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The Guatemalan Claim and the ICJ

Posted: Tuesday, April 17, 2018. 2:08 p.m. CST.

The views expressed in this article are those of the writer and not necessarily those of Breaking Belize News.

By Ambassador Oliver del Cid:  The decision to submit or to not submit the Guatemalan Claim to the International Court of Justice (ICJ) for adjudication is a very serious one and it must be an informed decision. We cannot base our vote solely on our own patriotic sentiments, our understanding of how the world operates or should operate, or on information being circulated by persons who are unaware of basic principles of International Law and International Relations, may not be fully aware of how this issue has developed over the years, or have not fully considered what may lie ahead.

The following are some of the questions and concerns that Belizeans have raised in recent years with regards to the claim and the way forward.

  1. What is the Adjacency Line? Did Belize agree with Guatemala that there is no border?

Not at all.

In 1997 the Constitutional Court of Guatemala declared the 1859 Convention Between Her Majesty and the Republic of Guatemala, Relative to the Boundary of British Honduras to be invalid.

Coming almost 140 years too late, the declaration means nothing in International Law but it imposes some limitations on Guatemalan officials who are prevented from recognising the Convention. It is also for that reason that Guatemalan officials cannot legally refer to a border. Guatemalans can call it whatever they want but to Belizean officials there is without a doubt, a border.

Link:

  • Agreement on a Framework for Negotiations and Confidence Building Measures Between Belize and Guatemala, 2005

http://peacemaker.un.org/sites/peacemaker.un.org/files/BZ-GT_050907_AgreementFrameworkNegotiationsCBMs.pdf

  1. Did Belize cede sovereignty or create a “no man’s land” with the Adjacency Zone?

It is neither a “no-man’s land” nor has Belize given up sovereignty over any territory.

The Adjacency Zone (AZ) is a 2 km wide strip – 1 km to the east and 1 km to the west of the Belize-Guatemala border. The AZ is nothing more than a special regime that was put in place to assist in defusing situations along the Belize-Guatemala border. Belizean law applies to the east of the border and Guatemalan law applies to the west of the border.

Link:

  • Agreement on a Framework for Negotiations and Confidence Building Measures Between Belize and Guatemala, 2005

http://peacemaker.un.org/sites/peacemaker.un.org/files/BZ-GT_050907_AgreementFrameworkNegotiationsCBMs.pdf

 

  1. Belize has been Independent for almost 35 years. Why doesn’t Guatemala just give up its claim?

Even if it is the right and rational thing to do Guatemala will not simply give up the claim. Generations of Guatemalans have grown up indoctrinated with the “Belice es nuestro” lie and many cannot understand otherwise even if they don’t really know the details.

Few if any Guatemalans in positions of power really think they can win anything at the International Court of Justice (ICJ). Most consider the claim to be embarrassingly out-dated but believe that only through the ICJ will Guatemala be able to lose with honour and move on as a responsible modern nation.

Link:

  • 1859 Convention Between Her Majesty and the Republic of Guatemala, Relative to the Boundary of British Honduras

http://www.belizereferendum.gov.bz/images/documents/treaty-1859.pdf

  1. The United Nations (UN), the Organization of American States (OAS), the Non-Aligned Movement (NAM), the Caribbean Community (CARICOM), and the Commonwealth have all made declarations regarding Belize and its territorial integrity. Can’t we just remind Guatemala of these and tell them to leave us alone?

Telling Guatemala to “leave us alone” is not a viable option in international relations. Belize and the world community understand that the delimitation of the Belize-Guatemala border was accomplished through the 1859 Convention Between Her Majesty and the Republic of Guatemala, Relative to the Boundary of British Honduras and the 1931 Exchange of Notes. Guatemala refuses to recognise these and that is why there is still an unresolved claim.

The declarations that the member states of international organisations have collectively made on behalf of Belize are very important in that they represent worldwide affirmation of Belize’s right to exist and its territorial integrity.

However, despite the strength of these international declarations, the actual delimitation of borders can only be done through bilateral negotiation, arbitration, or adjudication. We have tried negotiation, we have not been successful at arbitration, and all that remains is adjudication.

It is worth noting that the International system is based on the primacy of states meaning that they are sovereign and that nothing is above them in terms of hierarchy – unless they agree to give up certain rights to certain regional or international entities (such as to the EU, the Caribbean Court of Justice, the ICJ, etc.).

