The horrors of the immediate post-Second World War years, when the Soviet army consolidated the territorial gains it had made in Eastern and Central Europe during its march on Berlin, are understandably overshadowed by scale of the slaughter on the Eastern Front that preceded it — but they are of particular relevance to our current debate over irregular border crossings from the United States into Canada.

In the years following the Allied victory, seven and a half million Germans fled or were driven out of the newly-redrawn borders of Poland. Three million more were deported from the still-democratic Czechoslovakia. In all, more than twenty-million Germans, Poles, Ukrainians and others were forcibly removed by the Soviets and their collaborators. More than one million died and many more were raped, tortured and starved.

By the end of the 1940s, at least a million displaced people were still living in the heart of Europe with no prospect of ever returning to their pre-1939 homes.

This chaos was the backdrop for the negotiation and adoption of the 1951 Convention on the Status of Refugees, and it explains why that treaty was originally limited to persons unable to return to their countries of nationality “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion” as a result of “events occurring in Europe before 1 January 1951.” It wasn’t until the 1967 Protocol to the 1951 Convention that these temporal and geographic limitations were lifted and the treaty that still governs international refugee law achieved global reach.

It is important to keep this history in mind as we decide not just what to do about the recent surge in border crossings to Canada by putative asylum seekers, but how we think about their plight.

News stories of families found wandering in farmers’ fields or men knocking on small-town doors in the middle of the night have provoked confused responses from Canadians. On the one hand, no one likes the thought of migrants freezing in Manitoba snowbanks; on the other hand, most people instinctively recognize that these trips are not only unnecessary but, because they are unnecessary, somehow improper. They are right — and the flaccid federal response shows us how far Canada has departed from both the letter and spirit of international refugee law.

One of the most contentious debates during the drafting of the 1951 Convention was between the United Kingdom and France over the scope of what would become Article 31, the provision that deals with the circumvention of national borders. Recognizing that “[a] refugee whose departure from his country of origin is usually a flight, is rarely in a position to comply with the requirements for legal entry … into the country of refuge,” Article 31 exempts persons who enter a country seeking refuge in violation of that country’s laws from the normal consequences of their illegal entry and presence.

Worried about large numbers of refugees in the countries bordering France, the French delegate to the drafting convention sought assurances that if those refugees crossed the border from a country where their lives were not in danger, France would be able to return them to the frontier. According to one account of the deliberations, the French delegate observed that, “[t]o admit that a refugee who had settled temporarily in a reception country was free to enter another, would be to grant him a right of immigration which might be exercised for reasons of mere personal convenience.”

The British delegate, perhaps reflecting the more sanguine perspective of an island nation, argued that the language of the first draft of Article 31, which required a person crossing a border illegally to “show good cause” for his illegal entry, implicitly satisfied the French concern. In the end, the French insistence on clarity prevailed, and the final version of Article 31 expressly limits its application to persons “coming directly from a territory where their life or freedom [is] threatened in the sense of Article 1.”

A little over fifty years later, Canada and the United States gave this understanding legal effect with the Safe Third Country Agreement (STCA). Ironically, for those now calling on Canada to suspend that agreement, the STCA was prompted by a similar wave of asylum seekers from the United States in the wake of the 9/11 attacks.

At the time, many Muslims living illegally (and some legally) in the United States feared that the Bush administration would respond to the attacks in New York and Washington by rounding them up and returning them to their home countries. While there was a brief increase in the detention and questioning of persons meeting the profile of the 9/11 attackers, the round-ups and removals never materialized. Nevertheless, the anticipation was enough to drive the number of asylum claims made in Canada to more than 40,000 in a single year. With a processing capacity of only about 25,000, the Canadian asylum system was overwhelmed.

Alarmist interpretations of President Donald Trump’s Twitter feed notwithstanding, the United States remains a free country with an independent federal judiciary. Moreover, the judiciary that struck down the first Trump travel order is the same judiciary that hears asylum claims. Alarmist interpretations of President Donald Trump’s Twitter feed notwithstanding, the United States remains a free country with an independent federal judiciary. Moreover, the judiciary that struck down the first Trump travel order is the same judiciary that hears asylum claims.

