada and the United States to prospective asylum seekers. In our globalized world of transnational identities, trade agreements, global governance institutions, international corporations, and NGOs, migration ethicists should be suspicious of the normative legitimacy of state authority to control migration. These non-ideal approaches present concepts and framings that can and should be translated into normative guardrails by migration policy reformers.

The final section of this essay acknowledges similarities in both international relations and legal ‘rulification’ practices across global north countries that externalize the processing of asylum seekers. This ‘rulification’ de jure appreciates human rights but in outcomes promotes human rights violations.^[13] I conclude by deriving several pragmatic legal reform themes from the preceding discussion that should be taken under advisement by law and policy makers committed to migration law reforms. A final remark condemns safe third country externalization agreements as morally and legally indefensible.

II BETWEEN GRISE FIORD AND CHOLUTECA

Recent developments in ‘safe third country’ laws in North and Central America either confirm the capacity of bilateral safe third county agreements to undermine human rights, or attempt to rein in that capacity. The land between the northernmost municipality in Canada and southernmost municipality in Honduras, Grise Fiord and Choluteca, encompasses seven states and four bilateral safe third country agreements. Two of those agreements were temporarily suspended in recent years. Both were suspended over safety concerns.

A The Canada-US Agreement: Taking Criteria Seriously

On the one hand, a landmark July 22 2020 Canadian Federal Court ruling held that the Safe Third Country Agreement^[14] between the United States and Canada had become unconstitutional. In part, this was possible because international relations between Canada and the United States respects the principle of equality of states. The ruling temporarily invalidated the agreement for breaching the Canadian Charter of Rights and Freedoms.^[15] Those entering Canada to apply for asylum from the US may suffer deprivation of their fundamental rights to liberty and security of the person if sent back^[16] This concern is the direct result of Trump Administration immigration policies including expanded detention. Although the Canadian government’s application for an appeal against the ruling temporarily suspended the July 2020 decision in October, the future of the US-Canada Safe Third Country Agreement remains uncertain. No matter the outcome, its legitimacy has been strongly rebuked.

In Canada, the designation of ‘safe third country’ requires that specified criteria are met. A safe third country must firstly be a country an individual passing through could have applied for refugee protection by meeting additional criteria.^[17] Canada’s ongoing designation of the US as a safe third country requires the continual review of an additional four factors: the US must ‘remain party to the 1951 Refugee Convention and the 1984 Convention Against Torture; its policies and practices must be adequate with respect to claims under the 1951 Refugee Convention and its obligations under the 1984 Convention Against Torture; its human rights record; and whether it is party to an agreement with the Government of Canada for the purpose of sharing responsibility with respect to claims for refugee protection’.^[18] 2017 saw historic numbers of asylum applications in Canada with a majority of applicants of Haitian nationality, many of whom previously resided in the United States. Results of 2017 Canadian asylum cases included approximately 2/3 of Salvadorian and Honduran, and ¼ of Haitian claimants receiving permission to stay.^[19] Challenges involved in continuing to recognize the United States as a safe third country were already apparent two years before the landmark 2020 decision.

When Canadian Federal Court Judge Ann Marie McDonald temporarily invalidated the US-Canada Safe Third Country Agreement, she reasoned that the agreement violated the Canadian Charter of Rights and Freedoms. Canadian Council for Refugees v. Canada (Immigration, Refugees and Citizenship) suspended the agreement for six months to allow Parliament time to respond to whether the combined effect of provisions of the Immigration and Refugee Protection Act and Immigration and Protection Regulations violate the Canadian Charter of Rights and Freedoms.^[20] Applicants’ Submissions argued, ‘that liberty and security of the person interests are engaged because of the penalization of asylum seekers by US authorities,’ and that US detention, ‘impedes the ability to retain and instruct legal counsel and increases the risk of refoulement’.^[21] This case illustrates how the status of a previously safe third country can rapidly shift to unsafe in a changed political climate. It shows that even safe third country agreements between two rich liberal democracies prioritize the right to exclude over taking responsibility for protecting asylum seekers from non-refoulement and other rights violations.

B The US-Northern Triangle Agreements: An Unprincipled Road

On the other hand, the United States and three Central American states signed their own bilateral safe third country agreements in July and September 2019 under conditions of profound inequality in their international relations. Here, the US-Guatemala Asylum Cooperative Agreement was only suspended in response to the dangers of the Covid-19 pandemic.^[22] Safety considerations the US did not consider relevant are represented by the most recent World Bank data on intentional homicide rates per 100,000. The homicide rate is two per 100,000 for Canada, five for the US, 23 for Guatemala, 29 for Mexico, 39 for Honduras, and 52 for El Salvador.^[23] These figures alert us to a perverse recent history of relativizing the meaning of the term ‘safe’ by rich global north states in administering safe third country agreements. Under the Agreements, the United States can send a Mexican asylum seeker to Guatemala for protection.^[24] The United States and the Northern Triangle agreements are the most recent examples. Some other concerning agreements include those between Italy and Libya, between Hungary and Serbia, and the Australian Pacific Solution. None of these agreements would be possible were the principle of equality of states taken seriously.

The United States signed the 1951 Refugee Convention relating to the Status of Refugees but has yet to ratify it, and ratified the 1967 Protocol relating to the Status of Refugees in 1968. Ratification of the Protocol means the US is committed to following international legal and humanitarian standards in its treatment of refugees. These standards include: strict observance of the principle of non-refoulement; giving refugees legal status including access to employment, education, and social security rights; and not punishing refugees for entering US territory without a visa or passport.^[25] If an individual enters the US without a valid passport or visa and has a ‘well-founded fear of persecution’ were they forced to return to their home country due to their race, membership in a particular social group, political opinion, religion, or national origin, then they fulfill the US definition of ‘refugee’ and can file a claim for asylum.^[26] This definition reflects the United Nations 1951 Convention and 1967 Protocol relating to the Status of Refugees.^[27] The US also ratified the United Nations Convention Against Torture, and thus carries an immovable duty not to return individuals to states where they could face torture or serious harm.

The dynamics of the definition of ‘refugee’ and ‘safe’ third country, and the principle of non-refoulement as treated by the United States under recent administrations, heighten the already tense relations between the concepts of human rights and state sovereignty. The logical absurdity and legal travesties of the 2019 US-Guatemala Asylum Cooperative Agreement, US-Honduras Asylum Cooperative Agreement, and US-El Salvador Asylum Cooperative Agreement all occurred under coercive conditions. The Trump administration froze security aid to all three countries until they signed respective agreements.^[28]

Nowadays, monolithic conceptions of sovereignty are tempered by international law, financialized and globalized capitalism, and the restricted applicability of the principle of non-interference.^[29] The last point is especially sensitive for US-Central American relations. Brutal US-backed military coups against revolutionary and popular movements in El Salvador, Honduras, and Guatemala from the 1960s to early 1980s stand in direct lineage to the causes of current flows of asylum seekers to the US from those countries. During ‘campains of terror’, US-backed military regimes enforced the murder, torture and disappearances of hundreds of thousands of persons.^[30] There is not space here to recite all subsequent US involvement in socially destabilizing military interventions in Northern Triangle states since the so-called dirty wars. But it is worth noting that Honduras became one of the most violent countries on earth after a 2009 military coup deposed democratically elected President Manual Zelaya. The US official position was to refuse to acknowledge the coup as such, in shocking disregard of both the circumstance and advice of the directing policy planner to the Secretary of State.^[31] As will be discussed below, the colonial legacy between Central America and the United States has long undermined monolithic conceptions of sovereignty. Contemporary international legal developments provide opportunities for reform but have yet to offer reliable remedies for victims of human rights violations.

