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Holistic Analysis of a Yes vote and No vote on the ICJ

Posted: Friday, January 11, 2019. 7:31 pm CST.

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

By Dr. Marcelino Avila:  Holistic Analysis of a Yes Vote and No Vote on the ICJ Referendum on the Guatemalan Claim to Belize Territory[1]

The Referendum question (per Article 2 of the Special Agreement) on which Belizeans will vote on 10 April, 2019, reads as follows:

“Whereas the parties request the International Court of Justice (ICJ) to determine, in accordance with applicable rules of international law as specified in article 38-1 of the statute of the Court, any and all legal claims of Guatemala against Belize to land and insular territories and to any maritime areas pertaining to these territories, to declare the rights therein of both parties, and to determine the boundaries between their respective territories and areas.”

Here is a preliminary analysis of the strengths, weaknesses, opportunities and threats (SWOT)) of a YES and a NO vote on the ICJ referendum, presented from a Belizean perspective.

“YES” VOTE “NO” VOTE
STRENGTHS  
Y1.1 A legal opinion of 4 renowned legal experts, based on facts and the law of the matter, i.e. a) 1859 Convention and the Exchange of Notes between Britain and Guatemala of 1931, b) British and Belize possession of the territory in question for the last 200 years, coupled with the absence of any evidence of Guatemalan activity in the disputed area, and c) right of self-determination of the people of Belize manifested in her independence in 1981, do not support Guatemala’s claim. N1.1 The Belize Constitution (Schedule 1) defined in 1981 our boundary which can be changed only by a 2/3 vote of the House. Signing of the Compromis was a violation of our Constitution by this Cabinet. Belize possesses a good title to the whole of its territory including islands that it presently administers, within the boundary limits set by the 1859 Convention between Britain and Guatemala.
Y1.2 Experienced national leaders of both political parties favour a YES vote, based on their assessment of the facts. They say we cannot lose – this is an “iron-clad, water-tight” court case. They share the opinion that going to the ICJ is our best and only chance to get Guatemala to respect border. N1.2 Belize is an independent sovereign nation since 1981, sanctioned by UN General Assembly and vested with rights, responsibilities and benefits by way of its full membership.
Y1.3 The Guatemalan claim to Belize has “distorted the political development, delayed independence, limited the development potential and often caused grave concerns for the security of Belize”. It is high time to end the bilateral dispute, get the “monkey off its back”. N1.3 The UN, OAS, Commonwealth, CARICOM, ACP and Non-aligned Movement periodically issue declarations in support of the independence and territorial integrity of Belize. GoB reports to each association on progress of the Guatemalan dispute. Such declarations carry a lot of weight internationally.
Y1.4 Since 2000, the Government of Guatemala (GoG) insists that the territorial dispute was eminently a legal one, and that the only possibility for a resolution was to submit the case to the ICJ or to arbitration. N1.4 Guatemala (Serrano Govt) recognized Belize in 1991, but it reasserted its territorial claim 8 years later. The two countries have set up an “adjacency zone” 1 km wide on each side of established border for confidence building, good relations, and to deal with border problems.
Y1.5 In May 2018, Guatemala held her referendum and the results of the vote shows that the Guatemalan people have decide to take ICJ route, hence the pressure on Belize for a YES vote. N1.5 Guatemalans agreed to a Yes vote with 89% in favour, but the voter turnout was only 26%. Is it that the other 77% of her electorate consider the Belize question irrelevant or could not care less.
Y1.6 The GoG, USA, OAS, UN? and other friendly countries expect a YES vote for Belize on April 10, 2019. There is pressure on GoB to deliver a YES vote, and the UDP Govt must definitely be in support of and campaign for a YES vote. N1.6 Going to the ICJ would represent a huge “opportunity cost” and undertaking for GoB, e.g. a legal team in Europe, the memorial/ counter-memorial/and replies, small unit and office in the Hague, work group in Belmopan, and travel of Belizean officials to The Hague for proceedings and consultations, estimated at US$5m to $10m per annum, for at least 5 years.
