IV. THE RELEVANT TREATIES

11. As to treaties, there are two that govern the matter: (A) the Convention of 1859 and (B) the Exchange of Notes of 1931.

A. THE 1859 CONVENTION

12. The 1859 Convention occupies a major place in the discussions between Guatemala, Britain, and, more recently, Belize.

1. Introduction

13. The 1859 Convention contains seven substantive articles. Article I defines
the boundary between Guatemala and British Honduras. Articles II-V are concerned with matters relating to the demarcation of the boundary. Article VI provides for free navigation in the channels forming the water-line of the boundary and for the allocation of islands within such channels. Article VII, which has turned out to be the centre of controversy in this matter, provides that the two parties "mutually agree conjointly to use their best efforts, by taking adequate means for establishing the easiest communication (either by means of a cart-road . . . or rivers . . . or both)" between the capital of Guatemala and the fittest place on the Atlantic Coast near the settlement of Belize.

14. Guatemala contends that the Convention is a treaty of cession by which
Guatemala ceded to Britain territory that was previously Guatemalan territory; that Britain has not fulfilled its obligations under Article VII and is therefore in breach of the treaty; that that breach entitles Guatemala to treat the Convention as at an end; and, therefore, that the territory has reverted to Guatemala.

15. For reasons that we shall presently set out, these arguments 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 restated by the ICJ in the Libya/Chad case, namely, that a boundary, once established by treaty, possesses a legal life of its own, independent of the fate of the treaty.

16. In these circumstances, we have considered carefully the extent to which we should enter into the substance of all the Guatemalan arguments as hitherto advanced. 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 contentions of Guatemala. Accordingly, we reserve for consideration in Part Two of this Opinion three of the arguments of Guatemala that, in our opinion are irrelevant to the main aspects of the title of Belize . However, we shall have to touch on some aspects of them in the present Part.

2. The character and content of the 1859 Convention

17. In approaching the interpretation of the 1859 Convention, we follow the rules prescribed for the interpretation of treaties in the Vienna Convention on the Law of Treaties, 1969, which in this respect has 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".

18. Approached thus, it is quite plain that the 1859 Convention is a boundary treaty (and not a treaty of cession, as Guatemala contends) by reason of the following provisions which all relate to the determination of a boundary:

(a) The Title:

19. 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 República de Guatemala y Su Magestad Británica, relativa a los limites de Honduras Británica". In that form it was submitted to the Guatemalan legislation and was so ratified. There is, indeed, no discrepancy between the English and Spanish texts of all the relevant provisions of the Convention.

(b) The Preamble:

20. This commences with the words "Whereas the boundary between Her Britannic Majesty's Settlement and Possessions in the Bay of Honduras, and the territories of the Republic of Guatemala has not yet been ascertained and marked out; Her Majesty . . . and the Republic of Guatemala, being desirous . . . to define the boundary aforesaid, have resolved to conclude a convention for that purpose . . ." The italicised words clearly represent the common intention of the Parties.

21. In this connection it may be recalled that the ICJ in the Sovereignty over Frontier Land case specifically attached importance to the preamble of the pertinent treaty. The Court said, referring to the words of the preamble:

      "This statement represents the common intention of the two States. Any interpretation under which the Boundary Convention is regarded as leaving in suspense and abandoning for a subsequent appreciation of the status quo the determination of the right of one State or the other would be incompatible with that common intention".

Likewise, the Court of Arbitration in the Beagle Channel case observed:

"Although Preambles to treaties do not usually - nor are they intended to -
contain provisions on dispositions of substance - (in short they are not operative clauses) it is nevertheless generally accepted that they may be relevant and important as guides to the manner in which the Treaty should be interpreted, and in order, as it were, to "situate" it in respect of its object and purpose."

As Article 31, paragraph 2 of the Vienna Convention on the law of Treaties says:

"The context for the purpose of the interpretation of a treaty shall comprise, in addition to its text, including its preamble and annexes . . ."

(c) The substantive provisions:

22. Article I

Article I provides that:

      "It is agreed between Her Britannic Majesty and the Republic of Guatemala that the boundary between the Republic and the British settlement and Possessions in the Bay of Honduras, as they existed previous to and on the 1st day of January, 1850, and have continued to exist up to the present time, was and is as follows . . ."

