THE
DOCTRINE OF UTI POSSIDETIS
1.
This Appendix examines the application of the uti possidetis
doctrine as invoked by Guatemala in support of its claim
that it succeeded to Spanish title over Belize. It should
be read in conjunction with Part Two, Section I, B, of the
main Opinion and will not repeat all the points made there.
While the question of uti possidetis has become entirely
irrelevant by reason of the fact that the title of Belize
to its territory has been recognized by Guatemala in two
treaties we nonetheless address it because of the prominence
given to it in Guatemala's arguments.
2. The
present discussion will show in particular that this doctrine
cannot prevail over a title that derives from long adverse
possession and is recognised by treaty. It will also show
that the concept of uti possidetis as invoked by
Guatemala today could not operate in relation to States
whose territorial titles do not derive from the Spanish
Crown, certainly not at the time of Central American independence
in 1821. In any event, whatever may have been the extent
to which in theory Guatemala may have inherited Spanish
title in Central America, Guatemala did nothing in the area
of Belize to maintain such a title in the face of growing
British possession à titre de souverain in that area.
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1.
Spain's title to the territory of Belize.
3.
In the long diplomatic history of colonial confrontations
between Spain and Britain, as between Spain and other powers,
the former had often relied on the general title of sovereignty
assigned to it by Pope Alexander VI in 1493. Whatever the
merits of such a general title, it had to be translated
into effective acts of occupation and jurisdiction since
otherwise rival powers would inevitably have taken the lead
in establishing their own territorial claims, as in fact
happened in the Americas and elsewhere. From the very outset
the question of nominal legal titles versus effective occupation
has characterized territorial disputes throughout the world,
not least in this particular area.
4. The
peninsula of Yucatán, today a part of Mexico, was
because of its position in the Caribbean basin much visited
by pirates and buccaneers from the early days of colonization.
Activities by pirates were reported as early as 1570. The
long extension of its coasts, scarce population and limited
or non-existent defenses, have been identified as the main
reasons explaining the growing presence, first of unwanted
visitors and, later, of logwood cutters and settlers. As
early as 1638 British settlers appear to have developed
logwood activities in present day Belize; and it is certain
that between 1662 and 1670 this activity became regular.
5. Spanish
colonial authorities were well aware of the threat that
these settlements and activities posed to the preservation
of their sovereignty over the area. The occupation in 1663
of Isla de Términos in the Yucatán peninsula,
and of a point on the eastern coast close to Honduras, later
to be known as Belize, were clearly identified as significant
dangers in this respect.
6. Expeditions
were accordingly organized by Spanish authorities from time
to time to re-establish their authority over the areas occupied
by settlers or unwanted visitors. Early efforts were reported
in 1620, followed by a never-implemented Royal Decree of
1629 creating a naval Coast Guard. Further expeditions took
place in 1699, 1703, 1716, 1722, 1724, 1726, 1733, 1748,
1751, 1754, 1779 and 1798. All these expeditions were organized
by the governors of Yucatán. Only in two instances
was there Honduran involvement and only in one was there
marginal Guatemalan participation. These activities have
an important bearing on the question of uti possidetis,
as it appears that Mexico rather than Guatemala had a closer
connection with the Spanish title to the area, as will be
developed more fully below.
7. The
very fact that these expeditions had to be organized every
few years clearly shows that Spain did not have full control
over all the territories in the area under its nominal authority.
Moreover, while Spain succeeded in establishing its authority
over the Yucatán peninsula it was less successful
in respect of the area of Belize. There, in spite of occasional
setbacks, foreign settlers continued to develop their activities.
8. In
fact, a process of continuing intensification of jurisdictional
activity took place, first by the settlers themselves and
later by Britain itself, including acts of a sovereign nature,
accompanied by a gradual expansion of the area of settlement.
