BY THE MIGHT OF TRUTH : PROVOCATION FOR GOING TO THE ICJi

The central goal of Belizes foreign policy today was preordained even before the countrys birth into nationhood. That was so because of the Guatemalan claim to Belize inherited from the British upon independence. ii

Belizeans are being asked to consider the option of dealing with the Guatemalan claim to Belize by submitting the question to the International Court of Justice (ICJ). This opinion is focused on why we should answer YES in any referendum asking if we should submit the dispute to the ICJ.

BUT WHAT IS IT?

The International Court of Justice, (aka the World Court or the ICJ) is the principal juridical organ of the United Nations and sits at the Peace Palace in The Hague, Netherlands. The role of the ICJ is to settle, in accordance with international law, those legal disputes submitted to it by States as well as give advisory opinions on legal questions referred to it by authorized United Nations organs and specialized UN agencies.

The ICJ is composed of fifteen judgesiii who are elected to nine year terms by the UN General Assembly and the UN Security Council from a list of persons nominated by the national groups in the Permanent Court of Arbitration. Judges may be re-elected for up to two further terms, and

elections take place every three years, with one-third of the judges retiring (and possibly standing for re-election) each time, in order to ensure continuity within the court.

Article 2 of the Courts governing Statute provides that all judges should be "elected regardless of their nationality among persons of high moral character", who are either qualified for the highest judicial office in their country of origin or are noted international law jurists. Judicial independence is dealt with specifically in the Statute, and Judges of the ICJ are not able to hold any other post, nor act as counsel. In practice the Courts Judges have interpreted these rules so as to allow them to be involved in outside arbitration and hold professional posts as long as there is no conflict of interest. A judge can be dismissed only by a unanimous vote of other members of the Court.

ICJ Judges can deliver joint judgments or may give their own separate (and dissenting) opinions. Decisions and Advisory Opinions are by majority and, in the event of an equal division; the President's vote becomes decisive. The ICJ also allows for ad hoc judges to sit on contentious cases before the Court. This allows any party to a contentious case to nominate a judge of its choice if a judge of its nationality is not already on the bench. Ad hoc judges participate fully in the case and the deliberations, along with the permanent bench. This is said to be a confidence building measure in order to encourage states to submit cases to the court, especially when they do not already subscribe to the Courts compulsory jurisdiction.

The ICJ may sit as a full panel, but it can also, by agreement with the Parties, be constituted with a smaller chamber of three to five judges. Parties may stipulate that the Chamber be composed only of mutually acceptable judges . iv

Only UN member States which have become parties to the Statute of the Court, or which have accepted its jurisdiction under certain conditions, may be parties to contentious cases. Belize and Guatemala fall into the latter category, and so any referral would be via a special agreement which would sets out not only the actual agreement of the States parties to go to the ICJ, but also the scope of the referencev, the nature of the panel requested, and the modalities for procedurevi

Submission of a contentious matter to the ICJ via a special agreement occurs by explicit consent and is described as being the most effective basis for the Court's jurisdiction, because the parties concerned who participate in deciding what and how matters go to the court demonstrate thereby a real desire for the dispute to be resolved by the Court and are consequently more disposed to comply with the Court's judgment.

Article 94 of the Courts Statute establishes the duty of all UN members to comply with decisions of the Court involving them. If either party fails "to perform the obligations incumbent upon it under a judgment rendered by the Court", the other party may bring the matter before the UN Security Council to make recommendations or to decide upon measures which should be taken if the Security Council deems such actions necessary. Judgments of the Court are said to be binding, final and without appeal, and by signature of the UN Charter, member States of the

United Nations undertake to comply with decisions of the International Court of Justice in any case to which they are parties.

If parties to a contentious matter do not comply with a decision of the ICJ, the issue may then be taken before the Security Council for enforcement action. The optimal position, however, is for parties to agree, and then post-judgment, sign a treaty which reflects the Courts decision- and then to uphold that treaty.

AND WHY NOW? Many Belizeans have the impression that the Guatemalas claim to Belize is an old issue a long moribund and tiresome old beef. Many of us loudly complain about having insufficient knowledge about the matter, but many find it difficult to summon the energy to update and educate ourselves on the issue. Until, that is, there is some immediate threat, real or perceived, whereupon national honor (as dictated by talk show hosts and callers) demands that we renounce Guatemala and all its doings in the most vehement fashion.

