Features — 20 October 2018 — by Sidley Leslie
Holes in the watertight case

Our Government, supported by their erudite surrogates and some of our duplicitous “friends”, posits that we have nothing to fear if we vote Yes-to-the-ICJ next April. They claim that Belize has nothing to lose, since it is clear that we have a watertight case. If this is really true, do you honestly believe that Guatemala is so ignorant and stupid, even with factoring in the global power and influence of their world-class strategists and formidable backers, that they would be so gung ho to take their claim to the ICJ for final resolution if they had nothing to gain?

I find myself unable to buy this argument. The incontrovertible reality is that if we go to the ICJ under the conditions a yes-vote in the upcoming referendum would invoke, then there will indeed be gaping holes in our alleged “watertight” case. I will shortly divulge some of these holes in the hope that you will not allow yourself to be deceptively misled into sustaining fatal injury by inadvertently falling into the bottomless pit that a Yes-to-the-ICJ vote in this upcoming referendum portends.

Nevertheless, as bad as this may seem, all is not yet lost, because if a No-to-the –ICJ vote prevails in the April referendum, we will still be left with a better, more auspicious and virtually risk-free option. Let me explain. If we decide to pursue this viable alternative, we must start by first informing the General Assembly of the United Nations of Guatemala’s bellicosity and the blatant violation of our territorial integrity by the Guatemalan Armed Forces. Then, in the interest of peace, ask for a resolution to have the ICJ give an Advisory Ruling on the validity of the 1859 border Convention.

Selecting this option and obtaining a favorable ruling, as is almost certain, would enhance our security, undermine the foundation upon which the Guatemalan claim rests, and eliminate the all too real possibility that if we use the Special Agreement as the ICJ’s terms of reference, a partial or total legal annexation of our country by Guatemala will result. At the same time, the litigation risk resulting from the holes in the “watertight” case would be significantly minimized.

As we commence this exposé, I wish to state that the holes in the “watertight” case that I will identify are predicated on the assumption that we go before the ICJ using the Special Agreement as the court’s terms of reference. The approval to use this OAS-drafted document as the court’s terms of reference is precisely what you will give if you vote Yes-to-the-ICJ on 10th April next year.

You should also be aware, less you become a victim of their disingenuous persuasions, that the proponents of the Yes-to-the-ICJ propaganda campaign are deliberately muddying the waters by citing the strength of a case based solely on the validity of the 1859 Treaty, while ignoring the fact that if we vote “Yes” in the referendum, the case will be based exclusively on the Articles contained in the Special Agreement which is in reality, a totally different kettle of fish. So Jack, unless we remain vigilant and truly informed, these masters of misdirection will surely achieve their insidious objective. Now let us begin.

Should the Government of Belize decide, using the 2008 Special Agreement as the Court’s terms of reference as they have already committed to do, to take Guatemala’s latest claim to more than half of Belize’s territory to the ICJ for a final and binding resolution, as they are empowered to do under our present non-binding referendum law, even if a No- to- the- ICJ  vote prevails in upcoming April referendum, then our first and strongest defensive argument will be the much acclaimed international boundary with Guatemala established by the 1859 Wyke-Aycinena Treaty.

An editorial appearing in the 7th October 2018 edition of The Reporter, “If the International Court of Justice finds that Belize has a border established by Treaty, there is nothing more that Guatemala can say or do to undermine that simple fact. Under the Geneva Convention on the Law of Treaties Guatemala cannot win her claim against Belize. The ICJ has made its position abundantly clear. Once a border has been agreed upon by treaty, the border will stand, even though the treaty creating the border may fail.”

This, needless to say, is the pivotal argument being used by those engaged in proselytizing the Government’s vote Yes-to-the-ICJ propaganda campaign. They determinedly persist in speciously assuring us that Belize has absolutely nothing to lose at the ICJ if we vote to go as they recommend.

However, in direct contraction to their contention, the authors of the 2001 Legal Opinion on The Guatemalan Claim to Belizean Territory, on whose opinion proponents of the Yes-to-the-ICJ position validate their arguments, wrote, “The independent status of the boundary once established, the boundary remains. This is not to say that two States may not by mutual agreement vary the border between them; such a result can of course be achieved by mutual consent …”

Now it does not require a linguist or a lawyer to discern that such mutual agreement and consent by the two States to empower the ICJ Judges to change the international border is precisely what Article 5 of this Special Agreement  provided, which reads, “In particular, the Parties agree that, within three months of the date of the Judgment of the Court, they will agree on the composition and terms of reference of a Bi-national Commission to carry out the demarcation of their boundaries in accordance with the decision of the Court,” [and which took effect] the minute it was signed in 2008 by the duly authorized representatives of both governments.  This is one of the principal reasons why we should categorically not vote to use this poisoned document as the Court’s terms of reference at the ICJ!