Y1.7 If the ICJ process does not proceed according to expectation or Belize is unable to continue for a good reason, Belize can withdraw or discontinue proceedings, and the ICJ will take this case off the list. N1.7 Instead Belize could opt to request a legal opinion of the ICJ on the validity of 1859 treaty, which would not entail great investment, time and/or commitment to implement the ICJ recommendations.
WEAKNESSES
Y2.1 Guatemala’s demand for a big chunk of Central America on the Caribbean coast is far older than Belize itself. The area was inhabited by the Maya, and in 1800s Spain agreed to let Britain cut timber in northern half of modern Belize. What land rights do the Maya have as indigenous inhabitants of the territories known as Belize today, irrespective of agreements and conventions between Spain, Britain and Guatemala? N2.1 Going to ICJ is giving legitimacy and support to the false Guatemalan claim, and gives the ICJ authority, with mutual consent of Belize and Guatemala to change the 1859 treaty boundary, with no recourse for appeals.
Y2.2 Guatemala holds that it had “inherited” the region of Belize from Spain. Guatemala gave up her claim in 1859, in exchange for Britain (and Guatemala) building a road from Guatemala City to the Caribbean Sea (Art. 7). But the road never materialised, therefore Guatemala declared the treaty null & void. What other arguments/evidence does Guatemala have to strengthen her case about which we do not know. N2.2 On 19/04/18, the Economist reported that it sounded like an “outrageous act of provocation” that on April 15 Guatemalan voters chose to file a claim at the ICJ demanding sovereignty over 53% of Belize. GoB congratulated GoG, saying the result “contributes further to the strengthening of democracy, peace and security”.
Y2.3  In going to the ICJ, there is nothing to win and too much to lose for Belize, while Guatemala has nothing to lose and much to gain towards their claim of Belize. N2.3 A NO vote of Belize on April 10, 2019, would be an affront to those who supported us heretofore and those who could support going forward.
Y2.4 Integrity and trust of present GoB are concerns among the Belizeans people, and GoB’s ability and track record of winning international litigated cases are close to zero. N2.4 A NO vote would make Belize appear to be not interested in a legal, fair and peaceful resolution to the long–standing dispute.
Y2.5 Our electorate is unprepared with knowledge of the pros and cons of this decision as GoB has delayed the education campaign, and the start of education campaign shows deficiencies in its approach, arguments and concrete plans in case of a NO vote. Present focus is on justifying a YES vote, and explanations are not in clear language for the electorate to digest and decide. N2.5 Our GoB leaders have stated they have tried and given up on all diplomatic, negotiation options and now have no alternative avenues/ideas other than the ICJ.
Y2.6 Seemingly we are not ready to mount a winning fight at the ICJ in terms of the legal team, strategy & tactical strategy, financing, and what else? N2.6 If GoG wants to be a bully, let her take Belize by force rather than GoB making it easy for them to take it. We need to show some courage, patriotism and force to fight for what is justly ours. We are not wimps – must go for a NO vote.
OPPORTUNITIES
Y3.1 A YES vote would convince Guatemala we are not her enemy, we want peace, more collaboration, trade, investment etc. N3.1 A NO vote is a vote of no confidence in current leadership in Belmopan, hence a call for immediate national elections.
Y3.2 If Belize loses at the ICJ, Belize and Guatemala will probably accelerate integration, albeit bilaterally or in the SICA framework. N3.2 Belize must put greater priority on its national defence, invest more on BDF and invest in the development of the south and the west.
Y3.3 Next year Taiwan will give Guatemala at last what Britain never built: a four-lane, $600 m highway, running 200 km (135 miles), from Guatemala City to the Caribbean coast. N3.3 In any future scenario, Belize must protect its borders, encourage & develop border lands, build roads there and negotiate defence agreements with regional & bilateral “friends”.  The diverse, rich forest ecosystems can produce valuable products & services, i.e. a new frontier of economic growth for Belize.
Y3.4 What commitments, benefits, support, investments has/could Belize receive for a YES vote, a win or a loss at the ICJ? N3.4 Belizeans will appreciate unity of mission, patriotism and statesmanship, and really build Belize as a model country, all towards building capacity to stand up to a possible external threat.
N3.5 Belize must seek assistance from UK, EU, Mexico, Cuba, USA, Israel for its development, protection and security.

