Elasticity at the Canada–US border: Jurisdiction,rights,accountability

Introduction

That borders are being deterritorialized, reterritorialized and extra-territorialized has become a truism. States are extending their legal reach to maximize the opportunities of global trade networks, while also preventing “undesirable” migrants from arriving on their shores through practices such as interdiction (e.g. Amilhat Szary and Giraut, 2015; Vaughan-Williams, 2012). Border enforcement is being internalized as raids on undocumented workers proliferate, and immigrant detention becomes widespread (e.g. Burridge et al., 2017; Casas-Cortes et al., 2016; Collyer and King, 2015; Loyd and Mountz, 2014; Zaiotti, 2016). The offshoring of detention has also been used by states to limit their accountability to asylum seekers, and in some cases territory is excised in order to prevent the making of refugee claims (e.g. Mountz, 2011). Borders today are, in the words of Étienne Balibar, heterogeneous polysemic and ubiquitous (Balibar, 2002: 84, 81). For Balibar, borders vacillate (Balibar, 2002: 89).

Yet migrants are not the only ones who cross borders. More and more we find border agents and security professionals working extraterritorially, with new legal regimes created to reshape territorial jurisdiction. These bodies are subject to different rules and regulations than migrants, often to ensure legal and employment protections provided by their home countries. Borders are thus pulled and stretched, but they are also snapped back into place: borders are made elastic. This is not just about vacillation, which implies indecision, but rather an elasticity that is purpose-built into legislation so as to limit both rights-claims and accountability. This paper addresses how this elasticity is playing out at the Canada–US border as a result of sweeping border negotiations on border security and the economy that been introduced since the terrorist attacks of 9/11 (Gilbert, 2014).

While some border scholars have alluded to the concept of elasticity in passing (e.g. Mountz and Hiemstra, 2012: 455, 456), much of the scholarship focuses solely on how borders get stretched, not on how they are also pulled taught. In writing about the Occupied Palestinian Territories, however, Eyal Weizman draws upon the concept of “elastic geography” to capture the “constant transformation” of the frontier as it is “remade and rearranged with every political development and decision” (Weizman, 2007: 6). For Weizman, the architecture of occupation is elastic because it ebbs and flows, working to “shrink and expand the territory at will” through an anarchic geography of government installations, such as walls and checkpoints, but also outposts and settlements, and the erection of temporary security measures that quickly become permanent. Weizman’s account is helpful is that he reminds us that “highly elastic space is often more dangerous and deadly than a static, rigid one” (Weizman, 2007: 7). For it is through this very elasticity that the state “obfuscate[s] and naturalize[s] the facts of domination,” which are hidden in the complexity and illogic that is created, while also asserting that it is only the state has the technical “know-how to resolve the very complexity it created” (Weizman, 2007: 8).

Yet whereas Weizman characterizes this frontier elasticity as anarchic—and certainly there is a degree of chaos and resistance—want I will insist on in this paper are the ways that elasticity is also structured in and through the law. Israel, for example, has wielded its laws to sanction settlements in the West Bank, even while this legality is disputed by much of the international community. As this example suggests, frontier regions are often contested, in no small part because they are always sites of complicated and overlapping patchworks of local, regional, national and international laws, that in the North American context also jostle against indigenous sovereignty and governance (Raustiala, 2005: 2511; see also Basaran, 2010; Pasternak, 2014). With new forms of extraterritorialization of border controls, jurisdiction is being reworked as it is attached to non-national spaces and bodies. Indeed, at the border, law is in “excess” (Johns, 2005). The violence that is enacted through the excess of law has been addressed in the literature on law and war (e.g. Jones and Smith, 2015), particularly vis-à-vis the quasi-anomalous space of Guantánamo Bay. While the camp has often been described as a legal “black hole” because of its extraterritoriality, scholars have countered that Guantánamo is actually where national and international jurisdictions collide (Gregory, 2006; Kaplan, 2005; Vaughan-Williams, 2008). It is precisely this excess of law, rooted in the site’s colonial history and extraterritorial geography that allows “contradictory legal geographies” to be mobilized (Gregory, 2006: 405). The multiple layers of law are manipulated—with respect to their design, implementation and interpretation—so that the most powerful actors—usually the state—can enact violence, evade human rights and deny accountability (Benjamin, 1996; Raustiala, 2009). Thus, as Derek Gregory has argued, “law and violence are not opposed, but hold each other in deadly embrace” (Gregory, 2007: 211).

Legal violence also takes place in and through the border, especially as borders are pulled and stretched in more and more new ways. But the violence is enacted not only through the ways that jurisdiction is being reterritorialized, but how the law is attached to different people in different ways so that the location of the border depends on who is being governed through it (Basaran, 2010: 7; Valverde, 2014). Pauline Maillet, Alison Mountz and Kira Williams, for example, show how states legally remake different border geographies—airport, sea and excised territory—to “exclude migrants and asylum seekers from regular legal processes, thereby changing their legal status” (Maillet et al. 2018, 143). They suggest that these migrants typify what Giorgio Agamben has called Homo Sacer, or bare life, whereby the state includes non-national subjects in the juridical order precisely by legislatively excluding them from being able to access rights that they ought to have under international law (Maillet et al. 2018, 146). Effectively, there is an uncoupling of territory and jurisdiction, and instead a display of what Stuart Elden has called imperio (or imperial power): a boundless, limitless and administrative power that exceeds the territory of the state (Maillet et al. 2018, 145).