It is not necessary to recount in detail this development
of British activity in the area before 1798. All of this
had the effect ultimately of limiting the area of the Spanish
title. Suffice it to say, that in all this period there
is scarcely any evidence of the involvement of the Captaincy-General
of Guatemala in matters relating to what is now Belize.
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2.
Indications that the authority of Yucatán extended
into Belize to the exclusion of the authority of Guatemala
9.
It is instructive to review in summary form a number of
indications of the extension over Belize of the authority
of the Captaincy-General of Yucatán to the clear
exclusion of the authority of the Captaincy-General of Guatemala.
1703-1706 During this period, reconnaissance of the
coast of Belize was ordered by Don Alvaro de Rivaguda, Governor
and Captain-General of Yucatán.
1723 A Spanish Royal Decree (Real Cédula)
of 21 June 1723 instructed Don Antonio de Coretayre y Terreros,
the Governor and Captain-General of Yucatán, to expel
the British from Belize.
1724
In July 1724 the expedition just referred to was mounted
by the Captain-General of Yucatán. In December of
the same year, the Viceroy of New Spain was ordered by a
Royal Decree to provide the necessary assistance to the
Captain-General of Yucatán.
1726
In response to a Royal Decree of 22 December 1725 the Marqués
de Casafuerte reported yet another expedition by the Captain-General
of Yucatán in an attempt to expel the British settlers
from Belize.
1733
Another expedition against Belize was organised by the
Captain-General of Yucatán.
1734
A 1734 map, Plano de la Provincia de Yucathan, copied
in 1764, shows Yucatán as extending southwards into
what is now the northern part of Belize.
1737 Another expedition against Belize was organised
by the Captain-General of Yucatán.
1752
In 1752 the Captain-General of Guatemala for the first time
purported to intervene in the area. An expedition was mounted
by the President of the Audiencia of Guatemala, José
Vásquez de Prego, but when news of it got to Madrid
he was severely admonished by the Minister for the Indies,
Marqués en Ensenada. The President was reminded that
his duties concerned the settlements of Rio Tinto and Laguna
Azul, under the jurisdiction of Guatemala, and not those
of the eastern coast of Yucatán that depended upon
the Governor of Campeche. Guatemala did, however, provide
troops for the support of another major expedition organized
in compliance with a Royal Decree of 26 June 1752, but these
operated only in western areas (Laguna Coba, Hacienda San
Miguel) in the Guatemalan heartland, aiming at conducting
hostilities against Belize from the rear.
1755
On 25 February 1755 the Governor of Guatemala responded
to a petition by the British Governor Knowles stating that
he had "no jurisdiction in the matter of the demolition
of the fort at Belize and the return of the logwood cutters".
1763
An important milestone in the history of the area was
reached in the Treaty of 1763. Spanish sovereignty over
the territory was recognized by Britain and permission was
obtained by Britain to undertake some limited economic activity.
Under this agreement, Britain also undertook to destroy
fortifications erected by the settlers and Spain undertook
not to permit those settlers to "be disturbed or molested
under any pretence whatsoever". When the question of
the precise boundaries of the British settlement arose it
was the Governor of Yucatán who in December 1763
ordered the settlers to cease their operations in the River
Hondo and restrict themselves to the River Belize; protests
followed and soon thereafter, on orders from Madrid, they
were reinstated in their original positions.
1764
A map dating from 1764 appears likely to have been drawn
at the direction of the Governor of Yucatán. Although
it bears the words "Ultimo de la Provincia de Yucatan"
north of the Rio Hondo, the "Provincia del Peten Itza"
is marked well to the west and the "provincia de Goathemala"
is marked even south of the Gulf of Dulce.
1771 In August 1771 John Botham, the Captain of a
British vessel, addressed to Antonio Oliver, the Governor
of Yucatán, a request that the felling limits be
extended from Cabo Catoche (at the northern end of the Yucatán
peninsula) to Cape of Honduras, far south of the present
southern boundary of Belize, thus indicating the region
over which it was then believed that the authority of Yucatán
extended.
