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The 1859 Treaty does not give title to Belize 8867

Posted: Sunday, March 10, 2019. 11:18 am CST.

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

By Hallett Moody

Letter to the Editor:

I write in reference to an article in the Amandala Newspaper of 24 th January 2019 entitled “The 1859 Treaty does not give title to Belize 8867” by Mr Lindsay Belisle. Whereas it is with great reluctance that I pen this article for various reasons; I realize that Belizeans are at a historic crossroad, and deserve the facts and honest opinions, not half-truths and ill-conceived arguments! So, here goes!

In my opinion, the 1859 Treaty between Guatemala and Great Britain (Belize) is a boundary treaty and therefore only describes the Guatemala -British Honduras (Belize) boundary- nothing else. The Referendum Unit has always said that this treaty along with other documents, international laws and customs, the right to self-determination, etc. gives us good title to Belize -all 8,867 square miles of its mainland, islands, and territorial seas. The Unit has also said Guatemala would have to justify its claim to Belize based on law, according to the ICJ’s Article 38 (1). Also, Mr Belisle has not presented the basis for extending Latitude 17 49’ N in an easterly direction from its intersection with “Garbutt’s Falls meridian”. Furthermore, it was common knowledge among the Guatemalans, Mexicans, (more so the British) that the northern boundary of Belize extended to the Rio Hondo-Blue Creek area. Belize was in effective occupation of all those areas between the Rio Hondo to the Sarstoon River prior to and at the time of the 1859 Treaty! Nevertheless, legal experts have concluded that the 1859 Treaty does give Belize a good title to the whole of its territory (mainland, islands, and seas).

If you take the time out to look at most of the treaties made in the 17 th and 18 th centuries, you will notice that they are vaguely worded. In relation to the ones concerning Great Britain (Belize) even though they gave the British limited rights over the area, now called Belize; we see the progressive occupation of Belize by the British from the Belize River (then called The River Wallis) northwards to the Hondo River, and then southwards to the Sarstoon River. Most noteworthy of the treaties are the Treaty of Paris 1763 and the Treaty of Versailles 1783. I will now make a very brief account of these two (2) treaties:

Firstly, in the 1763 treaty of Paris Spain exerted sovereignty over the area but granted to Great Britain the right to cut logwood in the Bay of Honduras. Note this area was not defined.

Secondly, in the 1783 Treaty of Versailles Spain maintained its sovereignty over Belize with the rights to inspect the settlement. Great Britain got the rights to cut logwood in that area from the Rio Hondo to the Belize River.
However, the British Settlers in British Honduras (Belize) agreed to none of this and continued occupying the territory. The Spaniards made several attempts to dislodged them. Spain’s last attempt was at the Battle of St George’s Cay of 1798 in which she failed miserably. The British settlers gained de facto control over British Honduras. And, they continued to expand their occupation of the area. Hence, by 1805 they considered their southern border to end at the Sarstoon River. Note this was well before
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Guatemala became an independent state in 1821! Hence, we had/have effective possession of Belize for more than two centuries!
As I understand it, a treaty and in particular a border treaty addresses certain things during the boundary making process. These include the following:

(1) Definition- the formal agreement between the parties concerned where a boundary should be.
Note Article1 of the 1859 Treaty does this- it defines the Guatemala -Belize boundary.
(2) Delimitation- the plotting of the definition on a map(s).

Note Articles 2 & 4 of the 1859 Treaty fulfill this. Article 2 and more particularly the Treaty Map of 1861 accomplished this. Article 4 required joint declaration to be made accompanied with a map or maps. These things were also done.

(3) Demarcation- the placing of physical markers on the earth to show a boundary’s precise location.

Note Article 2 of the 1859 Treaty provided for the appointment of Commissioners for the purpose of designating and marking out the boundary. These were accomplished by the Commissioners and recorded in the 1931 Exchange of Notes at Enclosures 1 and 2.

(4) Administration- the establishment of processes between the parties to maintain the boundary.

Unfortunately, this was not adequately addressed in the 1859 Treaty. It was hoped that the concrete monuments (markers) would in themselves serve “as a protection against future trespass”.

