Features — 19 August 2017 — by by Lindsay L. Belisle, land surveyor, former Boundaries Commissioner
Guatemala claims and the Special Agreement

News is that the Guatemalan Congress has approved the holding of the Referendum to take the Guatemalan claims to the International Court of Justice (ICJ), their public education campaign has commenced, and their national referendum is scheduled to be held by the end of 2017. Noting Guatemala’s theatrics, it is very unlikely that said referendum will be held as indicated; however, should Guatemala surprise us and hold said referendum then the probability is very high that a YES vote will be realized. The simple reason being that Guatemala, unlike Belize, has virtually nothing to lose by going to the ICJ and can only gain if the ICJ rules in their favour.

There is no doubt that our Ministry of Foreign Affairs (MFA) is monitoring said public education campaign in an effort to sensitize the Belizean public and prepare itself should we need to go to the ICJ. We will not know exactly what Guatemala claims will be unless both Belize and Guatemala vote YES in their national referendum. As Belizeans, we need to know what are the claims Guatemala will be advancing at the ICJ so that we can properly vote in our national referendum and be prepared for any eventuality.

Below are some claims that Guatemala has been making over the years and may make at the ICJ to justify their claim to Belize.

1. 1n 1492 Columbus discovered the New World and claimed it for Spain;

2. In the 1493 Papal Bull, Pope Alexander VI proclaimed that Spain had exclusive rights to colonize the Western Hemisphere (except Brazil) and which includes Central America;

3. In the Godolphin Treaty of 1670 Spain confirmed that England was to hold all territories in the Western Hemisphere that it had already settled (which did not include Belize);

4. Britain recognized the sovereignty of Spain over Belize and consequently in the 1783 Treaty of Versailles Spain granted Britain usufruct rights (the legal right of using and enjoying the fruits and profit of something belonging to another) to cut logwood between the Hondo and Belize rivers and which was extended in the 1786 Convention of London to the Sibun River;

5. Britain cannot claim sovereignty over Belize by conquest as a result of the 1798 Battle of St. George’s Caye as the 1802 Treaty of Amiens would nullify that claim. In said treaty Britain agreed to return all territories conquered from Spain during the period of war commencing 1793, except for Trinidad. Furthermore, the extent of Belize at that time comprised only of the area within said 1783 and 1786 treaties and which precluded Britain from claiming ownership to Belize;

6. Belize was originally within the domain of Spain and formed part of the Province of Verapaz within the Captaincy General of Guatemala and upon gaining independence from Spain in 1821 Guatemala claimed Belize as succession from Spain;

7. Britain continued to recognize Spain as having dominion over Belize and in 1835 and on other occasions requested Spain to cede the territory extending to the Sarstoon to Britain. Also, in 1857 Guatemala had proposed the cession of the territory between the Sibun and Sarstoon in return for compensation. As a consequence of said recognition of sovereignty, Britain, despite earlier calls from the settlement, did not declare Belize a Crown Colony until 1862 after the 1859 treaty was signed between Britain and Guatemala giving Britain legal rights over Belize;

8. Britain cannot claim acquisitive prescription to legitimize its possession of Belize as Britain had knowledge of the owner and said possession was therefore based on usurpation (seizing or exercising authority or possession wrongfully), which is not recognized in international or any law;

9. The 1859 treaty was a treaty of territorial cession disguised as a boundary treaty and Clause VII is a compensatory clause which Britain has breached due to non-compliance. Guatemala’s reasoning is (i) the preamble to the 1859 treaty clearly states that the boundary “has not yet been ascertained” but in Article 1 states that the boundary was “as they existed previous to and on the 1st day of January, 1850”; (ii) while contradictory, the legitimacy of the treaty was subject to the Clayton-Bulwer treaty of 1850 which forbade any further colonization of Central America; (iv) a treaty of cession would have been in contravention of the 1850 Clayton-Bulwer treaty and consequently the 1859 treaty had to be disguised as a boundary treaty and the date 1st day of January, 1850 was inserted to say that Guatemala agreed that the described boundary in the 1859 treaty existed prior to the 1850 Clayton-Bulwer treaty. Even with this disguise the United States Minister in Guatemala had lodged a note of protest as they recognized only the usufruct rights Spain had granted to Britain between the Hondo and Sibun Rivers, and the area between the Sibun and Sarstoon was within the province of Guatemala; (v) Clause VII is the compensation Britain agreed to in the 1859 treaty for the cessation of territory, and the non-fulfilment of said clause over the years has left Guatemala with no other option than to declare said treaty invalid and claim back Belize as being a part of Guatemala.

There is no doubt that Guatemala was “set up” by the British in signing the 1859 treaty. Britain got the title to Belize she wanted thereby extinguishing all claims to Belize by Guatemala, and to date has not compensated Guatemala as agreed to in Clause VII of said treaty. Can Guatemala then take above claims to the ICJ? The simple answer is YES, as Belize has signed a Special Agreement (SA) inviting “any and all legal claims of Guatemala against Belize” for final determination by the ICJ. Belize is saying that Guatemala’s claims are bogus, unfounded and not legal but it is not Belize but the ICJ that will determine the legality of the claims.