1783-84
A highly relevant episode occurred during the implementation
of the Treaty of 1783. While Spain made preparations for
the delivery of the area to British Commissioners with the
intervention of the Governor of Yucatán, Lord North
informed the President of the Audiencia of Guatemala, José
de Estacheria, through the Governor of Jamaica, that British
Commissioners would come to the Belize River for the marking
and transfer of the territory. The President of the Audiencia
of Guatemala then wrote to the Spanish Minister for the
Indies indicating that "this marking should be made
by the Government of Yucatán since all the territory
involved in this demarcation is part of it". The boundary
was then marked and the area formally delivered to British
Commissioners by the Governor of Yucatán on 27 May
1784.
1787
By the treaty of 14 July 1786, in return for the evacuation
of the Mosquito Shore and adjacent islands, Spain extended
the concessions in the area of Belize southwards to the
Sibun River and permitted the occupation of the Island of
St. George's Key. The wood cutting areas were enlarged but
other plantations were prohibited. Spanish sovereignty was
again preserved, no fortifications were to be built, there
was to be no system of government for the settlers and Spanish
and British Commissioners were to inspect the area twice
a year. Marks were to be built and the lands were assigned
to the settlers by the Governor of Yucatán in 1787.
1789
When, pursuant to the 1786 Treaty, the committee of inspection
toured the areas of the British settlements, it was the
Governor of Yucatán, Lucas de Galvez, who entrusted
the task to Lt. Gual, an officer stationed in Campeche in
the Yucatán.
1792
Similarly, it was the provisional governor of Yucatán
who organised the next visit of inspection, entrusting it
once more to the same Lt. Gual who had carried out the first
inspection.
1798
When war started again between Britain and Spain in 1796,
Yucatán (not Guatemala) again sought to assert its
authority. In 1798 Field-Marshal Arthur O'Neill, Governor
of Yucatán, launched the last major attack on the
settlements but was defeated in the battle of St. George's
Key on 16 September 1798.
1803
By the Treaty of Amiens of 1802 peace was re-established
between
Britain and Spain. Britain agreed to restore to Spain all
possessions occupied or conquered during the war with the
exception of the Island of Trinidad. The Governor of Yucatán
even went so far in 1803 as to contend that Britain was
bound to surrender completely its settlement in Belize.
In the course of that year, however, he accepted that no
change had taken place in the legal status of Belize.
10.
In short, by reference to this summary review, it is evident
that the province of Spain that appeared to have authority
over the area of Belize was the Captaincy-General of Yucatán,
not that of Guatemala. And this position was recognised
not only by the authorities in Spain but also by those in
Guatemala. Hence there is no basis for Guatemala's contention
that it succeeded to the title of Spain in Belize by virtue
of uti possidetis juris; there is no evidence that
the territory of Belize fell within the administrative authority
of the Captaincy-General of Guatemala.
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3.
Uti possidetis in Latin American practice
11.
Guatemala's invocation of the concept of uti possidetis
juris starts from the assumption that any territory
that had once been under Spanish rule passed to Guatemala
without qualification.
12.
This understanding of uti possidetis, is, however,
far from that which is found in the practice of Latin American
States, including Guatemala, and in the relevant judicial
and arbitral decisions.
13.
In its origins in Latin America uti possidetis was
meant to accomplish two main purposes. The first was to
provide a legal standard for the settlement of border disputes
between the seceding States. It was assumed that each would
have retained the boundaries pertaining to the relevant
Spanish provincial or territorial administrations. The second
purpose was to provide a legal defense in respect of post-colonial
occupation or other adverse actions that third States might
take in the continent. This original meaning was expressed
by the Swiss Federal Council in its well known Award of
1922 in the arbitration between Colombia and Venezuela:
"When the Spanish colonies of Central and South America
proclaimed their independence in the second decade of the
nineteenth century, they adopted a principle of constitutional
and international law to which they gave the name of uti
possidetis juris of 1810 for the purpose of laying down
the rule that the boundaries of the newly established republics
should be the frontiers of the Spanish provinces to which
they were succeeding. This general principle offered the
advantage of establishing an absolute rule that in law no
territory of the former Spanish America was without an owner.
