Features — 13 October 2018 — by Lindsay L. Belisle – Former Boundaries Commissioner
NO to the ICJ: 101

Prior to 1859 Great Britain did not own or had any title to Belize. There was no such thing as “no man’s land” or “vacant land” (terra nullius) between Mexico and Guatemala that the British occupied and owned. All lands in this area were under Spanish rule and the British accepted and respected that. If this was not the case there would have been no need for Great Britain to enter into the 1783 and 1786 treaties with Spain to cut logwood and mahogany between the Rio Hondo and Sibun Rivers. Spain, however, granted to Britain only usufruct rights (the legal right of using and enjoying the fruits and profit of something belonging to another) but sovereignty remained with Spain.

Lesson 1: Under the Special Agreement (SA) Guatemala can use said two treaties, which have defined boundaries, to claim ownership between the Rio Hondo and Sibun Rivers both of which supersede the 1859 Treaty. ICJ ruling states that, “A boundary established by treaty achieves a permanence which the treaty itself does not necessarily enjoy.”

Guatemala, upon declaring independence from Spain in 1821, claimed from the Sibun River southward as succession from Spain. Britain was in illegal occupation of said lands at that time which were within the domain of Spain and formed part of the Province of Verapaz within the Captaincy General of Guatemala. The British did not and could not protest this claim by Guatemala as the British were in adverse possession of the lands between the Sibun and Sarstoon Rivers as they had no permission from Spain to occupy said lands. Also, the United States recognized that the area south of the Sibun River was for Guatemala.

Lesson 2: Britain cannot claim acquisitive prescription to legitimize its possession of Belize. There are four conditions that have to be satisfied, viz. The possession should be open, peaceful, undisturbed, and without knowledge of the owner. These conditions were not met by the British and as noted earlier, Britain, by its own actions, accepted and respected Spain as the owner and consequently said possession was illegal and based on usurpation (seizing or exercising authority or possession wrongfully) which is not recognized in international or any law;

It was not until April 30, 1859 that Guatemala, by its own free will and not under any pressure, signed the 1859 Boundary Treaty in Guatemala City which gave Great Britain absolute title to Belize. It can be said that the most important thing the British did for Belize to guarantee its sovereignty and territorial integrity was to get Guatemala to sign the 1859 Boundary Treaty. This was achieved through several diplomatic manoeuvres and promises (Art.7) to build a cart road which was never done by the British and which led Guatemala in 1946 to unilaterally declare said Treaty null and void and reclaimed from the Sibun to the Sarstoon. Unfortunately, said unilateral declaration is not recognized by international law. On signing and ratifying the 1859 Treaty, Guatemala relinquished all claims to Belize.

All of Guatemala’s claims died or were extinguished with the signing of the 1859 Treaty and it is inconceivable how our government has now signed a Special Agreement that is effectively giving life to dead claims and converting unfounded claims into legal claims. The British told Guatemala that if they believe that the 1859 Treaty is no longer valid then they can go to the International Court of Justice (ICJ) for a ruling on the validity of said treaty. The Guatemalans refused, as they wanted to make claims from time immemorial leading up to the signing of the Treaty in 1859. Now the Belize government is congratulating themselves saying that they have accomplished what the British could not do by having Guatemala agreeing to take all their claims to the ICJ. How ridiculous! The Special Agreement (SA) is setting aside the 1859 Treaty and allowing Guatemala to accomplish what they always wanted to do by taking any and all of their unfounded claims to the ICJ that the British were not earlier allowing.

Lesson 3: Guatemala has absolutely no claims to Belize and as a consequence we must never entertain Guatemala to make any claims to Belize at the ICJ. We should only go to the ICJ for a legal/advisory opinion on the validity of the 1859 Treaty. So, in an effort to maintain our status quo, Belizeans must vote NO to the ICJ in the upcoming referendum.

The 1859 Treaty is the most important document Belize has to defend its claim to the 8,867 sq. miles we call home and it clearly and unambiguously defines the boundary between Belize and Guatemala. We should, therefore, never allow the ICJ to “determine” our borders which were already determined by the 1859 Treaty and subsequently demarcated, and reaffirmed in the 1931 Exchange of Notes. If we look at Article 1 of the 1859 Treaty that describes the boundary between Belize and Guatemala, we will note that all the features marking our border viz. Sarstoon River, Gracias a Dios Falls, Garbutt’s Falls, and the Mexican frontier (Blue Creek/Rio Hondo) are all natural/geographic features and not “artificial” boundary features.