There then follow the details of the boundary, from the mouth of the River Sarstoon in the South passing along that river to the Gracias á Dios Falls, thence northwards 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 significant, if any, disagreement between Guatemala and Britain or Belize.

23. 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 I continues:

      "It is agreed and declared . . . that all the territory to the north and east 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 as 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.

24. It is to be noted that Article I 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 1 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 language in the last sentence of Article I quoted above, which acknowledges that all the territory to the north and east of the line belongs to Britain and all of the territory to the south and west of the line belongs 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.

25. The fact that the British territory is described as "the British Settlement and
Possessions 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 forming 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 territorial 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.

26. Articles II-V

Articles II-V contain provisions for the demarcation of the boundary by Commissioners appointed by each Party. Article IV requires that the Commissioners shall prepare a joint report accompanied with a map or maps. On 13 May 1861 the Commissioners signed a map of the part of the boundary lying a bit to the north of Garbutt's Falls and extending all the way south to Gracias a Dios on the River Sarstoon. The territory on each side of the boundary is clearly indicated as belonging, respectively, to Guatemala and British Honduras. Article VI deals with the boundary in water channels.

27. Article VII

Article VII of the 1859 Convention provides as follows:

"ARTICLE VII

     "With the object of practically carrying out the views set forth in the preamble of the present Convention, for improving and perpetuating the friendly relations which at present so happily exist between the two High Contracting Parties, they mutually agree conjointly to use their best efforts, by taking adequate means for establishing the easiest communication (either by means of a cart-road, or employing the rivers, or both united, according to the opinion of the surveying engineers), between the fittest place on the Atlantic Coast, near the settlement of Belize, and the capital of Guatemala; whereby the commerce of England on the one hand, and the material prosperity of the Republic on the other, cannot fail to be sensibly increased, at the same time that the limits of the two countries being now clearly defined, all further encroachments by either party on the territory of the other will be effectually checked and prevented for the future."

28. Guatemala advances this Article as the major component of its argument that the Convention is a treaty of cession, for it sees the Article as providing for compensation owed to Guatemala for parting with British Honduras.

29. As can be seen from the summary of Guatemala's position in paragraph 7 above, especially points (vi) to (ix), it would appear that the only role of the alleged breach of Article VII is to provide a basis for Guatemala's argument that the 1859 Convention has come to an end and that the territory has reverted to Guatemala.

30. We will not follow Guatemala into a discussion of the details of the fulfilment, or not, of Article VII. The allegation of Britain's non-performance of that Article relates only to the period of Britain's rule in British Honduras. Any responsibility of Britain that may have arisen during that period is Britain's alone and cannot have devolved upon Belize. Therefore, it is not for Belize to argue Britain's case in this connection nor for us to express any views on it. In any case, even if there had been a breach by Britain, this would not have justified termination of the Convention or occasioned reversion of the territory to Guatemala.

3. The independent status of the boundary once established

31. In any case, we consider that detailed discussion of the points in the Guatemalan position just mentioned is not required, because the whole issue raised by reference to Article VII is resolved by our treatment of Guatemala's argument that the territory of Belize reverted to Guatemala on the termination of the Convention. As already stated, in our opinion this contention cannot as a matter of law be sustained. There is clear authority for the proposition that a boundary once established is not dependent for its continuing force upon the maintenance in being of the treaty from which it is derived.

32. The most recent statement on this point is to be found in the Libya/Chad case already referred to, where the ICJ said:

      "72. . . The establishment of this boundary is a fact which, from the outset, has had a legal life of its own, independently of the fate of the 1955 Treaty. Once agreed, the boundary stands, for any other approach would vitiate the fundamental principle of the stability of boundaries, the importance of which has been repeatedly emphasised by the Court (Temple of Preah Vihear, ICJ Reports 1962, p.34; Aegean Sea Continental Shelf, ICJ Reports 1978, p.36).