This section provided a schematic and selective snapshot of legal frameworks and international relations involved in safe third country agreements involving the United States. While there is much more to be said about US-Mexico relations and immigration policies, that is beyond the subject of this essay. Instead, this essay aims to identify ways the open borders debate offers normative guidance for policymakers seeking to remedy the role of global inequality in shaping externalization of asylum seekers policies. The example of safe third country agreements between North and Central American states is distinctive for contiguous borders and shared history, and for highlighting the perverse heights the concept of ‘safe third country’ achieves under statist international relations. This stands independently of the happy fact that the new Biden administration suspended those agreements on 6 February 2021.

Lest we assume that the United States was a special case under the leadership of Donald Trump, we can simply rotate our global focus to human rights violations caused by Australian externalization of asylum seekers to Nauru and Manus Island, or of Italy to Libya. These policies alert us to a perverse history of relativizing the meaning of the term ‘safe’ by rich global north states in administering safe third country agreements, with the implication that such agreements are poorly suited to honoring human rights. Below I turn to the theoretical question of whether rich liberal democracies like Canada and the United States are morally obligated to allow immigrants to enter and reside in their territories.

III MIGRATION ETHICS AND SAFE THIRD COUNTRY AGREEMENTS

Conceptions of just migration practices grounded in the right of the state to exclude migrants suffer from the effects of the ‘liberal paradox’. The economic logic of liberalism pulls societies towards further opening to international trade, investment and migration, while the international state system and domestic politics push states towards greater closure.^[32] An example of this paradox in action was the Trump administration’s draconian measures against irregular migration despite irregular migrants’ strong representation as a percentage of hired crop farmworkers in the United States. That percentage remained steady at roughly 50% between 1989 and 2016, demonstrating undeniable US dependency on irregular migrant labor.^[33] The liberal paradox of migration is also the stage upon which the open borders debate has been waged by political theorists since the 1980s.

It would seem that in our globalized world of transnational identities, free trade agreements, global governance institutions, international corporations and NGOs, that migration ethicists should be suspicious of the normative legitimacy of state authority to control migration. This was not the case throughout the first wave of the open borders debate, which continued to prioritize the right to exclude with only one influential exception. Inadequate regard for migration push and pull factors should not be surprising given that first generation migration ethicists derived conclusions from abstract idealizations of values and circumstances. A recent second wave of migration ethics has refocused the open borders debate on non-ideal problems like the democratic illegitimacy of externalization practices, social conditions of global inequality and its colonial past.

A The disutility of classic open borders debate positions

The framing question of the classic open borders debate is whether rich liberal democracies have a moral obligation to admit migrants. This framing indirectly presupposes the primacy of state control over its territorial boundaries, and directly responds to global inequality. The question is grounded in global distributive justice, in no small part inspired by political philosopher John Rawls’s 1971 watershed book, A Theory of Justice. Rawls believed that political theories should be developed first as ideal theory to develop principled foundations for non-ideal theories that address real world problems. Ideal theory means developing principles that build from two idealizing assumptions: all political actors are ‘generally willing to comply with whatever principles are chosen’; and there exists ‘reasonably favorable social conditions wherein private citizens and communities are able to abide by principles of political cooperation’.^[34] At this ideal stage, all actors (including individual citizens and states) are assumed to be law-abiding within social conditions of political freedom, freedom from want, and political stability.^[35] Actors building principles under these assumptions do so from within a ‘veil of ignorance’. They are unaware of ther own and eachothers’ social position and doctrinal viewpoints including religious ones. Beginning from these ideal-theoretic precepts, the argument goes, methodically generates a conception of the ideal principles for responding to the non-ideal problems of the world by defining what the best possible solution in the democratically best possible world would be.^[36] In other words, ideal theory develops theories of justice for perfectly just societies that define ‘normative targets’ to then adjudicate beteween non-ideal theories that respond to our unjust policies and practices.^[37]

Rawls’s project was to use his sequential ideal-to-non-ideal theory approach to account for internal distributive principles for a modern state, within the contractarian assumption that rights and duties are legitimately imposed on actors by their governing institutions only if those institutions provide a fair distribution of benefits and burdens.^[38] His ideal-theoretical findings included the ‘difference principle’, which posits that economic inequality is admissible if lowering it would make the most disadvantaged even worse off.^[39] The difference principle has since been repudiated by the political philosopher Charles Mills precisely because Rawls asks us not to identify the least advantaged in terms of socially and historically constructed characteristics of race, gender, and nationality.^[40] Indeed, the difference principle asserts theoretical utility for designing remedies for distributive injustice in the United States without regard for colonial and antebellum slavory or genocides enacted upon Amerindian peoples.^[41] Inevitably, a theory of justice whose ‘normative starting point’ fails to endow its subjects with either history or identity will also fail to transition from ideal theory to non-ideal problems of compensatory justice.^[42]

The framing question of the classic open borders debate, whether rich liberal democracies have a moral obligation to admit migrants, is a global extension of Rawlsian ideal theory and in particular his difference principle. Communitarians, liberal egalitarians, and liberal nationalists rightly respond directly to global inequality. However, there are few instances in the orginal open borders debate that move from ideal to non-ideal theory. Relatively oblique responses, usually limited only to those who unambiguously meet the international legal definitions of ‘refugee’, are given to the questions of who seeks admission; why they seek admission; and what moral claims they have on us.^[43] By bracketing historical and current injustices in order to proceed with the first step of ideal theory, communitarians, liberal egalitarians and liberal nationalists evade directly applying their ideas to historically grounded worldly conditions. It is not that ideal theory has no place in political philosophy. Its various strands can be helpful for evaluating questions like the nature of benefits and burdens.^[45] But first generation migration ethics may have clung too tightly to the Rawlsian model, thereby limiting the utility of the open borders debate for legal and policy reformers.

