The Government of Belize has declared, in a Quick Facts summary to the media last November, that in the event that a referendum approves that the dispute between Belize and Guatemala should be heard at the International Court of Justice (ICJ), it would argue the case based on (1) the treaties of 1859 and 1931, (2) the right to self-determination, as enshrined in the United Nations Charter, and (3) customary international law.
In previous editions of the ICJ Stats series, we dealt with the first two pillars of the Belize case. In this installment of ICJ Stats, we explore the third – customary international law.
Customary international law is basically traditional rules, established by customs, adhered to consistently by the international community. Unlike treaties and legal texts which establish certain facts in black and white, customary international law is described as “the unwritten rules,” but is deemed to have a binding effect.
The Belize position, adopted from Britain, is that since the Crown occupied the regions between the Sibun and Sarstoon Rivers well before Guatemala attained its independence in 1821, and because Guatemala had never occupied, possessed, or even administered the region, it has title to the said territory. Belize further takes the position that Guatemala had, in some cases by its actions and in other cases by its inaction, demonstrated that it does not have title to the territory, way back to the period before Belize’s independence.
Expounding on this aspect of Belize’s case is the final segment of the “Legal Opinion on Guatemala’s Territorial Claim to Belize” by Sir Elihu Lauterpacht, Judge Stephen Schwebel, Professor Shabtai Rosenne and Professor Francisco Orrego Vicuña (November 2001), which we reproduce below:
The Customary International Law Basis of the Title of Belize
220. The title of Britain and, since independence, of Belize is also sustained by considerations of customary international law.
221. Britain acquired title to the territory of Belize by occupation beyond the limits of the Anglo-Spanish Treaties of 1783 and 1786, as far south as the River Sarstoon prior to the acquisition of independence by Guatemala in 1821. There was thus no basis on which Guatemala could validly invoke the doctrine of uti possidetis juris in support of its claim to Belizean territory. Nor has Guatemala ever occupied, possessed or administered any part of the territory of Belize. Its claim is a paper claim without substance.
222. In the period from 1821 to 1850, Britain further consolidated its title to Belize by a process of historical consolidation of title or of acquisitive prescription, both of which are fully recognized by international law.
223. Guatemala has both actively and passively acquiesced in and accepted Britain’s title to Belize during the period prior to the independence of Belize. Guatemala had dealings with Britain in relation to the territory of Belize which could only have taken place on the basis of British title. Until relatively recently, Guatemala did not protest against British title, but only complained of the alleged non-fulfillment of Article VII of the 1859 Convention.
224. It was open to Guatemala to have challenged Britain’s title in the period 1946-1956 by proceedings in the International Court of Justice, but it did not do so.
Guatemala has never been willing to have its claim adjudicated on a basis of law, but only on an ex aequo et bono basis, which means a basis other than law. [Guatemala has now changed that position, and the special agreement stipulates that the ICJ case, if it is heard, should be on an ex aequo et bono basis.]
This limited willingness to adjudicate on a non-legal basis cannot serve to preserve any legal rights that Guatemala may claim and confirms the absence of a legal basis for Guatemala’s claim. [So does the change in Guatemala’s position, now imply that Guatemala now believes it has a legal basis to its claim?]
225. The right of Belize to its territory is confirmed by the principle of self-determination, a well-established norm of modern international law. The people of Belize were entitled to determine their future. They did so at the time of independence in 1981. Their right to do so was consistently recognized, virtually unanimously, by the Members of the United Nations, and Belize was admitted as a Member State of the United Nations in the full knowledge by its Members of Guatemala’s claim. No State has recognised Guatemala’s claim.
226. The title of Belize extends also to the islands and islets lying off the mainland shore. The right of Belize to those islands flows from its title to the adjacent mainland to which the islands are appurtenant, as well as from Britain’s occupation of those islands. The legal dependence of these islands upon the mainland was recognised even as early as 1850.
227. On the basis of international law and on the evidence considered, Belize has good title to all its territory, including the islands and islets lying off the mainland shore.
The claim to Belizean territory by the Republic of Guatemala is without merit and in our opinion would be regarded as such by the International Court of Justice.
[End of statement in the Legal Opinion]
Article 38, Chapter II (the Competence of the Court), of the Statutes of the International Court of Justice (ICJ) stipulates the following:
1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: (a.) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; (b.) international custom, as evidence of a general practice accepted as law; (c.) the general principles of law recognized by civilized nations; and (d.) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.
The term ex aequo et bono means a judgment based on considerations of fairness, not on considerations of existing law. The court has reportedly never heard a case on this basis.
Belize and Guatemala have agreed that if the dispute between them goes to the ICJ on the basis of the special agreement or compromis signed in Washington on December 8, it would, as specified by Article 2 of the compromis, not be heard ex aequo et bono, but strictly on the basis of international law, as specified in article 38.1 of the Statute of the ICJ.