     "73. A boundary established by treaty thus achieves a permanence which the treaty itself does not necessarily enjoy. The treaty can cease to be in force without in any way affecting the continuance of the boundary. In this instance the Parties have not exercised their option to terminate the Treaty, but whether or not the option be exercised, the boundary remains. This is not to say that two States may not by mutual agreement vary the border between them; such a result can of course be achieved by mutual consent, but when a boundary has been the subject of agreement, the continued existence of that boundary is not dependent upon the continuing life of the treaty under which the boundary is agreed."

33. The applicability to the present situation of what the Court has held is obvious and inescapable. There is nothing novel in its observations and there is no ground to question their correctness. As long ago as 1916, Crandall, in his work on Treaties, said that "A treaty for the determination of a disputed line operates not as a treaty of cession, but of recognition". More recently, O'Connell, in his major work on State succession, has affirmed that "if a boundary treaty merely defines a frontier, then it is instantly executed, and what is inherited is not the treaty but the territorial extent of the sovereignty". Lastly, the independence of a boundary from the treaty which establishes it is implicit in the terms of Article 11 of the Vienna Convention on Succession of States in respect of Treaties:

"A succession of States does not as such affect:

(a) a boundary established by treaty . . ."

34. Even if each of the propositions of Guatemala that we have summarised were correct, the consequence of the rule stated by the Court would be that they are all without any relevant effect here. The disappearance of the 1859 Convention, for whatever reason, would affect neither the boundary nor, of course, the status of the territories lying on either side of the boundary. The boundary has "a legal life of its own". It has "a permanence which the treaty itself does not necessarily enjoy. The treaty can cease to be in force without in any way affecting the continuance of the boundary."

35. Finally, whatever may have been the position regarding the validity of the 1859 Convention at any time prior to 1931, there took place in that year an Exchange of Notes between Britain and Guatemala which confirmed the effect of the 1859 Convention as regards the fixing of the southern and western points of the boundary - something quite inconsistent with any notion that the 1859 Convention had come to an end or that its determination of the boundary had ceased to be operative. To this agreement we now turn.

B. THE 1931 EXCHANGE OF NOTES

36. The second relevant treaty is the Exchange of Notes that took place between Britain and Guatemala on 25-26 April 1931 "respecting the Boundary between British Honduras and Guatemala".

37. This treaty has not assumed the same prominence in the discussion as has the 1859 Convention. Indeed, it is to be noted that the GWB produced by the Government of Guatemala in 1938, a work of some 500 pages which is the most extensive statement of Guatemala's position in the matter, does not accord this treaty any mention whatsoever. The work by Mendoza, which is a publication of the Guatemalan Ministry for Foreign Affairs, makes only a cursory reference to this agreement in a chapter detailing the demarcation of the boundary, but seemingly without appreciating its legal significance. No reference at all is made to the Exchange of Notes in the work by the Guatemalan author, Professor Carlos Garcia Bauer, entitled La Controversia sobre el Territorio de Belize (1958). Professor Garcia Bauer was, at the time of publication of the book, Minister of Foreign Affairs of Guatemala. In 1992 the Constitutional Court of Guatemala had occasion to consider the constitutionality of certain acts of the President of Guatemala regarding relations with Belize. The judgment contains a summary of the general historical background to the Belize issues. Yet even this high tribunal moves from 1880 to 1936 without any mention of the 1931 Exchange of Notes. Nor is any reference made to it in Guatemala's subsequent diplomatic notes, in its statements in the UN or in the statements of its legal case in its notes to Belize of 18 October 1999 and 14 July 2000.

38. Yet there can be no question that this Exchange of Notes did take place and has in international law the standing and force of an independent treaty. It marked the conclusion of a correspondence between Britain and Guatemala beginning at the end of 1928 when, in implementation of an agreement made orally between the British Minister in Guatemala and the Guatemalan Minister for Foreign Affairs, Guatemala was invited to send Commissioners to meet British Commissioners with a view to making arrangements for the survey of the frontier. The Guatemalan Foreign Minister replied affirmatively on 3 January 1929 and made no reservation regarding the status of the boundary or Britain's title to British Honduras. The Commissioners met first on 16 January 1929 and produced a "First Report of the Joint Commission on the Survey of the Southern Portion of the Boundary Line between Guatemala and British Honduras". They met again in May 1929 and the result of their work is recorded in a Second Report, the text of which was later reproduced in the 1931 Exchange of Notes.