In the medieval era, before the formalization of the Westphalian territorial state, this attachment of law to people rather than place was common, a practice that had roots in Roman classicism (Raustiala, 2009: 9). As Mat Coleman reminds us, however, Western states have long enacted “the geographical illocalisation of legal-territorial borders” through the body with respect to the treatment of certain classes of immigrants (Coleman, 2012: 404). He elaborates by showing how categorizations along the lines of race, nationality, and national security were used to deem migrants to be “‘here enough’ to be arrested but not ‘here enough’ to address their detention in the courts” (Coleman, 2012: 419). This continues today, but what we also find is that this “geographical illocalisation” takes place with respect not just to migrants, but those responsible for border enforcement, so that the border ebbs and flows for different populations in different ways and with different effects. The border is elastic. It is this elasticity, as the law is alternately fixed territorially or to bodies, that makes the enforceability of the law ambiguous. As I will illustrate in this paper, this elasticity is dangerous—to use Weizman’s term—because of how it can be wielded to limit both the human rights of migrants and the accountability of border security personnel.

This paper proceeds as follows. I begin with an examination of the Safe Third Country Agreement (STCA), which prohibits asylum seekers from making claims at the Canada–US land border on the premise that both counties are “safe” and that asylum should be claimed at the first country of landing. This section draws significantly on Efrat Arbel’s analysis of the STCA, and the legal maneuverings employed by the Canadian Federal Court and Federal Court of Appeal to argue at once for both a static and shifting border. Her analysis provides a useful framework for understanding the ways that jurisdiction is articulated through the law, and the ways migrant rights are limited. I then turn to two quite different examples which deal with the cross-border jurisdiction of border agents. The first is the implementation of cross-border law enforcement, known as the Shiprider program, that allows specially designated officers to not only cross the Canada–US border, but also to enforce the law on the other side. The second is the expansion of preclearance facilities in Canada, which allows travellers to clear customs before embarking on a flight to the US. As preclearance is extended, a new legal apparatus is being enacted that will dramatically affect the rights of travellers, but also limit the accountability of US border agents who will receive immunity while at work in Canada. Each of these examples illustrates how the extraterritorialization of border controls is being operationalized through the law, and with what political implications.

The Safe Third Country Agreement

With the election of Donald Trump as President of the United States, thousands of asylum seekers have fled to Canada, looking to escape the country’s blunt embrace of xenophobic and racist policies. Images of asylum seekers crossing the border into Canada have proliferated in the media, with Canada often being portrayed as a liberal, multicultural haven. This was reinforced by Prime Minister Justin Trudeau who, in response to President Trump’s first Executive Order to limit immigration, tweeted “To those fleeing persecution, terror & war, Canadians will welcome you, regardless of your faith. Diversity is our strength.” Yet asylum seekers heading north are prohibited from making a refugee claim at an official port of entry because of the STCA. The only way that a claim can be made is if they cross the border irregularly, and make a claim after they have arrived in Canada. For those crossing in the prolonged cold of winter, the journey can be incredibly dangerous. At least one person has died, and others have suffered extreme frostbite resulting in the amputation of fingers and toes. Those who are able to find their way across prairies or farmland, or unused roads, are immediately arrested by the Royal Canadian Mounted Police (RCMP) and detained.

Canada’s smugness with respect to the openness of its borders is therefore misplaced, as the country is complicit in making these crossings more difficult and dangerous because it is signatory to the STCA. Signed between Canada and the US, and enacted in 2004, the STCA prohibits refugee claims from being made at the land border. ¹ Instead, asylum seekers must make their application in the “safe” country of last presence. Since both the US and Canada are presumed to be safe, asylum seekers cannot arrive in one country, and subsequently seek asylum in the other. The agreement was implemented at Canada’s urging as it was seen as a way to limit the number of asylum seekers heading north, which had always been greater than those heading south (Macklin, 2005: 371). ² Effectively, the agreement allows Canada to close the door to refugee claimants, without being explicit about it, and is just one of the many ways that the country has innovated around migrant interdiction (Mountz, 2010). In fact, Canada had tried to introduce legislation along these lines since the 1990s to limit refugee flows, but it was only after the terrorist attacks of 9/11 and the US’s desire to harden its borders, that the agreement moved ahead.

Even before it was implemented, analysts noted that the STCA would compel more circuitous and more dangerous crossings, and would force asylum seekers to seek out assistance from smugglers and traffickers (Macklin, 2005). But what I am particularly interested in for the purposes of this paper are the legal gymnastics that have been undertaken to enshrine this vulnerability at the border. This can be seen by turning to examine the details of the constitutional challenge that was brought against the STCA in 2005 by the Canadian Council for Refugees, Amnesty International Canada and the Canadian Council of Churches in the name of claimant John Doe, an asylum seeker from Columbia. First, it was argued that the US could not be considered to be a “safe” country for refugees. Several examples were provided, including a greater prevalence of detention in the US, and the fewer protections it affords to asylum seekers, e.g. lack of legal aid, and the lack of access to temporary work permits or schooling. The constraints around making claims were also noted, e.g. the limited time frame for making a claim, despite backlogs. The US also has had lower rates of acceptance of refugees, in part because it has been much more restrictive in its interpretation of persecution: e.g. women facing domestic violence were more likely to be refused in the US compared to Canada (Arnett, 2005). As Macklin (2005) notes, it is not that Canada’s policies were flawless—they weren’t—but there were some notable differences between the two countries that buttressed the argument that the US was not “safe.”

