WK1 CASE STUDY CJ453

Chapter One

One of the most well known examples of how borders are formed and how they can affect the lives of people occurred during and after World War II.  From 1940 to 1944 Germany and Italy invaded the European mainland, to which a large portion of the free world (allied forces) united to drive the invaders out.  When World War II ended, the U.S., the U.K. and the Soviet Union divided the occupied lands up, creating defined formal borders.  These borders were agreed upon by and were to be maintained by the three countries, however over time the politics of borders and who could and could not cross them became an issue an Germany eventually became a divided country; the East (Russia) and the West (the Free World).   This resulted in the Berlin Wall which was a border fence built to keep people in (the East) and those in the West out.  What were originally boundaries between occupation forces became barriers to human and commercial traffic and ultimately morphed into a formal border between two, politically and economically divergent countries.  The fence between East and West Germany became a physical border, protected with mine fields, wire fence that could only be cut with a torch, guard towers, lights, and armed forces with orders to shoot-to-kill people trying to “leave” rather than potential invading forces.  Eventually, in 1989 the Berlin Wall was taken down uniting Germany into one country;  the Federal Republic of Germany.

The separation between East and West Germany was a political and economic barrier that has left remnants of “otherness” in some people’s minds.  A physical, political, and economic wall had separated people of the same ethnicity, language, and culture for nearly fifty years.  Twenty years after that barrier came down there are still political, social, and cultural repercussions.

Our text outlines the difference between barriers, boundaries, and borders. Each has separate and unique functions while all are common components of the modern political and economic lines that separate countries, states, and counties.  Natural barriers and boundaries make some of the best borders because of the inherent difficulties in crossing them.  Geography is the best example of a natural barrier and therefore natural borders.

· Barrier is a material object that is intended to the block passage of people and/or property.  Barriers can include solid walls, electric fences and mine fields.

· Boundary is line (imaginary or physical) that fixes a limit.  Boundaries can be political, economic, legal, physical or mental.

· Border is an outer edge, perimeter, periphery, or rim and are commonly used to delineate national and political boundaries.

Geography, such as a mountain range has long been a barrier to movement and in much of the world it still is.  Many mountain ranges have acted as natural barriers, boundaries, and borders.  An example of this type of border would be the Andes mountains which is a continual mountain range that runs along the west coast of South America.  These nearly impenetrable mountains form a natural physical barrier and therefore a natural border between the Pacific and Atlantic countries of South America.  Chile, Peru, Ecuador and Colombia all lay along the western slopes while Argentina, Bolivia, Brazil and Venezuela lie along the eastern slopes.

Besides mountains there are many other natural geographical barriers which can include oceans, rivers and straits.  Both North and South America consider the Atlantic and  Oceans to be natural barriers, shielding those continents from attack, due to the vastness and difficulty of moving attacking forces across these waters.

Another good example of a natural barrier for the U.S. would be the Rio Grande River which has served as a natural barrier in North America, establishing more of half the international border between the United States and Mexico.  Other natural bodies of water that provide barriers in North America would include the Great Lakes and St. Lawrence River which comprise a large portion of the international border between the U.S. and Canada. 

Another natural geographical barriers that make for excellent boundaries are deserts.  Deserts are good boundaries because they are and as a result little can survive long without access to water.  Not only that, the extreme temperatures are detrimental to human life (extreme heat by day and extreme cold by night).  In the U.S. the desert regions are essentially found across the entire southwest of the United States and northwest expanse of Mexico.  Across this region are found several major deserts stretching from Laredo, Texas to San Diego, California including the Sonoran and Chihuahuan.

National borders are established in a variety of ways.  Countries begin with some sense by the people of commonality amongst themselves and uniqueness from others. Often, that commonality stems from a combination of language, ethnicity and religion.  This becomes the core component of the political entity that establishes relationships with neighboring groups.  Over time, fixed, identifiable limits are placed on which group controls a given area politically.  Formal arrangements are usually concluded by treaty (an agreement) which is usually formalized through some sort of signed document. 

The evolution of the modern nation state from the late 18th century to the early 20th century corresponds with the absolute claims to legal and political supremacy and the ascendance of effective international law which has essentially been derived from the will of nations.  This all changed with the establishment of the United Nations at the end of World War II.  With this came the modern era of international relations from which we derive the current system of the law of nations.  Nations longer operated from the perspective of mutual respect and abstention in the internal affairs of other nations, but instead moved to the U.N. model of organized joint cooperation.

