(i) Acquisitive Prescription

With the greatest respect, it is clear that the Guatemalan position does not reflect any understanding of the very essence of the international law principle of adverse possession. In paragraph 33 of their Reply, they state that “the Belizean argument indicates that the appropriation or the possession of something belonging to another carries as a consequence the acquisition of title over the thing. Following this crooked reasoning, the thief that appropriates something belonging to another would also acquire each day after the theft a better title”, and they seek, in effect, to laugh at such a proposition. Well, they can laugh away, but it happens to be exactly so. They also have the quaint idea that acquisitive prescription depends on the territory being terra nullius, and go to great lengths to prove that the territory in question was not in fact terra nullius. They need not have exerted such efforts. We not only accept that the territory was not terra nullius, but indeed we embrace that fact as an integral part of our case for acquisitive prescription.

I beg the indulgence of the Secretary General and the Facilitators, who are no doubt familiar with these fundamental principles of international law, but for the benefit of our Guatemalan brothers allow me to quote some law on this issue.

Professor Malcolm Shaw in the fourth edition of his textbook of International Law, at pages 343-344, states:

"Prescription is a mode of establishing title to territory which is not terra nullius and which has been obtained either unlawfully or in circumstances wherein the legality of the acquisition cannot be demonstrated. It is the legitimisation of a doubtful title by the passage of time and acquiescence of the former sovereign…it is the legitimisation of a fact”

"There is no doubt that in international practice a state has been considered to be the lawful owner even of those parts of the territory of which it originally took possession wrongfully…”

Sir Gerald Fitzmaurice in his book entitled The Law and Procedure of the International Court of Justice, states:

" Prescription is a process of erosion and encroachment... But it is of the essence of the case that, in their inception, the acts concerned are illegal; any possession resulting from them is adverse and unlawful; and the whole process is contrary to the wishes of, and lacking in consent from, the real sovereign. The prescriptive title arises from the gradual change in the quality of these acts, or of their possession, produced by the combined effect of lapse of time or silence by the original sovereign. It is this last factor – tacit acquiescence amounting to a surrender of the title – that is the real and proximate cause of the change of sovereignty.”

He states that the essence of a claim of acquisitive prescription is that encroachments are an adverse taking of possession, and that jurisdictional acts, which were at their inception illegal or invalid, have gradually operated to create a title by a process of tacit acquiescence on the part of the original sovereign, amounting in the end to a tacit abandonment or surrender of its sovereignty.

We have specific evidence here that Guatemala herself acknowledged that Spain had “abandoned” the territory which became British Honduras, and acquiesced in British encroachment up to the Sarstoon before 1821.

I will now quote from a document which is fatal to many parts of Guatemala’s positions, and which other members of our team will have occasion to refer to. I therefore wish to submit it in its entirety as an exhibit to the Panel. It is the letter written by the Foreign Minister of Guatemala, Pedro de Aycinena, and addressed to the Secretaries of the Chamber of Representatives, and dated 4 January 1860.

Allow me to point out that this very important piece of evidence has for years been suppressed by the Guatemalans; it is not to be found in the hundreds of pages of the White Book and its continuations, which pretend to give an exhaustive coverage of all relevant documents on the question of Belize. All attempts by our Ambassador in Guatemala to get this and a number of other documents from the Guatemalan archives have come to naught, he being told that the Foreign Minister himself must authorise their release, and he has not yet done so. When you read it you will understand why. This is a letter in which the Foreign Minister and negotiator of the 1859 Treaty explains honestly and clearly why the Treaty was signed and ratified, what the situation on the ground was, and what were the intentions of the parties.

On the point at hand, the distinguished Foreign Minister says:

"The advantages of establishing the hitherto undefined boundaries of the Republic on our Atlantic Coast have been acknowledged in several periods throughout our history, all the more so in the face of relentless encroachment by the population of Belize. We, in turn, have been prevented from gaining possession of uninhabited and deserted territories, over which we considered ourselves as Spain’s successors, although we did not have the title of actual possession, nor had we been able to take or exercise any act of sovereignty.

"Since the time of the Federal Government (1823 – 39), steps had been taken with the goal of fixing those limits but all were fruitless and yielded no results. Ignoring our claims to the territories contiguous to the English settlement, which had been abandoned by Spain and not occupied by us, these areas continued to be occupied and exploited, before and after Independence, beyond the limits established in the treaties with Spain. The English Government, considering this actual occupation as giving them legitimate title, defined the extent of the settlement as the river Sarstoon, according to a declaration made by the Minister of the Colonies, Sir George Grey in 1836, within the framework of a project for the creation of a Colony in Boca Nueva. We, in turn, after a few claims and protests, tacitly maintained the status quo without pursuing new initiatives which apparently were futile.”

