Sarstoon River and UN Watercourses Convention

watercourse convention“Today, the more balanced concept of ‘limited territorial sovereignty’ is widely accepted as the foundation upon which the law of international watercourses in general, and the UNWC in particular, have evolved. It stipulates that all watercourse states enjoy an equal right to the utilisation of a shared water resource, and that each watercourse state has to respect the sovereignty and correlative rights of other watercourse states – i.e. that it must not exceed its own right to equitable utilisation.” — (Theories of Allocation, from UN Watercourses’s Convention User Guide)

In many respects, the quote above is self explanatory, especially if one is even vaguely acquainted with the principles of international customary law that have been enshrined in the United Nations Watercourses Convention (UNWC). But the situation in the Sarstoon River, the international watercourse that forms Belize’s southernmost border with Guatemala, demands that a closer look be given to the principle of limited territorial sovereignty, as enshrined in the UNWC, and to the principle of community of interest.

Anyone who has given just a cursory look or read of the news regarding the happenings in the Sarstoon River would be aware of the ‘strong-arm’ tactics of the Guatemalan military that has repeatedly sought to prevent Belizeans from freely traversing even the northern half the river, which according to the 1859 Anglo-Guatemalan Treaty falls within Belizean territory.

In short, the Guatemalans have taken a relatively novel view (historically speaking) that entire river is their sovereign territory, and that Belizean access to the water body is subject to their express approval. This position has led to numerous incidents in which civilian groups, and more recently the Belizean media, have been deterred from traversing the “Belize-side” of Sarstoon.

This recent position by the Guatemalan Armed Forces (GAF) has rightfully stirred the patriotic and nationalistic ire of virtually all Belizeans, as the GAF’s actions are a bold violation of the Anglo-Guatemalan Treaty on at least two fronts. Firstly, Article I of the 1859 Treaty clearly delineates which part of the Sarstoon belongs to which country; and secondly, Article VI of said convention also states:

“It is further agreed that the channels in the waterline of boundary described in Article I of the present Convention shall be equally free and open to the vessels and boats of both Parties; and that any islands which may be found therein shall belong to that party on whose side of the main navigable channel they are situated” (Article VI, 1859 Anglo-Guatemala Treaty).

How many ways can they be wrong? 

Now, the Guatemalans argue that the treaty is not valid; therefore, at least in their minds, they are justified in ignoring the dictates of the 157-year-old convention. In ignoring the validity of the treaty, they’ve also presented their modified claim to half of Belize (from the Sibun to the Sarstoon) in 1999. This arbitrary act of dividing Belize into two parts is itself logically dubious, and was expertly pointed out in Belize’s response to the Guatemalan’s most recent claim:

“Belize must draw attention to the anomaly inherent in Guatemala’s limitation of its claim to the area of Belize lying south of the River Sibun. Guatemala’s position rests on its view of the function and operation of the 1859 Boundary Convention. This Convention relates to the boundary of the whole territory of Belize with Guatemala. If, as Guatemala contends, the Convention has come to an end, then it has come to an end in its entirety, and in relation to the whole territory of Belize. There is no basis for Guatemala’s arbitrary division of Belize into two parts–a northern part to which Guatemala claims no title and a southern part to which it claims title. There is a fundamental logical inconsistency in Guatemala’s position. If the position acknowledged in the 1859 Boundary Convention remains valid in relation to the North, it must equally remain valid in relation to the South. Guatemala needs to explain the basis on which it now distinguishes between two areas.” (Emphasis Added) (Belize Position Paper and Response to Guatemala’s 1999 submissions, 2001)

But beyond the logically inconsistent nature of such a position, our western neighbour’s claim of ABSOLUTE sovereignty over the Sarstoon is also misguided from the perspective of customary international law. The fact of the matter is that the concept of “limited territorial sovereignty” has supplanted its predecessors–the theories of absolute territorial sovereignty and absolute territorial integrity–for which UNWC User Guide provides a decent review.

Limited Territorial Sovereignty

If we may return to the opening quote of this article, the legal principle “stipulates that all watercourse states enjoy an equal right to the utilisation of a shared water resource, and that each watercourse state has to respect the sovereignty and correlative rights of other watercourse states”.

