By Assad Shoman 2013

HOW YOU CAN END THE GUATEMALAN

CLAIM

____________________________
ABSTRACT:

This paper is about Guatemalas claim to the territory of Belize and the recent decision by the governments of both
countries to submit the claim to the International Court of Justice for final binding adjudication and for delimiting
their respective land and maritime borders. It gives a short history of the claim and describes efforts by Britain and
Belize to resolve the dispute, Belizes attainment of independence in 1981 and subsequent attempts to end the
dispute. The paper is written from the viewpoint of a Belizean, and focuses on the decision to submit the dispute to
the ICJ after simultaneous referenda in both countries approve such submission, examines arguments for and
against going to the ICJ and argues forcefully that it is in the best interests of both countries to have the dispute
finally ended by a decision of the ICJ.

____________________________
AUTHOR:

Assad Shoman holds a PH.D. in history/international relations from London University, an M.A. in international
relations from Sussex University and qualified as an attorney-at-law in London. He led the international campaign at
the United Nations and participated in negotiations that resulted in Belizes independence. He also headed the
negotiations that produced the Facilitation Process with the participation of the Secretary General of the
Organization of American States (OAS) and, after Guatemala rejected the agreed Proposals, the negotiations that
opened the way for the dispute to be submitted to the ICJ. He is the author of several books and articles on Belize,
and in the early years of the 21st century was the Foreign Minister of Belize.