At the same time, to pre-empt American talk of increasing security at the Canada-U.S. border, Prime Minister Jean Chrétien dispatched then-Deputy Prime Minister John Manley to Washington to ensure that the legal flow of goods and people between the two countries was not interrupted. In the resulting agreement — the Canada-U.S. Smart Border Declaration of 2002 — Canada sought and received a reprieve from the northward asylum flow in the form of the STCA. When then-Immigration Minister Denis Coderre signed the agreement in December of that year, he predicted that it would allow Canada to turn back 15,000 people a year to the United States.

The STCA is based on the principle that people fleeing persecution should seek protection in the first safe country in which they come to rest, and not engage in forum-shopping among foreign countries. Echoing the observation of the French delegate back in 1951, Manley explained that “it’s not a matter of shopping for the country that you want; it’s a matter of escaping the oppression that you face.” Requiring asylum seekers to make their claims where they first land would mean that Canada could focus on “the real problem that exists in the world, of giving shelter to some of those who seek, because of political or other forms of oppression, to come to a safe country,” as opposed to expending resources on people who have already found themselves in the relative safety of the United States and who should avail themselves of the asylum system there.

The logic of 1951 and 2002 still applies today. Alarmist interpretations of President Donald Trump’s Twitter feed notwithstanding, the United States remains a free country with an independent federal judiciary that enforces the provisions of the 1951 Convention. President Trump’s executive orders have not changed that. His orders concern travellers to the United States from specified conflict zones; they do not alter or affect the processing of refugee claims by people already in the country.

Moreover, the judiciary that struck down the first Trump travel order is the same judiciary that hears asylum claims. When I was a clerk for a judge on the Ninth Circuit Court of Appeals — the same court that upheld the injunction against Trump’s first executive order on immigration — about forty per cent of the cases we heard were by failed refugee claimants challenging deportation. They were all given full and careful consideration before being accepted or rejected on their merits, as they would be in Canada.

That Canada may have more generous social benefits or may be (or may be perceived to be) a softer touch when it comes to accepting asylum claims (a perennial Canadian problem) does not legally justify skipping through the United States to make a claim in Canada. The 1951 Convention does not contemplate migrants testing the weakest link in the international refugee protection system and exploiting it; it was and remains concerned with providing sanctuary — temporary or permanent, as required — for people whose lives are truly in danger and who have no choice but to continue fleeing until they come to rest in a country that abides by the terms of the treaty.

Despite the clear intent of the 1951 Convention, I don’t entirely blame the Trudeau government for failing to act more decisively. During half a century of relative immunity from irregular migration flows, the Canadian refugee system — an assemblage of players including the lobbyists at the Canadian Council of Refugees, the lawyers of the refugee bar, a national network of settlement organizations, congeries of anarchical activists and agitators, policy advisors at the Departments of Public Safety and Immigration, and the federal judiciary — has moved so far from the underlying principles of the 1951 Convention that common sense solutions like escorting border crossers back to the United States (as that scrupulous French delegate sought assurances France would be able to do) are now considered impossible, if they are even considered at all. The clear text of Article 31 has become a legal palimpsest, hardly visible under decades of bureaucratic overwriting and judicial overreaching.

But even with one hand tied by the courts and the other by the public service, a government still has a voice. Here, Trudeau can be fairly blamed, because he has chosen to use his voice to encourage unnecessary and irregular migration. It is hard to believe it’s a coincidence that, as the Canadian Press reported last week, asylum claims in Canada began increasing not with the election of Donald Trump but with the election of Trudeau’s Liberal government a year earlier. And after his January 28, 2017 tweet, with its hashtag “#WelcomeToCanada” — which was widely interpreted as offering sanctuary to anyone who could make it to Canada — who could blame potential migrants from taking him at his word? If the hundreds of border crossers who have braved the Canadian winter (“Just the worst time of the year for a journey … The ways deep and the weather sharp”) swell into tens of thousands when the snow melts, Trudeau’s indulgent and unnecessary tweet will be his Merkel moment.

Migrant flows are sensitive to signals, and especially signals backstopped by action. People don’t travel halfway around the world, or decide to leave the safety of the United States, on a whim. They research, they listen to those who have make the journey before. Sometimes they pay organized smugglers. Always they weigh the costs and benefits of different routes and destinations. Countries perceived as offering generous benefits or having lax refugee laws are particularly vulnerable to forum-shopping migrants. There is a reason North Africans and Afghans arrive in Greece and ask for directions to Germany, and it is the same reason that — again, according to the Canadian Press — people are now landing in the United States with visas issued by the U.S. embassy in Saudi Arabia and hiring taxis to take them to the Quebec border.

