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EDITORIAL – August 17th. 2018

August 17
10:43 2018

Belizeans have been giving the ICJ a bad rap because they mistakenly believe that the court took the easy way out in resolving the dispute between Honduras, Nicaragua and El Salvador over ownership of three islands in the Gulf of Fonseca.

The ICJ ruled that Honduras, El Salvador and Nicaragua are to conjointly administer sovereignty over the Gulf of Fonseca. El Salvador is to have the islands of Meanguera and Meanguerita and Honduras is to have sovereignty over El Tigre Island. Nicaragua did not get any island to control.

The truth of the matter is that the court followed the law of proximity, even though Nicaragua felt that for historical reasons she was entitled to something.

A more fitting case for Belize to study is theruling of Libya vs Chad (ICJ 1994). .In this case Libya occupied a disputed strip of land. She had native people living on the land. She was the more powerful of the two contestants and was strong enough to impose her will.

She took along a powerful delegation of 19 experts to argue her case: that she inherited control of the land through Uti Possidetis derived from native tribes which had occupied the land for centuries

But all her fine arguments were demolished by the single invincible fact that Chad had a written border treaty dating back to 1955 which she inherited when she got her independence from France at the end of World War ll.

This case has been studied by legal experts and students all over the world because it hasbecome the definitive application of modernlaw to border disputes.

At the end of their deliberations the judges of the ICJ (16 out of 17) ruled that “the effectiveness of occupation of the relevant areas in the past, and the question whether it was constant, peaceful and acknowledged are not matters for determination in this case.So also the question whether the 1955 Treaty was declaratory or constitutive does not call for consideration….

For the same reason,the concepts of spheres of influence and ofthe hinterland doctrine (uti possidetis) do not come within the ambit of the Court’s enquiry. Similarly, the Court does not need to consider the rules of inter-temporal law. This Judgment also does not need to deal with the history of the dispute as argued before the United Nations and the Organization of African Unity.

The 1955 Treaty completely determined the boundary between Libya and Chad.” Earlier the Judges declared that “The establishment of this boundary is a fact which from the outset has had a legal life of its own, independently of the fate of the 1955 Treaty.Once agreed the boundary stands, for any other approach would vitiate the fundamental principle of the stability of boundaries, the importance of which has been repeatedly emphasized by the Court. A boundary established by treaty thus achieves a permanence which the treaty itself does not necessarily enjoy.”

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