Part V: Our case in Customary International Law

rtrLast week, the Belize government, via a Cabinet press release, said: “The Government of Belize, having had occasion to review the proposals by the Republic of Guatemala as presented in writing on 17th March, 2013, to Secretary General Jose Miguel Insulza for the parties [Belize and Guatemala] to consider postponement of the referenda for an indefinite period or for Belize to proceed on its own to hold a referendum on the agreed date, had decided to reject the Guatemalan proposals in their entirety.”

These series of events have cast serious clouds over the entire process and to some it may appear that the much-debated referendum is on life support. Nevertheless, with or without a referendum, it is still imperative that we continue to keep ourselves informed on this issue.

With that said, Road to Referendum will continue to discuss Belize’s legal positions in the territorial dispute and things related to it. As was stated in the very first issue, this series is not geared towards persuading or dissuading readers: it is geared simply towards ensuring that Belizeans are informed of where exactly we stand legally in the matter.

A quick review

In previous instalments of Road to Referendum,  we have already discussed that the 1859 Anglo-Guatemalan Treaty and the 1931 Exchange of Notes are both pivotal factors in our case.

We initially looked at the rulings of the International Court of Justice (ICJ) that state that the frontiers of countries established in a boundary treaty are permanent.

As the ICJ itself had ruled in the Libya v. Chad case: “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. … the continued existence of that boundary is not dependent upon the continuing life of the treaty under which the boundary is agreed.”

This precedent is quite significant when considering the fact that Guatemala has long since tried to use the so-called breach of  Article VII of the Anglo-Guatemala treaty as a mainstay in her  claim.

Of course, the question would then be whether or not the 1859 treaty could be treated as a boundary treaty or as a treaty of cession.

At this point we turn to the Vienna Convention on Laws of Treaties (VCLT)’s which states: “The context for the purpose of the interpretation of a treaty shall comprise, in addition to its text, including its preamble and annexes…”

VCLT’s Article 31(1) said it this way: “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 purposive nature of the convention is then based on the contextual language provided in the said treaty. This context is derived both from the preamble and other parts of the document.

So we need to take a look at the language of the treaty. Article I states: “It is agreed between Her Britannic Majesty and the Republic of Guatemala that 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, 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 . . .”

If that does not clearly establish intent, there isn’t much else that could. But, there was another document that was equally (if not even more) telling of the intentions and the frame of mind governing the 1859 treaty: the 1860 letter from former Guatemalan Minister of Foreign Affairs Don Pedro de Aycinena.

The letter, in its entirety, was previous published in this paper; however, we quote one part of Aycinena’s letter here below:

“On examining this situation, we could not fail to recognize that the right we had constantly alleged of being presumptive heirs of Spain’s sovereignty, was considerably weakened due to our lack of means to take possession of these territories that had been deserted and abandoned by Spain herself and subsequently by us. …These and other considerations surrounding the issue, taken together and seen from all perspectives, were given to the President for his consideration.

“He took the decision required by the case, and recognizing the existing facts, instructed that all fruitless discussions be ended, given that they were of no substantive importance and did not merit continuing [emphasis added].

1931 Exchange of Notes and Acquiescence

Aycinena, in the same letter, also said: “It was recognized that we could not argue against the sovereignty already being exercised with full Spanish acquiescence in 1821 when we [Guatemala] became independent.”

As was discussed before, to acquiesce means to passively assent or agree  without protest. Another definition for acquiescence refers to the “failure to take legal action, thereby implying the abandonment of a right.”

Here,  Aycinena said that even Spain acquiesced to sovereignty of the British in the Settlement.

But, that wasn’t the only instance of such acquiescence. She (Guatemala) conducted herself within the parameters established in 1859 treaty for the better part of 70 years, and then, to crystallize her  “acquiescence” even further, the republic and Belize had the 1931 Exchange of Notes, which reaffirmed what was agreed to seven decades earlier.

Actual Possession versus Notional Title

Certainly, the treaties are cornerstones in Belize’s defense. However, the validity of Belize’s case is not limited to just the conventions.

To quote Asaad Shoman’s  May 2001 oral presentation made before the appointed facilitators and the Organization of American States (OAS)’s Secretary General, who acted as a witness of honor:

“Britain’s continued actual possession and actual display of sovereignty, and Guatemala’s own failure to exercise any degree of sovereignty, throughout the years from the early 1800’s to 1859, had undoubtedly established a good title by 1859.”

While both the international law principles of Acquisitive Prescription and Historical Consolidation play pivotal roles in establishing Belize’s “good title”, we will discuss only the former in this article. The latter concept will be discussed in Road to Referendum Part VI.

