Legal Opinion on Guatemala's Territorial Claim to Belize

• Author: Sir Elihu Lauterpacht, Judge Stephen Schwebel, Prof. Shabtai Rosenne and Prof. Francisco Orrego Vicuna
• Pages: 288-425

288 Interview, Border and Maritime Issues in CARICOM

Legal Opinion On Guatemala’s

Territorial Claim To Belize

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1Sir Elihu Lauterpacht, Judge Stephen Schwebel,

Professor Shabtai Rosenne and Professor Franciso

Orrego Vicuna

Foreword

The Guatemalan territorial claim to Belize has adversely affected the

security and development of Belize for decades. A boundary treaty was

concluded between Britain and Guatemala in 1859, and the diplomatic

exchanges between the British and Guatemalan governments from 1860 to

1950 hardly impacted on the daily lives of the people in the British colony.

But the pursuit by Guatemalan governments of the claim since then, when it

became clear that the Belizean people wanted independence from Britain,

has had serious consequences for the Belizean people. It has distorted their

political development, delayed their independence, limited their development

potential and often caused grave concerns for their security.

Beginning in 1962, Belizean political representatives joined British

officials in talks with Guatemalan authorities, talks that often held out the

promise of a just settlement of the dispute only to founder on sudden and

inexplicable reversals of the Guatemalan position. In 1975, the Belize

government decided to internationalise its quest for independence with security

and territorial integrity, and in 1980 Belize received virtually unanimous

support at the United Nations for early and secure independence with all its

territory. Belize became independent in 1981 against opposition and threats

from Guatemala that compelled Belize to request Britain to maintain troops

in the country for its defence.

In 1991, Guatemala finally recognised Belize as an independent State,

and in 1993 the claim was on the verge of a definitive solution, with Guatemala

agreeing to accept Belize’s land borders as they had been defined in the 1859

Treaty, and Belize agreeing to give up some of its territorial sea rights in

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Legal Opinion On Guatemala’s Territorial Claim To Belize

order to afford Guatemala an outlet to the high seas through its own territorial

sea. But a constitutional crisis in Guatemala interrupted the process, and the

following year the new Guatemalan government formally reinstated its claim,

and later demanded that Belize cede to it more than half of its territory as the

price for Guatemalan recognition of a truncated Belize.

Hopes that the new government installed in 2000 would negotiate a just

settlement soon faded, as it began a policy of provoking military confrontations

and encouraging peasant invasions. The new government insisted that the

territorial dispute was eminently a legal one, and that the only possibility for

a resolution was to submit the case to the International Court of Justice (ICJ)

or arbitration.

The Belize government felt that this represented an unnecessary expense

of time and money, and proposed a process under the auspices of the

Organization of American States, with each country naming a Facilitator

and both sides presenting their case to the Facilitators so that they could

propose a just and durable solution. The process began in July 2000, and has

been successful in implementing confidence-building measures along the border

and in hearing the positions of both parties. The Facilitators are due to make

their proposals by 15 December, 2001.

At the same time, however, conscious that if Guatemala remained

intransigent the matter might indeed have to be submitted to the ICJ, the

Belize government approached four eminent international lawyers and

instructed them to write an Opinion that would, strictly on the basis of

international law, consider whether Guatemala could validly question Belize’s

sovereignty over the territory of Belize, or any part of it. They were not

asked to prepare a brief for Belize’s prosecution of a case, but rather an

impartial Opinion well founded on international law, which would give a

clear and unbiased opinion of the true situation in strict accordance with the

law.

The Belize government chose a high-powered multi-national team of

highly respected and renowned international lawyers headed by Professor

Sir Eli Lauterpacht Q.C., a British lawyer with impeccable credentials as an

academic and great experience as a practitioner of international law. It

includes Judge Stephen Schwebel, a citizen of the United States of America

who until recently was a Judge and President of the ICJ; Professor Shabtai

Rosenne, an Israeli citizen who is considered a world expert on the jurisdiction

and jurisprudence of the ICJ; and the highly respected and experienced Latin

American jurist, Professor Francisco Orrego Vicuña, a Chilean national.

Together they have spent over a year in extensive research and consultation,

290 Interview, Border and Maritime Issues in CARICOM

and have now submitted their opinion.

I am pleased to present this Opinion to the international community and

in particular, to the people of Belize and Guatemala, both of whom wish

fervently to live in peace and harmony with each other and to cooperate for

a sustainable and just development that will benefit the peoples on both sides

of this hitherto troubled border. I am sure that the Opinion will be particularly

useful in helping Belizeans to make up their minds, if they were ever asked

whether the matter should be submitted to the ICJ for a final resolution.

On behalf of the Government of Belize, I extend warm congratulations

to our advisers for an excellent study, and express the hope that the clarity

and certitude of their Opinion will contribute to consigning to the past the

divisions that have retarded the harmonious cooperative development of two

sister peoples for too long.

Mr. Assad Shoman

Summary

1. This Opinion examines the claim by Guatemala to sovereignty over

the territory of Belize.

2. That claim (so Guatemala contends), is based on the title which Spain

possessed to the whole area of present Belize at the time when

Guatemala became independent in 1821 and on Guatemala’s succession

to that title by operation of the doctrine of uti possidetis. Guatemala

maintains that the 1859 Convention, which recognised the boundaries

and thereby the extent of British Honduras, was a cession of territory

dependent upon the performance by Britain of a provision in that

Convention (Article VII) to participate in the construction of a cart

road connecting Guatemala City to the Atlantic. Guatemala asserts

that, as Britain did not meet its obligations under that provision,

Guatemala was entitled to denounce the Convention, which it did,

and the territory which Guatemala had thereby acknowledged as being

the territory of British Honduras thereupon reverted to Guatemala.

3. In our view, the facts and the law of the matter do not support analysis

along the lines suggested by the Guatemalan arguments set out above.

This is because Guatemala’s fundamental contention that the 1859

Convention was one of cession and has ceased to be operative is wholly

contradicted not only by the facts and the law relating to the termination

of treaties but also by a further treaty: the Exchange of Notes between

Britain and Guatemala of 1931. That agreement can only have been