Expanding the boundaries of boundary dispute settlement: international law and critical geography at the crossroads.

Author:Saliternik, Michal
 
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ABSTRACT

This Article identifies a new trend in the adjudication of international boundary disputes and examines it from a historical and normative perspective. For many years, the resolution of international land boundary disputes was governed exclusively by the principle of the stability and continuity of boundaries. Under this paradigm, the main role of international adjudicators was to determine the exact location of historical boundary lines that had been set forth in colonial-era treaties or decrees. Once these lines were ascertained, they were strictly enforced, and any attempt to challenge them was dismissed.

In recent years, however, international adjudicators have been increasingly inclined to deviate from historical boundaries in order to promote "human-oriented" goals such as the protection of borderland populations or the bolstering of peace efforts. After demonstrating this development in several cases, the Article evaluates its normative implications. For that purpose, the Article turns to Critical Border Studies (CBS), an emerging field within political geography that critically explores the sources, functions, and effects of borders. CBS sheds light on the power asymmetries that underlie the traditional paradigm and points to the need to adopt a more dynamic and equitable approach to boundary delineation.

Drawing on CBS insights, as well as on recent boundary jurisprudence, the Article maps out several types of human-oriented considerations that international adjudicators should take into account when deciding boundary disputes and examines ways to balance them with the principle of the stability of boundaries. Beyond its contribution to the study and development of international boundary law, this Article demonstrates the broader potential of marrying international law with critical geography, which has, so far, mostly been overlooked.

TABLE OF CONTENTS I. INTRODUCTION II. THE TRADITIONAL APPROACH A. Treaties B. Uti Possidetis C. Effective Control D. Dismissal of Other Considerations III. THE EMERGING JURISPRUDENCE A. The Abyei Arbitration B. The Burkina Faso/Niger Case C. The Temple of Preah Vihear (Request for Interpretation) Case D. The Emerging Boundary Jurisprudence and Contemporary International Law IV. CRITICAL BORDER STUDIES: A FRESH PERSPECTIVE ON INTERNATIONAL BOUNDARIES A. Critical Border Studies: Introductory Remarks B. Critical Border Studies in International Law Scholarship C. Critical Border Studies and Boundary Delineation Law V. TOWARDS A HUMAN-ORIENTED BOUNDARY DISPUTE RESOLUTION A. The Relevant Considerations 1. Impact on Local Populations 2. Impact on Inter-State Relations 3. Impact on the International Community B. How to Balance between the Conflicting Considerations VI. CONCLUSION I. INTRODUCTION

Land boundary disputes have occupied a central place in international adjudication for more than a century now. (1) During most of this time, the resolution of such disputes was governed exclusively by the principle of the stability and continuity of boundaries. (2) This principle entailed that, once a boundary had been determined, whether by existing states or their predecessors, it was almost impossible to challenge or revise without the consent of all the bordering states. (3) Under this approach, international judges and arbitrators upheld boundary treaties regardless of apparent defects in the original commitment or other fundamental challenges to their validity. (4) Moreover, even though most of these treaties had been concluded between former colonial powers with little knowledge of, or concern for local geographic and demographic conditions, any request for even a minor adaptation of the boundary based on such factors was dismissed outright. (5) The principle of the stability and continuity of boundaries also manifested itself in the strict application of the uti possidetis doctrine, which entailed that, in the case of a dissolution of a single colonial empire (or a federal republic) into several independent states, the internal administrative boundaries of the former were maintained as the international boundaries of the latter. (6) The main purpose of this zealous adherence to historical boundaries was to reduce territorial conflicts between neighboring states. (7) The prevailing assumption was that any change in the territorial status quo might harm the relationship between the disputing parties and, more importantly, might have a broader destabilizing effect on other countries. (8)