Although there were many regions that had not been occupied
by the Spanish and many regions that were unexplored…these
regions were regarded as belonging in law to the respective
republics that had succeeded the Spanish provinces to which
these lands were connected by virtue of old royal decrees
of the Spanish mother country. These territories, although
not occupied in fact, were by common agreement considered
as being occupied in law by the new republics from the very
beginning. Encroachments and ill-timed efforts at colonization
beyond the frontiers, as well as de facto occupation,
became ineffective and of no legal consequence".
14.
This meaning of uti possidetis is indeed quite different
from that which has been now invoked by Guatemala. First,
uti possidetis was intended to provide a standard
for the determination of boundaries between the newly formed
States, that is, for the drawing of the line separating
their respective sovereignties, and not for the attribution
of territory in the sense of determining sovereignty over
large areas of disputed land. Exceptionally it has been
used also for the latter aspect, mainly in connection with
islands where no internal boundary has to be drawn, but
this is a development unrelated to its main function and
practice. In cases of continental territorial disputes the
role of attribution has been marginal and in many such instances
the determination is more related to the role of effectivités
than to the extent of a legal title. In most cases where
uti possidetis has been used its role has been to
determine the precise drawing of a boundary line.
15.
Second, the main function of uti possidetis is to
establish a presumption that applies to the title of the
newly independent State. But in itself the title of the
successor cannot be any better than the title of the predecessor.
In the present case, Guatemala's title depended upon that
of Spain, and the latter had already been attenuated in
respect of Belize before Guatemala's independence. It follows
that lack of effective occupation and loss of Spanish title
over the territory cannot be undone by a mere presumption.
On the contrary, it has been accepted that any presumption
as a means of strengthening the title may be rebutted by
historical evidence about actual occupation and the exercise
of jurisdiction.
16.
Third, the Latin American States never agreed to reject
effective occupation as a basis of title. In fact, reliance
on occupation has been part of the continuing practice of
the region. This is what gave rise to uti possidetis
de facto or simply uti possidetis, as opposed
to uti possidetis juris. Guatemala herself has also
supported and argued the uti possidetis de facto,
which in fact is legally indistinguishable from effective
occupation. Guatemala cannot now convincingly change its
interpretation of the principle.
17.
Fourth, the operation of the presumption against the effects
of foreign occupation in Latin America relates only to post-colonial
occupation as the principle did not exist until the moment
of independence. It does not relate to situations that existed
before independence as these had already affected the title
of Spain and its successors.
18.
It should also be borne in mind that, as discussed in the
main body of this Opinion, uti possidetis juris can
only operate, if at all, in relation to territory that was
actually under the authority and control of Spain. The doctrine
refers to the boundaries of Spanish administrative divisions.
As understood at the time of independence and for many years
after, the doctrine could not operate against States that
did not derive their title by succession from Spain, as
was the case with the British title to Belize. British title
was independent of the question of Spanish internal administrative
boundaries and was based on possession and historical consolidation.
The fact that in recent years uti possidetis has
been more broadly applied so as to ensure generally the
stability of frontiers inherited by new States from the
previous sovereign of the area, giving rise to what has
been called uti possidetis universalis, cannot alter
the extent of the concept as it operated in 1821, nor can
it be applied retroactively. The practice of Latin America
in this respect, to be examined next, confirms that the
doctrine applied only between the successor States of Spain.
It did not even apply to the determination of boundaries
with Brazil, the country with the most boundaries in South
America, as that country derived its title from the Portuguese
sovereign.
19.
