The Government’s concerted effort for us to vote on 10th April next year to take the territorial differendum with Guatemala to the International Court of Justice for final and binding resolution using the 2008 Special Agreement [Compromis] as the court’s terms of reference, continues to intensify. At his recent press conference the Rt. Hon. Prime Minister announced that additional brain power was being recruited by the ICJ referendum education unit to properly inform us on the “facts” so that we can vote accordingly in the upcoming referendum.

Even so, I have observed that there are very important facts omitted from the presentations of those who promulgate the official position taken by the Government. I therefore wish to direct your attention to some of these omissions that may well be considered the real objective and unbiased facts of the matter. Having a holistic knowledge of the facts should assist you in deciding how to cast your referendum vote in this most crucial decision that could determine if Belize  continues to exist as we know it, and also if a significant percentage, if not all, of our people are destined to become Guatemalans, Mexicans or refugees. So let us begin.

According to the distinguished senior diaspora Belizean, Mr. Compton Fairweather, Guatemala and Belize have had 200 meetings and conferences just from 1978-1981 in an effort to resolve the territorial dispute. Yet nothing of significance towards a solution had resulted from all of these meetings. The real fact is that this is not at all surprising.

All that Guatemala, along with her self-serving friends and covetous handlers, has ever really wanted from Belize is an extortionate portion of its most valuable, mineral-rich, beautiful and pristine territory. Recently it was reported on Love Television that a Caribbean Ambassador to the Organization of American States had posited that if a” No” vote prevails in the April referendum, we will then be forced to negotiate a settlement with Guatemala. The tragic reality is that as long as the present oligarchy /military coalition retain hegemony in Guatemala, it will continue to be an exercise in futility to try and negotiate any satisfactory settlement of the territorial dispute which does not include the cession of Belizean territory.

Surprisingly, however, after years of Guatemalan intransigence, the OAS drafted a Special Agreement by which Guatemala finally agreed to take the dispute to the International Court of Justice for a final legal resolution. Our Belizean negotiators have cited this as a great achievement for Belize, providing a once-in-a lifetime opportunity for us to finally settle the Guatemalan territorial claim. The burning question, however, is why did they agree?

The sad truth is that they exuberantly agreed simply because our outclassed and outmaneuvered Belizean negotiators, having finally accepted the reality of what Guatemala et al really want, saw no other viable alternative to settle the dispute other than to  empower the ICJ judges to cede Belizean territory to Guatemala in compensation for  “any and all legal claims” that they can sustain against our territorial integrity, while at the same time giving the court the authority to determine their “rights” over the sovereignty of what may subsequently remain of our nation!

This was done when Belize, in concert with Guatemala, endorsed the 2008 Special Agreement as the terms of reference the ICJ will use in resolving the territorial dispute. Guatemalan voters, knowing that they had absolutely nothing to risk or lose, have already voted “Yes” in their referendum (although only about 26% participated), and all that now remains to set the plan in motion is for the Belize government to convince our voters to say “yes to the ICJ “in the upcoming referendum.

So the crucial question arises, does Guatemala really have any legal claims to Belizean territory and if so, what are they? Let us therefore direct our attention to what they may claim.

The first thing that comes to mind is their contention that the British tricked [some have suggested coerced] them into signing the 1859 boundary treaty by including a compensatory Clause VII after they had categorically refused to sign the first draft. Since the Brits, even after subsequently offering them monetary compensation, in the end failed to pay them anything, they will most likely make a “ legal claim” against Belize for obtaining [thru the Brits] territory by deception.

It should be noted here that the eminently qualified authors of the 2001 Advisory Legal Opinion on the territorial dispute opined that there is no moral or legal reason for Belize to have assumed responsibility for this British obligation. Nevertheless, Belize’s endorsement of the “any and all legal claims” in Special Agreement renders this a moot argument.

