The prospects for a North American security perimeter: coordination and harmonization Of United States And Canadian immigration and refugee laws.

• Author: de Eyre, Steve
• Position: North American Dispute Settlement

PART I: INTRODUCTION

Throughout the twentieth century, the border between Canada and the United States of America was commonly referred to, with great pride, as the world's longest undefended border. After September 11,2001, the term undefended quickly became a dirty word in Ottawa and Washington, as the Americans began to view their northern border as a vulnerability. (1) The September 11 attacks led to a profound increase in security measures and border controls in the United States and, as a consequence, Canada. The initial response of the United States in the immediate aftermath of the attacks resulted in extensive delays along the Canada-United States border. Realizing the costs of such delays, leaders from both countries issued a joint "Smart Border" plan, which has acted as the blueprint for bilateral cooperation at the border in the subsequent years. The reality of the effectiveness of border controls, and debate over what should be the primary objective of such controls, has led to renewed discussion on the concept of a North American security perimeter. This plan would essentially eliminate barriers to the movement of people and goods across the shared border, and focus instead on enforcement and prevention at continental points of entry.

Moving towards a North American security perimeter would have far reaching implications in numerous policy areas for Canada and the United States, including security, law enforcement, trade and commerce, and immigration and refugee policies. Pursuing such a far-reaching plan would require significant political willpower by North American leaders, which has yet to be espoused by politicians on either side of the border. Nevertheless, ad-hoc agreements have been implemented in areas of defense, law enforcement, and immigration that have emphasized a continental approach to mutual problems. These binational agreements and institutions continue to grow in size and scope, and serve as a realistic and effective alternative in lieu of a formal security perimeter.

This note will discuss and compare the immigration and refugee policies of Canada and the United States, identifying where diverging policies exist that would require coordination or harmonization within a perimeter agreement. Part II of this note will begin with a discussion of the history and development of the North American security perimeter concept, including previous incremental efforts to this end, and the main contentions of proponents and opponents of such a plan. Canadian and United States immigration and refugee policies will then be analyzed, outlining the laws, policy objectives, and structural framework of each country's immigration system. Part III will analyze the legal issues raised through potential harmonization of the two countries' immigration and refugee policies. The main areas where these policies diverge will be highlighted, and the European Schengen Agreement will be evaluated as a possible model for resolving these incongruities. Finally, related political and policy considerations that might preclude a movement towards harmonization will be discussed.

PART II: FACTUAL BACKGROUND

1. THE HISTORY OF NORTH AMERICAN PERIMETER SECURITY AND DEFENSE

   The general concept of North American perimeter security has existed in varying forms for almost 200 years, tracing its roots back to United States President James Monroe's 1823 unilateral declaration that "the American continents ... are henceforth not to be considered as subjects for future colonization by any European powers." (2) In 1938, under the threat of Nazi Germany and Imperial Japan, President Franklin Roosevelt and Prime Minister William Lyon Mackenzie King formulated the principles that defined how their two nations would address common security threats for the remainder of the twentieth century. (3) In a speech given at Queen's University in Kingston, Ontario, Roosevelt declared that even the neutral American people "would not stand idly by" if Canada was attacked. (4) The Prime Minister responded two days later with a declaration that "enemy forces should not be able to pursue their way either by land, sea, or air to the United States across Canadian Territory." (5) Shortly after, in 1940, the Permanent Joint Board on Defense was established to serve as a binational advisory board on North American continental defense. (6) Later that decade, the principles espoused by President Roosevelt and Prime Minster King were enshrined in Article V of the North Atlantic Treaty (NATO), vowing that "an armed attack against one or more [NATO country] in Europe or North America shall be considered an attack against them all." (7) The 1950s witnessed the signing of The North American Aerospace Defense (NORAD) agreement between the United States and Canada, creating a common perimeter around the two countries to defend against the threat of a Soviet attack. (8) These agreements, though short of establishing a fully-integrated North American security perimeter, were effective in addressing the security threats faced by North America in the twentieth century.