That means that the world community cannot impose on Belize or Guatemala what it understands the Belize-Guatemala boundary to be. Belize and Guatemala either decide that on their own through bilateral negotiation or cede that right to decide to another entity through arbitration or adjudication.

Links:

  • Legal Opinion on Guatemala’s Territorial Claim Over Belize

http://www.mfa.gov.bz/index.php/library/recent-documents/146-belize-guatemala-legal-opinion

  • 1859 Convention Between Her Majesty and the Republic of Guatemala, Relative to the Boundary of British Honduras

http://www.belizereferendum.gov.bz/images/documents/treaty-1859.pdf

  • 1931 Exchange of Notes

http://www.belizereferendum.gov.bz/images/documents/Exchange-Notes-1931.pdf

  1. Why can’t we just develop a network of roads along the Belize-Guatemala border, increase security presence there and ignore Guatemala as we use to do?

 

Even if Belize were to increase its military presence along the border, that would not make the Guatemalan claim disappear and incidents between Belizean security forces and campesinos would likely continue and possibly get out of hand without OAS presence.

 

For most of its existence Belize was able to ignore the Guatemalan claim because there were British troops stationed in Belize, Guatemala was occupied with its own civil war, and the Peten Department was sparsely populated. All that began to change when the British withdrew in 1993, the Guatemalan civil war came to an end in 1996, and displaced campesinos from other parts of Guatemala began to migrate to Peten.

  1. Can’t we simply arm ourselves to discourage Guatemala? Maybe with the help of our friends – the US, UK, CARICOM, and the Commonwealth?

No doubt every single Belizean would volunteer to defend the nation.

But let’s be realistic. We are a nation of approximately 350,000 while Guatemala has more than 14 million. The Guatemalan military is over 15,000 while we have far less. And the Guatemalan defence budget is approximately US$235 million, approximately 40% of Belize’s entire budget for FY2017.

As much as we would want to increase defence spending, we cannot do so easily. Among our many unavoidable priorities, we have hospitals and schools to staff and run. We could probably stop spending on a few things for a while – like infrastructure and social programmes – but that would adversely affect the Belizean economy and society almost immediately.

It is highly unlikely that our international friends would provide weapons given that these days everybody is facing hard times, they have their own security priorities, and the world community is not interested in fuelling an arms race, especially when there are non-violent alternatives available.

When it comes to the Guatemalan Claim, we must work with what we have.

Links:

  • Guatemalan Budget

http://www.minfin.gob.gt/images/archivos/preprobado2017/globales_060117.pdf

  • Legal Opinion on Guatemala’s Territorial Claim Over Belize

http://www.mfa.gov.bz/index.php/library/recent-documents/146-belize-guatemala-legal-opinion

  1. Does Guatemala have a strong legal claim?

No, Guatemala does not.

The Legal Opinion is the most comprehensive ever prepared on the matter. The four jurists (who themselves represent a multinational approach to International Law as opposed to what may have been prepared by jurists from exclusively Common Law countries) outline an extremely tight case based on the following:

  • The complete absence of Guatemalan administration over any part of Belize
  • Prescriptive Acquisition and the consolidation of title
  • The 1859 Convention between Her Majesty and the Republic of Guatemala, Relative to the Boundary of British Honduras
  • The 1931 Exchange of Notes
  • Self Determination

On the other hand, Guatemala has no substantial legal elements on which to base its claim. In fact, on more than one occasion Guatemala has been told by International Law experts that it does not have a claim.

Links:

  • Legal Opinion on Guatemala’s Territorial Claim Over Belize

http://www.mfa.gov.bz/index.php/library/recent-documents/146-belize-guatemala-legal-opinion

  • Guatemala’s Claim is Very Weak (Spanish)

http://mensual.prensa.com/mensual/contenido/2002/09/20/hoy/mundo/712732.html

“El estadounidense Paul Reichler, uno de los dos conciliadores designados para resolver un diferendo limítrofe entre Guatemala y Belice, aseguró que el reclamo guatemalteco de 12 mil 272 km2 es muy débil…”

(Paul Reichler was the Facilitator appointed by Guatemala)

