WK1 ASSIGNMENT CJ453

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;

• The boundary separating the land areas of two states is determined by acts of the states expressing their consent to its location.
• Unless consent to a different rule has been expressed,
• when the boundary between two states is a navigable river, its location is the middle of the channel of navigation;
• 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;

• on the Territorial Sea and the Contiguous Zone,
• on the High Seas,
• on the Continental Shelf, and
• 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;

• exercise the control necessary to:
• prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea;
• 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:

• Determining whether U.S. industries are materially injured by reason of imports that benefit from pricing at less than fair value or from subsidization;
• Directing actions against unfair practices in import trade, such as patent, trademark, or copyright infringement;
• Making recommendations regarding relief for industries seriously injured by increasing imports;
• Advising whether agricultural imports interfere with price-support programs of the U.S. Department of Agriculture;
• Conducting studies on trade and tariff issues and monitoring import levels; 
• 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;

• 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.
• 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.

Chapter Two 

The idea of surrounding a city with walls has occurred in history many times.  Examples of walled cities are found in China, Korea, Japan and the Middle East.  Early Rome was walled and as the city grew, so did the walls.  History has shown us a walled city has two chief advantages: it allowed a small force to resist a larger opposing force, as least long enough to enable a more effective and substantial resistance, and, secondly, it allowed for poorly-trained forces to hold out against a better trained enemy.  The basic principle of fortification is to put a barrier between "defender" and "attacker".  The walls not only protected the inhabitants of the city, but also marked the city's boundaries. 

In the reverse, when an attacker was confronted with a wall, the attacker had five options; retreat, establish a siege and hope that disease and starvation wears down the defenders, go over the wall, go under the wall, or go through the wall.  Siege has been the most common military practice in history. Providing the attacker could find sufficient provisions for their forces in the surrounding countryside, the walls provide an excellent prison from which the defenders have no escape and only the supplies stored within to wait out the attackers.  To go over a wall, through it, or under it all require the construction and placement of siege weapons such a portable towers, battering rams, or the employment of sappers to undermine the walls.  This took time, sufficient local materials, and skilled artisans, not all of which were readily available in all conditions.

One famous walled city was the City of Jericho which is located on the west bank of the Jordan River.  Jericho is one of the oldest continuously inhabited cities in the world and the most striking aspect of this ancient city was a massive stone wall nearly 12 feet tall and over 6 feet wide at its base.  Included within the wall was a tower over 12 feet tall with an internal staircase of 22 stone steps.

Another good example would be the City of Troy, which controlled the entrance to the Black Sea from the Mediterranean and was an important trading center.  Troy's wall were massive and sloped outward on its face, thus giving not only great stability but also superior resistance to attack.  The wall was provided with square towers and had several unique gate designs including an overlapping of walls so that any invader would have to made several 90 degree turns while under constant attack from above in order to try to breach the city.

One of the most well known walls would be the so called Great Wall of China that was constructed as both a border and a barrier.  Our text tells us there are four major walls which encompass the Great Wall of China (all built during different period of time) which include:

• 208 BCE (the Qin Dynasty)
• 1st century BCE (the Han Dynasty)
• 1138–1198 CE (the Five Dynasties and Ten Kingdoms Period)
• 1368–1620 CE (from Emperor Hongwu until Emperor Wanli of the Ming Dynasty)

The Great Wall of China is a series of stone and earthen fortifications built between the 5th century BCE and the 16th century CE to protect the northern borders of the Chinese Empire.  The most famous is the wall built between 220 BCE and 200 BCE by the first Emperor, Qin Shi Huang as it was the wall that defined what was to eventually become China.

Between the 5th century BCE to 221 BCE, the states of Qi, Yan and Zhao constructed fortifications to defend their own borders.  These walls were built to withstand attack by forces equipped with swords and spears, and thus, these walls were made mostly by stamping earth and gravel between board frames.

Qin Shi Huang unified China in 221 BC and established the Qin Dynasty.  The Qin Wall was built during the reign of the First Emperor.  This wall was constructed by the joining of several regional walls built by the Warring States.  Intending to impose centralized rule and prevent the resurgence of feudal lords, the emperor ordered the destruction of the wall sections that divided his empire along the former state borders.  To protect the empire against intrusions by the Xiongnu people from the north, the emperor ordered the building of a new wall to connect the remaining fortifications along the empire’s new northern frontier.

The Great Wall concept was revived again during the Ming Dynasty.  The primary purpose of the wall was not to keep out people, but to insure people on the outside of the wall could not cross with their horses or return easily with stolen property.  In other words, the Great Wall of China we know today was built as a means of border control.

Time has demonstrated even the most iconic borders are much more fluid than the physical structures indicate.   A good example of this fluidity in borders would be Europe; from the end of the Western Roman Empire through the present day.

When the Roman Empire fell, it was divided into four provinces and subdivided into thirteen dioceses for administration under the Roman Catholic Church.  The borders between the various provinces and dioceses were sometimes established along rivers, other times paralleled mountain ranges and other times simply lines drawn between political entities with no geographical basis to the decisions.

Borders have been identified and then re-identified for many reasons over the years to include religious wars, fights over resources, fighting invaders and wars over the succession to a throne have all been the cause of borders being changed in history.

The United States is no exception.  Over the years, many countries established colonies in North and South America which resulted in a never-ending conflict over access to the rich mineral resources of the continents.  The ebb and flow of change in the Americas was tied to the fortunes of the colonial powers home countries and their associated conflicts over territory and power on the European continent.