With this understanding of the origin and evolution of the law of nations it is necessary to establish the identity of states.  A state is a “legal personality” or an “international legal person” in proper terms.  The Convention on Rights and Duties of States (1933) defines in Article 1, “The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.” In Article 2, “The federal state shall constitute a sole person in the eyes of international law.”

When does a “state” become a “state” is the subject of two different theories:

1. One says it is recognition of the “state” by an established state(s).  

2. The other theory looks to the establishment of facts that meet the criteria of statehood as laid down in recognized international law (UIO, 1933).  

As a result, a state may exist without being recognized by other states. The primary function of international recognition is to declare one country acknowledges the other state’s political existence and as such is willing to treat that entity as an international person, with the rights and obligations of States.  Collectively, the governmental powers of a state are referred to as its sovereign powers.  The fullest measure of sovereign powers is exercised by a state over its land, air and coastal territories which leads to the institution of borders between nations.  

Our text covers the ways which states can acquire more territory;

1. Accretion. This is the expansion of a state’s territory by the operation of nature.  An example would include the shifting of the course of a river, volcanism resulting in creation of new landmass, and rivers laying down silt in their drainage basins.

2. Cession. This involves the transfer of sovereignty by means of an agreement between the ceding and the acquiring states.

3. Conquest. This comes when one country acquires the territory of another through military force and a declaration of the conquering state’s intention to annex it.

Borders between countries frequently span land, rivers, and lakes. In the Restatement, Second, Foreign Relations Law of the United States (1965), these boundaries were defined in subsection 12 as;

1. The boundary separating the land areas of two states is determined by acts of the states expressing their consent to its location.

2. Unless consent to a different rule has been expressed,

a. when the boundary between two states is a navigable river, its location is the middle of the channel of navigation;

b. when the boundary between two states is a non-navigable river or a lake, its location is the middle of the river or lake (Wilkes, 1965).

Boundaries on oceans fall under a separate rule of law, the  Law of the Sea . The United Nations Conference on the Law of the Sea in 1958 adopted four conventions which include;

1. on the Territorial Sea and the Contiguous Zone,

2. on the High Seas,

3. on the Continental Shelf, and

4. on Fishing and Conservation of the Living Resources of the High Seas (United Nations Diplomatic Conferences, 1958).  

Because there where disagreements between countries a Third Conference on the Law of the Sea was convened and in 1982 produced a new treaty with a variety of additional provisions.

The U.S. has never agreed to the United Nations Convention on the Law of the Sea and has only agreed with the part which establishes the territorial waters of a country as extending 12 miles from the low-tide water line of the country’s landmass.  The contiguous zone is limited to 24 nautical miles from the low-tide water line and a state may;

1. exercise the control necessary to:

a. prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea;

b. punish infringement of the above laws and regulations committed within its territory or territorial sea (United Nations Diplomatic Conferences, 1982)

Waters that are not parts of exclusive economic zones, within the territorial sea, or the internal waters of a state, or in the archipelagic waters of an archipelagic state are considered the high seas. For hundreds of years international law saw the high seas as belonging to everyone and under the U.N. Convention, art. 87, the high seas “shall be reserved for peaceful purposes.”

The sovereignty of a state implies the right to regulate commerce through taxation, tariffs, and prohibitions. This is one of the fundamental core considerations of being an independent nation. One of the key components of the U.S. Constitution is the “Commerce Clause” in Article I, section 8 which says “The Congress shall have the power…. To regulate commerce with foreign nations, and among the several States, and with the Indian tribes.” Congress exercises this power through passage of laws and imposition of taxes, duties, imposts, and excises. In order to better address the growing international trade experienced in the early 20th century, the Congress established the U.S. International Trade Commission (USITC) in 1974.

The USITC is a federal agency with investigative powers on matters of trade.  The activities of the USITC activities include:

1. Determining whether U.S. industries are materially injured by reason of imports that benefit from pricing at less than fair value or from subsidization;

2. Directing actions against unfair practices in import trade, such as patent, trademark, or copyright infringement;

3. Making recommendations regarding relief for industries seriously injured by increasing imports;

4. Advising whether agricultural imports interfere with price-support programs of the U.S. Department of Agriculture;

5. Conducting studies on trade and tariff issues and monitoring import levels; 

6. Participating in the development of uniform statistical data on imports, exports, and domestic production and in the establishment of an international harmonized commodity code (Legal Information Institute, 1974).   