Second, it was argued that the STCA contravened Canada’s international commitments under the 1948 Universal Declaration of Human Rights, which, in Article 14(1) states that “Everyone has the right to seek and to enjoy in other countries asylum from persecution” (CCR, 2005). As many have pointed out, the Declaration does not include any stipulations about modes of travel or the routes people take. Furthermore, under the 1951 Convention Relating to the Status of Refugees a person cannot be returned to their home country if they will be subject to persecution: this is the principle of non-refoulement. Yet the STCA was seen to be a kind of “neo-refoulement” in that it limited an asylum seeker’s ability to make a claim, and thus raised the possibility that they would be returned to their country of origin (Hyndman and Mountz, 2008: 250).

The Canadian Federal Court released its decision in November 2007. As Efrat Arbel has examined in considerable detail, in a surprise ruling the court ruled against the STCA and declared it “to have no force and effect” largely because of the issues set out above: that the US was failing to meet its obligations towards asylum seekers established under international protocols and could not be considered “safe” (Arbel, 2013: 66, 73). The court also concluded that Canada was participating in indirect refoulement by returning asylum seekers to the US, noting that the US was not complying with either the Refugee Convention nor the terms of the Convention Against Torture, and thus potentially sending asylum seekers back to countries where they could be persecuted (Arbel, 2013: 79). Finally, the STCA was also found to be in violation of two sections of the Canadian Charter of Rights and Freedoms: section 7 on life, liberty, and security of the person (which covers due process) and section 15 on equality before and under the law (Arbel, 2013: 66). As Arbel notes, this determination of constitutional rights had “profound” effects in that it determined that the complainant was protected by Charter rights, which thus triggered “an enforceable, correlating duty on the part of the state” regarding fundamental justice, even though he had not crossed the border (Arbel, 2013: 80).

But, in June 2008, the Federal Court of Appeal struck down the Federal Court ruling, and the STCA was reinstated. The majority decision was that it was outside the Federal Court’s ambit to decide whether or not the US could be considered a “safe” country. But the Appeal Court also ruled against the Charter rights affirmed by the Federal Court. Instead, the Court of Appeal found that someone who was denied entry under the STCA at the border was considered not to have reached Canada, and hence Charter rights did not apply. Arbel notes that this created “an impossible bind: the static border principle requires John Doe to present at the border to trigger the Charter’s application, but the shifting border principle precludes him from doing so” (Arbel, 2013: 83). On the one hand, the static border principle “imagines the border as a stable perimeter positioned at Canada’s geographic boundary line,” while on the other, the shifting border principle “imagines the border as a moving barrier that is legally distinct from Canada’s cartographic perimeter, that can be positioned outside Canada’s geographic boundary line” (Arbel, 2013: 68). The shifting of the border through the STCA makes it impossible for a claimant to reach the static border, which means that Charter rights cannot be availed. For as a result of the Court of Appeal’s decision, the claimant John Doe was “Stripped of recourse to effective legal action under Canadian law, and suspended between two conflicting directives, [so that] his predicament is that of liminality: he is still subject to the law, but left bereft by it” (Arbel, 2013: 83; emphasis in the original). John Doe and others like him are for Arbel the typification of Agamben’s Homo Sacer: governed through law, but abandoned by it.

Arbel argues that the STCA ruling shakes the “very foundations” of Canada’s refugee system in that it effectively closes the land border to asylum seekers (Arbel, 2013: 86). Her analysis also has important insights regarding how law is being implemented and interpreted to limit the rights of migrants, to absolve states and their agents with respect to processing claims, and to any accountability regarding this refusal. With respect to the STCA, it is the border’s geographical determination—as static but also shifting—that makes law’s illiberalism manifest. Here were have two contradictory principles in place simultaneously: the border is elastic in that it is distended when it comes to ensuring interdiction, but snapped back in place in order to limit access to constitutional rights for a certain category of migrant: asylum seekers. These issues will be taken up in the following sections as I turn to examine two new programs regarding border security that are bestowing extra-territorial powers on border agents and other security personnel, while at the same time limiting the ways that they can be held accountable as the rights of the populations that they are policing are also limited.

Shiprider

The Shiprider agreement between Canada and the United States allows for joint vessel patrols to take place in shared and undisputed waterways, whether internal bodies of water or at sea (Gilbert, 2013). It began as a pilot project in the Detroit-Windsor area in 2005, was formalized with a bi-national Framework Agreement in 2009, augmented in the bilateral Beyond the Border agreement of 2011, and regularized with an agreement on standard operating procedures in 2013. Under Shiprider, boats are manned by both the US Coast Guard (USCG) and the Canadian RCMP; as the boat crosses the border, command switches over so that the vessel is always under the control of an officer from the host country, and the host country’s laws are in force. All the designated officers on board, however, are bestowed with enforcement powers on either side of the border: for example, if a boatful of suspects is pursued into Canada, the RCMP takes command, but all the designated USCG officers on board can act as enforcement officers in Canada.