____________________________
KEY WORDS:

Belize, Guatemala, Great Britain, UN, OAS, ICJ, territorial dispute

i
 TABLE OF CONTENTS

YES BELIZE 1

A QUICK ROMP THROUGH BELIZE HISTORY 2

THE GUATEMALAN CLAIM AND BRITISH ATTEMPTS TO RESOLVE IT 3

BIRTH OF A NATION: BELIZEANS ACHIEVE INDEPENDENCE 6

POST- INDEPENDENCE ATTEMPTS TO END THE CLAIM 9

WHY WE NEED TO END THE DISPUTE 13

ARGUMENTS AGAINST GOING TO THE ICJ 14

WHAT WE CAN EXPECT FROM THE ICJ 17

WHY WE SHOULD VOTE YES 22

APPENDIX 1 26

APPENDIX 2 28

ii
 1. YES BELIZE
Let me tell you straight up: I write this little booklet to try to
convince you, the Belizean people, that the best option we
have to resolve the Guatemalan claim once and for all is to
submit the matter to the International Court of Justice
(ICJ). I firmly believe this, based on the facts, the history of
negotiations, previous decisions of the ICJ and the strength
of our legal position.
The Guatemalan claim to our territory could have been
ended, and not only in the 19th century, when, most
famously, Britain refused to pay a paltry sum of 50,000
that would have spared us all the troubles weve had, but
also at least twice since independence. But here we are,
more than thirty years later, still burdened by a claim that
just wont go away.
Here I tell the story, as fully as the records and space will
allow, of how Guatemala came to claim this land, of the
attempts to resolve the dispute, and of where the dispute
stands today. The first part covers the historical facts from
the origins of the claim until the agreement to have the
simultaneous referenda in Belize and Guatemala on 6
October 2013, and the second part reviews the arguments
for and against going to the ICJ.
In order to make the booklet as user friendly as possible, I
have for the most part avoided giving any references to
sources. You can find all the sources not cited here in my
doctoral thesis (Belizes road to independence:
decolonisation by internationalisation, available at the
National Archives) or in my book Belizes Independence
and Decolonization in Latin America. Neither do I give
references for things that have become very public
knowledge (like the Special Agreement).
In attempting to contribute to the understanding of the
issue by Belizeans, I know I am treading in troubled waters.
Some very few Belizeans (not you, of course) might as well
be walking around with a sign on their forehead:
SORRY!
MIND CLOSED
UNTIL FURTHER NOTICE
Others, on the basis of hearing one side of the argument
only for months, have all but made up their minds to vote
no.
But if you have a problem and you want it solved, you have
to be able to know and appreciate the importance of all the
facts and opinions you can possibly get hold of, to be able
to decide how best to secure victory for your position.
Look: we are thinking of going to court to secure our title
to our land from the only international organ authorised to
1
provide that, the ICJ. Think about any case you may have to
fight and you go to a lawyer. The first thing she or he will
tell you is: tell me the truth. I can only defend you properly
if I know the whole truth. The reason is obvious: if you tell
your lawyer a lie and she presents that in court and the
other side proves that it is a lie, where do you stand? The
judge or the jury will not believe anything you say, and your
case is lost.
So it would be fatal to our case if we told even one lie. The
great thing is that we dont need to lie to win our case. We
can tell every truth about the history of our rightful claim to
this land, from the Hondo to the Sarstoon and everything
in between, islands and seas and all, and win our case hands
down. I will therefore include material that no doubt the
Guatemalans will use in presenting their case. I wouldnt
want you to hear those facts or arguments later and then
say to me, well why did you hide that from us?
I will tell you no lies or half-truths. What I write here is
based on careful research in original documents from
government archives in Belize, Mexico, Guatemala, Spain,
Britain and the United States by reputable historians and by
myself. Much of what I write about the period from 1971
until now is also based on my own involvement in the
dispute.
Many elements of our legal case are included in a Legal
Opinion by four international lawyers. 1
In my Foreword to the Legal Opinion, I explained that even
though we were then engaged in the Facilitation Process,
conscious that if Guatemala remained intransigent the
matter might indeed have to be submitted to the ICJ, the
Belize government approached four eminent international
lawyers and instructed them to write an Opinion that
would, strictly on the basis of international law, consider
whether Guatemala could validly question Belize's
sovereignty over the territory of Belize, or any part of it.
I wrote: I am sure that the Opinion will be particularly
useful in helping Belizeans to make up their minds, if they
were ever asked whether the matter should be submitted to
1
The team was led by British lawyer Sir Elihu Lauterpacht, a highly
experienced academic and practitioner who has appeared before the ICJ in
several land and maritime boundary cases and has been an ad hoc Judge of
the ICJ.
Judge Stephen Schwebel, a US citizen, was a judge of the ICJ from 1981 to
2000, and was President of the ICJ from 1997 to 2000. Professor Shabtai
Rosenne, an Israeli citizen, has a wide-ranging experience in numerous cases
before the ICJ. He is the author of the leading treatise on the ICJ as well as of
other books and articles on the law of treaties and the law of the sea.
Professor Orrego Vicua, a Chilean national, has participated widely in
dispute settlement processes in the Americas. He is a member of the panel
for the settlement of disputes under the Vienna Convention on the Law of
treaties, and Judge ad hoc at the International Tribunal for the Law of the
Sea. He is the author of numerous books on international law, particularly
on the law of the sea.
the ICJ for a final resolution. That time has come, and
again I urge you to read and consider the Legal Opinion
carefully.
I may not have dealt with all the reasoned arguments being
used against going to the ICJ, but I have dealt with those I
know about. Between now and October 6, I will address
other arguments, deal with new developments, or explain
anything that I am asked to.
2. A QUICK ROMP THROUGH
BELIZES HISTORY
Thousands of years before the Europeans came, different
communities of what came to be called Maya peoples
inhabited what is now Belize, as well as parts of what are
now Mexico, Guatemala, and Honduras. The Maya had
developed a highly advanced civilization, but hundreds of
years before the Europeans came, the period of the
centralized Maya civilization had collapsed. The Maya then
consisted of various distinct groups that inhabited a vast
territory, without a single political authority, and this in
fact helped them to continue armed resistance until the end
of the 19th century.
At the end of the 15th century, all the lands the Maya
occupied were supposedly made subject to Spanish
sovereignty by the Papal Bull of 1493.
There was a substantial Maya presence in what is now
Belize at the time of the Spanish invasion, although they
were decimated by massacres and diseases, and during
most of the 16th and 17th centuries the Spanish exercised
some jurisdiction over those Maya communities, primarily
through religious missions.
A 1582 list of missions under the priest at the Spanish fort
at Bacalar included nine within Belize, ranging from
Corozal Bay to the Sibun River. There was a major Spanish
mission town at Lamanai (in present-day Orange Walk)
and several smaller missions on the way to Tipu, near
present-day San Jos Succotz. Each of these missions, in
addition to others on the Belizean coast, had the customary
Spanish- authorized town council, and in some of them the
Spaniards posted agents. Apart from their presence in these
missions, the Spaniards never did establish any settlements
in any part of Belize.
The Maya resisted the Spanish presence by armed conflict
for two centuries, and by the end of the 17th century Spain
was replaced by Britain as the controlling European power.
The British presence
At the dawn of the 17th century Spain still dominated the
Central American region, but soon other Europeans
roamed the coast from northern Yucatn to Bluefields in
2
Nicaragua, raiding Spanish ships for whatever cargo they
carried. By the end of the 17th century the British had
settled down to cut logwood all along the coast from
Campeche in Mexico to the Caribbean coast of Central
America. By the Treaty of Paris of 1763 Britain obtained
Spanish licence to cut logwood in the "Bay of Honduras," as
the settlement in Belize was called.
In 1783, Spain again gave the British settlers the right to cut
logwood and this time defined limits: between the Hondo
and Belize Rivers. By the Convention of 1786 Spain agreed,
in return for the British evacuation of the Mosquito Shore,
to extend the limits of the Belize settlement southward to
the Sibun River and to allow the settlers to cut any wood
(by then mahogany exports exceeded those of logwood) but
not to establish plantations. A Spanish officer would inspect
the settlement twice a year to enforce this condition, as
Spanish sovereignty over the territory was recognized by
Britain.
As early as 1765, a sort of primitive constitution and laws,
known thereafter as Burnabys Code, was instituted, and
from 1786 a British Superintendent with ill-defined
powers, and subject to the Governor of Jamaica, presided
over the settlement.
The first British settlers cut their own logwood, but by the
1720s they had begun to import enslaved Africans to work
for them. Most of the Africans, whose ancestors also had
created highly advanced civilizations in Africa, were
brought from Jamaica, some from the USA. By 1779 there
were 3000 slaves in the settlement, or 86% of the total
counted population. In 1820 there were still over 2,500
slaves in Belize. Thereafter the numbers gradually declined,
until by 1835 the census counted 1,184 slaves, just under
half of the enumerated population.
The remaining Maya in Belize resisted British occupation
by armed actions as they had the Spanish, and it was not
until the third quarter of the 19th century that they were
effectively subdued.
The slaves, meanwhile, who suffered terrible atrocities and
brutalities at the hands of their British masters, resisted by
frequent escapes to neighbouring Mexico and Guatemala,
armed revolts (the last major one occurring in 1820) and
various forms of insubordination. Partly as a result of these
revolts throughout the British-controlled Caribbean,
slavery was abolished in 1838.
The last Spanish attempt to oust the British settlers had
been repulsed in 1798. Spain was battling independence
movements throughout the Americas, and the British took
advantage of the consequent power vacuum by extending
the limits of the Settlement. By 1802 the settlers had
occupied areas in Stann Creek and Deep River, by 1816, the
Moho River, and in 1825 the British Superintendent in
Belize described the Sarstoon as being the southern
boundary.
Beginning in the early 19th century with the arrival of the
Garifuna, the population of the colony of British Honduras
(so declared in 1862) was also greatly expanded by refugees,
indentured servants and other immigrants from Mexico,
Guatemala, China, India, other British Caribbean colonies
and other parts of the world.
In 1871, the country was converted to a Crown Colony,
the essence of which was direct rule from Britain through
its representative, the Governor (until 1884 the Lieutenant
Governor, who reported to the Governor in Jamaica).
Political authority passed decisively from the settlers to the
Colonial Office in London, and British interests
predominated in the economy.
A tiny elite controlled both the land and commerce. For a
hundred years after the abolition of slavery, conditions for
the working class were not much different from what they
had been during slavery. And as the slaves had revolted, so
too under wage labour the workers fought against their
oppression in many ways.
In the 1930s, working people throughout the British
colonies in the Caribbean struggled to improve their
conditions of life and work within the colonial system. In
the 1940s, and especially after the people of India showed
that it was possible to defeat colonialism, the struggles
sought to achieve self-government and independence.
The British resisted these movements, but colonialism was
doomed. Self-government movements gained ground in the
British Caribbean colonies, and Jamaica and Trinidad and
Tobago became independent in 1962, followed by Barbados
and Guyana in 1966.
Belize achieved self-government in 1964, and should have
become independent around the same time as, say,
Barbados, but it was prevented from so doing because of
the Guatemalan claim to its territory. 2
3. THE GUATEMALAN CLAIM AND
BRITISH ATTEMPTS TO RESOLVE IT
In September 1821, Central America declared formal
independence from Spain, and in 1823 an assembly in
Guatemala City proclaimed the United Provinces of
Central America, made up of the territories that had
formed part of the Kingdom or Captaincy General of
Guatemala (except Chiapas, which became part of Mexico).
2
Other former British Caribbean colonies that became independent before
we did were Bahamas (1973), Grenada (1974), Dominica (1978), Saint
Vincent and the Grenadines (1979) and Saint Lucia (1979).
3
In 1838, this confederation broke up into the countries of
Guatemala, Honduras, El Salvador, Nicaragua and Costa
Rica.
The government of Central America at Guatemala wrote to
the Superintendent of Belize in October 1821 proposing a
definitive commercial agreement, and in 1823 the
authorities there addressed him as the Governor of the
English factory situated in the territory of this
Government. Although in July of 1825 a British consul was
appointed to Guatemala, the British government did not
recognize the government of the Confederation, and
maintained that it is only with Spain that Great Britain can
properly or conveniently entertain the question of British
tenure of the territory.
In 1834 the government in Guatemala purported to grant
rights to the entire territory between the Sibun and the
Sarstoon to an individual. The judges and magistrates along
with the Superintendent in Belize then defined the territory
held by the British settlers at the time of Central American
independence as
an imaginary line drawn due north from Garbutts
Falls to the Rio Hondo on the north and from the same
point due south to the River Sarstoon in the south,
should form the extreme line of our claims to the
westward, and that the course of those two rivers from
the points where this imaginary line cuts them to their
fall into the sea, should form our respective boundaries
to the north and the south.
US/British conflicts in Central America
Britain exercised control over much of the Central
American coast. In the 1840s, however, US interest in
Central America was heightened after it took California
from Mexico, thus becoming an Atlantic-Pacific nation in
need of a maritime link between its two coasts. Although
the British dominated the Mosquito Shore in Nicaragua, in
June 1849 that country gave the US the right to build an
inter-oceanic canal and to fortify that route. Britain and the
US appeared to come close to open conflict, but they
decided to resolve their differences peacefully, through the
Clayton-Bulwer Treaty of 1850.
The Treaty stated that the two governments would never
occupy, or fortify, or colonize, or assume, or exercise any
dominion over Nicaragua, Costa Rica, the Mosquito Coast,
or any part of Central America. Upon the exchange of
ratifications, Bulwer, the British signatory, declared that the
Convention did not apply to British Honduras or to its
Dependencies, and Clayton for the US stated that the
Treaty was not understood to include Belize nor the small
islands in the neighbourhood of that settlement.
The Treaty left undetermined the areas that would be
considered as dependencies. Britain took advantage of
this ambiguity, and proceeded, in 1852, to declare Ruatan,
Bonacca and four neighbouring islands of Honduras a
British Colony of the Bay Islands. The US was
determined to get Britain to evacuate the Mosquito Shore
and the Bay Islands, but said it would not insist on British
withdrawal with respect to the area in Belize between the
Hondo and the Sibun, although it considered that the area
between the Sibun and the Sarstoon was part of the
province of Verapaz in Guatemala.
Between 1854 and 1856, British and US interests in Central
America often conflicted, exacerbated by the actions of US
filibusters 3 like William Walker, who captured Nicaragua
and declared his own government there. This caused grave
concern not only among the Central American states, but
also to the UK. Indeed, it sometimes seemed as if hostilities
could break out between the US and Britain.
Negotiations to resolve their conflicts over Central America
resulted in the Dallas-Clarendon Treaty of 1856. Britain
agreed to return the Bay Islands to Honduras and the
Mosquito territory to Nicaragua. In return, the US agreed
that Her Britannic Majestys Settlement called the Belize or
British Honduras, [is] bounded on the north by the
Mexican Province of Yucatn and on the south by the River
Sarstoon, and called on Britain to settle its boundary on
the west with Guatemala within two years.
It should not escape our attention that the declaration of
the Sarstoon as our southern boundary with Guatemala was
first made in a Treaty between two great powers, the US
and UK, and not between Britain and Guatemala.
The Anglo-Guatemalan Treaty of 1859
In 1856 Guatemalas Francisco Martn went to London and
negotiated a draft boundary Treaty, setting out the actual
British possessions on and prior to the 1st of January
1850 (to predate the Clayton-Bulwer Treaty). Martn,
however, stated that Guatemala was renouncing its rights to
the territory, and that as a compensation for the
renunciation made, Britain was to give Guatemala
effective and positive guaranty against filibusters. Britain,
however, refused to admit that Guatemala had any rights
over the territory or to countenance compensation of any
kind.
The British then appointed Charles Wyke to negotiate the
boundary Treaty, and instructed him that, in order not to
offend the terms of the Clayton-Bulwer Treaty, the
boundary must be described not as involving any cession
or new acquisition from Guatemala but, as it is in fact,
3
A filibuster is defined as a person engaging in unauthorised warfare against
a foreign State.
4
simply the definition of a boundary long existing, but not
hitherto ascertained.
Wyke, however, believed that some inducement would be
required to conclude the Treaty, and decided to include a
provision that would satisfy the Guatemalan need for
compensation and at the same time help the Belize
settlement by enhancing possibilities for trade. The
provision became Article 7 of the Treaty, which required
both Parties conjointly to use their best efforts to
establish the easiest communication between the capital of
Guatemala and the Atlantic coast near Belize, either by
means of a cart-road, or employing the rivers, or both
united.
The 1859 Treaty was signed and ratified, and declared the
boundary as it existed from before 1850:
Beginning at the mouth of the River Sarstoon in the
Bay of Honduras, and proceeding up the mid-channel
thereof to Gracias a Dios Falls; then turning right and
continuing by a line drawn direct from Gracias a Dios
Falls to Garbutts Falls on the River Belize, and from
Garbutts Falls due north until it strikes the Mexican
frontier.
But the agreement with regard to the cart road was never
implemented. In a supplementary Convention in 1863,
Britain undertook to ask Parliament to pay Guatemala
50,000 pounds in fulfilment of its obligation. Ratifications
were to be exchanged within six months, but Guatemala
did not ratify the Convention until 1865, and with two
clarifications. Britain refused to accept this late
ratification (although Britain itself had never ratified),
arguing that the Convention had lapsed by the delay of the
Guatemalan government and that it had discharged its
obligation under Article 7 of the 1859 Treaty.
Guatemala did not accept that position, and the matter was
never resolved. Guatemala eventually claimed that the 1859
Treaty was a disguised Treaty of cession, the compensation
being Article 7, and that Britains failure to comply with it
caused the entire Treaty to fall. Guatemalan took the
position that as a consequence the territory of Belize
reverted to Guatemala, who had inherited it from Spain.
For the rest of the century, various attempts to reach a
settlement were fruitless.
Then, in 1929, commissioners from both countries
inspected the boundary markers placed in 1860-1861 at
Garbutts Falls (near to Benque Viejo del Carmen) and
Gracias a Dios (at the Sarstoon) by representatives of both
countries and replaced them with concrete markers. There
was then an exchange of notes in 1931 between Britain and
Guatemala, whos Foreign Minister wrote:
 The Government of Guatemala agrees to recognise the
concrete monuments erected at Garbutts Falls and at
the Gracias a Dios rapids on the border of Belize and
Guatemala... These monuments, thus determined, form