That statement from the horse’s mouth is, I submit, conclusive as to the facts of the case, and the law is equally clear. To restate the point quite simply: It does not matter that the rights of Spain were breached in the period prior to the date of independence; nor would it have mattered even if, as is denied, Guatemala had succeeded to Spain’s authority and title in the area. Notional title must yield to actual possession. Adverse possession by Britain overrode the boundaries originally set in the treaties of 1783 and 1786, and so there was no title for Guatemala to inherit. But in any event, Britain’s continued actual possession and actual display of sovereignty, and Guatemala’s own failure to exercise any degree of sovereignty, throughout the years from the early 1800’s to 1859, had undoubtedly established a good title by 1859.

With respect, Guatemala fundamentally misunderstands the approach of international law to the acquisition of title. For them, once a thief always a thief. But international law takes a different approach. It expressly recognises that the title of the original sovereign can be lost by absence, neglect or acquiescence in adverse possession. Equally, a good title can be acquired despite dubious legal origins. It can derive from continuity of possession and administration over an extended period irrespective of how it began. The fact of continuous possession and administration overrides the notional title of a state that merely claims title without possession or administrative control.

In our Response dated 30 April 2001 we give abundant evidence to prove conclusively that the entire area of present-day Belize, from the Hondo to the Sarstoon, was effectively occupied and administered by the British settlers, with the approval and support of the British Crown, before 1821. In that area they lived and worked, their courts had jurisdiction, their land laws provided persons with freehold property that could legally be bought and sold. Greater proof of sovereignty no place has, or need have. I need not burden you with a repetition of what we have fully set out in our Response and accompanying annexes, especially when Señor Aycinena has himself been kind enough to provide us with a clear statement of the actual situation:

"On examining this situation, we could not fail to recognise that the right we had constantly alleged of being presumptive heirs of Spain’s sovereignty, was considerably weakened due to our lack of means to take possession of these territories that had been deserted and abandoned by Spain herself and subsequently by us. Furthermore, such a right, in the face of actual possession and practical exercise of sovereignty, regardless of the means by which they were acquired, could lead to a prolonged discussion and although supported with some foundation by us, did not offer any reasonable hope for success.

“It was recognised that we could not argue against the sovereignty already being exercised with full Spanish acquiescence in 1821 when we became independent, and that, in the case at hand, the issue would be reduced to territorial occupation occurring after that date only.

“In this regard, setting aside the theoretical points of law that could assist us, we were faced with the practical difficulty of modifying the existing boundaries. Even if we were to prove the point - presumably true despite Britain’s contention to the contrary - that the limits were extended as far as the Sarstoon River after Independence, the truth was that since we had never taken possession of these territories, nor had we recognised them, nor maintained agents to represent us in them, it would render it impossible for us to determine or fix which part was occupied during Spanish rule and which part was occupied thereafter. This loomed as an insurmountable obstacle against materialising our claim.

"These and other considerations surrounding the issue, taken together and seen from all perspectives, were given to the President for his consideration. He took the decision required by the case, and recognizing the existing facts, instructed that all fruitless discussions be ended, given that they were of no substantive importance and did not merit continuing.”

If only the present representatives of the Guatemalan State would take the same wise and enlightened view of that President and realize that fruitless discussions do not merit continuing, and agree to respect the boundaries that have been real and existing for almost 200 years and that have been agreed by treaty 142 years ago and reconfirmed, again by treaty, 70 years ago. We note with satisfaction the Guatemalan adoption of the ancient English legal aphorism, that nothing is settled until it is settled right, and surely “right” in this context, in the sense of what is required both by law and by justice, is to respect the borders that have been settled, and respected on the ground, for close on 200 years. Allow me to commend to you a modern universal legal aphorism: everything is settled, when it is settled for 200 years!

