Posted: Monday, March 18, 2019. 2:57 pm CST.
The views expressed in this article are those of the writer and not necessarily those of Breaking Belize News.
By Assad Shoman,
A column by Citizens for the Defence of Sovereignty (CDS)]
The International Court of Justice, ICJ, was established as the legal organ of the United Nations after World War II in 1945, and the UN Charter states (Art. 94): “If any party to a case fails to perform the obligations incumbent upon it under a judgement rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgement.”
Jurisdiction of the Court
There are two ways that States may accept the jurisdiction of the Court: 1) By a declaration that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court (Art. 36). 2) By notifying the Court of a special agreement (Art. 40).
Article 38 (1) declares that the Court shall apply: treaties, international customary law, the general principles of law recognized by civilized nations, and judicial decisions and the teachings of the most highly qualified publicists of the various nations.
Article 38 (2) states: “This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto”. This means that the Court need not restrict itself to the legal considerations outlined in 36 (1), but may go outside the law to reach a decision. Although academics have speculated on exactly what that means and how much scope it gives to the Court to decide outside of the law, no-one really knows, because this option has never been taken up.
Getting Guatemala to the ICJ
As early as 1936, Great Britain tried to get Guatemala to submit its territorial claim to Belize to the World Court, but Guatemala would only agree if Britain accepted that the case be heard “ex aequo et bono”. Guatemala put forth the same obstacle in 1946 and again in 1951, when Britain made a declaration before the ICJ valid for five years agreeing to submit the Guatemalan claim to the Court.
The matter came up now and again after that, but always Guatemala would refuse to go solely on legal grounds. In 1975, for example, after Belize had taken its campaign for independence to the UN, the US embassy in Guatemala reported that the Foreign Minister would be prepared to refer the Belize problem to the ICJ on the basis of law and equity although he did not think Guatemala had much chance of a decision in its favour, but “off the Record” this would be “a way out” for Guatemala (https://wikileaks.org/plusd/cables/1975GUATEM05755_b.html).
George Price, when confronted with the idea of going to the ICJ after we had carefully planned and set into motion our “internationalization” for independence, refused to be pulled into what would have become a quagmire dragging the question out for years and denying Belize’s early independence. He saw victory for our strategy of attaining independence, kept his eye on the prize, and rejected overtures by the USA and Britain to submit the claim to the ICJ. That is just a trick to delay independence, he told them; after independence we can consider that option if all else fails.
All else did fail, and in 1983 Price’s delegate to talks with Guatemala, Said Musa, told the British a week before scheduled talks that he would seek to establish whether Guatemala would agree to submit the dispute to the ICJ, because he “thought Belize need have no fear of an ICJ ruling on a purely juridical basis; reference ex aequo et bono would need the most careful thought”. (British HC to Washington telegram No 1 of 20 January 1983)
The Guatemalans, however, remained committed to only going to the ICJ if extra-legal matters could be taken into account, and Belize, like Britain before it, continued to refuse. Although they wrote a letter in 1999 claiming that the dispute was eminently juridical and that it should be submitted to an international juridical body, they did not abandon their “ex aqueo et bono” stance.
After Guatemala broke its agreement to put the Facilitators’ Proposals to referendum, it refused to submit the matter to the ICJ as had been agreed and insisted on further negotiations. Belize realized that Guatemala’s game plan was to continue endless negotiations while planning for creeping occupation, and decided that the only way to overcome this was to go to the ICJ.
Under instructions from Prime Minister Said Musa, and in close collaboration with Leader of the Opposition Dean Barrow, I led the team of negotiators and lobbyists that got Guatemala to sign the 2005 Agreement that mandated the SG of the OAS, if he saw there was no progress in the negotiations, to recommend that the parties submit the dispute to the ICJ. He did so in November 2007. The PUP government and the UDP Opposition accepted the recommendation and began preparations to go to the ICJ, including the engagement of the renowned international law firm, Freshfields Bruckhaus Deringer. Soon after there were elections, and the new UDP government, with the cooperation of the same team that had worked with the PUP government, negotiated the Special Agreement in 2008 to submit the case to the ICJ.
Going to the ICJ was a Belizean initiative carried out through the cooperation of the PUP (in government then in opposition) and the UDP (in opposition then in government).
When Guatemala submitted its first draft of the Special Agreement, it was still pushing the idea that the parties should agree to use Article 38 (2), or ex aequo et bono. Belize insisted it would never go to Court under that clause, and Guatemala finally gave in, after 72 years.
And that is how Belize managed to get Guatemala to submit its bogus claim to the final and definitive determination of the ICJ strictly on the basis of law.
Who’s Afraid of the ICJ?
Certainly not Belize! Belize knows it has nothing to fear. It knows that under Article 38 (1) the Court has no option but to consider the treaties and the other principles and that will inevitably lead it to rule in favour of Belize’s borders. It is not possible for it to apply the Treaty but then say that it will slice off a piece of the treaty territory and give that to Guatemala.
Belize can confidently take the dispute to the Hague. No fear. No hesitation. No doubt. Victory is Coming at the ICJ.
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