BELIZE CITY, Thurs. Feb. 7, 2019– The United Democratic Party (UDP) Government of Prime Minister, Rt. Hon. Dean O. Barrow has committed Belize to vote in a referendum on April 10 on whether or not to submit the Guatemalan claim (territorial, insular and maritime) to the jurisdiction of the International Court of Justice, (ICJ) the judicial arm of the United Nations, for a final, binding settlement.
If Belizeans vote yes to going to the ICJ, the case will go to the ICJ based on the protocols of the Special Agreement (Compromis) that both countries signed in December 2008, and which became a treaty with Guatemala when it was ratified some eight years later by the Belize Senate, in December 2016.
What exactly is the Special Agreement and will it come to an end if Belizeans vote no in the referendum?
Most people are of the opinion that that would be the end of the matter, as far as the Special Agreement is concerned. That is not necessarily so, as will be explained later.
The Special Agreement begins by saying:
“The Government of Belize and the Government of the Republic of Guatemala (hereinafter “the Parties”); wishing to finally put an end to any and all differences regarding their respective land and insular territories and their maritime areas; bearing in mind the recommendation of the Secretary General of the Organization of American States of November 19, 2007, based on article 5 of the ‘Agreement on a Framework for Negotiations and Confidence-Building Measures between Belize and Guatemala’ of September 7, 2005, that the Parties submit the dispute to the International Court of Justice; whereas said recommendation has been formally accepted by both Parties, subject to the approval of their citizens in national referenda; have agreed as follows: Article 1: Pursuant to Article 36(1) of the Statute of the International Court of Justice (hereinafter, the ‘Court’), the Parties agree to submit to the Court the dispute described in Article 2 of this Special Agreement.”
Article 36.1 of the ICJ statute says: “The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.”
Article 2 of the Special Agreement says: “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, 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.”
Article 3 of the Special Agreement sets out the procedures for taking the case to the Court. In this article, it clearly states that Guatemala shall submit its claim (a Memorial) within 12 months after the Registrar of the Court has been notified of the Special Agreement.
Article 3.1 states, “The procedure shall consist of two stages: one for presentation of written pleadings, and another for oral hearings. 2. The Parties request that the Court authorize the following written procedure: (a) The Government of Guatemala shall submit a Memorial within twelve months of the date on which this Special Agreement was notified to the Registrar of the Court; (b) The Government of Belize shall submit a Counter-Memorial within twelve months of the date on which it was notified of the submission and contents of the Memorial presented by Guatemala; (c) The Government of Guatemala may submit a Reply within six months of the date on which it was notified of the submission and contents of the Counter Memorial; (d) The Government of Belize may submit its Rejoinder within six months of the date on which it was notified of the submission and contents of Guatemala’s Reply; (e) The Court may, ex officio or if both Parties so agree, prescribe or authorize the presentation of additional pleadings.
“3. The Court may extend these deadlines at the request of either of the Parties.
“4. The foregoing provisions are without prejudice to any question as to the burden of proof which might arise.
“5. All other procedural matters shall be governed by the provisions of the Statute and Rules of the Court.”
Article 4 states that the parties shall submit their cases in the English and Spanish languages and documents in Spanish must be accompanied by an English translation.
Article 5 states, “The Parties shall accept the decision of the Court as final and binding, and undertake to comply with and implement it in full and in good faith. 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. If such agreement is not reached within three months, either Party may request the Secretary General of the Organization of American States to appoint the members of the Binational Commission and to prescribe its Terms of Reference, after due consultation with the Parties.”
Article 6 says, “This Special Agreement shall enter into force upon the exchange of instruments of ratification, and remain in force unless and until terminated by agreement of the Parties.”
An interpretation of the above article appears to be suggesting that the Special Agreement does not come to an end with a simple “no” vote in a referendum. It can only come to an end by the agreement of the (both) parties.
Article 7 contains the question that will be asked on referendum day: “7. 1.The Parties commit themselves to undertake the procedures set forth in their respective national systems to submit to referenda the decision to bring to the International Court of Justice the final settlement of the territorial dispute.
“2. The referenda shall take place simultaneously in both countries on a date to be agreed between the Parties.
“3. The question to be submitted to referenda shall be: ‘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 determines finally the boundaries of the respective territories and areas of the Parties?”
Article 8 then adds, “This Special Agreement shall be notified to the Registrar of the Court jointly or by either of the Parties within a month after referenda in both countries have approved submission of the dispute to the Court.”
Article 9 then states, “This Special Agreement shall be registered with the Secretariat of the United Nations pursuant to Article 102 of the United Nations Charter, jointly or by either of the Parties. At the same time it will be brought to the attention of the Organization of American States. In witness whereof the undersigned have signed the present Special Agreement, in the English and Spanish languages, both versions being equally authentic.”
Done in triplicate at the Headquarters of the Organization of American States in Washington, D.C. on the 8th day of December 2OO8.”
Worthy of note is that the Special Agreement makes no provision for a “No Vote.” If Belizeans vote NO in the referendum on April 10, it means that the case will not proceed to court at this time. It leaves the door open for any government of Belize to set another date for Belizeans to vote again on the matter. This can go on forever if Belizeans vote no (Guatemala has already voted yes), or until the parties (Belize and Guatemala) decide to terminate the agreement.
Furthermore, the Special Agreement was amended in 2015 at the Guatemalan Ministry of Foreign Affairs, where Belize was represented by Foreign Minister, Hon. Wilfred Elrington. It was that amendment that allowed Guatemala to have its referendum first. The government of Belize, however, did not see it fit to circulate the amended version of the Special Agreement, the spirit of which was undermined when Belize agreed to scrap the referenda and allowed Guatemala to have its referendum before Belize.