Subject: two German books
Date: May 18, 2003 @ 02:34
Author: Brendan Whyte (Brendan Whyte <bwhyte@...>)
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Dr. Daniel-Erasmus Khan of Uni Muenchen has written 2 books on boundaries, in German.

1."Die Vertragskarte" (Maps in International Treaties [at least with an English Summary, which you find at the end of this mail), Beck Verlag Munich 1996.

2.; To be published (later this year): "Die deutschen Staatsgrenzen" [German boundaries], a comprehensive (800 pages) analysis of the legal regime of the existing German boundaries in a historical perspective (with respect to certain stretches of the boundary-line reaching back to the middle-ages).

Contact him for more details on these.

English Summary of book 1:
Maps play an important role in various fields of international law: Not only
have they frequently been used as evidence in international judicial
proceedings but also as proof for alleged territorial titles. As a means of
treaty interpretation, cartographic representations have also been claimed
to be part of the travaux preparatoires or subsequent treaty practice.
Further, maps have been included in various judgements of international
judicial bodies, in several resolutions of international organisations and
in unilateral acts of States. In addition, they have been discussed as an
element in the processes leading to the formation of customary law. Finally,
a number of legal problems arise when a map contains errors: W hat is to
happen to a treaty if the consent of
the parties to it is based on erroneous representations on a map? What are
the legal consequences of "cartographic aggression", i. e. of voluntary
falsifications of political maps through which another (neighbouring) State
is put at a disadvantage? Do States have to react to erroneous maps in order
not to be estopped from contesting such false representations in the future?
Although all these aspects are briefly dealt with (Introduction
[Einleitung], Section II), the present study focuses on a more specific
aspect of the use of maps, namely on "treaty maps" (Vertragskarten).

Strikingly enough, the most common and widespread use of maps in
international legal practice, i. e. as an integral part of a treaty
instrument, has not received much attention in scholarly writing. This is
particularly true for the analysis and evaluation of the vast treaty
practice reaching back to the l6th century. The present study cannot, of
course, achieve a comprehensive coverage of all legal issues related to this
rather complex topic but merely give some tentative contours to this blank
spot on the map of legal writing.

The study departs from the observation that in the literature language has
always been assumed to be the sole means by which legal rules or agreements
are being expressed. It shows, however, that- although of course language
still plays the dominant role in the tool-box of the treaty maker,
non-verbal components increasingly find their way into treaty instruments.
In this regard, and apart from cartographic material, photographs, technical
drawings, mathematical and other formulae and even samples of goods deserve
to be mentioned. For a lawyer, it is quite common to equate law with
language. This fact is responsible for the underdevelopment of legal doctrine
concerning non-verbal components of normative acts. Considering their
practical importance in today's treaty practice, this situation can only be
regretted.

The very beginning of Part I of the study deals with the definition of the
term "map". As this word is not a legal term, recourse is made to the
respective concepts in cartographic science. In order to cover all possible
uses of cartographic materials which we face in international treaties, the
broadest definition possible is chosen, including very large-scale maps and
mere sketches as well as maps existing only in the form of digitalized data.
After having examined various scenarios in which maps are closely related to
treaties without actually becoming part of them, the study finally gets to
the gist of the subject, the treaty maps. After defining them, it undertakes
an n-depth analysis of the treaty practice both in its historical and
factual perspective.
This analysis reveals not only that maps have become an integral part of
treaties much earlier than hitherto assumed. It equally illustrates and
systematizes the enormous range in which this nonverbal treaty component can
be found. Indeed, in international treaty practice maps are not only
designed to delineate frontiers, cease-fire lines and zones of occupation.
They are also used for the regulation of a great variety of transboundary
questions including joint constructions (bridges, canals, dams. ..), the
erection of reindeer fences, the management of joint border-control posts,
cross-border mining, the control of emission of airports, the distribution
of radio and television frequencies, projects concerning environmental
protection, and so forth. In a legally binding way, cartographic
representations may determine the extent of military activities on foreign
territory as well as the exact location of diplomatic premises and seats of
international organizations, the sale of plots of land and the establishment
of military cemeteries. Recently, a number of treaties concerning technical
co-operation with developing countries have defined the extent of their
territorial application by means of maps. Somewhat "exotic" examples, such
as the international system for the supervision of icebergs in the North
Atlantic, the "Special Trade Passenger Ships Agreement" and the
"International Convention on Load Lines" can be added to this enumeration
which is by no means exhaustive. The first part of the study concludes with
some general remarks on the role and significance of maps in the field of
treaty-interpretation.

Part II goes into the rather technical question of how maps are incorporated
into a treaty instrument. Giving special consideration to the relevant
treaty practice, the various techniques by which maps may become an integral
part of a treaty are presented. In this context, another rather neglected
subject- the annexes to international treaties - is analyzed in detail.

Part III is devoted to the specific question whether or not the legal
obligation of publication and registration of treaties - as provided in
Article 102 of the UN-Charter - is applicable to cartographic treaty
components as well. The author arrives at the conclusion that in order to
fulfil the purpose of the provision just mentioned, this question must be
answered in the affirmative. Consequently, the occasionally reluctant
practice in this respect - of both the registering State and the Secretariat
of the United Nations - is to be considered inconsistent with Article 102 of
the Charter.

Part IV of the study essentially serves the purpose of analyzing in a more
precise and differentiated way the legal significance of maps within the
framework of a specific treaty settlement. Departing from the rather few
relevant statements in the literature and jurisprudence, the study then
turns towards a thorough examination of the abundant treaty practice. This
empirical research demonstrates that the legal significance of incorporated
maps can vary considerably, reaching from maps with a merely illustrative
function to maps serving as the sole means of defining the object of the
treaty: Thus, generalizations can never grasp the entire reality. The final
part of the study deals with the position of treaty maps vis-a-vis the
textual components of the treaty. This question becomes crucial particularly
in the case of one treaty component contradicting the other. Many incidents
in the past have shown that here we face not only a theoretical problem but
an issue which has gained an important role in international legal practice:
On various occasions it had to be decided, e. g., whether a border line
follows the strict watershed as provided for in the text of a treaty , or
whether instead the representations of a map annexed to the same treaty -
showing this line to run along the crest of a mountain chain - embodies the
authentic will of the parties. Similar problems arise if a textual
description refers to the Thalweg", whereas a treaty map actually shows the
middle-line of the river. After having worked out the various possibilities
of how such divergencies may occur, a comprehensive analysis of both treaty
practice and international jurisprudence comes to the conclusion that there
is no general rule in existence, neither in favour of the textual
description nor in favour of the map representation. In order to provide a
legal tool for the resolution of such conflicts, the study proposes to apply
Article 33 of the Vienna Convention on the Law of Treaties per analogiam.



Brendan Whyte