DRAFT Challenging the rigidity of 1964 Cairo declaration – Donaldson Tangible reality?: Challenging the rigidity of the 1964 Cairo declaration (DRAFT PAPER NOT FOR CITATION) ABORNE Conference, Johannesburg, 9‐12 September 2009 John W. Donaldson International Boundaries Research Unit Department of Geography Durham University DRAFT Tangible reality? – Donaldson, ABORNE 2009 1. Boundaries and borders 1.1. The increasing gulf in academic approaches to boundaries and borders has made it more difficult to interlink the two and find areas of common ground where the approaches may be mutually beneficial. Boundaries are distinguished by three characteristics; they are fixed/static, linear and bilateral. The traditional definition of borders identifies them as the geographic areas around the pre‐existent boundary1 which will include the infrastructures of controlling movement from one jurisdiction to another. The linguistic distinction between the terms has long been debated and recent scholars have observed that the two sub‐ disciplines have gradually drifted apart to become what Henk Van Houtum calls “separate subfields.”2 Boundary studies have become more aligned with international legal scholarship than its traditional genus of political geography where border and bordering discourses have become more dominant.3 The two sub‐disciplines may be drifting apart but that has not always been the case. As the African Union Border Programme has set in motion recovery and improved definition of African boundaries by 2012, it may be useful for policy‐makers to recall that boundaries and borders have had a much more complex relationship even during these unique practices of boundary‐making than may be popularly understood. 1.2. Within political geography, John Agnew and Stuart Corbridge have famously warned against falling into what they refer to as the territorial trap, or the de‐contextualised approach that treats states as independent actors irrespective of the exercise of control over their respective territories.4 Avoiding the territorial trap requires a contextualised focus on actual state practices of control that may or may not coincide with its defined territory, perhaps drawn most distinctly from Robert Sack’s concepts of human territoriality “delimitation becomes a territory only when its boundaries are used to affect behaviour by controlling 1 J.R.V. Prescott and G. Triggs, International Frontiers and Boundaries: Law, Politics and Geography, (Leiden: Koninklijke Brill NV, 2008), 12. 2 H. Van Houtum, ‘The geopolitics of borders and boundaries’ Geopolitics 10:4 (2005), 672‐679. 674. 3 Note that the 2008 edition of Victor Prescott’s seminal work Political Frontiers and Boundaries was co‐ authored by an international legal scholar Gillian Triggs. This may be related to what Julian Minghi suggests is the tendency for ‘traditional’ boundary studies to gravitate towards inter‐state conflict and the prevention thereof. J. Minghi, ‘From conflict to harmony in border landscapes’ in D. Rumley and J. Minghi, eds., The Geography of Border Landscapes, (London: Routledge, 1991), 17 4 J. Agnew and S. Corbridge, Mastering Space: Hegemony, Territory and International Political Economy, (London: Routledge, 1995), 79 2 DRAFT Tangible reality? – Donaldson, ABORNE 2009 access.”5 Relating borders and bordering to sites of control has expanded the discipline to encompass a broad range of social and political practices, as well as a broader geographic scope to include those border sites that are not necessarily positioned near the territorial limits of the state (airports, embassies, refugee camps, etc). Borders and bordering may take the form of being fixed (control posts, barriers etc.) and linear (fencing), but they are almost exclusively unilateral activities. They are the processes by which a state asserts control, purportedly for some kind of benefit: security from an external threat, economic benefit from customs/taxes or the engendering of national identity. 1.3. What have been nudged out of the border and bordering discourses are those bilateral practices related to boundaries specifically. Boundaries may mark the limits of territorial sovereignty, but they are not simply abstract “legal facts” 6 that distinguish borderland regions ab initio and are able to be reproduced objectively. If only considered lines on maps or lists of coordinates in a treaty, boundaries might be thought of as de‐contextualised mathematical constructs subject only to a formulaic or technical system that allows them to be replicated. David Newman suggests: “Any attempt, therefore, to create a methodological and conceptual framework for the understanding of boundaries must be concerned with the process of ‘bordering’, rather than simply with the means through which physical lines of separation are delimited and demarcated.”7 While such a perspective has broadened approaches to border studies, the casting off of delimitation and demarcation as ‘simple’ implies that these are de‐contextualised practices. This may be the case if understood from a small scale, high‐political/diplomatic perspective, but boundaries themselves can also be physical entities of the landscape that do have distinct historical, geographical and social contexts at the local scale. This can be observed both in those practices specific to them, as well as the resultant bordering practices of state control. 