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No. Guatemala has not taken the Sarstoon

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Posted: Thursday, April 4, 2019. 3:33 pm CST.

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

By Reyhan Rosado: Over the last few months, many people have gotten the idea that Guatemala has taken the Sarstoon stuck in their heads. Some people genuinely don’t know better, and that’s fine. With so things being said, sometimes it can be hard to tell fact from fiction. Nevertheless, some people spread this idea maliciously. They do it to fearmonger in order to back up a political agenda.

This idea takes many forms. From “Guatemala is occupying the Sarstoon”, to “Guatemala has taken the Sarstoon”, or “Belize has given up the Sarstoon”. Whichever way you put it, it’s wrong. This article will show why.

Myths

1) Guatemala is occupying our part of the Sarstoon

Some people say that because Guatemala is trying to bully us in the Sarstoon, they are occupying it and therefore the Court would give them title to it. To explain why this is misleading, we’ll have to go over what exactly effective occupation is.

What is effective occupation?

According to Malcolm Shaw, “Occupation is a method of acquiring territory which belongs to no one (terra nullius) and which may be acquired by a State in certain situations. The occupation must be by a State and not by private individuals, it must be effective and it must be intended as a claim of sovereignty.” (Shaw, 2017, p. 372)

In short, occupation is a method of acquiring territory and only applies when the land belongs to no one. From Shaw’s definition, it’s obvious that Guatemala can’t gain title to the Sarstoon based on occupation.

The 1859 Treaty puts the Sarstoon Island and half the river in Belizean territory. The BDF have two bases in the area, regularly patrol the river and even escort their civilians for protection in the area.  If the area didn’t belong to Belize, we wouldn’t have been able to set up a Forward Operating Base in 2016 or maintained the one at Cadenas.

The land, based on international law, clearly belongs to Belize, which means Guatemala wouldn’t be able to gain title via occupation. This is supported by Professor Vacciane who writes “Occupation would not, therefore, constitute a legitimate mode of acquiring title by Guatemala at this time.” (Vasciannie, 2019, p. 36)

2) Guatemala has taken over the Sarstoon

When people say that Guatemala has taken over the Sarstoon, they’re more than likely referring to gaining title via prescription.

What is acquisitive prescription?

In Namibia/Botswana (1999), the Court noted in paragraph 94 of its judgement that:

“According to Namibia, four conditions must be fulfilled to enable possession by a State to mature into a prescriptive title:

‘1. The possession of the . . . state must be exercised Ù titre de souverain.

  1. The possession must be peaceful and uninterrupted.
  2. The possession must be public.
  3. The possession must endure for a certain length of time.’” (CASE CONCERNING KASIKILII/SEDUDU ISLAND, 1999)

 While the Court made no definitive statement on the issue, Shaw notes that the Court didn’t contradict this. Shaw notes that:

“… acquiescence in the case of prescription, whether or expressed or implied from all the relevant circumstances, is essential” (Shaw, 2017, p. 375)

Therefore, the question we have to answer is:

Has Belize acquiesced?

The answer to that question is No:

Guatemala only recently started to try to pretend that it owns the Sarstoon and three years of attempted bullying cannot be enough to constitute prescription. If Belize had given up the Sarstoon and acquiesced, how would we be able to set up a base on the river in 2016? How would we be able to have started to protect our civilians when they traverse the river in 2017? How would we still be maintaining the base at Cadenas?

Interestingly, Shaw also notes that:

“Prescription relies on the implied consent of the former sovereign to the new state of affairs. This means that protest by the dispossessed sovereign may completely block any prescriptive claim.” (Shaw, 2017, p. 375)

In light of this, even if you ignore all of the action on the ground, Belize consistently protests Guatemala’s aggression. That alone is enough to block any prescriptive title according to Shaw.

If you don’t trust my analysis, trust the analysis of an ex ICJ judge:

“Guatemala has never occupied the Sarstoon without challenge both physically by the Belize Defense Force and Coast Guard and diplomatically by constant protest notes from the Ministry of Foreign Affairs. These are enough to preserve Belize’s sovereignty over the part of the Sarstoon River allocated to it by the 1859 Treaty.” (Schwebel, 2019, p. 17)

3) Guatemala has invaded the Sarstoon

Some people say that Guatemala has invaded the Sarstoon, therefore they’ve gained title. Those people are wrong. But nevertheless, let’s look at what international law says about the use of force. On top of that, let’s look whether or not the ICJ would be able to give Guatemala our side of the Sarstoon based on their aggression.

What does international law say about the use of force?

The Kellog Briand Pact of 1928 was arguably one of the first times the use of force was condemned as an instrument of national policy. Article 1 of the pact states:

“The High Contracting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy in their relations with one another.” (Kellogg-Briand Pact 1928 , n.d.)

This is reaffirmed by the Article 2 (4) of the UN Charter of 1945 which states:

“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” (UN, n.d.)

Of note, UN Security Council Resolution 242 emphasized the “inadmissibility of the acquisition of territory by war”. (UN, 1967)

This is also supported by the 1970 Declaration of Principles of International Law which was adopted by the UN General Assembly which states:

“No territorial acquisition resulting from the threat or use of force shall be recognized as legal.” (UN)

Could the Court give Guatemala our side of the Sarstoon based on Aggression?