  • Open Your Eyes (November 15, 2012)

http://vimeo.com/53625548

(The Amb. Alfredo Martinez/Dr. Assad Shoman segment starts at 0:45:15; see Dr. Assad Shoman’s comment at 1:07:30)

  • Importancia de la Solucion Juridica, Luis Alberto Padilla (Section 6, Paragraph 2)

http://myslide.es/documents/belice-importancia-de-la-solucion-juridica.html

“…el eminente jurista Alain Pellet…nos hizo saber su impresión que la posición de Guatemala le parecía más sólida en lo que concierne al diferendo insular y marítimo que en lo relativo al territorio terrestre…”

(See also #13 below)

  1. Why can’t we continue to develop bilateral relations with Guatemala and use that to get rid of the Guatemalan Claim?

 

Some people believe that we have not negotiated enough or that developing bilateral trade will get Guatemala to drop its unfounded claim.

 

With regards to negotiation, you are invited to come up with a solution that has not already been explored by hundreds of diplomats from the UK, Belize, and Guatemala in the last 150 years and that satisfies both Belize and Guatemala.

With regards to the bilateral agenda solution, it’s important to bear in mind the situation between the UK and Spain over Gibraltar. Though the UK is now in the process of leaving the European Union, both countries were member since the 1970s. The EU is the most advanced regional integration system in the world and virtually every issue area has been integrated within the EU system. Even so Spain never ceased to claim sovereignty over the Rock. Good bilateral relations will not make this problem go away.

Link

  • Gibraltar

http://www.bbc.com/news/world-europe-18219307

https://www.theguardian.com/world/2017/mar/31/future-of-gibraltar-at-stake-in-brexit-negotiations

  1. Why should we go to court now when we had never agreed to do so before?

In part, because we never really knew how strong our legal case was until the Legal Opinion was prepared.

However, this is not the first time Belize and Guatemala have potentially faced an international legal tribunal. The Legal Opinion (paragraphs 173 to 177) describes the UK’s acceptance of the ICJ’s jurisdiction “in all legal (emphasis added) disputes concerning the interpretation, application or validity of any treaty relating to the boundaries of British Honduras”. The offer was left open for 10 years (1946 to 1956).

How did Guatemala respond? Guatemala completely ignored the offer to have the matter dealt with solely on the basis of legal principles and instead in 1947 it accepted the ICJ’s jurisdiction on all legal matters but limited the Guatemalan Claim to an ex aequo et bono resolution, not a legal one. According to the Merriam-Webster online dictionary, ex aequo et bono means “according to what is equitable and good: on the merits of the case —used esp. in international law when a case by agreement of the principals is to be decided on grounds of equity and reason rather than specific points of law”.

In other words, as far back as 1946 Guatemala knew that it did not have a legal case and instead wanted it decided on principles of “fairness”. And that is not even including Self Determination which became a preeminent principle of International Law after the Second World War as well as the complete consolidation of Belize’s title over all its territory in the ensuing 70 years.

Link:

  • Legal Opinion on Guatemala’s Territorial Claim Over Belize

http://www.mfa.gov.bz/index.php/library/recent-documents/146-belize-guatemala-legal-opinion

  1. Why was the ICJ selected? Why can’t we take this matter to the Caribbean Court of Justice or some another tribunal?

The decision to seek an ICJ resolution (if agreed to in referenda in both Belize and Guatemala) was made with the full input and participation of both the UDP and the PUP.

There are various dispute resolution mechanisms available under International Law. The most basic is negotiation between/among the states involved. Over the course of more than a century we (the UK and then Belize) have not been able to convince Guatemala to drop its claim and neither has Guatemala been able to convince us to cede territory.

Another mechanism is arbitration. That was attempted in the 1960s with the Webster Proposals (which were rejected by the Belizean people) and to some extent in the Facilitation Process in 2002 (the Proposals were rejected by Guatemala).

The third mechanism is adjudication. In this case, Guatemala would certainly not accept to have the Caribbean Court of Justice (CCJ) rule on this case because they know that CARICOM Member States have been unwavering in their support for Belize and its territorial integrity.

In theory Belize and Guatemala could form an ad hoc court to hear this case. There is no doubt that both countries could identify highly trained legal experts but precisely because of its ad hoc nature, it is also quite likely that the judges would vote in favour of the state that appointed them. For that reason, an ad hoc court is a far less appealing option than using the already well established and highly regarded International Court of Justice which is an extension of the United Nations system.

