Almost exactly one year ago, on Monday, November 19, 2007, the Secretary-General of the Organization of American States (OAS), José Miguel Insulza, gave a formal recommendation to the governments of Belize and Guatemala to submit the territorial dispute to the International Court of Justice (ICJ), an agency of the United Nations.

In recent weeks, the Cabinets of both countries have approved what they call a “special agreement” or “compromis” – a document that sets out the terms under which both countries would be going to the ICJ. The next step is for foreign affairs representatives of both countries to sign off on the document, and that, according to Government of Belize officials, can take place as early as this week and presumably by the end of the month.

It is on record that this is not the first attempt at using a judicial avenue to settle the Belize-Guatemalan dispute, previously known as the Anglo-Guatemalan dispute because it was a Guatemalan quarrel with Britain, which was in control of this territory before Belize got its independence. At various points in our history, the parties have discussed various forms of settlement, including submitting the case to the ICJ.

In this edition of ICJ Stats, we review notable attempts in the past at judicial settlement of the territorial dispute. Our summary is based primarily on official Government of Belize information, as well as news articles and other documentary sources.

Before we proceed, it is important for us to note that the major treaty in dispute has always been the 1859 Convention between Guatemala and Britain, and the complaint of Guatemala has been that Britain did not fulfill its obligations under Article 7 to establish a communication route that would have given the republic direct access to the Atlantic. Guatemala wanted to submit the dispute to arbitration, but Britain insisted that there were no grounds for doing so.

It is reported that in 1867, Guatemala, independent since 1821, developed the view that it wanted the issue to be ventilated on “moral, justice and equity” terms – ex aequo et bono, and not on a strictly legal basis.

1937: The UK agreed to arbitration. Guatemala insisted that the president of the United States - Franklin D. Roosevelt at the time, should be the arbitrator. Because of the close relationship between the US and Guatemala, there was suspicion of this proposal. The UK insisted, for its part, that the dispute should be heard on a strictly legal basis by the “Hague Court.” Guatemala still insisted on arbitration by Roosevelt. The UK continued to hold to its position that the borders set out on the 1859 Convention are the true borders of the territory now known as Belize.

1940: The UK proposed to Guatemala that they submit the dispute to the Permanent Court of International Justice (PCIJ), the forerunner of the ICJ. Another option for settlement was entertained as well: an ad hoc tribunal with jurists selected for each party, with an umpire to be jointly selected by the parties – Britain and Guatemala. Thirdly, they proposed a three-man tribunal of international lawyers, with the umpire being the US president, Roosevelt. The question at the time was to seek a settlement of the alleged violation by Britain of the Article 7 obligation in the 1859 treaty.

While Guatemala agreed with option #3, its position was that the question was “too narrow.” Guatemala wanted it to be clear that because of Britain’s violation, the territory had reverted to her possession, but its position went beyond that to the claim for compensation for losses the country demanded due to Britain’s failure to build the access road under the 1859 treaty. Obviously, an impasse ensued.

1946: The ICJ succeeds the PCIJ. Guatemala renewed efforts to reclaim Belizean territory, since talks had been suspended during the height of the Second World War, which ended in 1945. The UK proposed settlement at the ICJ. To facilitate the process, the UK submitted itself to the compulsory jurisdiction of the ICJ for five years – which would have meant that its agreement was not necessary for Guatemala to lodge a claim against it. Guatemala also submitted to ICJ jurisdiction, but interestingly agreed to the ICJ’s jurisdiction on the Belize matter only if the case was to be heard ex aequo et bono. Guatemala did not submit a claim to the ICJ, despite the developments, and instead threatened to invade Belize in 1948.

1948: The parties were again at loggerheads. Guatemala again proposed mediation by the USA, but the UK insisted on a judicial settlement at the ICJ.

1952: Guatemala resisted the ICJ settlement proposal, and suggested that the parties consider the other options proposed – arbitration and mediation. In 1951, UK renewed for another 5 years her submission to grant the ICJ compulsory jurisdiction.

1965: The UK agreed with Guatemala to the avenue arbitration – Scandinavia, Asia, and US, but the UK later compromised in agreeing to sole arbitration by the US. It is out of this process that the Webster Proposals came. The compromise there was that the agreement would have given Guatemala control over Belize’s external affairs and defense. (The country was still British Honduras at the time. Belize was so named in 1973.) The late Honorable Philip S.W. Goldson, the then Leader of the Opposition and head of the National Independence Party, exposed the compromising agreement, and Belizeans resoundingly rejected the Webster Proposals.

