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Sunday, January 26, 2020
Home Features The choice before us

The choice before us

The year 2019 may well be remembered as the most significant in the history for Belize. This is because on the 10th April of this year we will be asked to decide by referendum whether or not to have the ICJ decide, using the 2008 Special Agreement as their terms of reference, on a resolution of the Territorial Differendum with Guatemala. It may justifiably be said that this is the most crucial decision Belize has ever faced, since this is a choice that may even determine if we will continue to exist as a sovereign nation. Having stated the significance of this upcoming referendum, let us now consider the details.

There are three possible ways we may respond to this upcoming plebiscite. In order to make the best choice voters will be obliged to adequately understand the reasons for choosing one option over the others and the consequences that may arise from that selection. It is therefore imperative for voters to judiciously analyze each one of the possible options. Therefore, it behooves us to undertake an essential and systematic examination of the decision we face.

 The first option is to ignore the issue and not to vote at all, as some may have already decided. Actually, this is the worst of the three choices, since, given the gravity of this decision, whatever the outcome may be such abstainers will have had no say in deciding the fate of their country. Indeed they will be guilty inter alia, of the sin of omission. And if a majority decides not to vote, a minority, indeed even one voter may then decide our destiny and that of our descendants. This is so because the present referendum law, having been changed at Guatemala’s request, does not have a validity threshold.

Also, if a significant percentage of voters refuse to participate in the most important decision we may ever be asked to make, this will portray a very undesirable impression of us to the international community whose attention will be keenly focused on this referendum. Hence we simply cannot afford to be apathetic and asininely underestimate the ineffable significance and existential seriousness of the choice before us.

So then, the most prudent decision will be to participate in the upcoming referendum. Inopportunely, of those who have chosen to participate, even with less than 97 days left before referendum day, there are still many who have not yet decided how they should cast their vote. Let us therefore, in an effort to assist these undecided voters to urgently make an informed decision, carefully and factually consider the possible outcomes of a “Yes” vote and of a” No” vote and the valid reasons for choosing one over the other.

We will begin by considering the reasons given for choosing the “Yes to the ICJ” option; and making a factual assessment of their cogency, and the consequences that may result from this decision. The following is a list of ten major contentions posited by the advocates of this option.

1. All the legal experts and our Government have assured us that we have an ironclad defense for our present boundaries with Guatemala, that is, the 1859 treaty.  They contend that a boundary once established by treaty cannot be moved and has in fact such permanency that it can even survive the demise of the treaty that established it.

2. They claim that our ancestors have occupied and governed Belize for hundreds of years, whereas by comparison, the Guatemalans or the Spaniards have never done so.

3. They claim that since the ICJ, under the conditions specified in Article 2 of the Special Agreement, will  only be allowed to consider legal claims pursuant to Article 38{1} of its statute, there is absolutely  no legal claim that Guatemala can make that may cause the Judges to award them any of our Belizean territory. In fact they claim that it is more likely that Belize will be destroyed by an earthquake than for us to lose territory at the ICJ.

4. They claim that the one and only possible decision the ICJ can make is to affirm the legality of our boundaries as were established by the 1859 treaty.  Guatemala will then be obliged to acknowledge its validity and thereby end their unfounded claim since they have undertaken to abide by the decision of the court as is stated in Article 5 of the new 2008 compromis treaty.

5. They claim that this will put an end to the illegal incursions along our borders and force Guatemala to make a hasty retreat from our portion of the Sarstoon.

6. They claim that after this the security threat posed by Guatemala will then vanish as should Guatemala unwisely continue her aggression, the United Nations Security Council will dispatch troops to defend Belize.

7. They also claim that a new era of unprecedented prosperity will then ensue as the Guatemalan claim has been hampering our development.

8. They claim that the whole world will applaud us for making the right decision, as all our “friends” have been encouraging us to vote “Yes” in the April referendum.

9. They claim that if we vote “No” Guatemala will gain the high moral ground, leaving us in a disadvantageous position in future negotiations. And also we will earn condemnation by the global community for refusing to accept this golden opportunity to finally and peacefully resolve the claim at the ICJ.

10. They claim that a “No” vote could result in a hostile takeover by Guatemala’s superior military.

Taken at face value, this list of reasons for voting in the affirmative looks very convincing. However, because to be wrong in this matter could be lethal to our very existence, we must judiciously examine each of them to be absolutely certain of their veracity.

So then, let us begin our examination with the contention that the borders established by the 1859 treaty cannot be changed. Based on precedence from previous ICJ rulings this seems to be a valid contention. The truth is, however, that there are ways that a border established by treaty can in fact be legally altered. One such method was noted in the highly regarded 2001 Legal Opinion on the Guatemalan Claim, where it is stated, “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”.

The crucial fact overlooked or deliberately ignored by those advocating the “Yes to the ICJ” vote is that our leaders have inexplicably in no less than four formal instances, despite their denial, mutually agreed with Guatemala that the present location of our boundaries is not legally valid and is therefore liable to be changed. They first did this in a joint statement with Guatemala made in 1992. Following that they did it again when they endorsed the confidence building measures in 2005. And then they did it twice more for good measure when they signed the new 2008 compromis boundary treaty.

