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Saturday, April 13, 2024

To – David


Young sailors stand on the shoulder of a Master and Commander: Charles Bartlett Hyde

Photo: (right) Charles Bartlett Hyde Contributed: Harbour Regatta...

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A tribute to C.B. Hyde Saturday, April 6,...

A theoretical analysis: Why we MUST vote NO …

FeaturesA theoretical analysis: Why we MUST vote NO ...

Continued from the Friday issue of the Amandala

As I further scrutinize the Joint Statement, I noticed that while Belize and Guatemala were “strengthening the bonds of mutual cooperation,” apparently a disturbing revelation suddenly emerged: “Guatemala and Belize, as two sovereign 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.” May I ask what the other elements are?  Also alluded to at the bottom of the Joint Statement is “existing reference monuments” on which the “execution and implementation will be based.”  Where do these “monuments” exist?  Where on paper can we find them? Or are they shrouded in mystery? They seem important!

 Two years later, in a letter dated 4 March, 1994 from the Minister of Foreign Affairs of Guatemala addressed to the Secretary-General, he makes reference to the Belize-Guatemalan Joint Declaration also dated 31 July 1992 in which he states, “both States recognize that their territorial and maritime boundaries are not defined.” Really? This is outrageous! How did we go from an 1859 Treaty that clearly defined our borders to both states “recognize they are not defined”? This is an outright betrayal of our trust by our leadership.

But there seems to be some kind of disconnect here: the date the Guatemalan FM cites on the Joint Declaration is the same date on the Joint Statement, but the Statement speaks of “establishing” boundaries while the Declaration “recognize” undefined borders.  Both ideas are equally compromising and repulsive, but I highlight the differences in wording because it suggests the existence of two separate documents? Is there another document or is the FM conflating the two? Did they sign a Joint Declaration and released a Joint Statement on the same day perhaps? Could the “Declaration” contain the monuments? We don’t know, do we?

What I do know is: all declarations are statements, but not all statements are declarations. A declaration (also called a sworn statement or a statement under penalty of perjury) is a document that recites facts pertinent to a legal proceeding. It is very similar to an affidavit, but unlike an affidavit, it is not witnessed and sealed by an official such as a notary public. I have seen a copy of the Joint Statement and I can assure you, it is not sealed or signed by a notary, but would the Declaration be? Who knows? We are too deep inside the rabbit hole is all we know!

In 2003, the Secretary General of the OAS jumped in the fray and took Belize further down the rabbit hole with discussions “aimed at concluding an Agreement to Establish a Transition Process and Confidence Building Measures between Belize and Guatemala within the framework of a just, equitable and permanent solution to the territorial differendum between the two countries.” (Is differendum even a word? Google it!) Belize once again capitulated by now agreeing to move our borderline conceding but not totally conceding ground by way of an “Adjacency Zone.” A cleverly slick move by any stretch of the imagination!

The Parties agreed that the General Secretariat shall establish an office in the Adjacency Zone with the following functions:
• To organize and foster community-to-community contacts across the Adjacency Line;
• To develop and execute activities designed to improve relations, confidence and cooperation among the inhabitants of the Adjacency Zone;
• To verify incidents which may occur in the Adjacency Zone;
• To verify transgressions by the Parties of the confidence-building measures contained in this Agreement;

The reasons given are as phony as the paper it’s written on, but you can read more here: http://www.oas.org/sap/peacefund/belizeandguatemala/Agreement2005.pdf

I am completely baffled why, and what merited an Adjacency Zone in order to “confidence build,” but Belize once again capitulated and compromised a piece of territory to Guatemala, and now Guatemalans are occupying it without enforcement! This brazen move is significant because it led us further down the rabbit hole: five years later in 2008, Belize and Guatemala agreed to “submit Guatemala’s territorial, insular and maritime claim to the International Court of Justice (ICJ).” I would argue this whole spectacle was nothing more than a ruse: while Belizeans got upset and focused on the Adjacency Zone, we overlooked the most egregious, compromising aspect of this “confidence building” measure: the terms and conditions stipulated therein if Guatemala wins at the ICJ, but stipulates nothing if Belize prevails. Article 5, of the Special Agreement, often referred to as The Compromis for good reason, is really what should send shivers up and down our collective spines, because in my opinion the fix is in.

Here’s what Article 5 states, and the Government of Belize agreed on: “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.” I would argue the assumption and idea behind this wording is significant because, based on how the ICJ works, they can rule but cannot necessarily enforce, so from the standpoint of Guatemala, it is important to add an extra safety net by securing in advance an “ironclad” and binding agreement from our jesters that does not provide an escape route for Belize! I will address how the ICJ works later.

Subsequently, in 2013 Belize and Guatemala agreed to a joint ICJ referendum date, but Guatemala postponed the date and pushed to rectify our referendum threshold claiming that because Belize changed its Referendum Act to a 60% threshold, they would not go. Guatemala wanted a simple majority and, yes, you guessed it, Belize once again capitulated and changed our referendum to a 51% threshold: a simple majority!