SICA can have a major impact on negotiations with Guatemala to bring about peaceful co-existence in the near future.

THREATS
Y4.1 Inspired by potential success, and because of its size, Guatemala can and will mobilize a high-power legal team, diplomatic/public relation campaign, etc. to win this case, far superior to what Belize is capable of. You can bet GoG will use any and all means, whatever works, to get its way or compensation for the Belize territory lost. N4.1 A NO vote could serve as an excuse for Guatemala to expand its aggressive tactics on our southern and western borders, support and expand its international campaign to impugn our national credibility and to initiate a military aggression any time.
Y4.2 There is a 5-15% probability of loss based on legal technicalities, human error, and even corruption, on the part of any of many parties involved in ICJ process. Multilateral and bilateral decisions are not only about fairness, justice and rights, but also about power, interest & bullying by some global actors. N4.2 We do not know what the UK, EU, Mexico, Cuba, USA, Israel and others would do to punish Belize for a NO vote outcome.
Y4.3 We do not know exactly what Guatemala claims: all Belize, Sarstoon to the Sibun, Sarstoon up to Monkey River or just Toledo? Certainly the south, a beautiful and resourceful region is being targeted. Will all Belizeans in the south be accepted as Guatemalans? N4.3 Would Guatemala invade us? And if so, what would be our response, could BDF respond? Do we have any agreements with friendly countries to intervene in case of a Guatemalan invasion?
Y4.4 If Belize wins, would Guatemala accept the judgment and forget once and for all her claim to Belize? N4.4 Finally, would GoG go to the ICJ if she knew she will lose? NO, GoG expects to win, and she has said so in the campaign leading to her referendum in 2018.
Y4.5 If Belize wins and Guatemala accepts the ICJ judgment, border problems will likely continue because lots of Guatemalan communities close to the border are poor, hungry and landless, hence readily become illegal trespassers, migrants or refugees.
Y4.6 If Guatemala wins at the ICJ, would a diminished Belize be viable as a nation state? Mexico has explained that if Guatemala gets part of Belize, she reserves the right to take back north Belize which was granted to Britain in the late 19th century.
Y4.7 If Belize loses, what happen with Belizeans, current investors, asset owners in the ceded territories? Exodus, confiscation, refugees?
Y4.8 Guatemala is run by a neo-European minority that controls govt, army and economy, that has a poor track record, i.e. military violence, violation of human rights (vs the Maya majority and pockets of black people) and corruption.

References for reading/: Constitution of Belize (Schedule 1), The Legal Opinion of 4 International Experts, and papers and presentations by, for example, Dr. Assad Shoman, Alexis Rosado, Richard Harrison, David Gibson, Robert Leslie, Dr. Angel Cal, Lindsay Belisle, and Dr. Gilda Lewis .

 

No doubt, the analysis on both sides could be strengthened by editing, amplifying and/or adding more points to bolster the arguments on each option.

 

The International Court of Justice: If the majority of the vote is a YES, then the dispute will be taken to the International Court of Justice (ICJ). The ICJ was established in 1945 as the principal judicial organ of the United Nations (UN). The Court’s role is to settle, in accordance with international law, legal disputes submitted to it by states and to give advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies. The Court is composed of 15 judges, who are elected for terms of office of nine years by the UN General Assembly and the Security Council.

 

According to its website, the ICJ may entertain two types of cases:

  1. legal disputes between States submitted to it by them (contentious cases), and
  2. request for advisory opinions on legal questions referred to it by United Nations organs and specialized agencies.

 

According to Article 38.1, the Court must apply in our case (Belize/Guatemala dispute):

  • international treaties and conventions in force;
  • international custom;
  • general principles of law;
  • judicial decisions; and
  • teachings of the most highly qualified publicists.

 

Moreover, if the parties agree, the Court can decide a case without confining itself to existing rules of international law.

 

A case may be brought to a conclusion at any stage of the proceedings by a settlement between the parties or by discontinuance. In case of the latter, an applicant state may at any time inform the Court that it does not wish to continue the proceedings, or the two parties may declare that they have agreed to withdraw the case. The Court then removes the case from its List.