Mr Belisle stated in his article of the 26 th January 2019 that the main significance of the date – 1 st January 1850- in the 1859 Treaty was because the British feared that the United States would not recognize the said Treaty. As I see it, Britain wanted it to be known that the boundary existed from the Hondo to the Sarstoon before 1859. Also, for all intent and purposes, Belize was exempted from the Clayton-Bulwer Treaty of 1850.
“The treaty was signed on April 19, 1850, and was ratified by both governments, but before the exchange of ratifications the British Prime Minister Lord Palmerston, on June 8, directed Bulwer to make a “declaration” that the British government did not understand the treaty “as applying to Her Majesty’s settlement at Honduras, or its dependencies.” Clayton made a counter-declaration which recited that the United States did not regard the treaty as applying to “the British settlement in Honduras commonly
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called British-Honduras. .. nor the small islands in the neighborhood of that settlement which may be known as its dependencies” Emphasis mine. https://en.wikipedia.org/wiki/Clayton–Bulwer_Treaty. Again, this is was the view of Guatemala also, re: a letter from the Guatemalan Minister of Foreign Affairs to the United States Secretary of State in 1936, where he admitted that Belize was exempted from the Clayton-Bulwer Treaty of 1850.The letter’s relevant portion is as follows: “—Unfortunately, the protection of that treaty (the Clayton- Bulwer Treaty) did not succeed in saving Guatemala from the occupation by force which England maintained in the territory of Belize, because the Senate of the United States, upon the request of Great Britain, ratified the Clayton-Bulwer Treaty with the exception of— excluded the region of Belize”. (Emphasis mine).
Foreign Relations of the United States Diplomatic Papers 1937, The American Republics, Volume V – 71444A15/20

Mr Belisle went on to say that “–the Mexican frontier as mentioned in Article 1 of the 1859 Treaty is at Latitude 17 49’ N (at Aguas Turbias)” I do agree with this sweeping statement, but only to the extent that it (Lat .17 49’ N) is where the Belize-Guatemala boundary line ends!! This is where “Garbutt’s Falls Meridian” intersects with Latitude 17 49’ N becoming the Tri-Point Marker (now called Aquas Turbias) where Belize share border with Guatemala and Mexico. See sketch map # 1. Furthermore, no way could any “Colonial Declaration (Spain’s) in 1787 establish the Mexico-Guatemala boundary at Latitude 1749’ N; such was done by the 1882 Treaty between Guatemala and Mexico- subsequent to them becoming independent states in 1821 and thereafter. It must be emphasized that Spain did not recognize the United Provinces of Central America, which included Guatemala until 1839, and did not recognize Guatemala in particular until 1863- four (4) years after the boundary of Guatemala and Belize was defined in the 1859 Treaty! And that lead to another point -so how could Guatemala inherit any territory (Belize in this instance) from Spain? For, as I understand it, International law does not recognize the survival of a right to sovereignty based solely on historic title.