39. Further exchanges followed with a view to completing the demarcation of the frontier. In a note of 18 November 1929, the Guatemalan Foreign Minister referred to a request that he had made on 9 April 1929 to the British Minister

     "to regard it as more natural with the object of arriving at a satisfactory agreement that the demarcation of the frontier should be considered as a corollary to the convention signed between Guatemala and the British Government on 30 April 1859, in which it would only be necessary to lay down the conditions under which the technical work would be carried out and to decide upon the date when the mixed commission of surveyors should assemble and conclude the work in a manner mutually satisfactory" .

The note also dealt with details relating to the placing of "the boundary monuments" and establishment of "the correct frontier". "The Guatemalan Government will be glad to assist by supplying the necessary elements so that with those supplied by the Government of Belize the demarcation of the boundary may be effected".

40. The reference in the Guatemalan Note to consideration of the demarcation of the frontier as a corollary to the 1859 Convention was understood by the British Minister in Guatemala, and was recorded by him in an internal memorandum, in the following manner:

      "In 1928 the Governor of British Honduras had proposed the conclusion with Guatemala of an agreement to govern a survey and demarcation of the boundary, an agreement which should be replaced eventually after the completion of the survey and demarcation by a treaty between Great Britain and Guatemala to place formally on record the position of the boundary. Guatemala did not agree to the conclusion of the agreement as the approval of the Legislature would have been required and this would have caused delay. Furthermore, the Minister for Foreign Affairs regarded the survey as a corollary of the treaty of 1859 and considered, therefore, an agreement to be unnecessary".

41. The British Government, recognising that insistence on a formal treaty would cause long delay, agreed to the suggestion of the Guatemalan Foreign Minister that the demarcation should be considered as a corollary to the 1859 Convention. It took the view

     "that the work recently accomplished [i.e. before 6 March 1931, the date of the instructions from the Foreign Office to the British Minister in Guatemala, see PRO, WO 181/9, C.85334/31 [No.3]] corresponds sufficiently with the procedure laid down in the Convention of 1859 for it to be possible to be treated as a belated fulfilment of that instrument; for the work has consisted in the definite settlement by agreement between Commissioners appointed respectively by the Governments of Guatemala and British Honduras of the position of the two terminal points . . . as laid down by Articles 1 and 2 of the Convention".

The Minister was instructed

     "to secure an exchange of notes under which HMG and the Government of Guatemala recognise the position of these two points . . .".

and this was what was done in the 1931 Exchange of Notes.

42. The content of the 1931 Exchange of Notes is sufficiently important to warrant an extended consideration of it. As is standard in treaties constituted by an exchange of notes, the substance of the agreement is set out in the note of the party initiating the exchange and is repeated or referred to in the response of the other party which completes the exchange and makes it effective.

43. The exchange was initiated by a note from the British Minister to Guatemala dated 25 August 1931:

      "The boundary between British Honduras and the Republic of Guatemala was laid down in the convention between the Republic of Guatemala and Her Majesty the Queen of Great Britain and Ireland, signed at Guatemala on the 30 April, 1859, article 1 (paragraph 2) of which defines the line as "beginning at the mouth of the River Sarstoon in the Bay of Honduras and proceeding up the mid-channel thereof to Gracias á Dios Falls; then turning to the right and continuing by a line drawn direct from Gracias á Dios Falls to Garbutt's Falls on the River Belize and from Garbutt's Falls due north until it strikes the Mexican frontier".

     "It was further stipulated by article 2 of the convention that "Her Britannic Majesty and the Republic of Guatemala shall, within twelve months after the exchange of the ratifications of the present Convention, appoint each a Commissioner for the purpose of designating and marking out the boundary described in the preceding article. Such commissioners shall ascertain the latitude and longitude of Gracias á Dios Falls and of Garbutt's Falls, and shall cause the line of boundary between Garbutt's Falls and the Mexican territory to be opened and marked where necessary, as a protection against future trespass.

