Features — 21 May 2016 — by Lindsay L. Belisle - Land Surveyor, Former Boundaries Commissioner
The Special Agreement and the ICJ

March 21, 2016–The Special Agreement (SA) or Compromis was signed between Belize and Guatemala on 8 December 2008 in Washington DC. The wording of the SA did not benefit from any public discussion in Belize, as the SA was considered a confidential document that was only to be released to the Belizean public after its signature.

As a matter of fact there existed at that time an Advisory Council on the Guatemalan Claim (ACGC), of which I was a member, and we did not have any direct input on the wording of the SA. The Organization of the American States (OAS) had prepared and presented a Draft SA to Belize and Guatemala for review and finalization and the ACGC only received updates from the Belize Negotiating Team on the progress of the negotiations with Guatemala while finalizing the SA.

I am confident that if prior public consultations had been held on the content and wording of the SA, it would be different and more acceptable than what presently exists, as it is said that to get a good idea you need to get several good ideas, and none of us is better than all of us. Probably the intellectuals at the OAS are?

Article 2 of the SA requests the International Court of Justice (ICJ) to determine “any and all legal claims of Guatemala against Belize to land and insular territories and to any maritime areas pertaining to these territories, to declare the rights therein of both Parties, and to determine the boundaries between their respective territories and areas.”

This wording places Belize at a great disadvantage as we do not know exactly what “any and all legal claims” constitutes, only Guatemala knows what they will be claiming (worst case scenario is, it includes all of Belize), and so there is no level playing field here as Guatemala will be making claims we have no prior knowledge of, and all the burden of proof will fall on Belize.

We need to know exactly what Guatemala is claiming before voting to go to the ICJ. Why can’t Belize claim that the 1859 Boundary Treaty is valid and let Guatemala proves otherwise?
Additionally, the SA requires a referendum prior to going to the ICJ, which is good; however, Belizeans do not know exactly what they will be voting for to take to the ICJ. It is only if both countries vote YES that we will know what we have voted for to defend at the ICJ, and there is no turning back and furthermore, we have to accept the ICJ’s decision as final…too risky.

By signing the SA the Government is, therefore, agreeing that they are willing to give up a piece of Belize to Guatemala at the ICJ. Consequently, if we go to the ICJ with the wording as contained in the SA, Belize will be like the proverbial lamb being led to its slaughter.

It is clear that Article 2 of the SA leaves the door wide open for Guatemala to claim a change of our land boundary. This wording is unacceptable and too risky for Belize. As a Land Surveyor and former Boundaries Commissioner for Belize with both Guatemala and Mexico, I am intimately knowledgeable with the technical aspects of our border with both countries and can say categorically that the 1859 Boundary Treaty signed by Guatemala and Great Britain unambiguously describes the boundary between Belize and Guatemala as being the mid-channel of the Sarstoon River to Gracias á Dios Falls then turning right in a northerly direction on a direct line to Garbutt’s Falls on the Belize River and thence on a line due north until it reaches the Mexican Frontier at Blue Creek.

All territory to the north and east of described line belongs to Belize (including Sarstoon Island), and all territory to the south and west belongs to Guatemala (Guatemala’s boundary on the west however ends at latitude 17 degrees 49 minutes North at Aguas Turbias being the tri-point for the Belize/Guatemala/Mexico boundaries).

Subsequent to the 1859 Boundary Treaty, the terminal points at Gracias á Dios and Garbutt’s Falls were demarcated in 1860/61 by stone pyramids and in 1929 said stone pyramids were replaced by concrete monuments.

In August 1931 Guatemala signed an agreement acknowledging that the said concrete monuments mark that part of the boundary line between Belize and Guatemala and thereby reaffirming the 1859 Boundary Treaty. Subsequently, a detailed survey was undertaken in 1933/34 to open, measure and prepare a map of the boundary line between the said terminal points. All the demarcation and survey activities mentioned were done with the full knowledge of Guatemala and with the cooperation of Guatemalan engineers.

There is no doubt whatsoever that the boundary between Belize and Guatemala has been precisely and unambiguously described and agreed to in writing by Guatemala and can be accurately surveyed by any competent Land Surveyor. Guatemala nor anyone else can therefore say that there is no boundary between Belize and Guatemala.

It must also be noted that the 1859 treaty is a Boundary Treaty and under International Law, boundaries described or demarcated in a boundary treaty remain forever and can only be changed by agreement between the parties.

Also, any issues in the other articles of a boundary treaty cannot nullify the described boundary. Guatemala, therefore, cannot unilaterally decide one day that she is not happy with the treaty and wants to change the boundary to suit her like she is doing with the Sarstoon River. These actions of Guatemala should be vigorously protested by Belize and the international community should be apprised each and every time it occurs to avoid any further aggression by Guatemala over Belize’s territory.

