Should Belize decide in the upcoming 10th April referendum to settle the Territorial Differendum with Guatemala at the International Court of Justice, then the judges will have two boundary treaties to consider. These are the 1859 Boundary Convention and the 2008 Special Agreement (Compromis) treaty. The proponents of the government’s “Yes position” consider the 1859 treaty our ace in the hole, making it virtually impossible for us to lose even one blade of grass at the ICJ.

On the other hand, the Guatemalans consider the 2008 Compromis treaty their trump card as stated by Gustavo Adolfo Orellana Portillo of Guatemala who wrote, “The compromis itself consists of an achievement of great value for Guatemala.”

So the crucial question arises, who really has endorsed the better treaty, Belize or Guatemala? In order to correctly answer this question we need to consider the relevant facts. Let us therefore begin with an examination of the 1859 treaty.

The main argument by proponents of the “Yes to the ICJ” position is that Belize has its ironclad 1859 treaty that guarantees our legitimate ownership of the 8867 square miles we occupy. This contention, as Mr. Lindsay Belisle, former Boundaries Commissioner, has recently pointed out, is severely flawed.

In case you have not yet read Mr. Belisle’s article, let us begin our examination with the facts that he has revealed. The 1859 treaty clearly states that the territory to the North and East of our Western border line from Garbutt’s Falls running due North until it strikes the Mexican frontier belongs to Great Britain, and that the territory to the South and West belongs to Guatemala.

Now our Western border intersects with the Mexican frontier twice, but the treaty does not stipulate which one of these locations is considered the Mexican frontier. So, if the drafters of the 1859 treaty meant that the Mexican frontier is at Agua Turbias, which is the first intersection and most logical choice, the 25% of our territory that lies north of Agua Turbias (Latitude 17° 49’ North) would not be covered by the treaty. This is because Article 1 of the convention specifies that our territory extends East and North of the Western border, but only until the border line reaches the Mexican frontier.

So, if Agua Turbias is not the intersection mentioned in the treaty, the only other possibility is that the Mexican frontier stated in the treaty is at Blue Creek/ Rio Hondo which is the second point of intersection with our Western border.

However, even if this is the case, that would still not prove that the 1859 treaty established our ownership to the portion of Belize lying north of Agua Turbias. We would still lose the territory located North of Blue Creek/ Rio Hondo (Latitude 17° 55’ North). This loss would include parts of the Belize and Orange Walk Districts, all of the Corozal District and most of the island of San Pedro. Thus, solely based on the strength of the 1859 treaty, those “Yes to the ICJ” proponents living in the North are clearly not as safe as they may have been misled to believe.

Also, according to Article 1 of the treaty, Guatemala would then be the owner of the Mexican territory, to the west of that portion of our border which lies between the tri-point intersection at Agua Turbias and the Belize/ Mexican border intersection at Blue Creek/ Rio Hondo. This, needless to say, is obviously not the case.

Furthermore, even if it is correctly argued that the Mariscal-Spencer Treaty between Mexico and England signed 34 years later established our title to the portion of Belizean territory North of the first intersection of our Western border and the Mexican frontier (tri-point), this does not negate the fact that in any event, contrary to what the “Yes to the ICJ” faction contends, the 1859 treaty of itself, categorically does not guarantee our title to the 8867 square miles of territory we presently occupy. So this insistently harped contention is but another salient example of the misinformation the Yea-sayers and their campaigners are trying to sell us.

In addition to this, as Mr. Belisle observed, there is a serious contradiction in the very preamble of the 1859 treaty. Firstly it states that the Belize/Guatemala boundary, as of 1859, was undefined, then in Article 1 it states that the boundary was “as they existed previous to and on the 1st day of January 1850”. Also we know that the articles of that convention relating to the demarcation of the border by both countries were never properly complied with.

