by Lindsay L. Belisle, former Boundaries Commissioner for Amandala
From surveys and polls taken to date on the question to be asked at the upcoming International Court of Justice (ICJ) referendum, it is frightening to note that most Belizeans do not know the question that will be asked of them to vote on at the upcoming referendum on April 10, 2019 and of those who are familiar with the question, the majority of them do not understand the question. Obviously, this is as a result of the failure of the Yes-to-the-ICJ campaign to properly educate Belizeans on this most vital question they are being asked to vote on at the April 2019 referendum. As a matter of fact, even the YES campaign presenters themselves have difficulty explaining the question and when pushed for clarifications we get answers that make very little sense, like – we require Guatemala to submit any and all claims to prevent them at a later date from bringing up any other claims; we need to read the question in conjunction with Clause 2 of the SA and to understand what Article 38(1) of the Statute of the Court means; it is the international lawyers that advised us on the wording; and to determine the boundary means reaffirming the 1859 Treaty boundary, among others.
Words have meaning and “determine” and “reaffirming” do not have the same meaning. Belizeans deserve truthful and straightforward answers, and consequently I want to briefly explain the ICJ referendum question and its implications on the sovereignty and territorial integrity of Belize.
Firstly, any question designed to be voted on by the electorate should have been written in a simple, clear, concise and unambiguous layman’s language that should have only one interpretation and should be understandable to all without the need for intellectuals to explain it. Communication 101 dictates that if the people that you are communicating with do not understand you, then you have failed in your communication efforts.
The question to be asked of the Belizean electorate in accordance with Article 7(3) of the Special Agreement (SA) is: “Do you agree that any legal claim of Guatemala against Belize relating to land and insular territories and to any maritime areas pertaining to these territories should be submitted to the International Court of Justice for final settlement and that it determine finally the boundaries of the respective territories and areas of the Parties?” This is a loaded question that is craftily written to mask the severity of the consequences Belize may suffer as a result of a YES vote. This is an unfair question to the Belizean electorate as to understand the question it needs to be read in conjunction with Article 2 of the SA and is the reason why most Belizeans do not understand it.
In essence, the ICJ referendum question is seeking your agreement to: 1. Allow Guatemala to make any and all legal claims against Belize relating to land, insular and maritime territories for determination by the ICJ; 2. Have the ICJ determine the legality of all claims submitted and declare the rights of Belize and Guatemala based on said claims; 3. Give the ICJ the authority to determine the new boundary between Belize and Guatemala based on said declaration of rights; and 4. Accept the ICJ ruling as final and binding.
The same question was asked of the Guatemalans at their earlier referendum and they voted YES as expected. Should Belize vote YES in the upcoming referendum on April 10, 2019 then this will constitute a mutual agreement between Belize and Guatemala to have the ICJ determine the new boundary between Belize and Guatemala based on the legal claims of Guatemala. This is clearly explained in the much touted Legal Opinion at section 32/73 and states that, “A boundary established by treaty thus achieves a permanence which the treaty itself does not necessarily enjoy.” However, “This is not to say that two states may not by mutual agreement vary the border between them.”
We should all know by now that since 1859 Guatemala cannot make any legal claims to Belize. I challenge any proponent of the YES vote to tell the Belizean electorate of any legal claims Guatemala can make to Belize subsequent to the signing the of the 1859 Treaty. On signing the 1859 boundary treaty Guatemala relinquished all claims to Belize which means that all her claims died or were extinguished. Guatemala is well aware of this and knows that the only way she can advance her unfounded claims to the ICJ is to get Belize to enter into a mutual agreement with her to have said claims determined by the ICJ. Guatemala realized that her unilateral proclamation declaring the 1859 Treaty null and void, because of non-fulfillment of article 7 in said treaty by Great Britain, was unacceptable under international law, and that she would not have been successful at the ICJ to vary the 1859 treaty boundary in light of earlier ICJ rulings on boundaries established by treaties, and consequently she refused to go to the ICJ with Great Britain for a ruling on the validity of the 1859 Treaty.
Guatemala is, however, relentless in her quest for this Holy Grail of getting back all or a portion of Belize, and this was relayed in a diplomatic correspondence to the US Secretary of State dated December 28, 1939, and states in part: “Guatemala is determined to make herself heard in the world. She will resort to all the sources of justice; she will knock at the doors of all Foreign Offices; she will ask for moral backing and the support which the Governments of the States of America can give her; she will invoke American solidarity and the principles which protect the rights of this continent, proclaimed in the Conference of Buenos Aires and ratified in the Declaration of Lima in 1938; in short, she will leave unused no legitimate recourse, no reason which she does not invoke, nor support which she does not solicit, until she obtains justice, and therewith, the recovery of the territory ceded to Great Britain in return for the compensation or price which the latter should pay her.”
So, with her back against the wall, the Organization of American States (OAS) came the to rescue of Guatemala and prepared a draft SA which was specifically designed to help Guatemala to achieve what she wanted to do for many years by bringing any and all of her claims to be determined by the ICJ and to subsequently determine the new boundary between Belize and Guatemala based on said claims. The SA provided the mutual agreement required between Belize and Guatemala to give the ICJ the authority to change the 1859 treaty boundary which otherwise could not have been achieved without said mutual agreement.
