Invisible borders: mapping out virtual law?

I. 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.