The agreement moves well beyond traditional forms of joint operations, in which non-national agents act only as observers. With Shiprider, designated RCMP or police officers become equivalent to US Customs Officers, while the USCG or US police officers have the authority of Canadian RCMP. To this end, Canada passed specific legislation, the Integrated Cross-Border Maritime Law Enforcement Operations Act (ICMLEO), to affirm this peace officer status. Article 12 states that:

“Every designated officer has the same power to enforce an Act of Parliament as a member of the RCMP when

(a) participating in an integrated cross-border operation; or

(b) engaging in an activity incidental to such an operation, including travel for the purpose of participating in the operation and appearances in court arising from the operation.” ³

Proponents of Shiprider insist that national sovereignty is not threatened by cross-border law enforcement as the laws of each country remain intact. Indeed, Anna Pratt argues that, rather than being eroded, sovereignty is doubled. As she states, the agreement “asserts the regimes of both nations rather than escaping the regimes of any one” (Pratt, 2016: 257; emphasis in the original). She offers the example of the Mohawk territory of Akwesasne as an example of how state sovereignty bears down through Shiprider. The community is a complex jurisdictional space, as it is bisected by the Canada–US border, spans across New York state and the provinces of Ontario and Quebec, and straddles the St Lawrence River. The community has a long history of activism and resistance against the international border, which ruptures clan, kinship and governance structures (George-Kanentiio, 2006; Grinde, 2002; Simpson, 2014). Resistance has only increased in response to the additional securitization since 9/11, from armed border guards stationed in the community, to a $92 million RCMP surveillance web that extends along the river. Shiprider, which is in operation on the St Lawrence, is yet another one of these securitization measures which has been imposed on the community. To the Mohawk Nation Council of Chiefs, “the Shiprider presence is viewed as an infringement of Haudenosaunee sovereignty, since the Mohawk Council of Chiefs was not consulted by the Governments of the United States and Canada, nor did they seek a cooperative approach that involved the Haudenosaunee as an equal stakeholder in the program” (Anon, 2011). Its top-down implementation erased years of cooperation on policing in the region, and the move towards some Mohawk self-governance. Instead, the muscular national sovereignty of both the US and Canada is reasserted through Shiprider’s implementation.

Yet, if national sovereignty and territorial borders are in some ways reinforced, the initiative also reconstitutes jurisdiction with respect to the Shiprider agents who assume powers of enforcement beyond their national borders. Indeed, in the words of the Department of Homeland Security (DHS) and the RCMP, Shiprider “remov[es] the international maritime boundary as a barrier to law enforcement.”⁵. This is because “Shiprider repackages jurisdictional practices and authority into a portable and mobile resource that travels through space and time with the individual ship riders within, across and beyond the territorial border” (Pratt, 2016: 253; emphasis in the original). Jurisdiction ostensibly remains intact, while powers of enforcement are attached to mobile bodies. To this end, participating officers from both countries are provided with bi-national training that includes “a full understanding of the criminal laws, privacy laws and policies of Canada and the U.S., as well as respective domestic enforcement authorities and on-water operational procedures.” ⁶ The training, however, which is held at the USCG Maritime Law Enforcement Academy in Charlestown (SC), lasts only eight days (Bolster, 2016). Yet how much knowledge of the law—such as the Canadian Constitution, the US Bill of Rights, or Indigenous treaty rights—can be imparted in this short time is questionable, which raises questions about the law’s enforceability.

These questions regarding enforceability are further accentuated by the procedural differences between the two countries. For example, no mention is made in Shiprider regarding how Canada and the US undertake surveillance; in the US, criminal investigations can be based on warrantless communications spying—but this is not permitted in Canada (Harris, 2013). How information gathered without warrant is shared is unclear, which also raises questions regarding the law’s enforceability. Protocols regarding information sharing have been highly contentious, especially as there has been more blurring between policing and intelligence gathering since 9/11. The case of Maher Arar looms large. Arar is a dual Syrian-Canadian citizen who was detained for nearly two weeks in the US during a stopover in 2002 on security grounds—held without being able to access US judicial protections. Based on information provided to American customs by the RCMP, he was then subject to extraordinary rendition to Syria, where he was jailed and tortured for a year. A Canadian judicial inquiry in 2006 found, however, that the information obtained by the RCMP was inaccurate and acquired in suspect ways, and that it was also improperly shared with the US in contravention of bilateral protocols. As a result Canada completely exonerated Arar, issued an apology and paid him $10.5 million in compensation; the United States, however, refuses to recognize his innocence, and he continues to be on their Terrorist Watch list.

The Arar case raises many questions with how information is acquired, how—and how much—of it is shared, and how it is used (Biswas, 2007). It points to the ways that jurisdiction can be undermined, even when sovereignty is asserted. This tension is built-in to Shiprider. Legal sovereignty is affirmed in that the Framework Agreement specifies that information will be collected “in strict accordance with the laws of the host country,” and be used only in the specified cross-border operation. At the same time, exceptional circumstances are identified whereby information collected in one country, can be used by the other country, for purposes beyond the operation at hand, and can be shared with other countries:

A participating agency shall not use or further share information collected exclusively in the other Party’s territory or waters by its officers for purposes other than Canada-United States integrated cross-border law enforcement operations without the consent of the Party in whose territory or waters the information was collected, unless the use or further sharing is required by its domestic laws, in which case the participating agency shall, subject to exigent circumstances, provide notice to the Party in whose territory or waters the information was collected prior to such use or sharing. ⁷

Legal sovereignty is thus both affirmed and undermined through Shiprider. Where this becomes especially opaque and problematic is with respect to how the accountability of cross-border agents is determined. The bi-national Framework Agreement specifies that if an infraction by a Shiprider agent occurs, they will be subject to the domestic laws of the place where the infraction occurs, and will be liable for any claims. In other words, territorial sovereignty is sustained with respect to which laws are applicable where. And yet, if an internal incident takes place, Shiprider officers are subject to the principles of their home organization: “The participating agency that employs a designated cross-border maritime law enforcement officer shall be solely responsible for the professional review of and discipline procedures for its participating officers.” As Michael Harris (2013) notes, the US does not have the same level of oversight as in Canada; US agents therefore will not be subject to the same kind of scrutiny if an incident occurs on Canadian soil—and indeed, there are provisions for non-cooperation for reasons of “public policy, substantive national interests, domestic law and regulations” or interference with an ongoing investigation. Whereas a RCMP officer would be compelled to participate in an internal review, the framework only specifies that “best efforts” will be made to secure cooperation from a US officer. Furthermore, only “best efforts” will be made to secure unclassified documents and information for an international investigation (with no mention made of what happens to classified documents). Whereas the RCMP has disclosure laws that compel them to reveal information about how their cases are built from start to finish, no equivalent principle is at work in the US. Thus operationally, ship riders carry with them the jurisdiction of their primary affiliation: local oversight does not apply.