However, due to the inaction of the Government, blame is being deflected on the Belize Territorial Volunteers (BTV) for the aggressive actions being taken by the Guatemalan Armed Forces (GAF) at the Sarstoon River while touting Guatemala as a good neighbour who wants peace (more like a piece of Belize). Would your good neighbour be provoked by you entering and moving around your yard to the extent of forcefully stopping you from entering your yard?

The Rio Hondo in the north is where the dividing line between Belize and Mexico lies, and on a daily basis there are many more activities on that river than on the Sarstoon River as Belizeans move freely on the Belize side of that river and regularly go over into Mexico. Do we see any aggression by the Mexican Army toward our Belizean people in the Rio Hondo like the GAF is doing to us at the Sarstoon? Who, therefore, is the good neighbour? History shows that over the years Guatemala has always shown various levels of aggression towards Belize.

Notwithstanding the above, we have heard our Foreign Minister saying that nobody knows where the border is and that we need to know our land border to determine our maritime areas. This sounds like the rhetoric of the Guatemalan Foreign Minister, is totally untrue, and misinforms the Belizean people. The fact is that the 1859 Boundary Treaty clearly describes our land boundary and the Maritime Area Act clearly lists the most easterly islands and features from Ambergris Caye to the Sarstoon River that forms the baseline for Belize.
It is from this baseline that our Territorial Seas (TS) and Exclusive Economic Zone (EEZ) are determined and unless we are willing to give up some of our mainland and islands, then we know exactly where our boundaries are. We do not need any ICJ to tell us that. In fact by going to the ICJ with the wording of Articles 2 & 7(3) in the SA, Belize is agreeing to accept a change in our present boundary. It is obvious that we need to reword the SA to eliminate any ruling by the ICJ that will affect our existing boundaries (remember, not one square centimetre).

As a result of the foregoing, the only thing that needs to be determined that should be going to the ICJ under the SA, or to another competent institution, are the maritime areas between Belize and Guatemala. As a matter of fact, Guatemala had an excellent proposal for maritime areas under the Ramphal-Reichler facilitation process in 2002 where Belize and Honduras would facilitate, in equal part, a Guatemalan EEZ of 2,000 square nautical miles.

It is said that it would be unlikely that Guatemala would receive such generous EEZ from any court or arbitration tribunal.

Yet, Guatemala did not accept that offer, so it is difficult to figure out what Guatemala really wants or if they genuinely want to resolve the Guatemala/Belize dispute, or just keep it on the back burner to satisfy their internal political agendas? Guatemala’s game is to try and show the international community that they are committed to resolving the dispute but at the same time delaying the process at every opportunity. With that said, it is doubtful if Guatemala would accept and respect the ICJ ruling if not in their favour.

Over the years, Guatemala’s biggest claim is that the 1859 Boundary Treaty is null and void because of the non-fulfillment of Article 7 that deals with a cart road. And probably what really need to be done first is to have an opinion on the validity of the 1859 Boundary Treaty from either the ICJ or the United Nations Council and thereafter, depending on the ruling, then go to the ICJ for the resolution of any outstanding issues, if any. It may be possibly that there could be an initial review of the Guatemalan claim by the UN or ICJ to rule on whether Guatemala has a legal claim to proceed to full hearing and whether Belize has a case to answer (this is common in the higher courts).

Only after this ruling should we then vote (if required) to go to the ICJ or not for a final resolution, as we will then know exactly what Guatemala is claiming. This would probably be a less expensive option while minimizing the present risks.

Is it that we are putting the cart before the horse by going direct to the ICJ with the SA without first getting an opinion on the validity of the 1859 Boundary Treaty? Maybe we need to step back and rethink our strategy for resolving the Guatemalan claim and not let the Organization of the American States (OAS) and Guatemala pressure or cajole us into going into the “unknown” with this SA which is stacked against us and definitely too risky for Belize.

Some are saying that we should have no fear going to the ICJ with the SA as we have an iron clad case and we can win hands down with the legal team we have. We should not be too sure as the Judges at the ICJ are only humans and have their special interests and biases. Remember, the burden of proof will fall on Belize, as Guatemala will be making all the claims (taking all the shots) and we will have to give up something in the end and this should only be maritime access and not land (Honduras may need to be included in the determination of maritime areas and may not be willing to give up as much EEZ as in the 2002 Facilitation Process, which may leave Belize having to give up more EEZ). We see in football games that the best defence can be penetrated and this is the same with legal defence.

As a consequence, the SA should not include the wording “any and all claims” as that will leave the door wide open for Belize to possibly lose some land and this is the risk we need to eliminate. Going to the ICJ with this SA is too risky for Belize. We cannot gamble our land away…it’s too precious. My ancestor, Marcus Belisle, in 1797 voted to stay and defend the settlement of Belize against the Spaniards; hence we now live in this beautiful Jewel called Belize. I cannot now let him down.

The Establishment will say otherwise, but the facts speak for themselves, common sense will prevail, and the people of Belize will vote as we did in 1797.

(Ed. NOTE: The above is the repeat of an important article first published in the Easter 2016 edition of Amandala.)

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