     "In consequence joint commissioners were appointed in 1860 for this purpose, who marked in situ the position of the terminal points of the southern section of the boundary, namely, Garbutt's Falls and Gracias á Dios Falls. However, the full survey of the frontier was not completed at that time.

     "The Governments of the United Kingdom and Guatemala are now desirous of completing the demarcation. As a first step towards this purpose, commissioners were reappointed, who met on the Sarstoon River on the 16 January, 1929, and who proceeded to inspect the terminal points of the southern section of the frontier. They inspected the concrete monument on the north bank of the Sarstoon river at Gracias á Dios, 900 yards up-stream from the mouth of the Chocon branch. On the 22 January, 1929, they inspected the piles of stones on either side of the Belize River at Garbutt's Falls, erected by the joint commissioners in 1861. They decided to accept these marks as indicating the exact position of the two terminal points. The marks were then replaced by new concrete monuments, erected under the supervision of the commissioners, the monument at Garbutt's Falls being placed on the southern side of the river, and the former pile of stones being demolished. The work, both on the Belize and the Sarstoon rivers, was duly recorded in a report signed by the said commissioners at the Sarstoon River on the 29 May, 1929, of which I have received an original signed copy.

     "I have the honour to inform your Excellency that I am authorised by His Majesty's Government in the United Kingdom to confirm, on their behalf and in accordance with article 3, paragraph 3, of the convention, this report as set forth in the accompanying copy, duly certified by me, to accept the concrete monuments erected by the said commissioners as correctly marking the terminal points aforesaid, and to state that they would be glad to receive a similar assurance on the part of the Government of Guatemala.

     "The present note and your Excellency's reply will constitute the agreement between the Governments of the United Kingdom and Guatemala in the matter.

     "I avail, etc.

     H. A. GRANT WATSON"

44. The report of the commissioners referred to in the fourth paragraph of the Note
was appended to it as an enclosure:

      "We, the commissioners appointed by the Governments of Guatemala and British Honduras to establish the permanent boundary marks at Garbutt's Falls, Belize River and at Gracias á Dios Falls, Sarstoon River, met at Fallavon, Belize River, on the 7th day of May, 1929. On the 8th we proceeded to demolish the pile of stones erected at Garbutt's Falls by the commissioners of 1861, and to erect in its place a concrete monument bearing on its top two copper plates marked "Guatemala" and "British Honduras" respectively. We completed this work on the 10th. From the 11th to the 15th we were engaged upon other work for our respective Governments, and on the 16th we left for Belize, where we arrived on the night of the 20th. Having made necessary preparations, we left Belize for Sarstoon River on the 24th and arrived at Gracias á Dios Falls on the 26th. There we erected a monument similar to that at Garbutt's Falls, which we finished on the 29th. We then proceeded down the river to Sarstoon Bar, where we separated.

"Signed at Sarstoon River Bar this 29th day of May, 1929.

Fernando Cruz,
Commissioner for the Government of Guatemala

Fred W. Brunton,
Commissioner for the Government of British Honduras."

45. The Guatemalan answer was dated the next day, 26 August 1931 and reads as follows:

      "I have the honour to acknowledge receipt of your note of the 25th instant.

     "The Government of Guatemala agree to accept the concrete monuments erected at Garbutt's Falls and the Rapids of Gracias á Dios which were set up by the commissioners of both Governments, Engineers Fernando Cruz and Frederick W. Brunton, on the 8 and the 26 May 1929, on the frontier between Guatemala and British Honduras according to the report drawn up at the Sarstoon River Bar by both delegates on the 29th day of the same month. A copy of the report duly certified is enclosed herewith.

     "These monuments, thus determined, form part of the boundary line between British Honduras and the Republic of Guatemala.

     "I avail, etc.

A. SKINNER KLÉE"

The Guatemalan answer also appended the report of the commissioners.

46. The Guatemalan reply also carried the following attestation:

      "The undersigned Sub-Secretary of Foreign Affairs certifies: that he has seen the report, which states:

(There then follows the text of the report of the Commissioners.)

