By Dyon A. Elliott
In early January, the Government of Belize—through its Referendum Committee that is led by Ambassadors James Murphy and Stuart Leslie—launched its educational campaign on why the Belize-Guatemala dispute should be taken to the International Court of Justice as a final attempt to settle, once and for all, The Republic of Guatemala’s specious claim that half of Belize belongs to them.
The educational campaign is set to lead us up to the simultaneous referenda, which is scheduled for October 6th, 2013.
So, once again it’s up to the Belizean citizens to weigh the facts and decide how they will vote.
While this newspaper has no intention of attempting to persuade or dissuade anyone’s decision, we do believe it is imperative that all Belizeans know what our legal arguments are.
This article then is the first part to a series of such didactic features to explore Belize’s legal position.
Overview of Three Pillar Arguments
In November 2001, the Belize government contracted the services of four mavens in international law to give their legal opinion of Belize’s legal chances.
In the document entitled “Legal Opinion on Guatemala’s Territorial Claim to Belize,” those four had this to say:
“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.”
In essence, Belize’s case has three “pillars”: 1. The 1859 Anglo-Guatemalan Treaty and the 1931 Exchange of Notes, which are supported by Libya v. Chad Principle; the tenets of Historical Consolidation, which includes acquisitive prescription; and 3. Belize’s right to self-determination as declared by the United Nations—the parent organization to the ICJ.
Each of those arguments is supported by either customary international law or law of international conventions (treaties) as expressed in Article 38(1) of the ICJ’s Statues.
The Guatemalan government has long since argued that the strength of their case and supposed rights to approximately half of Belizean territory is rooted in the 1859 Treaty—more specifically, in a so-called breach of Article 7 of the said treaty.
This aspect of our case carries with it several intricate components, including the boundary-or-cession-treaty argument, the Vienna Conventions’ ruling on the autonomous nature of a border, and the role of the 1931 Exchange of Notes in the reaffirmation of our borders.
Boundary Treaty vs. a Treaty of cession:
Guatemala contends that the 1859 Treaty (herein after referred to only as the Treaty unless otherwise stated) was a treaty of cession and not a boundary treaty as argued by Belize.
First of all, it must be explained that there is need to clarify the definitions of these two terms, for they speak directly to the purpose of the treaty.
A cession treaty would loosely be defined as a convention signed between two countries in which one state hands over or surrenders territory to another state.
In essence, Guatemala is saying that they had rights to the land and they were kind enough to “grant” or “gift” to Belize the territory outlined in the document. This specious act of “gifting” land to Belize, according to the Guatemalan’s arguments, was compensatory in nature, and thus relied on the fulfilment of the 1859 Treaty’s Article 7.
Yes, almost every Belizean who has ever been in a history/social studies class would have heard something about this “means for establishing the easiest communications” that is most often discussed in the form of this cart road that was to be built by the British.
In subsequent editions of this series of articles, we would delve deeper into the actualities of Article 7 and its role or lack thereof, especially since it referred particularly to a trade agreement “whereby the commerce of England [not independent Belize] on the one hand, and the material prosperity of the Republic on the other, cannot fail to be sensibly increased.”
But, for now, the real thrust of this case is more definitional by nature. Belize’s legal position affirms that the treaty was in fact a border treaty and NOT one of cession. And where did Belize get that interpretation? It got it from the Anglo-Guatemala Treaty’s Preamble that states:
“WHEREAS the boundary between Her Britannic Majesty’s settlement and possessions in the Bay of Honduras, and the territories of the Republic of Guatemala, has not yet been ascertained and marked out; Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, and the Republic of Guatemala, being desirous, with a view to improve and perpetuate the friendly relations which happily subsist between the two countries, to define the boundary aforesaid, resolved to conclude a Convention for that purpose [emphasis added].”
This is not the language of a treaty of cession. It clearly states that its purpose is for defining the frontier. But, it doesn’t end there, as Article 1—the primary operative part of the treaty—states:
“It is agreed between Her Britannic Majesty and the Republic of Guatemala, that the boundary between the Republic and the British Settlement and Possession in the Bay of Honduras, as they existed previous to and on the 1st day of January, 1850, and have continued to exist up to the present time, was and is as follows:
“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 to the right and continuing by a line drawn direct from Gracias a Dios Falls to Garbutt’s Falls on the River Belize, and from Garbutt’s Falls due north until it strikes the Mexican frontier.
“It is agreed and declared . . . 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 of the same belongs to the Republic of Guatemala [emphasis added].”
The Vienna Convention’s take on it
It is evident then that the purposive nature of the treaty was not compensatory. It was a boundary treaty, and that is a significant distinction.
Belize’s legal opinion follows the rules prescribed by the Vienna Convention on the Law of Treaties, 1969, (VCLT)—which is a treaty that concerns international law governing the understanding of treaties between states.—that says: “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.”
Therefore, in accordance with VCLT, the purpose for the treaty was quite clear: it was a boundary treaty.
That fact was also reaffirmed in the 1860 letter from the Guatemalan Foreign Minister, Pedro de Aycinena—which will be discussed in more detail in subsequent articles in this series.
It is also important to note that the ICJ has declared the law in this respect as “customary international law” and is therefore retroactive in nature and applies to treaties that came before VCLT was established.
The Autonomous Nature of Borders
Establishing the 1859 Anglo-Guatemalan Treaty as a boundary treaty under the VCLT is the first of a significant set of steps in proving Belize’s right to its territory, because then—according to international law and precedent—we learn that the borders established in a boundary treaty take on “a legal life of its own” that is independent of the fate of the treaty that created the frontier.
The International Court of Justice, in the Libya v. Chad case, ruled: “The establishment of this boundary is a fact which, from the outset, has had a legal life of its own, … Once agreed, the boundary stands, for any other approach would vitiate the fundamental principle of the stability of boundaries, the importance of which has been repeatedly emphasized by the Court.”
Section 73 of that same ICJ ruling further drove the point home: “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. … This is not to say that two States may not by mutual agreement vary the border between them; … but 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.”
Naturally, there is a conspicuous parallel to be drawn between the Libya v. Chad situation and that of the Belize v. Guatemala case.
Therefore, according to customary international law—which has retroactive powers because it is based on customary practices—regardless of whether the British had breached Article 7 or not, the borders established in the boundary treaty still exist.
Belize’s case, however, is even more interesting, because there was also the re-affirmation of the Treaty in the 1931 Exchange of Notes.
Most importantly, this was done without a single dissent from Guatemala, which didn’t revive its specious claim until 1946—15 years after the Exchange of Notes, and almost 90 years after the Anglo-Guatemalan Treaty.