Refugee protection is not about providing a better home or more opportunity: It is about providing sanctuary for people literally fleeing for their lives who have nowhere else to go. Asylum is an emergency provision, a last resort for people with no other options. Refugee protection is not about providing a better home or more opportunity: It is about providing sanctuary for people literally fleeing for their lives who have nowhere else to go. Asylum is an emergency provision, a last resort for people with no other options.

Suspending the STCA, as the NDP and the “No One Is Illegal” mob are urging, would be laying out a welcome mat for the very stampede to the border that the STCA was meant to prevent. To his credit, new Immigration Minister Ahmed Hussen has not fallen for their melodramatic rhetoric. (Not yet, at least.) But if he wants to send a real signal to would-be border crossers, Trudeau needs to go still further and publicly declare his intention to negotiate an expansion of the STCA to cover those crossing the border illegally.

That message should be reinforced by enforcing a Harper-era anti-human smuggling law that allows the government to detain migrants until their refugee claims can be finally heard when there is evidence that they entered Canada irregularly using the services of a paid third party.

The government also should publicize every rejected asylum claim, ensuring that the news is fed into the informal communications channels that migrants use in the United States and abroad. Possibly the best money Immigration Canada ever spent was $3,000 to erect billboards in eastern Hungary in 2012, telling would-be asylum seekers that Canada’s new refugee laws meant failed claimants would be returned home quickly, and to publicize the returns of those whose claims were rejected. Within a year, what had been the highest per capita flow of asylum claims from any single country to Canada had stopped.

Signs, like signals, apparently make a difference. Stories beamed around the world and shared on social media of border crossers being arrested, of rejected claims, and of swift removals from Canada back to their countries of origin (not just to the United States) would go some way to countering those photos of the RCMP helping migrants with their luggage, as though our national police force had been reduced to complaisant border bellhops.

If the prime minister needs encouragement in standing up to the media-savvy refugee lobby, he should look to John Manley. In a recent interview with the CBC’s Rosemary Barton, the Liberal architect of the STCA cut through the syrupy sentiment of the hour and pointed out that “[t]he world is literally swimming in refugees [and] we figure we can take in and manage about 40,000 a year. Do we really need to take people from the United States?

“People have misgivings about Donald Trump,” he conceded, “OK, but it’s still the United States. It’s not Homs, Syria or Mosul in Iraq. To me, if you said you were a refugee today, where would you like to be, in Iraq or Syracuse? I’m picking Syracuse.”

These are brave and coolly rational words in the face of the emotional effluence of the open-borders crowd.

Manley is right that Syracuse is not Homs. Returning to the first principles of the 1951 Refugee Convention, he could have added that Minneapolis in 2017 is not Minsk in 1946, and Plattsburgh is not Poznan. When considering the case of a Somali family with legal status in one of the world’s safest countries or an illegal Ghanaian hoping to avoid deportation to his stable, democratic West African home country, we must remember that refugee protection is not about providing a better home or more opportunity: It is about providing sanctuary for people literally fleeing for their lives who have nowhere else to go. Asylum is an emergency provision, a last resort for people with no other options. That is not the case for the recent border-crossers.

When deciding how to think of the recent border crossings and those to come, we should put ourselves back in that room in Geneva in 1951, at the drafting table next to the fractious French and British delegates. Had someone interrupted them to ask what would happen if a “refugee” crossed from the United States to Canada, the question hardly would have made sense. The idea that the 1951 Convention would apply to someone who had made it across the Atlantic Ocean to the safety of America would have been absurd to the point of incomprehensibility. Most Canadians instinctively understand that, and the government should begin remaking its refugee policy starting from that presumption.

After initial hesitation, Public Safety Minister Ralph Goodale has finally started to sound like the head of an enforcement-minded department. “We obviously want to ensure the integrity of our borders and our immigration system,” he told reporters in Saskatoon last Wednesday. “We obviously need to make sure that … Canadian law is being enforced in every case.” Addressing potential migrants, the minister said that they should know that “once you cross the border in this irregular fashion, it is not a free ticket into Canada.”

It’s a start, but that “obvious” message will have to be reinforced by action and repetition, including by the prime minister to the attentive audience only he commands, and by new laws and procedures that go beyond our current passive policies — tougher laws that reflect the original purpose of the 1951 Refugee Convention.

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