And in order to annex it as an enclosure to note No. 11443 of this date I draw up, seal and sign the present certificate, compared with its original, in the City of Guatemala, on the twenty-sixth day of the month of August, nineteen hundred and thirty-one.

(Seal.) J. Ed. Girón."

47. In addition, in the official British version of the Exchange of Notes, also published in 1932, the whole text of the 1859 Convention was included as an Appendix. It was also included in the League of Nations version.

48. We have taken note of the fact that the Guatemalan note of 26 August 1931 does not fully mirror the language of the British Note of 25 August 1931, but limits itself to agreement to accept the concrete monuments at Garbutt's Falls and the Rapids of Gracias á Dios set up by the Commissioners of both countries "on the frontier between Guatemala and British Honduras".

49. Acceptance by Guatemala of the operation of the 1859 Convention is implicit in its reply because, other than on the basis of that Convention, there would be no relevance in the placing of monuments at those two locations; nor would there be any basis for referring to those locations as being "on the frontier between Guatemala and British Honduras". This interpretation is supported by the statement in the Guatemalan Note of 18 November 1929 that "the demarcation of the frontier should be considered as a corollary to the 1859 Convention".

50. Nor can the Guatemalan note be read as a deliberate non-acceptance by Guatemala of the operation of the 1859 Convention as such but only as a de facto acceptance of the monuments, without prejudice to the legal basis on which they might have been established. The Guatemalan Note cannot be read in isolation from either the earlier Guatemalan Note of 18 November 1928 or from the British Note which is explicit in tying the 1929 erection of monuments to the implementation of the 1859 Convention. It would not have been a sufficient rejection by Guatemala of the elaboration contained in the British Note for Guatemala to have remained silent on that point. If Guatemala did not want to accept the British approach, it should have said so. It did not; this could only have been for the reason that it realised that if it did say so expressly, Britain would not have accepted the Guatemalan Note as completing the proposed agreement; and for Guatemala that would not have been an acceptable outcome.

51. There is a second reason why it is not possible to accept the Guatemalan Note as merely an acceptance of the de facto situation. Such an acceptance would not have supported any Guatemalan denial of the existence of the 1859 Convention and, correspondingly, of the denial of the recognition of a valid British title to British Honduras east of Garbutt's Falls and the Rapids of Gracias á Dios. Even if Guatemala had viewed the 1859 Convention as non-existent, it remains evident that Guatemala was treating the existence of the boundary as a fact. And if the boundary was so acknowledged, it can only have been on the basis that the territory on the other side of the boundary belonged to another State, in this case, British Honduras.

52. It is significant also that Britain, having received the Guatemalan reply, did not regard it as failing to respond to the British Note of 25 April 1931, but treated it as combining with the British Note to "constitute the agreement between the Governments of the United Kingdom and Guatemala in the matter" and proceeded, eight months later, on April 29, 1932, to communicate the text for registration with the League of Nations. It was published in the League of Nations Treaty Series in 1932.

53. There is no record of any adverse Guatemalan reaction to this registration and publication or to the validity of this treaty. Indeed its existence is noted as a fact and without any qualification by Mendoza. Sr Mendoza was Librarian of the Guatemalan Ministry of Foreign Affairs and the book bears on its flyleaf the following statement: "The Ministry for Foreign Affairs accepts this study which was submitted for its consideration . . .". Dr Francisco Villagrán Kramer, at that time a Member of the Council of Belize and a former member of the International Law Commission, in a study entitled "Elements for the Analysis of the Case of Belize", also referred, in paragraph 7, to the Exchange of Notes without considering its validity or effect.

54. The controlling significance of this Exchange of Notes is inescapable. The
following are principal points of importance:

55. The Exchange of Notes is and always has been a valid and effective treaty as between Britain and Guatemala. It has never been - indeed, could not be - denounced; nor, by virtue of its character, could it be subject to a limitation of time.

56. As a treaty it controls the relationship of the parties in respect of the matters covered by it - to the exclusion of any denial of the continuing validity of the 1859 Convention. The situation is comparable to that considered by the ICJ in the Libya/Chad case. In that case, Libya based its claim on "a coalescence of rights and titles: those of the indigenous inhabitants, those of the Senoussi Order . . . and those of a succession of sovereign States . . .". Chad claimed a boundary on the basis of a Treaty of 1955; alternatively, it relied upon French effectivités (France having been its predecessor in title). However, both Parties recognised the 1955 Treaty as the logical starting point for the consideration of the issues before the Court and the Court did so too. The relevance of the case will be seen from the paragraphs that follow.

