In the last installment of the Road to Referendum (RtR) column, we had commenced a discussion on the International Court of Justice (ICJ)’s bias as it pertains to preserving boundary treaties. As was pointed out in that last RtR piece, Alberto Alvarez-Jimenez—in his article “Boundary Agreements in the International Court of Justice’s Case Law, 2000-2010”, which was published in The European Journal of International Law— stated:

“The Court’s case law of the first decade of the 21^st century shows that the Court has been somewhat flexible in endorsing the validity of boundary agreements once it has declared them. States that have subsequently invoked the nullity of boundary treaties or settlements have not found a receptive Court to uphold such claims. … While room for declarations of nullity certainly exists, it can be regarded as narrow, absent very compelling reasons. The threshold is high, and states are well advised when raising such a claim to expect success only exceptionally in boundary disputes” (Alvarez-Jimenez, 2012, p. 20).

In this current edition of the RtR column, it is useful to pick up from where we left off, as it pertains to Alvarez-Jimenez’s statement as it pertains to the high “threshold” that must be met.

Now, the debate on whether or not the 1859 Treaty is a boundary convention or one of cession has raged on in some quarters. However, at this juncture, at least in this current writing, it shall be assumed that most readers have some level of acquaintanceship with the facts as to why the 1859 Treaty has been so widely recognized as a Boundary Treaty by professional international lawyers. While Guatemala does hold the argument that the 1859 Treaty is a “disguised” cession agreement given the presence of the infamous Article 7, the present discussion shall be useful in illuminating the degree of absurdity that exists within that line of argument.

The Vague Article 7

Firstly, it is useful for us to remind ourselves of the precise wording of the 1859 Treaty’s Article 7. It reads:

“With the object of practically carrying out the views set forth in the preamble of the present Convention, for improving and perpetuating the friendly relations which at present so happily exist between the two High Contracting Parties, they MUTUALLY agree CONJOINTLY to use their BEST EFFORTS, by taking adequate means for establishing the easiest communication (either by means of a cart-road, or employing the rivers, or both united, according to the opinion of the surveying engineers), between the fittest place on the Atlantic coast, near the settlement of Belize, and the capital of Guatemala; whereby the commerce of England on the one hand, and the material prosperity of the Republic on the other, cannot fail to be sensibly increased, at the same time that the limits of the two countries being now clearly defined, all further encroachments by either party on the territory of the other will be effectually checked and prevented for the future” (Emphasis added).

Upon even the most laymanized observation of this seventh article of the Treaty, there is one inescapable fact: it is quite vague.

As was pointed out by United States lawyer William J. Bianchi in his 1959 publication entitled “Belize: The Controversy Between Guatemala and Great Britain Over the Territory of British Honduras in Central America”, the best description of vagueness of Article 7 was given in 1859 (the same year the Treaty was signed) by Guatemala Council of State member Pedro Valenzuela, who criticized Article 7 for being worthless. Valenzuela’s words as were reprinted by Bianchi were as follows:

“Article 7 of the agreement has no value. It assumes substantial expenditures for which no appropriation has yet been made. It does not, moreover, fix any of the conditions related to the performance contemplated therein such as time, kind or duration. It is so indefinite that any obstacle arising from the failure to set these conditions could easily vitiate the entire undertaking” (Bianchi, 1959, p. 101).

This point was elaborated upon by Bianchi, who stated: “The very vagueness of the article (Article 7) is a barrier in the path of the claim now brought forward by Guatemala. It makes the claim all but impossible to demonstrate, considering the loose and disengaged nature of the duties ascribed to the parties thereunder. …[at the time of signing the Treaty] Guatemala should have insisted on a clear definition of the duties incumbent upon both parties in concise and specific language. THIS SHE FAILED TO DO.”

The quotes above are fairly self explanatory; therefore, it is useful at this juncture to return to the earlier point regarding the high “threshold” that needs to be met. If, as Guatemala contends, the 1859 Treaty’s Article 7 was of such material substance to the convention, they would have to first overcome barriers of legal facts as it pertains to the extreme vagueness of the article. Additionally, if we would recall Alvarez-Jimenez’s words regarding expectations of success being found “only exceptionally in boundary disputes”, the reader and eventual referendum voter would have to decide whether or not a vaguely worded part of a Boundary Treaty is capable of passing the high exceptionality threshold.

‘Best Efforts’?

Beyond the vagueness of the seventh article, there is also the matter of determining exactly what was entered into by both parties. In this writer’s opinion, no better elucidation than that by Bianchi (1959) has been offered. On this matter, Bianchi wrote:

“The obligation envisaged by Article 7 is bilateral. This is obvious from the use of the word ‘conjointly.’ It is, however, a peculiar type of bilateral obligation. It does not require both parties to the contract to perform or accomplish a given task. It only binds them to conjointly use their best efforts to do so. The terms in which the obligation is couched, therefore, put grave difficulties in the way of determining whether the obligation undertaken was discharged.

“In essence, therefore, the question posed IS NOT WHETHER GREAT BRITAIN BUILT THE ROAD, but whether, conjointly with Guatemala, she used her BEST EFFORTS to build it.

 

“In the presence of the fact that the parties were not in agreement as to the meaning of Article 7 of the Convention of 1859; that Great Britain agreed to submit the long standing differences to adjudication; that Great Britain, to supplement the Convention, engaged to recommend an appropriation to build a road [reference the 1863 Treaty that wasn’t ratified due to lateness on Guatemala’s part]; that the periods during which these treaties were drawn up are known to history as having been turbulent; and that the line of road was surveyed by British engineers; how, may it be asked, is it possible to prove that Great Britain did not use her BEST EFFORTS to implement Article 7 of the Convention of 1859.”

“The difficulty of establishing such a claim is conceded by the Guatemalans themselves when, in the course of presenting their case, they describe Article 7 as ‘vague, without fixed period and without sanctions’” (Bianchi, 1959, p. 100).

The careful reader of the above statements by the lawyer would note that even the British’s offer for the matter to have been adjudicated was deemed countable towards Britain’s “best efforts”, which was the only obligation incurred in Article 7. It is, therefore, interesting to note that on a number of occasions the British had offered to Guatemala to take the matter before the ICJ. At the time of Bianchi’s work, the ten-year window (1946 to 1956) for which the British had kept such an offer on the table had barely closed. Additionally, after 1959, most Belizeans would know of the various attempts made at settling the matter via arbitration and negotiation. A useful question for the reader to ponder is whether all those post-1959 attempts could also be considered as weights to add to the scale of “best efforts”.

To Conclude

Now, it is important to underscore that, within the realms of the Article 7 discussion, it has already been found by several legal minds that whatever “obligation” may have been incurred by the British cannot be “devolved upon Belize”. However, to add to that legal fact is whether or not the Article-7-based arguments of the Guatemalans can even come close to satisfying the high threshold discussed by Alvarez-Jimenez (2012) given the article’s ambiguous and vague nature.

Furthermore, given that the British committed itself only to using its “best efforts” conjointly with Guatemala, Bianchi’s question remains relevant: “how, may it be asked, is it possible to prove that Great Britain did not use her best efforts to implement Article 7 of the Convention of 1859”?

Lastly, given the space constraints common to print media, it is impossible to provide a thorough enough analysis to any of the relevant works that Belizeans are urged to read for themselves. To this end, it is encouraged for the reader to visit the link below that contains a complete scan of the book by William J. Bianchi that has been quoted throughout this piece.

Click to access william-bianchi-belize-min.pdf