Communitarians emphasize political membership and claim states have wide discretion to regulate migration. Ethical priority is given to the political community, who determine national priorities regarding membership.^[46] Political membership is a social good, so preexisting members of the political community develop immigration policies on the basis of their self-understanding as a group.^[47] If that self-understanding reflects liberal democratic values and institutions, then the rights of members to freedom, welfare, and culture must be protected by the state. The implication for immigration polices is that immigration in is regulated, but immigration out is not. That would infringe the liberties of preexisting community members.^[48] For communitarians, an essential moral feature of liberal societies is the sense of shared destiny that extends to outsiders who share in a kinship affinity with insiders.^[49] Consequently, immigration policies ought to prioritize relatives of current citizens and in some circumstances, displaced ethnic nationals.^[50]

In the contemporary US, a communitarian defender of closed borders might be obligated to accept Central American and Mexican asylum seekers. These individuals often have relatives who are US citizens. If we are guided by demographics, then Central American and Mexican asylum seekers might also attract a principle of mutual aid as ‘displaced ethnic nationals’. The obligation to help is sustained so long as it is ‘urgently needed’ and the risks and costs to the US are relatively low.^[51] Yet the recent safe third country agreements between the US and Northern Triangle countries specifically target Central American and Mexican asylum seekers.

Extraterritorialisation of the processing and/or detention of potential refugees in a ‘safe third country’ should not be an admissible policy for communitarians. However, communitarian arguments that hinge on a politically liberal self-understanding are not sustainable in conditions of a democratically elected populist government. Uncertainty about the ‘nature of the community’, including who ought to be counted as ‘displaced ethnic minorities’, in a demographically pluralistic society amounts to an impassable tension between liberal ideals and public opinion. After all, communitarians provide the state a wide discretion to protect its borders. But communitarians will struggle to square the demographic and historic facts about Mexican and Central American asylum seekers’ relationship to the United States with populist political rhetoric that identifies those asylum seekers as ‘enemies’, ‘gang members’, and otherwise derogates them as dangerous Others.^[52] Ultimately, communitarians cannot resolve the migration liberal paradox, nor arrive at a stable conclusion about safe third country agreements. It is a mistake to rely on an artificial construct of a unified demos as it relates to the the state’s right to exclude.

A powerful response to this impasse is the argument that the only immigration policy that genuinely reflects liberal values is open borders.^[53] Liberal egalitarians center the autonomous individual. They maintain that if citizenship rights are morally arbitrary and liberal states ought to consistently apply principles of freedom, moral equality and equal opportunity, then open borders is the only defensible policy choice.^[54] States are prima facie obligated to maintain open borders. If liberal ideals are applied consistently and coherently, freedom of movement including international movement is a basic human right.^[55] Furthermore, liberal egalitarian ideals of moral equality and equal opportunity require rights and opportunities to be distributed on the basis of merit and not on the basis of discriminatory or morally arbitrary features of individuals including place of origin.^[56] A person does not choose to be born in Grise Fiord, Choluteca or Laredo any more than they choose brown eyes or blue eyes. Therefore, rights and social positions should not be distributed on the basis of citizenship status.^[57] Citizenship-based exclusions are thus morally inadmissible from a liberal egalitarian standpoint. They are synonymous with racial discrimination.^[58]

The most obvious rebuttal to arguments for open borders is that opening borders between Canada, the US, Mexico and Central American countries is not politically plausible in the foreseeable future. There is also the concern that open borders are democratically self-defeating. If voters move at will, can they really be considered democratic stakeholders in local political communities?^[59] A third counterargument is that, if individuals’ basic rights and fair opportunities are already provided by their national government then it is not clear there is any moral inconsistency if some other state excludes them.^[60] These rebuttals have each been waged against arguments for open borders by liberal nationalist defenders of closed borders. Meanwhile, the new Biden administration plans to offer expansive financial and institutional support to Central American countries to improve conditions for citizens so that they are not compelled to seek asylum elsewhere.^[61] If conditions improve for potential asylum seekers in their home countries to the extent they are generally able to enjoy the good things in life, and to lead lives void of excessive danger, then arguments for open borders lose their force unless theorized alongside a program for a global cosmopolitanism that obviates the state’s right to exclude. Cosmopolitanism may be the logical end of liberal principles, but for the foreseeable future open borders will remain limited to the domains of political philosophy and members of the European Union, with profoundly limited utility for those fleeing danger and destitution. Ultimately open borders theorists are ambivalent about the state’s righ to exclude. They continue to recognize that right while their position on the right to migrate cuts in a globally cosmopolitan direction.

The leading liberal nationalist position is that the right to international immigration is limited to a distinct category of ‘remedial rights’ of refugees whose human rights cannot be secured at home.^[62] Otherwise, closed border policies are requisite for cultural continuity and political functioning.^[63] People have an interest in controlling the public culture and maintaining it over time. They are willing to pay into a welfare state on the condition its benefits are limited to those they identify with.^[64] If liberal nationalists were forced to assess cultural continuity across the United States today, they would certainly struggle to identify criteria for genuine ‘American’ cultural norms versus ‘foreign’ cultural norms. This is especially true for Hispanic and Latin American traditions, which have been interlaced with US territory since well before federation.

Liberal nationalists simply fail to take seriously the pluralistic and diverse character of liberal democracies like the US and Canada. It is all too easy to imagine a tacitly racist application of the liberal nationalist argument from cultural identity that justifies the US-Guatemala Asylum Cooperative Agreement. This remains plausible despite the fact that liberal nationalists are sympathetic to the rights of refugees. Liberal nationals believe that if the basic interests of an individual such as security of the person is at stake, the state has an obligation to recognize that indivdual’s ‘remedial right’ to claim asylum.^[65] But this singular caveat to an otherwise closed borders policy is no caveat at all. It would still allow ‘prevention elsewhere’ externalization frameworks including safe third country policies.^[66] Remedial rights are inadequate for a just migration regime, and arguments from cultural identity fail to attend to the role of subjectivism in defining particular cultures, which is obviously dangerous where racists or xeonophobes come to power. Liberal nationalists strongly endorse the state’s right to exclude but, somewhat similar to communitarians, bracket out most push and pull factors not to mention important cultural factors to an unworkable extent from the perview of an international rules-based order.

The classic open borders debate overemphasizes the right to exclude by treating it as the privileged assumption for theorizing migration ethics. Combined with strong but conjectural idealizations, and incomplete analyses of the practical consequences of the theories defended, none of the classic positions offers much in the way of resolving the liberal paradox of migration. Reformers will find narrative architecture for the legal status quo, theories that in application could generate humanitarian tragedies, or a cosmopolitan conception that offers only minimal normative guidance for immigration law practitioners eager to see just remedies for their clients.

B The utility of recent non-ideal theories

A humanitarian legal reformer today is likely more interested in bringing national migration laws and bilateral agreements into line with international principles like the equality of states and non-refoulement, rather than idealized conceptions of open and closed border regimes. If the purpose of migration ethics (in contrast to political philosophy) is to develop applied theories, then offering normative guidance for sifting through the glut of social scientific data on migration flows and for policy design is in order. Likewise, careful analysis of the human rights legitimacy of domestic migration laws may be of genuine use in chipping away at the legal validity of policies that are unjust, abusive, or simply in conflict.