How could the Government of Belize (GOB) have allowed itself to be cajoled into signing the SA without Guatemala stating her claims therein? The GOB, unaware that she was outmaneuvered by the OAS and Guatemala into signing the defective SA, is obediently moving ahead with her commitment to the said SA and is now requesting Belizeans to vote YES at the upcoming referendum on April 10, 2019 to take unknown claims of Guatemala to the ICJ for final determination.
The GOB needs to quickly understand that diplomacy is not about making friends, but to advance your agenda, and so while the GOB is bending backwards appeasing Guatemala in every which way, Guatemala is advancing her agenda and is only one step away from winning her most coveted trophy — being that of getting back a piece of Belize.
The result of a YES vote would immediately mean that the status of the 1859 treaty boundary would become tenuous. Belize will have a de facto boundary which is the existing boundary but not a de jure (legal) boundary. The new legal boundary between Belize and Guatemala will be in the process of being determined by the ICJ and will be declared subsequent to the review of Guatemala’s claims and declaration of her rights based on said claims. So, technically, a YES vote will immediately set aside our present borders with Guatemala until the ICJ determines the new boundaries. Guatemala can take advantage of this situation, as they have done after their YES vote, and increase their aggression toward Belize if we do not take immediate control of, and defend our present borders.
It is a very sad state of affairs when all the public presentations and published articles promoting a YES vote boil down to the fear of an invasion by Guatemala and consequently we must now cower and vote YES and accept the consequences. In 1797 our forefathers voted NO retreat and stood up and successfully defeated the Spaniards, hence we live in this beautiful Jewel called Belize. What have we become now in 2018 willing to give up a piece of Belize to Guatemala at the ICJ for fear of being invaded by Guatemala? If Guatemala wants to be the big bully or Israelis of the Americas, then let them take Belize by force rather than us giving up Belizean territory to them on a silver platter.
In view of the foregoing, a YES vote will have Belize taking unnecessary risks and wasting valuable time and money to prove to the satisfaction of the ICJ that the 1859 treaty boundary, which we have absolute title to presently, is valid and that Guatemala has no legal claim to Belize. This unnecessary undertaking is tantamount to a scenario where you already have a bird in a cage and then releasing the bird in the wild and thereafter wasting your time and resources to catch this same bird and place it back in the cage where you already had it.
This makes no sense and is an exercise that is not needed if there is a NO vote at the upcoming referendum, as the status quo will remain. Why take the risk of arguing for something you already have ownership of and that the Guatemalan legal team may convince the ICJ otherwise. So, if Belize is relying on the 1859 Treaty as their ace card at the ICJ, then we need to rethink voting YES at the upcoming referendum as we may be left in dire straits and up the proverbial creek without a paddle.
You will note that there is no mention of the 1859 Treaty in the Special Agreement but only Guatemala’s claims to Belize. So the Yes-to-the-ICJ campaign should be concentrating their efforts educating the Belizean electorate on the SA and explaining the question they are being asked to vote on at the upcoming referendum rather than reading and reciting historical documents without proper analysis.
Belize is at a crossroad and our history will be rewritten if we do not make the right decision on April 10, 2019. In summary it can be said with certainty that the ICJ Referendum question is (i) in contravention of the Constitution of Belize by giving the ICJ authority to change the 1859 treaty boundary; (ii) converting Guatemala’s unfounded claims into legal claims for determination by the ICJ; (iii) requesting Belizeans to vote for unknown claims of Guatemala for final determination by the ICJ; (iv) requesting Belizeans to vote their willingness to give away all or a piece of Belize to Guatemala at the ICJ; and (v) advising that the ICJ decision will be final and binding with no recourse for appeals. Which patriotic Belizean would want to vote YES to such repugnant ICJ referendum questions?
What the Yes-to-the-ICJ proponents need to understand is that the majority of the NO proponents also want to go to the ICJ for a juridical ruling in the form of an Advisory Opinion on the validity of the 1859 Treaty but not with the present Special Agreement which is defective by not stating Guatemala’s claims and which can adversely affect the sovereignty and territorial integrity of Belize. It is therefore of paramount importance that Belizeans vote NO at the upcoming referendum on April 10, 2019 in order to place the brakes on this Yes-to-the-ICJ runaway train and to give Belize the opportunity to seek an Advisory Opinion at the ICJ on the validity of the 1859 Treaty which will no doubt be in Belize’s favour.
Thereafter, we can move forward and determine our maritime areas in accordance with the United Nations Convention on the Law of the Seas (UNCLOS). It is therefore quite obvious that a YES vote = Border Change and a NO vote = Border Remain. So in the interim, ME DI SAY…NO ICJ.
 Minutes of Meeting of the Advisory Council on the Guatemalan Claim (ACGC) dated July 31, 2008 page 3. Chief Negotiator Ambassador Alfredo Martinez informed the ACGC that, “The OAS presented a Draft Special Agreement that would be negotiated by both parties outlining the process toward national referenda.”