Features — 28 April 2018
Referendum to go to the ICJ – think it through!

Continued from the Tuesday, April 27, 2018.

Enforcement of ICJ decision

I encourage every Belizean to visit the ICJ website ad learn about its functions and how it deals with disputes such as the Guatemalan claim over Belize. What I would highlight above is that once we remain before the court and allow it to give a verdict, we must be prepared to obey said verdict because there is no appeal process, unlike our local court system.

On the issue of enforcement of the order, it is also different from a local court, yet in its own way it is powerful, especially for a small nation like Belize that does not have the influence and might at the UN Security Council as the U.S. has.  This is what is stated on their website:  “The court itself has no powers of enforcement, but according to Article 94 of the Charter of the United Nations:

If any party to a case fails to perform the obligations incumbent upon it under a judgment 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 judgment.

Few state parties to a case before the ICJ (or before its predecessor, the PCIJ) have failed to carry out the court’s decisions. Two exceptions are Albania, which failed to pay £843,947 in damages to the United Kingdom in the Corfu Channel case (1949), and the United States, which refused to pay reparations to the  Sandinista government of  Nicaragua (1986). The United States also withdrew its declaration of compulsory jurisdiction and blocked Nicaragua’s appeal to the UN Security Council. In general, however, enforcement is made possible because the court’s decisions, though few in number, are viewed as legitimate by the international  community.

Interesting that what it is effectively saying is that the UN Security Council is the enforcement arm or mechanism of the ICJ judgments.

Now that you have an idea of how the ICJ operates, it is important to look at our present situation and what we are being asked to decide.

The referendum question

We have to look keenly at the question we are being asked to answer “yes” or “no” to, since that is the only reality that matters as we go to the polls under a Referendum Act that no longer needs a 60% threshold of voter turnout and can now be decided by a “simple majority” of those who actually come out to vote. Thus, hypothetically, if only three percent of registered voters come out to vote, the referendum outcome is still valid. Of those three percent, hypothetical voters, all your government needs is for the simple majority to vote “yes”!  This is the question: “Do you agree that any legal claim of Guatemala against Belize relating to land and insular territories and to any maritime areas pertaining to these territories should be submitted to the International Court of Justice for final settlement and that it determines finally the boundaries of the respective territories and areas of the parties?”

So when will we know what these claims by Guatemala are? Why are we being asked to agree on such a broad proposition? Legally speaking to me, that is not a wise position to take since if you are being taken to court and you are being asked to agree to submit to the jurisdiction of the court, because you cannot be forced, wouldn’t you at least want to know beforehand what is exactly the claim so you know what you are getting into and what you are voting for?

So look at the question and critically analyse for yourself what you are being asked to vote on. I asked myself when I read it, why it says “that any legal claim of Guatemala against Belize relating to land and insular territories and to any maritime areas pertaining to these territories should be submitted to the ICJ”? Why didn’t we tie down their claim so we know from now when we are voting what their claim to the court really is? This is especially important given their constantly shifting demands for from half to the whole of our country at varying points. Why allow them up to filing of the claim before the court to submit “any claim”; why not a specific claim?

As undecided Belizeans try to make up their mind, don’t be afraid to ask the most common sense question, despite what the luminaries of the law say, and don’t  be afraid to change your position, as your knowledge on the issue evolves. As I ponder on what is the best way forward, I remind myself that court is not about truth: it’s about who can present the best evidence, and the most recent evidence of the conduct of our leaders leaves me sceptical!

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Deshawn Swasey

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