Features — 11 June 2016 — by Sidley Leslie
Of Guatemala and Belize

Much has been written on the Belize-Guatemala territorial dispute. We have received a 2001 legal opinion from some very highly regarded lawyers that the Guatemalan claim of ownership to all or part of Belize would be considered untenable on strictly legal grounds if taken to the ICJ. The Governments of both countries have signed an agreement of commitment to do just that. Recently even the Opposition PUP has advocated this as the best option for the resolution of this dispute.

Despite the legal opinion of the experts I believe this course of action if incorrectly done could more than likely result in the loss to Guatemala of up to some 53% of our territory, i.e. from Sibun to the Sarstoon River over which Guatemala has already began to exercise its sovereignty. My reason for this opinion is that the Guatemalan claim is based on very convoluted historical and somewhat controversial legal issues which may very well include duplicity on the part of the British and hypocrisy on the part of the Americans that may likely result in a decision favorable to Guatemala whose position is, in my opinion, most closely aligned with the profit-making agendas of the global power brokers who are more than capable of dictating what decision the judges should make.

If Belize must go to the ICJ as I believe we are being coerced to do by internal fifth columnists amongst our leaders and external entities in high places with self-serving interests and agendas inimical to the preservation of our continued existence as an Independent state with its territory intact, then we must be very wary of exactly what we initially ask the ICJ to decide upon.

Apart from allowing ourselves to be blindly and inexorably herded to the ICJ’s chopping block our second greatest mistake would be to ask the ICJ to rule on what portion of territory we must cede to Guatemala to satisfy its claim. Based on arguments made in the legal opinion of the eminent legal minds who were commissioned to review the validity of Guatemala’s claim our best defense would be to ask if the Boundary Treaty of 1859 between Britain and Guatemala, in which the boarders of Belize were defined and its subsequent confirmation in the 1931 Exchange of Notes when the western boarder was surveyed and marked by surveyors from both countries, is valid or not.

In 1940, Guatemala claimed that the border treaty of 1859 is void because the British failed to comply with economic assistance provisions, i.e. the infamous cart road from Guatemala City to the Atlantic coast found in Clause VII of the Treaty. Hence is derived their argument that Belize has no clearly defined boarders. The legal opinion given by the aforementioned panel strongly contradicts this assertion. This is best explained in their own words which are reproduced below.

“Assuming, arguendo and without prejudice to the positions of Britain or Guatemala regarding any alleged breach of Article VII, that Britain is in breach of Article VII, the question arises of the effect of that breach, if duly confirmed, on the continuing validity of the boundary that the 1859 Convention established and the Exchange of Notes of 1931 confirmed. The point of departure of this examination is to be found in the law of treaties. That law does not recognize any breach of a treaty as automatically leading to the termination of the treaty, and a fortiori to the nullification of a boundary established by that treaty. At most, a confirmed breach of a treaty gives to the injured party the right to call for the termination of the treaty.

It would then be the treaty that is terminated, in so far as it imposed any further executory obligations on either side (and it will be recalled that Article VII imposed obligations on both parties), and not any boundary established by that treaty. The position today is clarified by Article 60 of the 1969 Vienna Convention on the Law of Treaties. That Convention distinguishes between what it terms a ‘material’ breach of a treaty, and other breaches. A ‘material breach’ of a treaty is defined as ‘(a) a repudiation of the treaty not sanctioned by the present Convention, or (b) the violation of a provision essential to the accomplishment of the object and purpose of the treaty.’ A material breach of a bilateral treaty by one of its parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part. The question is, therefore, whether the alleged unilateral breach by Britain of Article VII is a material breach as thus defined. This can be reformulated as the question whether Article VII is a provision that is essential to the accomplishment of the object and purpose of the 1859 Convention. The object and purpose of that Convention are set out in detailed terms in its preamble, which we have mentioned in paras. 20-21 above. Given the character and content of the 1859 Convention and the circumstances in which Article VII came to be included in it, it is clear that Article VII was never conceived as being essential to the accomplishment of the purpose and object of the Convention. It was at most included, as Guatemala puts it, ‘in order to compensate us for the mutilation, when we consented that Great Britain extend the limits of Belize as far as the Sarstoon river in territory absolutely Guatemalan.’ As the representative of Guatemala stated in his speech at the 13th plenary meeting of the 36th session of the UN General Assembly, it was ‘an inducement, a compensatory clause.’ Such a clause might have been needed to procure the conclusion of the 1859 Convention. That was a question between Guatemala and Britain. But it is not and cannot be a provision essential to the accomplishment of the object and purpose of the Convention as a boundary treaty. That object and purpose was the establishment of the boundary between the two countries and was accomplished when the Convention entered into force. Since, in our opinion, the alleged non-fulfilment by Britain of Article VII is not a ‘material breach’ of the Convention, the question arises whether regarding it as a simple ‘breach’ has any relevance to the matter. We answer that question in the negative. In the words of the ICJ: ‘. . . it is only a material breach of the treaty itself, by a State party to the treaty, which entitles the other party to rely on it as a ground for termination of the treaty. The violation of other treaty rules or of rules of general international law may justify the taking of certain measures, including countermeasures, by the injured State, but it does not constitute a ground for termination under the law of treaties’.