The ICJ is a highly respected international tribunal where the legal arguments of the two countries will be presented and will be decided upon based on principles of International Law by a panel of legal experts from around the world.

Link:

  • The International Court of Justice

http://www.icj-cij.org/homepage/index.php

  1. But isn’t the ICJ just a “solomonic” court?

In the case of the Guatemalan Claim, the legal arguments are overwhelmingly weighted in Belize’s favour while Guatemala has no legal elements in its corner. It would be virtually impossible for the ICJ to find a “Solomonic” solution.

It is most unfortunate that some people with little or no background in International Law look at select ICJ rulings, misinterpret them, attempt to apply them to our current situation with Guatemala, and present them to the public as fact.

Links:

  • The International Court of Justice

http://www.icj-cij.org/homepage/index.php

  • Legal Opinion on Guatemala’s Territorial Claim Over Belize

http://www.mfa.gov.bz/index.php/library/recent-documents/146-belize-guatemala-legal-opinion

  1. The United States has traditionally been a close ally of Guatemala, especially during the Cold War. Won’t the United States use its influence at the ICJ to hand Belize over to Guatemala?

While there may have been interest in doing so by some US policymakers decades ago (as in the 1965 Webster Proposals that were rejected by Belize), the Cold War ended more than 20 years ago and the US’ relationship with the entire world has changed considerably since then.

Even at the height of the Cold War, on 11th November, 1980 the United States voted in favour of UN General Assembly Resolution 35/20 which called for Belize’s Independence by the end of 1981 and with its territory intact. This Resolution was also fully supported by all members of the UN Security Council.

On 23rd September, 1981 the UN Security Council (including the United States which, as one of the five Permanent Members of the Council, has the power to veto any decision) unanimously voted in favour of admitting Belize as a member of the United Nations. Since then the US has been very supportive of Belize on issues relating to the Guatemalan Claim.

The ICJ is also an independent body and not subordinate to the United States. In fact, in 1986 the ICJ ruled against the United States in The Republic of Nicaragua v. The United States of America case.

Links/Reference:

  • UNGA – On the Question of Belize

http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/35/20&Lang=E&Area=RESOLUTION

  • UNSC – Admission of New Members to the UN

http://www.un.org/ga/search/view_doc.asp?symbol=S/RES/491(1981)

  • Shoman, Assad, 13 Chapters of a History of Belize, 2nd Edition, page 288

“…the US State Department was extremely open to, and helpful towards, the Belize position, especially during the Facilitation Process and after, when Guatemala reneged on the agreements…”

  • ICJ – Nicaragua v. United States of America

http://www.icj-cij.org/docket/index.php?sum=367&code=nus&p1=3&p2=3&case=70&k=66&p3=5

  1. Is it possible that Belize may lose at the ICJ?

Based on the overwhelming strength of Belize’s legal position, it is difficult to see how the ICJ would entertain Guatemala’s claim for territory. Guatemala just doesn’t have any strong legal elements in its favour with regards to a territorial claim.

Guatemala may indeed “win” access to the Caribbean Sea at the ICJ. However, that does not necessarily mean a “loss” for Belize. Guatemala already has a small coast in the Gulf of Honduras and as such must have access to the sea.

In any case, any such delimitation would have to be in accordance with the United Nations Convention on the Law of the Sea.

Links:

  • Legal Opinion on Guatemala’s Territorial Claim Over Belize

http://www.mfa.gov.bz/index.php/library/recent-documents/146-belize-guatemala-legal-opinion

  • United Nations Convention on the Law of the Sea (UNCLOS)

http://www.un.org/depts/los/convention_agreements/texts/unclos/UNCLOS-TOC.htm

  1. Why bother going to court now? We can now only lose at the ICJ.

Submitting the Guatemalan Claim to the ICJ is not “100% risk-free” but not doing so may leave us even more exposed than we realise at this point in time.

The premise that if we refuse to go to the ICJ things will continue as stable as they are now is very much mistaken.

If either country votes no in the Referendum, but particularly if Belize does so, we run the very real risk of losing international financial support for the OAS Adjacency Zone Office. Though many Belizeans are critical of the OAS, the fact is that this office impartially investigates incidents within the Adjacency Zone and so de-escalate situations that could get otherwise get out of hand. For example, following the shooting incident in April 2016 that resulted in the death of a Guatemalan minor, the findings of an independent OAS investigation countered the claims that had been hastily made by the Guatemalan government.