part of the border line between Belize and the Republic
of Guatemala.
This document has the force of a Treaty which effectively
confirms and revalidates the 1859 Treaty, at least as regards
the boundary in the area between Garbutts Falls and the
Sarstoon.
But Guatemala was still upset that Article 7 had not been
complied with, and the British rejected all of Guatemalas
proposals for compliance. Although Guatemala had sent an
engineer to collaborate with the British engineers in the
survey of the boundary demarcation, therefore, Guatemala
subsequently refused to sign off on the actual border
demarcation (which was completed by the British in June
1934), unless Britain agreed to comply with its Article 7
obligations. Then in 1945, the Constitution of Guatemala
declared that Belize is part of its territory and it considers
of national interest the initiatives carried out to achieve its
effective re-incorporation into the Republic. And on 9
April 1946, the Congress of Guatemala issued a decree
confirming that the 1859 Treaty was void.
That same year Britain made a declaration to the
International Court of Justice (ICJ) accepting its
compulsory jurisdiction for a period of five years (which it
renewed in 1951 for a further period of five years), of all
legal disputes concerning the interpretation, obligation, or
the validity of any Treaty relating to the boundaries of
British Honduras. Guatemala made a declaration to the
Court in 1947, but accepting jurisdiction only if the case
were decided ex aequo et bono. (This meant that the Court
could take extra-legal matters into account.) Britain
refused. 4
British attempts to resolve the claim
Both Guatemala and Britain, at different times, in 1880,
1937 and 1940, proposed arbitration, but nothing came of
these initiatives.
In 1957, in preparation for talks with Guatemala in
London, British officials agreed that they could consider
some form of closer association with any one or all of the
Central American Republics and a minor rectification of
the frontier, if the area involved were uninhabited. This
was not revealed to the Belizeans, and a later incident
4
But according to L. M. Bloomfield (The British Honduras-Guatemala
Dispute, at pp. 60 and 133), Britain, on 29 January 1940, in proposing to
submit the dispute to the Permanent Court of International Justice, had
offered to accept the special jurisdiction of the Court under Article 38 (2),
i.e. using ex aequo et bono.
5
involving the Belize delegation in London, where the
British took umbrage at a private meeting of the delegation
with the Guatemalan representative, aborted this initiative.
In November 1961, the British government agreed to a
Guatemalan proposal for informal talks, including elected
ministers of Belize. By then, the British were anxious to
abandon Belize, and British ministers said plainly that its
colony on the American continent was an embarrassment
to them, causing bad relations with Latin American States
and with the US. Maintaining a garrison there was a
commitment which we ought to shed as soon as possible.
Moreover, the dispute with Guatemala was costing money
in lost trade, and if the Guatemalan Government decides
to break relations with us, could lead to the loss of
substantial British assets as well.
It is necessary to understand this British desire to get rid of
its responsibilities towards Belize, and for Belize and not
Britain to pay the cost of settling the Guatemalan claim, in
order to understand the course of all the negotiations
during the next twenty years, from 1961 to 1981.
At talks held in Puerto Rico in April 1962, including
Belizean representatives, Britain announced that a
constitutional conference in 1963 would agree on full
internal self-government for Belize and that independence
would follow soon after. The Guatemalans objected that
Belize was too weak to stand alone and would fall prey to
communists. It proposed that a transitory regime of joint
administration be established and that after an appropriate
time a referendum be held, which would guarantee
Belizeans the right to self-determination. The Belize
delegation affirmed that Belizeans had already decided their
future, which was independence, and that the transitory
regime was not acceptable, and so the talks ended.
In July 1963 Britain called the Constitutional Conference to
move Belize to self-government in January 1964, and
Guatemala broke off diplomatic relations with Britain
(which it did not resume until 1986), but maintained its
consulate in Belize.
In 1964 the US informed the British that they have serious
worries about the wisdom of British Honduras proceeding
to independence with the dispute with Guatemala
unresolved; they also question the economic viability of an
independent territory of 100,000 inhabitants.
US mediation: the Webster Proposals
In 1965, despite the objections of Belizean leaders who did
not want the US as a sole mediator, the British government
bowed to the Guatemalan demand that they jointly ask the
US to mediate. The US appointed Bethuel Webster as its
mediator, and Britain, Guatemala and the US agreed that
the objective of the mediation would be the definitive
resolution of the dispute between Britain and Guatemala
over the territory of Belize, taking into account the position
and rights of both countries with respect to Belize. (Note
that it was not considered important to take into account
the position and rights of the Belizean people.)
It is clear from the records that both the UK and the US
were willing to accept proposals that would give
Guatemalan effective control over Belizes defence, foreign
policy and economy, and that they tried to get Belize to
agree to such proposals. It is important to understand why
this was so.
The British were keen to get out of Belize and make us bear
the cost of ending the Anglo-Guatemalan dispute, whether
by compromising our sovereignty or territory. And for the
US, Guatemalas strategic geographic location and
proximity to the U.S. mainland, the Panama Canal, and to
Cuba; ...and its potential as a base for spreading subversion,
all make Guatemala an area of importance for the United
States. With regard to the territorial claim, the US required
that any solution meet the political needs of the
Government of Guatemala.
The Belizeans felt all along that the US could not be an
impartial mediator because of its commitment to
Guatemala, and were fully aware of Britains eagerness to
sell out on Belize, and set out to protect Belizes position at
every step. So, for example, on 8 August 1967 Premier
George Price sent a memorandum to the UK government
stating that any agreement, if it is to be approved by us,
must accept the aspirations and rights of the Belizean
people to be an independent and sovereign nation in the
full sense of the word. This must not be qualified or
restricted in any way.
On 18 April 1968, the US submitted the final proposals of
the mediation. The Guatemalans were very upset with the
proposals, rightly claiming that they were less than the
British had previously accepted. The US ambassador
concluded that Guatemala will probably reject results of
mediation. US Secretary of State Dean Rusk, however,
argued that even though the proposed treaty would result
in an independent Belize, Guatemala would receive
numerous tangible benefits and the opportunity to exert
significant influence over Belize immediately, and greater
influence as time went by.
The first article of the draft treaty declared that Belize was
to become independent, but that the exercise of its
authority must be consistent with the other articles of the
treaty, which tied Belize to Guatemala in terms of the
economy, external affairs and defence. The arrangements
cleared the way for Guatemala to absorb Belize
demographically, economically, culturally and politically.
6
In the end, Belize was the first to reject the proposals, and
Guatemala and Britain subsequently informed the US that
the proposals were not acceptable.
The Webster Proposals never questioned Belizes borders,
but of course if they had been implemented the whole
country would have been dominated by Guatemala.
Negotiations 1969 to 1971
Almost immediately after the failure of the mediation, Price
began to press the British to call a conference for an
independence constitution, and insisted that in the
absence of an honourable settlement we cannot accept a
discharge of the United Kingdoms responsibility to this
country without an arrangement for her defence.
Throughout the following negotiations, and until 1981,
Price kept insisting that the British had an obligation to
provide a defence guarantee, while the British, equally
consistently, kept repeating that this was impossible.
The negotiations that began in October 1969 were based on
Britains proposal of a two-treaty package, a Treaty of
Recognition and a Treaty of Cooperation. But the
Guatemalans saw the cooperation agreements as the vehicle
to control Belizes economic development, defence and
foreign affairs. The Belizeans were only willing to look at
cooperation agreements such as would normally be
undertaken by two neighbouring sovereign states. The
British vacillated between attempting to get Belize to bend
as much as possible to Guatemalas demands and staying
true to their pledge not to force through an agreement that
Belize did not want. With the three Parties having such
different objectives, the negotiations were bound to fail.
That series of negotiations ended when, in January 1972,
the UK received intelligence reports of a Guatemalan plan
to invade Belize, and quickly reinforced its garrison there. It
transpired that Salvadoran President Snchez Herrera had
made a deal with Guatemalan President Arana Osorio to
join an invasion of Belize and that in return El Salvadors
surplus population would be sent to Belize.
The Belize government became more convinced than ever
that no negotiations with Guatemala would ever result in
an independent Belize with all its territory, and began to
forge a plan that would achieve that objective.
4. BIRTH OF A NATION: BELIZEANS
ACHIEVE INDEPENDENCE
Gaining international support
In 1971 Price created the Belizean Independence Secretariat
(BIS) as a think tank and as the executive arm of the
international campaign for independence. It focused on the
principle that peoples had the right to self-determination,
and concentrated on winning Latin American support. The
BIS launched a campaign in Mexico and Central America,
targeting academics, journalists, and political as well as
worker organizations, and the story of Belize from the
Belizean perspective slowly began to be heard.
In 1960, the UN General Assemblys Declaration on the
Granting of Independence to Colonial Countries and
Peoples demanded a speedy and unconditional end to
colonialism and a period of rapid decolonization set in.
When the UN was formed in 1945, it had 45 members; by
1975, when the first resolution on Belize was taken to the
General Assembly, there were 141 members, the majority
being former colonies.
On 1 May 1974, Belize became a member of CARICOM,
and in July its Conference of Heads of Government pledged
to take all steps necessary to help Belize achieve
independence and to secure and preserve its sovereignty.
Meanwhile, the British insisted on negotiating with
Guatemala, and from September 1972 until February 1975,
they allowed Guatemala to string them out, promising an
acceptable settlement and urging Britain to restrain Belize
from internationalizing the dispute.
And then Guatemala took a position that made it much
easier for Belize to take the initiative: in February 1975 it
insisted on territorial cession from Punta Gorda to the
Sarstoon. They said they needed to control the whole Bay of
Amatique, and feared that an independent Belize would be
subject to Cuban or other foreign influences.
The policy of the British negotiators then became, all the
way through to 1981, to pressure Belize to give up some
area of land, and accordingly our international campaign
stressed territorial integrity as well as sovereignty.
At a Commonwealth Heads of Government Meeting
(CHOGM) held in April 1975 in Jamaica, where the
majority of members were former African, Asian and
Caribbean colonies of Britain, we lobbied for a resolution
supporting Belizes independence and territorial integrity.
British Foreign Secretary Callaghan rejected any reference
to territorial integrity, arguing that this could endanger the
talks with Guatemala, and that the form of wording he
proposed gave tacit recognition to the principle of
territorial integrity. The agreed paragraph read:
The Heads of Government offered their full support for
the aspirations of the people of Belize for early
independence [and] urged the Parties to take all
necessary action for a speedy solution ...in accordance
with the principle of the self-determination of peoples
as enshrined in the Charter of the United Nations.
Although this was a useful expression of support from a
large number of countries, the British had succeeded in
7
deleting our demand for territorial integrity, and of course
the wording did not, tacitly or otherwise, exclude land
cession, which is precisely what the British intended to
force Belize to accept.
The British even used the threat of withdrawing their
military support from Belize: Callaghan said that If Mr
Price pushed matters too far he would consider
withdrawing our troops. The British still had a lot of
influence within the Commonwealth, but we were
determined to ensure that this did not happen in other
forums.
In 1975 the Non-Aligned Movement (NAM) held its
Foreign Ministers Conference in Peru. The NAM was an
international political movement of Asian, African and
Latin American nations against Western colonial and neo-
colonial domination. It was a perfect forum for us to launch
our campaign for gaining UN support. Lindy Rogers and I
went to the Conference in August, and the final
communiqu expressed full support for the people of
Belize whose aspirations for independence continue to be
frustrated by territorial claims. In affirming the territorial
integrity of Belize and the right of its people to
independence, the Conference agreed to lend its support to
all efforts directed to those ends.
The fact that support for Belizes territorial integrity had
been accepted by the 78 members present, representing
about two-thirds of the member states of the United
Nations, was an important prelude to the upcoming UN
lobby. In the years up to 1981, NAM support became even
stronger; Belize was admitted as a member with special
status, and we were thus guaranteed our overwhelming
success at the UN.
The UN General Assembly resolutions
Between 1975 and 1980 six resolutions on Belize were
passed by the UN General Assembly. In terms of their
content, the most important were the first and the last. We
sought to make them as strong as possible while at the same
time ensuring increasing support. Always the biggest
problem was designing a resolution that the British could
support.
In preparation for the UN action, Price appointed me
Minister of State and sent me to New York to set up an
office and head the campaign. As we were campaigning for
our resolution in 1975, there was the threat of an invasion
by Guatemala and a consequent massive reinforcement of
the British garrison, and this raised our international
profile.
The British did not want us to push for a UN resolution at
all; they felt they were unpopular with the African and
Asian countries and that the case would be considered
equivalent to that of the Falklands or Malvinas (claimed by
Argentina but occupied by Britain) and therefore not get
much support, especially from Latin America. When they
did agree to support our campaign at the UN, they wanted
the resolution to simply ask Britain and Guatemala to keep
negotiating to resolve the dispute. In particular, they
resolutely resisted the inclusion of the preservation of our
territorial integrity, since they knew that a negotiated
solution must include some land cession.
For exactly the same reason we were determined to include
territorial integrity in the resolution. The 1975 resolution
included the following vital points:
It urged all States to respect the right of the people of
Belize to self-determination, independence and
territorial integrity and to facilitate the attainment by
them of their goal of a secure independence;
It called upon Guatemala and Britainin close
consultation with the government of Belizeto
pursue urgently their negotiations in order to
remove such obstacles as have hitherto prevented the
people of Belize from exercising freely and without
fear their inalienable right to self-determination and
independence.
Most significantly, it declared that any proposals for
the resolution of the dispute must abide by the
principles enunciated in the resolution.
This last was quite an achievement, because it tied the
hands of Britain in negotiations with Guatemala to abide by
the resolution, which included Belizes territorial integrity.
As we shall see, however, although Britain voted for this
and all subsequent resolutions, it always sought to subvert
them by pressing us to accept land cession in negotiations
and secretly encouraging Guatemala to believe this was
achievable.
In the following years, fruitless negotiations continued, but
so did our efforts to gain greater support at the UN,
particularly in Latin America. The big breakthrough came
in 1976 when General Omar Torrijos of Panama became a
fervent supporter of our cause: he helped us to lobby other
Latin American countries, gave us important logistical
support and offered to send 1,000 troops to help defend
Belize against Guatemala after independence. Another
pivotal point came in 1979 with the victory of the
Sandinistas in Nicaragua; this lost Guatemala the support
of former dictator Somoza and gave us a major push in
Central America.
In 1975, the resolution was adopted in the General
Assembly by 110 votes to 9, with 16 abstentions. In 1976,
115 voted in favour; in 1977, 126 (and crucially including
Mexico, Venezuela, Peru and Argentina); in 1978 the yes
8
votes grew to 127, but with no country voting against. In
1979 our resolution was adopted by 134 to 0, with eight
abstentions. Guatemala did not participate in the vote.
In the four years between 1978 and 1981, the Belize
government went through some of the most difficult
moments in its struggle for sovereignty and territorial
integrity, during which the UK and the US colluded to
agree on a settlement that would have truncated Belizean
territory and compromised its sovereignty. In resisting
British attempts to give away our land, we were greatly
assisted by a weapon we had acquired at the CHOGM held
in London in June 1977: a Commonwealth Ministerial
Committee on Belize (CMCB), comprised of Barbados,
Canada, Guyana, India, Jamaica, Malaysia, Nigeria and
Tanzania. This Committee helped immensely to keep the
British true to the mandate of the relevant UN resolutions.
Another ally we won in those crucial years was the
Organization of American States (OAS). As late as 1974,
Guatemala succeeded in getting the Inter-American
Juridical Committee of the OAS to declare, in effect, that
the principle of self-determination did not apply to Belize,
since this was Guatemalan territory occupied by the United
Kingdom.
It seemed that Guatemala had the OAS in its pocket, but
soon Guatemalas influence even within the OAS began to
seriously erode. At the General Assembly of the OAS held
in Grenada in June 1977, all the CARICOM delegates spoke
and supported Belizes independence and territorial
integrity, as did Panama. No country spoke out in favour of
Guatemalas claim.
And at the General Assembly of the OAS held in Bolivia in
October 1979, the organization recognized Belize as a
colonial possession in the Americas, and not, as Guatemala
asserted, a territory occupied by a foreign power.
Significantly, only Guatemala voted against, five countries
abstained and seventeen voted in favour.
The 1980 Resolution
The 1980 resolution was introduced on 27 October 1980,
and replaced three days later by a revised draft. For the first
time, we had engaged in intense negotiations with the US
government (which had never voted for our resolutions) on
the wording of the draft in order to secure its support. 5
5
We made no significant concessions in those negotiations. There were
three changes: In the preamble, we added the words despite their efforts
and good faith to the regret that a settlement had not been reached; in
operative paragraph 5 we changed the exercise by the people of Belize of
their right to self-determination, independence and territorial integrity to
of their inalienable rights (paragraph 1 already defined those as our
inalienable rights); and we added a new paragraph: 9. Calls upon Guatemala
and independent Belize to work out arrangements for post-independence
cooperation on matters of mutual concern.
The resolution had several new critical elements:
Belize should become independent by the following
year and its territorial integrity should be guaranteed;
Paragraph 6 called on the UK to continue to ensure
the security and territorial integrity of Belize; and
Paragraph 7 called on the relevant organs of the UN
to facilitate the attainment of independence by
Belize and to guarantee its security and territorial
integrity thereafter.
On November 11, 1980, the resolution was approved by the