I said I would not repeat the evidence of possession and the exercise of sovereignty that we have already submitted, but as a way of providing some visual relief, allow me to refer to three or four critical maps of the period:

[Several maps were displayed, showing British possession up to the Sarstoon from as early as 1814]

(ii) Historical Consolidation

But the rights that Belize derives from adverse possession are also to be seen in the context of the wider concept of historical consolidation. By that process, the fact of possession for virtually two hundred years serves to establish and crystallize a title regardless of the circumstances in which possession originally came about. In the Eritrea / Yemen case, the Tribunal spoke of the concept of “historical title” as being a “ title that has been created, or consolidated, by a process of prescription, or acquiescence, or by possession so long continued as to have become accepted by law as a title”.

It is clear that one of the key tests is to contrast the two competing claims of the states claiming sovereignty. Original title can be defeated if sovereignty has not continued to be exercised by what Judge Huber in the Island of Palmas case calls “ the actual display of state activities such as belong only to the territorial sovereign”. So it is appropriate to test the respective claims of Britain and Belize on the one hand and Spain and Guatemala on the other hand by reference to the dual test of who was in actual possession on the ground and who was actually displaying sovereignty by state activities such as administration of the area, the issue of land grants, the administration of justice. By reference to every one of these tests there can be no doubt as to who was in actual possession and exercising actual sovereignty at all material times up to and including the present.

Again, I will not repeat the evidence we have presented in our written submission, but the Panel, and the distinguished members of the Guatemalan delegation themselves, will readily appreciate and admit that the evidence there presented conclusively proves:

(i) That by 1821 Britain had already established title as against Spain by the process of acquisitive prescription.

(ii) That certainly by 1859 it was Britain and not Guatemala that was in actual and settled possession of the land as far as the Sarstoon, and it was Britain and not Guatemala that had for some decades been displaying all the incidences of sovereignty.

(iii) That in any event the overall process of historical consolidation of the title between the end of the 18th century and the present is such that it could not seriously be doubted that sovereignty belongs to Belize and not to Guatemala.

Still, it would be useful to remind ourselves that it was the Guatemalan Foreign Minister himself who, at the time of the conclusion of the 1859 Treaty, admitted all the facts – and, I might add, the law- necessary for us to ground our case for title by acquisitive prescription and historical consolidation. And it would no doubt assist the Panel if we were to list a very small select number of instances, both before Señor Aycinena’s statement and after, in which Guatemala, by omission or commission, tacitly or explicitly, recognised our sovereign rights over the territory. Although we document eighteen such instances in our Response, spanning the period from1887 to 1993, we will highlight here a few of these and some others:

In 1825, by Ley 4, the decree that declares the territory comprehended within the State of Guatemala, several provinces are listed and within each are listed the towns and settlements therein. A study of those in Verapaz and Peten shows clearly not only that none are within the territory of Belize, but that none are even near it.

In 1839, the Constituent Assembly of Guatemala, which had just declared independence, divided the country into seven departments and two districts. Not only is Belize not included, but the exhaustive list of towns and settlements within Verapaz and Peten does not include any settlements even near to the border with Belize.

We refer to this in our statement and include the law and the list in our Annexes, because although Guatemala had, in its Statement, at paragraph 45 b.4, referred to this, it did not provide the text nor the table, and misleadingly stated, in relation to the Peten, that “the latter comprised the coasts located between the Sibun and Sarstoon rivers”. I don’t want to belabour the point, but there are several instances of Guatemala, deliberately or otherwise, providing misleading and untrue statements. Another of these, for example, we mention at paragraph 53 of our Response. There has also been, through the years, a tendency to deliberately omit critical evidence. The seminal letter of Señor Aycinena is but one example; this we unearthed from an article written by Wayne Clegern in 1960.

Indeed, and especially since Guatemala calls in aid the writings of Wayne Clegern and even attached one of them in their Annex, you might like to know that Mr. Clegern, who had been working in Guatemalan archives in 1959, reported that many key documents on the Belize issue were missing from the archives. He later found that they had been removed after President Ubico had set up the Department for Belice Affairs. Because the Guatemalan authorities thought he was on their side (his article included in the Guatemalan annex was written before he had access to Guatemalan archives), they allowed him free access to these documents. He reported that many valuable documents were hidden away in the cupboards of the Directorate General, some of them being documents that Jose Luis Mendoza thought better to suppress when he prepared the book ‘Britain and her Treaties on Belize’, and some of them being documents that Mendoza thought best to edit before publication. Clegern reported that Mendoza’s erasures and changes still figure on the documents in bold blue pencil.

Really, members of the Panel, in this context it is a bit much that Guatemala should choose in its Reply (paragraph 19) to baselessly accuse Belize of distorting statements and of making statements that detract from the truth. We vigorously deny those allegations and demand that Guatemala withdraw them.