57. It is helpful to quote certain passages in the Court's judgment:

"The Court considers that Article 3 of the 1955 Treaty was aimed at settling all the frontier questions, and not just some of them. The manifest intention of the parties was that the instrument referred to in Annex I would indicate, cumulatively, all the frontiers between the parties . . . .

". . . The text of Article 3 clearly conveys the intention of the parties to reach a definitive settlement of the question of their common frontiers by reference to legal instruments which would yield the course of such frontiers. Any other construction would be contrary to one of the fundamental principles of the interpretation of treaties, consistently upheld by international jurisprudence, namely that of effectiveness . . .".

58. The Court then examined the earlier treaties referred to in the 1955 Treaty and identified the frontier by reference to them. The following passage is particularly material to the present case:

      "75. It will be evident from the preceding discussion that the dispute before the Court, whether described as a territorial dispute or a boundary dispute, is conclusively determined by a Treaty to which Libya is an original party and Chad a party in succession to France. The Court's conclusion that a Treaty contains an agreed boundary renders it unnecessary to consider the history of the "Borderlands" claimed by Libya on the basis of title inherited from the indigenous people, the Senoussi Order, the Ottoman Empire and Italy. Moreover, in this case, it is Libya, an original party to the Treaty, rather than a successor State, that contests its resolution of the territorial or boundary question. Hence there is no need for the Court to explore matters which have been discussed at length before it such as the principle of uti possidetis and the applicability of the Declaration adopted by the Organisation of African Unity at Cairo in 1964.

     "76. Likewise, the effectiveness of occupation of the relevant areas in the past, and the question whether it was constant, peaceful and acknowledged, are not matters for determination in this case. So, also, the question whether the 1955 Treaty was declaratory or constitutive does not call for consideration. The concept of terra nullius and the nature of Senoussi, Ottoman or French administration are likewise not germane to the issue. For the same reason, the concepts of spheres of influence and of the hinterland doctrine do not come within the ambit of the Court's enquiry in this case. Similarly, the Court does not need to consider the rules of inter-temporal law. This Judgment also does not need to deal with the history of the dispute as argued before the United Nations and the Organisation of African Unity. The 1955 Treaty completely determined the boundary between Libya and Chad."

59. The parallels between the Libya/Chad case and the present one are self-evident.

Where the ICJ was able to apply a specific treaty to resolve the dispute, it did not find it necessary to look into the history of the area or to examine such matters as the principle of uti possidetis, the effectiveness of the occupation of certain areas, or the concepts of terra nullius and the hinterland doctrine. "The 1955 Treaty completely determined the boundary between Libya and Chad."

60. The 1931 Exchange of Notes takes as its starting point the delimitation in the 1859 Convention. It contains no reservation by Guatemala regarding the validity, operation or effect of the 1859 Convention. Thus, whatever may have occurred between 1859 and 1931 and whatever has been invoked by Guatemala as affecting the validity, operation or effect of the 1859 Convention, must now be disregarded. The 1931 Exchange of Notes, in providing for the further demarcation of the boundary laid down in the 1859 Convention, serves as a reaffirmation or confirmation of the boundary aspects of that Convention.

61. As a treaty confirming a demarcation carried out pursuant to the directions given in Article 1 of the 1859 Convention, the 1931 Exchange of Notes necessarily carries with it an acknowledgement that the territory enclosed within the lines described in 1859, and confirmed in 1931, is territory belonging to Belize, to which Guatemala has no valid claim. As was stated by Judge Huber in the Island of Palmas case:

      "Territorial sovereignty is, in general, a situation recognised and delimited in space, either by so-called natural frontiers as recognised by international law or by outward signs of delimitation that are undisputed, or else by legal engagements entered into between interested neighbours, such as frontier conventions, or by acts of recognition of States within fixed boundaries."