General Assembly by 139 to 0, with seven abstentions. Most
importantly, for the first time the US voted in favour. This
remarkable victory for Belizean diplomacy was capped by
the OAS endorsing the UN resolution on November 27, by
18 votes in favour, one against (Guatemala) and seven
abstentions. We had won the overwhelming support of the
OAS for our independence and territorial integrity!
21 September 1981
During much of 1981, the UK pressed Belize in
negotiations with Guatemala to make concessions on
territory and sovereignty. At the final round of negotiations
in London in March, the Belize negotiators (Price, Harry
Courtenay and myself) were subjected to intense pressures
from the British to concede the cession of cayes and waters,
but we resisted them all. British Minister Nicholas Ridley
then proposed that we sign the Heads of Agreement, a
series of points which we were to negotiate in the coming
months. The Heads were so vaguely worded that each side
could put whatever interpretation on them that it chose.
One crucial paragraph, for example, said that Guatemala
shall have the use and enjoyment of the Ranguana and
Sapodilla cayes, and rights in those areas of the sea adjacent
to the cayes, as may be agreed. We intended to agree to the
use for normal tourist purposes and no more, while
Guatemala tried to get virtual sovereignty, including the
right to have military installations in those areas.
Clearly it was inconceivable that any agreement could be
reached, although we were committed to negotiate, both by
the UN resolutions and the need to maintain British
military support. We certainly never intended to make any
concessions that would violate the UN resolutions, and
therefore from the beginning we were sure that the
negotiations of the Heads would fail and that we would
move to independence without any agreement with
Guatemala.
Negotiations on the Heads proceeded, and we resisted all
the many pressures by the British to get us to make
concessions. At the final day of talks on 6 July 1981 the
British at last became convinced that no agreement was
possible, and a Joint Communique made it clear that Belize
9
would nonetheless proceed to independence and that
Guatemala would not seek to prevent Belizes independence
by force or the threat thereof.
And so it was that on 21 September 1981, Belize became an
independent State with all its territory, with full
sovereignty, and with British troops stationed here to
defend Belize against any possible attack from Guatemala.
And our calculated risk proved correct: although the British
had told us they would only stay for 9 months, and in fact
continued to make real preparations after independence to
remove their military forces within that time, they in fact
remained for 13 years, and left only after Guatemala had
recognized Belize as an independent State and signed a
non-aggression pact with Belize. But of course the
Guatemalan claim still remained, and it would have to be
resolved.
5. POST-INDEPENDENCE ATTEMPTS TO
END THE CLAIM
Some major changes took place within Guatemala after
1985. Since the 1954 US-supported coup, Guatemala had
been ruled by successive military governments, sometimes
camouflaged by elections. For much of that time, a civil
war was being fought to end the dictatorships. Starting
around 1985, a process of gradual democratization began,
although the civil war, which claimed some 200,000 lives,
was not ended until peace treaties were signed in 1996.
In 1985, Guatemalas constitution was changed, and it no
longer claimed that Belize was an integral part of
Guatemala, but rather required the government to make
every effort to resolve the dispute and to put any proposed
solution to a referendum. In that year, the first credible
elections for decades took place, and President Vinicio
Cerezo announced the intention to establish direct talks
with the Belize government. Also in 1985, the OAS passed a
Protocol of Reforms which would eliminate, after a period
of five years, the provision which had prevented Belize
from becoming a member.
Negotiations, at first including the British, occurred from
1982 until 2007, and substantial progress was made at talks
in Miami (1998-1990) and at Roatan (1989), but I will
concentrate on three major sessions:
1. Guatemala recognizes Belize; the Maritime
Areas Act
In January 1991 Jorge Serrano assumed office, adopted the
essence of the agreements reached in Miami and Roatan,
and at a meeting in July his delegation proposed a fast-
moving timetable: Guatemala would recognize Belizes
right to self-determination, Belize would pass a law
restricting its territorial seas in the south to three miles,
Guatemala would recognize Belize as an independent state
and negotiations would then lead to an early settlement.
On 14 August 1991 Guatemala announced that it
recognised the right of the Belizean people to self-
determination. Two days later, by agreement between the
Belize government and opposition, a Maritime Areas Bill
was introduced in the House, declaring that Belize would
restrict its territorial seas in the south to three miles. But
difficulties were encountered in passing the bill and
Guatemala refused to implement the next step, recognition
of Belize as an independent State. This impasse was
overcome when Premier George Price and Leader of the
Opposition Manuel Esquivel signed a letter assuring
Serrano of early passage of the Bill, and on 5 September
1991 the Guatemalan government recognised the
independent state of Belize.
During a country-wide tour undertaken in October by
government and Opposition leaders to promote the Bill,
many people expressed disagreement with it. A new version
of the Bill qualified the limitation to three miles in the
south, declaring that it was only to provide a framework
for the negotiation of a definitive agreement on territorial
differences with the Republic of Guatemala. The Bill made
it clear that this meant that some part, but not the whole, of
that area might be allocated to Guatemala in return for
abandonment of its claim.
Should such an agreement be reached, it must be put to a
referendum. If passed, the agreed delimitation would
become definitive, but if not then the territorial sea would
be delimited in accordance with international law. The
Exclusive Economic Zone (EEZ) was likewise declared to be
based on international law, but the Bill allowed for
concessions to be made to Guatemala after approval by
referendum. Incidentally, even if Guatemala did not claim
our land we would still have had to negotiate a maritime
boundary.
Article 3 (4) of the Maritime Areas Act states:
(4) Except as is otherwise provided in subsections (2)
and (3) above [relating to the temporary and qualified
limitation to three miles in the south], wherever the
equidistance line between Belize and an adjacent State
is less than 12 nautical miles from the nearest point of
the baseline of the territorial sea, the delimitation of the
territorial sea shall, if possible, be effected by agreement
between Belize and the adjacent State; but to the extent
that if no such agreement is effected, that equidistance
line shall constitute the outer limits of the territorial
sea.
Clearly, the terms of the proposed law no longer complied
with the undertaking that had been made with Guatemala
10
and confirmed in the Price/Esquivel letter to Serrano, but
still when the Bill came up for passage in the House, the
UDP voted against it. The Maritime Areas Act was passed
with the votes of the PUP side and became law in January
1992. The Act did not, and does not, deprive Belize of any
rights to its maritime areas.
Nonetheless, Serranos government maintained its
disposition to negotiate with Belize in good faith. In early
1992 Guatemala agreed to withdraw a notice inviting
tenders for oil exploration in an area of sea claimed by
Belize. In July they agreed to use the existing reference
monuments to ...prevent the occurrence of any illegal
activity, including illegal settlements, and decided to clear
around the monuments and repair them as necessary. In
April 1993 this was confirmed in another agreement, which
also stated that Both governments agree to refrain from
the threat or use of force against each other.
One month later, the British government announced that it
would withdraw its troops as a force committed to the
defence of Belize, although it would, in the event of a future
military threat, stand ready to be consulted immediately
about Belizes security needs and consider all options. The
British also agreed that a reduced force in Belize would
take the form of a training operation for UK troops, and
that they would continue to provide training, equipment
and advice to the BDF.
In Guatemala, meanwhile, President Serrano was removed
from office in June 1993 for reasons totally unrelated to the
Belize question, and that series of negotiations ended, but
with Belize having made substantial gains, particularly its
recognition by Guatemala.
2. The Facilitation Process
In a 1999 letter, Foreign Minister Eduardo Stein said that
the General Assembly of the UN, by recognizing Belizes
independence, obliged Guatemala to state its case in a new
way. He made clear Guatemalas position in two major
respects:
Firstly, Stein maintained that the area between the Hondo
and the Sibun was within the usufruct conceded by Spain,
and therefore was governed by different juridical concepts
than the area between the Sibun and the Sarstoon. With
regard to the former, it had to be considered that
Guatemala had recognized the right of the people to Belize
to self-determination, although Guatemala reserved the
right to take any action it had a right to take. But with
regard to the area between the Sibun and Sarstoon rivers,
Guatemala claimed rights of sovereignty, since this was an
integral part of the Province of Verapaz. It likewise lays
claim to the adjacent islands, which apart from St. Georges
Caye, were not included in the treaties of 1783 and 1786,
but were rather expressly excluded.
This obtuse statement, which does not expressly state that
Guatemala was really claiming only the area of Belize from
the Sibun to the Sarstoon, has in fact been interpreted as
such by most people, both in Guatemala and in Belize.
Secondly, Stein declared that the dispute was eminently
legal and therefore should be submitted to international
arbitration or to the ICJ.
In January 2000 Alfonso Portillo became President, and
Guatemala launched an international campaign to have the
dispute submitted to the ICJ, which met with success (even
the British suggested we should do so). But Belize prevailed
on Guatemala, which absolutely rejected the idea of
bilateral negotiations as fruitless, to agree to what became
the OAS Facilitation Process. Each side would appoint one
person to represent it and the Secretary General of the OAS
would act as a convener. The agreement was formalised at a
ministerial meeting in July at the OAS headquarters.
Belize and Guatemala presented documentation on their
respective positions to the Facilitators and made oral
presentations to them and the Secretary General of the OAS
in May 2001.
It was decided to bring Honduras into the process, in so far
as maritime areas were involved. Honduras shared
maritime spaces with both countries, and a clause in its
constitution claimed sovereignty over Belizes Sapodilla
Cays. Its attitude in the negotiations, however, was
extremely positive and generous, and it is unlikely that the
Facilitators would have arrived at a formula acceptable to
Belize and Guatemala without the participation of
Honduras.
But arriving at agreed proposals was only part of the
Facilitators work; as the process developed, much of their
attention, and that of the OAS, had to turn to resolving
problems caused by Guatemalan incursions and settlements
on Belizean land. An agreement on Confidence Building
Measures (CBMs) was signed on 8 November 2000, setting
out a number of measures to ease tension and improve
relations.
The most important element was the creation of an
adjacency line, which followed the border agreed in the
1859 Treaty and used the established reference markers, but
with the stipulation that it would not amount to any
admission by Guatemala that this represented the
international boundary between the two countries. For
Belize, of course, we made it clear that it was the
international boundary established by the 1859 Treaty,
although we understood that Guatemala could not agree to
11
put that in the document, when its position was that there
was no valid border treaty and therefore no line dividing
our territories. The important point is that they agreed to
use that very line for the practical purposes of
implementing the CBMs.
The CBMs declared that they shall not constitute a total or
partial waiver of sovereignty over any territory (land,
insular or maritime) claimed by either party. They also
stated that all persons residing to the east of the Adjacency
Line shall be required to abide by and respect the laws and
law enforcement authorities of Belize.
Guatemala agreed to take effective measures to dissuade its
citizens from settling to the east of the line. As a result of
the CBMs, several illegal settlements of Guatemalans in
Belize were removed, and their inhabitants repatriated, over
the next few months.
On 17 September 2002 the OAS presented the Facilitators
Proposals for the definitive resolution of the dispute:
Guatemala would recognise Belizes established territory,
including all islands and its full international law
entitlement of territorial sea, and Belize and Honduras
would provide a corridor for Guatemala to pass through
their territorial waters to an area of EEZ provided to it by
both countries.
The Facilitators recommended that the settlement package
be submitted to referenda within 75 days of the presen-
tation of the proposals. In a side letter, the Facilitators also
recommended that if the referenda failed in either country,
the Parties should consider taking the issue to the ICJ or to
arbitration. But after Guatemala informed that it could not
meet the deadline for the referendum, the governments
engaged in discussions that led to an agreement on 7
February 2003 to preserve the Proposals until such time as
the appropriate constitutional procedures have been
completed. The agreement established a Group of Friends
to assist the Parties in holding the referenda on the
proposals. The members of this Group were Argentina,
Brazil, Canada, Ecuador, El Salvador, Jamaica, Mexico,
Nicaragua, Norway, Spain, Sweden, the UK and the US.
Most importantly, the agreement provided for the setting
up of an OAS Office near the border to monitor, conduct
reviews and assist the Parties in the implementation of
CBMs designed to preserve peace along the border. The
OAS office was established and the CBMs began to be
implemented.
Subsequently, however, the Guatemalans declared that they
did not accept the Facilitators Proposals, and that brought
an end to that initiative. Still, Belize had gained reiterated
international support and the physical presence of the OAS
at the border, which has been instrumental in maintaining
peace in the area and safeguarding Belizes rights through
numerous inspections and reports. These reports almost
always proved Belize to be acting in accordance with the
CBMs.
Gabriel Orellana, who had clearly negotiated in good faith,
has explained why the proposals were not submitted to
referendum. President Portillo had massive internal
opposition and feared that as a result the referendum would
fail. Orellana was replaced as Foreign Minister on 16
December, and his successor, Edgar Gutierrez, stopped it,
partly to distance himself from Orellanas stance. 6
3. Negotiations leading to submission to the ICJ
As early as October 2002, when we noted Guatemalas
hesitation to accept the Facilitators Proposals, we began to
seek the advice of the lawyers who had participated in the
Legal Opinion on our options for taking the matter to the
ICJ. In a note from Sir Eli Lauterpacht and Judge Schwebel
in 2004, they advised us on how we might bring the case to
the ICJ, and stated that In our considered opinion, a
judgment on the merits will fully sustain the entire
territorial integrity of Belize, and do so by a very large
majority.
The Belize negotiating team urged Guatemala to activate
the side-letter of the Facilitators requiring the Parties to
submit the matter to judicial settlement. By then, however,
they had become convinced that they had no case 7, and
refused to consider that alternative, arguing that
negotiations should continue.
After several informal meetings and exchanges of
correspondence, a meeting in July 2005 resulted in an
Agreement on a Framework for Negotiations and
Confidence Building Measures, signed on 7 September
2005 by Foreign Minister Jorge Briz and myself.
The Agreement mandated a new round of negotiations
designed to reach an equitable solution of the territorial
dispute, but most significantly paved the way for the
dispute to be settled at the ICJ. Under Article B. 5 of the
Agreement,
While the territorial differendum is being negotiated
with the assistance of the OAS, if the Secretary General
determines that it is not possible to arrive at an
agreement on some of the issues, he shall recommend
that the Parties submit those to either the International
6
Interview by author with Gabriel Orellana, 21 August 2012.
7
No doubt this was because of the Legal Opinion we published and the
strong legal case we presented to the Facilitators and the SG of the OAS in
May 2001. Guatemala took a large delegation to that meeting, including
members of Congress and others who had never participated in the
negotiations. They were shocked to learn that Guatemalas case appeared to
be very weak and Belizes case very strong.
12
Court of Justice or an International Court of
Arbitration.
The OAS suggested that the negotiations begin with the
maritime issues, and Honduras was again invited to
participate in the discussions. The Belizeans felt that this
was a useless and time-wasting exercise, since maritime
areas depend on sovereignty over land, and that nothing
would come of those negotiations. Belize sought to
convince OAS Secretary General Jos Miguel Insulza to use
the power given to him under the 2005 Agreement and
make the determination that it was impossible to arrive at
an agreement and recommend going to the ICJ, but his
position was that both governments should first agree to
this, and Guatemala would not agree.
The stalemate did not begin to unravel until after Briz was
removed and Gert Rosenthal, a highly respected
international diplomat, became Foreign Minister. There
were further meetings and negotiating sessions, and in
October 2007 the Parties informed Insulza that they were
unable to reach agreement on any issues, and indicated that
they would be willing to submit the entire dispute to the
ICJ. On 19 November 2007 Insulza issued his recom-
mendation to that effect. Both PM Musa and Leader of the
Opposition Dean Barrow welcomed the recommendation,
subject to its acceptance by referendum. And of course the
PM had throughout kept his Cabinet informed of the
unfolding process and received its consent to continue it.
In December 2007, the Belize government got British
support to commission Sir Eli to indicate what steps Belize
should take to prepare for submitting the dispute to the ICJ.
One of his recommendations was to retain Mr, Jan
Paulsson as the manager of the case. After briefing both
Prime Minister Musa and Leader of the Opposition Dean
Barrow, I, accompanied by Ambassador Fred Martinez, met
with Mr. Paulsson in Washington in January 2008 and
agreed on the way forward.
New governments took office in Guatemala in January 2008
and in Belize on 8 February 2008, and on 8 December 2008
Foreign Ministers Wilfred Elrington and Haroldo Rodas
signed the Special Agreement between Belize and
Guatemala to Submit Guatemalas Territorial, Insular and
Maritime Claim to the International Court of Justice (see
Chapter 8 for a discussion of this agreement).
On 9 September 2010, the Guatemalan Congress passed the
Special Agreement without debate. And on April 27, 2012,
delegations from Belize and Guatemala, headed by their
respective Foreign Ministers, Wilfred Elrington and Harold
Caballeros, met with OAS Secretary General Insulza, and
agreed that the simultaneous referenda will take place on
October 6, 2013.
 6. WHY WE NEED TO END THE DISPUTE
The dispute still exists
Some people argue that the UN General Assembly (UNGA)
resolutions on Belize of 1975-1980 ended the claim, by
stating that our sovereignty and territorial integrity must be
guaranteed and ensured. Those resolutions served the vital
political function of providing virtually unanimous
international support for our independence with full
sovereignty and territorial integrity. That is what made it
possible, along with the continued British military presence
achieved through that same support, for Belize to become
independent in 1981 with security and territorial integrity.
But UNGA resolutions are not legally binding. They are
political declarations. That is why we never really argued
the legal case before the UN, although Guatemala spent
dozens of hours doing so. In those resolutions that we
wrote, not once do we mention the 1859 Treaty nor our
legal arguments nor the definition of our borders, because
we knew that was not necessary and would probably be
unacceptable.
Our arguments were firmly based on our right as a people