On the other hand, Guatemala is saying that their claims are legal and factual and have supporting documentation. What will the ICJ say? “Any and all” means exactly what it is saying – everything. Even a Standard 6 student will tell you that – do the polls. Clauses 2 & 7(3) of the SA are obnoxious to Belize but special to Guatemala and to see that said clauses were framed by the then Belize Negotiating Team. Said clauses are the subject of numerous discussions and interpretations over the years by laymen, lawyers, ambassadors and no doubt Guatemala has her own interpretation.

This reminds of the Clayton-Bulwer Treaty whose first article was written with such ambiguity that the British and Americans had their own widely differing interpretations of it and which led one Richard Cobden to criticize it saying “the unfortunate propensity of diplomatists to involve their sentences in phraseology which becomes unintelligible not only to others but to themselves”. Any agreement or description should be written in a clear, concise and unambiguous language that should have only one interpretation and be understandable to all without the need for an attorney, ambassador or court to explain it. The need for this clarity should have been more pronounced in the SA since it was to be used in educating the public prior to voting for its acceptance or otherwise. Sadly, agreements are still not properly drafted, oftentimes with disastrous effects when interpreted by the Courts.

All of Guatemala claims died with the signing of the 1859 boundary treaty which clearly described the boundary between Belize and Guatemala and which gave Belize title to all lands to the north and east of said described boundary line. Great Britain, a diplomatic heavyweight, has always rejected “any and all” of Guatemala claims to Belize but unfortunately, Belize has seen it fit to invite “any and all” claims of Guatemala to Belize for final determination at the ICJ. The signing of the SA can, therefore, only be attributed to a false sense of overconfidence by Belize that they will win at the ICJ immaterial of what claims Guatemala makes. Nothing in life is guaranteed, particularly decisions by the Courts.

The point of departure for going to the ICJ has to be the 1859 treaty but Guatemala is no diplomatic dunce and along with the Organization of the American States (OAS) succeeded in getting Belize to sign the SA, which gives Guatemala the opportunity to resurrect all dead claims back to time immemorial. The Bible tells us of one man who gave life to the dead and he himself was resurrected from the dead and his name was not Guatemala. As the British did to them, Guatemala in turn has “set up” Belize with the signing of the SA, as Belize is now aiding and abetting Guatemala in an attempt to resurrect dead claims by inviting “any and all” claims which can go back beyond the 1859 treaty to the days of Columbus, thereby giving Guatemala a fighting chance to recover Belize.

This must not happen and to get Belize out of this predicament we need to vote NO at the referendum and which will send the message to “wheel and come again” with something better and special for Belize. By signing the SA Belize has agreed to give up a piece of our territory to Guatemala at the ICJ and is now asking the public to support this undesirable action and to vote YES at the referendum, but cannot tell us exactly what claims of Guatemala we will be voting for to take to the ICJ – puss eena bag.

Belize has placed herself in a very precarious position. The international community is pressuring for going to the ICJ and the Guatemalans will more than likely vote YES to take all their claims to the ICJ, so the pressure in now on Belize to secure a YES vote at the referendum to save face and not being declared “an enemy of peace”. To this end the MFA has publicly declared that Belize needs to go to the ICJ and that they are continuing with their public education campaign, albeit silently, and no doubt trying to secure a YES vote at the referendum. Consequently, Belizeans will not get to hear “the other side of the story” from the proponents of a NO vote to go to the ICJ as this will not be funded by the MFA. This will defeat the original intention for Belizeans to be fully educated on the pros and cons for going to the ICJ so that they can make an informed decision when voting at the referendum. As a result, Belizeans will be railroaded into voting YES at the referendum and which can be detrimental to the territorial integrity of Belize.

While going to the ICJ has its merits, it is extremely risky to go to the ICJ with the SA as is and some of the reasons are (i) the SA is inviting “any and all” claims of Guatemala to be taken to the ICJ for final determination despite the fact that all of Guatemala’s claim died with the signing of the 1859 boundary treaty and again with the 1931 exchange of notes – why invite dead claims?; (ii) in signing the SA Belize has agreed that all or a piece of Belize can be given to Guatemala by the ICJ; (iii) Belizeans are being asked to vote YES in a national referendum to take the Guatemalan claims to the ICJ but we do not know exactly what the claims are; (iv) only if Belize and Guatemala vote YES at their respective referenda will we know exactly what the Guatemalan claims are – too late; (v) if you vote YES at the referendum you are voting your willingness to give up a piece or all of Belize to Guatemala at the ICJ; (vi) once the process has started there is no turning back and we have to abide by the ICJ’s final decision (SA clauses 5&6); (vii) only the Guatemalan claims will be determined by the ICJ as Belize is claiming nothing, not even the validity of the 1859 treaty; (viii) the ICJ will only rule on the question submitted and which relates to the Guatemalan claims in accordance with the SA; (ix) if as a result of voting YES at the referendum, a piece of Belize is given to Guatemala by the ICJ, the Government of Belize will not take blame for not educating you properly but will say – that’s what you voted for.

As patriotic Belizeans we need to further educate ourselves on the Belize-Guatemala territorial dispute and vote NO at the national referendum to take the Guatemalan claims to the ICJ so that we can preserve this little Jewel of ours despite the repercussions we will face from the international community. “Ya da fu we Belize” and “da we live ya”.

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