The diplomatic practice of Latin American countries regarding
uti possidetis varies considerably. It is clear,
however, that there have always been two main interpretations:
one which regards uti possidetis as incapable of
being affected by occupation and other territorial factual
situations; the other which allows the facts to prevail
over theory.
20.
Occasionally, uti possidetis juris has prevailed
over any consideration relating to de facto possession.
Thus, an 1894 treaty between Honduras and Nicaragua required
the Commission to "consider fully proven ownership
of territory and…not recognize juridical value to 'de
facto' possession alleged by one party or the other".
But this was an express treaty provision and even these
peremptory terms did not prevent the Commission from following
a well-defined natural boundary line and granting compensation
for any departure from proven titles.
21.
But in most cases it is de facto possession that
has had the most prominent role. For example, the treaties
concluded by Brazil with the neighbouring States that were
successors to Spain (namely, Venezuela, Colombia, Peru,
Bolivia, Paraguay, Argentina and Uruguay) refer not to uti
possidetis juris but to uti possidetis alone,
thus reflecting the Brazilian interpretation that boundaries
should be established on the basis of the effective occupation
existing at the time that Brazil became independent or at
the time of conclusion of the respective treaty. In fact
all such boundaries were drawn by reference to effective
occupation and not on the basis of legal acts of the colonial
period. Also Paraguay relied on uti possidetis de facto
in its territorial dispute with Bolivia.
22.
This meaning of uti possidetis has also been acknowledged
in the writings of publicists. For example, Andrés
Bello, a distinguished Latin-American jurist, wrote in 1857
that "[t]he uti possidetis of the epoch of the emancipation
of the Spanish colonies was the natural possession of Spain,
what Spain possessed really and effectively, with some title
or without title; not what Spain had the right to possess
and did not possess".
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4.
Relevant precedents in international arbitration and adjudication.
23.
The view previously held by Guatemala on uti possidetis
has also been confirmed by arbitral decisions and other
precedents, some involving Guatemala herself. The arbitral
award of 6 June 1904 rendered by the King of Italy in the
dispute between Great Britain and Brazil concerning the
boundary of British Guyana held that
"…occupation cannot be held to have been accomplished
except by an effective, uninterrupted and permanent possession,
in the name of the State; and mere affirmation of the rights
of sovereignty, or the manifest intention of a will to make
the occupation effective, is not sufficient".
24.
Again, the Commission established under the 1894 treaty
between Honduras and Nicaragua not having completed its
task, a sector of the boundary was submitted to the arbitration
of the King of Spain. In his award of December 23, 1906,
the arbitrator followed the natural boundary claimed by
Honduras and not strictly the line of uti possidetis
juris argued for by Nicaragua. Because of this, and
alleging excess of power, Nicaragua applied to the International
Court of Justice for nullification of the award.
25.
The Court, however, considered the complaint "without
foundation inasmuch as the decision of the arbitrator is
based on historical and legal considerations (derecho histórico)…".
From the views expressed by two Latin American judges sitting
in the case it is apparent, however, that the Court did
not accept the argument that uti possidetis juris was the
legal principle governing the determination of the boundary.
This was indeed the first time the International Court of
Justice was confronted, albeit rather indirectly, with the
principle of uti possidetis juris, and the fact that
it considered that it could be reconciled with factual realities
was already an indication of the meaning that would later
be given to this concept.
26.
In the boundary dispute between Guatemala and Honduras,
the Agreement of Arbitration concluded by the parties gave
the Tribunal the power to derogate from uti possidetis
juris. Guatemala argued in this connection that the
decision should be based on "the sheer factual situation"
existing in 1821, "in conformity with the fact…the
fact being what the Spanish monarch had himself laid down,
or permitted, or acquiesced in, or tolerated, as between
Province and Province…". In support of this position
Guatemala further recalled the view it had maintained in
the mediation effort undertaken by the United States in
1918-1919, in the context of which Guatemala had referred
to "the improper formula of uti possidetis"
and that the only relevant aspect should be the "factual
situation". The reliance of Guatemala on occupation,
permission, acquiescence and tolerance is highly relevant
to the instant controversy with Belize.