But, back to this Latitude 17 49’ N, Mr. Belisle also stated “—we need to produceLatitude 17 49’ N –in an easterly direction -–This line is the northern limit/boundary of the territory–“. Incredible!! Where is the proof that it formed Belize’s northern boundary with Mexico? Where is the basis of this claim? It is to be noted that the Latitude 17 49‘N is mentioned in the Guatemala- Mexico Treaty of 1882, in respect to Guatemala’s northern boundary with Mexico. Generally speaking, the portion of the boundary between Guatemala and Mexico of note, is that portion of the boundary line that runs northwards from a point on the Rio San Pedro (Guatemala) to its intersection with Latitude 17 49’ N; and then continues along Latitude 17 49’ N eastwards indefinitely! See sketch map # 2 Hence, this line (Latitude 17 49’ N) as Mr Belisle projects it would pass “– south of Maskall (Belize) and south of Ambergris Cay (Belize)”; there by being Belize’s northern boundary with Mexico. The 1882 Guatemala- Mexico Treaty at Article
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111 in the last three (3) sentences says “—– the parallel of seventeen degrees fortynine minutes (17049”) running indefinitely east wards from its intersection with the aforesaid meridian “(Emphasis mine) To my mind the ones being disingenuous are the Guatemalans with the Mexicans as accomplices. Prior to this Treaty of 1882, Guatemala had already agreed to and signed the 1859 Treaty with British Honduras (Belize), and therefore knew that on their eastern border was Belize; and they also knew that Belize’s northern boundary with Mexico was at the Rio Hondo- Blue Creek frontier! Latitude 17 49’ N where it intersects the “Garbutt’s Falls Meridian “at Aquas Turbias became the Tri-Point Marker, where Belize share border with Guatemala and Mexico. It is not Belize’s northern boundary with Mexico! Belize’s northern boundary with Mexico was firmly stated and laid out in the Mexico-Belize Treaty of 1897. This 1897 Treaty clearly says that the said boundary is as follows: “Beginning at Boca Bacalar Chica — (to ) the River Hondo, which it follows —- continuing up Blue Creek until the said Creek crosses the Meridian of Garbutt’s Falls at a point due north of the point where the boundary lines of Mexico, Guatemala, and British Honduras (Belize) intersect , and from that point it runs due south to Latitude 17 49 ‘ N, the boundary -line between the republics of Mexico and Guatemala –-” (Emphasis Mine ) Hence, all the author’s’ scientific determinations etc. are brought into disesteem when one examine the 1897 Treaty with Mexico.

So, the author of the article did not “accurately establish the location of the Mexican frontier in accordance with the 1859 Treaty”. Thank goodness the British included that phrase about the boundary line running “—from Garbutt’s Falls due north until it strikes the Mexican frontier”, in the 1859 Treaty. This phase although seeming vague is in keeping with the general wording of Treaties at that time. It could not be more precise because the 1859 Treaty was not a treaty with Mexico; also, it is still much better than the phase in the Guatemala – Mexico Treaty of 1897, which says” —latitude 17 49’ N running eastward indefinitely.” However, the author of the said article is right when he said that “—no northern boundary of Belize is indicated on the 1861 treaty map.” Whereas, I can’t speak to the British motives at the time; but in my view, that was so because the1859 Treaty Map was between Guatemala and Belize only!

Furthermore, the line of boundary with Guatemala, according to the 1859 Treaty, commencing from the mouth of the Sarstoon River and running westward to the Gracias a Dios Falls marker then northwards to the Garbutt’s Falls marker, and then continue to the Mexican frontier, roughly forms the letter” L” . Hence, as I see it, the southern portion or base of the “L” is along the middle channel of the Sarstoon River; and the perpendicular portion of the ”L” is a line from Gracias a Dios Falls to Garbutt’s Falls, and then to” the Mexican frontier” (the Tri-point at Aquas Turbias) . Therefore, we can now better determine the territories as described in Article 1 of the1859 Treaty. See map # 3
Firstly, the territory that belongs to Her Britannic Majesty (Belize) is generally all that area north of the base of the” L” ,and east of the perpendicular portion of the “ L” .
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Secondly, the territory that belongs to the Republic of Guatemala is generally all that area south of the base of the” L” , and west of the perpendicular portion of the” L.” OR, to put it another way 1st the territory that belongs to Belize is generally all that area inside the” L” . And, 2nd the territory that belongs to Guatemala is generally all that area outside of the “ L”.

To my mind, using the territory described as Belize in the 1859 Treaty, along with that portion described in the Mexico-Belize Treaty of 1882, and a map detailing Belize’s coastline; such a compilation would produce a total mainland area of 8,867 square miles. Furthermore, be mindful that the territory of Belize also includes the islands and territorial seas. So, all the pronouncement and calculations of all that area south of a “line” from Aquas Turbias running eastwards through Maskall Village to Ambergris Cay, and concluding that Belize only has 6,700 square miles was just an exercise in futility!!