The title of Belize to its territory is supported, in the first instance, by two treaties: the 1859 Convention and the 1931 Exchange of Notes. Both these treaties are valid and binding. The definition of the boundary in the first of these treaties establishes that the territory to the west and south of the defined boundary is Guatemalan and that the territory on the east and north of the defined boundary belongs to Belize. The identifications of the boundary pillars in the 1931 treaty inescapably indicate that the territory on the west belongs to Guatemala and that on the east belongs to Belize. The territory of Belize thus defined corresponds to the territory of Belize to- day. The 1859 Boundary Convention is a boundary treaty and not a treaty of cession of Guatemalan territory to the United Kingdom. The Guatemalan contention that the 1859 Convention has been terminated because of alleged non-fulfilment of Article VII of the Convention by the United Kingdom cannot be sustained. Even if the 1859 Convention could lawfully have been terminated by Guatemala this would not have re-established any Guatemalan claim to the territory of Belize. For one thing, at no time prior to 1859 did Guatemala have any title to the area of Belize, whether by way of succession to Spain or otherwise, which it could have ceded to Britain. So there was no Guatemalan title that could have reverted to it upon the alleged ending of the 1859 Convention. For another, even if Guatemala had had title to Belize prior to 1859, the boundary established by the Convention, and the British title to the territory of Belize that it acknowledges, acquired an independent life that would have survived regardless of the demise of the Convention.”

In view of the above arguments it seems highly unlikely, however biased they may be, that the ICJ would rule in favor of Guatemala on the non-existence of a clearly defined border between the two countries. Having confirmed the existence of a clearly defined boarder by the ICJ we could then proceed to the question of the validity of Guatemala’s claim to all or any part of an Independent Belize. Here it seems that our strongest arguments would be firstly, our continuing historic occupation of Belize beginning in 1638 long before Guatemala declared her independence from Spain in 1821, and 64 years after the Baymen’s last hostilities with Spain. Secondly, the United Nations resolutions supporting our Independence with full territorial integrity. Thirdly, their uti possidetis claim to have inherited Belize from Spain at Independence is extremely weak because Spain itself had abandoned all attempts to exercise sovereignty over Belize from the 1798 Battle of St. George’s Caye and all prior attempts to dislodge the settlers were launched from Yucatán which proves that the present day Belize territory was under Mexico’s jurisdiction and not Guatemala’s.

Nonetheless and notwithstanding the above observations I side with those who believe that going to the ICJ is a move fraught with potential peril and is therefore not the best option for Belize. Additionally and in view of Guatemala’s track record, there is no guarantee that it will abide by whatever decisions are made by the ICJ, especially if they fail to obtain the territory they desire. Also, for reasons above stated I do not see any justification to subscribe to the notion that our borders are undefined, or that Guatemala has any valid claim on our territory and even if there is a valid claim resulting from the British failure to honor their commitment made in Article 7 of the 1859 Anglo Guatemalan Convention that claim should be properly levied against the British, not an Independent Belize.

The policy of appeasement being pursued by our political directorate has already cost us some of our territorial waters under the Maritime Areas Act, for which we have received nothing in return. The Adjacency Zone and confidence-building measures advocated by the OAS and our present leaders have not effectively stemmed or even significantly lessened the tide of illegal incursions and rape of our natural resources nor has it prevented the murder of our people by illegal Guatemalan poachers. Instead these measures have only added credence to the Guatemalan assertion that our borders are undefined. Additionally, our BDF security forces have been successfully portrayed by Guatemala to viewers of the International media as a bunch of undisciplined, murderous, trigger-happy criminals with a predilection to riddle innocent children with bullets from behind.

