Why the United States Safe Third Country Agreement with Guatemala Is Problematic
By Kamilah Morain, OBMICA Associated Researcher. In July, the President of the United States announced the signing of a safe third country agreement between the United States and Guatemala. The statement took by surprise those familiar with the region.
By Kamilah Morain
OBMICA Associated Researcher
In July, the President of the United States announced the signing of a safe third country agreement between the United States and Guatemala. The statement took by surprise those familiar with the region. People working on migration issues in the Northern Triangle countries of Honduras, El Salvador, and Guatemala, and human rights professionals in general, have pointed out that this agreement is problematic for several reasons.
First, human rights advocates regret the absence of consultations in the process that led to Guatemala being designated a safe third country. In fact, apart from the U.S. President's desire to significantly reduce migration from the Northern Triangle countries toward the U.S. border, the criteria used to make such a designation remain unclear.
Since the announcement made by the U.S. President, questions have been raised about the robustness of Guatemala's asylum system. International law stipulates that a country receiving an asylum application is responsible for examining that person's protection claim and, in the event of a positive decision, providing that protection. Best practice dictates that if the country where an asylum application is made transfers this responsibility to a safe third country, that country should have at least a comparable asylum system. Given Guatemala's human rights record and current socioeconomic challenges, it can be argued that Guatemala could not meet these criteria.
International human rights challenges
Guatemala is a country with a long history of human rights violations, and it has been shown that the country has been unable to meet even the most basic security requirements for its own citizens. Therefore, it would not be reasonable to expect the country to meet the protection and security needs of asylum seekers transferred into its care from the United States.
Under international human rights law, it is a clear violation to remove an asylum seeker from a territory where the right not to be subjected to torture or cruel, inhuman, or degrading treatment is guaranteed, to a third country where it is not guaranteed.
The safe third country agreement with Guatemala is a veiled attempt by the Trump administration to prevent migrants from the Northern Triangle from claiming asylum in the United States. At best, it constitutes a procedural barrier that would result in asylum seekers being unable to file their claims in a country of their choosing; at worst, it will result in refoulement and/or human rights violations in the third country.
When selecting a safe third country, it should be noted that UNHCR guidance states that it is not sufficient for refugees or asylum seekers merely to be safe from persecution; all Convention requirements must be met, including access to essential services such as health care, social assistance, and education.
Women and children are expected to be disproportionately affected by this change, and so far no indication has been shared as to what provisions are included in the agreement for groups with special needs. Of particular concern are unaccompanied children and adolescents, victims of gender-based violence, and victims of trafficking in persons.
Guatemala: a country in crisis
Guatemala, the most populous country in Central America, is plagued by high incidences of violent crime, with statistics showing that 95% of such cases go unsolved. The country is a hotspot of insecurity, gang violence, high homicide rates, and violence against women and minors. Political instability, high levels of poverty, widespread corruption, and weak government institutions aggravate these problems and contribute to making Guatemala one of the most unstable countries in Central America. Experts anticipate that the transfer of tens, if not hundreds of thousands, of asylum seekers in the U.S. to Guatemala could further exacerbate the fragile situation there, generating unnecessary stress on the country's already scarce and poorly managed resources.
Between 2016 and the present, close to 1.2 million migrants from the Northern Triangle have been detained at the U.S.-Mexico border. If these people were relocated to Guatemala, this would place enormous stress on Guatemalan resources. Moreover, it would be disingenuous to assume that they would benefit from a level of protection against human rights violations and social assistance comparable to that provided by the U.S., given that the Guatemalan state struggles to provide the same level of care and services to its own citizens.
Nothing new for the region
This is not the first time that the U.S. administration has implemented policies detrimental to human rights in the region. Before signing the safe third country agreement with Guatemala, the United States attempted to do the same with Mexico. The latter refused the proposal. However, over the years, the U.S. stance on immigration from the Northern Triangle has influenced Mexican policy on migration from that region.
During the years of former President Calderon a decade ago and up to the present, Mexico has focused its attention on enforcing controls along its southern border with Guatemala in an attempt to manage the flow of migrants heading north. This contributed to increased regional tensions and resulted in terrible consequences for migrants who, desperate to escape their circumstances, became even more vulnerable and dependent on unscrupulous intermediaries to facilitate their journeys north.
On July 2, the Associated Press reported that dozens of asylum seekers were sent to Mexico from the United States pending the outcome of their asylum claims in U.S. courts. In addition, it was reported that Mexican authorities, with the support of an IOM-assisted voluntary return program funded by the U.S., were responsible for transporting 69 people back to their countries of origin. This took place under reservations because the "voluntary" nature of these returns could reasonably be doubted. By supporting these actions, the U.S. and Mexican administrations could be considered in violation of the principle of non-refoulement, since people were denied the opportunity to be present while their asylum claims were processed. The precedent created in the region by these flagrant acts of disregard for human rights is not without consequences and will make migrants even more vulnerable in what is already an increasingly hostile environment for the enjoyment of human rights in the region.