You should also be aware that the trap set by the “any and all legal claims” contained in the Special Agreement, is not limited only to Belize being forced to assume responsibility for the Brits’ obligation to Guatemala, but also for any other argument the court may consider relevant, including any disclosed or undisclosed mutual agreements or concessions made by Belize to Guatemala. This could expose us to unknown risks and cost countless millions of dollars in legal fees and years of unending litigation.

Still, to make their claim legitimate they will have to show that the territory claimed was theirs in the first place. Their first argument might be that the area claimed was originally a part of the province of Verapaz that later became present-day Guatemala when they succeeded to Spain’s title by the doctrine of uti possidetis juris after the dissolution of the Central American Federation. If this argument fails they may pull a hidden rabbit from their hat and present documentation to prove that Spain had indeed transferred its original title to them, as they had requested in 1821. Failing this, they may argue effective occupation.

Dr. Angel Cal, a well-known Belizean historian and former President of the University of Belize, has informed us of the following facts. There is archival evidence existing in Guatemala, Seville and Mexico City that clearly show that the portion of Belize claimed by Guatemala was never unoccupied territory (terra nullius) as the British claimed. These records show that from and before the fourteenth century to 1821 when Guatemala became independent, and thereafter, there were large numbers of Mayans living in villages near every river from the Sibun to the Sarstoon. Furthermore, the archives reveal that they had even paid land taxes to the administration in what is presently Guatemala and that missionaries were dispatched from there to Christianize these people. Of significance also, is the fact that the Guatemalan Government declared them to be citizens of Guatemala from 1823. There is archival evidence that even a census was performed by the Spanish administration.

Dr. Cal also referred to two land grants given by Guatemala. One was made to a British company, the Eastern Coast of Central America Commercial and Agricultural Company. This company was granted some 14 million acres in the Guatemalan province of Verapaz – a grant which included the whole of the area of British Honduras between the Sibun and the Sarstoon. The other grant was made to a certain Colonel Galindo, an Irishman, who was a British subject. This lay between the Belize and the Hondo Rivers.

Even more alarming is Dr. Cal’s statement that Guatemala, on achieving independence in 1821, had asked Spain to transfer to them their title for the area of Verapaz occupied by the then British Honduras. He further claims that, to his knowledge, no one except Guatemala and Spain know if Spain had acceded to this request. If this had indeed been done, then the contention of Guatemala’s inability to claim succession to Spain’s title by the doctrine of uti possidetis juris becomes irrelevant.

In view of these facts, who do you think would have the stronger case for effective possession, Guatemala, by virtue of her Mayans who had been declared Guatemalan citizens from 1823 and have inhabited the land from antiquity to the present day, or log cutting interlopers whose occupation was not even confirmed as an official British colony until after Guatemala’s declaration?

Now even if it is established that Spain did not transfer its original title for Verapaz to Guatemala in 1821 and additionally, all their other arguments fail, one salient fact remains. When Guatemala signed the 1859 Treaty that had established the international boundary with British Honduras, they legally relinquished any prior rights they may have had to Belizean territory.

Guatemala knows this very well. That is the precise reason they had steadfastly refused to go to court to legally validate their contention of having unilaterally revoked the 1859 border treaty. As proponents of the Yes-to-the-ICJ have correctly pointed out, Clause VII was never material to the establishment of the international boundary established by the treaty. Even if it were true that the treaty had been nullified, the boundary it had established would still remain.

This is the cornerstone argument for the strength of a case based on confirming the validity of the international boundary established by the 1859 Treaty. And this is the very same argument that the Yes-to-the–ICJ faction continues to use in their attempt to [misleadingly] teach us the “facts” and thereby educate us to choose “intelligently” by voting “Yes” in the upcoming April referendum. So what is wrong with this picture?

Firstly, if we vote to go to the ICJ in the upcoming referendum the case the International Court of Justice will be asked to rule upon  is [contrary to what the presentations made by those promulgating the  position taken by Government implies] not the validity or the confirmation of our borders with Guatemala as were established by the 1859 treaty. Rather, the ICJ will be asked to rule on what is contained in Articles 2 and 5 of the Special Agreement which are reproduced below for your perusal.

