To go forward, we must remember and rely upon our past.

• Author: Vandevert, Paul
• Position: 35th Annual Henry T. King Conference: The US-Canadian Border Action Plan

1. INTRODUCTION

   In December 2011, the governments of Canada and the United States issued the "Beyond the Border: A Shared Vision for Perimeter Security and Economic Competitiveness Action Plan" ("Action Plan"), (1) which was directed by the joint declaration of the Prime Minister of Canada and the President of the United States in February 2011 ("Joint Declaration"). (2) The Action Plan outlines four areas of cooperation with the twin goals of enhancing the security of both countries and accelerating the legitimate flow of people, goods, and services between them. (3) The four areas of cooperation identified in the Action Plan are: (1) addressing threats early; (2) trade facilitation; (3) economic growth and jobs; and (4) critical infrastructure and cyber security. (4) This paper will focus on two of those priorities: trade facilitation and economic growth and jobs.

   The most striking thing about the Action Plan is the enormous, overshadowing significance of what it does not say. There is only cursory reference to the extremely long history between the two countries. (5) There is no mention at all of the formal military alliances, such as the North Atlantic Treaty Organization ("NATO") (6) and the North American Aerospace Defense Command ("NORAD") (7) in which Canada and the United States have bound themselves together in the joint defense of North America. It is completely silent on the series of trade agreements, each of which enjoy the status of an international treaty: the Canada-United States Automotive Products Agreement ("APTA"), (8) Canada-United States Free Trade Agreement ("Canada-U.S. FTA") (9) and the North American Free Trade Agreement ("NAFTA"), (10) that have resulted in Canada and the United States being two of the longest standing and largest trade partners in the world. (11) Last, but, perhaps most important in the context of the Action Plan, the fact that the Canada United States border remains the longest "undefended" border in the world, (12) in the sense that neither country has ever deployed military forces to defend against acts of incursion or aggression by the other in our mutual history as sovereign nations is totally ignored. In stark contrast to these formal, long-established and tested ties, the Action Plan is expressly not a legally binding instrument: "Nothing in this Action Plan is intended to give rise to rights or obligations under domestic or international law; this action plan [sic] is not intended to constitute an international treaty under international law." (13)

   The Action Plan also omits any reference to its raison d'etre: the tragic events of September 11, 2001, in which although the world itself really did not change, peoples', most particularly Americans', views and perceptions of the world radically, and, apparently, irrevocably changed. For most Americans, a largely positive, albeit not fully informed and somewhat naive, worldview was replaced by one of mistrust and fear. The post-September 11 response, particularly in the areas of security and trade facilitation, seems to be that history and most everything known about trade partners, the traders and travelers who have been moving goods and people across the border for years, even decades and centuries, and the economies and societies that have been created and sustained by cross-border trade, are to be forgotten. The Action Plan is essentially an attempt at a complete "do-over" of the cross-border relationship between Canada and the United States.

   But, a do-over, going back to a clean slate to create Canadian U.S. border relations anew, is simply impossible. The structure, interrelationships, and interdependencies of the societies and economies that have evolved along the Canada-United States border can neither be undone nor substantially altered. Nor is it possible, or even desirable, to either abrogate or materially amend the formal, legally binding alliances and treaties in place between the two countries. Moreover, ignoring history, particularly what is already known about the traders, that is the producers, importers, carriers, of goods, the goods traded, and the individual travelers who have been and continue crossing the Canada-United States border every day, will all but guarantee that the goals of the Action Plan, such as enhanced border security and accelerated trade between Canada and the United States, will fail. However, it is only the Action Plan that will fail; the cross-border community will continue much as it has prior to and after September 11, without much heed to the pronouncements of government officials. For two countries founded on the rule of law, that is an unnecessary shame, made all the worse because it is avoidable. What needs to be done is to go back, take stock of what we know and use that knowledge to actually realize the goals of the Action Plan: truly enhanced border security and even more accelerated trade between these two great countries and partners.

2. TRADE FACILITATION EQUALS ECONOMIC GROWTH AND JOBS

   It is all but a maxim of international economics that international trade equals jobs. The creation or retention of jobs is a primary indicator of economic growth and health. With respect to international trade, national governments can best spur the growth of their economies and jobs in their respective countries through trade facilitation. In this way, the second and third priorities of the Action Plan are really one and the same: trade facilitation will accelerate economic growth and jobs. (14) If the Canadian and U.S. federal governments focus on actually facilitating the legitimate movement of people, goods and services across the border, the commercial sector will take care of economic growth and job creation.

   1. Identifying Trusted Traders

      A key concept in the Action Plan for trade facilitation is the identification of a "trusted trader." (15) Trusted traders are considered to pose the lowest risk in terms of threat to security and trade compliance. (16) Although the Action Plan gives a cursory nod to the historical fact that "many trusted traders have invested significantly in supply chain security and have strong compliance records," (17) the Action Plan states that the "fundamental" and overarching priority of the governments is the collection of "advance information about shipments to conduct risk-based targeting." (18) What collection of "advanced information about shipments" really means is that the Customs authorities intend to build their risk-threat...