to self-determination and independence. We explained that
we were a unique multi-ethnic people, neither British nor
Guatemalan but Belizean, and that we had the right to
choose independence. And we won near-unanimous
support for that.
But we must recall that all those UN resolutions also called
for continued negotiations to resolve the dispute. All the
organizations that supported our call for independence and
that have continued to support our efforts to resolve the
dispute also call, in most of their resolutions and
statements, for negotiations to end the dispute. They all
recognize, in other words, that a dispute exists.
And when the Security Council voted to admit Belize to
membership as a sovereign state, that did not in any way
imply that it was ruling that Belizes declared borders were
internationally ratified. If that were so, no two members of
the United Nations would have territorial or border
disputes, since each was admitted by a vote of the Security
Council.
Neither can it be said that because Guatemala has
recognized us as an independent state it thereby also
recognizes our stated borders. The dispute was always
expressly reserved as a matter to be peacefully resolved
between two sovereign states. Think for a second about it:
ALL disputes taken to arbitration or to the ICJ or resolved
by other means are between states that recognize each
other.
13
Can we defend our border and stop all
incursions?
Fine, some might say, Guatemala has a dispute, and does
not recognize our border, but we know where our border is,
and we can defend it and stop any Guatemalan from
crossing it.
We can, for example, erect a fence, or a wall, like the US has
done. But its border with Mexico is not in dispute. The
world recognizes that there is a dispute between Guatemala
and Belize, and believes that the dispute should be resolved
by peaceful means. Any attempt by us to resolve the issue
by other means would be viewed as a hostile act, and the
consequences that would flow from that are not difficult to
imagine. So forget fences and walls, which we couldnt
possibly afford anyhow.
Nor can we realistically expect the BDF to effectively patrol
the entire border 8 all the time. Firstly, we could never afford
it. And secondly, would it not be extremely likely that, after
our forces have had, in self-defence, to kill or injure a
number of Guatemalans, the Guatemalan military will be
forced to take action? Do we want to even contemplate
that?
OK, some people might say, the dispute may exist, but it is
totally unfounded, and we can just ignore it, since it is
Guatemalas problem, not ours. Dispute away, Guatemala,
they seem to say, but youre on your own, well just
disregard you, and well suffer no consequences thereby.
Says who?
Continued incursions and confrontations
We have been plagued, before and after independence, and
until now, and most certainly will be in the future, with
constant incursions from Guatemalan citizens into our
territory, whether to pillage our forest, archaeological and
other resources or to settle and farm our lands. These have
often led to long drawn out negotiations to remove them,
or to armed confrontations in which, over time, many
Guatemalans have been killed.
Yes, Guatemalan governments have often pledged to do
everything possible to stop such incursions, but lets be real:
first of all, Guatemala does not have the resources to take
such effective measures across a large expanse of bush; and
secondly, it cannot really exercise the political will to do so
effectively, given the nature of their position on the dispute,
which is that there is no recognised border between the two
countries.
8
About 52 miles from the Mexican border to Garbutts Falls, 80 miles from
there to Gracias a Dios Falls, 33 miles along the Sarstoon.
Just in 2012, there were three separate incidents causing the
shooting death of Guatemalan peasants at the hands of the
BDF. Each of those incidents could have caused
international conflagrations that would be costly and
unaffordable for Belize. The fact that the incidents were
handled well should not lead Belizeans into complacently
thinking that all such incidents can be resolved
diplomatically in the future.
Another consideration is that often Guatemalans will claim,
honestly or not, that they dont know where the border is,
because it is not marked or cleared, and in many places
there is thick bush throughout. Even when an area is
deforested, one cannot tell by sight only where the border
lies. The clearing of the entire border, which is only
possible after the dispute is ended, will obviously be a major
tool for helping to stop illegal incursions of all sorts.
Minister of Defence John Saldivar, who must know about
problems at the border better than most of us, has said that
if we dont resolve this in a definitive way, in a legal way,
then we will continue to have these conflicts on the border
that may go unresolved, that may result in loss of life and it
certainly is resulting in the destruction of our property, our
territory. 9
The major consequence of not ending the dispute, then,
will be continued incursions, continued pillage of our
resources, continued confrontations and expenditure of our
scarce resources to deal with such situations. If the dispute
is not ended, we can expect more, and more significant,
land invasions and possibly also military incursions to
protect Guatemalan citizens. These would be a constant
thorn in our side, cost us heavily and harbour the
possibility of erupting into armed conflict.
I am not suggesting that all incursions would come to an
end with the end of the dispute, but once our borders are
agreed and marked it will be easier to control and react to
them.
And with respect to those who argue that even after the ICJ
has declared the borders, those incursions will continue
unabated, the Minister of Defence disagrees: I believe that
the community of nations and the UN and the various
protocols that have been established will bring sufficient
pressure to bear on whichever side does not abide by the
ruling of the ICJ.
No maritime borders
Until we settle our land borders with Guatemala, we cannot
agree on our maritime borders either, since these depend
on the land. Apart from the potential conflicts this may give
rise to, the uncertainty will surely affect our ability to
9
Interview by the author, 16 November 2012
14
exploit the resources of the sea in certain areas, resources
we desperately need for our economic and social
development.
Loss of economic opportunities
More generally, not settling the dispute will sour relations
between two neighbours and block the impressive
possibilities we have for cooperating, in joint projects or
otherwise, for our mutual economic development. There
are opportunities for both countries in terms of economic
development and expansion that are not being taken up
because of this dispute. The unresolved claim has bred
uncertainty, and uncertainty creates fear. Our people,
especially those on the front line, have suffered the
consequences, and the claim has undoubtedly affected the
investment climate and development opportunities.
Loss of international support
If we are seen as the people who DO NOT WANT to settle
the dispute, this will not bode well for us in regional and
international communities and organizations. We, and not
Guatemala as hitherto, will be seen as the pariah state that
snubs its nose at its obligations under the UN Charter to
settle disputes peacefully.
When you consider that this includes Great Britain as well,
under whose umbrella of explicit or implied defence we
have been sheltering, we better think twice before saying
this is not our problem and that we can cruise happily into
the icy waters of international relations without bothering
about the dispute and without a care in the world.
7. ARGUMENTS AGAINST GOING
TO THE ICJ
We might lose something
Perhaps the most powerful argument being used against
going to court is that we just might lose something,
something that we already have, i.e. our land, island and
maritime territory. First, that is not even factually true in
relation to our maritime areas, because we do not have a
delimited and agreed maritime area. We have a claim to
maritime areas based on the United Nations Conference on
the Law of the Sea (UNCLOS), but such claims must be
confirmed either by agreement (as we hope to do with
Mexico and Honduras, but have no hope of doing with
Guatemala), or by judicial settlement: arbitration or the
Court.
Secondly, because although we do have possession of our
continental and island territory, we do not have any legal
recognition of our borders, for as we have explained,
neither the UN resolutions on Belize, nor our admittance to
the United Nations, nor Guatemalas recognition of Belize
as an independent state, grant such recognition. The
important thing is that we must have such recognition
especially from neighbouring states in order to live in peace
and tranquillity, and the Guatemalan government does not
recognize our borders with that country.
Let us recall a saying by Albert Einstein: if you fight, you
might lose, but if you dont fight youve already lost. My
own conviction, backed up by facts that I will relate, is that
we will not lose what we already have (sovereignty and
effective jurisdiction over our land and islands), but that we
will gain what we do not have: Guatemalas recognition of
that sovereignty, and a rightful delimitation of our
maritime areas with Guatemala. But we have to be prepared
to fight for it, and if we fight we shall win. I will explain why
in the next chapter.
The ICJs Judgments are not based on law or
sound reasoning
Another argument is to assert that the ICJ has a previous
track record of questionable rulings. Three cases are cited
to uphold that assertion: United States vs. Nicaragua,
Nigeria vs. Cameroon, and the recent Nicaragua vs.
Colombia case. This last is the only case where the merits of
the decision are being questioned. The other two seem to
address the question of implementation of the Courts
judgments, and I will address that issue below.
Some people have argued that the Courts judgment in the
Nicaragua/Colombia case was Solomonic, expressing the
fear that when confronted by Belize and Guatemala
claiming the same baby (the Jewel), the ICJ will decide to
give half, or a part, to Guatemala to appease that country.
In the first place, the ICJ does not operate like that. It
applies the law, however the chips might fall. And when we
take a close look at that case, we see that the Courts
decision was NOT Solomonic, but based on the principles
of international law, especially UNLOS provisions.
The first thing of note in the judgment 10 is that the Court
reaffirms that Nicaraguas claim to sovereignty over certain
islands could not be considered, because the question of
sovereignty over them had been determined by a 1928
treaty. In our case, the 1859 Treaty states what the agreed
border is in no uncertain terms.
On the question of sovereignty over certain maritime
features that were not included in the 1928 Treaty, the
Court first rejected the use of the principle of uti possidetis
juris 11, because there was too much uncertainty about the
historical facts to apply that principle. Why the ICJ would
10
For a fuller analysis of the case, see Appendix 1.
11
A principle sure to be advanced by Guatemala, under which upon
independence states inherit territories and boundaries of former colonial
provinces.
15
likewise reject Guatemalas reliance on that doctrine is
explained in Chapter 8.
The Court then said that it must decide the issue on the
question of effectivits 12, and ruled that for many decades
Colombia continuously and consistently acted as if it were
sovereign in those areas, and that Nicaragua could prove no
such acts of sovereignty.
In the case of Belize, there is no doubt that, not just for
decades, but for almost two centuries, Britain and Belize
can prove that, in respect to the continental area from the
Hondo to the Sarstoon, and in respect to all our islands, we
have acted as sovereign over those areas, and Guatemala
has not.
But our case is even stronger, because apart from our
exercise of effective occupation and control over our
continental land and islands, the 1859 Treaty (unlike the
1928 Treaty in the Nicaragua/Colombia case) explicitly
states that all the territory to the north and east of the line
of boundary above described belongs to her Britannic
Majesty, and all our islands lie to the east of the line of
boundary agreed.
But perhaps the part of the judgment which most confuses
or frightens some people in Belize is that which deals with
the maritime frontier between Nicaragua and Colombia.
They feel that the Court, having awarded sovereignty to
Colombia over the islands, felt compelled to give something
it was not due to Nicaragua (shades of King Solomon), and
thus accorded it maritime areas which Colombia felt it
should have won. Nothing could be further from the truth.
In determining the division of maritime areas, the Court
followed legal rules and precedents, and applied other
criteria to take into account the configuration of the coasts
and islands in a scientific way, but always guided by a
fundamental principle of UNCLOS in those matters, which
is that of equity.
The Court noted that the purpose of delimitation is not to
apportion equal shares of the area, nor indeed proportional
shares. The test of disproportionality must be applied:
whether the delimitation line arrived at by other means
needs adjustment because of a significant
disproportionality in the ratios between the maritime areas
which would fall to one party or other by virtue of that
delimitation line, and the lengths of their respective coasts.
This point about disproportionality is especially relevant to
the Belize/Guatemala case. In the Nicaragua/Colombia
case, the lengths of the relevant coasts are 531 km
(Nicaragua) and 65 km (Colombia), a ratio of about 1 to 8.2
in favour of Nicaragua. This is largely why Nicaragua got
12
A French word meaning acts of effective occupation and control.
more waters than Colombia. In our own case, as a cursory
look at the map will show, our coast is many times longer
than Guatemalas, and that will work in our favour.
ICJ Judgments are not followed, anyhow
Another major argument against going to the ICJ is that
even if we win, Guatemala will not abide by the judgment
and well be right back where we started. Let us examine
that assertion carefully, based on the facts.
But, first, let us take note of a fundamental distinction
between an Advisory Opinion of the Court (which under
Article 96 of the UN Charter can only be requested by the
General Assembly or the Security Council or by organs or
specialized agencies of the UN authorised by the General
Assembly) and a decision of the ICJ. Advisory Opinions are
not binding, whereas a judgment is binding, final and
without appeal.
Let me now deal with the two cases noted above. First, the
Nigeria/Cameroon case, where the Court ruled, in October
2002, that the Bakasi Peninsula belonged to Cameroon and
not Nigeria. In spite of initial protests, one month later the
Parties agreed to form the Cameroon-Nigeria Mixed
Commission (CNMC), composed of the representatives of
Cameroon, Nigeria and the United Nations. The CNMC
has taken many steps to implement the judgment,
including each side handing over territory in accordance
with the judgment. They have placed boundary markers
along the land boundary and started final mapping of the
whole border in accordance with the ICJ ruling.
With regard to the ICJ judgment on the Nicaragua/United
States case, which did not involve territorial questions but
rather the USs conduct of a dirty war against Nicaragua,
it is true that the Court ruled against the United States, and
it is also true that the US has refused to comply with the
judgment and obviously never will. Indeed, on two
occasions the US exercised its right to veto resolutions in
the Security Council demanding compliance with the
judgment.
The United States is the greatest world military power and
they can get away with that kind of behaviour, but we
cannot conclude from their actions that ICJ judgments are
not generally implemented. Let us check out the facts.
Up to July 2012, the Court made 57 judgments on the
merits (rather than procedural), and of those only 3 have
not been complied with, but none of these cases involved
territorial disputes. As far as cases concerning sovereignty
over territory and/or delimitation of land or maritime
boundaries go, the Court has handed down 19 judgments
on the merits, and ALL have been complied with or are in
the process of being complied with.
16
It is also noteworthy that all three of the cases of non-
compliance were commenced unilaterally, not by
agreement between the disputing states. In every case where
states have agreed to submit a specific dispute to the ICJ,
like Belize and Guatemala propose to do now, no state has
ever definitively refused to comply with the judgment.
Guatemala is a special case and will not comply
Still, some Belizeans argue that Guatemalas obsessive belief
that Belice es nuestro will make it defy everything and it will
refuse to implement the Courts decision. They suggest that
Guatemala is a special kind of lawless state that cannot
possibly be expected to abide by international law. This, I
respectfully submit, is clearly not the case. Yes, Guatemala
suffered for decades under a series of dictatorships, and was
viewed as a pariah state until after 1985, when a
democratization process began, and the civil war was ended
with peace accords in 1996.
Today we have a different Guatemala, one that is anxious to
behave as a legitimate state that abides by the UN Charter
and all the accepted principles of the international
community. For example, Guatemala has participated in
peace-keeping missions of the UN in Haiti and the Congo,
accepted the jurisdiction of the Inter-American Court of
Human Rights for cases dealing with disappearances and
executions during their internal conflict, and won support
for a seat in the UN Security Council for 2012-2014.
With regard to Belize itself, the new Guatemala has done
many things to gain our confidence: changed its
Constitution in 1985 to remove the statement that Belize is
part of Guatemala; recognized the state of Belize in 1991
and since then maintained diplomatic relations with us. It
has accepted the Confidence Building Measures to bring
greater peace and harmony along the border. It approved
the Partial Scope Agreement for trade and cooperation, and
trade has increased between us. Guatemala promoted the
full participation by Belize in SICA and in the Central
American Bank of Integration. There are regular meetings
of the military high commands of our two countries as
stipulated under the CBMs. There are increasing exchanges
in sports, cultural, educational and other people-to-people
contacts.
With regard to the process to go to the ICJ, Guatemala has
bent its positions considerably in approving the Special
Agreement; it has moved ahead and given that Agreement
unanimous Congressional approval; it has accepted that as
state policy it should work hard for a yes vote in the
referendum and has long since begun a campaign to
achieve this. It has pledged to abide by the ruling of the ICJ,
and all indications are that it will feel obliged to do so and
will do so. And if not, we can always appeal to the Security
Council.
 We are giving up our sovereignty and acting
under pressure
Some argue that we are somehow compromising our
sovereignty by asking the ICJ to decide on our title to
territory. If that were so, however, what explains that so
many sovereign countries, including major powers, have
had recourse to the ICJ? Indeed, many countries (more
than 65 at the moment) have agreed to the compulsory
jurisdiction of the Court, while others agree to submit a
particular case through a Special Agreement, which is what
Belize is now proposing to do, if approved by referendum.
The signing of the Special Agreement was itself a sovereign
act performed by the government of Belize; it was not
forced to do so, and indeed it was Belize that drove the
process to submit the case to the ICJ.
Another argument being used is that the government is
acting in appeasement to foreign interests. The truth is
just the opposite. As explained above, after the Facilitation
Process ended, and Guatemala kept insisting on pursuing
negotiations that were clearly going nowhere, it was Belize
that took the initiative and brought international pressure
to bear on Guatemala to accept a process that would
eventually lead us to the ICJ. WE pushed for it, not
Guatemala nor Britain nor any foreign interests.
Going to court will cause bad blood between
the two countries
This is another argument put forward by some who believe
that the ICJ route would be bad for both countries. This is
most persuasively argued in an article that states:
If promoting cooperation with Guatemala is all-
important to Belize, then its opposition to an ICJ
resolution makes sense. However, if ending the dispute
is its most important interest, then sending the dispute
to the ICJ will do just that, and in a manner most likely
advantageous to Belize both on land and at sea. It is
doubtful that the Court will decide that Belize prevails
on the merits on land but will find a way to award
Guatemala rights at sea [in other words, no Solomonic