27.
On the basis of the Guatemalan argument, the arbitral tribunal
had no difficulty in concluding that the
"expression
'uti possidetis' undoubtedly refers to possession. It makes
possession the test…In determining in what sense the
Parties referred to possession, we must have regard to their
situation at the moment the colonial regime was terminated…".
The
Tribunal then discussed administrative control, including
the difficulty of finding trustworthy information on unexplored
territories, the fact that there were "great areas
in which there had been no effort to assert any semblance
of administrative authority" and "the conduct
indicating royal acquiescence in colonial assertions of
administrative control".
28. The Tribunal also resorted to "equity and justice",
particularly in affirming that "…advances in good
faith, followed by occupation and development, unquestionably
created equities which enterprises subsequently undertaken
would be bound to consider". It held expressly that
"priority in settlement in good faith would appropriately
establish priority of right". All of the above is also
relevant as an expression of the legal standard governing
the present dispute between Guatemala and Belize.
29.
As this decision shows, uti possidetis does not have
the all-encompassing effect of permitting legal title to
prevail over occupation. In fact, title acquired on the
basis of occupation can compete with colonial titles; and
the presumption accompanying the principle would no longer
operate automatically, if it ever did.
30.
In the dispute between El Salvador and Honduras decided
by a Chamber of the International Court of Justice the parties
held different views about the meaning of uti possidetis.
Honduras sought to rely exclusively on this principle; El
Salvador argued in favor of considering additional criteria.
The Chamber accepted as a matter of principle the prevalence
of effectivités over uti possidetis,
although in practice it did not apply this view to all the
disputed sectors as it considered that the effectivités
were not sufficiently proven to derogate from the principle.
However, in respect of some sectors the decision followed
a different approach and uti possidetis became rather
marginal. These other approaches included acquiescence,
effective occupation and recognition, particularly in respect
of the determination of sovereignty over the islands. Equity
infra legem was also mentioned by the Chamber.
31.
It is also important to note that the overriding effect
of treaty-established boundaries over colonial titles and
the operation of uti possidetis was also recognized
in the Beagle Channel Arbitration. The Court of Arbitration
noted that it was common ground between the Parties that
the boundary settlement established in the treaty of 1881
between Argentina and Chile prevailed over any claim based
on uti possidetis, even as a means for the interpretation
of the treaty. As regards the Argentinean contention that
the Treaty must be read in the light of the doctrine of
uti possidetis and that that principle must prevail
in the event of any irresolvable conflict or doubt as to
its meaning or intention, the Court pointed out that
"in
the particular case of the 1881 Treaty, no useful purpose
would be served by attempting to resolve doubts or conflicts
regarding the Treaty, merely by referring to the very same
principle or doctrine, the uncertain effect of which in
the territorial relations between the Parties had itself
caused the Treaty to be entered into, as constituting the
only (and intendedly final) means of resolving this uncertainty."
This
consideration is directly applicable to the role of the
1859 Boundary Convention between Britain and Guatemala in
relation to which the same concept applies.
32.
Similarly, it must also be recognized that any argument
based upon uti possidetis must give way to the subsequent
conduct of the parties. In the Burkina Faso/Mali Frontier
Dispute case the Court considered an argument developed
by Burkina Faso that Mali had accepted a solution to the
dispute outlined by a Mediation Commission of the Organization
of African Unity which sat in 1975. As to this, the Court
said:
"Since
this argument from acquiescence would, if correct, make
it unnecessary to endeavour to establish the frontier inherited
from the colonial period, it should be dealt with at the
outset as a preliminary question."
33.