The existence and persistence of the claim is, however, one of the biggest challenges we face, since it affects our territorial sovereignty.

One favorite biblical passage of adherents of the Old Testament states that a deity who is otherwise compassionate, gracious, slow to anger, and abounding in loving kindness, will not

leave the guilty unpunished and will surely visit the iniquity of fathers on the children and on the grandchildren to the third and fourth generationsvii

Inasmuch as Belizeans, unbelievers, skeptics, or devout, subscribe to any national sentiment at all, it is twofold - that Belize da fu we, and that we have had the iniquity of those forefathers who have failed to deal with the Guatemalan claim visited upon us and our children. Both tenets are burned into our national collective unconscious, but we are being called on not only to plumb the depths of our ancestral fears, but to actively root around our deeply rooted suspicions, push aside our native wont to do nothing at all - and deal.

Belizean thinkers have long and oft opined that if our history teaches us anything, it is that we cannot get anywhere with the Guatemalans through negotiations. The British (and even the U.S.A.) have tried and failed. Post- self government and early on in our independence, we attempted and failed. At the start of this millennium, we tried via Facilitators and that failed. And our last attempt on direct, OAS-sponsored negotiations has likewise failed to produce a peaceful, just, lasting resolution to the unfounded Guatemalan claim.

SO NOW WHAT ?

The hard reality is that Belize has, whether we want it or not, a legal dispute with Guatemala. The ICJ exists for the peaceful resolution of disputes between nations. This has been so for a

very long time. This should have been patently obvious, if not to all, then to the cognoscenti. So why have we not gone there before?

The late-colonial education of the current generation of our leaders exposed in a painful manner how, during our long history of colonialism, our British system of justice was utilized to control and divide us and our brothers. As a newly independent people feeling the fit of our emergent power, with a real chance to shape our own destiny, we were not disposed to first put our faith in that option.

A negotiated settlement, with our sovereign participation, was for a very long time, our preferred choice. Politicians and diplomats alike believed that politics and diplomacy were on our side. And so we tried and diplomacy did yield critical results but no solution.

Quiet but intensive diplomacy, years of roaming around in the halls of the UN, in Whitehall, in the White House in international fora and in the chanceries of many countries, did, in fact yield results critical to our independence and national security. These results included the UN General Assembly resolutions on the right of the Belizean people to self determination and the territorial integrity of Belize which were supported in incrementally increasing numbers, even by our other Central American neighbors, much to the chagrin of Guatemala; results such as our immediate entry into the UN upon independence in 1981; and, critically, results such as Britain eventually agreeing to change its hitherto fixed policy and guarantee the territorial integrity of Belize after independence.

Results were won in Guatemala, even when in the early 90s, a presidential declaration on a disposition to settle the Belize Guatemala issue did produce first a declaration on the right of Belizeans to self determination and then recognition of Belizes political independence by the Serrano government.

The reasons for doing so were several and included recovery from a devastating earthquake, the political will to demonstrate that Guatemala had shed its ugly militaristic, human rights abusive past, a new constitution and new hope for a new era. The promise was short-lived and gave rise to the Serranazoviii. In Belize and in Guatemala, it was widely touted that those steps taken in respect of Belize fatally damaged President Serranos political health. Of course, the Presidents illegal suspension of the Constitution and dissolution of Congress and the Supreme Court, the imposition of censorship and curtailment of civil liberties were the real factors, the death myth was fostered and fanned for many years by the claim hardliners in Guatemala.

The last ten years of diplo-dance, first via the facilitation process and then direct face to face negotiations has produced results if not resolution; including the removal of Santa Rosa, the repatriation of incursionists and a climate of relative calm due in large measure to an OAS office presence on the border and the existence of confidence-building measures. But it has also confirmed for our experts and legal advisors that our case is extremely solid, and has fostered the verified belief that the law is on our side. Having now exhausted the political/diplomatic option, the recommendation of the OAS Secretary General is the adoption of a legal course, specifically that the states submit the matter to the ICJ.

How do we respond to that? If we believe our several leaders who have gone on record to state that our case is ironclad; that we have consulted the juridical gods and that our truth is mighty indeed; then the ICJ is a most attractive option, because it offers an impartial world body of expert jurists governed by obedience to the rule of law and impervious (in theory at least) to the vagaries of geopolitical suasion.