judgment]. 13
The fact is that I believe we want both things: to end the
dispute and to have good relations with Guatemala, but I
also believe that as long as the dispute exists we will not
have good cooperative relations. And at this stage of play
the ONLY way to end the dispute is by going to Court. And
as long as the dispute is not resolved, as long as Guatemala
is unable to recognize the border that divides our two
13
E. Rainbow Willard, How to get less than you bargain for adjudicating the
Guatemala-Belize territorial dispute at the ICJ, Emory International Law
Review, vol. 23, pp. 739-782.
17
countries, then there will be continued incursions, our
defence forces will, whenever they can and totally
justifiably, continue to take steps to prevent them, and
more bad blood will flow.
Besides, Belize did not make a unilateral decision to take
Guatemala to Court. This is a mutually agreed process, so I
dont believe this will worsen our relations in any way.
Still, if push comes to shove, I do believe that Belizean
people, now, would place a higher value on ending the
claim and having our land and sea boundaries legally
defined and recognized than on improving cooperation
with Guatemala. And, in my view, the one will, sooner or
later, lead to the other anyway.
The ICJ will cost too much, and we can use the
money better
There are several estimates of what going to the ICJ will
cost us, but nobody knows for sure. People talk about how
we could use the millions instead for different things. Sure,
we could do with better health and education systems,
better roads, more social facilities, etc. But
In the first place, we can access money for the ICJ process
from friendly governments and others that we would not
otherwise have, and there is a UN Secretary Generals Trust
Fund to assist States in the settlement of disputes through
the ICJ. Secondly, what we stand to gain is in a sense
beyond a price: safety for our people, secure and recognized
borders, greater economic opportunities, peace and
harmony with our neighbour. And thirdly, we are already
spending millions, in defence and diplomatic work, to
protect ourselves from the consequences of the claim.
Maybe the question is best stated in another way: what do
we stand to lose by NOT going to the ICJ? Besides
continuing to spend millions of dollars and dedicating
valuable human resources on the claim, we will lose a
unique opportunity to gain the security for our borders that
we have always wanted, and that our people and future
generations of Belizeans deserve.
There is no victory except through struggle. Let us fight for
our rights in the only place where victory brings security: the
ICJ.
8. WHAT WE CAN EXPECT FROM THE ICJ
The International Court of Justice
The International Court of Justice is the principal judicial
organ of the United Nations. Its seat is at the Peace Palace
in The Hague (Netherlands). It began work in 1946, when it
replaced the Permanent Court of International Justice. It
operates under a Statute similar to that of its predecessor,
which is an integral part of the Charter of the United
Nations.
The Court is composed of 15 independent judges, elected
by the General Assembly and the Security Council for a
term of nine years, and they may be re-elected. The judges
must be persons of high moral character, who possess the
qualifications required in their respective countries for
appointment to the highest judicial offices, or are jurists of
recognized competence in international law. The Members
of the Court do not represent their governments but are
independent judges. The composition of the Court also
must reflect the main forms of civilization and the principal
legal systems of the world.
Only States may apply to and appear before the Court. The
Court is competent to entertain a dispute only if the States
concerned have accepted its jurisdiction, as for example by
a Special Agreement to submit the dispute to the Court.
The ICJ is widely recognized as the most authoritative and
accepted international tribunal. Over the last two decades,
more and more countries from all over the world are
submitting cases to the Court: since 1990, the Court has
decided more cases than during the first 44 years of its
existence. This is because bringing a dispute before the
Court usually contributes to defusing tensions between
States, in particular in situations of competing claims to
sovereignty or maritime zones ...the Court remains
available to assist them by adjudicating the dispute on the
strength of their legal arguments and evidence in
accordance with international law. 14
I know Belizeans love the Legal Opinion written by four top
international experts. Listen to what two of those have to
say about the ICJ:
Judge Stephen Schwebel, former President of the ICJ: The
Courts standing appears undiminished by the availability
of arbitration and the recent appearance on the scene of
other tribunals with specific mandates... The Court with its
distinguished record remains pre-eminent. And: The
Courts decisions thus enjoy ...an intrinsic authority
within the international community... [which, together
with] the coherence of its case-law are fundamental factors
which enable it to contribute to the development of
international Law.
Shabtai Rosenne, the leading expert author on the ICJ:
While there is no formal hierarchy of international courts
and tribunals, the pre-eminence of the [ICJ] is today
generally accepted. Any other international adjudicatory
body which ignored relevant dicta and decisions of the
14
Judge Peter Tomka, President of the ICJ, at the High-Level Meeting on the
Rule of Law, on 24 September 2012.
18
International Court would jeopardize its credibility. The
constant accretion of judicial precedents is creating what is
now a substantial body of international case-law. 15
The Special Agreement: the essence
Article 1 commits Belize and Guatemala to submit their
dispute to the ICJ, and article 2 defines the dispute (any and
all legal claims of Guatemala against Belize to land and
insular territories and to any maritime areas pertaining to
these territories) and states what law is to be applied (rules
of international law as specified in Article 38(1) of the
Statute of the Court).
The definition of the dispute is favourable to Belize,
because it means that once the Court hands down its
judgment, Guatemala cannot raise any other kind of claim
at any other time. There can be no further claims, no more
negotiations nor pressures to make concessions.
Important too is the fact that the Special Agreement
excludes the operation of subsection (2) of Article 38 of the
ICJ Statute, which allows the Court to decide a case ex
aequo et bono, if the Parties agree thereto. Belize refused to
agree to that, and Guatemala finally abandoned its decades-
held position that any submission to judicial settlement
must be on the basis of ex aqueo et bono (that is to say, by
taking extra-legal matters into consideration). So the case
will be heard strictly on a legal basis, which favours Belize.
The ICJ Statute at Article 38 (1) explicitly states what law
the Court must apply: international conventions
establishing rules expressly recognized by the contesting
states; international custom, as evidence of a general
practice accepted as law; the general principles of law
recognized by civilized nations; judicial decisions and the
teachings of the most highly qualified publicists of the
various nations.
Article 5 states that both countries shall accept the decision
of the Court as final and binding, and undertake to comply
with and implement it in full and in good faith. It then sets
out the procedure for demarcating the boundaries in
accordance with the decision of the Court.
After the judgment, our land and maritime borders with
Guatemala will be demarcated throughout and Guatemala
will not be able to change or challenge them at any time.
Recall that even if there were no Guatemalan claim we
would still have to negotiate maritime borders with
Guatemala, which would have required us to spend a lot of
time and money in negotiations, and come under a lot of
pressure to make concessions. If we go to the ICJ, all that
15
All three quotations are in Barbara Kwiatkowska, Decisions of the World
Court Relevant to the UN Convention on the Law of the Sea, 2002.
will be done according to law, there will be no concessions
and the judgment will be enforceable against Guatemala.
What is the ruling of the ICJ likely to be?
I do not intend to set out here the legal case that either
Guatemala or Belize will present: a lawyer never gives away
in advance what his or her arguments in court will be. In
any case, the Special Agreement requires that Guatemala
first submit a Memorial where it sets out the basis of its
claim, and then Belize will submit a Counter Memorial
refuting those claims and stating its own case. So until we
see Guatemalas Memorial, we cannot say for sure what
reply will be required of us.
What I propose to do is inform you, from public
documents available to all, what each party is likely to rely
on to prove its case. The OAS Facilitation Process, where
both sides presented, as if to a court of law, their respective
legal positions, turned out to be a dry run of the battle we
might engage in before the ICJ. And the Legal Opinion
clearly sets out the strength of our legal case.
What Guatemala must prove
In order to uphold its claim before the Court, Guatemala
must prove all of these things, among others:
that Spain was in effective occupation of our territory
in 1821;
that Guatemala had title to the territory of Belize in
1859;
that the 1859 Treaty was a Treaty of cession;
that Article 7 was the compensation for that cession;
that Britain alone is responsible for not implementing
that article;
that as a result of that the Treaty became void in its
entirety;
that consequently Guatemala has title to the territory;
that the 1931 Treaty has no effect;
that Guatemala, and not Britain and Belize, exercised
sovereignty and peaceful possession and
administration over the disputed territory.
Guatemala cannot prove ANY of these things.
In order to show title to the territory, Guatemala will argue
it inherited Spains title to the territory. The legal basis on
which Guatemala makes this claim is that of uti possidetis, a
doctrine first applied in the 19th century by the states that
had been under Spanish dominion, under which each state
inherited the colonial administrative borders that existed at
the time of independence.
Guatemalas claim under uti possidetis will fail for several
reasons. First of all, it couldnt inherit from Spain
something that Spain didnt have, and as we have shown in
Part 1, Spain had lost all presence in the Belize territory
19
(from the Hondo to the Sarstoon) long before Central
American independence in 1821.
Secondly, the doctrine of uti possidetis operated only where
both states involved in the boundary dispute were part of
the Spanish colonial empire and where the only source of
authority was the Spanish Crown, and in 1821 Belize was
under British, and Guatemala under Spanish, dominion, so
the doctrine cannot apply.
Even in Guatemalas own view, British possession and
control was exercised up to the Sarstoon at the time of
Guatemalan independence. Guatemalas Foreign Minister
Pedro de Aycinena, who had negotiated the 1859 Treaty,
stated on 4 January 1860:
the fact [is] that the right we had constantly alleged of
being presumptive heirs of Spains sovereignty was very
much weakened because of our lack of means to take
possession of these lands that had been left deserted and
abandoned by Spain herself and subsequently by us
Of course, we admitted that we could not argue
against the sovereignty already being exercised [by
Britain] with full Spanish acquiescence in 1821, when
we became independent, and that, in the case at hand,
the issue would be limited to territorial occupation
occurring only after that date.
In this regard... even if we were to prove the point...
that the limits were extended as far as the Sarstoon
River after Independence, it was no less true that since
we had never taken possession of these territories nor
recognised them nor maintained agents to represent us
in them, this would make it impossible for us to
determine which part was occupied during Spanish rule
and which part was occupied thereafter. And this
difficulty made it really impossible for us to achieve a
positive result with our claim.
In any case, the historical records of Spains administrative
divisions do not indicate that the Belize territory fell under
the Captaincy General of Guatemala, but rather of Yucatan,
and the several attempts to expel the British settlers, up to
1798, came from Yucatan, not from Guatemala. At the very
least, there is sufficient uncertainty on this point for the
Court to decide, following its decision in the
Nicaragua/Colombia case, to dismiss Guatemalas position.
Guatemalas claims concerning the 1859 Treaty
The Guatemalan contention that the 1859 Treaty was a
Treaty of cession is unsustainable, because the plain words
of the Treaty make it clear that this was not so. The
governing law is in the Vienna Convention on the Law of
Treaties, which states that A Treaty shall be interpreted in
good faith in accordance with the ordinary meaning to be
given to the terms of the Treaty in their context and in the
light of its object and purpose.
The title of the 1859 Treaty states that it is a Convention
between Her Majesty and the Republic of Guatemala,
relative to the Boundary of British Honduras.
Article 1 of the Treaty confirms the boundary between the
Republic and the British Settlement and Possessions in the
Bay of Honduras, as they existed previous to and on the 1st
day of January, 1850.
Nor can Guatemala prove that Article 7 was the
compensation for its ceding territory to Belize. The Treaty
makes it clear that the provision merely required both
Parties to jointly use their best efforts to establish the easiest
communication between the capital of Guatemala and the
Atlantic coast near Belize, with the clearly stated intention
that thereby the commerce of England on the one hand,
and the material prosperity of the Republic on the other,
cannot fail to be sensibly increased.
Foreign Minister Aycinena in the letter noted above
confirms this even more clearly:
On [the President's] orders we began negotiations and,
following our recognition of the current boundaries of
the British Establishment as the basis for said
negotiations, we proposedafter acknowledging its
legal existenceopening an accessible road to this
Capital in order to encourage travel and trade with said
Establishment by way of our Atlantic Coast.
Guatemalas contentions that it had sovereignty over the
territory and ceded it by the 1859 Treaty, therefore, would
obviously fail to stand up in any court. Guatemala will no
doubt argue that the British negotiator of the Treaty,
Charles Wyke, himself admitted that it involved cession of
territory on the part of Guatemala. But the fact is that Wyke
was attempting to justify his breach of the clear instructions
given to him by the British government. The British
government never accepted Wykes private opinions, and
so cannot be held to them. In any case, Guatemala itself
recognized the validity of the Treaty throughout the rest of
the century and the next, by negotiating to implement
Article 7.
And it specifically recognized the boundaries set out in the
1859 Treaty by the exchange of notes in 1931, where
Guatemala agrees to recognise the concrete monuments
erected at Garbutts Falls and at the Gracias a Dios rapids
on the border of Belize and Guatemala... These
monuments, thus determined, form part of the border line
between Belize and the Republic of Guatemala.
20
It was not until 1946, by means of an internal decree of its
own legislature, that Guatemala formally purported to
declare that the 1859 Treaty was void.
But international law would not recognize this attempted
nullification. The Vienna Convention declares that only a
material breach of a bilateral Treaty by one of the Parties
entitles the other to invoke the breach as a ground for
terminating the Treaty or suspending its operation in whole
or in part. It defines a material breach, as the violation of
a provision essential to the accomplishment of the object or
purpose of the Treaty. The clearly stated object and
purpose of the 1859 Treaty was to define a pre-existing
boundary, and no breach of article 7 would affect that
purpose.
But, for arguments sake, even if we contemplate the
impossible, that any court would declare that the 1859
Treaty in its entirety was voided by Britains supposed
failure to implement Article 7, this would still not invalidate
the border agreed in that Treaty. This is surely a defining
trump card in our case, and it is clearly stated in several ICJ
judgments, most clearly in the Libya/Chad case (ICJ
Reports 1994):
A boundary established by Treaty thus achieves a
permanence which the Treaty itself does not necessarily
enjoy. The Treaty can cease to be in force without in
any way affecting the continuance of the boundary...
when a boundary has been the subject of agreement,
the continued existence of that boundary is not
dependent upon the continuing life of the Treaty under
which the boundary is agreed.
We can confidently assert, therefore, that Guatemalas
claim has no legal basis whatsoever, and it is inconceivable
that the ICJ would hold otherwise.
The legal basis of Belizes claim
By the refutation of Guatemalas legal arguments, I have
obviously given sufficient indication of what Belizes case
will be, and can confine myself here to briefly stating its
major points.
The Treaty basis of Britains and then Belizes sovereignty,
by the 1859 Treaty and the 1931 Exchange of Notes, is
unassailable. This may well be enough to decide the case,
because the ICJ has in many cases affirmed that where a
Treaty clearly establishes sovereignty over a territory, other
factors such as uti possidetis or even effectivits will not be
considered (see the Nicaragua/Colombia case).
Although the ICJ may well rely exclusively on the treaties,
therefore, to decide the case, we do have a battery of other
arguments in our legal arsenal.
Belize can show that Britain acquired the territory up to the
Sarstoon prior to the independence of the United Provinces
in 1821, that by that time Spain had acquiesced in Britains
possession, and that Guatemala never ever occupied,
possessed or administered any part of the territory of
Belize. For this, it can rely on the international law concepts
of historical consolidation of title and acquisitive
prescription.
Finally, Belize can call on the new international norm of
self-determination. In the ICJs judgment in 2001 of the
Application of the Philippines for permission to intervene
in the case concerning Sovereignty over Pulau Ligitan and
Pulau Sipadan (Indonesia/Malaysia), the ICJ rejected the
application of the Philippines (which was really claiming all
of North Borneo based on historic title), and Judge Thomas
Franck made it clear that "the decisions of this Court
confirm the prime importance of [the] principle of self-
determination of peoples". He explained that
Modern international law does not recognise the
survival of a right of sovereignty based solely on
historic title; not, in any event, after an exercise of self-
determination conducted in accordance with the
requisites of international law, the bona fides of which
has received international recognition by the political
organs of the United Nations. Against this, historic
claims and feudal pre-colonial titles are mere relics of
another international legal era, one that ended with the
setting of the sun on the age of colonial imperium.
The direct relevance of this to Belizes case will escape no-
ones attention.
All these legal arguments on our behalf have been upheld
by renowned non-Belizean international lawyers, and not
just those we have asked for an opinion. On the other hand,
NO independent international lawyer has ever upheld
Guatemalas claim, even when asked to by the Guatemalan
government.
In 1950, Guatemala sought the opinion of perhaps the most
respected and renowned US international lawyer of the
time, and a former judge of the Permanent Court of
International Justice, Manley O. Hudson. He made an
exhaustive and thorough study of the case, and put the best
face possible on Guatemalas contentions in terms of what
the ICJ may decide, and still had to tell Guatemala that they
had no case. 16
Hudson noted that it would be hard to prove Guatemalas
contention that it inherited the territory from Spain, since
there is little evidence available of actual de facto
16
See Appendix 2 for a fuller exposition of Judge Hudsons Opinion.
21
possession by Guatemala of the area within the boundary of
the territory of Belize as fixed in 1859.
He also made it clear that:
the plain words of the Treaty rule out the contention
that it was a treaty of cession.
some seventy years elapsed between the British
repudiation of Article 7 of the Convention of 1859
and the denunciation of the Convention by
Guatemala, and on several occasions during these
seventy years Guatemala seems to have acknowledged
British sovereignty within the boundary as fixed in
1859.
The Court was not likely to reach the conclusion that
the failure of Article 7 operated to render the
Convention of 1859 wholly void.
Note has to be taken, also, of the demarcation of the
