Posted: Thursday, October 25, 2018. 11:02 am CST.
The views expressed in this article are those of the writer and not necessarily those of Breaking Belize News.
This article was written by Richard Harrison, Belizean investor in production and services businesses in Belize. He holds a Master’s in Business Administration degree from Lancaster University.
By Richard Harrison: One of the arguments that the “pro-ICJ” peddles is that the ICJ will look at the 1859 Treaty and nothing else…in its determination of where the border should be between Belize and Guatemala, taking into consideration any and all legal claims by Guatemala…based on the argument that “borders are permanent, once established” as the 1859 Treaty was very clearly about establishment of “permanent” boundaries.
However, the ICJ website says:
“The sources of law that the Court must apply are: international treaties and conventions in force; international custom; the general principles of law; judicial decisions; and the teachings of the most highly qualified publicists. Moreover, if the parties agree, the Court can decide a case ex aequo et bono, i.e., without confining itself to existing rules of international law.”
So, the ICJ uses a lot more than treaties to make its decisions.
However, there is nothing in international law that stops a country from agreeing to change its borders that were “permanently” established in treaties…doing so of its own free will.
The ICJ statement below raised three important words the Belizeans need to understand:
ACQUIESCENCE – In law, acquiescence occurs when a person knowingly stands by without raising any objection to the infringement of his or her rights, while someone else unknowingly and without malice aforethought acts in a manner inconsistent with their rights. As a result of acquiescence, the person whose rights are infringed may lose the ability to make a legal claim against the infringer, or may be unable to obtain an injunction against continued infringement. The doctrine infers a form of “permission” that results from silence or passiveness over an extended period of time.
ESTOPPEL – is a judicial device in common law legal systems whereby a court may prevent, or “estop” a person from making assertions or from going back on his or her word; the person being sanctioned is “estopped”. Estoppel may prevent someone from bringing a particular claim, particularly if a promise unsupported by consideration[clarification needed] is being relied on by the other party. Legal doctrines of estoppel are based in both common law and equity.
It is also a concept in international law.
LEGITIMATE EXPECTATION – The doctrine of legitimate expectation was first developed in English law as a ground of judicial review in administrative law to protect a procedural or substantive interest when a public authority rescinds from a representation made to a person. It is based on the principles of natural justice and fairness, and seeks to prevent authorities from abusing power.
“91. In international law, the existence of an obligation to negotiate has to be ascertained in the same way as that of any other legal obligation. Negotiation is part of the usual practice of States in their bilateral and multilateral relations. However, the fact that a given issue is negotiated at a given time is not sufficient to give rise to an obligation to negotiate. In particular, for there to be an obligation to negotiate on the basis of an agreement, the terms used by the parties, the subject-matter and the conditions of the negotiations must demonstrate an intention of the parties to be legally bound. This intention, in the absence of express terms indicating the existence of a legal commitment, may be established on the basis of an objective examination of all the evidence.
…93. The Court will first analyse whether any of the instruments invoked by the Applicant, in particular bilateral agreements, or declarations and other unilateral acts, gives rise to an obligation to negotiate Bolivia’s sovereign access to the Pacific Ocean. The Court will then examine, ifnecessary, the other legal bases invoked by the Applicant, namely acquiescence, estoppel and legitimate expectations. Finally, the Court will address, if warranted, the arguments based on the Charter of the United Nations and on the Charter of the OAS.” [ICJ Judgment, paras. 91 and 93. Italics added.]
Besides the fact that the 1859 Treaty can be shown to have been breached twice…once by not building the cart road…and again by not paying the £50,000 compensation in lieu of the first breach….there are other evidence of acquiescence in the Maritime Areas Act, Ranguana Concurrence of 1990, Joint Communique of 1991, among many other PRACTICES such as has lead since Independence to large amounts of Guatemalans enjoying voting, land, services and other rights within Belize ….which can trigger estoppel and ligitimate expectations claims to significant portions of Belize’s maritime, insular and territory geography….and where surface territory may not be ceded, rights to sea bed, air-space and underground exploitation can be ruled upon.
As a footnote…the “pro ICJ” also claims they have succeeded where the British failed…in getting Guatemala to agree to go to court…BUT they do not explain that the British were only willing to go to ICJ to ask them to determine if the 1859 Treat was valid, at a time when UK walked around the world with a big stick…not to ask the court to consider ANY AND ALL legitimate claims by Guatemala over Belize….which is now a small, broke, weak, defenseless state.
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