With respect to the rights of suspects: these do not get attached to their bodies. According to the binational Framework Agreement, the laws of the host country are sovereign. Any person detained or arrested in Canada would be subject to Canadian laws. Similarly, a Canadian citizen arrested in the US would be subject to US laws, even if arrested by a Canadian RCMP officer. In either case, the rights of the non-national would be more limited because of their non-citizen status. There are legal precedents whereby the Charter has been applied outside the country with respect to RCMP or military operations—although as Arbel notes, only in cases where “fundamental human rights are at stake and where these rights implicate individuals who have some attachment to Canada” (Arbel, 2013: 85). In the US, the Boumediene v Bush (2008) ruling recognized constitutional rights for the detainees at Guantánamo Bay because the site was under US control (Liptak, 2017). The Framework Agreement, however, forecloses the possibility that constitutional rights could be availed by citizens outside their home country.

Furthermore, it may be the case that jurisdiction will be wielded to govern suspects. The operating principle is that if a suspect is apprehended for a crime that is deemed to be cross-border (e.g. smuggling, trafficking) then the country of apprehension is the country of prosecution. But if the crime happens in the US, say robbing a bank, and the suspect crosses into Canada, the suspect could be turned over to US authorities and prosecuted in the US. How these decisions get made, however, might depend on the different standards of prosecution in the two countries. In other words, how is an infraction determined to be local or international? Harris (2013) suggests that the different legal regimes of the two countries may inform these decisions. While Canada has moved more in-line with the US, e.g. with the standardization of jail times, there are still significant differences. Jurisdiction could be determined as a way to circumvent one country’s policies in favour of another and, for example, to seek out the jurisdiction of harsher sentencing, or to even threaten to do so to force compliance from a suspect. The implications may be particularly significant where laws diverge, e.g. as Canada moves to de-criminalize marijuana, while a drug sentence in the US could mean a life sentence in some states. Jurisdiction thus not only remains coherent, but its very territoriality can be mobilized against suspects.

Under Shiprider borders are thus elastic: expanding but also contracting. On the one hand, borders are presented as static and sovereignty coherent in that the laws of the host country are affirmed. Indeed, Shiprider reinforces state sovereignty as the law is imposed top-down on local communities, as at Akwesasne. Yet, law enforcement is made mobile, as designated security personnel are able to cross over into another jurisdiction to enforce the law, with the same powers of enforcement as agents in the host country. This, however, raises many questions regarding the law’s enforceability, and how local laws might be superseded. The border is also shifting in that border officials are not subject to the same oversight as their national counterparts: they carry protections with them across the border. With respect to suspects, jurisdiction becomes a tool that can be wielded to enact harsher punishment. Their rights do not travel with their bodies: the border is used to limit their constitutional protections. While Shiprider is a very different scenario than the STCA, in that the STCA only governs mobility of migrants, there are parallel legal maneuverings at play: the border is static when it comes to the law, and the inability for suspects to access constitutional protections, but shifting with respect to law enforcement in ways that limit accountability for border enforcers. The border is elastic.

Shiprider is a relatively recent innovation. The full implications of the cross-border policing will likely really only become clear when a tragedy takes place and legal proceedings ensue. This will not necessarily resolve the paradox of the border—indeed, as we saw with the STCA, legal rulings can enshrine contradictions. But it is clear that this controversial new legal regime was only able to be introduced because it was focused on waterways. Waterways are especially murky with respect to sovereignty, which is why they have become laboratories for cross-border cooperation, e.g. around smuggling and trafficking (Mountz and Hiemstra, 2012). Pratt notes that Shiprider agreements have been in place between the US, the Caribbean and Latin America since the 1990s, although these are much more one-sided (Pratt, 2016: 260). In the European Union, Frontex has also developed a shared border management regime, with joint policing and interception at the EU’s external borders since 2005, alongside its outsourcing of border control to other countries (Casas-Cortes et al., 2016). Indeed, attempts to extend Shiprider to the regions between official land borders have stalled. In the Beyond, the Border agreement of 2011, Canada and the US agreed to move ahead with a NxtGen initiative, but the jurisdictional issues have been deemed to be too complex. Another sticking point, however, which was made known through an Access to Information Act request, was that the US wanted its border agents to have full immunity from Canadian law (Anon, 2013). Canada refused. Yet, as I will illustrate in the next section, immunity for US border agents stationed in Canada has now been enshrined in a bilateral agreement on expanding customs preclearance, which could create a precedent for future cross-border law enforcement operations on land.