To clearly understand how this was done let us begin by examining the joint statement by the Governments of Belize and Guatemala signed on 13 July 1992 confirming Belize’s formal acceptance of the Guatemalan position that no valid borders exist between both countries. The following is an excerpt taken from that document:

“Bearing in mind that Guatemala and Belize, as two sovereign independent states, have not yet signed a treaty between them finally establishing their land and maritime boundaries, and that such a treaty is one element of the expected outcome of the negotiations.”

Now assuming that the we have indeed inherited, as they claim, an iron-clad 1859 treaty from the British, duly signed and ratified by Guatemala, which finally and indelibly established our immovable boundaries, then why on earth after independence would they agree with Guatemala that we need to negotiate a separate treaty with them to determine our land and maritime boundaries? Clearly this contradicts the notion that that those borders had already been irrevocably determined and established by the 1859 treaty.

So the only rational justification for such an agreement, to negotiate a new boundary treaty, is if we unequivocally agree with Guatemala that the boundaries the 1859 treaty had established are indeed illegitimate as they contend.  This therefore signifies mutual agreement by both countries, that the alleged immovably boundaries established by the 1859 treaty are in reality illegally positioned and hence may need to be removed to their legally correct location.

Furthermore, the contention that the last sentence of the joint statement which reads, “The government of Belize and Guatemala agree to accept that any mention to their respective territories in any agreement, their execution or implementation thereof, will be made based on the existing reference monuments.”, indicates that Guatemala has finally acknowledged the validity of the existing borders is blatant disinformation and utter nonsense.

This statement simply means that in negotiating a mutually acceptable treaty, both countries agree that any mention of their initial territories will be based on the status quo, which is the boundary defined by the existing reference monuments. In other words this will be the point of departure used to calculate the location of the new boundaries when the ICJ applies the new treaty to determine the area of Belizean territory they may award Guatemala.

Specifically, well knowing that any new treaty they will mutually accept must satisfy Guatemala’s land grabbing imperative by giving the ICJ the authority to alter our boundaries, the attainment of Guatemala’s anticipated territorial extension into present Belizean territory must include a calculation for determining the location of the new boundaries. Suppose for example, the ICJ decides to award Guatemala the 53% of Belizean territory that they claim. Those 4,700 square miles of new Guatemalan territory must lie between the old boundaries, as were defined by the existing reference monuments, and where the new boundaries, to be determined mathematically from the area of the award, are to be positioned.

Consider the following analogy. Suppose someone gives you 20 acres of land adjacent to a neighbor who has 100 acres. Assume that the neighbor then claims that your fence has been incorrectly positioned so that you are in fact illegally occupying 10 acres of his land and that you also agree that his claim is indeed valid. In settling this dispute would you not need to mention the existing fence in reference to the initial property held by both parties in order to determine the correct location for the new fence to be erected?

This is further confirmed by what Gustavo Adolfo Orellana Portillo, who is the Assad Shoman equivalent for Guatemala, wrote in reference to the 2005 confidence building measures, “… the Government of Belize acknowledges that the adjacency line does not represent the international border between Belize and Guatemala, and that as long as the territorial dispute is not resolved, there are no recognized boundaries between them. They clearly recognize as well that the reference markers DO NOT determine the international border between Guatemala and Belize, and that reference monuments are being questioned, not constituting boundary indicators.” Our endorsement of these confidence-building measures was therefore the second time our leaders have formally expressed mutual agreement with Guatemala that our boundaries are invalid.

Now let us turn our attention to the matter of treaties. To reiterate, the argument posited by proponents of the “Yes to the ICJ” position is that the immovable boundaries established by the 1859 treaty cannot be altered. However, contrary to this position, well-known Belizean attorney at law Arthur Saldivar, speaking on national television, opined that this contention simply illustrates that we are being subjected to a serious misinformation campaign.

 He explained that under law for the depravities of a treaty to remain in effect at least one of the parties to that treaty must always remain in adherence to what the treaty had established. So the minute Belize gave the ICJ the authority to determine our boundaries by endorsing Article 2 of the Special Agreement treaty they also joined Guatemala in expressing their non-adherence to the immovable borders that the 1859 treaty had established. The significance of this argument is that once again through the mutual agreement of both countries, and this makes the third instance, the boundaries established by the 1859 treaty have been invalidated and in consequence can be removed from their present location by the ICJ.

But even more alarming are the two elephants in the room that everyone overlooks. The first is the fact that we have in 2008 concluded a new boundary treaty with Guatemala which supersedes and nullifies the immutable boundary the 1859 treaty had established. Simply put, under the Vienna Convention on the Law of Treaties which the ICJ uses, specifically Articles 59 and 30 of that convention, when there are two conflicting treaties (2008 Special Agreement Treaty and 1859 Treaty) the newer invalidates the older totally or at least insofar as they are contradictory.

Since the older 1859 treaty had determined and established immovable boundaries and now this 2008 Special Agreement treaty authorizes the ICJ to change the location of the border, thereby indicating movable boundaries, the older immovable boundaries contention fails for a fourth time. For a more detailed explanation of this please refer to an article entitled “A sad tale of two treaties” appearing in a recent Friday edition of the Amandala newspaper.

(To be continued in the Tuesday, January 8, 2019 issue of the Amandala)

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