What Guatemala can’t prove before the ICJ!

Three years ago, in THE REPORTER’s “Road to Referendum” column, the generalities of Belize’s legal position against the Guatemala claim were discussed. The column’s articles were founded predominantly on the “Legal Opinion on Guatemala’s Territorial Claim to Belize” (henceforth referred just as the Legal Opinion), written in the early 2000’s by a quadripartite of the best minds in international law.

The first installment in that brief “Road to Referendum” series, entitled “Belize Legal Position Part One”—which could still be found on The Reporter’s website—outlined briefly some of the cornerstone arguments that have led pretty much every legal professional to declare that Guatemala has no case, while simultaneously underscoring the “ironclad” nature of our position.

Time and space does not permit for a revisiting of those positions in this current article. Instead, this Ripple Effect intends to look at an area that has been the source of valid concern for most Belizeans, especially when it is explained to them that we won’t definitively know what Guatemala’s precise arguments will be before the International Court of Justice (ICJ). This is a point that even one of Belize’s foremost experts on this issue, Dr. Assad Shoman, raised in his 2013 book “How YOU Can End the Guatemalan Claim”—which any concerned Belizeans can obtain a copy of free of cost from the International Boundaries Unit (formerly the Belize Referendum Commission). Shoman, who has a PhD in History and years of experience on this issue, stated:

“I do not intend to set out here the legal case that either Guatemala or Belize will present. … In any case the Special Agreement requires that Guatemala first submit a ‘Memorial’ where it sets out the basis of its claim, and then Belize will submit a ‘Counter Memorial’ refuting those claims and stating its own case. So UNTIL we see Guatemala’s Memorial, we cannot say for sure what reply will be required of us” (2013, p. 58).

Standard of Proof and Evidence

This singular point has been the source of much disquiet among some Belizeans, and it is not difficult to understand why. After all, this is a claim regarding the territorial integrity of our homeland. However, while we can’t say precisely what the Guatemalans will claim, we do know—in accordance with international law—what they’d have to prove.

Again, I refer to Shoman’s work, in which he writes:

“In order to uphold its claim before the Court, Guatemala must prove all of these things, among others: (i) that Spain was in effective occupation of our territory in 1821; (ii) that Guatemala had title to the territory of Belize in 1859; (iii) that the 1859 Treaty was a Treaty of cession; (iv) that Article 7 was the compensation for that cession; (v) that Britain alone is responsible for not implementing that article; (vi) that as a result of that the Treaty became void in its entirety; (vii) that consequently Guatemala has title to the territory; (viii) that the 1931 Treaty7 has no effect; (ix) that Guatemala, and not Britain and Belize, exercised sovereignty and peaceful possession and administration over the disputed territory. Guatemala cannot prove ANY of these things” (Shoman, 2013, p. 58).

Similar Point in Legal Opinion

The aforementioned Legal Opinion had also listed nine general points that summarizes Guatemala’s position. After having given said outline, the authors proceeded to state the following:

“We have given careful consideration to the various presentations by Guatemala of its position. We believe that they are in a number of crucial respects so wrong as to make the Guatemalan case unsustainable” (Legal Opinion, page 9).

There is a reason why we call the Guatemalan claim “unfounded”: it has no real foundation in legal fact. However, I doubt most Belizeans need to be convinced of this, as our rightful possession of title to Belize is something that most of our country folks seem to comprehend instinctively. The Legal Opinion and the writings of other experts in the field simply present the facts that support what we’ve always known.

Effective Occupation: Not then, not now!

While this article is not intended to review the strengths of our case in its entirety, let’s look at the first point that they’d have to prove before ICJ: that Spain was in effective occupation of our territory in 1821.

In school, most Belizeans would have learnt of the Anglo-Guatemala 1859 Treaty; however, not many folks may have heard of the 1860 letter from the then Guatemalan Foreign Minister Pedro de Aycinena. Again, in part four of the “Road to Referendum” column—entitled “The 1860 letter from Guatemalan Foreign Minister, Pedro de Aycinena, explain rationale for 1859 Treaty”—this letter was presented in its entirety. Among several points, Aycinena, writing to Guatemala’s Chamber of Representatives, stated:

“On examining this situation, we could not fail to recognize that the right we had constantly alleged of being presumptive heirs of Spain’s sovereignty was considerably weakened due to our lack of means to take possession of these territories that had been deserted and abandoned by Spain herself and subsequently by us. Furthermore, such a right, in the face of actual possession and practical exercise of sovereignty, regardless of the means by which they were acquired, could lead to a prolonged discussion and although supported with some foundations by us, did not offer any reasonable hope for success.

“It was recognized that we could not argue against the sovereignty already being exercised with full Spanish acquiescence in 1821 when we became independent, and that, in the case at hand, the issue would be reduced to territorial occupation occurring after that date only.

“In this regard … we were faced with the practical difficulty of modifying the existing boundaries. Even if we were to prove the point…that the limits were extended as far as the Sarstoon River after Independence, the truth was that since we had never taken possession of these territories, nor had we recognized them, nor maintained agents to represent us in them, it would render it impossible for us to determine or fix which part was occupied during Spanish rule and which part was occupied thereafter. This loomed as an insurmountable obstacle against materializing our claim.”

As far back as 1860, more than 150 years ago, officials in Guatemala—including the President—recognized the futility of their claim. Aycinena also referenced this fact: “These and other considerations surrounding the issue, taken together and seen from all perspectives, were given to the President for his consideration. He [the President] took the decision required by the case, and recognizing the existing facts, instructed that all fruitless discussions be ended, given that they were of no substantive importance and did not merit continuing.”

The point here is simply this: they could not prove that Spain had effective occupation of any part of Belize back then, and it would be interesting to see how they’d try to prove it now. It’s as the famous John Adams’ quote states: “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates or our passion, they cannot alter the state of facts and evidence.”

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