Migration ethics should at least shave the edges but at its best aim to topple the migration liberal paradox. It is not that territorial borders as a fundamental quality of states are normatively insignificant. But it is unhelpful to advance the right to exclude as taking priority over a political context dominated by democratic states that play causal roles in both the international flow of persons and related human rights violations. Non-ideal theories are context-dependent and methodically address feasability considerations.^[67] They are less likely to find that non-refoulement and safe third country policies are compatible partly because they respond to data, cases and interview testimony about human rights violations impacts of safe third country policies and practices.

1 Irresponsiblisation and International Legal Standards

In their analysis of the ethical and legal consequences of ‘distance creation’ and ‘border-induced displacement’ integral to externalization practices, Moreno-Lax and Lemberg-Paterson recently argued that liberal nationalist prevention and humanitarian justifications for externalization fail international legal and democratic legitimacy principles on several counts.^[68] Distance creation means distance from resources and procedures for claiming asylum. Border-induced displacement means the displacement caused when a receiver country repels entry.^[69] Severe ethical problems generated by externalization policies include but are not limited to: barring access to asylum procedures; third countries displace their own public interest in favor of receiver countries’ preferences in exchange for access to an externalization political economy; externalization partners (especially private contractors) lack democratic legitimacy; and collaborative regimes between receiver and peripheral states are highly coercive.^[70] It is significant that the authors combine international law and democratic legimacy ethics as their analytic standards for just migration policies. All safe third country agreements mentioned in this essay were initiated by rich liberal democracies, with little if any regard for the democratic legitimacy of partnering nations.

Some EU states have operationalized the Dublin III Regulation to project responsibility outward, thus enabling the EU to claim they have met their humanitarian duties in responding to irregular migration. Moreno-Lax and Lemberg-Paterson characterize this practice as ‘irresponsibilisation’. Irresponsibilisation encompasses both responsibility diffusion and denial despite expressed intentions that migrants sent to third countries should remain party to the benefits of the 1951 Geneva Convention and The European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, particularly the principle of non-refoulement. Their analysis of the ways EU-sponsored debarkation platforms in Libya breached both European and International laws, from the vantage of the responsibilities of Contracting parties, offers a robust explanation of why those breaches occurred by operationalizes the concepts of responsibility diffusion and denial. The authors conclude that ‘rulification’ of irresponsibility does not fulfill international obligations or legitimate the harms safe third country policies cause. Externsalisation also serves a deterrance function and in its worst instances use endangerment of life to deter entry.^[71] Deterrance is a primary function of the US-Northern Triangle cooperative asylum agreeements. Whether in Europe or the Americas, states that employ human suffering as a deterrence mechanism make a mockery of human rights.

Irresponsibilisation as responsibility denial and diffusion has also been observed in recent scholarship on US approaches to migration and asylum claims. David Fitzgerald outlines how the US has established increasingly questionable migration polices, including third country extraterritorialization of asylum seeker detention and processing, that de jure respect international human rights but, in effect, cynically employ the language of human rights laws while promoting national interests at their expense.^[72] Such policy and public relations practices are challenged when we accurately identify the shifting relationships among space, rights, mobile people, and state control is important for reasons of both theory and public policy.^[73] Non-ideal migration ethicists concerned with externalization policies start from the empirically supported insight that safe third country agreements consistently cause human rights violations. The primacy of the theoretical exercise of establishing fitness with, or reading off, ideal principles is overridden by exposition of lived conditions as caused by institutional and structural elements. When non-ideal circumstances are centered, actions to redress human rights violations and fulfill human rights obligations are far more likely to be identified. In turn, theoretical paradoxes including the liberal paradox of migration are likely to show themselves to be not just conceptual problems but institutional inconsistencies.

In the often life or death circumstances of asylum policy, ideal theory is inappropriate. Even at their best, ideal theories as applied to global migration tend to merely reassert existing human rights conventions. At their worst, ideal theories obfuscate desperate circumstances. Safe third country agreements between the US and countries well-established as both dangerous and starved for resources such as El Salvador, Guatemala and Honduras face us with the use of refoulement as prosecution of asylum seekers. In turn, the Canadian case shows that even in economically advantageous conditions that genuinely reflect equality of states, safe third country externalization exploits the right to exclude at the expense of human rights. The Canadian court system was unable to respond quickly enough to changing conditions in the US to protect asylum seekers officials had returned to the US, despite an evolving risk of indefinite detention supposedly under the auspices of protection in US custody. Moreno-Lax and Lemberg-Paterson sum up this state of affairs and what is to be done:

‘The fallacy of coercion-based protection needs to give way to an ethically grounded and legally sustainable rights-honouring paradigm. This is not to contest the legal existence of borders or their enforcement, but to challenge the legitimacy of mechanisms through which they are presently enacted in a manner incompatible with the most basic requirements of international law’.^[74]

Distance creation and border induced displacement cannot be sustained within a rights-honoring paradigm. Therefore, externalization policies should be universally dismantled. The next international convention related to these topics should include a ban on safe third country agreements.

2 Decolonial Migration Ethics

The claim that global inequality is incompatible with liberal universal values is key to open borders arguments, but cuts in other directions as well. Alison Jaggar argues that global inequality is not only incompatible with liberal universal values, but also divides the global community and is rooted in colonialism and neo-colonialism.^[75] That the extent of colonisation by European powers as of 1914 was 84% of the globe is relevant to migration flows today.^[76] Decolonisation theory is rooted in the historical fact that formal independence did not ensure postcolonial states completely decolonised. Many instead entered a long period of neo-colonisation through international debt regimes, resource extraction, and other external forces.^[77] The earliest example of a neo-colonial paradigm began in 1825, when Charles X of France demanded Haiti pay an independence debt after the successful Haitian Revolution. Haiti payed this debt in full by 1947. Subsequent campaigns to be reinbursed by France have been unsuccesful to date.

Debt relations with formal colonisers often violate the principle of equality of states by constraining debtor states from exercising their sovereignty.^[78] Over 100 years after the first US owned banana plantation was established in Honduras, the people of Northern Triangle countries remain subject to the US playing a defining role in their political and economic capacities and self-determination. Indeed, the etymology of the derogation ‘banana republic’ traces back to American fiction author O. Henry’s 1904 Story, ‘The Admiral’, which depicts Honduras at the time as an unstable republic effectively run by United States banana magnates.^[79] In the immediate aftermath of the 2009 coup in Honduras, policy adviser Anne-Marie Slaughter implored Secretary of State Hilary Clinton to ‘take bold action’ and ‘find that (the) coup was a “military coup” under US law’, and that allies were starting to question US commitment to constitutional democracy.^[80] In the aftermath of the coup, the UN observed that at least 16 people were killed by state security forces.^[81] Others claim the actual number is much higher.^[82] In 2009 Hondurans thus suffered both a coup and impacts of the great financial crisis. In 2021, the Biden administration plans to provide funds in partnership with the World Bank, IMF and others towards improved infrastructure, governance, and rule of law for Central American countries. In order to limit the neocolonial potential of these plans, US officials must limit predatory loan conditions and propose alternative frameworks justifying unconditional aid. This would be a modest step towards a genuine appreciation for the principle of equality of states.

