Features — 23 July 2016 — by Lindsay L. Belisle –Land Surveyor, Former Boundaries Commissioner
The Special Agreement and the ICJ: Part 2

The general consensus at this time is that the public education campaign by the government to get a YES vote at the proposed national referendum to take the Guatemala/Belize border dispute to the International Court of Justice (ICJ) will fail in achieving its objective. The main reason for this will be the wording of the Special Agreement (SA) and in particular Article 2 and Article 7(3), which is the question to be voted on at the referendum and reads: “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 determine finally the boundaries of the respective territories and areas of the Parties?”

In layman’s language, said diplomatically couched question is: Do you agree that any or all of Belize’s mainland territory, its cayes and maritime areas can be given away to Guatemala by the ICJ to finally settle the Guatemalan Claim? No patriotic Belizean will vote YES to said question and as a consequence the referendum will result in a NO vote to go and settle said dispute at the ICJ. So, while said education campaign is valuable in informing the public about the historical and other aspects of the Guatemalan claim, very few people attend these sessions and no amount of time and money spent on said campaign will convince the Belizean public to vote their willingness to give up a piece of Belize to Guatemala.

Numerous negotiations over the years have not resulted with any acceptable solutions, as Guatemala is claiming a piece of our territory to satisfy its people and constitution, and Belize is not willing to give up any of its territory. So, we are at a stalemate and the decision by both parties to go to the ICJ to settle the territorial dispute is a good one; however, the people of Belize will not accept the question to be voted on at Article 7(3) of the SA. As a consequence, said dispute will not reach the ICJ and we will be right back where we started.

To get out of this loop and move forward, we need to look for a possible wording that would be acceptable to both parties and allow the SA to reach the ICJ for a final solution. Firstly, Article 2 of the SA needs to be reworded and that will require removing all references to legal claims of Guatemala to Belize’s land, insular and maritime areas, as Belizeans know that Guatemala’s claims are bogus and unfounded and said references to claims will discourage us from supporting the SA at the onset.

In reality, what both countries want is the final determination of the boundaries between their territories. As a consequence, the proposed rewording of Article 2 should satisfy both Parties as follows: The Parties request the Court to determine in accordance with applicable rules of international law as specified in Article 38(1) of the Statute of the Court the land and maritime boundaries between Guatemala and Belize and to declare the rights therein of both parties. That simple rewording would allow for it sacceptance by Belizeans as we would be asking the ICJ for a determination of our BOUNDARIES and not CLAIMS by Guatemala.

The question to be submitted to referenda [Article 7(3)] will also need rewording to be in line with proposed rewording of Article 2 as follows: Do you agree that the determination of the land and maritime boundaries between Guatemala and Belize should be submitted to the International Court of Justice for final settlement and that it determine finally the boundaries of the respective territories and areas of the Parties?”. This simple question would undoubtedly reduce our anxiety, eliminate the present unknown of what exactly Guatemala will be claiming, and secure a YES vote at the referendum to allow the dispute to get to the ICJ.

Some may say that the proposed rewording is only dealing with semantics; however, it is much more than that and will have a psychologically comforting feeling and acceptance by Belizean voters. We have seen Belizeans’ reaction to the use of the word “artificial” to describe our border with Guatemala. So, the choice of words is very important if we want to dramatically increase our chances of getting an early settlement of the territorial dispute at the ICJ.

The proposed rewording is nothing new, and similar wording was successfully used in the question to the ICJ in the Libya vs Chad case where both countries simply asked the Court to determine the boundary between their respective territories. The Libya/Chad case is very similar to the Guatemala/Belize case. Libya (like Guatemala) is the bigger and more powerful country and claimed a piece of Chad, while saying that there was not an existing boundary and asked the ICJ to “decide upon the limits of their respective territories”. Chad (like Belize) is the smaller and less powerful country that has a boundary treaty between their colonial masters, France, with Libya. Chad also requested the ICJ “to determine the course of the frontier between the Republic of Chad and the Libyan Arab Jamahiriya” and not inviting any and all claims of Libya against Chad as Belize is doing in Article 2 of the SA.

Chad won the case on the strength of the boundary treaty. The Court’s president noted that “When a boundary has been the subject of agreement, the continued existence of that boundary is not dependent upon the continuing life of the treaty under which the boundary is agreed”. So, precedents have been set that would have Belize winning easily at the ICJ.

For Belize, the ICJ would be reaffirming our boundary in accordance with the 1859 Treaty, the 1931 Exchange of Notes, the administration of our territory from the early 1800’s, the affirmation of our territorial integrity by virtually all the countries at the United Nations, and our right to self-determination, among others.