But what is in it for Guatemala? In Belize, no politician would seriously advocate giving up even one blue mango, let alone a square centimeter. This has always been made expressly clear to the Guatemalans, and it has never failed to raise their ire.

But by the same token, over the years it has become demonstrably clear that no politician in Guatemala could safely concede that their claim to Belize or any part thereof is unfounded. No matter how politically popular a Guatemalan government may seem to be, no matter its support level in Congress or on the streets and pueblos, that threats of constitutional court, coup, imprisonment or worse would be the inescapable consequence of any concession.

The Consejo De Belice, the Guatemalan Foreign Ministry in-house think tank on the claim to Belize, is heavily entrenched, and it is never more radical (or reactionary) than when it does not have visible power. Guatemalan politicians could no more agree to concede than ours couldix.

We both, Belize AND Guatemala subscribe by necessity to the same Goldsonian principlex. Belize, because it means our very survival; and Guatemala because it is convinced its people that it cannot afford to do otherwise. Provocative notion? It is. It may even be an affront to many, but

the fact is that the same imperative locks both countries into narrow if not rigid pathways for movement on the issue.

No less a personage than former Guatemalan Vice President, Francisco Villagran Kramer, a noted Guatemalan scholar and international jurist, has for years in corridors and in even in print, floated the idea of the ICJ. In an article in El Periodicoxi, Villagran Kramer outlined the strengths of the ICJ as opposed to an arbitral body, pointing out its permanence, its international panel of judges, its place within the UN system and its settled procedural rules.

HELL NO, WE WONT GO? There is a pool of popular opinion in Belize that is very vocal and emotional that posits that WE dont have a problem that THEY have a problem with US and that as a corollary, why should WE do anything about it? Why not simply ignore the issue and just go on? This proposition is based on two fallacies that doing nothing has worked so far, and that we can afford to do nothing.

It will profit us nothing, and may well lose us our kingdom, our Jewel (and perhaps our souls) to continue to stick our Baymen fingers in our collective national ear while loudly singing We no wah no Guatemala. It is a truth, universally acknowledged, that we all want our country free; but we cannot get our countrys freedom at no cost at all - and we will not get it without a fight. Fighting for what is rightfully ours does bear a cost, financial or otherwise, and if we want justice, then we must be prepared to bear that cost.

IF NOT NOW, WHEN?

Geo-politik has neither generosity nor tolerance for indecisiveness. We are not going to be allowed to get away with just doing nothing. For small developing countries like Belize, the global imperative is inexorably in favor of closer integration with the neighbors of our geographic destiny.

In terms of our national demographic, Belize is now more paa than ever before and less afrocreole than we used to be. If that is so, given our immediate neighborhood, it would be desirable to define as soon as possible, the full extent of our national boundaries, land as well as sea. By doing nothing at all, we put or country at risk of being green-marched- not by an army, but by civilians, by hundreds of feet comingxii. The last 20 years of frequent incursions into our territory from Petn provide sufficient and compelling evidence that the strong possibility exists for low key and small scale but inexorable marching, whether sanctioned officially or no.

What complicates the situation are the hundreds of feet going- and the fact is that many Belizeans have chosen to leave and make lives and families in other countries, especially North America. Those of us who have chosen to stay have no choice but to define exactly where all our limits are because this also shapes who we are.

As technology becomes more accessible, and natural resources, especially oil and gas become more scarce and increasingly expensive, those resources are being discovered in Belizean earth, and more likely than not will be found in our sea territorial and EEZ. The time to profit from those will be when we have a firm grip on the ownership of those resources or all attempts to secure property rights to either the state or its people will not avail. We had better define who we are.

We are located in a unique area of close neighbors in our section of the Caribbean Sea and the Gulf of Honduras is almost a semi-enclosed sea. Maritime delimitations of our territorial sea and our exclusive economic zone must be dealt with, not only with Guatemala, but also with Mexico and with Honduras. Currently, as subscribers to UNCLOS,xiii we have a claim, but no EEZ. In order to enjoy an EEZ, we must delimit our maritime areas. Delay will not be in our favor. We must define who we are.