As with most things, there are always bad (unintended results) to everything.  Removing trade barriers between countries is no exception.  Agreements such as NAFTA, while good in general has also produced some significant problems.  One problem NAFTA has taught us is the low standards of living in one country results in lower wages for workers, such as is the case in Mexico, which has placed companies here in the U.S. in a position where the relocation of a factory from here to be more profitable in the lower wage country.  This “increasing the bottom line” improves the financial reports of companies, at the cost of lost employment in the original country.

This can also happen in the reverse.  The agriculture industry here in U.S. is extremely efficient in producing food which results in relatively low food prices.  These products, as a result of treaties such as NAFTA are exported to countries like Mexico where traditional food production methods are costly and labor intensive, making the food prices there high.  The result of the agricultural U.S. exports into Mexico has resulted in a loss of agricultural jobs in an inherently poor country.

Another thing the world is learning is the globalization of trade is rapidly breaking down economic barriers between countries worldwide.  The result is that borders have begun to change in function and purpose.

As history has taught us, there have been, and probably always will be disputes regarding the boundaries between two countries, or even territories that aspire to be recognized a country (i.e. Palestinian). There are several ways these disputes can/have been resolved. 

A close to home example would be when the United States went to war with Mexico in 1846 over a over a depute of where the border was between Mexico and the State of Texas.  At the conclusion of the war, Mexico agreed to the Treaty of Guadalupe Hidalgo in which Mexico ceded California, Nevada, Utah, Arizona, most of New Mexico and Colorado and formerly claimed lands north of the Rio Grande River.

Other disputes may go to national or international courts for resolution.  For example;

1. the International Tribunal for the Law of the Sea resolves disputes over access to mineral resources on the seabed in regions not reserved to any state or territory.

2. the International Court of Justice resolves disputes over the delimitation of boundaries along continental shelf between States with opposite or adjacent coasts.

Many countries have gone to war over border and boundary disputes.  It is only the recent past that has seen a move to negotiation and arbitration to resolve such disputes.  An example of a dispute over who possessed a particular territory that ended in a military conflict is the Falklands War of 1982. The conflict was the result of a protracted historical confrontation regarding the sovereignty of the islands.  The long-standing dispute resulted in the Argentinean invasion and occupation of the Islands on 2 April 1982.  In response, the British government dispatched a naval task force to engage the Argentinean Navy and Air Force and retake the islands by amphibious assault.

History has shown us disputes over borders are resolved through a variety of methods.  Anything from legal action, to tribunals, to the use of military force has been utilized throughout time. Another method of resolving continued border violations is for a state to erect barriers.

According to our text, barriers are material objects that are intended to block passage.  Although natural formations such as mountains or streams historically make the best barriers most country borders are artificial delimits drawn on maps.  This has resulted in the need, in some instances, to erect physical barriers to prevent, or limit, unwanted incursions across borders.

When one thinks of manmade physical barrier, the "Great Wall of China" is very most likely to come to mind.  The wall built to protect the Chinese Empire from intrusions by the various nomadic peoples in Mongolia and Siberia.  The Great Wall has also effectively allowed China to control unwanted immigration.

The most contentious wall in recent history has been the wall being built by Israel to isolate Jewish settlements from encroachment by the native Palestinians living in the West Bank.  Israel has been building communities throughout the land seized in a previous conflict under a variety of initiatives, with frequent starts and stops as part of the ongoing and often stalled peace process with the peoples of the occupied territories.  The Israelis refer to the wall as the “separation” or “security fence.”  Opponents to the structure refer to it as the “Apartheid Wall.”  Regardless of the name or the opinions of the world the function on the barrier is clearly intended to suicide bombers and snipers, primarily for Palestine, from launching attacks against the Jewish population.

Modern manufactured barriers work on a small scale, but tend to be cost prohibitive on a large scale. The border between the U.S. and Canada is almost entirely devoid of barriers to movement.  The border between the U.S. and Mexico has several natural barriers to movement including the Rio Grande River and the extensive deserts.  These have been insufficient in stopping the movement of contraband and people into the U.S. from Mexico.  As a result, significant efforts are being expended developing and constructing barriers of various types to control illegal crossings.

The bottom line is any barrier constructed to restrict movement, also hinders the free flow of commerce.  This is the conundrum facing engineers and politicians alike; how to build barriers to keep out those not wanted, while allowing the movement of people and commodities.  This is the fundamental quandary facing all nations throughout history.  Securing a state’s borders, whether by establishing economic or political boundaries, or the construction of physical barriers, is the subject of the remainder of this course.