My point here is: since our “educators” were wrong in their assertion that the 1859 treaty is our bullet- proof title to the 8867 square miles we believe is ours, can we really trust them to correctly inform us (to make the right choice) on other referendum matters of crucial existential significance? Remember, according to the famous Renaissance French philosopher, mathematician, and scientist René Descartes, “…it is a mark of prudence never to place our complete trust in those who have deceived us even once.”

Another case in point is the mantra chanted by the Yea-sayers that all the legal opinions on Guatemala’s claim to Belizean territory so far given, culminating with the 2001 Legal Opinion by Sir Eli Lauterpacht et al, conclude that Belize has by far the better case should we go to the ICJ. Well, it should be remembered that when these legal opinions were written we had not yet concluded the 2008 Compromis boundary treaty with Guatemala. This has changed everything, as I will explain later.

Another point— much emphasis has been placed on the role played by Sir Eli Lauterpacht in advising our negotiators. When assessing the value of his involvement, one might be well advised to remember that the first loyalty and allegiance of most Englishmen, especially nobles, are to the Crown. And we know what the British position is on the Territorial Differendum, don’t we?

So in view of the aforementioned facts, one may well ask, is it even advisable to place our eggs in such a severely defective basket as the 1859 treaty?

Now let’s turn our attention to the 2008 Compromis treaty which Guatemala considers effectively guarantees them the Belizean territory they claim. Why do I say this?

Well, consider the following words from Gustavo Adolfo Orellana Portillo who is the Assad Shoman equivalent for Guatemala, “The trial will end with a judgment that definitely settles the territorial dispute submitted to the jurisdiction of the International Court of Justice. The pronounced judgment will settle the territorial claim of Guatemala over the land, insular and maritime territory and will grant Guatemala the areas it is entitled to, which Belize unilaterally occupies today. The judgment will also have to accurately establish the boundaries which will correspond to each one of the countries, and consequently, will order that said limits are marked in the field, thus completing the phases of demarcation of the eventual border”.

At this point you may well wonder why they are so confident of obtaining Belizean territory since according to the “education” we are receiving from the referendum unit and the other campaigners of our intellectual elite, the 1859 treaty bestowed us with immutable borders. While this may have been true prior to 1992, ever since the Joint Statement by Belize and Guatemala invalidating our international boundary with Guatemala, our successive governments have continued to erode the defense of our territorial integrity that the 1859 treaty had afforded us. This continued with our endorsement of the Confidence-Building Measures in 2005 and culminated with the signing of the feather in Guatemala’s cap —the 2008 Special Agreement (Compromis) treaty.  Let me explain.

When the ICJ evaluates successive boundary treaties, and the Special Agreement is a boundary treaty since Article 2 instructs the ICJ to determine our boundary based on the legal validity of the Guatemalan claims, they rely on the Vienna Convention on the Law of Treaties. The fact is 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, 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. This is a fact despite any denials that the Yea-sayers may make.

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 will be replaced by the now movable boundaries of the later 2008 treaty.

Now to those Yea-sayers who contend that boundaries once established by a treaty have never been moved by the ICJ, I would like them to educate me on a case where the ICJ has decided  to keep the original established boundaries, even when a legal claim is upheld, in a case like ours where a country concludes a successive boundary treaty with a neighbor authorizing the ICJ to determine their legitimate boundaries (which already had been determined by the first treaty) by taking into consideration any and all legal claims against their land, insular and maritime territory .

So, do not allow yourself to be misled by the deluge of propaganda and disinformation presently being hurled at us from all directions by proponents of the Government’s position. Use your common sense to discern the truth. Do you honestly believe that the Guatemalans are so stupid that they would endorse a treaty which enables them to present any and all legal claims against Belizean land, insular and maritime territory before the ICJ if it is true that even if the judges uphold any of their claims, the court will be unable to award them the territory the judges determine is theirs simply because of a previous treaty that prevents them from altering our boundaries? And even if you consider them that stupid, why would the court even entertain hearing such a pointless case?