Lesson 4: We know exactly where our border markers are. They are easy to locate, and cannot be moved or hidden and consequently we do not need to go to the ICJ to tell us where our borders are located. Also, the 1859 Treaty is an international treaty lodged at the United Nations and internationally recognized as such by all countries, except Guatemala. So, when we hear the Ministry of Foreign Affairs (MFA) propaganda that we need to go to the ICJ to tell us where our borders are so that they can be internationally recognized, we need to regard that as total nonsense and if that was the case then most countries in the world would not have internationally recognized borders.

Successive governments since Independence have not done a good job in protecting our borders and maintaining our sovereignty and territorial integrity, but have been complaining about encroachments and deforestation within Belize, and that we now need to go to the ICJ to arrest this undesirable situation. If we look at satellite imagery before independence to present, we will observe that all of the deforestation and encroachments into Belize started in the 1980s and have continued unabated to present. The question must be asked why when the British with their limited in-country resources were patrolling our borders that we experienced no encroachments into Belize, and as soon as we started patrolling our borders that encroachments and deforestation started. In fact the situation along the western border became so bad that several settlements began showing up in Belize, the most notable being Santa Rosa which in 2002 had over 20 family homes and a school flying the Guatemalan flag within Belize. One has to be totally blind to not see said encroachments when patrolling the border.

Lesson 5: The Government of Belize needs to start doing a better job at protecting our borders and protesting Guatemala’s encroachments internationally. The Guatemalans have continued to capitalize on our shortcomings and have extended their illegal activities to the Sarstoon River where they have taken effective control of said river and are disrespecting our sovereignty and territorial integrity. This situation has to be regularized before we even consider going to the ICJ with the Special Agreement (SA) signed on December 8, 2008 in Washington.

The SA is giving the ICJ the authority to determine “any and all legal claims of Guatemala” against Belize and to subsequently determine the boundaries between Belize and Guatemala, which can result in the whole or a piece of Belize be given to Guatemala. The granting of said authority to the ICJ is unconstitutional and for this to take effect the Constitution of Belize has to be amended with support from at least 2/3 of the members of the House of Representatives. The Government is now begging the Belizean people to vote YES at the upcoming referendum in April 2019 to justify their undesirable action in signing the SA, and to absolve them from any wrongdoings so when a piece of Belize is given to Guatemala by the ICJ, the government will not take blame but will say – that’s what you voted for and you are now refugees in your former country.

 The Ministry of Foreign Affairs cannot say what the Guatemalan claims are, but is saying that those who will vote NO are crazy to do so. Would any patriotic Belizean want to give up a piece of Belize at the ICJ when our best case scenario is that we can only come out the same way we went in and in the worst case scenario, we can lose all of Belize to Guatemala?

Lesson 6: The wording of the SA leaves a lot to be desired. It is obnoxious and is insulting to the intelligence of Belizeans. Nobody in their right mind would vote for something they do not know about; sign a blank check; or sign a document without reading it. Wonder who is crazy?

The British are cognizant of the fact that they have a moral obligation to compensate Guatemala for the signing of the 1859 Treaty whereby Guatemala agreed to recognize the territory Britain occupied by virtue of the 1783 and 1786 Anglo-Spanish treaties and for her cession of said territory and their territory between the Sibun and Sarstoon Rivers to Great Britain. The British were strapped for cash to meet their treaty obligations and refused to compensate Guatemala for non-fulfilment of Article 7 of the 1859 treaty. However, the British in the years prior to granting Independence to Belize tried to compensate Guatemala on several occasions by proposing land cession, among others. This was supported by the United States but outright rejected by the Belizean people. There are no more free logwood and mahogany around, so the British now want us to compensate Guatemala with Belizean territory and without them incurring any cost for not compensating Guatemala earlier. We now have the “Friends of Belize,” which includes Great Britain and the United States, who are encouraging and financing us to go to the ICJ to settle the Guatemalan claims, but very few of them have read the SA and just want a settlement of the Belize-Guatemala dispute immaterial of the loss Belize may suffer as a result of the ICJ decision. Locally, the YES propaganda campaign is instilling fear in Belizeans by saying that if we vote NO we will be left isolated and lose financial support from our “friends,” and since we have exhausted all options the only option remaining is war.

Lesson 7: In the words of the late Mr. Goldson, ‘The time to save your country is before you lose it.” We have to sleep with our own eyes, and not because someone is paying for your funeral you should hurry up and die. Our forefathers in 1797 voted NO retreat and defended Belize against the Spaniards, hence we live in this beautiful Jewel. Belize, however, cannot use the 1798 Battle of St. George’s Caye victory to claim sovereignty by conquest, as the 1802 Treaty of Amiens would nullify that claim. Also, there is no such thing as running out of options: we will not lose our “friends” if they are really our “friends” and there will be no war. The new normal in the world is that countries are splitting up and forming new countries instead of annexing other countries, and the acquisition of territory by force is no longer permissible under international law. As a member of the United Nations Guatemala would not want to consider war and be left isolated, particularly since they are attempting to portray themselves as a peaceful, honorable and law-abiding country.

