Guatemala’s claim “does not have an impact on the drawing of the Belizean boundary” – Professor Stephen Vasciannie, CD.
The Bar Association asked an independent expert in International Law to write an updated Legal Opinion. Like every legal opinion before it, it suggests that Belizeans have nothing to fear by going to the ICJ. Guatemala’s claim “does not have an impact on the drawing of the Belizean boundary,” concludes the international expert!
The Opinion examines the Belize / Guatemala territorial dispute with reference to international law principles and, in the same vein, evaluates strengths and possible weaknesses of Belize’s case if the dispute were submitted for determination by the International Court of Justice.
The Belize Bar Association commissioned the opinion in accordance with its mandate to project its views on matters of public importance and to contribute to the national discourse on this issue leading up to the referendum to be held on 10th April 2019. The following is the summary legal opinion by Professor Stephen Vasciannie, CD.
This opinion has presented an independent analysis of the Belize/ Guatemala dispute from the standpoint of International Law. It has sought to incorporate the main positions that have been advanced in the legal literature on the subject, and has placed emphasis on the methods and concepts used by the International Court of Justice in cases concerning title to territory. The strongest case for Belize in any litigation before the International Court of Justice will include some or all of the following elements:
(a) The United Kingdom, as the predecessor in title to the area of Belize under challenge, obtained title to the area through the process of occupation which began in the 17th century, and which by 1821 had crystallized as a right.
(b) In 1821, when Guatemala gained independence, it obtained title to territory over areas which were within the Captaincy General of Guatemala previously held by Spain, pursuant to the principle of uti possidetis juris. Guatemala did not, however, gain title to the area of Belize under challenge. This was so because title to the area was already vested in the United Kingdom. The principle of uti possidetis juris would not work to deprive the United Kingdom of territory which was by 1821 vested in the British Crown.
(c) Alternatively, in 1821, title to the area was uncertain, either because the boundary for the area was uncertain or because there were competing claims between the United Kingdom and Guatemala. The International Court of Justice has held where a boundary is uncertain, then considerations in addition to uti possidetis will apply. In particular, the Court will look at the effectivites in relation to the area under consideration. Similarly, where there are competing claims to an area, the Court will examine the effectivites. When the effectivites are considered, the United Kingdom claim will prevail, for, without doubt, the United Kingdom exercised effective control and jurisdiction over the area of Belize from at least 1859, and there is no evidence of any similar exercise of control and jurisdiction by Guatemala over the area.
(d) The 1859 Treaty between the United Kingdom and Guatemala served to confirm British title over the area of Belize, from 1850. The Treaty did not cede title from Guatemala to the United Kingdom. Rather, it was a boundary treaty that affirmed the boundary of Belize, as held by the British. The provision in Article 1 of the Treaty setting out the boundary was not a quid pro quo for the provision in Article 7 concerning the construction of a cart road or alternative river transport.
(e) The Article 7 stipulation concerning the construction of a cart road or alternative river transport was not satisfied by the United Kingdom. With the United Kingdom in breach, Guatemala may have had the option of terminating the Treaty, but it did not exercise this option for about 60 years. On this view, the Treaty remained in place up to the point of Belizean independence, and did not undermine the territorial integrity of Belize. The Treaty commitment in Article 7 could still be applicable, as a Treaty commitment vis-a-vis the United Kingdom, but it would not apply to Belize as the successor State to the United Kingdom.
(f) Alternatively, when Guatemala sought to denounce the 1859 Treaty in 1940, it was successful, and so, the Treaty is no longer in force. The Treaty commitment in Article 7 would no longer be applicable to the United Kingdom. With reference to the Libya / Chad decision of the International Court of Justice, the boundary between the United Kingdom and Guatemala set out in Article 1 survived the termination of the Treaty.
(g) In modern practice, rules respecting the self-determination of peoples have passed into the corpus of International Law. These rules, which have received validity mainly through resolutions of the United Nations General Assembly, work significantly to the advantage of Belize. These rules indicate that the people of Belize have the right of self-determination, a conclusion which is supported by Resolution 35/ 20 of the General Assembly. Resolution 35/ 20, on the Question of Belize also affirmed the territorial integrity of Belize and supported its independence. The affirmation of the territorial integrity of Belize and self-determination of its people strongly reinforces the view that the international community that the State of Belize should not be dismembered along the lines suggested by Guatemala. The very recent Chagos Islands Advisory Opinion of the International Court of Justice attaches considerable significance to resolutions of the General Assembly in determining issues of decolonization. Belize emerged from decolonization as a single unit, with full support from the United Nations as a single unit.
The main weakness of the Belizean case arises from the fact that this dispute turns on questions of history about which opinions differ. Determining the date at which the original British title to the area stretching to the Sarstoon River is not an easy matter.
Another possible point of weakness arises from the colonial context in which this dispute emerged. Two postcolonial States, Guatemala and Belize, will be called upon before the Court to rely on arguments originating from the imperial Governments of Spain and the United Kingdom to justify their positions. From the point of view of Belize, it may be seem paradoxical that this postcolonial State, which emerged into independence through the modern process of self-determination, now finds itself pressed to defend its territory on the basis of 17th century log cutters, equivocal 19th century negotiators, a British Government that ostensibly failed to meet its obligations to share in the cost of building a cart road or some suitable riparian alternative.
The Belizean case may also face a particular challenge concerning Article 7 of the 1859 Treaty. The Court could take the view that Article 7 cannot be ignored: it is or was a British commitment that was never fulfilled. Thus the Court may wish to find some way of giving effect to Article 7 if it is to uphold the Belizean boundary. As Shoman reports, Judge Hudson, who prepared an opinion on the Guatemala/ Belize dispute, was also concerned about the problem of Article 7, and contemplated a compensatory payment on the part of the United Kingdom. The United Kingdom’s liability under Article 7 is, however, not a certainty, and, on the present writer’s reading of the law, it does not have an impact on the drawing of the Belizean boundary. Finally, it is important to ensure that the British and Guatemalan archives are fully surveyed to ensure that all key documents are available to the lawyers as they prepare for litigation. In addition to strengthening the case for Belize, this will also prevent the possibility of surprise in the litigation, an ever present risk when more than 300 years of documentary evidence have to be assessed.
This opinion has also looked at recent developments relating to the Sarstoon River and Sarstoon Island, stemming from activities of the Guatemalan Armed Forces in respect of both the river and the island. To the extent that the Guatemalan Armed Forces are not recognizing the boundaries set out in Article 1 of the 1859 Treaty, they are violating International Law. Their motive, presumably, is to set in train the idea that they are in effective control of these areas, as the basis for title to territory. As long as Belize protests and repeats its protests frequently and widely, there will be no change in the legal status of the areas in question in favour of Guatemala.