However, these measures would not be enough. A problem with uncritically endorsing the neo-Westphalian order of states is that it ‘erases a history of domination’ and neo-colonial present, and thus also ‘obscures aspects of current migration flows that might be morally salient to determining admissions policies’. ^[83] For the purpose of theorizing migration justice, we should model the global order as a ‘historically emergent’ social structure, ‘a complex whole constituted by the relationships among its component parts...susceptible to intentional change’.^[84] This fluid conception of the global order as a social structure can be understood by example. When migrating, some individuals’ identity statuses change. Identity statuses might shift from brown to black, or from majority to minority religion, or from the property-owning middle class to penniless. Idealized conceptions of migrants as ‘abstract bearers of human rights’ often fail to disambiguate gender and religion as morally relevant identifiers.^[85] By prioritizing the ethical question of the state’s right to exclude foreign nationals, Anglo-American philosophers have situated themselves as policy makers within wealthy states facing a problem of uninvited intruders.^[86] By contrast, Jaggar presents a schematic model that conceives of individuals, demographics, and states in ‘non-essentialist, intersectional and dynamic terms’ that recognizes individuals as rights bearers without disavowing their intersectional identities and impacts migration can have on identity including shifting vulnerabilities.

The decolonial approach Jaggar advocates for avoids ontological definitions of the state. It is unhelpful to test policies for compliance with abstract liberal principles, which can inadvertently bracket real human suffering caused by those policies. Instead, ‘concrete injustices articulated by those suffering them’, are centered and ideal principles are bracketed. By mining lived testimony on the impacts of irregular migration, and data on both economic and safety push and pull factors, the claim that national interests of receiving countries ought to take priority breaks down. Jaggar calls on philosophers to adopt an ‘inclusive, historically and empirically informed, relational, and systemic’ approach that starts from studying data. Along this vein, at least one philosopher arrived at the conclusion migration access is an underused form of discharging an obligation a receiver state initiated by their past destructive actions still impacting the population in question.^[87]

It is beyond the scope of this essay to evaluate whether developing a reparations model around migration access, or a global green new deal model as advocated by the United Nations,^[88] is the most just response to global inequality. Enacting either solution requires genuinely honoring a commitment ot global distributive justice, which requires foregrounding what was bracketed out by the first generation of the open borders debate. This foregrounding includes recognizing and responding to economic political histories as well as racialized, religious, gender and cultural identities.^[89] Of political history in Latin America, Jaggar observes: ‘inequality, authoritarian rule, and massive human rights violations that plague many states in Latin America have been facilitated by past United States interventions, and the US often continues to subsidize and train their militaries’.^[90] These are push factors grounded in a history of colonialism and neo-colonialism.^[91] Therefore, philosophers ought to ask the same questions international lawyers and social scientists routinely confront: who benefits and who is burdened by the current global migration ‘regime’, and to take seriously international legal instruments including the 2018 Global Compact on Refugees and Global Compact on Safe, Orderly and Regular Migration.

The democratic legitimacy based irresponsibilisation schema discussed above discharged liberal nationalist arguments while diagnosing the structural organization of safe third country externalization regimes. The non-ideal theoretic decolonial approach outlined here offers a way forward for migration ethicists committed to developing historically, politically and socially responsive theories of global distributive justice. The two non-ideal approaches discussed in this essay coincide at the points of international human rights law and responsiveness to the humanitarian impacts of national migration policies.

IV CONCLUSION

I have argued that the open borders debate, developed by leading political philosophers over the preceding decades, was mistaken in failing to reject the right to exclude as its leading assumption. Throughout, a case was made to qualify my claim that migration ethics demands the dismantling of third safe country externalization laws and policies. Across the nations of the global north today, there exists striking similarities in both international relations and legal justifications vis-avis ‘rulification’ and ‘irresponsibilisation’ for externalizing the processing and detention of asylum seekers.^[92] Rulification and irresponsibilisation through externalization policies de jure appreciate human rights while in outcomes promote human rights violations.^[93]

It is a mistake to assume that the existence of a neo-Westphalian system of states and interstate relations is sufficient to justify conceptualising states as moral agents. This ignores a history of domination and obscures features and patterns of current migration flows that are normatively significant for designing admission policies.^[94] Safe third country agreements must therefore be understood as part of neo-colonial international relations. These agreements intentionally deter those seeking protection of their human rights, and coerce impoverished states into facilitating externalization regimes. Even where the principle of equality of states is honored, as between Canada and the US, asylum seekers are victimized as it is virtually impossible for the deporting state to efficiently moniter rights violations of detaining states.

The right to exclude not only fails to capture neo-colonial causes of migration. It also undermines the international legal principles of equality of states and non-refoulement. This is painfully true for Central American countries that were party to 2019 US Asylum Cooperative Agreements, and tragically true for asylum seekers recently deported by US agencies. Methodically identifying vulnerable classes of persons who may have been rendered invisible by lack of attention to shifting, intersectional identity statuses can help guide law and policy-makers to advocate for expanded lists of qualities that attract refugee status. This would be progress but is not enough to alleviate the wrongs of safe third country regimes.

A decolonial approach to reforming externalization policies would support the conclusion that safe third country practices should be banned. By centering the positions of those fleeing their homes rather than the comfortable top-down position of global north philosopher-policymakers, individual and class of persons rights recognition and preservation takes priority over states’ rights. Such an agenda would be implausible under communitarian and liberal nationalist theories of migration. Those positions build their arguments for the right to exclude upon artificial, idealized claims about the general will and identity of the domestic polis. Upon displacing the privileged position of the state’s right to exclude, there is simply no other justificatory theory available to defend externalization regimes. Safe third country agreements are indefensible.