   In March 2001, largely in response to the arrest of Ahmed Ressam, (9) the "millennium bomber," former United States Ambassador to Canada Gordon Giffin boldly suggested that visionary steps must be taken to stem the flow of terrorism and cross-border crime, and that a perimeter approach to border management be considered. (10) Shortly afterwards, the September 11, 2001 terrorist attacks brought the issue of improving North American security to the forefront, as the immediate United States response to the attacks had grounded air traffic and brought land crossings to a virtual halt. Less than a week after the attacks, former United States Ambassador to Canada Paul Cellucci said that "if the United States had policies on immigration and refugee status that were more common we could establish this perimeter to protect the United States and Canada, and I think that is where [the United States and Canada] should be headed." (11)

   On December 12, 2001, former Canadian Deputy Prime Minister John Manley and former Department of Homeland Security Secretary Tom Ridge met at the Detroit-Windsor Ambassador Bridge to sign the Smart Border Declaration, a thirty-point binational action plan to revamp Canada-United States border strategy in an effort to alleviate the post-September 11 congestion. The Declaration's thirty points were based on four pillars: (1) the secure flow of people; (2) the secure flow of goods; (3) secure infrastructure; and (4) information sharing and coordination in the enforcement of these objectives. (12) Also in December 2001, the Canadian House of Commons Committee on Foreign Affairs and International Trade recommended that the government study the implications of establishing a security perimeter around North America; however, the reply of Jean Chretien's government was viewed as being "ambivalent," and the recommendation was avoided by saying that the government was "committed to examining any options for improving operation while providing appropriate security at the border." (13)

   In addressing the potential for further North American security integration though a perimeter agreement, several options have been identified. Professor Stephane Roussel presented four options in a 2002 paper prepared for the Canadian Institute of Strategic Studies. (14) The first, most comprehensive approach, is a "Formal Security Perimeter," a comprehensive treaty between Canada and the United States, modeled after the European Union's Schengen Agreement, the Permanent Joint Board of Defense, and the International Joint Commission. (15) The second option is an "Informal/Limited Security Perimeter," a sectoral memorandum of understanding between agencies without a formal treaty. (16) Roussel views this as the most likely scenario as it is the way in which most Canada-United States relations are currently conducted, as evidenced by the Smart Border Declaration. The third option is a "Multilateral Security Perimeter," which would encompass Mexico and possible additional nations, and could be either a formal or informal agreement. (17) The final option is a "Unilateral Approach," with each country establishing its own security protocols, which, at least in the case of Canada, would have to be robust enough to reassure the United States. (18) To an extent, this is an approach also being taken by the Canadian Government through the immigration and security reforms implemented after September 11.

   Roussel's first option, a "Formal Security Perimeter," was further advocated in January 2003 by the Canadian Counsel of Chief Executives (CCCE) through its North American Security and Prosperity Initiative. The report advocated the need to "transform the internal border into a shared checkpoint within the Canada-United States economic space" with a twofold objective of "shift[ing] the burden of protecting our countries against global threats away from the internal border to the approaches to North America, and to eliminate unnecessary regulatory, procedural, and infrastructural barriers at our internal border.'' (19) Such an ambitious plan would require extensive harmonization of Canadian and United States policies in numerous areas, not the least of which would be immigration and refugee policies.

2. IMMIGRATION AND REFUGEE POLICES OF CANADA AND THE UNITED STATES

   Immigration was the cornerstone of development in Canada and the United States. Both countries are multicultural societies with immigration policies that are among the most liberal in the world. (20) In general, these immigration policies have sought to enhance and expand populations, geographical frontiers, and labor markets; reunite families; protect the prosecuted and displaced; and permit temporary workers to supplement labor shortages. (21) The policies differ when examining the overall social and economic priorities each country seeks to...