1859 boundary made by commissioners appointed by
the Parties as late as 1928, and agreed to by the
Governments exchange of notes of 2526 August
1931.
The Court might take the view that Article 1,
regarded as a cession of territory, was fully executed
upon the entry into force of the Convention, and the
conclusion might then be drawn that a denunciation
effected long after the entry into force of the
Convention would not destroy the effect of Article 1.
Having clearly advised the Guatemalan government that
taking a legal case to the ICJ to claim territory would most
likely result in failure, Hudson considers the chances of
winning if the case were heard ex aequo et bono. He goes
through several arguments that Guatemala might present to
the ICJ to convince them to allocate at least a part of
Belizes territory to Guatemala, but in none could he find
any likelihood that, even under ex aequo et bono, the Court
would agree with Guatemala.
Hudson woefully concludes: On the whole, the writer can
see little advantage for Guatemala in going to the Court for
a decision ex aequo et bono, over going to the Court for an
ordinary judgment. Neither of these courses seems, under
the circumstances, to be very promising for Guatemala.
Compare that to this categorical statement from four
eminent international lawyers in 2002:
We have been asked to consider whether Guatemala can
validly question the sovereignty of Belize over the whole or
any part of its territory. We can state our conclusion
immediately and without qualification. The answer is No.
Belize possesses a good title to the whole of the territory,
including the islands, that it presently administers, within
the limits set by the Convention of 30 April 1859 between
Britain and Guatemala relative to the boundary of British
Honduras.
My own conclusion, therefore, is that every Belizean can
have full confidence that the ICJs decision will reflect the
historical and legal situation we have outlined here. As
stated in the Legal Opinion mentioned above, On the basis
of international law and on the evidence considered, Belize
has good title to all its territory including the islands and
islets lying off the mainland shore. The claim to Belizean
territory by the Republic of Guatemala is without merit and
in our opinion would be regarded as such by the
International Court of Justice.
9. WHY WE SHOULD VOTE YES
Let us remind ourselves of the question:
Do you agree that any legal claim of Guatemala against
Belize relating to land and insular territories and to any
maritime areas pertaining to these territories should be
submitted to the International Court of Justice for final
settlement and that it determine finally the boundaries of
the respective territories and areas of the Parties?
Note that the word final appears twice in that short
sentence. Final settlement means the Guatemalans cant
come back later with any further or different claims, and
they cant appeal the decision its FINAL.
The other is equally important, and it relates to our
borders, which the Court will FINALLY determine, the
land as well as the maritime borders. For us, it means
something like Thank God, finally we shall have clear and
agreed borders, and for the Court and the international
community, and legally, it means that it will be a final
determination, that Guatemala cannot seek to change those
borders thereafter.
Now isnt that a great prize to go after?
Going to the ICJ is now our best and only chance to make
Guatemala recognize and respect our borders once and for
all. Let us not lose that once in a lifetime opportunity
thoughtlessly.
What happens if we boycott the referendum?
First of all, of course, it means that the dispute does not go
to the ICJ for final resolution and we lose our best hope
ever of ending the dispute, with all the consequences we
have discussed.
The worse-case scenario would be if less than the 60%
required by the law turn out to vote. If the referendum is
declared void because too few Belizeans vote, that will show
that they are not interested in the result. In the
circumstances we should not be surprised when the
22
international community decides that if Belizeans are not
interested in the security of their country, then why should
they be? So, whatever your opinion by the time October 6
comes around, your duty as a Belizean is to go and vote,
and show that you are interested in the security and welfare
of your country.
Ambassador Fred Martinez, who has been on the front line
as our Ambassador to Guatemala for some thirteen years,
puts it this way:
Not going to vote sends the message that we care less
about our nation than even our allies whom we
hurriedly turn to for support when we are in trouble.
Our allies and friends will turn their backs on us if, God
forbid, the people of Belize stay home and kill the
referendum voting. With what face will any
government of Belize, any diplomat of Belize of
whatever government is in power, go to the same
international community and seek for support against
Guatemala, either for diplomatic support or a peace
keeping mission or funds to keep the OAS office at the
border operational?
They will answer us: why should we spend our
taxpayers monies to help you when you did not have
the moral and patriotic obligation to record your view
on the matter in the referendum? You chose to not
even lift up your pen to vote, and yet we must help you.
Why should we send our children to defend you and
possibly die for you when you chose to so
unpatriotically stay home and not record your view on
the matter? 17
What happens if we vote NO and Guatemala
votes YES?
In any case, if for whatever reason the decision in Belize on
6 October is against submitting the dispute to the ICJ, I
believe we will lose international support and
understanding for our cause. This is very alarming, because
Belize became independent with territorial integrity and
security only because of such international support, and it
has succeeded so far in maintaining those gains because of
continued international support. There is no law that
guarantees us this support forever, regardless of what we
do. Should our international allies, including the UK, begin
to feel that we are being unreasonable, the tide can easily
and quickly turn against us and leave us exposed and to a
large extent defenceless.
Why do I say we will lose support? The international
system, as enshrined in the Charter of the United Nations
and in numerous international agreements, requires that
17
Interview by author (email), 25 February 2013.
disputes be peacefully resolved, not that they be ignored or
endlessly prolonged.
That is why both governments agreed to submit the case to
the ICJ, once their peoples agree to do so. Guatemalans
know they really have no legal case, but are willing to
submit to the judgment of the ICJ in order not to appear to
be going against international norms. Guatemalan
diplomats and foreign ministers have confessed to us over
the years that Guatemala is isolated in the world because of
what the international community regards as their
anachronistic claim, and they want rid of it by whatever
means possible, and the only option left is recourse to the
ICJ. Whatever the outcome, they will be well regarded in
the international community; they will not lose face, but
gain international respect.
Recently, Guatemalan Foreign Minister Fernando Carrera
said:
It is important to send the world a message that we are
a people with a vocation for peace and dialogue, and
that we have the intention to resolve the dispute with
Belize through the international judicial tribunals...
Guatemala gains from having stability in its
international relations... The day the international
tribunal decides how the pie is to be sliced, we shall be
content because we will have solved the dispute. The
territory is a means. The goal is to achieve peace,
encourage dialogue and guarantee sovereignty. 18
If it is us, who have everything to gain from an ICJ decision,
that decide not to submit the dispute to the ICJ, and
thereby leave the dispute unresolved, it should be obvious
what the reaction of the international community would be.
How ironic it would be if Belize, having achieved and
consolidated its independence on the basis of international
principles and norms, chose to turn its back on the
international institutions whose job it is to preserve those
principles.
And, if truth be told, even though Guatemala would like to
see the back of this claim in order to gain international
respect, the fact remains that postponement of a final
settlement would act in Guatemalas favour, and very much
against Belizes best interests.
Practically speaking, I believe we would be in danger of
losing the presence at the border of the OAS office. I know
that some people believe that the OAS is against us, and
some even argue that we should end our membership of the
OAS. I submit that both the perception and the
prescription are wrong.
18
Interview in El Peridico, Guatemala, 19 February, 2013. Authors
translation.
23
We saw in Part 1 that from as early as 1977, and again in
1979 and crucially in 1980, the OAS has shown that,
politically, it favours our position over that of Guatemalas.
Today, we are full members of the OAS just like Guatemala,
and I have no doubt that on the political issue of our
independence and territorial integrity we would have
unanimous support there still.
The OAS office has been there to oversee the CBMs, but in
practice that has meant investigating and making
recommendations about Guatemalan incursions into
Belize, not Belizean incursions into Guatemala. In other
words, in practical terms it has been protecting our
interests, not those of Guatemala.
The OAS office has supervised many removals of
Guatemalans from Belizean territory, and its presence
certainly acts as a deterrent, at least to any overt attempts
by the Guatemalan government to encourage incursions.
Absent that office, there are likely to be more incursions,
with no international body here to denounce them.
Belize has nothing to gain, and much to lose, by the
removal of that office before the dispute is resolved and the
border is marked accordingly. But that office costs a lot of
money, and is maintained there because of the political will
and commitment of many countries. If we should lose the
support of those countries because we appear not to want
to solve the dispute in accordance with international
norms, we certainly cannot guarantee that the office will
remain.
If the office is removed because we have lost international
support as a result of refusing to abide by international
norms, the consequences are fairly predictable. There
would be a strong possibility of increased territorial
encroachments or even of a popular invasion like the
Green March 19, possibly with the encouragement of the
Guatemalan government. Do we want to even risk that
happening?
What happens if we vote YES and Guatemala
votes NO?
Again, that would be unfortunate, because it would mean
that the dispute remains unresolved, with all that that
implies.
19
This refers to the invasion of over 200,000 unarmed Moroccan citizens,
escorted by thousands of Moroccan troops, into Western Sahara in
November 1975, although an independence movement against Spanish
control of the land was found by a UN visiting mission to have
overwhelming support. A long-drawn out liberation war, during which
Morocco militarily occupied the land, killing thousands of Saharawi people,
continues to this day. About 80 states, including Belize, recognize the
Saharawi Arab Democratic Republic, but the reality on the ground is that
Morocco rules.
But as far as international support is concerned, we would
certainly be in a very strong position, and it would be
Guatemala that would be regarded as swimming against the
tide.
In such a scenario, I believe we could make a strong case for
maintaining the OAS office at the border, and that we
would succeed in doing so.
We would also be able to call on the assistance of the US,
Britain and other friendly countries, and even on the
Security Council, to help prevent or curtail any border
incidents.
How we arrived at the decision to hold a
referendum on the ICJ
It is important to recognize that the decision by the present
government to sign the Special Agreement to submit the
dispute to the ICJ if referendums in both countries approve
is the end result of a long process.
Ever since independence, the Belize position in
negotiations with Guatemala has been characterised by a
bi-partisan approach. That is to say, both parties in the
National Assembly, whether in government or Opposition,
have worked together in establishing our positions at the
negotiating table.
What is more, there has always been some mechanism,
most often called the National Advisory Commission
(NAC), through which broad sections of the community
have been called upon to advise on the negotiations. In
these commissions, apart from representatives of both
parties, there have been representatives of NABR, of trade
unions, churches, civil society organizations, business
groups, ethnic groups, educational institutions and others.
Since the issue now is going to the ICJ, I will emphasize the
point about consultations in that process. The decision to
try to submit the dispute to the ICJ really began to take
shape soon after the Facilitation Process failed, and was
solidified in the Agreement on a Framework for
Negotiations and Confidence Building Measures signed on
7 September 2005. This, as I explained above, was pushed
by Belize as our only hope to end the dispute favourably.
Official minutes of a meeting of the National Advisory
Commission (NAC) of 8 April 2005, several months before
that Agreement was signed, show that there was active
discussion of our attempts to pressure Guatemala to submit
the dispute to the ICJ. The discussion was based on a
memorandum respectfully submitted by Assad Shoman,
head of the Negotiating Team, with the concurrence of
Ambassador Martinez.
Members of the NAC discussed my statement that the
delimitation of the border is the principal issue that the ICJ
24
needs to resolve. One member asked why Guatemala had
become so hesitant to take the issue to the ICJ. Another
said the people need to be kept informed about the
possibility of taking the issue to the ICJ. Yet another asked
whether it is necessary for both Guatemala and Belize to
agree on the question that will be presented to the ICJ.
There is nothing in the record to suggest that any member
of the NAC objected to taking the ICJ route.
The decision to sign the Special Agreement, therefore, is the
result of a long process in which there has been
consultation and advice from representatives of the society.
It has not been a top-down process. The process was begun
by a PUP government in full consultation with the UDP
and civil society, and was brought to its culmination by a
UDP government in full consultation with the PUP.
Indeed, the PUP was in power when the SG of the OAS
made the recommendation to go to the ICJ (November
2007), and the leaders of both parties welcomed the
recommendation.
At the launch of the Public Awareness Campaign on 23
January 2013, Prime Minister Dean Barrow announced that
the Cabinet formally supports a Yes Vote, although
individual members are allowed a conscience opt out. He
urged all Belizeans to participate fully in the process and to
vote on October 6.
Leader of the Opposition Francis Fonseca, although not
stating his own or his partys position on a yes or no
vote, said that the PUP was committed to participate in the
awareness campaign, and urged Belizeans to take the issue
seriously.
On Sunday 17 February 2013, at its national convention,
the UDP approved by acclamation (i.e. unanimously) the
recommendation of the National Executive that the UDP
supports the referendum process and a yes vote, this party
position should not restrict any party supporter from
voting their conscience on this very important question.
The risks of going to the ICJ
I have been asked to address the question of the down side
of going to the ICJ. What is the worst that can happen if we
take that route?
If I am to maintain my commitment to tell you the truth as
I see it, I have to confess that I see no real risks for our
sovereignty and territorial integrity by going to the ICJ.
I cannot conceive that the Court will rule against the clear
words of the 1859 Treaty defining our borders with
Guatemala. It will similarly uphold our claim to the islands,
based both on the Treaty and on our effective occupation
and administration of them.
That leaves the question of the maritime areas. As I have
noted before, whether or not Guatemala had a claim to any
part of our territory, we would have to reach agreement on
the delimitation of our maritime areas. If this could not be
done by mutual agreement, we would have to submit the
matter to some judicial settlement, whether arbitration or
the ICJ or the International Tribunal for the Law of the Sea
(ITLOS). Our team of legal experts have advised us that in
the present circumstances, it is best to have the ICJ decide
the maritime issues as well. Both the ICJ and the ITLOS
would, in any case, apply the same law, the same principles.
This makes a lot of sense. The ITLOS has no jurisdiction to
decide questions of sovereignty. It simply demarcates the
maritime areas in cases submitted to it in accordance with
the Law of the Sea. So we would have to go to the ICJ first
anyhow to decide on the sovereignty over land (including
islands), which governs the maritime areas. So why lose the
opportunity to resolve the whole papaya, since not only will
this save us a lot of money and time, but a lot of problems
also. Otherwise, after the ICJ decision on sovereignty, we
would have to negotiate a maritime boundary with
Guatemala, and if we cant agree (and you know the history
of trying to reach agreement with Guatemala) then we
would have to submit the matter to ITLOS or the ICJ
anyhow.
It is impossible for anyone to predict exactly how any
tribunal would draw the maritime boundaries, since that is
a complicated matter involving matters of law applied to
the geography of the area. The Court itself has said that one
cannot look to general international law to provide a
ready-made set of rules that can be used for solving any
delimitation problems that arise. 20 Likewise, UNCLOS
provides only general principles, not detailed rules that can
apply to any situation. That is why international tribunals
approach each delimitation as a unique exercise based on
the facts relating to that particular case.
What we can say with confidence, based on the decisions
made by the ICJ, is that they will apply the law, and that
they will not be moved by any question of sympathy for the
Guatemalans (or for us).
In other words, there is some uncertainty as to the actual
lines the Court would draw, but none about the principles
and the law it would apply. And the situation would be
exactly the same if we were just two neighbouring
countries, with none claiming the territory of the other,
applying to the ICJ or ITLOS to delimit our maritime areas.
It is on that basis that my belief is that there are no risks in
going to the ICJ, from the point of view that some Belizeans
20
Delimitation of the Maritime Boundary in the Gulf of Maine Area
(Canada/United States), ICJ Reports 1984.
25
might fear, such as that the ICJ would feel sympathy for
the devil and give Guatemala something it does not
deserve by the strict application of governing laws and
principles of maritime delimitation. Nothing in the history
of ICJ judgments suggest that this is a real possibility.
Mechanisms to ensure compliance
Belizeans can also take comfort from the fact that if we go
to the ICJ, there are clear provisions in the UN Charter to
enforce compliance with the judgment.
Article 94 states:
1. Each Member of the United Nations undertakes to
comply with the decision of the International Court
of Justice in any case to which it is a party.
2. If any party to a case fails to perform the obligations
incumbent upon it under a judgment rendered by the
Court, the other party may have recourse to the
Security Council, which may, if it deems necessary,
make recommendations or decide upon measures to
be taken to give effect to the judgment.
This right to have recourse to the Security Council is
important, because it has the power to make binding and
enforceable decisions. Consider the Land, Island and
Maritime Frontier Dispute between Honduras and El
Salvador, which at first El Salvador was reluctant to comply
with. Honduras filed a complaint of non-compliance with
the Security Council, and that alone was sufficient to
induce El Salvador to comply with the judgment.
Were the ICJ to make a judgment on our case and
Guatemala refused to comply, we can have recourse to the
Security Council, which could decide upon measures to be
taken to give effect to the judgment.
CONCLUSIONS
The dispute with Guatemala exists. Ignoring the dispute
will not make it go away. We need to solve it. There are
serious consequences for us if we dont.
Over decades, we have tried all peaceful means of solving
the dispute negotiation, enquiry, mediation, conciliation,
resort to regional agencies or arrangements, as mentioned
in Article 33 of the UN Chartershort of arbitration and
judicial settlement, and all those attempts have failed and
would continue to fail because we will forever refuse to give