V BIBLIOGRAPHY

A Articles/Books/Reports

American Immigration Council, ‘Factsheet: An Overview of US Refugee Law and Policy’ (Web Page, 27 November 2020) <https://www.americanimmigrationcouncil.org/research/overview-us-refugee-law-and-policy>

Joseph Carens, The Ethics of Immigration (Oxford University Press, 2013)

David Scott FitzGerald, Refuge Beyond Reach: How Rich Democracies Repel Asylum Seekers (New York: Oxford University Press, 2019)

David Scott FitzGerald, ‘Remote control of migration: theorising territoriality, shared coercion, and deterrence’, (2020) 46(1) Journal of Ethnic and Migration Studies 4

Nancy Fraser, ‘Who Counts? Dilemmas of Justice in a Postwestphalian World’ (2010) 41(1) Antipode 281

Jonny Hall, ‘In search of enemies: Donald Trump’s populist foreign policy rhetoric’ Politics (2020) ISSN 0263-3957

Asher Lazarus Hirsch, ‘The Borders Beyond the Border: Australia’s Extraterritorial Migration Controls’ (2017) 36 Refugee Survey Quarterly 48

James F. Hollifield ‘The Emerging Migration State’ (2004) 38(3) MR 886

Human Rights Watch, ‘Honduras: Events of 2018’ (Web Page, 26 November 2020) < https://www.hrw.org/world-report/2019/country-chapters/honduras#>

Alison Jaggar, ‘Decolonizing Anglo-American Political Philosophy: The Case of Migration Justice’ (2020) 94(1) The Aristotelian Society Supplementary Volume 81

Andrew and Renata Kaldor Center for International Refugee Law, ‘The 1967 Protocol’ (Web Page, 28 November 2020) <https://www.kaldorcentre.unsw.edu.au/publication/1967-protocol>

Iris Lang, ‘Human Rights and Legitimacy in the Implementation of EU Asylum and Migration Law’ In S. Voeneky & G. Neuman (Eds.), Human Rights, Democracy, and Legitimacy in a World of (Cambridge University Press, 2009)

Ruth Lapidoth, ‘Sovereignty in Transition’ (1992) 45(2) Journal of International Affairs, 332-334

Malcolm D. MacLean, ‘O. Henry in Honduras’ American Literary Realism, 1870–1910. (1968) 1(3) 36

Patrice J McSherry and Raúl Molina Mejía, ‘Introduction to "Shadows of State Terrorism: Impunity in Latin America"’ (1999) 26 4(78) Social Justice 2

David Miller, ‘Immigration: The Case for Limits’ in A. Cohen and C. Wellman Ed, Contemporary Debates in Applied Ethics Second Ed (John Wiley & Sons, 2005) 363

Charles W. Mills, ‘Decolonizing Western Political Philosophy’ (2015) 37(1) New Political Science 1-24

Charles W. Mills, ‘Rawls on Race/Race in Rawls’ (2009) XLVII The Southern Journal of Philosophy 161-184

Violeta Moreno-Lax and Martin Lemberg-Pederson, ‘Border-induced displacement: The ethical and legal implications of distance-creation through externalization’ (2019) 56 QIL: Zoom-in 5

Violeta Moreno-Lax, ‘The Legality of the “Safe Third Country” Notion Contested: Insights from the Law of Treaties’, in G.S. Goodwin-Gill and P. Weckel Ed, Migration & Refugee Protection in the 21st Century: Legal Aspects - The Hague Academy of International Law Centre for Research (Martinus Nijhoff, 2015) 665

Thomas Pogge, ‘Migration and Poverty’ In: Bader V. (eds) Citizenship and Exclusion (Palgrave Macmillan, London, 1997)

John Rawls, A Theory of Justice (Harvard University Press, 1971, 1999)

Dani Rodrik and Arvind Subramanian, "Why Did Financial Globalization Disappoint?’ (2009) 56(1) IMF Staff Papers 112

United States Department of Agriculture, ‘Farm Labor’ (Web Page, 29 November 2020)

<https://www.ers.usda.gov/topics/farm-economy/farm-labor/#legalstatus>

US Department of Homeland Security, ‘DHS Announces Guatemala, El Salvador, and Honduras Have Signed Asylum Cooperation Agreement’ (Web Page, 14 Jan /2021) <https://www.dhs.gov/news/2020/12/29/dhs-announces-guatemala-el-salvador-and-honduras-have-signed-asylum-cooperation>

Laura Valentini, ‘Ideal vs. Non-ideal Theory: A Conceptual Map’ (2012) 7(9) Philosophy Compass 654

Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality (New York: Basic Books, 1984)

Christopher Heath Wellman, ‘Immigration’, Stanford Encyclopedia of Philosophy (Web Page, 27 November 2020) < https://plato.stanford.edu/entries/immigration/>

Lief Wenar, ‘John Rawls’, Stanford Encyclopedia of Philosophy (Web Page, 15 January 2021) <https://plato.stanford.edu/entries/immigration/>

Shelley Wilcox, ‘Open Borders Debate on Immigration’ (2009) 4(5) Philosophy Compass 813

Wilcox, Shelley, ‘Immigrant Admissions and Global Relations of Harm’ (2007) 38(2), Journal of Social Philosophy 274

World Bank, ‘International homicides (per 100,000 people)’, data.worldbank.org (Web Page, 29 November 2002) <https://data.worldbank.org/indicator/VC.IHR.PSRC.P5>

C Case Law

Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018)

The Canadian Council for Refugees v. Minister for Immigraiton and Minister for Public Safety [2020] FC 770

D Legislation

1 Canada

Canada Act 1982 (UK) c 11 sch B pt I (‘Canadian Charter of Rights and Freedoms’)

Immigration and Refugee Protection Act, SC 2001, c 27

Immigration and Refugee Protection Regulations, SOR/2002-227

2 United States

Immigration and Nationality Act, Pub. L. No. 82-414, § 101, 66 Stat. 163, 167 (1952) (codified as amended at 8 USC. § 1101)

Refugee Act of 1980, PL 96-212, 94 Stat. 102

E Conventions/Agreements

1 Regional

Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953), as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5

Convention Determining the State Responsible for Examining Applications for Asylum lodged in one of the Member States of the European Communities ("Dublin Convention"), 15 June 1990, Official Journal C 254, 19/08/1997 p. 0001 – 001

Agreement between the Government of Canada and the Government of the United States of America for cooperation in the examination of refugee status claims from nationals of third countries (Canada-US Safe Third Country Agreement), United States-Canada, December 5, 2002, CTS 2004/2

US-Guatemala Asylum Cooperative Agreement (2019)

US-Honduras Asylum Cooperative Agreement (2019)

US-El Salvador Asylum Cooperative Agreement (2019)

2 International

Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954)

Convention against Torture and Other Cruel, Inhumane or Degreading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)

UN General Assembly, Protocol Relating to the Status of Refugees, 31 January 1967, United Nations, Treaty Series, vol. 606, p. 267

International Committee of the Red Cross (ICRC), Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 12 August 1949, 75 UNTS 287

Global Compact on Refugees, UN Doc. A/73/12 (2018)

Global Compact for Safe, Orderly and Regular Migration, UN Doc. A/RES/73/195 (Dec. 19, 2018)

F Journalism/Press Releases/Other

Blumenthal.senate.goc ‘Congressional Democrats Demand Trump Administration Reverse Its Barrage of Policies Targeting Asylum Seekers’ (Web Page, 14 Jan 2021) <https://www.blumenthal.senate.gov/newsroom/press/release/congressional-democrats-demand-trump-administration-reverse-its-barrage-of-policies-targeting-asylum-seekers>

Philip Connor and Jens Manual Krogstad, ‘Asylum claims in Canada reached highest level in decades in 2017’, Pew Research Center (Web Page, April 16 2018) <https://www.pewresearch.org/fact-tank/2018/04/16/asylum-claims-in-canada-reached-highest-level-in-decades-in-2017/>