1978: Land cession was the new compromise proposed in secret talks to resolve the Guatemalan claim. At the time, Guatemala was under military rule, following a coup d’état in 1954. Invasion was threatened yet again, and reports indicated that El Salvador was being encouraged to settle half-a-million citizens in Belize. Britain reportedly responded with military reinforcements.

1981: Belize attained independence, under the assurance of six UN resolutions, dating back to 1975, which affirmed the people’s inalienable right to “self determination” – with all the territory intact. Later came the Heads of Agreement – the compromise there: Guatemala gets “use and enjoyment” of Belize’s southern cayes and maritime rights. The people again rejected the proposals, and the riots of 1981 were a demonstration of the disgust felt over what was deemed to be a compromise of the country’s territorial integrity. After Independence, Guatemala claimed the Toledo District. It has repeated its demand for land cession.

1987: Guatemala demanded Toledo, plus the Ranguana and Sapodilla Cayes, and 100 million pounds from the UK as a price for settlement. The demands are rejected.

1988: Permanent Joint Commission with representation from Belize, Guatemala and the UK talk of a draft treaty to settle the dispute. GOB reports that under those terms of the draft treaty, Guatemala would have accepted Belize’s borders as outlined in our Constitution, but Belize would make a concession in the territorial waters to give Guatemala access to the Caribbean Sea, and the UK would finance projects for the benefit of both Belize and Guatemala. The Maritime Areas Act followed in 1992, which gave a temporary 3-mile maritime limit in the south (12 miles elsewhere) while talks continued with Guatemala. In 1991, UK announced 22 million pounds contribution for road expansion between Belize and Guatemala.

1997: Guatemala resurrected and formalized its position that it does not recognize any border between itself and Belize. Guatemalans are forbidden to refer to the existence of a border in our south and west, says GOB’s official information. In line with this official position, cross-border incursions, illegal logging and hunting activities, settlements, and land clearings by Guatemalans, become a growing problem for Belize. They continue to be a problem today.

1999: James Murphy documents that on October 18, 1999, Guat foreign minister, Eduardo Stein, sent the then Prime Minister of Belize, Said Musa, a note demanding the return of all of Belize, from the Sibun to the Sarstoon, as well as all the cayes except for St. George’s Caye, Belize’s first capital, to Guatemala. Stein said that Guatemala does not recognize Belize’s borders and proposed settlement of the dispute at the ICJ. Belize’s government appealed to Guatemala to pursue open discussions. (Belize’s Referendum Act - requiring any proposed settlement of the Guat claim to be put to a national referendum - was established in 1999.)

2000: The Organization of American States (OAS) facilitates the process whereby facilitators for Belize and Guatemala, Ramphal and Reichler, respectively, would try to achieve a negotiated settlement, to be submitted to national referenda in Belize and Guatemala before anything becomes final. Among other contentious points, the proposals included a provision to allow the settlers of Santa Rosa, an illegal Guatemalan settlement inside Belize, to remain there indefinitely. It also included a scheme for voluntary relocation to Guatemala. In 2003, Guatemala rejected the proposals in Congress, saying that the country could not accept them because they were not consistent with Guatemala’s laws and so could not be submitted to a national referendum. Again, things reverted to a state of impasse.

2008: Both governments of Belize and Guatemala gave their political commitments to try the ICJ process, but noted that they were constrained by constitutional and political commitments to consult with their people through national referenda before a formal submission is made to the court. Before he took office as the Prime Minister of Belize, United Democratic Party leader Dean Barrow, publicly indicated that based on the advice of international lawyers, he did not have a difficulty with the notion of submitting the dispute to the ICJ as long as it is put to the people, to whom the process and the issues would be properly explained. As far back as 2005, former Prime Minister Said Musa had been quoted by the Jamaica Observer as saying that if Guatemala continues to be “intransigent” in talks under the OAS, then the dispute would be submitted to the ICJ. Similar threats of taking the dispute to the ICJ have also surfaced in the past years in the Guatemalan press. What was not highlighted at the time was the fact that because neither Belize nor Guatemala had given the ICJ compulsory jurisdiction on the matter, the case could only be submitted if and when both countries agree, via a document called the compromis, to take their case before the court, based in The Hague in The Netherlands.

As we go to press, the document has yet to be signed and ratified. But even if legislators in the countries agree to the ratification of the document, the matter would have to be put to a vote in both countries.

From the online Amandala (www.amandala.com.bz)