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Saturday, March 28, 2020
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ICJ quiz

Continued from the Friday, March 22, 2019 issue of the Amandala

10. Even if Guatemala can establish a valid legal claim against the Brits this cannot cause the court to award them any of our Belizean territory since, according to the authors of the 2001 legal opinion, this is a British obligation and could not have devolved on an independent Belize.

Answer: This may have been true in 2001, but it became false when we endorsed the new boundary treaty in 2008. This is because Article 2 of the Special Agreement treaty obliges us to assume responsibility for any and all legal claims made by Guatemala against our territory. Since there is no provision in the Compromis treaty for monetary compensation, should the court uphold Guatemala’s breach of agreement claim, the only way the ICJ will then be able to compensate Guatemala for this or any other legal claim it entertains is to award them Belizean territory and rights over our sovereignty as provided for in the treaty. The correct answer is therefore “False.”

11. All the legal opinions culminating in the 2001 Legal Opinion on the Guatemalan Territorial Claim have concluded that Guatemala’s claim is totally without merit. This proves that we cannot lose even a blade of grass to Guatemala at the ICJ.

Answer: While this may have been true when these legal opinions were written, the new 2008 Special Agreement boundary treaty we have since concluded with Guatemala invalidates the immovability of the boundaries that were established by the 1859 treaty. Simultaneously Article 2 of the Compromis empowers Guatemala to legally acquire Belizean territory if the court upholds any of its legal claims against us or the British.

This was not the case when there was only the 1859 boundary treaty for the court to consider. The fact is that going to the ICJ under this Special Treaty affords Guatemala a very real possibility to legally annex Belizean territory even though their current military occupation of the Sarstoon might be grounds for mounting a legal challenge under the new international norms. The correct answer is therefore “False.”

12. Even if Guatemala is awarded a portion of Southern Belize we will still retain possession of all our remaining territory.

Answer: When Mexico concluded the Mariscal-Spencer Treaty with England that gives us title to our territory North of Agua Turbias they warned that if Guatemala ever obtains a portion of Belizean territory they would reclaim the territory they had ceded under the treaty. The newly elected Mexican President recently reiterated this caveat. In consideration of the fact that they may well be serious about this the logically correct answer is that we “Don’t Know”.

13. Even if a “Yes” vote prevails in the referendum, if it is later determined that the procedure used to ratify this Special Agreement treaty was not consistent with the need to obtain the appropriate number of votes in the House of Representatives the treaty can be declared void since it violates the constitutional requirement to alter the boundaries of Belize.

Answer: The fact is that treaties entered into and implemented on the international plane will trump internal laws that may have been violated in the process. Article 27 of the Vienna Convention on Law of Treaties, 1969 on internal law and observance of treaties says specifically that: “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46.” And Article 46 states:

1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance.

2. A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith.

Since our constitution may be regarded as an internal law of fundamental importance it will be left to the court to make that determination. At any rate it would be better for us if this issue is resolved before the treaty is implemented. The correct answer is therefore we “Don’t Know”.

14. The Special Agreement Treaty will be repudiated by a “No” vote result in the April referendum.

Answer: The 2008 Special Agreement Treaty came into effect when it was signed by the duly authorized executives from both countries, ratified by the Guatemalan Congress and by the Belize Senate and registered at the United Nations pursuant to Article 102 of the United Nations Charter. A “Yes” result in the referendum is simply the trigger that launches the implementation of the treaty.  It may also be correctly argued that even conducting the referendum constitutes a partial implementation since the referendum itself is a part of the treaty.

Significantly, Article 6 of the Special Agreement makes it absolutely clear that this treaty remains in force unless and until it is terminated by the mutual agreement of both Belize and Guatemala. So even if a “No” vote prevails the Special Agreement Treaty will remain like a loaded and cocked pistol pointed at our head awaiting only a “Yes” vote to pull the trigger. Since the referendum result is not binding the Government might simply decide to have reruns of the referendum until they obtain a “Yes” vote. The correct answer is therefore “False.”

15. A “No” result may place us at a disadvantage in future negotiations with Guatemala and will afford them the moral high ground in the eyes of the international community.

Answer: Originally the Special Agreement Treaty required that simultaneous referenda be conducted in both countries. The present administration consented to allow Guatemala to conduct their referendum first, which as anyone could have foreseen, resulted in an affirmative vote since Guatemala will risk losing nothing and can only gain. This

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