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The Lauterpacht Report Part V

The Lauterpacht Report Part V
November 20
12:57 2018

By: Harry Lawrence

For reasons that we shall set out, these arguments (by Guatemala) do not establish that Guatemala possesses at the present time any title to any part of the territory of Belize. In particular we take the view that even if every one, but the last of the elements in the Guatemalan arguments just set out were correct, Guatemala’s case would still founder on the rock of a rule well understood in international law and recently clearly stated by the iCJ in the Libya/Chad case, namely that a boundary, once established by treaty, possesses a life of its own, independent of the fate of the treaty.

In these circumstances we have considered carefully the extent to which we would enter into the substance of all the Guatemalan arguments as hitherto advanced.
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We have reached the conclusion that although to do so at this point is logically unnecessary, it would be inappropriate to fail to examine directly the intentions of Guatemala. Accordingly we reserve for consideration in Part Two of this Opinion three of the arguments of Guatemala that, in our opinion, are irrevelant to the main aspects of the title of Belize. However we shall have to touch on some aspects of them in the present part.

Character and Content of the 1850 Convention
In approaching the interpretation of the 1859 Convention, we follow the rules prescribed for the interpretation in the Vienna Convention on the Laws of Treaties, 1969 which in this regard have been acknowledged by the ICJ as declaratory of customary international law and so is applicable even to earlier treaties. The relevant provision is Article 31(1).

A Treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the Treaty in their context and in the light of its object and purpose.

The Title
The Treaty is entitled in English “Convention between Her Majesty and the Republic of Guatemala, relative to the boundary of British Honduras.”

The original text of the Treaty in Spanish is entitled: “Convención entre la Republica de Guatemala y Su Majestad Britannica relativa a los limites de Honduras Britannica.”

There then follow the details of the boundary, from the mouth of the River Sarstoon in the south, passing along the river to the Gracias a Dios Falls, thence northward to Garbutt’s Falls and from there due north until it strikes the Mexican Frontier.

Although there were some subsequent difficulties in applying those limits during the process of demarcation, the general effect of the limits as laid down does not appear to have been a matter of significance of any disagreement between Guatemala and Belize.

The definition of the frontiers of British Honduras necessarily carried with it acknowledgement that the territory bounded by those frontiers belonged to British Honduras and not to Guatemala, just as reciprocally the territory on the other side of the line belonged to Guatemala and not to British Honduras.

Indeed Article l continues: It is agreed and declared… that all the territory to the north and west of the line of boundary above described belongs to her Britannic Majesty and that all the territory to the south and west of the same belongs to the Republic of Guatemala.

This is of course the position generally understood in international law. As has been stated by a Chamber of the ICJ in the Burkina Faso/Mali case, the effect of any delimitation no matter how small the disputed area crossed by the line, is an apportionment of the areas of land lying on either side of the line: But that does not make the boundary treaty into a treaty of cession.

It is to be noted that Article l contains no words that can suggest that the treaty itself serves as a transfer of any title over any territory by Guatemala to Britain. Indeed the words indicate the contrary, because the boundary is described as it existed some nine years prior to the Treaty, that is, as the boundary was on l January 1850, a date quite inconsistent with any idea of title being transferred by the Treaty.

The Treaty is thus a reciprocal recognition of title on the part of both sides. It is not simply a treaty with solely prospective effect. The lanfuage in the last sentence of Article l quoted above which acknowledges that all the territory to the north and east of the line belongs to Britain and all the territory to the south and west belong to Guatemala cannot be construed as a cession of territory by Guatemala to Britain any more than it can be construed as a cession of territory by Britain to Guatemala.

The fact that the British territory is described as “the British Settlement and Possession in the Bay of Honduras” is in no way inconsistent with the area in question having been subject to British sovereignty. Areas under British sovereignty and forminig part of British territory in international law did not have to be described as “colonies”. In the case of British Honduras there is the authority of a Privy Council decision for saying that Britain had territorial dominion ”there as early as 1817”.

Although there was a distinction in English law between “possessions”,  “settlements’ and “colonies”, that was a distinction operative solely in terms of British domestic law. It did not and does not operate in international law.

When in 1862 British Honduras was formally created a Colony, part of the principal article in the Letters Patent that created it read as follows:

Whereas our territories in Honduras have hitherto been known and designated as the Settlement of British Honduras, and the Government thereof has been administered by an officer designated the Superintendent for the Affairs of Our said Settlement…”

As the decision in A-G for British Honduras v Bristowe shows, the Crown was treated as having assumed dominion in British Honduras no later than 1817, even before Guatemala came into being and regardless of the designation of the area in English law.

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