 

By signing the Charter, a UN Member State undertakes to comply with the decision of the Court in any case to which it is a party. Since, furthermore, a case can only be submitted to the Court and decided by it if the parties have in one way or another consented to its jurisdiction over the case, it is rare for a decision not to be implemented.

 

If a state considers that the other side has failed to abide by the obligations incumbent upon it under a judgment rendered by the Court, the ICJ does not have any enforcement mechanism. The state may bring the matter before the Security Council, which is empowered to recommend or decide upon measures to be taken to give effect to the judgment, e.g. economic sanctions.

 

For the Belize/Guatemala case, the ICJ will comprise of 15 elected judges. However, 2 ad-hoc judges will be nominated to the court, one each by Belize and by Guatemala, respectively. Additionally, the countries will have the representation from an agent at the Court, whose function will be to submit documents on behalf of the country. The agent must have high diplomatic skills, good knowledge of foreign policy, and extended knowledge of international law.

 

In preparation for adjudication, the Ministry of Foreign affairs (of Belize) will organize a multidisciplinary team including legal counsel, international law experts, and the team that will conduct all the research, compile documents and evidence for the court.

 

Since Guatemala is the claimant country, they would submit a memorial, i.e. a presentation of her case, of up to 150 pages of volume, substance and annexes on the dispute. Belize would receive the memorial and respond with a counter-memorial (admit, deny or comment on a memorial on international law.

 

The ICJ’s decision in cases of dispute between countries is not predictable and after the final judgment, there is a legal responsibility by both countries to implement and enforce the ruling.

 

Based on the cases shown in table 1 below, the entire process with take about 5 years from the moment the application for instituting proceedings is submitted until a final judgment is rendered.

 

Here are 3 recent ICJ cases that may guide our strategies, submissions and timing.

Case and issues involved Considerations Decisions of the Court
Government of Guyana instituted proceedings against Venezuela with regard to a dispute concerning the legal validity and binding effect of the Award regarding the boundary between the Colony of British Guiana and Venezuela of 3 Oct 1899.

29/3/2018 Guyana submitted application instituting proceedings

The ICJ, in response, fixed time-limits for filing of those pleadings:

19/11/2018 Memorial of Guyana

18/3/2019 Counter-Memorial of Venezuela

Venezuela has stated that there is no basis for the jurisdiction of the Court” and that Venezuela will not participate in the proceedings.

However in response, Guyana reiterated that its Government wished to proceed with the case.

ICJ to resolve firstly question of the Court’s jurisdiction, before any proceedings on the merits of the boundary dispute.
On 24 July 2003, Malaysia and Singapore jointly requested the Court to “determine whether sovereignty over: (a) Pedra Branca/Pulau Batu Puteh; (b) Middle Rocks; and (c) South Ledge belongs to Malaysia or Singapore”. Both agreed in advance “to accept the Judgment of the Court, as final and binding upon them.”

On 25 March 2004, both parties submitted Memorials to justify their side of the dispute:

–  Memorial of Malaysia 328 pages + annexes

–  Memorial of Singapore 100 pages + annexes

 On 25 Feb 2005, both parties submit:

– Counter Memorial of Malaysia 583 p. + annexes

– Counter Memorial of Singapore 262 p. + annexes + maps

On 25/11/2005, both submit:

– Reply of Malaysia 440 p + appendices

– Reply of Singapore  283 pages + append. + annexes

 6-23/11/2007: Oral proceedings

23/05/2008: ICJ delivers final judgment

The ICJ concluded that, when the dispute crystallized (1980), title had passed to Singapore, as attested to by the conduct of the Parties, in particular certain acts performed by Singapore à titre de souverain and the failure of Malaysia to react to the conduct of Singapore). As for Middle Rocks, a maritime feature consisting of several rocks permanently above water, the Court observed that the particular circumstances which had led it to find that sovereignty over Pedra Branca/Pulau Batu Puteh rested with Singapore clearly did not apply to Middle Rocks. The Court consequently awarded sovereignty over Pedra Branca/Pulau Batu Puteh to Singapore.

 

ICJ found that Malaysia, as the successor to the Sultan of Johor, should be considered to have retained original title to Middle Rocks.