The ICJ offers us an impartial global forum to which we can refer this matter. Guatemala used to insist that it wished to have any matter with Belize decided on an ex aequo et bono basisxiv This would mean that any juridical panel would consider what is considered to be fair and equitable in the case at handxv. Guatemala has now conceded on going to the ICJ on strict fact and international law. And although the cost of going to court sounds high,xvi the cost of delay or doing nothing would eventually cost us far more in lost opportunity, economic, social and political. It is also important to record that we do not pay for the cost of the court itself, unlike in

an arbitration panel. As an added consideration, there are some UN funds available for developing countries like Belize who do go to the ICJ for resolution of contentious issues.

Doing nothing is NOT an option. It is an abdication of responsibility. History will not absolve us, and we will perpetuate the continuation of the cycle of visitation of the iniquity, condemning our children to live not only with the sins of our colonial forebears, but also, our unforgiveable own.

Today, Belize and Guatemala are situated on the road to a just, peaceful, and permanent resolution to the Guatemalan claim to Belizexvii. The referendum on submission to the ICJ will provide us with a vehicle to get there. Taking the case to the ICJ is a matter for Belizeans to decide, and while the ICJ is not a perfect option, it is still the best option. To employ a tired but true aphorism, let not the best be the enemy of the good.

ii

Ambassador Shoman has taken oaths of confidentiality during her tenures as Belizes Permanent Representative at the OAS, a member of the Belize-Guatemala negotiating team and Minister of Foreign Affairs. She considers these binding and current.
ii

Godfrey Smith, Flashpoint, Thursday, November 15 th, 2007

iii

As of February 2009, the Court will be comprised of Judges from the UK, Jordan China, Sierra Leone, the US, Japan, Germany, Slovakia, France, New Zealand, Mexico, Morocco, Russia, Brazil and Somalia.
iv

It is understood that Belize will be asking for a full panel of ICJ judges The issue may be framed in general terms or it may be framed in very specific terms

vi

The reference to modalities should not be confused with the rules of procedure of the Court. The ICJ has its own rules of procedure and both parties must follow those rules during the hearing. Modalities refers to matters such as appointing ad hoc judges, timelines for various pleadings to be filed, issues of costs and explicit agreement to be bound by the decision
vii

The Bible, Exodus, Chapter 34, verses 6-7 The popular term for the putsch and subsequent coup that led to Jorge Serrano fleeing Guatemala on June 1, 1993

viii

ix

See Godfrey Smiths Flashpoint of January 7, 2007 entitled Belize-Guatemala: Any Solution Likely Soon?

Chief Justice Abdulai Conteh coined the phrase to encapsulate the words of Phillip W. Goldson that the time to save your country is before you lose it.
xi

El Periodico, February 26, 2005 The Dilemma of The Courts, Francisco Villagran Kramer

xii

On November 6th,1975, in a well publicized incident, approximately 350,000 unarmed Moroccans crossed over into neighboring Western Sahara, claimed by Morocco and called for the return of the Moroccan Sahara. In order to avoid bloodshed, Spanish troops were ordered not to fire. The Polisario Front in Western Sahara has, since 1973 conducted a resistance and pro-independent movement for the Sahrawi people. The ICJ had ruled that the Sahrawi possess the right to self determination, and the march was billed by Morocco as a move to unite what was formerly known as Spanish Sahara with the Motherland. Following the Green March, Spain signed The Madrid Accords which divided the county between Mauritania and Morocco, but Morocco now occupies and administers all of Western Sahara. The lesson here is to act now.
xiii

The United Nations Convention on the Law of the Sea; both Belize and Guatemala are signatories as are Honduras and Guatemala. Signatories have agreed to permit claims to an EEZ up to a limit of 200 miles and a territorial sea of 12.
xiv

A Latin legal term of art meaning according to the right and good or from equity and conscience.

xv

Article 38(2) of the Statute of the International Court of Justice provides that the court may decide cases ex aequo et bono, but only where the parties agree thereto. Through 2007, ICJ has never decided such a case.

xvi

Ten million US dollars by the last available estimate of the Belize Foreign Ministry

xvii

At date of writing, all media reports indicate that the cabinets of Belize and Guatemala have approved a draft compromis which has been negotiated by their respective foreign ministries. The document is said to be three pages in length and took six months to negotiate. It has not been made public. The Agreement is said to consist of a preamble outlining the points that the court is being asked to rule on, under what jurisdiction they want to court to rule, the court procedures and timeframes, languages to be used, the plan of action after a decision has been reached, and of course the need for a referenda and the question to be asked in both countries The determination of whether to go to court must be decided via referenda held on the same question and simultaneously in both countries