Again, if this were true, why would they even bother to take us to court considering that their stated objective, which is even enshrined in their constitution is: to acquire Belizean territory. Surely you do not believe the fairy tale being told that they simply want to safely dismount the tiger they are riding, do you?

Nonetheless, even if the ICJ can move our boundaries, our erudite “educators” contend that the judges can find no legal reason to do so, as we are protected by Article 38(1) of the court’s jurisdiction which will only entertain legal claims unlike Article 38(2), which deals with fairness and equity on which basis Guatemala had always wanted to go. This article is reproduced for your perusal.

Article 38(1)    

1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
A. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
B. international custom, as evidence of a general practice accepted as law;
C. the general principles of law recognized by civilized nations;
D. subject to the provisions of Article 59, (i.e. that only the parties bound by the decision in any particular case,) judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

Now one of Guatemala’s main arguments for claiming Belizean territory is that they had been deceived by false inducements from the British into signing the 1859 treaty. They maintain a breach of agreement claim against the British which even our good Assad Shoman has admitted will most likely withstand legal scrutiny.

They had always felt that the court would be obliged to award them justice if the case were to be considered on a criterion of equity and fairness, ex aequo et bono as per Article 38(2) of the courts statute. Since neither the British nor later the Belizeans would agree to this, they steadfastly refused to take the matter to court until they, with assistance from their crafty friends, concocted the Special Agreement treaty and succeeded in outwitting the Belizeans to endorse it.

Having achieved that, their most probable line of reasoning is as follows: Their breach of agreement claim against the British will almost certainly be upheld under Item B, “the general principles of law recognized by civilized nations”, of Article 38(1) of the ICJ statute.  This belief is further strengthened by the fact that in arriving at a judgement the court will apply a form of equity called “infra legem”, as described by our friend Gustavo Adolfo Orellana Portillo. He wrote “… the Court has the faculty, ordinarily, to pronounce judgments that are to be as equitable as possible, in application of the principal and subsidiary sources of International Law. Application of the Law must aspire to the settlement of controversies between States in an equitable manner, therefore in a fair manner. This equity is called infra legem, because it complements application of the rules included in treaties, international custom or another authorized source.”

A case in point is the frontier dispute Burkina Faso / Republic of Mali in 1986 in which the International Court of Justice resolved: “Obviously the Chamber cannot judge ex aequo et bono in this case. The Chamber must also discard any resort to equity contra legem in this case, not having received from the parties the mission to proceed to an arrangement of their respective interests. The Chamber will not apply equity praeter legem either. It will, however, have regard to equity as it is expressed in its feature infra legem, meaning that form of equity which constitutes a method of interpretation of the law in force and one of its attributes. In fact, as the Court has stated ‘It is not only about arriving at an equitable solution, but about arriving at an equitable solution based on applicable law’…”

So we see that even under Article 38(1) the court will most likely uphold Guatemala’s breach of agreement claim against the British— but how can Guatemala then convince the court to award them Belizean territory? Well, 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 satisfy Guatemala’s legal claim against the British, or any other claim presented by Guatemala that the judges may deem legal is: by awarding them Belizean territory as compensation!

Of course the Special Agreement treaty allows Guatemala to make any claim they can imagine may receive legal support.  Reflecting on this our good aforementioned Guatemalan friend wrote, “This means that the Court will have to take cognizance of all, with no exceptions, the legal claims of Guatemala against Belize to ‘land and insular territories and to any maritime areas’ that generate as of the territories that are granted to Guatemala through a judgment. The latter composition does not limit the object of the petition; it does not leave any area that cannot be claimed by Guatemala. Furthermore, there would not be a limitation within this composition, in theory, to claim ALL of the territory occupied by Belize. And with the signature of the Special Agreement, Belize accepted this and granted competence to the International Court of Justice to assess and settle any Guatemalan claim. It was deemed ideal that the object of the dispute be established in general and broad terms, so that Guatemala could be free to define its pretentions at the moment of turning to the Court.”