Juan Gonzales, ‘Gonzales: Hillary Clinton’s policy was a Latin American Crime Story’, New York Daily News, (Web Page, 12 April 2016) <https://www.nydailynews.com/news/national/gonzalez-clinton-policy-latin-american-crime-story-article-1.2598456>

joebiden.com, ‘The Biden Plan to Build Security and Prosperity in Partnership with the People of Central America’ (Web Page, 16 Jan 2021) <https://joebiden.com/centralamerica/>

joebiden.com, ‘Biden-Sanders Unity Taskforce Recommendations’ (Web Page, 14 Jan 202) <https://joebiden.com/wp-content/uploads/2020/08/UNITY-TASK-FORCE-RECOMMENDATIONS.pdf>

Nick Miroff, ‘President Trump says he will unfreeze security aid to Central American countries’, The Washington Post (Web Page, 17 October 2019) <https://www.washingtonpost.com/immigration/president-trump-says-he-will-unfreeze-security-aid-to-central-american-countries/2019/10/16/69438a94-ef7c-11e9-b648-76bcf86eb67e_story.html>

Camilo Montoya-Galvez, ‘Guatemala suspends deportation flights, pausing Trump asylum deal over coronavirus’, CBS News (Web Page, 27 March 2020) <https://www.cbsnews.com/news/guatemala-coronavirus-suspends-deportation-flights-trump-asylum-deal/>

Mica Rosenberg, ‘US implements plan to send Mexican asylum seekers to Guatemala’, Reuters.com (Web Page, 16 January 2021) < https://www.reuters.com/article/us-usa-immigration/u-s-implements-plan-to-send-mexican-asylum-seekers-to-guatemala-idUSKBN1Z51S4>

UNCTAD, ‘Press Release: UN calls for bold action to finance a global green new deal and meet the SDGS’ (Web Page, 16 Jan 2021) < https://unctad.org/press-material/un-calls-bold-action-finance-global-green-new-deal-and-meet-sdgs>

---

^[1] Violeta Moreno-Lax, ‘The Legality of the “Safe Third Country” Notion Contested: Insights from the Law of Treaties’, in G.S. Goodwin-Gill and P. Weckel Ed, Migration & Refugee Protection in the 21st Century: Legal Aspects - The Hague Academy of International Law Centre for Research (Martinus Nijhoff, 2015) 665.

^[2] Ibid. See also: Asher Lazarus Hirsch, ‘The Borders Beyond the Border: Australia’s Extraterritorial Migration Controls’ (2017) 36 Refugee Survey Quarterly 48; Iris Lang, ‘Human Rights and Legitimacy in the Implementation of EU Asylum and Migration Law’ In S. Voeneky & G. Neuman (Eds.), Human Rights, Democracy, and Legitimacy in a World of (Cambridge University Press, 2009) 234-262.

^[3] Violeta Moreno-Lax and Martin Lemberg-Pederson, ‘Border-induced displacement: The ethical and legal implications of distance-creation through externalization’ (2019) 56 QIL: Zoom-in 5.

^[4] Shelley Wilcox, ‘Open Borders Debate on Immigration’ (2009) 4(5) Philosophy Compass 813.

^[5] The argument against the right to exclude that I deploy throughout this essay follows recent work by the philosopher Alison Jaggar. An extended discussion of Jaggar’s proposal for decolonial migration ethics is presented in the final subsection of Section 3 of this essay. See: Alison Jaggar, ‘Decolonizing Anglo-American Political Philosophy: The Case of Migration Justice’ (2020) 94(1) The Aristotelian Society Supplementary Volume 81.

^[6] Mexico rejected a US request for a safe third country agreement.

^[7] US Department of Homeland Security, ‘DHS Announces Guatemala, El Salvador, and Honduras Have Signed Asylum Cooperation Agreement’ (Web Page, 14 Jan /2021) <https://www.dhs.gov/news/2020/12/29/dhs-announces-guatemala-el-salvador-and-honduras-have-signed-asylum-cooperation>.

^[8] joebiden.com, ‘Biden-Sanders Unity Taskforce Recommendations’ (Web Page 14 Jan 202) <https://joebiden.com/wp-content/uploads/2020/08/UNITY-TASK-FORCE-RECOMMENDATIONS.pdf>; Blumenthal.senate.goc ‘Congressional Democrats Demand Trump Administration Reverse Its Barrage of Policies Targeting Asylum Seekers’ (Web Page, 14 Jan 2021) <https://www.blumenthal.senate.gov/newsroom/press/release/congressional-democrats-demand-trump-administration-reverse-its-barrage-of-policies-targeting-asylum-seekers>.

^[9] The Canadian Council for Refugees v. Minister for Immigraiton and Minister for Public Safety [2020] FC 770.

^[10] Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality (New York: Basic Books, 1984); David Miller, ‘Immigration: The Case for Limits’ in A. Cohen and C. Wellman Ed, Contemporary Debates in Applied Ethics Second Ed (John Wiley & Sons, 2005) 363; Joseph Carens, The Ethics of Immigration (Oxford University Press, 2013).

^[11] Nancy Fraser observes that many activists already identify the subjects of justice in ‘post-westphalian’ terms in light of our post-westphalian political-economic, environmental and to some extent legal condition. See: Nancy Fraser, ‘Who Counts? Dilemmas of Justice in a Postwestphalian World’ (2010) 41(1) Antipode 281-297.

^[12] Violeta Moreno-Lax and Martin Lemberg-Pederson, above n 3; Alison Jaggar, above n 5.

^[13] Ibid.

^[14] Agreement between the Government of Canada and the Government of the United States of America for cooperation in the examination of refugee status claims from nationals of third countries (Canada-US Safe Third Country Agreement), United States-Canada, December 5, 2002, CTS 2004/2.

^[15] [2020] FC 770 above n 9.

^[16] Ibid.

^[17] Immigration and Refugee Protection Act, SC 2001, c 27 s 102(2).

^[18] Canada-US Safe Third Country Agreement above n 14.

^[19] Philip Connor and Jens Manual Krogstad, ‘Asylum claims in Canada reached highest level in decades in 2017’, Pew Research Center (Web Page, April 16 2018) <https://www.pewresearch.org/fact-tank/2018/04/16/asylum-claims-in-canada-reached-highest-level-in-decades-in-2017/>.

^[20] [2020] FC 770 above n 9: 164.

^[21] Ibid: 82-83.

^[22] Camilo Montoya-Galvez, ‘Guatemala suspends deportation flights, pausing Trump asylum deal over coronavirus’ (Web Page, 27 March 2020) <https://www.cbsnews.com/news/guatemala-coronavirus-suspends-deportation-flights-trump-asylum-deal/>.

^[23] World Bank, ‘International homicides (per 100,000 people)’, data.worldbank.org (Web Page, 29 November 2002) <https://data.worldbank.org/indicator/VC.IHR.PSRC.P5>.