Article 2

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 5    

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.

Simply put, the judges will be asked to finally define and position our real boundaries with Guatemala in accordance with the portion of Belize they determine is Guatemala’s just compensation for its “any and all legal claims” against the 8867 square miles of illegitimately-held Belizean territory. Additionally, they will be asked to determine Guatemala’s “rights” over the remainder of Belize, if any is left after they pronounce their judgment.

The question of the validity of the 1859 Treaty and the immutability of the international boundary it had established will be extraneous to the ambit of their deliberations since it is not a part of the Special Agreement which will be the judges’ terms of reference when deciding the case. Our former internationally-recognized boarders will only be used as the base line in calculating the area of Guatemala’s entitlement when they establish the new position of the real boundary between the two countries. This is the one and only way they can recompense Guatemala, since there is no provision in the Compromis for financial compensation.

Given the reputed superlative competence and experience of the world-class advocates Guatemala has assembled to argue her case at the ICJ,  conflated with the peerless geo-political power and overwhelming influence of her friends, juxtaposed against Belize’s disastrous track record at international litigation, I really cannot see them walking away empty handed from a deal-so-sweet. Even our learned Foreign Minister recently commented that we might not obtain 100% satisfaction. What do you think?

Secondly, once the court rules in favor of Guatemala we will have no recourse but to abide by whatever judgments are handed down. When the gavel at the ICJ falls, all the support our valiant predecessors  had so arduously garnered from the United Nations resolutions and the international community which has protected us from annexation by Guatemala for the past quarter century since the British withdrew their defense guarantee, will immediately disappear.

Guatemala shall then righteously and bloodlessly proceed, with the blessing of the world, to legally annex over half of our territory or whatever percentage thereof the judges award them. And even worse, Mexico may then decide to make good on the caveat it issued when establishing our Northern boundary, to reclaim the remaining portion if Guatemala is ever given a bite of Belizean territory. So now my friends of the “yes  to  the  ICJ” persuasion, if this transpires, how many do you think of those 53 Commonwealth countries with their millions of people that the Rt. Hon. Secretary General said will have our back at the ICJ, shall then intervene to prevent Guatemala from claiming her ICJ prize?

Thirdly, even if the court decides as a consequence of divine intervention, which is the only way that I can envision such an outcome, that Guatemala has no legal claim, then it will be totally up to them to abide by the court’s decision. Given that we live in a global community of countries where might makes right, they may well decide, as their friends have often done, to simply disregard the judgment of the court.

This would just be a repeat of the way they disrespected the United Nations resolutions and the 97.5% of member countries who voted for our independence and territorial integrity in 1981. Appealing to the United Nations Security Council would be a waste of time as their formidable friends could simply use there veto power to kill any resolution to enforce the judgment if it even got that far.

In continuation, the “Yes-to-the-ICJ campaigners have cited in support of their position, the 2001 Advisory Opinion Belize had commissioned on the Guatemalan dispute. I will concede that the conclusions arrived at and opinions expressed by the eminently qualified authors of that document are legally and logically sound. These, however, refer primarily to the legal validity of the international boundary established by the 1859 Treaty.

Furthermore, when that document was written the authors were not aware of the new 2008 “International Boundary Treaty” between Belize and Guatemala, as it was categorized in a seminal background and study of the Special Agreement by Gustavo Adolfo Orellana Portillo of Guatemala.  Interestingly, in that same document he also stated, “The compromis itself consists of an achievement of great value for Guatemala.”

Even though most local attorneys-at-law have been chillingly silent on the subject, seemingly fearless and well-known Belizean attorney Arthur Saldivar, recently speaking on the Plus TV Rise and Shine morning show, opined that we are being subjected to a serious misinformation campaign. He explained that under law for a treaty to remain in effect at least one of the parties to that treaty must always remain in adherence to what it had established.

To be continued in the Tuesday, November 13, 2018, issue of the Amandala.