Mr Belisle mentioned that in his examination of the 1861 Treaty map he found that “a glaring omission is that the stone pyramids erected at the terminal points of Gracias a Dios and Garbutt’s Falls are not indicated on the 1861 treaty map”. Ok, but the coordinates for those terminal points are there! Clearly, Mr Belisle ignored the 1931 Exchange of Notes between Great Britain and Guatemala!! Therein, at the third paragraph it is stated that the Joint Commissioners were appointed in 1860 and marked “in situ” the position of the terminal points- namely Garbutt’s Falls and Gracias a Dios Falls. This same 1931Treaty went on to say that the Commissioners inspected the terminal points—“They inspected the concrete monument – at Gracias a Dios”, and then, “—inspected the piles of stones –at Garbutt’s Fall, erected by the joint commissioners in 1861”. They accepted “these markers as indicating the exact position of the two terminal points”; and, what information did they use to accomplish that- the 1859 Treaty and 1861 Treaty Map!! The last act of the said Joint Commissioners was to replace the marks with new concrete monuments. These are existing field evidences!
It is to be noted that the experts have found that boundary treaties and treaties maps were not precise in the use of words and exact in describing the territory(ies). Also, like everything else, today’s knowledge of surveying, cartography, etc is much more superior than what was known in say the 17 th and 18 th centuries. It has been found that the maps drawn in the 17 th ,18 th,, and 19 th centuries were often drawn at negotiation tables. Hence, demarcation remained deficient and rudimentary. When making references to older maps, the experts say, one should be particularly aware of the following:

1) Magnetic Declination—the angle between magnetic north (the north point on a compass) and true north will have changed over the years. Therefore, the accuracy of the maps will depend on the care taken with the astronomical observation, and the skill of the observer.

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2) Determining longitudes- be cognizant if the longitudes were based on the Greenwich Observatory (England) or something else like the Paris Observatory (France). Hence, when it comes to using historic maps to demarcate points on the earth one need to make a carefull examination of whether the values of the latitude and longitude positions based on astronomical observations are consistent with values based on a national or global datum.

It goes without saying, that today’s surveying instruments and data available are much more accurate and precise than those used in the 1859-1931 period. Hence, when the 1861 Treaty map was drawn, that was the age before computers and software programs for surveying. Also, today’s experts tend to use things like global datum (in particular WGS 84) now being used for GPS. And, maps are being complied in digital format using GIS software. The above is demonstrated by Mr Louis Lindo’s recordings in the book “History of the sovereignty of Belize by Fred Hunter, Appendix VII- On the border line by Louis Lindo. Mr Lindo said “—that the surveyors (the Belize team) who worked on the border (Guatemala-Belize) demarcation took four years to complete the triangulation phase “(a method of computing the direction from Garbutt’s Falls to Gracias a Dios and vice versa). (Emphasis mine) Today, such would perhaps take like four days instead.

In the article, Mr Belisle said that”- the Latitude and Longitude coordinates as observed at Gracias a Dios Falls and Garbutt’s Falls —-would place them both west into Guatemala territory”. So, what? As I see it, the short reply is that you are using 20th century technology expecting 19 th century results! The facts are that the joint commissioners first agreed as to where the markers should go, then they jointly determined the coordinates, and placed the markers jointly on the earth. In my view, the 1861 Treaty map was prepared close to the agreement by both Governments (Guatemala and Great Britain) working through their plenipotentiaries. But most important was the acceptance of the map by the two parties then, despite any errors that maybe found now! Another important thing is that the coordinates for the concrete monuments (markers) were agreed to by both Guatemala and Belize teams of Commissioners, and who also determined and agreed as to the placement of those markers on the earth. There maybe questions as to the exact location of the Guatemala-Belize boundary; but the joint acceptance of the markers on the earth is more important. Also, note that these concrete monuments (of 1931) are existing today! This conclusion is supported by the United Nations -International Arbitral Awards-case concerning boundary markers in Taba between Egypt and Israel 1986. The conclusion of that case says:

“If a boundary line is once demarcated jointly by the parties concerned, the demarcation is considered as an authentic interpretation of the boundary agreement even if deviations may have occurred or if the there are some inconsistencies with the maps” (Emphasis mine)
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The said Tribunal referred to the ICJ judgement in the Temple Case (1962 ICJ reports 34) and Munch (1977) and Ress (1985)
In respect to the Order of Precedence of Evidences, leading United Nations experts say that it ought to be as follows: 1st -Official jointly signed precise boundary documents 2nd-Exisiting original pillars 3rd- List of coordinates of boundary pillars

