Academic journal article Canada-United States Law Journal

The Prospects for a North American Security Perimeter: Coordination and Harmonization of United States and Canadian Immigration and Refugee Laws

Academic journal article Canada-United States Law Journal

The Prospects for a North American Security Perimeter: Coordination and Harmonization of United States and Canadian Immigration and Refugee Laws

Article excerpt

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

A. 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. …

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