After the Revolutionary War, the Treaty of Paris (1783) was signed between the U.S. and Great Britain and the original thirteen colonies gained control of all lands from the Eastern seaboard to the Mississippi River.  In 1800, Napoleon offered to sell the territory in what is now known as Louisiana to the U.S. for about $15 million and the Louisiana Purchase treaty was signed in 1803.  More border controversy followed when Spain questioned the legality of the Louisiana Purchase, but this was eventually settled with the Adams-Onís Treaty of 1819.  Before the United States could secure the land it has today, it had fight a second war with Great Britain, a war with Mexico, and a war with Spain. 

Even in more modern history, walls have continued to be used for the same old purposes they were in early civilization; protection and border identification.  After the first World War the French feared the Germans would return for revenge and built a wall (Maginot Line) intended to keep the Germans out of their country.  The French were right about the Germans return (WW II) and quickly found out their "wall" would not even slow down the German advance. 

Not to be outdone, the Germans felt the need to build a wall (Siegfried Line) to identify and protect their borders too.  In 1938 construction on the West Wall which stretched from Aachen in the north to the Rhine River and then along the Rhine to the border with Switzerland began.  As the French learned, walls of this nature do little to stop the march of a modern army as the Americans and British would penetrate the Siegfried Line as rapidly as the Germans drove around the Maginot Line at the beginning of the war.  In an era of modern warfare, the protection of the border from land incursions is insufficient and a considerable portion of the border protection involved the establishment of air defense capabilities.  The advent of air defense along the Siegfried Line as a component of border security and the German development four years later of ballistic missiles, would determine the long-term policies of countries faced with border security issues for most of the remainder of the 20th century.

Not all border walls were to keep invaders out.  For over forty years a wall spanned the length of Europe in an attempt to keep people from leaving.  Fearful that continued interaction of people within the Soviet Union and those of Western ideologies; Joseph Stalin decreed the East would be sealed off from the West through the erection of an ideological, military, political, and physical barriers (called the " Iron Curtain"). 

The "Iron Curtain" was a physical fence that stretched for thousands of kilometers to separate Eastern and Western countries and it was especially strong in Germany, where the division of Berlin by a concrete and barbed wire wall became an unmistakable symbol of the forced separation of politically free and communist totalitarian societies. 

The "Iron Curtain" was erected not with the purpose of preventing a NATO invasion, but to keep people from leaving the Soviet dominated countries in a continuing drain of intellectual power and skilled labor for the better opportunities offered by democratic societies.  East German soldiers were under orders to shoot anyone attempting to defect.  Communications in the modern world would ultimately result in the fall of the "Iron Curtain".  Television and radio simply made the physical barriers separating the Eastern Bloc countries from their Western counterparts moot.  There was no way to prevent the continuous bombardment of audio and visual images of the “good life” experienced under democracy and capitalism from permeating the regions behind the "Iron Curtain".  As a result, protest demonstrations broke out all over East Germany in 1989until the "Iron Curtain" that had divided the European continent for nearly half a century succumbed to the will of the people to be free.

Another well known boundary that was formed through conflict is the so called demilitarized zone (DMZ) that includes a 2.5-mile wide, 160-mile long zone has been erected in 1953 at the end of the Korean War between South Korea and North Korea.  The DMZ was created as each side agreed to move their stalemated forces back 2,200 yards from the front lines, creating a buffer zone between the troops.  Today, the Military Demarcation Line (MDL) goes down the center of the DMZ and indicates exactly where the front was when the agreement was signed.

The Korean DMZ is symbolic in nature, having little to do with actually stopping any aggressions between the two countries.  The DMZ only serves as one last reminder of the ancient efforts by empires to protect themselves from outsiders.

From the earliest days of human society a border has been necessary to identify the boundaries of territory and provide security for members of the society.  As civilizations grew, expanded and came into conflict, the delineation of a border was insufficient, resulting in a need to establish barriers to invasion.  This resulted in the building of  walled cities, border fences and electronic surveillance systems to monitor cross-border traffic.

Frequently, border security has been as much about regulation of trade and control of moving populations as it has been about physical security of cities and nations.  Today, it is a combination of all aspects associated with the control of territory for the good of a recognized population.

History has taught us one thing; borders are fluid.  Borders change as populations move and societies transform. Economics, politics, religion and conflict are all factors affecting modern borders and driving them to change.  In a world where industry, religion, and transportation are globalized, borders may soon become an anachronism, forcing a new reality on the human community.

References

Legal Information Institute (LLI) (1974).  Commerce Clause, Article I, section 8 International Trade    Commission (USITC) in 1974. Cornell University of Law. Retrieved from: https://www.law.cornell.edu/constitution/articlei

United Nations Diplomatic Conferences (1982). United Nations Conference on the Law of the Sea, 1982 . Retrieved from: http://legal.un.org/diplomaticconferences/lawofthesea- 1982/docs/vol_XVII/a_conf-62_121.pdf

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United Nations Diplomatic Conferences (1958). United Nations Conference on the Law of the Sea, 1958 . Retrieved from: http://legal.un.org/diplomaticconferences/lawofthesea-1958/lawofthesea-1958.html

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University of Oslo (UIO) (1933). Montevideo Convention on the Rights and Duties of States. Retrieved from: http://www.jus.uio.no/english/services/library/treaties/01/1-02/rights-duties-states.xml

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Wilkes, Daniel (1965). Restatement (Second), Foreign Relations Law of the United States. Case Western Reserve University. Retrieved from: http://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=4461&context=caselrev