I have heard the opinion expressed that Article 59 of the Vienna Convention on the Law of Treaties does not apply to the 1859 and 2008 Special Agreement treaties since the parties concluding these two treaties were different. Also some have questioned whether or not international treaties trump domestic laws. Kindly allow me to express my point of view on these matters.
To begin please refer to Article 59 below written:
Termination or suspension of the operation of a treaty implied by conclusion of a later treaty:
1. A treaty shall be considered as terminated if all the parties to it conclude a later treaty relating to the same subject matter and:
(a) it appears from the later treaty or is otherwise established that the parties intended that the matter should be governed by that treaty; or
(b) the provisions of the later treaty are so far incompatible with those of the earlier one that the two treaties are not capable of being applied at the same time.
Clearly, the parties to the 1859 boundary treaty were the administrating power of Guatemala, which is the Guatemalan government, and the administrating power of British Honduras, which was the British government. Likewise the parties to the 2008 Special Agreement boundary treaty were the administrating power of Guatemala, which is the Guatemalan government, and the administrating power of British Honduras, now called Belize, which is the Belize government.
So it follows that the parties to both these boundary treaties are the then administrating powers of the very same countries (Guatemala and Belize, formerly called British Honduras). Only some names have been changed, but from my viewpoint, the substantive parties remain the same.
Also the immovable boundaries established by the 1859 treaty are so far incompatible that they cannot be applied simultaneously with the movable boundaries established by the 2008 Special Agreement treaty. Therefore, in my opinion, all the conditions for Article 59 to apply have been fulfilled.
Additionally, if it were not the case that Belize inherited the boundaries established by the British Honduras 1859 Anglo-Guatemalan treaty then it seems to me that those boundaries could not have legitimately incorporated into schedule one of our constitution.
Nevertheless, whether Article 59 applies or not is really a moot point. This is because simply endorsing Article 2 of the Special Agreement removed by mutual consent and agreement the immovable attribute from the borders established by the 1859 treaty. Article 2 of the Special Agreement treaty also contains the court’s terms of reference which establish how the parties intend that the matter should be governed. Clearly, in any case, this directive is what the court will use when deciding the matter.
Now let us turn our attention to the question of whether or not an international treaty will trump the internal laws of a state. Kindly refer to Articles 46 and 47 of the Vienna Convention on the Law of Treaties that follows:
Provisions of internal law regarding competence to conclude treaties:
1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance.
2. A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith.
Specific restrictions on authority to express the consent of a State:
If the authority of a representative to express the consent of a State to be bound by a particular treaty has been made subject to a specific restriction, his omission to observe that restriction may not be invoked as invalidating the consent expressed by him unless the restriction was notified to the other negotiating States prior to his expressing such consent.
To my knowledge, no mention of the fact that our constitution requires the approval of a super majority of the legislature to change schedule one was made to Guatemala when the Special Agreement treaty was ratified. Of course a final determination of this issue will be up to the judges.