1.4. A key distinction between border and boundary practices is that since they are inherently bilateral, boundaries necessitate some kind of cooperation or interaction between neighbouring sovereigns. This is rooted in international law’s post‐imperial, core tenets of territorial integrity and sovereign equality; that is focused on where a state can assert control rather than where a state does exert control. Despite the pejorative tone of the phrase ‘territorial trap’, the notions of sovereign equality and territorial integrity that lie at its core also form the basis of inter‐state dispute settlement, particularly in relation to 5 R.D. Sack, Human Territoriality: Its theory and history (Cambridge: Cambridge University Press, 1986), 19. 6 H. Van Houtum, O. Kramsch and W. Zierhofer eds., B/ordering Space (Aldershot: Ashgate Publishing, 2005), 3. 7 D. Newman, 2005 ‘From the International to the Local in the Study and Representation of Boundaries: Theoretical and Methodological Comments’ in Holding the Line: Border in a Globalized World eds. H. Nicol and I. Townsend‐Gault (Vancouver: University of British Colombia Press, 2005), 400. 3 DRAFT Tangible reality? – Donaldson, ABORNE 2009 boundaries. With this in mind, international law is effectively rooted within the territorial trap as individual states are considered to have equal, legal personality8 irrespective of the disparity in capabilities to exercise control. The jurisprudence of the International Court of Justice (ICJ) and arbitral tribunals in boundary disputes, particularly across Africa, reveals the degree to which unilateral practices of control are ignored in favour of bilateral definitions, no matter how rudimentary and ambiguous those definitions might be. In the Cameroon‐ Nigeria boundary case, the ICJ effectively discounted Nigeria’s administrative record within the Bakassi peninsula9 and considered it insufficient to supplant what the Court considered to be a pre‐existent and bilaterally agreed boundary. In the 1986 Burkina Faso‐Mali case, the ICJ explained that administrative acts were most relevant in the perfection of an existing title over territory.10 1.5. If international law considered unilateral acts of control as valid methods of acquiring territorial title, would not more powerful states simply assert control over whatever territory they desired thereby generating legal sovereignty? Certainly within realistic state practice, hegemonic state powers do assert direct and indirect control over certain areas within the territory of other sovereign states, but international law is quite clear that this should not facilitate a change in legal title.11 At its very essence, international law grew out of the rejection of imperial, hegemonic practices of control and sought to resolve disputes between states based on those very aspects of the territorial trap (sovereign equality and territorial integrity). In doing so, and perhaps unwittingly, international law has promoted a zero‐sum game in when it comes to the boundary practices undertaken by neighbouring states. 1.6. In the first half of the twentieth century, the practices of boundary‐making were the subject of much debate and scrutiny within political geography. This was based largely on imperial practice to which the debates were also self‐supporting. However, with boundary studies 8 I. Brownlie, Principles of Public International Law Fifth Edition (Oxford: Oxford University Press, 1998), 106. 9 International Court of Justice (ICJ), ‘Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v. Nigeria with Equatorial Guinea intervening, Judgment’ I.C.J. Reports (2002): 301‐458. paras. 218‐224. 10 International Court of Justice (ICJ), ‘Frontier Dispute (Burkina Faso/Mali) Judgment’ I.C.J. Reports (1986): 554‐651. para. 63. 11 The ICJ recently reiterated this premise in its 2004 advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory and cited the UN General Assembly’s ‘Declaration on Principles of International law concerning the Friendly relations and Co‐operation between states’ “No territorial acquisition resulting