Furthermore, in a seminal background and study of the Special Agreement, Gustavo Adolfo Orellana Portillo of Guatemala, who in that document categorized the Special Agreement as an “International Treaty”, wrote, “The compromis itself consists of an achievement of great value for Guatemala.” Here it should be noted that when the legal experts wrote their opinion in 2001, they were not aware of this new 2008 International Boundary Treaty between Belize and Guatemala.

Additionally, commenting on the confidence-building measures he stated: “I consider that this agreement is a success for Guatemala because the Belizean Government itself has acknowledged that a boundary line marked by countries by mutual agreement does not exist yet and that, in consequence, a territorial dispute yet remains to be resolved. Right before entering into the Confidence Building Measures, the Government of Belize had sustained that its boundaries were defined by that established by the Anglo-Guatemalan Convention of 1859. But the fact that they are content to accept setting up of the Adjacency Line, means that Belize recognized that this is not the international boundary line between both countries, which will be taken into account by the International Court of Justice at the moment of issuing its judgment”.  So now, Tio and Tia Tom and Jemima, what is your take on such statements?

The other deeply offending part of this profane document is where it allows Guatemala to make “any and all legal claims” to Belize’s territory. This clearly and unjustifiably empowers them to legally claim our land, maritime and insular territory as compensation for their claim against the Brits for not fulfilling, to their satisfaction, Article VII of the 1859 Convention.

In the aforementioned 2001 Legal Opinion the eminently qualified luminaries stated, “The allegation of Britain’s non-performance of that Article relates only to the period of Britain’s rule in British Honduras. Any responsibility of Britain that may have arisen during that period is Britain’s alone and cannot have devolved upon Belize. Therefore, it is not for Belize to argue Britain’s case …”

It therefore follows that, if we go to the ICJ using this Special Agreement, we will have asininely accepted responsibility for the Brits obligation to our “friendly peace loving neighbor”, an obligation which even the British themselves had acknowledged as their own when they proffered monetary compensation to Guatemala.

Even worse, having effectively agreed to place our country on the ICJ’s chopping block, we will end up having to argue the Brits’ case, as was observed in the legal opinion, in a futile attempt to prevent the court from dismembering our Jewel in compensation for the debt owed to them by the British. That is exactly what, in my opinion, the Brits et al repeatedly connived to do, even before we attained independence in 1981!

Assuming that the immutable international boundary argument fails, which is a distinct possibility, as was explicated, then our next line of defense will be our claim of effective occupation. A few days ago the eminent Belizean historian and past president of the University College of Belize, Dr. Angel Cal, appeared, along with another historian from UB, on the Channel 5 TV morning show and proceeded to indeed open-our-eyes to a new perspective that could easily poke dangerous holes in our claim to effective occupation.

Dr. Cal informed us that there is archival evidence existing in Guatemala, Seville and Mexico City that clearly show that the portion of Belize claimed by Guatemala was never unoccupied territory (terra nullius) as the British claimed. These records show that from and before the fourteenth century to 1821 when Guatemala became independent, and thereafter, there were large numbers of Mayans living in villages near every river from the Sibun to the Sarstoon . Furthermore, the archives reveal that they had even paid land taxes to the administration in what is presently Guatemala and that missionaries were dispatched from there to Christianize these people. Of significance also, is the fact that the Guatemalan Government declared them to be citizens of Guatemala.

Dr. Cal also referred to two land grants given by Guatemala. One was made to a British company, the Eastern Coast of Central America Commercial and Agricultural Company. This company was granted some 14 million acres in the Guatemalan province of Verapaz – a grant which included the whole of the area of British Honduras between the Sibun and the Sarstoon. The other grant was made to a certain Colonel Galindo, an Irishman, who was a British subject. This lay between the Belize and the Hondo Rivers.

Even more alarming is Dr. Cal’s statement that Guatemala, on achieving independence in 1821, had asked Spain to transfer to them their title for the area of Verapaz occupied by the then British Honduras. He further claims that, to his knowledge, no one except Guatemala and Spain know if Spain had acceded to this request. If this had indeed been done, then the contention of Guatemala’s inability to claim succession to Spain’s title by the doctrine of uti possidetis juris becomes irrelevant.

In continuation of this endeavor to uncover holes in the “watertight” case, you should also be aware that the trap set by the “any and all legal claims” contained in the Special Agreement, is not limited only to Belize being forced to assume responsibility for the Brits’ obligation to Guatemala, but also for any other argument the court considers relevant, including any disclosed or undisclosed mutual agreements or concessions made by Belize to Guatemala. This could expose us to unknown risks and cost countless millions of dollars in legal fees and years of unending litigation.