Preclearance programs

When Prime Minister Trudeau and President Barack Obama met in March 2016 in Washington, they announced plans to expand customs preclearance. Gleefully celebrated as an outcome of the “bromance” between the two leaders, this was actually a restatement of an Agreement on Land, Rail, Marine, and Air Transport Preclearance that had been signed the previous year between the President and the previous Prime Minister, Stephen Harper. The agreement sets out provisions for the preclearance of goods and people, although the latter is much more developed. Some kind of traveller preclearance has been in place in Canada since the 1950s, was formalized in the 1970s, and is now governed through an amended agreement negotiated in 1999 (and in place since 2001). ⁸ Even though the 1999 agreement contains provisions for preclearance in both countries, currently it is only in place at eight international airports in Canada, where travellers clear US customs before embarkation. Under the 2015 agreement, preclearance will be expanded to at least three more Canadian airports, as well as to select bus, train and ferry stations. A pilot project has been tried out at the Vancouver train station for trains heading to Seattle, and plans are underway for facilities in Montreal. No firm plans for Canadian preclearance facilities in the US have been announced.

The interest in expanding preclearance has intensified since 9/11, as it is seen as a way to promote cross-border mobility while enhancing security. It appeals to the US because it is a form of interdiction: suspect travellers can be denied entry into the US before landing on US soil where they could access constitutional protections—just as we have seen happens with the STCA. For travellers, preclearance is touted as more expedient since delays at customs upon arrival in the US can be avoided—especially important when making a connecting flight. It is also more convenient, as international flights can land at domestic terminals that don’t have customs facilities. Thus, preclearance is seen as blending economic advantages while addressing security concerns: promoting trade and tourism, while protecting US citizens.

Preclearance areas are complex jurisdictionally. As defined in the 1999 Agreement on Air Transport Preclearance Between the Government of Canada and the Government of the United States of America, a “Preclearance area’ means the limited and operationally contiguous part of an airport terminal designated by the Host Party within which preclearance officers exercise specified powers and authorities.” ⁹ Effectively, once a traveller passes through US Customs that traveller is subject to US immigration jurisdiction—while waiting at the gate, eating in a restaurant, in the bathroom, when on the plane, and out on the runway. To leave US preclearance requires the approval of US authorities. These rules do not apply to everyone in this space. As Harry Hiller has noted, there are a large number of workers—e.g. in retail, food services, or caretaking—who have not crossed preclearance (Hiller, 2010: 26). Furthermore, while US immigration law is enforced, it coexists alongside Canadian law, such as the Canadian Charter of Rights and Freedoms, the Canadian Bill of Rights, and the Canadian Human Rights Act (Curry, 2017), while other aspects of Canadian sovereignty—e.g. the Canadian currency—are used (Hiller, 2010: 27). Thus, preclearance sites are a complicated overlapping of US and Canadian jurisdiction: they are sites where there is an “excess” of law (Johns, 2005).

While jurisdictionally complex, customs preclearance has become fairly normalized in Canada. Yet, the push for expanding preclearance raises significant concerns with respect to both rights and accountability, especially with respect to new legislation passed in both countries to facilitate preclearance. The US passed Bill HR4657: Promoting Travel, Commerce and National Security Act of 2016, which was signed into law by President Obama at the end of that year. The very brief, bipartisan bill had broad support, and states that US personnel stationed in Canada for border preclearance purposes (not including employees of the Department of Defense) will be held accountable in the US for federal offenses for which there is a corollary in the US. Simply, the Act will “ensure United States jurisdiction over offenses committed by United States personnel stationed in Canada in furtherance of border security initiatives.” ¹⁰ The upshot of this is that the law travels with the US preclearance officers into Canada with respect to their accountability, when they are on sites where US immigration policy is being applied.

On the Canadian side, much more comprehensive legislation has recently been passed by Parliament (12 December 2017). The new preclearance bill, Bill C-23: An Act Respecting the Preclearance of Persons and Goods in Canada and the United States, reaffirms many of the same terms as found in 1999 Canada–US agreement. The role of US preclearance officers stationed in Canada in delimited: they are not able to enforce criminal law, which means that while they can detain someone before arrest, only a Canadian law enforcement officer can actually make the arrest. Thus, there are no cross-border law enforcement powers ascribed, as there is with Shiprider. And yet, under Bill C-23 the powers of US preclearance officers are greatly expanded. They will be able to perform strip searches when Canadian border agents are not available, decline to do so, or do not arrive in time. Under the previously legislation, only Canadian officers were able to perform strip searches. Also in line with the 1999 legislation, border officers are allowed to use “as much force is necessary to perform their preclearance duties.” But whereas the 1999 agreement “authorizes” them to do so, the proposed Canadian legislation states that they are “justified in doing what they are authorized to do under this Act and in using as much force as is necessary for that purpose” (emphasis added). ¹¹ The shift in language from “authorization” to “justification” recalibrates the emphasis from being on what is allowable—what might happen—to what can be rationalized—when it does happen. The limit point between “as much force as necessary” and “excessive force” is not defined.

The directives around the use of force take on particular significance in that under the new legislation US preclearance officers in Canada will, for the first time, be armed. This change has been made possible by a contentious decision in Canada in 2009 to arm members of the Canadian Border Services Agency; accordingly, US officers will simply have the same capabilities as their Canadian counterparts. This is particularly troubling as armed US preclearance officers will be posted at bus, train and ferry stations. Airports are usually exclusive spaces, somewhat separate from the city, already highly securitized, with their own peculiar dynamics (Salter, 2008). Bus, train and sometimes ferry stations are often located in or around the downtown, in highly dense areas, integrated into the urban fabric. They are often important hubs of local and regional mobility, sites where thousands of commuters might pass through and hundreds of others work. Furthermore, they can be places were transient peoples gather, who may be more volatile and vulnerable. The dynamics of having armed border agents in these sites, especially non-national agents, is particularly worrying as it creates the conditions for more errors, accidents, killings.