But to continue our story of official acknowledgments by Guatemala of British and Belizean sovereignty:

It is important to note here that Guatemala has attempted, in its submissions to the Panel, to use the fact that a treaty had been signed between the two countries in 1847, after which Guatemala had addressed a note to Chatfield making a reservation as to its rights pending with Britain over boundaries. This is misleading, as it is only half the truth. The other half is that the 1847 Treaty was not ratified, and that in 1849, Guatemala and Britain signed and this time ratified the Treaty of Friendship, Commerce, and Navigation. The Treaty did not mention Belize at all, and Guatemala did not enter any reservation with respect to that territory. If that isn’t misleading, tell me what is.

In 1853, the Guatemalan government issued a decree, Ley 14, detailing the terms of what is in effect a Treaty of extradition between the authorities of Belize and Guatemala. Indeed, the law incorporates the decree of the Superintendent of Belize of 23 February 1852.

In 1968, a Mediator appointed by the United States made certain proposals for the settlement of the dispute. Their starting point was acceptance of the fact that Britain was sovereign over the whole of the area of Belize. By reason of the unacceptability to Belize of a number of other proposals of the Mediator, his recommendations were rejected by Britain. Nonetheless, it would appear from the wording of para. 29 of the Guatemalan Statement that Guatemalan did not regard the proposals (including acceptance of British title) as unacceptable.

The Heads of Agreement concluded between Britain, Belize and Guatemala in 1981 were developed on the basis that Guatemala acknowledged the full territorial extent of Belize. Now, 20 years later, Guatemala seeks again to turn back the clock and make absurd demands on our territory.

On 13 February, 1992, the Foreign Minister of Guatemala wrote to the Foreign Minister of Belize “regarding the publication of an International Tender from the Ministry of Energy and Mines in my country for petroleum exploration and exploitation in various areas of your country”. [The advertisement appeared in the 9 December issue of the Oil and Gas Journal] (See Annex 29). He added that “In fact, the delimitation of the area of the Bay of Amatique, identified as A-6-91, was not discussed with nor approved by this Ministry. Your Excellency may be sure that this error has been inadvertent and in order to assure your Government that it is not the intention of the Government of Guatemala to create any friction with Belize, this area will not be appropriated for tender to any company whatsoever. By the same token, the upcoming tender to appear in the month of June shall contain only specific delimitation areas so as not to bring about any possible misinterpretation”. The area in question was in Belizean waters, off the coast of the southern part of the area comprehended between the Sibun and Sarstoon Rivers. This surely provides incontrovertible proof of Guatemala’s recognition of Belizean sovereignty over the area between the Sibun and the Sarstoon Rivers, as recently as 1992.

On 31 July, 1992, the governments of Belize and Guatemala signed a Joint Statement in which they referred to the fact that they had not yet signed a treaty finally establishing their land and maritime boundaries, and that such a treaty is one element of the expected outcome of the negotiations. They agreed “to accept that any mention to their respective territory in any agreements, their execution or implementation thereof, will be made based on the existing reference monuments” (see Annex 30). It is impossible to interpret this agreement other than as an acknowledgement by each side that the other possesses territory on the other side of the boundary.

On 4 August, 1992 Belize and Guatemala signed a “Joint Project To Renew And Extend The Road Network Linking Belize And Guatemala”(See Annex 31). The wording of this agreement recognises that, for example, Pueblo Viejo is “in the Toledo District [of Belize]” and that Benque Viejo del Carmen is “in Belize”, and it refers to Melchor de Mencos, in Guatemala, as being “at the border with Belize.”

On 16 April 1993, Belize and Guatemala issued a joint press release following a ministerial meeting arising out of the illegal felling by Guatemalans of mahogany trees within the territory of Belize. Guatemala accepted that the logs had been felled in Belize’s territory. Such an acknowledgement cannot be reconciled with the present position of Guatemala.

Distinguished Secretary General and Facilitators: you will by now no doubt feel thoroughly convinced that we have conclusively proven our case, and that therefore your task is an easy one. But here comes the good news: what I have so far presented is far from being the strongest case for Belize’s right to territorial integrity and independence. By far our strongest and clearest case relies on the actual agreements made by the Guatemalan State in 1859 and 1931. I will now, with your kind permission, invite the distinguished Queen’s Counsel, Edward Fitzgerald, to present this case to you.

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