In recent years, however, the principle of the stability and continuity of boundaries has suffered some erosion. Rather than simply sanctify historical lines, international adjudicators have, in several cases, acknowledged the need to also take other considerations into account when determining the location of international boundaries. (9) These considerations have included securing the access of borderland populations to water resources, preserving nomadic lifestyles, enhancing the self-determination of minority groups, bolstering peace efforts, and protecting cultural heritage sites. (10) In some cases, adjudicators explicitly acknowledged the need to modify the historical boundaries in order to promote such "human-oriented" considerations. (11) others, they shied away from directly challenging the principle of stability, instead using these considerations as an interpretive tool that allegedly assisted them in determining the location of the historical boundary. (12) Either way, given the longstanding hegemony and deep hold of the stability principle, this development seems to represent a paradigm shift in the adjudication of international boundary disputes.

Surprisingly, this shift has slipped below the radar of legal scholars. In order to fill this gap, this Article offers an in-depth analysis of the emerging boundary jurisprudence and examines its normative implications. It discusses recent decisions in which international judges and arbitrators explicitly or implicitly departed from the principle of the stability of boundaries--namely, the decisions regarding Delimiting Abyei Area (Government of Sudan/Sudan People's Liberation Movement/Army) (Abyei), (13) Frontier Dispute (Burkina Faso/Niger) (Burkina Faso/Niger), (14) and the Temple of Preah Vihear (Request for Interpretation) (Cambodia v. Thailand) (Temple of Preah Vihear (Request for Interpretation)) (15)--and explains their novelty by comparing them to earlier judgments and awards that strictly applied the stability principle. It then engages in a normative evaluation of this legal development, arguing that the introduction of considerations other than boundary stability into boundary dispute settlement marks a positive evolution in the adjudication of boundary disputes.

In making this normative claim, the Article draws on insights generated by the Critical Border Studies (CBS) literature. CBS is an emerging academic field within the broader field of political geography, which investigates the sources, functions, and effects of borders from a critical perspective. Employing such critical social theories as Marxism, feminism, critical race theory, post-colonialism, and environmentalism, CBS scholars attempt to challenge prevailing practices, norms, and conceptions related to borders and to reveal the power asymmetries that enable them. (16) Curiously enough, this academic interest in borders has emerged at the same time that scholars have argued that globalization processes erode national boundaries and diminish their importance. (17) Viewed against this backdrop, CBS may be seen as a counter-response to the "borderless world" discourse sparked by globalization. CBS scholarship shows that national borders still have a great influence on the life conditions and opportunities of many people in the world, especially in developing countries. (18) It therefore calls for an ongoing examination and reexamination of the role and impact of borders in the global era.

Situated outside the realm of law, the CBS literature sheds light on the political biases underlying the traditional adjudicatory approach to boundary disputes. (19) It suggests that the formalistic adherence to historical boundaries that were drawn by European colonizers many years ago with the sole purpose of facilitating their control over foreign territories reflects the Eurocentric tendencies of contemporary international law. (20) While international adjudicators who uphold colonial boundaries usually do not deny their dubious origins and the injustices that they cause, they nevertheless assert that respecting these boundaries is preferable to risking international stability. (21) A CBS perspective casts doubt on this proposition and calls for a different balance between the conflicting interests. Importantly, CBS emphasizes that the process of rebalancing the relevant interests should be reflective and dialectic, attentive to the narratives and experiences of various stakeholders, and open to bottom-up, periphery-center influences. (22)

Inspired by these notions, this Article discusses possible ways to further develop and refine the recent adjudicatory trend of incorporating human-oriented considerations into boundary dispute settlement. It suggests that international tribunals delineating interstate boundaries should take into account three types of considerations. The first type concerns the impact of boundaries on the people who live near them. For example, international adjudicators should strive to ensure that boundaries do not prevent local populations from accessing their agricultural lands or other livelihood resources. In addition, they should be sensitive to the ethnic, national, or tribal affiliations of local populations and refrain from splitting vulnerable communities across different states in a manner that may undermine their self-determination. The second type of consideration concerns the promotion of peaceful relations between...

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