 
Cameroon filed application instituting proceedings against Nigeria in respect of a dispute relating to the question of sovereignty over the Bakassi Peninsula, and to determine the course of the maritime boundary between the two States beyond the line fixed in 1975. Cameroon stated that the delimitation of the maritime boundary has remained a partial one and [that], despite many attempts to complete it, the two parties have been unable to do so.

29/3/94 Application submitted by Cameroon

16/3/95 Memorial of Cameroon: its case, arguments & documents.

18/12/95 Preliminary objections of Nigeria

1/06/1994 to 20/2/1998: 11 other documentssubmitted to Court

1/06/1994 to 2/02/1998 Eight orders from ICJ

18/2/96 to 4/7/2001 Counter-replies, requests  and letters from countries:  5 from Cameroon, 6 from Nigeria & 5 Equatorial Guinea (on maritime issue)

3 to 8 March 1996 Oral Proceedings

2 to 11 March 1998  Oral Proceedings

11/06/1998 Final judgment of the Court

Cameroon contends Anglo-German Agreement of 11/03/1913 fixed the course of the boundary in Bakassi Peninsula, which became boundary when Cameroon & Nigeria got independence. For its part, Nigeria argues generally that title lay in 1913 with the Kings and Chiefs of Old Calabar, and was retained by them until the territory passed to Niigeria at independence. Britain was therefore unable to pass title to Bakassi because it had no title to pass. Nigeria further claims that that Agreement is defective on the grounds that it is contrary to the Preamble to the General Act of the Conference of Berlin of 26/02/ 1885. ICJ concluded that the boundary between Cameroon and Nigeria in Bakassi is delimited by Articles XVIII to XX of the Anglo-Germari Agreement of 11/03/ 191 3, and that sovereignty over the peninsula lies with Cameroon. By 14 votes to two, Court decides that boundary between Cameroon and Nigeria in Lake Chad area is delimited by Thomson-Marchand Declaration of 1929.

Source: ICJ Website   “https://www.icj-cij.org/en/court” .

 

Tentative Conclusions: Given all our social, economic and governance problems in Belize, it would be wise to postpone the whole ICJ process. Taking into account the above analyses, I can understand why the YES vote should be preferred and also why the NO vote has a justifiable cause, simply stated because: a) we are not ready, b) the opportunity cost would be extremely high for us to prepare for and participate in the ICJ proceedings, c) the tangible (maybe intangible) benefits, if we win, are negligible at best, and d) there is a probability, though low, we could lose something at the ICJ.  At least these issues/questions should be addressed before the people agree to a YES vote.

 

There is no reason to fear the ICJ. However, the entire process of fighting a case in The Hague will be time-consuming and expensive, much more costly and challenging than any case the GoB has ever undertaken. But GoB is absolutely confident and positive about winning and resolving this unfounded claim once and for all. What we know for sure is that both Governments want to win, and both will/should do all in their power to be triumphant, otherwise why go?

 

On the side of Belize, why take the risk of going to the ICJ if we are not sure our leaders and economic capability are really fit for this enormous undertaking? It could be wise for us to wait on better times. In time, there is hope that the leadership and the economy of Belize will improve, there is hope that Guatemala will be better governed and focused on bilateral cooperation and development, and there is hope that SICA and our Central American networks will produce positive results to the level that the Guatemalan claim could become a non-issue, an irrelevant point in our bilateral relations.

 

In summary, the SWOT analysis points to 5 major factors of risk and und uncertainty for proceeding to a YES vote:

 

  • Lack of knowledge on the exact land claims and the “legal”and any other justifications of Guatemala.
  • Levels of integrity, trust-worthiness and transparency of GoB as shown by lack of confidence in recent policy decisions, e.g. signing the Compromis, being “soft”on the Sarstoon issue, and committing to a bias YES vote campaign from the start.
  • Ability and resources of Belize (and who would help Belize) to mount a winning legal team, strategy and effort at the ICJ.
  • Probability of Belize losing at the ICJ and having a game plan to cope with the fallout for affected Belizeans.
  • Credibility, ability and interest of Guatemala to implement an ICJ judgment in the case of victory for Belize.

 

Addressing these issues to the satisfaction of the Belizean electorate would definitely strengthen the case for the YES vote option.

[1] Marcelino Avila, PhD, International Consultant

 

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