up territory and Guatemala will never just abandon its
claim without getting territory.
Clearly what we need, then, is some fair way of having the
dispute resolved by some body that has the authority of the
international system to make final determinations in such
cases, and whose decisions can attract the action of the
Security Council for their enforcement. There is only one
such organ, and that is the International Court of Justice.
It is very unfortunate that Britain did not resolve this
dispute in the past, by paying the 50,000 pounds in
the1860s nor by other means since then, but there is no use
crying over spilt milk, although in fact we do of course
resent the fact that it did not do so and lumbered us with
this apparently never-ending claim.
The fact is, however, that now it is in our power to end it,
and if we also fail to do so and pass the problem on to our
children, future generations of Belizeans would have even
more justification in resenting our refusal to fight to resolve
the dispute.
I wish those who blandly say we should keep on negotiating
would tell me what it is they are prepared to give up or
what concessions they are prepared to make. In all the
many different processes weve been involved with since
1962thats 51 yearsweve been asked to give up
something, to compromise. This is the one and only time
we are asked to agree to a process that does not require us
to give up anything or to make any concessions. This is a
case of no compromise, no surrender, just fight all the way
for what is rightfully ours.
We all share the position that this land is ours, those who
urge people to vote no and those who desire a yes vote.
But the fact is that voting yes in the referendum is now the
best and only way to ensure that our borders are accepted
and respected by Guatemala and by all.
But this referendum can become more than just a yes or no
vote on 6 October.
This is the first time in our entire history that all the people
are called and empowered to make fundamental choices
about the way forward for our nation. Not about who will
govern a village or town council or government for a few
years, but about the best way to secure the survival and
ensuing prosperity of our country. It opens up a new era of
citizens participationif you like, a citizens revolution
that will struggle for what is best for the people of this
nation now and in the future.
Its about a major process of national dialogue and
accompanying mobilization that will maximize peoples
participation in decision making and consolidate a YES
BELIZE reaffirmation in pursuit of our historic mission in
this new era.
Ambassador of Foreign Trade Adalbert Tucker, who in his
work has engaged deeply with Guatemalan officials and
ordinary people in search of ways to enhance trade and
cooperation, sees broad implications for this process:
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Belize today is faced with fundamental and multiple
socio economic challenges, deepening poverty, rampant
criminality and increasing violence, climate change and
an increasingly hostile international economic
environment. All these represent a unique opportunity
for galvanizing our national will in the ongoing struggle
for consolidation of our nation.
The ICJ Referendum may well be the turning point,
ushering in a new eraour own special period of
reflection and dialogue, drawing overdue lessons from
our history and diverse experiences, deepening the
confidence and resolve of Belizeans to maximize their
individual contributions while seeking greater unity
underpinned by the most enduring and quintessential
values of our humanity.
It also requires a strengthening of the national resolve
to engage and accompany the people in the struggle for
social justice, to deepen our fledgling democracy, to
achieve sustainable livelihood and development , and to
forge our identity and capacity to make our unique
contribution to our region and to enhanced prosperity,
peace and humanity in the twenty first century.
Already in the 32nd year of our independence, the
Guatemalan claim to our territory continues to divide our
people, consume our scarce resources and energies and
divert us from the fundamental task of together creating a
nation of peace, social justice and prosperity that the
abundant natural resources we are endowed with enable us
to construct. By getting rid of this anachronistic remnant of
colonial history, we can free up our energies and resources
and get down to our real task of nation-building.
For the sake of the peace and security of ourselves and our
future generations, and to enable us to seize the unique
opportunity we now have to make and re-make our nation,
I urge the people of Belize to vote YES BELIZE in the
referendum on 6 October 2013.
APPENDIX 1
A Consideration of the Territorial and Maritime
Dispute (Nicaragua v. Colombia) case at the ICJ
Some people have argued that the Courts judgment in the
Nicaragua/Columbia case was Solomonic, alluding to the
ancient King Solomon, who was confronted by two women,
each of whom claimed a child was hers, and Solomon
purported to rule that the child be cut in two, and each
woman could take a half. The obvious fear expressed here is
that when confronted by Belize and Guatemala claiming
the same baby (the Jewel), it will decide to give half, or a
part, to Guatemala to appease that country.
When we take a close look at the case, however, that
interpretation of the Courts ruling is not borne out.
Because that case seems to cause a great deal of concern to
some Belizeans, I will deal with it in some detail here,
concentrating only on those aspects which could have a
bearing on our own case.
The first thing of note in the judgment is that the Court
recalls its judgment of 2007, where it held that it had no
jurisdiction with regard to Nicaraguas claim to sovereignty
over the islands of San Andrs, Providencia and Santa
Catalina, because the question of sovereignty over those
three islands had been determined by the Treaty
concerning Territorial Questions at Issue between
Colombia and Nicaragua, signed at Managua on 24 March
1928, by which Nicaragua recognized Colombian
sovereignty over these islands. In our case, the 1859 Treaty
between Britain and Guatemala states what the agreed
border is in no uncertain terms.
The second most important part of the Nicaragua-
Columbia judgment is that which deals with deciding
which country had sovereignty over certain maritime
features that were not included in the 1928 treaty.
The Court first considered whether the claims could be
decided on the basis of uti possidetis juris (a principle sure
to be advanced by Guatemala, under which upon
independence states inherit territories and boundaries of
former colonial provinces). The Court held that in the
present case the principle of uti possidetis juris affords
inadequate assistance in determining sovereignty over the
maritime features in dispute between Nicaragua and
Colombia because nothing clearly indicates whether these
features were attributed to the colonial provinces of
Nicaragua or of Colombia prior to or upon independence.
Why the ICJ would much more likely reject Guatemalas
reliance on that doctrine is explained in Chapter 8.
The next crucial point in the Courts ruling is that it noted
that, since the maritime features were not clearly covered
by the treaty, it must decide the issue on the question of
effectivits. On the basis of evidence presented, the Court
ruled that for many decades Columbia continuously and
consistently acted as if it were sovereign in respect of the
maritime features in dispute, and that Nicaragua could
prove no such acts of sovereignty.
In the case of Belize, there is no doubt that, not just for
decades, but for almost two centuries, Britain and Belize
can prove that, in respect to the continental area from the
Hondo to the Sarstoon, and in respect to all the islands we
claim, we have acted as sovereign over those areas, and
Guatemala has not. This was the absolutely decisive point
that led the Court to decide that Columbia, and not
Nicaragua, had sovereignty over all the maritime features
mentioned above.
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But our case is even stronger, because apart from our
exercise of effective occupation and control over our
continental land and islands, the 1859 Treaty (unlike the
1928 Treaty in the Nicaragua/Columbia case) explicitly
states that all the territory to the north and east of the line
of boundary above described belongs to her Britannic
Majesty; and that all the territory to the south and west
belongs to the Republic of Guatemala. Look at the map: all
our islands lie to the east of the agreed boundary. Both
under Treaty law and under the law of effective occupation
and control, we gone clear with respect to both our
continental and island lands, and consequently to the
maritime areas which these include under UNCLOS.
But perhaps the part of the judgment which most confuses
or frightens some people in Belize is that which deals with
the maritime frontier between Nicaragua and Columbia.
They feel that the Court, having awarded sovereignty to
Columbia over the islands, felt compelled to give something
it was not due to Nicaragua, and thus accorded it maritime
areas which Columbia felt it should have won. Nothing
could be further from the truth.
In determining the division of maritime areas between
Columbia and Nicaragua, the Court followed legal rules
and precedents, and applied other criteria to take into
account the configuration of the coasts and islands in a
scientific way, but always guided by a fundamental
principle of UNCLOS in those matters, which is that of
equity.
Article 59, which deals with the basis for the resolution of
conflicts regarding the attribution of rights and jurisdiction
in the exclusive economic zone, states that
In cases where this Convention does not attribute rights
or jurisdiction to the coastal State or to other States
within the exclusive economic zone, and a conflict
arises between the interests of the coastal State and any
other State or States, the conflict should be resolved on
the basis of equity and in the light of all the relevant
circumstances, taking into account the respective
importance of the interests involved to the parties as
well as to the international community as a whole.
Article 74, which deals with the delimitation of the
exclusive economic zone between States with opposite or
adjacent coasts, states that
The delimitation of the exclusive economic zone
between States with opposite or adjacent coasts shall be
effected by agreement on the basis of international law,
as referred to in Article 38 of the Statute of the
International Court of Justice, in order to achieve an
equitable solution.
Likewise, on the delimitation of the continental shelf
between States with opposite or adjacent coasts, Article 83
states:
The delimitation of the continental shelf between States
with opposite or adjacent coasts shall be effected by
agreement on the basis of international law, as referred
to in Article 38 of the Statute of the International Court
of Justice, in order to achieve an equitable solution.
In delimiting the maritime boundary, the Court followed
the three-stage methodology based on its case law:
(i) constructing a provisional median line for opposite
coasts and equidistance line for adjacent coasts;
(ii) examining the relevant circumstances which may
require an adjustment or shifting of the provisional
line to produce an equitable result; and
(iii) conducting a disproportionality test, assessing
whether the effect of the line is that the Parties
respective shares of the relevant area are markedly
disproportionate to their respective relevant coasts.
As the Court noted, quoting from its 2009 judgment in the
Romania v. Ukraine case, the legal concept of relevant
area must be taken into account, and clarified that
The purpose of delimitation is not to apportion equal
shares of the area, nor indeed proportional shares. The
test of disproportionality is not in itself a method of
delimitation. It is rather a means of checking whether
the delimitation line arrived at by other means needs
adjustment because of a significant disproportionality
in the ratios between the maritime areas which would
fall to one party or other by virtue of the delimitation
line arrived at by other means, and the lengths of their
respective coasts.
This point about disproportionality is especially relevant to
the Belize/Guatemala case, as a quick look at a map will
reveal. In the Nicaragua/Colombia case, the lengths of the
relevant coasts are 531 km (Nicaragua) and 65 km
(Colombia), a ratio of about 1 to 8.2 in favour of Nicaragua.
This is largely why Nicaragua got more waters than
Columbia. In our own case, as a cursory look at the map
will show, our coast is many times longer than Guatemalas,
and that will work in our favour.
APPENDIX 2
Extracts from the Opinion of Judge Manley O.
Hudson delivered to Guatemala
Guatemala, in 1950, sought the opinion of perhaps the
most respected and renowned US international lawyer of
the time, Manley O. Hudson. Hudson was retained by
Guatemala to provide an Opinion, and he made an
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exhaustive and thorough study of the case, and put the best
face possible on Guatemalas contentions in terms of what
the ICJ may decide, and still had to tell Guatemala that they
had no case. Because of the clear importance of this advice
(both because of the writers authoritative prestige and
because he was working for Guatemala) I will quote his
Opinion at some length. The numbers refer to the
paragraphs in his Opinion, and we quote from his
conclusions:
270. The writer cannot advise the Government of
Guatemala to seek to bring the whole dispute to the
Court for judgment. This view is based on the writers
fear that it is highly improbable that the Court would
give a judgment in Guatemalas favor.
271. Guatemala might have some difficulty in
persuading the Court that the Convention of 1859
was, in effect, a treaty of cession. It would first be
necessary to show that Guatemala, as successor to
Spain, was vested with the Spanish rights in Belize
subject to the British rights granted by Spain. In this
period from 1821 to 1850 or 1859, there is little
evidence available of actual de facto possession by
Guatemala of the area within the boundary of the
territory of Belize as fixed in 1859. In the absence of
such evidence, a favorable decision by the Court on
the issue of Guatemalas succession to Spain as
territorial sovereign is by no means certain.
272. As a matter of fact, the British position in Belize
was greatly extended after the Spanish treaties of 1783
and 1786, and the encroachments were maintained
from 1821 to 1850 or 1859 without effective
opposition from Guatemala.
Judge Hudson added that it may well be that cession by
Guatemala was intended, but notes that
274. Yet it is difficult to overcome the very explicit
language of the Convention of 1859. The preamble
states that the boundary has not yet been ascertained
and marked out. Article 1 proceeds to formulate an
agreement between the parties that, as their
respective territories existed previous to and on the
1st day of January, 1850, and have continued to exist
up to the present time, the boundary was, and is as
traced. It is then declared that the territory to the
north and east of the line belongs to Her Britannic
majesty, and that the territory to the south and west
of the line belongs to the Republic of Guatemala.
This language is so definite, and so cast in terms of
the years preceding the signature of the Convention,
that the Court would probably be reluctant to
disregard it.
 277. Even if Guatemala should succeed in convincing communication at the joint expense of both parties. He
the Court that the Convention of 1859 was a treaty of concludes, however, that
cession, it would be very difficult to show
291. On these facts, a legal basis exists for a claim by
conclusively that the cession is not today effective.
Guatemala to compensation from the United
Acquisitive prescription finds but precarious support
Kingdom. If the case were brought before the Court
in international law, but some seventy years elapsed
at the Hague, it could be hoped that such a claim
between the British repudiation of Article 7 of the
would be upheld by the Court on legal grounds. Yet if
Convention of 1859 and the denunciation of the
this single phase of the dispute were put before the
Convention by Guatemala, and on several occasions
Court by a special agreement (compromis) entered
during these seventy years Guatemala seems to have
into by Guatemala and the United Kingdom, the
acknowledged British sovereignty within the
result might be construed as a tacit abandonment by
boundary as fixed in 1859. These facts would almost
Guatemala of its claim to the territory of Belize.
certainly be taken into account, and the Court might
thus be disposed to say that the cession has not been Having clearly advised the Guatemalan government that
nullified. taking a legal case to the ICJ to claim territory would most
282. It cannot confidently be hoped that the Court likely result in failure, Hudson considers the chances of
would reach the conclusion that the failure of Article winning if the case were heard ex aequo et bono:
7 operated to render the Convention of 1859 wholly
293. Assuming that the Government of Guatemala
void. Not only do the indefinite terms of Article 7
would not wish to take the Belize dispute to the
militate against that conclusion, but also the respect
International Court of Justice for a judgment under
which both parties gave to the Convention as an
Article 36 (1) of the Statute of the Court, the writer
accomplished settlement of boundary problems
will now consider the advisability, from the point of
during the greater part of the ninety years which have
view of Guatemala, of a reference for a decision ex
elapsed since 1859. Note has to be taken, also, of the
aequo et bono, under Article 38 (2) of the Statute of
demarcation of the 1859 boundary made by
the Court. Such a reference could be made only if
commissioners appointed by the parties as late as
the parties agree thereto.
1928, and agreed to by the Governments exchange of
notes of 25 26 August 1931 [128 League of Nations Although he admits that at that time Britain was unlikely to
Treaty Series, pp. 427-438]. agree to such a reference, he explores the matter further
and adds his own explanation of such a jurisdiction:
In referring to Guatemalas denunciation of the treaty as
late as 1946, Hudson concludes that 300. The writers view of the question has been stated
as follows:
287. The Court might take the view that Article 1,
In a case where the parties are agreed that it may
regarded as a cession of territory, was fully executed
decide ex aequo et bono, the provision in the Statute
upon the entry into force of the Convention, and the
would seem to enable the Court to go outside the realm
conclusion might then be drawn that a denunciation
of law for reaching its decision. It relieves the Court
effected long after the entry into force of the
from the necessity of deciding according to law. It
Convention would not destroy the effect of Article 1.
makes possible a decision based upon considerations of
288. In the situation which now obtains, there would
fair dealing and good faith, which may be independent
seem to be little reason for entertaining a hope that
of or even contrary to the law. Acting ex aequo et bono,
the Court would come to the conclusion that the
the Court is not compelled to depart from applicable
failure of the provision in Article 7 and Guatemalas
law, but it is permitted to do so, and it may even call
denunciation on the ground of that failure,
upon a party to give up legal rights. Yet it does not have
obliterated the boundary fixed by Article 1 of the
a complete freedom of action. It cannot act capriciously
Convention of 1859.
and arbitrarily. To the extent that it goes outside the
Hudson did contemplate the possibility of Guatemala suing applicable law, or acts where no law is applicable, it
Britain for compensation for failure to do its part in must proceed upon objective considerations of what is
building the cart road, and he notes that as late as 1933 (and fair and just. Such considerations depend, in large
of course it has done so much more recently now; this measure, upon the judges personal appreciation, and
Hudson Opinion is from 1950) the British were willing to yet the Court would not be justified in reaching a result
entertain practical proposals for constructing means of which could not be explained on rational grounds.

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 [Hudson, Permanent Court of International Justice, 306. On the whole, the writer can see little advantage
1920-1942, p. 621]. for Guatemala in going to the Court for a decision ex
aequo et bono, over going to the Court for an
Hudson then goes through several arguments that
ordinary judgment. Neither of these courses seems,
Guatemala might present to the ICJ to convince them to
under the circumstances, to be very promising for
allocate at least a part of Belizes territory to Guatemala, but
Guatemala.
in none could he find any likelihood that, even under ex
aequo et bono, the Court would agree with Guatemala, and
woefully concludes:

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