Meanwhile Guatemalan citizens openly enjoy untrammelled use of our cayes while their fisher folk, with utter disregard and disdain for our fishery department laws, openly ply their trade including the deployment of illegal nets, in our half of the Sarstoon and other Belizean territorial waters in full view of our Coast Guard and BDF patrols who have seemingly been ordered to “lick it up”. Recently a Belizean farmer was kidnaped from his farm on the Belize side of the Adjacency Zone by the GAF and taken into Guatemala where only his wits in attesting that he was a Canadian citizen probably saved his life. And now, to add insult to injury, the Guatemalans for the first time in our history have invaded our half of the Sarstoon River, taken control of our Sarstoon Island and indeed declared the entire river their own while using their armed forces to enforce their sovereignty by denying entry to Belizeans, including even our military, into what is clearly Belizean territory.

Under international law this action by Guatemala constitutes an Act of War against Belize. I would have expected our leaders’ immediate response to be a vigorously, animated and sustained protest of this Act of War by Guatemala before the United Nations General Assembly and Security Council and the International Community. I would have expected the OAS, whose mission as expressed in Article 1 of their charter is “to defend the sovereignty, territorial integrity, and independence” of member states, starting with the OAS representatives present when these violations of Belize’ sovereignty and territorial integrity occurred, to have immediately and severely reprimanded Guatemala for these violations. This did not happen then, and still has not yet occurred, and their continued silence still remains deafening, even though the infraction still obtains. Is this perhaps because Belize is not an accredited member of the OAS? Or is it the case that in the all-seeing eyes of the OAS, as in the Animal Farm narrative, some pigs are more equal than others? I strongly recommend that the competent authorities should take the OAS to task for this patent dereliction of duty.

Given the obvious disparity in military capabilities between Guatemala and Belize it seems clear that a military solution to the existential threat to Belize posed by a belligerent Guatemala is not presently a viable option. If we had the financial capacity to equip our armed forces with modern weaponry I am sure this would constitute an effective deterrent to Guatemala’s aggression as was the case when the British were responsible for the defense of Belize.

Even if we go to the ICJ as our leaders and the powers-that-be seem hell bent on having us do, this would be a lengthy undertaking, perhaps a matter of years and in the interim Guatemala will grow even bolder and more audacious in the pursuit of their expansionist annexation of Belizean territory, especially in view of the lame response of our present leaders to their aggressive behavior and the tacit condoning by the British and Americans.

Upon consideration of our options on the way forward the following defense strategy comes to mind as a logical course that we can presently pursue:

A) Plead our case before the United Nations Security Council with the view of having them impose sanctions against Guatemala for their aggression in the Sarstoon River with the demand they respect our Southern Border as was defined in the 1859 Treaty and restore the previous status quo of non-intrusion into our territorial waters. That is the only protocol needed in the Sarstoon River.

B) Make urgent efforts to enhance and upgrade the military capability of our security forces with a view to immediate deployment in the defense of our territorial integrity.

C) Lobby for allies who might be willing to come to our assistance to stem the tide of a possible hostile military incursion by Guatemala.

D) Hold the President of Guatemala legally responsible for committing an Act of War against Belize.

In reference to item “C” it must be emphasized that it is utterly unrealistic to think that any nation will be inclined to offer us military assistance if we display cowardice in the face of the enemy, as some have already asserted that our leaders have done. There can be no actual or perceivable uncertainty of our unwavering commitment to defend our country even with our lives if necessary. In the event of an attempted military takeover or incursion by Guatemala we must be prepared to immediately deploy our defense forces to stop or at least slow their advance until whatever friends we may have can come to our assistance, and even if there are no such friends we must teach the Guatemalans there will be a payment in blood for their aggression.

There are those among us who naively believe that the British or Americans would act to defend us against an invasion by Guatemala. In the case of the U.S., I am of the opinion, for reasons I shall not pursue at this time, that they would welcome a Guatemalan takeover of Belize. It is also most unlikely that the U.K. would act contrary to the wishes of their American brothers, as we represent nothing but a past colonial relic of no more value to them than the Bay Islands which they happily disposed of to Honduras against the wishes of its people. Also, the acquisition of our land by Guatemalan would free them of any future obligation for reparation they may have to make to Guatemala resulting from their failure to honor clause seven of the 1859 Anglo Guatemalan Treaty. I think we would be best advised to seek allies elsewhere.

As a final thought it appears that the British did do wrong to Guatemala by their nonfulfillment of clause seven of the 1859 Treaty and that Guatemala may indeed legally claim reparation for this failure. However, it is the opinion of the aforementioned jurists that any such compensation to Guatemala is the responsibility of the British and they alone, and furthermore, that there is no legal basis or justification for saddling an independent Belize with this burden. Also, if Guatemala should get its desired bite of Belize it is almost certain that Mexico will assert its claim to the remainder, in which case we may will become a people without a country.

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