4 th- Appearance of the boundary lines on maps
5 th -Graphic description
6 th – Verbal description
If the contention is that the 1859 Treaty and 1861 Treaty Map are not precise and hence do not fall under the 1st (first) Precedence above; then we can go to the 2 nd (second) Order of Precedence i.e. Existing original boundary pillars”. These concrete monuments (markers) positions were agreed to jointly and put on the earth by both Guatemalan and Belizean Commissioners. Furthermore, these original boundary pillars still exist today, and can be visited by anyone. Hence, as I understand it, when two parties establish a frontier between them, one of the primary objectives is to achieve stability and finality.

Therefore, it must be reiterated that the 1859 Treaty does two things:
First- it defines the boundary with Guatemala,
Second- it made provisions for the demarcation of the boundary between Guatemala and Belize. Also, the 1861 Treaty Map is the jointly agreed to and ratified map that is the final product of the process of delimitation and demarcation of the boundary between Guatemala and Belize.

In conclusion, in my view, the 1859 Treaty between Guatemala and Belize is a boundary treaty, and adequately defines the boundary between the two countries. The said Treaty made provisions for the boundary to be demarcated. Also, the 1861 Treaty Map evidently support the boundary line between the two countries.
The boundary was jointly demarcated by Great Britain and Guatemala, hence the jointly accepted and ratified 1861 Treaty Map is an authentic interpretation of the boundary agreement; even if deviations may have occurred, or if there are some inconsistencies. Furthermore, the concrete monuments that were jointly laid down on the earth are still existing today! These are field evidences.
These existing markers accompanied by the 1859 Treaty, the 1861 Treaty Map, and the 1931 Exchange of Notes are significant. They have been recognized by both countries
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for a long period of time, they point to a situation de facto! Yes, Mr Belisle is right when he says that “–the1861 Treaty Map is—- deficient, as it is not a closed polygon—that encompasses the 8,867 square miles we call Belize”-; if the objective thereof was to calculate the total land area of Belize! Be mindful of the fact, that the territory of Belize comprises all the 8,867 square miles of its mainland, the islands, and territorial seas. Hence, the said 1859 Treaty Map main importance is to show the jointly defined and demarcated boundary between Guatemala and Belize- not one to show the total land area of Belize.

Nevertheless, it has been stated categorically in the legal opinion Belize obtained in 2001, that “–Belize possess a good title to the whole of its territory, including the islands–within the limits set by the Convention of 30 th April 1859 between Britain and Guatemala relative to the boundary of British Honduras” ( Emphasis mine) Who am I to dispute that!

I will now end with another quotation:
“Going to the ICJ is our best and only chance to make Guatemala recognize and respect our borders once and for all. Let us not lose that once in a lifetime opportunity thoughtlessly”. Assad Shoman- Pocket Guide to the referendum on the ICJ- 2013

REFERENCES:
1) The Baymen of Belize -researched and published by Steven Fairweather-1992

2) A History of Belize -Nation in the making- published by Cubola Production Revised edition1997

3) Delimitation and Demarcation of Boundaries in Africa-Commission of the African Department of Peace and Security-2014 4) Legal Opinion on Guatemala’s Territorial Claim to Belize by Sir Elihu Lauterpacht, Judge Stephen Schwebel, Professor Shabtai Rosenne, and Professor Francisio Orrego Viscuna- 2001

5) Pocket Guide to the Referendum on the ICJ- Assad Shoman -2013

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MAP #1 -SHOWING BOUNDARY LINE BETWEEN BELIZE AND GUATEMALA

(Annotated from original downloaded from the internet.)

Notes: 1) area highlighted blue on the sketch map = GARUTT’S FALLS MERIDIAN
2) area highlighted blue is LATITUDE 17 49’ N
3) area highlighted green is the Tri -Point at AGUAS TURBIAS

 

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