If anybody, after ready this chronology of events that leads us to the ICJ, thinks the people of Belize are not being bamboozled into going deeper into the rabbit hole, I have land in Florida I’d like to sell you. I would argue the road to the ICJ has been calculated, methodical, disingenuous, and deceptive. I conclude this simply because our leaders cannot possibly be this collectively stupid, naïve, incompetent or unknowing so we must ask ourselves what compels their behavior? It is abundantly clear that time after time they have not made decisions in our best interests.

I would also argue that with all the capitulations and concessions already made by Belize to Guatemala, the ICJ judges will have no difficulty making a decision favorable to Guatemala.  The evidence will show Belize has never put up a fight to protect her territory, they have given Guatemala all the leverage they need to argue their case, and the idea that this is a dispute is a moot point. How can we now go to Court and argue we are being wronged? How do we go back on our word after making concessions? Would that not be perceived as dishonesty? As being disingenuous? Time after time the stage has been set by our leaders in favor of Guatemala. As a matter of fact, the ICJ likes to appease both sides in a dispute, and Belize has already shown our willingness to capitulate and appease so there’s that. Belize has been Guatemala’s greatest champion and advocate to their cause thanks to our leadership!

We’ve been led by these jesters right down the rabbit hole and now they have the gall to say to us trust me our case is “ironclad”? They have the gall to try to coerce us into a YES vote?  Simply put, going to the ICJ is just another manufactured ploy to get us to lose more territory to Guatemala in my opinion. When the ICJ ends badly for us, it gives our leaders an out: the first thing you will hear them say is, “Da noh fuh we fault! We put it to a referendum and dah unu vote for it! We neva know dis mi wah happen! Da unu vote for it!” Then they will walk away blameless and happy with their pockets full of money…I do believe that!

So exactly how much donated money did both Parties receive to sponsor this referendum? The numbers floating around for Belize, based on hearsay, is around US$10 million and for Guatemala around US$40 million. Let that sink in! Should we not demand budget transparency; a full disclosure of how this money is being spent, who is on the payroll, what the money is being used for? If GOB really wants us to believe in their integrity, disclose who is on the payroll. Let’s have full transparency. I bet many of them would run for cover.

With that said, I am now forced to take into account not just their capitulating and conceding behavior, but also their apparent lackadaisical attitude toward all arguments made regarding the risks of going to the ICJ, the Constitutional violations pointed out to them, the one-sided educational campaign that favors the YES vote, the lack of interest in knowing what evidence or arguments Guatemala will be bringing to the table, and their lack of concern that so many Belizeans are being disenfranchised from participating in the vote. Let me address some of these issues that should be of concern to all Belizeans:

 First, the Belizean people have not heard one word from the brilliant, international lawyers who will be representing Belize at the ICJ. It would be nice to hear their arguments, assessments and perhaps their reassuring voices that our case is “ironclad”, but I have a sneaky feeling they will not be getting on TV to make any such pronouncements. Once they present themselves to us, we should assess their capability, their integrity, their experience, their knowledge of the 1859 Treaty, their opinion on The Webster Proposals, The Heads of Agreement, The Maritime Act, the Special Agreement/The Compromis, and everything else in between so We, the People, can assess exactly how the actions of our Government over the years have compromised our case.  We would also want to know how many cases they have argued in Court, their track record of winning, their track record of conceding territory, along with what they had for breakfast (I’m not kidding about that either).

Secondly, it has been suggested that Belize has no idea the extent of what exactly Guatemala will be claiming when they show up at the ICJ. Is it the whole country? Is it half the country? Is it more maritime waters? Seabed? What? Does GOB know? I’m hoping the answer to that is no, but then again one must reflect on their past behavior. No one in their right mind agrees to show up to Court not knowing the scope of why s/he is there? Or not knowing what evidence the opposition will produce and present? Should we not know the answer to this so we can prepare our counter arguments? Or do a risk assessment based on evidence, claims, or whatever? But these are the circumstances under which our government is promoting a YES vote!

For the record, in the common law of jurisdictions, discovery is a pre-trial procedure in which each party, through the law of civil procedure, obtains evidence from the other party by means of discovery meaning GOB can ask for production of documents.  It is aptly named “discovery” because it often turns up facts and documents that were previously unknown to the other party.

The idea behind discovery is that both sides should share information before going to trial. That way, a trial can proceed smoothly, without parties requesting information from each other and otherwise holding up the process. During the pre-trial phase, you will be asking for information from the other party and responding to their inquiries as well. If you go to Court not knowing what the other party will present, it becomes trial by ambush! How stupid can we be? It will make us look fool-fool! A bloody joke! Cunumunu! Just like Nigeria lady said their country looked and felt.

Thirdly, many Belizeans cannot vote in the ICJ referendum because GOB has not made an effort to include the diaspora in a very important vote that will determine the future of our country: will our borders remain 8867 square miles, along with our shortened, 3-mile maritime waters? More egregiously, Guatemalans who have acquired Belizean citizenship “illegally” and in violation of our Constitution, will be able to vote not only in Guatemala’s ICJ referendum, but they can also vote in ours. Yet our leaders continue to whistle pass the graveyard tone deaf.