The decision in the El Salvador-Honduras case mentioned
above is also meaningful in identifying the legal effects
of acts done à titre de souverain. From 1798,
and in some matters even before that date, British jurisdictional
acts in connection with Belize were made à titre
de souverain, that is with the intention of their being
the acts of the sovereign authority. The Chamber said:
"[P]ossession
backed by the exercise of sovereignty may be taken as evidence
confirming the uti possidetis juris title. The Chamber
does not find it necessary to decide whether such possession
could be recognized even in contradiction of such a title,
but in the case of the islands, where the historical material
of colonial times is confused and contradictory, and the
accession to independence was not immediately followed by
unambiguous acts of sovereignty, this is practically the
only way in which the uti possidetis juris could
find formal expression so as to be judicially recognized
and determined".
34.
Applying this approach, the Chamber then determined that
El Salvador had exercised State power over the island of
Meanguera and its dependency of Meanguerita, just as Honduras
had done in respect of El Tigre, without timely protest
by either party. The Chamber held that
"[t]he
evidence as to possession and control of an island by one
Party without protest by the other, as pointing to acquiescence…and
the display and exercise of sovereignty…coupled in
each case with the attitude of the other Party, clearly
shows however, in the view of the Chamber, that Honduras
was treated as having succeeded to Spanish sovereignty over
El Tigre, and El Salvador to Spanish sovereignty over Meanguera
and Meanguerita".
In this
manner acts à titre de souverain, even those
done after independence, were held to prevail over uti
possidetis juris strictly understood.
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5.
Conclusions about the role of uti possidetis in the claim
by Guatemala.
35.
The British title to the territory of Belize was the result
of a gradual process of consolidation and of territorial
extension. Acquiescence by Spain was significant in this
process as reflecting its gradual abandonment of jurisdiction
and interest in the area. What began as unacceptable incursions
evolved into tolerated settlements, legal recognition of
the status of such occupation and, finally, acceptance of
the exercise of jurisdiction by Britain. From 1798 jurisdiction
was generally exercised à titre de souverain.
Recognition followed in due course by the United States,
Mexico and Guatemala.
36.
Four conclusions can be reached in the light of this evolution:
first, that at the time of independence of Central America
in 1821 Spain had no effective authority over the territory
of Belize or, at best, only a nominal claim. Second, that
Britain had a title based on the effectiveness of its own
occupation, at that stage including also the necessary animus
and the corpus. Spanish protests about British activities
had been scant and had long ceased to be made. Third, that,
in any event, there is evidence that the area of Belize
fell under the authority of Yucatan, not of Guatemala, so
that, on any basis, Guatemala could not be the beneficiary
of the operation of the doctrine of uti possidetis juris.
Fourth, there is clear evidence, set out in the main Opinion,
that whatever title Guatemala may conceivably have inherited
at the time of independence in 1821, the conduct of Britain
subsequent thereto was sufficient to extinguish that title
and vest it in Britain and now in Belize.
37.
Whatever Guatemala acquired as a title from Spain already
had limitations built in it. Under the doctrine of uti
possidetis Guatemala possessed no more than Spain, nor
could its legal title be improved by mere succession. The
objective of the doctrine of preventing foreign occupation
of terra nullius was not applicable to this situation,
first, because the terra was not nullius and,
second, because that aspect of the principle applies only
to occupation taking place after independence, not before.
Occasional protests by Guatemala were certainly not enough
to prevent the consolidation of the British title based
on a substantial and continuous economic, commercial, jurisdictional
and diplomatic activity.
The
1859 Convention put an end to whatever applicability the
doctrine of uti possidetis may have had. As from
the ratification of the Convention, the extent of the legal
title of each country was reflected in the treaty. Moreover,
the effect of the 1859 Convention was confirmed by the 1931
Exchange of Notes. This is yet another reason why the claim
by Guatemala to any part of Belize based on uti possidetis
as a means for the attribution of territory cannot be upheld.
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