The justification of use of force, the arming of agents, and the sites where they will be posted is made further problematic given that border agents at preclearance are provided with immunity for most of their actions. The Canadian Bill C-23 affirms that, as is set out in the US’s HR4657, “No action or other proceeding of a civil nature may be brought against a preclearance officer in respect of anything that is done or omitted in the exercise of their powers or the performance of their duties and functions under this part.” As the Government of Canada has itself affirmed, this creates “a new criminal liability regime.” ¹² Canadian Privacy Commission Daniel Therrien has further indicated that US border agents will be protected under the State Immunity Act, 1985 (Therrien, 2017). Kal Rautiala notes that policies on immunity “carve out anomalous legal regimes within the host state’s territory” (Raustiala, 2009: 139). Usually, immunity is an exemption or “a special privilege” only afforded to diplomats and the military (Basaran, 2010: 66; Snukal and Gilbert, 2015). In the case of preclearance, agents are immune from civil claims, and the US has the right to refuse their extradiction. A corollary effect is that constitutional protections for travellers are unenforceable because they cannot be brought to the courts.

With respect to travellers, their rights under Bill C-23 are more constrained. Under the 1999 legislation, individuals were able to remove themselves from the preclearance process at anytime—unless there were “reasonable grounds” that they presented “false or deceptive statements” or resisted or “wilfully” obstructed an officer. Under Bill C-23, if a US preclearance officer “has reasonable grounds to suspect that a traveller who is withdrawing from preclearance has committed an offence under an Act of Parliament,” the traveller can be detained, for an indefinite period, as long as it does not “unreasonably delay the traveller’s withdrawal.” (Reasonableness is not defined.) While detained, travellers will not only be required to answer any questions truthfully, but to provide a reason for their requested withdrawal, which the Canadian Bar Association (CBA) has suggested might be used as an opportunity for “asking intrusive questions about the person’s political or religious views” (CBA, 2017: 4). Thus, in the new legislation, the act of withdrawal itself becomes suspect, with refusal to answer taken as obstruction, which is a criminal offence. Refusal could thus lead to a federal record, and could impact someone’s ability to enter the US at a later date.

Both Prime Minister Trudeau and Public Safety Minister Ralph Goodale have insisted that Canadians have more rights in a preclearance scenario because it takes place on Canadian soil. This assertation has been disputed. With respect to indefinite detention, the CBA has stated that “Any law conferring discretion to detain without express or implied criteria governing its exercise is an arbitrary law” and hence not in compliance with the constitution (CBA, 2017: 5). Indeed, as the CBA remarks, US officers are not trained in or familiar with Canadian constitutional protections and thus “They are more likely to inadvertently breach [the] constitutional rights of Canadian citizens” (CBA, 2017: 6). As we have seen, similar points around the limitations of training in these cross-border scenarios have been raised vis-à-vis Shiprider, and impinge upon the enforceability of rights.

Constitutional rights could also be undermined in the application of US immigration law in Canada, especially as President Trump seeks to impose his Executive Orders to limit immigration from several Muslim-majority countries. Discriminatory profiling—for reasons of sexuality, gender, race, nationality, etc.—contravenes the principle of equality in the Charter (although it would be misleading to suggest that this kind of profiling is not already well-entrenched in Canada, as we have seen in many heated debates regarding the police). The turn towards “extreme vetting” could also infringe Charter rights, e.g. as US preclearance agents demand to inspect electronic devices. Along these lines, a Vancouver man was prevented from crossing the border at Vancouver customs preclearance when it was determined, wrongly, from the gay dating apps on his phone that he worked as an escort (Salerno, 2017). He was refused entry a second time a few weeks later because it was deemed to be suspicious that he had wiped his phone clear of these apps and his browsing history. Contrary to government assertions then, locating US customs on Canadian soil does not provide travellers with protections against warrantless searches. ¹³ But Bill C-23 goes still further to state that “No decision of a preclearance officer to refuse to conduct preclearance, or to refuse the admission of persons or goods into the United States in accordance with the laws of the United States, is subject to judicial review in Canada.” The actions of the US preclearance officers are thus not subject to any kind of judicial review, and there is no right of appeal, even through this too is in contravention of Canadian constitutional rights.

The CBA has concluded that “Bill C-23 would grant significantly enhanced powers to foreign officers operating on Canadian soil, with a consequent diminishment of the rights of Canadians and other travellers on Canadian soil who will be subject to these powers, without adequate safeguards” (CBA, 2017: 1). A similar redrawing of powers is set out in Bill C-23 with regards to any future Canadian preclearance facilities that might be announced (for which no firm plans have been made). As with the STCA described above, the border is deemed to be both static and shifting. Here, however, this elasticity pertains not just to bodies but also to goods. For the purposes of preclearance, goods that you are carrying are determined “to have been transported entirely within Canada” (and thus are subject to customs and duty), “whereas a traveller in a preclearance area or preclearance perimeter who is seeking to enter Canada is, for the purposes of the Immigration and Refugee Protection Act, outside Canada.” Designating the preclearance as outside Canadian for immigration purposes limits the opportunity for travellers to access constitutional protections, which, as we have seen with the STCA, only apply once a migrant has been determined to have entered Canada. Furthermore, the legislation asserts that a preclearance officer could “turn away” someone who is believed to be entering Canada to make a refugee claim, which the CBA states is “arguably in violation of Canada’s obligations under the UN Convention on Refugees” (CBA, 2017: 10). Effectively, the principles of the STCA would be extended to preclearance facilities.