The international community which currently funds the OAS office has no interest in doing so indefinitely. If they do not believe we are serious about resolving the baseless Guatemalan claim, the office will be de-funded and closed. If that happens we will be back to dealing with Guatemala on our own as we had done between 1993 and 2000 (when encroachments began in earnest and when Guatemala kidnapped four Belizean security personnel).

Unfortunately, almost 20 years after the end of its civil war, Guatemala remains a violent society and Guatemalan communities along the Belize-Guatemala border have behaved aggressively against Belizean security patrols on many occasions, at times with tragic results.

That does not mean that the Government of Guatemala would try to invade Belize but the truth is that there are hardliners within the Guatemalan government that would (as they have in the past) actively seek to provoke incidents of violence, especially if the OAS Adjacency Zone Office is closed.

Links:

  • Referendum Unit meets with media on ICJ awareness campaign

http://edition.channel5belize.com/archives/80837

  • What is There to Lose in Going to the ICJ?

http://www.guardian.bz/index.php?option=com_content&view=article&id=5759:what-is-there-to-lose-in-going-to-the-icj&catid=53:headlines

  • BDF/Police Patrol detained in Guatemala

http://edition.channel5belize.com/archives/21439

  • Guatemalans block B.D.F. from travelling on portion of Sarstoon River

http://edition.channel5belize.com/archives/29359

  1. Even if the Guatemalan claim is dismissed at the ICJ, what can we do if Guatemala refuses to comply?

It would be difficult for Guatemala to ignore the ruling of the ICJ. The United States may have done so when it lost the case to Nicaragua but Guatemala is certainly not the United States!

Should Guatemala refuse to comply with the ruling of the ICJ, Belize may take the matter to the United Nations Security Council for enforcement. In 1980 and 1981 the Permanent Members of the UNSC supported Belize and its territorial integrity. It is unlikely that following an ICJ ruling on behalf of Belize that the UNSC would vote otherwise.

In any case, discussion about whether Guatemala will or will not comply with an ICJ ruling as to the Belize-Guatemala border may be a purely academic exercise.

There would actually be NO NEED for Guatemala to take any action with regards to the Belize-Guatemala border as it has already been established and surveyed – by the 1859 Treaty and the 1931 Exchange of Notes. And it coincides precisely with what the Guatemalans choose to call the Adjacency Line.

That has not necessarily been in the case in other border disputes. Consider the complex case of the Indian enclave of Dahala Khagrabari which is completely surrounded by a Bangladeshi village which is itself surrounded by an Indian village and which is itself within the Debiganj Rangpur division of Bangladesh. Cases like that undoubtedly require a major border re-drawing exercise involving both countries.

Links:

  • UNGA – On the Question of Belize

http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/35/20&Lang=E&Area=RESOLUTION

  • UNSC – Admission of New Members to the UN

http://www.un.org/ga/search/view_doc.asp?symbol=S/RES/491(1981)

  • The UN Charter – Chapter 6, Pacific Settlement of Disputes

http://www.icj-cij.org/documents/index.php?p1=4&p2=1&p3=0#Chapter6

  • The UN Charter – Chapter 14, The International Court of Justice

http://www.icj-cij.org/documents/index.php?p1=4&p2=1&p3=0#Chapter14

  • Smithsonian Magazine – This Was the Turducken of Border Disputes

http://www.smithsonianmag.com/smart-news/was-turducken-border-disputes-180956161/?utm_source=twitter.com&no-ist

In conclusion, there is no doubt that there are both risks and opportunities in taking the case to the ICJ. No one can absolutely guarantee the outcome of an ICJ ruling but we also know that the ICJ will rule in accordance with International Law and we know that Belize’s legal position is strong while Guatemala has no legal principles to stand on. We also know that the risks of doing nothing are very high.

Those that have already come out against the ICJ have expressed some very valid concerns while others are simply spreading fear and misinformation.

Please keep an open mind and decide for yourself once you have taken all the facts into consideration.

Further Reading:

http://www.belizeicjeducation.com/

http://www.belizereferendum.gov.bz//images/documents/How%20You%20Can%20End%20The%20Guatemalan%20Claim.pdf

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