In my first ICJ article in the Amandala newspaper of March 27, 2016, I proposed that Belize needs to minimize her risk when going to the ICJ and we should first seek an opinion on the validity of the 1859 Treaty. I still hold this position to date and several others have also echoed this sentiment which is gaining traction. The MFA, having overlooked this option, is saying that an Advisory Opinion from the ICJ is not binding and will not solve the issue. While not binding, seeking an advisory opinion is a form of Preventative Diplomacy used for preventing a state from doing something it would otherwise do. In the case of Guatemala, an advisory opinion from the ICJ on the validity of the 1859 Treaty would be in Belize’s favour and consequently would take the wind out of Guatemala’s sail and prevent her from going with her claims to the same ICJ who just ruled that the 1859 Treaty is valid. So, an advisory opinion does “carry great legal weight and moral authority.”

Lesson 8: Belize must not take the risk of going to the ICJ with the SA where there is the possibility of losing all or a piece of Belize and when you already hold the title to Belize. We need to minimize our risk and legal costs by voting NO in the upcoming referendum and then seek an Advisory Opinion from the ICJ through the UN General Assembly or the UN Security Council.

Court cases are won in the courts and not on talk shows, presentations or on social media. As a consequence we need to retain the best legal team as the cost of defending our sovereignty and territorial integrity is priceless. It is said that a strong legal team with a weak case can triumph over a weak legal team with a strong case at the courts. The MFA has been proclaiming that we have a legal opinion written by the best and most experienced lawyers worldwide who have proven themselves at the ICJ. While this is true, what they haven’t told you is that NONE of these lawyers are representing Belize at the ICJ.

When asked about the legal team representing Belize at the ICJ, the answer is usually vague and the question pushed aside. In the last town hall meeting in September, mention was made that they have retained the law firm Freshfields which provides the best legal services money can buy. Freshfields appointed a lawyer who came to Belize some time ago and in a televised interview, along with the Minister of Foreign Affairs, said that we have a very good case, among others. This lawyer that is leading the Belize legal team to the ICJ is very brilliant academically but is young and has very little experience with cases to the ICJ. In fact he has not won any boundary dispute case at the ICJ to date and the only boundary dispute case he worked on with some other lawyers that was decided by the ICJ was a maritime area dispute between Chile and Peru. He worked with the legal team representing Chile, and they lost to Peru, thereby causing Chile to lose control over a sizeable portion of its formerly claimed maritime territory. I trust Chile was not told that they had a “watertight” case. Research on the Internet also revealed that this lawyer was counsel for the Attorney General of Belize before the Caribbean Court of Justice (CCJ) on a Belize Bank/Lord Ashcroft case and we are all aware of the defeats the GOB suffered with these cases at the CCJ.

Lesson 9: Belize needs a team of lawyers with vast experience at the ICJ and with a good track record of winning cases. They must be battle ready and tested; not inexperienced and with no wins at the ICJ. The Foreign Minister says we have the money to retain the best lawyers worldwide so let him present the legal team that will represent Belize at the ICJ along with their track record of winnings at the ICJ. The bottom line is that we would be wasting our time writing articles and making presentations on the Guatemalan claims when we don’t have the best legal team representing us at the ICJ, as cases are won in the courts and not out here.

It can be seen that the only entity that will have a sure win by going to the ICJ with the SA are the lawyers on both sides. They will have a field day with this ICJ case and will be making millions that could be put to more beneficial use in both countries. The SA was designed by the lawyers to achieve this, as all of Guatemala’s claims will reach the ICJ for determination. I say this because the SA talks about only legal claims that will be determined by the ICJ, but does not address how Guatemala claims will be sorted so that only the legal claims will reach the ICJ. Belize will, therefore, have to carefully prepare and submit a response to ALL of Guatemala’s claims, be they legal or not, and this will take a few years and cost millions.

So, when the YES propaganda campaign comes around telling you that Belize does not have a border, that our borders are not internationally recognized, that we need to go to the ICJ to determine where our borders are, that going to the ICJ is our last option, that we have the best legal team money can buy, and that voting NO to the ICJ will leave no other option but war, we need to ask ourselves if we are willing to take the risk of losing all or half of Belize at the ICJ when we already have absolute ownership to Belize and when there are other less risky and less costly options, such as seeking an Advisory Opinion from the ICJ. The answer will definitely be a resounding NO to the ICJ. So when they say ICJ, we say NO!

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Deshawn Swasey

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