Invisible borders: mapping out virtual law?

• Author: Claussen, Kathleen

1. OVERVIEW

   In his preface to a 1945 treatise on international borders, S. Whittemore Boggs opened with this historical overview:

   Boundaries and boundary problems have undergone great changes. When Marco Polo crossed frontiers from one jurisdiction to another there were no precise boundaries like those of our time. Even a century and a half ago the international boundary picture bore little resemblance to that of today. In Asia there were few treaty or other definite lines, but only fluctuating limits of various kingdoms.... European boundary concepts have proliferated until they now extend to nearly all international boundaries in all continents. (1) Since Boggs penned those words over sixty years ago, more than ninety states have made their (re-)introduction to the global landscape. (2) United Nations membership has expanded in forty-two of the last sixty-three years as state borders have been drawn and reconfigured. (3) Independence movements, changes in natural landscapes, and shifting populations as a result of war, famine and disease are among the many causes for border (re-)drawing.

   Much is at stake in these cartographic revisions, as made evident by the proliferation of border dispute resolution commissions and the many cases related to territorial sovereignty initiated in the International Court of Justice. For this reason among others, border disputes are some of the most hotly contested controversies to arise in international arbitration. (4) Yet, the 1945 treatise is the most recent comprehensive examination of international law on delimitation and demarcation processes. (5)

   Despite the evolution of the law in other areas of science, (6) the technology of border drawing has advanced significantly while the legal guidelines have not changed. In the absence of any impetus from states or international organizations, the legal norms for demarcation remain the same as those that were used at the time of the Roman Empire. (7) This Essay aims to draw attention to this discrepancy between science and the law on international boundaries and proposes the development of an institutional mechanism that would harness the potential of the recent advances in border technology and assist in ameliorating ongoing boundary-related controversies.

   The Essay begins with an overview of the intersection between law and the scientific enterprise. It suggests boundary-marking as a test case for the self-updating prerogative of the law by shedding light on the antiquated and inefficient methodology currently employed by states in demarcating borders. Part II provides a brief overview of the science of demarcation. It addresses the history of demarcation, changes in the methodology, and the terminology used by boundary engineers--geographers, surveyors and cartographers. The third Part takes up changes in the law through the perspective of boundary architects--diplomats and state leaders. It reviews the international law on demarcation by focusing on three boundary commissions and their reasoning in adopting a particular approach to boundary-marking.

   I conclude by proposing the creation of a central depository for border information that would serve as the authoritative source of boundary demarcation data. Although some states keep their own records of boundary demarcation data for other states, many of these records contain conflicting information and perpetuate the problematic discrepancies in determining border locations. A central depository within the United Nations that uses the latest technology to effectuate precise and accurate boundaries would help to put an end to measurement error and incongruities in the location of contentious borders.

   Note that this Essay is directed at boundary-marking, rather than boundary-making, but, at the same time, it argues that by drawing upon the most updated technology in the field, these two processes will become inseparably integrated; in other words, through marking the boundary using the most modern technology, delimitation and demarcation will finally produce single, coherent outcomes.

2. LAW AND TECHNOLOGY--AT THE MACRO LEVEL

   Domestic legal processes are constantly adjusted with respect to the latest technologies. The development of the "electronic courtroom," for example, has facilitated the use of video conferencing for special hearings over the last ten to twenty years. (8) Everyday tools in legal processes, such as the use of word processing in the taking of depositions, are in fact relatively recent additions to the way in which law is practiced. Likewise, science is continually incorporated into the substance of the law. In both domestic and international realms, the law is constantly bringing itself up-to-date. The propagation of international agreements such as the Cartagena Protocol on Biosafety, (9) the Stockholm Convention on Persistent Organic Pollutants, (10) and the U.N. Convention on the Use of Electronic Communications in International Contracts (11) confirms this anecdotal trend.

   Although many of these international conventions aim to restrict the use of technological innovations for malevolent purposes, scientific advances in other areas may ease and empower states and individual actors. The advent of communications technology in the nineteenth century, for instance, vastly changed the framework of admiralty law by giving individuals means to settle disputes through deliberate, immediate and regulated dialogue, rather than resort to complex state negotiations or violent retribution. (12) Looking beyond the restrictive legal mechanisms according to which technology is regulated, lawmakers should be equally interested in exploiting the potential of technological advances in order to realize desired social outcomes. (13)

   At first glance, overlaying the scientific agenda on the legal agenda may reveal disparate, though not mutually exclusive, goals. Insofar as both aim to enhance the quality of life for their constituencies, the scientific and legal agenda should be integrated. Some scholars have painted the relationship between law and science as conflictual or problematic, suggesting that technology has the power to destroy international law or that international law and technology will "collide" (14); however, other areas of the law as noted above and below suggest that this antagonistic relationship is not pre-determined. The Law of the Sea Convention, for example, undertakes to govern states' use of and access to "marine genetic resources" realized by advances in technology. (15) As a result of these developments, the definition of "resource" was expanded; the law was shaped by ingenuity and need.

   Similarly, in boundary-marking, technology and necessity have produced an alternative methodology and, therein, a new modality for international law in this area, though it has not been widely embraced. One explanation for states' reluctance to pursue changes to the status quo is that the science of boundary-marking is intimately interwoven with concerns about sovereignty. (16) The intersection of diplomacy and earth science is inevitably implicated in delimitation and demarcation. Thus, there is not only a delay but also a general reluctance to draw from the inventive solutions geographical positioning and imaging systems might offer. (17) Only a few boundary dispute commissions have employed readily available technologies for the purpose of demarcating the border. (18) The next Part explains demarcation, delimitation and their historiographies in more detail.

3. THE SCIENCE OF DEMARCATION

   "The best boundary is one which would promote both minimum world public order, understood as a prohibition of unlawful coercion across adjacent boundary lines, and optimum order, in the sense of the promotion of the greatest cooperation in common interest on both sides of international boundaries." (19)

   1. Definition

      Border determination involves a multi-step process: allocation of territory, delimitation, demarcation, and ongoing administration. (20) Allocation, as the name suggests, refers to the initial political division of territory. (21) To allocate the territory means to use diplomatic channels to reach an agreement regarding which general area belongs to each state. (22) Delimitation refers to the selection of the boundary site and its written definition in words or measures in a treaty or other formal document. (23) In contrast, demarcation refers to the construction of the boundary on the ground, originally conceived as the erection of monuments along the line defined in the delimitation process. (24) The final step, administration, is a continuing project of managing the border; administration here does not necessarily refer to the management of goods and people that cross the border, but rather it refers to the physical maintenance of the boundary itself as demarcated. (25)

      The terms "delimitation" and "demarcation" became terms-of-art upon their use by Sir Henry McMahon in an 1897 lecture. (26) Although delimitation was designed to be the final political act of the states party engaged in border negotiations and demarcation was its realization by way of monumentation, the Jones treatise outlines the traditional methods of delimitation, all but the first of which indicate that political decisions will be required in later steps. (27) The first method is "complete definition" in which surveying is completed to the highest level of precision possible, (28) Second, and much more common, is "complete definition with the power to deviate" which allows flexibility for natural boundaries not accounted for at the negotiating table as well as for accommodating personal properties along the boundary. (29) Third is boundary definition based on major turning points along an estimated route. (30) Each of the final four methods becomes less precise; the last and most vague delimitation specification is delimitation based on natural features. (31)

      Thus, demarcation--the...