A similar idea was expressed by the ICJ in the Libya/Chad case:

      "The fixing of a frontier depends on the will of the sovereign States concerned. There is nothing to prevent the parties from deciding by mutual agreement to consider a certain line as a frontier, whatever the previous status of that line. If it was already a territorial boundary, it is confirmed purely and simply. If it was not previously a territorial boundary, the agreement of the parties to "recognise" it as such invests it with a legal force which it had previously lacked."

62. Having accepted the operation of the 1931 Exchange of Notes for the ensuing years, Guatemala can no longer be heard to contend that the basis of that agreement, namely the 1859 Convention, is no longer valid. This can be expressed in terms of preclusion, estoppel, good faith or as an application of the maxim allegans contraria non audienda .

63. The fact that the boundary between the southern point at Gracias á Dios and Garbutt's Falls was not at that time "opened" can make no difference. Once those two locations have been agreed on both sides, it is impossible to escape from the acknowledgement of the continuing operation of the 1859 Convention that that conveys.

64. The very fact of the reproduction of the 1859 Convention as an appendix to the Exchange of Notes, without objection from Guatemala, is itself a further acknowledgement of the continuing validity and effect of the 1859 Convention.

65. Guatemala has recently referred to the 1931 Exchange of Notes, but only in response to the written submissions of Belize made to the Facilitators in April 2001 along lines similar to those expressed earlier in this Opinion. Guatemala has asserted that the 1931 Exchange of Notes does not constitute an independent treaty and is an ancillary treaty derived from the 1859 Convention. The argument maintains that the Exchange of Notes refers to the fact that the markers erected in 1860 made of limestone would be replaced by concrete markers. The Notes

      "therefore, are testimony of what was done, that is, they are linked and subordinate to the 1859 Treaty, without the existence of which they could not have been accepted, signed and executed. All these acts were carried out in good faith by Guatemala, expressly conditioned to the fulfilment by Britain of the obligation contained in Clause seven of the 1859 Treaty".

Guatemala also contends that the Exchange of Notes "is part of the process of compliance with the 1859 Treaty". The conclusion, implied rather than expressed, is that the 1931 Exchange of Notes came to an end in 1946 when, as Guatemala claims, it declared the 1859 Convention at an end.

66. We recognise that the 1931 Exchange of Notes was linked to the 1859 Convention. That is no more than a statement of the obvious. But we cannot see how any conclusion adverse to the rights of Belize can be drawn from this statement. What matters is that the 1931 Exchange of Notes was an explicit reaffirmation by Guatemala of the existence and continuing validity in 1931 of the 1859 Convention. It had not come to an end by then. As is clear from the correspondence prior to the 1931 Exchange of Notes, the suggestion that the demarcation was a "corollary" of the 1859 Convention did not imply that the validity of the 1931 Convention was in any way linked to the performance of Article VII of the 1859 Convention. Nor is there anything else in the correspondence that supports the Guatemalan assertion that Guatemala's acts were "expressly conditioned to the fulfilment by Britain of the obligation contained in Clause seven of the 1859 Treaty".

67. So the only question that remains is whether something subsequent to 1931 could have brought both it and the 1859 Convention to an end. Guatemala has not identified anything; nor are we able to identify any act or omission between 1931 and the purported Guatemalan denunciation of 1946 as providing good cause for that denunciation. And, we repeat, once established, the boundary had a life of its own, not dependent upon the survival of the 1859 and the 1931 treaties.

68. The above analysis disposes of the problems arising out of the effect of
Guatemala's contentions regarding the non-fulfilment by Britain of its obligations under Article VII of the 1859 Convention on the title of Belize to the territory. Guatemala, in the light of its agreement to the 1931 Exchange of Notes, cannot be regarded as having maintained its assertion that the operation of the 1859 Convention is dependent upon the fulfilment of Article VII. Nor can Guatemala's contention that the 1859 Convention had come to an end be maintained. Nor can Guatemala's subsequent attempt to return to the question of Article VII affect the matter. It cannot undo the legally binding acceptance by Guatemala in the 1931 Exchange of Notes of the title-determining effect of the 1859 Treaty.

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