So because of the unlimited latitude to make claims that this Compromis treaty grants Guatemala (since only the judges can decide which of their claims are legal), they may decide, for example, to claim the Northern portion of Belize not encompassed by the 1859 treaty as one of their claims was for the entire country. Then they may make further claims based on the fact that our Western border was never demarcated in accordance with the relevant articles of the 1859 treaty, or make other claims predicated on their take on the early Mayan inhabitance of Belize and the list may go on indefinitely. Belize on the other hand, will be obliged to pay expensive experts in international law and history to try and counter each of their claims.

One may well ask, can we, in view of our present economic condition, realistically afford this, and is the dubious potential reward we will most likely not even receive, truly worth the serious risk of losing our country or becoming a satellite of Guatemala? Also, allowing Guatemala to take us to court on this matter will open the door for other countries, like Mexico and Honduras, to join the case and lodge their additional claims against our territory with the ICJ. Indeed if we vote “Yes”, we will have effectively opened Pandora’s Box!

Sadly, all this could have been avoided as noted by the aforementioned Guatemalan legal expert since in his words, “A State cannot take another to the International Court of Justice, if it has not expressly accepted the jurisdiction of said organ. This submittal had not been previously accepted by the Belizean State; but now, the fact that Belize has admitted to settle the territorial dispute through the Court is an important diplomatic achievement for Guatemala.”

So let’s be clear on one thing. Should you vote “Yes” in the upcoming ICJ referendum it is analogous to you voluntarily agreeing for a neighbor who has an unfounded and unspecified claim against your legitimate property, to take you to court and accuse you of anything he fancies, all this without even having received a summons or a valid charge sheet. Honestly, how would you categorize someone who agrees to something like that?

Therefore, as we have seen, the 1859 treaty that our “educators” have assured us guarantees our ownership of the 8867 square miles is lethally flawed. On the other hand the 2008 Special Agreement treaty negates the immoveable boundaries the 1859 treaty had established and simultaneously affords Guatemala the very real possibility of legally obtaining Belizean territory should we be imprudent enough to vote “Yes” in the upcoming referendum.

In conclusion it is clear that the singular objective Guatemala has for taking Belize to the International Court of Justice is to legally acquire (which is the only feasible method available) a sizable chunk of Belizean land, insular and maritime territory. On the other hand the stated objective of Belize, in agreeing to have Guatemala sue us, is to obtain recognition from them of the boundaries we share.

Unfortunately, our government and their paid intellectual surrogates are ardently advocating that we must now urgently roll the loaded dice our enemies together with our disingenuous “friends” have engineered, with our territory and sovereignty at stake. And all this to satisfy the ludicrous overwhelming imperative (mad rush) of immediately resolving an issue we have lived with ever since our ancestors first occupied Belize. Furthermore, considering the dire alternative presently before us, our only logical choice is to refuse this poisoned proposed solution and continue, as we have always done, to live with this indefinitely if necessary— or at least until a satisfactory solution can be devised.

So beloved, as the old saying advises, sleep with your own eyes, or you may awake to find yourself a second class citizen in another man’s country, or even worse, a penniless refugee that no country wants.

On the other hand, if you are one of those “first Belizeans”, you may have nothing to fear.

Finally, having reviewed the relevant facts, which country do you believe has endorsed the better treaty to achieve their stated objectives? And do you honestly think that the inordinate litigation risk we will incur by going to the ICJ under such adverse circumstances, is really worth the recognition of what may remain of our borders after the ICJ decision? Is this recognition from the only country on earth who claims not to recognize our borders, a recognition so coveted by the Yea-sayers, really worth the risk of losing our territorial integrity and sovereignty, especially in view of the fact that whatever decisions the ICJ makes — we will irrevocably be forced to obey, but not necessarily Guatemala?

You decide.