^[24] Mica Rosenberg, ‘US implements plan to send Mexican asylum seekers to Guatemala’, Reuters.com (Web Page, 16 January 2021) < https://www.reuters.com/article/us-usa-immigration/u-s-implements-plan-to-send-mexican-asylum-seekers-to-guatemala-idUSKBN1Z51S4>.

^[25] Andrew and Renata Kaldor Center for International Refugee Law, ‘The 1967 Protocol’ (Web Page, 28 November 2020) <https://www.kaldorcentre.unsw.edu.au/publication/1967-protocol>.

^[26] Immigration and Nationality Act, Pub. L. No. 82-414, § 101, 66 Stat. 163, 167 (1952) (codified as amended at 8 USC. § 1101) s 101(a)(42).

^[27] American Immigration Council, ‘Factsheet: An Overview of US Refugee Law and Policy’ (Web Page, 27 November 2020) <https://www.americanimmigrationcouncil.org/research/overview-us-refugee-law-and-policy>.

^[28] Nick Miroff, ‘President Trump says he will unfreeze security aid to Central American countries’, The Washington Post (Web Page, 17 October 2019) <https://www.washingtonpost.com/immigration/president-trump-says-he-will-unfreeze-security-aid-to-central-american-countries/2019/10/16/69438a94-ef7c-11e9-b648-76bcf86eb67e_story.html>.

^[29] See: Ruth Lapidoth, ‘Sovereignty in Transition’ (1992) 45(2) Journal of International Affairs, 332-334; Dani Rodrik and Arvind Subramanian, "Why Did Financial Globalization Disappoint?’ (2009) 56(1) IMF Staff Papers 112-138.

^[30] Patrice J McSherry and Raúl Molina Mejía, ‘Introduction to "Shadows of State Terrorism: Impunity in Latin America"’ (1999) 26 4(78) Social Justice 4-5.

^[31] Anne-Marie Slaughter was the US Secretary of State’s director of policy planning at the time. See: Juan Gonzales, ‘Gonzales: Hillary Clinton’s policy was a Latin American Crime Story’, New York Daily News, (Web Page, 12 April 2016) <https://www.nydailynews.com/news/national/gonzalez-clinton-policy-latin-american-crime-story-article-1.2598456>.

^[32] James F. Hollifield ‘The Emerging Migration State’ (2004) 38(3) MR 886-87.

^[33] United States Department of Agriculture, ‘Farm Labor’ (Web Page, 29 November 2020)

<https://www.ers.usda.gov/topics/farm-economy/farm-labor/#legalstatus>.

^[34] Lief Wenar, ‘John Rawls’, Stanford Encyclopedia of Philosophy (Web Page, 15 January 2021) <https://plato.stanford.edu/entries/immigration/>.

^[35] Ibid.

^[36] Ibid.

^[37] Charles W. Mills, ‘Decolonizing Western Political Philosophy’ (2015) 37(1) New Political Science 20.

^[38] John Rawls, A Theory of Justice (Harvard University Press, 1971, 1999) pp 10, 47.

^[39] Ibid 68.

^[40] Charles W. Mills, ‘Rawls on Race/Race in Rawls (2009) XLVII The Southern Journal of Philosophy 167.

^[41] Mills, above n 40.

^[42] Mills, above n 37.

^[43] For a non-ideal application of these questions see: Thomas Pogge, ‘Migration and Poverty’ In: Bader V. (eds) Citizenship and Exclusion (Palgrave Macmillan, London, 1997) p 12.

⁴⁴ Wilcox, above n 4.

^[45] See Laura Valentini, ‘Ideal vs. Non-ideal Theory: A Conceptual Map’ (2012) 7(9) Philosophy Compass 654-664.

^[46] Wilcox above n 4.

^[47] Ibid 2.

^[48] Ibid.

^[49] Ibid.

^[50] Ibid.

^[51] Ibid 3.

^[52] Jonny Hall, ‘In search of enemies: Donald Trump’s populist foreign policy rhetoric’ Politics (2020) ISSN 0263-3957.

^[53] Joseph Carens, The Ethics of Immigration (Oxford University Press, 2013).

^[54] Wilcox, above n 4.

^[55] Ibid 3.

^[56] Ibid 4.

^[57] Ibid.

^[58] Ibid.

^[59] Christopher Heath Wellman, ‘Immigration’, Stanford Encyclopedia of Philosophy (Web Page, 27 November 2020) <https://plato.stanford.edu/entries/immigration/>.

^[60] Ibid.

^[61] joebiden.com, ‘The Biden Plan to Build Security and Prosperity in Partnership with the People of Central America’ (Web Page, 16 Jan 2021) <https://joebiden.com/centralamerica/>.

^[62] Wilcox, above n 4.

^[63] Wellman, above n 58.

^[64] Ibid.

^[65] Miller, above n 6.

^[66] Violeta Moreno-Lax and Martin Lemberg-Pederson, above n 3.

^[67] Valentini above n 44.

^[68] Violeta Moreno-Lax and Martin Lemberg-Pederson, above n 3.

^[69] Ibid.

^[70] Ibid 13.

^[71] Ibid 33.

^[72] David Scott FitzGerald, Refuge Beyond Reach: How Rich Democracies Repel Asylum Seekers (New York: Oxford University Press, 2019).

^[73] David Scott FitzGerald, ‘Remote control of migration: theorising territoriality, shared coercion, and deterrence’, (2020) 46(1) Journal of Ethnic and Migration Studies 4-22.

^[74] Violeta Moreno-Lax and Martin Lemberg-Pederson, above n 3, 33.

^[75] Jaggar above n 5.

^[76] Ibid 88.

^[77] Ibid 89.

^[78] Ibid.

^[79] Malcolm D. MacLean, ‘O. Henry in Honduras’ American Literary Realism, 1870–1910. (1968) 1(3) 36–46.

^[80] Gonzales above at 31.

^[81] Human Rights Watch, ‘Honduras: Events of 2018’ (Web Page, 26 November 2020) < https://www.hrw.org/world-report/2019/country-chapters/honduras#>.

^[82] Gonzales above at 31.

^[83] Jaggar above n 5.

^[84] Ibid 99.

^[85] Ibid 94-95.

^[86] Ibid 106.

^[87] Wilcox, Shelley, ‘Immigrant Admissions and Global Relations of Harm’ (2007) 38(2), Journal of Social Philosophy 274.

^[88] UNCTAD, ‘Press Release: UN calls for bold action to finance a global green new deal and meet the SDGS’ (Web Page, 16 Jan 2021) < https://unctad.org/press-material/un-calls-bold-action-finance-global-green-new-deal-and-meet-sdgs>.

^[89] Jaggar above n 5, 96.

^[90] Ibid 97.

^[91] Ibid 98.

^[92] See Fitzgerald above n 71.

^[93] Violeta Moreno-Lax and Martin Lemberg-Pederson above n 3.

^[94] Jaggar above n 5, 88-89.