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THE WORDING OF THE SPECIAL AGREEMENT

THE WORDING OF THE SPECIAL AGREEMENT
March 15
10:59 2019

By Jordan Craig – A column by Citizens for the Defense of Sovereignty (CDS)

Victory is awaiting Belize at the ICJ. For decades, we endured futile negotiations and resisted the pressures of the most powerful countries. For years, we have witnessed the steadily escalating tensions in the Sarstoon and the growing threats to our Chiquibul forest and natural resources. And for the majority of us, we have suffered a lifetime of Guatemala’s fear propaganda – “Belice es nuestro,” “Belice es de Guatemala,” and Guatemalan maps drawn with Belize as a part of their republic.

We now find ourselves on the brink of an opportunity to bring about the end to all of this – and not lose anything. We find ourselves with the chance to fight for our rights to our territory with what can assure us victory – the law and the evidence at the International Court of Justice.

But there are those purposefully misleading you, willfully seeking to make you confused and fearful. Much of their efforts to dissuade you have been centered on the wording of the Special Agreement. They wrongfully say that the Special Agreement allows the Judges of the ICJ to do as they please and change our boundaries somehow in a show of sympathy to Guatemala. They misrepresent the document and claim that it is a new border treaty that has rubbished the 1859 boundaries. None of this is true.

Here is the truth. The Special Agreement is a treaty between Belize and Guatemala that describes how the dispute will reach and be treated by the ICJ and what follows the judgement.

How the Dispute Will Reach the Court
Article 7.1 of the Special Agreement reads that the Parties (Belize and Guatemala) commit to submit to referenda in their respective national systems the decision to bring the final settlement of the dispute to the ICJ. Article 7.2 was amended on May 25, 2015 by Belize and Guatemala through the Protocol to the Special Agreement to allow for the referenda to be held “simultaneously or separately on the dates most convenient to the parties.” By that point, and after several agreed and then abandoned referenda dates (abandoned by Guatemala), it was clear that Guatemala was dawdling, and Belize adopted the policy of not being the first to hold the referendum.

Guatemala held its referendum on April 15, 2018 and the majority of participating voters said Yes to taking the dispute to the ICJ. Our turn comes on April 10, 2019.

How the Dispute Will Be Treated by the Court
Article 2 of the Special Agreement is what will be put forward to the ICJ if Belize says Yes on April 10th. Article 2 reads as follows:
The Parties request the Court to determine in accordance with applicable rules of international law as specified in Article 38 (1) of the Statute of the Court any and all legal claims of Guatemala against Belize to land and insular territories and to any maritime areas pertaining to these territories, to declare the rights therein of both Parties, and to determine the boundaries between their respective territories and areas.

Why the words “any and all legal claims of Guatemala against Belize?” First, the word “legal” does not legitimize Guatemala’s claim; their claim is still baseless. The word “legal” was placed there specifically by Belize, on the advice of our international lawyers from Freshfields Bruckhaus Deringer, because it forces Guatemala to justify its claim strictly and only according to international law as specified in Article 38 (1) of the ICJ Statute. For many years, Guatemala fought to go to the ICJ under Article 38 (2) of the ICJ Statute, which would have allowed the Court to consider matters beyond the law, matters of fairness and even sympathy – “ex aequo et bono.” Britain and then Belize consistently refused to do so, knowing fully well that Guatemala would be unable to justify its claim to Belize under Article 38 (1).

Again, Belize insisted, on the advice of our international lawyers from Freshfields, that the words “any and all” legal claims be placed in Article 2. This was to prevent Guatemala from first claiming a certain part of Belize in this case at the ICJ, lose, and then come back and claim a new part of Belize in a new claim. With the words “any and all,” Guatemala must present EVERY claim they could possibly invent and imagine. When they lose, that will be it. They will be unable to come back and continue to drag us to Court. With the words “any and all,” the end of Guatemala’s claim will be final.

Since we are not only asking the ICJ to determine the land boundaries but also to determine our maritime boundaries, Belize was advised by our international lawyers to include the words “to declare the rights therein of both Parties” to enable the Judges to establish what rights both Belize and Guatemala have in maritime areas in strict accordance with the UN Convention on the Law of the Sea.

Lastly, we would ask the ICJ to “determine” the boundaries between Belize and Guatemala. Our boundaries were already defined by the 1859 Treaty, but Guatemala’s central argument is that the 1859 Treaty is no longer binding and therefore recognizes no border with Belize. But the word “determine” does NOT mean that the Judges can simply wake up one morning and decide to draw a new border between Belize and Guatemala wherever they feel like. As stated in Article 2, the Judges must determine the boundaries “in accordance with the applicable rules of international law as specified in Article 38 (1)”. This means that the Judges must consider the law of treaties, international customary law, general principles of law and previous judicial decisions and writings. Using these, the Judges will determine what boundaries exist between Belize and Guatemala according to international law. And they will find that the 1859 boundaries are the existing boundaries between Belize and Guatemala, and Guatemala will be obliged to accept this as the UN Security Council will “give effect” to the judgment and enforce it.

What follows the Judgement…
Article 5 of the Special Agreement describes what happens after the ICJ has given its judgment. It states that both Belize and Guatemala “shall accept the decision of the Court as final and binding, and undertake to comply with and implement it in full and in good faith.” The Article continues that both countries agree that “within three months of the date of the Judgement of the Court, they will agree on the composition and terms of reference of a Bi-national Commission to carry out the demarcation of the boundaries in accordance with the decision of the Court.”

Our Appointment with History
Let us not allow ourselves to be deceived by those who out of purely selfish reasons seek to misrepresent facts in order to advance themselves and their political careers. They are on the wrong side of history. Let us not doubt the strength of our legal case and our rights to our land and seas. Belize is ours. We know this. There is no evidence for you to doubt your title to this land. International law will show this to be true and will end Guatemala’s claim once and for all. We shall win. Victory awaits us; let us grasp it.

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