Our Constitution clearly states that citizens from any country that claims Belize cannot become naturalized Belizeans, which would ultimately give them not just the right to vote, but the right to run for office and the right to lead our nation. Indeed, Guatemalans can become Prime Minister, but some born Belizeans cannot. Resident cards yes, but our Constitution says NO to citizenship! Why are our leaders capitulating to Guatemalans while ignoring our Constitution?  Are we hell bent on our Belizean identity being absorbed? Our Belizean culture annihilated?  Our Government is asking Belizeans to “trust” them and vote yes to the ICJ when all we have to go on is evidence of their compromise and failed leadership!

To be clear, I am not calling anybody a traitor, but the definition of one is a person who betrays a friend, a principle, stops being loyal to their own country, or is false to an obligation or duty!

Finally, Belizeans need to understand a few things about the ICJ and what “arbitration” really means:

1. The ICJ won’t take a case unless both nations admit there is a dispute. Therefore, Belize should never have agreed there is a “dispute”; it is OURS and as the saying goes “possession is 9/10’s of the law.”

2. In cases where disputes are difficult to resolve, the ICJ generally makes a “compromise ruling” or what lawyers in child custody battles refer to as “the splitting the baby” i.e. Belizean leaders love capitulating and compromising so Guatemala will either get territory or maritime waters and we already know they want from the Silk Cayes down to the Sarstoon… And just as a perspective, the Silk Cayes and Ranguana Cayes are not out there in the great blue beyond; they are 40 minutes from Placencia, are much-used tourist diving, fishing and snorkeling areas and the entire area is the life blood of its neighboring communities. My fellow Belizeans, when you show up to vote in the ICJ referendum on April 10th, just imagine Guatemalan gunboats patrolling and kicking our fellow Belizeans out of this area. Another side note: In a similar dispute between Chile and Peru in which the ICJ ruled, experts had estimated the fishing catch alone in the disputed territory was worth US$200 million per year. Let that sink in! Besides fishing and the tourism industry in southern Belize, imagine what this would mean for Belize as a country if oil and minerals exist under our seabed? Why risk losing that economic benefit?

3. The ICJ is a very sophisticated “political” environment and a “Permanent Court of Arbitration.” (Political meaning there is always the possibility that backroom deals and negotiations are being brokered that we may not be aware of. We are dealing with judges from other countries who may need a favor in exchange for something more important to their country than anything Belize has to offer. An example is China’s dispute with Japan over territory: Japan refuses to go to the ICJ because they recognize China’s economic power which is far greater and far-reaching than anything Japan will ever be able to muster up, therefore, they refuse to take the risk; Japan is being smart!

4. So what exactly is arbitration? Arbitration is a simple way to resolve disputes. It is voluntary, but the result of an arbitration is binding. The charge frequently made is that arbitration generally results in some form of compromise ruling to appease both sides.

5. The submission of a dispute to arbitration means the two parties have agreed in advance to comply with the award or outcome whether you agree with it or not. Proponents also point to the greater flexibility with which parties in arbitration can “fashion the terms and rules of the process,” which is what Guatemala appears to have done. (I refer you to my earlier argument regarding Article 5 of Special Agreement/Compromis.)

6. Ultimately, the decision to use arbitration “cannot be made lightly.” Parties who agree to arbitration are bound to that agreement and also bound to satisfy any award determined by the arbitrator(s).

7. MOST IMPORTANT: arbitration allows “little or no option for appeal,” expecting parties who arbitrate to “assume the risks of the process.” The stakes are much too high for Mickey Mouse lawyering.

8. Generally speaking, in some cases judges are often guilty of partiality and corruption. (Politicians too!)

9. The ICJ cannot enforce its will on any nation that has the ability to defend itself. An example of that would be the Israeli/Palestinian dispute. If Palestinians take Israel to the ICJ and the ICJ rules against Israel, it means nothing because Israel can defend itself and does not have to abide by the ICJ ruling. Belize is not in a position to do that against Guatemala.

This brings me back to my “puzzlement” and me trying to decipher, unravel, uncover, the reasons why GOB is so hell bent on taking us down this rabbit hole we call the ICJ. I’ve been contemplating this tangled web for some time now and so many what ifs continue to plague me: What if Belize had better negotiators representing us? What if some of our politicians were not so corrupt that we could actually believe in their integrity and take them at their word? What if they didn’t capitulate and concede so many times? What if we did not suspect that GOB may not be acting in the best interest of our country? What if we could be a fly on the wall when they negotiate with Guatemala? What if there are backroom deals being made? What if we had the capacity to “follow the money” (that famous dictum from the Watergate era)? What if there are rich minerals and oil under our seabed that’s being negotiated away?

BELIZEANS, once again it’s up to us to stop this train wreck. I appeal to all my fellow Belizeans to please register to vote and on April 10, 2019 go out and vote Hell NO to the ICJ!

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To – David

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