Based on international law, in particular the 1970 Declaration, the obvious answer is no.

International law clearly says that the use of force is illegal. Therefore, it’s inconceivable that the ICJ, a court established to protect and promote international law, could give Guatemala ANY territory based on illegally aggression.

Conclusion

To those who say that Guatemala has taken the Sarstoon: you’re wrong.

Vascianne supports this conclusion in his recent BAR opinion, as does an ex ICJ President. In fact, Judge Schwebel states that: “Nothing occurring after the signing of the Special Agreement may be used to favour Guatemala against Belize in a Court of law.” (Schwebel, 2019, p. 17)

Nevertheless, whether we like it or not, the truth is that we do have a problem in the Sarstoon. The question then is:

What do we do now?

Article 41 (1) of the ICJ Statute states:

“1. The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party.”

What is referred to in international law as provisional measures, is known as injunctions in domestic courts.  These are like stop orders designed to ensure that no harm is done while the Court settles a dispute.

If Belizeans vote YES on April 10th, we can ask the Court for provisional measures. The Court will then be able to tell Guatemala to back off from the Sarstoon while the Court proceedings take place. This is supported by ex ICJ President Schwebel who writes:

“if the referendum approves submission of the dispute to the International Court of Justice, it would be open to Belize to apply to the Court for its issuance of binding provisional measures to direct Guatemala to cease and desist from its actions on the Sarstoon and to require Guatemala to respect the terms of the 1859 Treaty.” (Schwebel, 2019)

Why the ICJ?

Many people will disagree with my analysis and say that we should go to the UN Security Council. While this is a possibility, it’s not final solution. Even if we take the matter to the UNSC, it would more than likely tell us to go to the ICJ. Article 36 (3) of the UN Charter states:

“In making recommendations under this Article the Security Council should also take into consideration that legal disputes should as a general rule be referred by the parties to the International Court of Justice in accordance with the provisions of the Statute of the Court.” (UN, n.d.)

The UNSC option also wouldn’t get rid of the fundamental problem: that Guatemala’s constitution says they have rights over Belize.

Many people also seem to take the view that we should just ignore the problem along the Sarstoon. Yet, ignoring a problem doesn’t make it go away.

Many people take the view that we should forget the ICJ and simply add more soldiers on the ground. “Why fight for something we already own?”, they say. These people seem forget that without struggle we wouldn’t have anything that we know of as Belize today. Without struggle we wouldn’t have fought off the Spanish on September 10th, 1798. Without struggle we wouldn’t have become independent on September 21st, 1981. And without struggle and voting Yes we won’t end Guatemala’s unfounded claim on April 10th, 2019.

In his classic International Law, Professor Malcolm Shaw writes: 

“The bringing of a matter before the United Nations or the International Court of Justice will be conclusive as to the existence of the dispute and thus the reality of protests,” (Shaw, 2017, p. 375)

So if you really have an issue with what Guatemala is doing in the Sarstoon, vote YES. If you really want to stand up to our neighboring bully, vote YES. If you want to show the world that we are confident in our title to our land, vote YES.

At the end of the day, we all have a right to vote. Whether it be yes or no, you and I have rights as Belizeans to do whatever we want. But while we may have a right to vote, we have no right to change the facts.

The facts are that Guatemala has not taken the Sarstoon. Never had, never will. The facts are that we have good title to all our land. The facts are that if we vote YES on April 10th, we will win with ALL of our territory intact.

-RRR

Bibliography

CASE CONCERNING KASIKILII/SEDUDU ISLAND (ICJ December 13, 1999).

ICJ. (n.d.). STATUTE OF THE INTERNATIONAL COURT OF JUSTICE. Retrieved from International Court of Justice: https://www.icj-cij.org/en/statute

Kellogg-Briand Pact 1928 . (n.d.). Retrieved from Yale Law School: http://avalon.law.yale.edu/20th_century/kbpact.asp

Lauterpatch, E., Schwebel, S., Shabtai, R., & Vicuna, F. O. (2001). Legal Opinion on Guatemala’s Territorial Claim to Belize .

Schwebel, S. M. (2019). ICJ President Answers Tough Questions.

Shaw, M. (2017). International Law. Cambridge University Press.

  1. (1967, November 22). UN Security Council Resolution 242 – English Text . Retrieved from The Israeli – Palestinian Conflict: https://ecf.org.il/media_items/495
  2. (n.d.). Chapter I . Retrieved from United Nations: https://www.un.org/en/sections/un-charter/chapter-i/index.html
  3. (n.d.). CHAPTER VI: PACIFIC SETTLEMENT OF DISPUTES. Retrieved from United Nations: CHAPTER VI: PACIFIC SETTLEMENT OF DISPUTES
  4. (n.d.). DECLARATION ON PRINCIPLES OF INTERNATIONAL LAW FRIENDLY RELATIONS AND CO-OPERATION AMONG STATES IN ACCORDANCE WITH THE CHARTER OF THE UNITED NATIONS . Retrieved from https://www.un.org/ruleoflaw/files/3dda1f104.pdf

Vasciannie, S. (2019). Legal Opinion The Belize/Guatemala Dispute.

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