Guatemala, on the other hand, should not have any problem accepting said rewording as their Foreign Minister is saying that they do not know where the boundary between Guatemala and Belize lies and want the ICJ to determine that. If they refuse said rewording, then it would be clear that they are not really interested in settling the territorial dispute.

Within the determination of the boundaries by the ICJ, Guatemala can bring any and all their claims to the ICJ as, at the end of their deliberations, the ICJ ruling will be on the boundaries between Guatemala and Belize and not on Guatemalanclaims. We should, therefore, not be inviting Guatemala to be making any claims against Belize as per Article 2 of the SA.

A win for Belize will also be a win for Guatemala because they would (i) be able to take the ICJ’s decision back to Guatemala without fear of political prosecution as would be the case if it was a negotiated settlement; (ii) be vindicated by having fought the case to the very end rather than dropping the claim which would not otherwise be an acceptable solution; (iii) be viewed by the international community as an honourable country by respectfully complying with the decision of the Court rather than resorting to war; (iv) be able to maximize the benefits of living in peace with Belize, among others.

Additionally, both Belize and Guatemala would benefit from having their respective maritime boundaries determined for the first time by the ICJ. So, going to the ICJ would virtually be a win-win situation for both Belize and Guatemala. As the Guatemalan Foreign Minister,Gert Rosenthal, said after the signing of the SA: “It’s the only solution to end this conflict for us. The only way to get off the hook, because Guatemala has no imperial intentions, is for a juridical solution. That gets Guatemala off the hook in terms of ending this 150 year dispute.”

The problem is that to get at the ICJ, and for Belize to know exactly what Guatemala will be claiming, both countries have to vote, YES at their referendum, and there lies the problem. The wording of Articles 2 and 7(3) of the SA will not secure a YES vote for Belize at the referendum and it appears that Guatemala is in no haste to go to the ICJ, as their chances for a win are slim and they need to continue to use the claim as a political wand to distract their people when faced with internal political pressures. As a consequence they will stall the process at every opportunity while trying to convince the international community that they are committed to an early resolution of the dispute to try and keep a positive image. To this end, they have been successful in many ways so far by (i) having Belize sign the SA which they (Guatemala) knew would not be accepted by Belizeans; (ii) not being able to have their referendum on the earlier agreed date; (iii) getting Belize to sign an amendment to the SA under the guise of wanting to hold their referendum separately and along with their last election when everyone knew that would be next to impossible to achieve; (iv) the delay by their Congress in ratifying the SA; (v) wanting Belize to reduce our referendum threshold of 60% to 50% as it is in Guatemala; (vi) taking effective control of the Sarstoon River; and (vii) requiring Belize to agree and sign a protocol for the use of the Sarstoon River, among others.

These are all delaying tactics and the next may be requiring Belize to change its Constitution to accommodate a change of boundaries should the ICJ rule in their favour, and thereafter they will claim they cannot proceed to the ICJ as a win by Belize would create constitutional problems for acceptance. This argument was earlier used for not accepting the Ramphal/Reichler proposals in 2002.

Lastly, Guatemala has not even started their public education campaign to prepare for a referendum to go to the ICJ while Belize has already peaked with their campaign. From the above, do you see Guatemala as a country ready and eager to go to the ICJ to settle the territorial dispute?

It is said that Guatemala is a serial killer of agreements and is playing “bluff poker” with Belize.But we must not fall into their trap. We need to vigorously advance the issue of going to the ICJ as Guatemala is eagerly waiting for us to default or to get a NO vote at our referendum to publicly declare that “Belize is the enemy of peace” and delaying the settlement of the Belize/Guatemala territorial dispute when in reality it is Guatemala which is using delaying tactics and condemning Belize at every opportunity.

Now that we know what can be done to secure a win at the ICJ, let us set aside our pride, accept that the wording in the SA is more favourable to Guatemala than to Belize, and request a rewording of the SA in line with above proposals. We have appeased Guatemala in many ways, including accepting their inability in meeting the initial agreed referendum date and cooperating with them in amending the SA to allow for separate referendum dates. Guatemala should, therefore, have no reservations in accepting a rewording of the SA as it is shown above that this will result in a WIN for both Parties by having an early and honourable settlement of this long outstanding territorial dispute at the ICJ.

It is now 2016 and, despite our best diplomatic efforts, we are no closer to getting said dispute heard at the ICJ than we were on the day we signed the SA some 8 years ago in 2008. If we wish to stay the course and continue with the present wording of the SA, we will not reach the ICJ any time soon as the Belizean voters will say NO to Guatemala’s Claims, NO to the SA, and NO to the ICJ. Time will tell.

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