Published in the Amandala of 8th May, 2018, is a letter from a well-connected Belizean living in Nigeria who wrote, “ Guatemala, as against Belize, has assembled the best team in the world of renowned, world-class and tried and tested international lawyers, historians and international politics specialists its extensive war chest has purchased. Guatemala has been in a state of calculated preparedness for many years. And, I state this from a position of knowledge. Belize does not have that advantage. Belize, should it make the irrevocable error of going to the ICJ, would be employing mere bows and arrows against an adversary equipped with an arsenal of ballistic missiles. This is not about David and Goliath, but the unfair world of realpolitik.”

So having been shown the holes in our first two lines of defense, we may be forced to fall back on our third and final substantive argument, our right to self-determination. This one I believe will hold water, except that the Judges, after having heard the expected superlatively convincing arguments from the Guatemalan-Dream-Team, may well decide that 4167 square miles is more than sufficient space for 400,000 insignificant, crime-infested, mendicant squatters to spin their web of corruption.

It is a tragic fact that we live in a country where at least half of our people, severely deprived of gainful employment, are continuously engrossed on a daily basis with the herculean task of figuring out how to pay the ever increasing bills, inflated by crushing and escalating taxation, and where the next meal for themselves and their hungry children will come from. Being consumed with such basic existential exigency, they have been reduced to a state of apathetic pessimism and despair which affords them very little or no time at all, to contemplate the future.

This, unfortunately, makes over 50% of our referendum voters, prime targets and easy prey, for those who sadly do not have their best interests at heart. Our adversaries and their strategists are well aware of this fact and have armed their emissaries with fists full of dollars to achieve optimal results amongst these improvised voters.

Now, logic dictates that any honest, sincere and legitimate campaign to impartially educate our people on the implications of their choice in next year’s historic referendum must of necessity include the pros and the cons for each of the two options they may choose from. This should therefore include the following.

A. What do we stand to gain if we vote “yes” to go to the ICJ using the Special Agreement as the Government recommends? What are the risks? If we receive an unfavorable judgment what do we stand to lose?

B. What do we gain if we vote “No” in the upcoming referendum? What are the potential risks? What might we lose? What, if any, are the viable alternatives?

At this point I would like to digress from the topic to make something clear. The views that I have expressed in this and other articles I have written on this subject are my own. My only motivation in doing so is that I am a Belizean who loves his country and believes that the welfare of the many transcends that of the few. I also passionately do not desire to live the remainder of my life under a foreign banner.

As the referendum clock inexorably continues its countdown, my disquietude and apprehension continue to intensify as the window of opportunity to save our country before we lose it rapidly closes. In consequence, as a deeply concerned Belizean and former educator, I consider it is incumbent on me to contribute what I can, however futile the attempt may be in reality, in an effort to afford my children and the present and future generations of Belizeans the continued privilege of living in their own country. Now let’s proceed with the topic.

Having been an avid chess player and the president of the first Belize Chess Federation, until the passage of time and the vicissitudes of life obliged me to demit that office, I sense the hand of International Grand Masters opponents in this ICJ chess game that we are being coerced to play. I have analyzed the moves already made and observed the present position of the pieces on the board and I fear a fatal mismatch. If we continue playing this game we will be checkmated! I can only pray that we have not already lost too many pieces to make this inevitable.

We had already experienced onslaughts from these formidable opponents; the last major one occurred around 1981. At that time we survived because, although outclassed, our team was still masterful enough to force a stalemate. Now, however, because of the blunders committed by our players since then, and in view of their present ratings, in all sincerity I would not take a wager that it is not already too late to avoid checkmate or even fools mate.

In closing I would like to make two recommendations to the newly formed No-to-the-ICJ coalition. My first recommendation is that they should do all in their power to make the referendum result legally- binding on the government, for as it now stands, this is the enormous fly in the ointment. Insisting that the Government amend the present referendum law to make it binding is now of paramount importance. Failure to effect this change will very likely result in a calamity, the likes of which Belize has never seen.

Secondly, they should impose on the Opposition members of the parliament to take the government to task for running a one-sided bogus ICJ education campaign. They should insist that the Government afford their side equal representation on the official ICJ referendum education campaign. Failing to obtain such permission, they should request that a portion of the funds the Government has reserved for this purpose be allocated to them. After all, this is taxpayers’ money coupled with donations from the “Friends of Belize,” who may very well have reason to be offended, when they see the biased way their donations are being spent!

Realistically however, given the ongoing war for hegemony and the frenzied fight for the crown in our medieval monarchy which poses as a parliamentary democracy, I believe their request for financial assistance will fall on deaf ears. That being the case, they should open a public account at some financial  institution so that patriotic Belizeans at home and abroad and the real friends of Belize can donate, in order that Belizeans can have a balanced, comprehensive  and objective understanding of this political and existential  crisis before they cast their vote.

Finally, I am sure the members and supporters of the No-to-the-ICJ coalition are aware that without adequate financing their efforts to counter the Government’s well-funded official propaganda campaign will be an exercise in futility. Remember that money talks, but do I really need to tell you what walks?

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