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CSSPAR’s Gibson suggests way forward if there’s a negative outcome on the ICJ referendum

(condensed from a paper presented by CSSPAR coordinator, David Gibson, to UB faculty and students)

The Coordinator of the CSSPAR (Center for Strategic Studies, Policy Analysis and Research), Ambassador David Gibson, presented a paper to the students and faculty of UB, at the Jaguar Auditorium, on Thursday, 22nd March, 2018, for the purpose of highlighting Belize’s need to be ready for the next step in the event the referendum for going to the ICJ comes out negative. The CSSPAR believes the next step is an “internationalization strategy” with the objective of mobilizing UNGA (United Nations General Assembly) member state support for an ICJ advisory opinion, a “declaration on the validity of the treaty.”

Article 65 of the ICJ statute says, “The court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request.”

The CSSPAR says that “the tested observation about advisory legal opinions is that, although without binding effect, they carry great legal weight and moral authority. They are often an instrument of preventive diplomacy and have peace-keeping virtues.” The CSSPAR believes that an advisory opinion would validate the 1859 boundary convention between British Honduras (Belize) and Guatemala.

The CSSPAR paper, which is an update to a paper prepared in May 2017, follows a policy paper published by the organization in March 2016, in which it addressed “Belize’s diplomatic actions in respect to Guatemala’s ‘threat of force’ over the Sarstoon River, in breach of the 2005 Agreement on Confidence Building Measures.” The CSSPAR said that it recommended that Belize pursue intervention by the UNSC (United Nations Security Council) “in the face of the incapacity of the OAS Secretary General to secure Guatemalan compliance with an agreement to revert to the status quo ante respecting Belize’s traditional rights on the river.”

That paper also looked at the strategy to “engage the relevant organs of the United Nations to support, if necessary, an alternative path to finding a legal solution to the territorial dispute if the current OAS administered adjudication fails.”

The CSSPAR, in its paper, considered, made a “comparative analysis of the Guyana-Venezuela, Belize-Guatemala territorial disputes,” in its rethink of Belize’s diplomatic strategy. Three of the governments in the four countries have indicated that they believe that the path to follow is adjudication at the ICJ. Venezuela has rejected such a move.

But it’s full-speed ahead in Belize and Guatemala. Sometime next month (April 15) the people of Guatemala will decide, in a referendum, if they believe that Guatemala should take its case against Belize to the ICJ. If the Guatemalan people answer in the affirmative, Belize is scheduled to conduct its own referendum, sometime after it conducts a re-registration to clean up its’ voters lists in mid-year.

The short of the Belize-Guatemala story, according to CSSPAR, is that the path to the ICJ was initiated by the signing of the Special Agreement in 2008, “after the failure of all other dispute resolution processes.”

Drawing from the paper, the CSSPAR says the story begins with a US-influenced Boundary Convention between the UK and the Republic of Guatemala, which was signed on 30/4/1859 and ratified on 17/9/1859.

In 1860, there was some controversy over the cost sharing of a conjoint road (Clause 7 of the treaty). The estimated cost of this road was 145,360 British Pounds.

In 1860, pillars were erected at Gracias a Dios Falls and at Garbutt’s Falls, but in 1861 the British halted the surveys, before it reached the Mexican frontier.

In 1863, a cost-sharing treaty for the construction of the road was agreed on, but it lapsed six months later because Guatemala failed to ratify it. The British refused to renew the lapsed agreement when later on Guatemala was ready to do so.

In 1884, Guatemala declared that because of UK failure to honor road construction (Clause 7), it was renewing its claim to land it claimed it had ceded.

Border incidents led to an exchange of notes in 1931 for the continuation of the demarcation of the border in accordance with the 1859 treaty. Permanent markers were placed. In 1934; surveys were halted when Guatemala renewed its claim for Belize’s land. In 1939, Guatemala repudiated the 1859 treaty.

From thereon there was a protracted period of failed UK/Guatemala arbitration efforts, mediation, and negotiation. In 1962 Belize joined these efforts.

Between 1977 and 1981, Belize pursued a successful internationalization strategy for independence and a UK defense guarantee. The UK would say that it would defend Belize for an appropriate period, and after Guatemala recognized Belize’s independence in 1993, the UK reduced its military presence in the country to a training base. It did promise the Belize government however, that “in the unlikely event of a military threat developing…they will stand ready to be consulted…and that all options can be considered.”

Resolution 35/20 of the United Nations General Assembly, 1980, called on the UK to “continue to ensure the sovereignty and territorial integrity of Belize”, and for “relevant organs of the UN…to facilitate the attainment of Independence by Belize and to guarantee its security and territorial integrity thereafter.”

Between 1981 and 1990, negotiations between an independent Belize and Guatemala led to the MAA (1992), and Guatemala’s recognition of Belize’s independent status.

In 1994, Guatemala renewed its claim for Belize’s land, and in 1999 it defined the extent of its claim, which included Belizean territory from the Sibun to the Sarstoon, and cayes, except for Saint George’s Caye.

In 2000, both countries agreed to an OAS negotiation process, but in 2002, when the facilitators, Ramphal and Reichler, presented their proposals, the Guatemalan government rejected them. (Ramphal and Reichler had called for, among other things, Guatemala’s full recognition of Belize’s territory) Following this failure, in 2007 the OAS Secretary General recommended that the matter be adjudicated at the ICJ. In 2008, the Special Agreement for the ICJ was signed.

The referendum on the ICJ could have a negative outcome. The CSSPAR considers that the “outlook for an affirmative vote is not encouraging.” It says this is mostly due to “perceived weak management of diplomatic relations with Guatemala by the Government of Belize.”

Another factor which the organization says could yield a negative vote is the objection of Belizeans to a court being asked to “demarcate borders which they consider to be already defined and demarcated.”

The CSSPAR also says that the “legal competency” of the government took a hit by government failures at the CCJ (Caribbean Court of Justice).

The CSSPAR fears an “undesirable extended dormant phase” could set in if Belizeans were to vote NO to the ICJ. (The organization feels that the Guatemalans will turn in a YES vote when they cast their ballots on April 15.) For this reason the organization is calling for the government to prepare for this eventuality. It says an “alternative diplomatic strategy, which continues to adhere to the juridical path, directed towards executing the necessary steps for obtaining an ICJ advisory legal opinion and declaration on the validity of the 1859 Anglo Guatemalan Boundary Convention,” is the path to follow.

The CSSPAR declares that an ICJ advisory legal opinion is “the key issue over which Guatemala has not been sufficiently challenged…over the years.” In fact, it says, “that country has artfully avoided” such “an objective legal examination of the validity of its action in 1939 to repudiate the 1859 Boundary Convention.”

The CSSPAR notes that it is a concern for Belizean officials that the UK has maintained an “even handed” approach since 1994. The organization believes that Belize needs to bolster its position by engaging the UK “for its support of the transitional arrangements at the level of the Security Council and in the UNGA”, to adopt the ICJ advisory legal opinion initiative. It argues that it is especially important for Belize to secure British support, since Guatemala, after supporting the US’s call for the recognition of Jerusalem as the capital of Israel, has improved its relations with that country.

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