Fundamentally, the principles of equitable and reasonable utilisation of trans-boundary waters among co-riparian states have been so widely recognised throughout the decades that it had long since been treated as a pillar of customary international law. However, beyond just custom, this principle has since been codified in the United Nations Watercourses Convention.

Additionally, it has been upheld by the International Court of Justice (ICJ). The UNWC’s Guide explained: “The idea that all co-riparians enjoy an equal right in the use of an international watercourse has been affirmed by the judgment of the International Court of Justice (ICJ) in the Gabcíkovo-Nagymaros Case.”

Equitable and Reasonable Utilisation

What seems to also be lost in the entire conversation on this matter is the principle of equitable and reasonable utilisation. A point that the UNWC, and by extension international law, also addresses:

“The concept of limited territorial sovereignty is strongly reflected in the principle of equitable and reasonable utilisation, which can now be considered as a principle of customary international law. … One of the main advantages of the principle is that it simultaneously recognises the rights of both upstream and downstream countries. It underpins the theory of limited territorial sovereignty by entitling each basin state to a reasonable and equitable share of water resources for beneficial uses within its own territory while at the same time upholding the obligation not to deprive other basin states of their own right to equitable and reasonable utilisation.”

Now, it can be somewhat challenging to arrive at the precise definition of “equitable” and “reasonable” among riparian states, given the varying legal interpretations of such words. However, regardless of how one may interpret things, the actions of the Guatemalans to completely prevent Belizeans from even entering the Sarstoon River contravenes both the letter and spirit of customary international law.

Navigational vs Non-navigational Uses

It must be noted at this juncture that the UNWC–which is technically known as “Convention on the Law of the Non-navigational Uses of International Watercourses”–directly addresses non-navigational uses. It only makes limited references to navigational uses of watercourses (See Question No. 12).

However, it is evident that even the signatories to the Anglo-Guatemalan convention understood the principle of “Community of Interest”, a principle of international that is so basic it informed Article VI of the 1859 treaty well over 150 years ago.

Again, to quote the UNWC’s guide: “The Permanent International Court of Justice made reference to the concept in the 1929 Territorial Jurisdiction of the International Commission of the River Oder, where it stated that: ‘This community of interest in a navigable river become the basis of a common legal right, the essential features of which are the perfect equality of all riparian states in the use of the whole course of the river and the exclusion of any preferential privilege of any one riparian state in relation to the others.'”

The UNWC’s Users’ Guide added:

“The River Oder case was referred to more recently in the Gabcíkovo-Nagymaros case where the International Court of Justice stated that: ‘Modern development of international law has strengthened this principle for non-navigational uses of international watercourses as well, as evidenced by the adoption of the Convention of 21 May 1997 on the Law of the Non-navigational Uses of International Watercourses by the United Nations General Assembly.'”

Fundamentals missed?

Based on the above (and so much more), it becomes quite conspicuous that our neighbour to the West consistently ignores (it’s hard to be believe they aren’t knowledgeable of these facts) fundamental principles of international law.

As outlined above, the principle of “community of interest” and customary international practice of co-riparian states granting the vessels of both countries “free and open” access to the water body in question is so basic it is only given limited attention in the UNWC.

Additionally, the UNWC only provides a codified framework for what has been a longstanding principle in customary international law regarding “limited territorial sovereignty” among co-riparian states. Therefore, it is hard to believe that the technocrats in Guatemala are unaware of the fact that claims of absolute sovereignty over an international watercourse is completely flawed, regardless of their positions regarding the validity of the 1859 Treaty.

Beyond the dubiousness of their Sarstoon performance, the very “half-of-the-country” claim is absurd and logically inconsistent, as pointed out in 2001 in the Belize Position Paper (Article 8, page 4). Additionally, the very grounds for invalidating the treaty is flawed, as international law speaks to the independent and permanent status of a frontier, a principle that gives the borders established by a boundary treaty an autonomous life that transcends the life of the treaty itself. Therefore, alleging that 1859 treaty has ended on the basis of a breach of Article VII does not hold legally.

To What End?

In the end, it is clear that Guatemala has missed the mark on almost every relevant principle of international customary law. But their most recent actions in the Sarstoon River can only leave folks  shaking their heads, because it is difficult to imagine that the Guatemalan technocrats are ignorant of these things. Consequently, it leads one to question their motives. To what end do they play ‘the fool’?

 

 

 

 

 

 

 

 

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