Thinking Outside the Border: Homeland Security and the Forward Deployment of the U.S. Border


Following the September 11, 2001, terrorist attacks, the U.S. government implemented a number of inbound cargo security programs it described as “pushing the border outward” or “expanding [the U.S.] perimeter of security.” Are these statements rhetorical flourish, or do these programs materially affect international cargo trade? This article argues that far from being mundane or rhetorical, these cargo security programs are transforming how U.S. borders operate from both a conceptual and practical perspective. Specifically, by moving certain aspects of border functionality to locations well-removed from the physical U.S. border, these programs make U.S. regulation of inbound trade significantly more extraterritorial. These changes affect not only U.S. national security, but also the very patterns and growth of international trade in goods.

In order to fully explore this thesis, this article first summarizes these programs and analyzes them through the lens of early- and mid-twentieth century political geography, which is useful for evaluating the defensive rhetoric and actual structure of these programs. The jurisdictional and sovereignty aspects of these forward deployment efforts are then examined, with particular emphasis on efforts to multilateralize these cargo security programs. This article concludes that the extraterritorial aspects of these programs can be legally justified on a number of grounds. Multilateral support or consensus is the most readily apparent of these rationales, but even absent such multilateral support these programs can be defended on other bases, including that of unilateral, implied consent to these programs by U.S. trading partners and importers.

The article concludes by addressing the impact of these programs on global trade. In particular, these cargo security programs can be seen as permanently transforming U.S. inbound trade regulation from a primarily domestic regime to one for which extraterritoriality is a central feature. In the short term, this shift has led to greater U.S. control or influence over foreign commercial and regulatory activities, which is of course significant. In the long term, however, the effect of these programs will depend upon whether they become truly multilateral in application or remain largely bilateral or unilateral in effect. If they remain bilateral or unilateral, the short term status quo of greater U.S. extraterritorial reach will remain in place. If full multilateralization occurs, however, these programs could reduce or erase many of the current distinctions between domestic cargo shipments and international cargo shipments, as foreign regulatory regimes directly affect both international and U.S. domestic cargo shipments. As discussed in more detail in the article, such multilateral interconnectivity would significantly alter the nature of international trade in cargo.


International Law | International Trade Law

Date of this Version

August 2006