There, of course, is need for us  then  to define two pertinent concepts in international law: acquisitive prescription and terra nullius.

Shoman quoted Professor Malcolm Shaw’s definition of the former, and we see no reason to not do the same. Shaw wrote:

“Prescription is a mode of establishing title to territory which is not terra nullius and which has been obtained either unlawfully or in circumstances wherein the legality of acquisition cannot be demonstrated.

It is the legitimization of a doubtful title by the passage of time and acquiescence of the former sovereign…it is the legitimization of a fact [emphasis added].”

Shoman also quoted from the book “The Law and Procedure of the International Court of Justice”, written by Sir Gerald Fitzmaurice:

“Prescription is a process of erosion and encroachment…But is of the essence of the case that, in their inception, the acts concerned are illegal; any possession resulting from them is adverse and unlawful; and the whole process is contrary to the wishes of, and lacking in consent from, the real sovereign.

“The prescriptive title arises from the gradual change in the quality of these acts, or of their possession, produced by the combined effect of lapse of time or silence by the original sovereign.

“It is this last factor—tacit acquiescence amounting to a surrender of the title—that is the real and proximate cause of the change of sovereignty [emphasis added].”

In essence, we see where international law speaks to adverse or illegal possession transforming into “good title” due to the tacit acquiescence of the “original sovereign”, which, as was pointed out by Shoman, amounts to a “tacit abandonment or surrender” by said original sovereign.

But, of course, if we refer back to Mr. Aycinena’s letter in 1860, nwhich he said  in very strong terms, that it was more than just tacit acquiescence:

“It was recognized that we could not argue against the sovereignty already being exercised with full Spanish acquiescence in 1821 when we [Guatemala] became independent.”

That statement by Aycinena was preceded by another equally significant remark: “We could not fail to recognize that the right we had constantly alleged of being presumptive heirs of Spain’s sovereignty, was considerably weakened due our lack of means to take possession of these territories that had been deserted and abandoned by Spain herself and subsequently by us [emphasis added].”

With these factors in play, it would bring most to wonder why there is even still any attempt by Guatemala to drag this claim out any further, when  her  own former minister of foreign affairs and former president deemed it pointless to continue the claim from 150 years ago.

Now, from the definitions and statements above, we should see that Belize’s case doesn’t take a stance that the land never belonged to Spain. Rather, we acknowledge that Spain indeed once held title—at least on paper—to the area. Therefore, this brings us to the Latin term Terra Nullius.

The term literally means ‘land that belongs to no one’, or, as we would say, “no man’s land”. It is important that we make clear—just as the Belizean delegation did in 2001—that we acknowledge that the territory was NOT terra nullius.

At some point in time it belonged to Spain. That’s something that we could say was clearly acknowledged in the existence of the treaties of 1783 and 1786.

Therefore, going back to Shaw’s definition, the legal position is that Spain has lost its title to Belize, even though it was gained through adverse possession.

As was stated by Shoman, such title could be lost by “absence, neglect or acquiescence in adverse possession.”

Consequently, when we look at the fact that the British settlers—with the Crown’s blessing—had occupied and administered  the area from as far north as the Hondo to as far south as the Sarstoon, before Guatemala’s independence in 1821, it is safe to say that indeed Belize’s actual possession—under the tenets of acquisitive prescription—has overrode the notional title claimed by Guatemala.

Sir Gerald Fitzmaurice’s explanation of acquisitive prescription spoke of both the elapse of time or silence on part of the original sovereign that would work against, in this case, Spain and Guatemala. The time factor is indeed obvious; but it’s the ‘silence’ that speaks so loudly in our defense.

Spain may have acquiesced in 1821, but it was the Republic of Guatemala that entered into a treaty with the British in 1859—almost 40 years after their independence. This treaty would later be reaffirmed by the 1931 Exchange of Notes, which came more than 70 years after the Anglo-Guatemala treaty and 110 years after 1821.

It is important that we note, again, that Guatemala did not revive its spurious claim until 1946: that’s 15 years after the Exchange of Notes, 87 years after the Anglo-Guatemala Treaty, and 125 years after Guatemala’s independence. And let’s keep in mind that this administrative control by the British over the whole territory preceded 1821. Talk about lapse of time!

We sum it all up, then, with a quote from Shoman’s oral presentation:

“Equally, a good title can be acquired despite dubious legal origins. It can derive from continuity of possession and administration over an extended period irrespective of how it began.

“The fact of continuous possession and administration overrides the notional title of a state that merely claims title without possession of administrative control.”

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