The Canadian legislation also includes worrying new policies regarding Permanent Residents, who could be refused entry into Canada if it is believed that they have not met the terms of Permanent Residency, e.g. they have lived outside Canada for too long. Bill C-23 thus suspends two provisions of the Canadian Immigration and Refugee Protection Act—sections 19(2) and 27(2)—that guarantee the right of Permanent Residents to enter and remain in Canada. This introduces a new mechanism for differentiating between citizen and Permanent Resident, and penalizing the latter, which the CBA has described as “unacceptable and unnecessary” (CBA, 2017: 10). Furthermore, Bill C-23 also specifies that a traveller to Canada may withdraw from preclearance at any time, and unlike at a US preclearance site, is “not required to answer any question asked of them for the purpose of conducting preclearance.” The traveller, however, would then be subject to US laws that mandate truthfully answering any questions regarding identification, or to determine the reason for their withdrawal. Clearly, Canadian constitutional protections do not apply in these cases.

The new preclearance programs will thus enact an elastic border. The border is stretched into Canada so that US immigration jurisdiction will be enforced at preclearance sites, jostling alongside Canadian laws. While the Canadian government has asserted that travellers will be protected by the constitution—and thus that the border is static—it is already clear that the “excess” of the law—the overlapping jurisdictions—mean that Charter protections are unenforceable. The bodies of the US preclearance agents also carry the law with them in that they can only be held accountable for federal offenses under US jurisdiction, even though they have expanded powers under the new preclearance legislation. Effectively, a “new criminal liability regime” has been constructed which creates for them a kind of immunity, which also jeopardizes the enforceability of Canadian law. Immunity was a sticking point with respect to Shiprider, and the proposals to expand it to land borders the NxtGen initiative. Now that immunity has been included in preclearance, it may well be that the NxtGen initiative will move ahead. Finally, we can also see how the new legislation on preclearance invokes the idea of a static border with respect to the future rights of travellers in Canadian preclearance. As with the STCA, the concept of the static border is invoked to determine that travellers in preclearance are deemed not to have arrived in Canada for the purposes of Canadian immigration law, which limits the ability to make a refugee claim, while the rights of Permanent Residents are also contracted. Any goods that they carry, however, are considered to have crossed into the country and are subject to customs. As preclearance programs for goods expand—e.g. with proposals to station US customs officers at production sites in Canada—it will be important to see how the border is wielded to promote trade, while limiting the mobility of people.

Conclusions

Borders are being stretched. This is now a truism that reflects a world of globalized markets and heightened security. But borders are also elasticized: they are pulled taut, but then are snapped back into place. The “excess” of law at the border is used to remake territorial jurisdiction, but the law is also attached differentially to bodies. This jostling between territory and bodies makes the very enforceability of the law suspect. As I have illustrated in this paper, how jurisdiction plays out—and which laws are decided to apply where and for whom—has important implications with respect to who gets to access rights, and where, and how accountability is limited and for whom. While the law is often presented as a technical solution for resolving the paradoxes that arise, really it is through the law that these paradoxes are sustained—the law and legal decision-making is used to enact illiberal practices at and through the border (Basaran, 2010).

The focus of this paper has been on new security measures at the Canada–US border, but the implications of how laws at the border are being implemented and interpreted are much broader. Take the example of fifteen-year old Sergio Hernández Guereca who was killed by a US border agent on 7 June 2010. Hernández was on the Mexican side of a cement culvert than runs along the riverbed of the Rio Grande that separates El Paso and Juárez. He was hanging out with some friends when he was shot and killed by Jesus Mesa Jr, who was patrolling on bicycle on the US side. The Department of Justice refused to prosecute Mesa, arguing that no infringement of civil rights could be found as the victim “was neither within the borders of the United States nor present on U.S. property, as required for jurisdiction to exist under the applicable federal civil rights statute.” ¹⁴ Mesa was then charged with murder in Mexico, but the Obama government refused to extradite him for trial. A lawsuit against Mesa was subsequently launched by Hernández’s parents in the US federal courts, but it was dismissed, as it was again in the court of appeals: both courts agreed with the Department of Justice’s statements regarding the unenforceability of jurisdiction. The case has proceeded to the US Supreme Court. Mesa’s lawyer insists that “the laws of the United States do not apply beyond the middle of the culvert” (Blanc, 2017). In the lawyer’s words, “Borders are real and finite, and borders determine where the primacy of one country ends and the other begins” (Totenberg, 2017). The lawyers for the parents, however, have countered that if Mesa cannot be held accountable then the borderlands are effectively “a unique no-man’s land—a law-free zone in which U.S. agents can kill innocent civilians with impunity” (Liptak, 2017).

In the Hernández case, the stakes are also about how the law is territorialized, and attached to particular bodies. How this case is determined will have implications not only for the 283 cases of cross-border shootings that are on record, but other forms of extraterritorial engagements. As Justice Stephen Breyer has noted, the implications could also extend to the victims of US drone strikes. As he has asked, “Are we, in deciding for you, deciding as well that anyone who suffers a drone strike can come to New York and bring a law case?” (Blanc, 2017). The intimation is that a ruling in favour of Hernández would allow other victims who suffer violence that takes place outside the US, but which originates from within the US, could have access to constitutional rights. But even if a ruling were made in favour of Hernández, it is questionable whether the perpetrators of violence would be able to be held accountable, for as we have seen, the redrawing of jurisdiction has also enabled more immunity for security personnel. Indeed, as I have shown throughout this paper, borders are being made elastic: they are stretched, but they are also snapped back into place to limit both rights-claims and accountability.