V. CUSTOMARY INTERNATIONAL LAW

69. We now turn to the second element of title - the position in customary
international law. In this connection, it is necessary to have regard to the fact of the occupation, presence and administration since before 1850 of Britain, and since 1981 of Belize, in the territory of Belize.

70. Let it be assumed, though only for the purposes of the present part of the
discussion, that each of the following elements in the Guatemalan argument is correct, namely, that under the Treaties of 1783 and 1786 Spain gave Britain no more than limited rights of usufruct in the area north of the Sibun River; that Guatemala succeeded to the rights of Spain in the area south of the Sibun River; that Article VII was an essential part of the 1859 Convention and could not be severed from it; that Britain did not fulfil its obligations under Article VII; and that the 1859 Convention was not an executed treaty and Guatemala was entitled to regard Britain's breach as so material as to justify Guatemala in treating the Convention as at an end.

71. In our view none of these assumptions, taken individually or collectively, serves to negate the current title of Belize which flows from the presence on the ground of Britain and of Belize continuously for some 175 years. This title can be described as being founded on the concept of historical consolidation, including that of acquisitive prescription. It does not depend upon conquest. It stems rather from the facts of long-standing and continuous British and Belizean governmental presence and activity. Moreover, it is supported by the right of the people of Belize to self-determination as recognised internationally in the debates in, and actions of, the United Nations in the period from 1975 until the achievement of independence by Belize in 1981. Additionally, it is highly material that there is no evidence of any conflicting governmental activity by Guatemala on the ground anywhere in the territory of Belize.

72. To restate the point quite simply, the facts override all the legal arguments
advanced by Guatemala. It does not matter that the rights of Spain may have been breached in the period prior to the date of the independence of the Central American States in 1821; nor that Guatemala may have succeeded to Spain's authority and title in the area between present day Guatemala and the Atlantic; nor that the 1859 Convention may have reflected a bargain that may not have been fulfilled by Britain. None of these matters can affect the factual realities on which the title of Belize to its territory is based.

A. THE LAW
73. However, before proceeding to examine the facts it will be convenient to set out the relevant legal considerations.

74. The idea that continuity of possession and administration over an extended period can override any notional title of a State that merely claims title to territory unaccompanied by possession and administration is one that is reflected in two closely associated concepts: historical consolidation and acquisitive prescription. While the latter assumes the existence of a prior title of the opposing claimant, the former avoids that issue by focussing on the facts of possession and administration to determine which State has done more to demonstrate its title. In addition, account must be taken of the related principles of acquiescence, estoppel and preclusion as well as the operation of the principle of self-determination.

1. Historical consolidation

75. The concept of historical consolidation has been explained by Sir Robert Jennings in his authoritative text on The Acquisition of Territory (1963), at pp.23-27. It makes the concept so clear that it is worth quoting it fully:

"HISTORICAL CONSOLIDATION OF TITLE

     "This ambiguity in actual cases based essentially on effective possession suggests the question whether the various factors contributing to building a title cannot usefully and instructively be subsumed under the one heading of a process of 'consolidation', and regarded as being for essential purposes all part of one legal process, or 'mode' of acquisition of territorial sovereignty. This possibility has been advocated by Professor Charles de Visscher, elaborating a formula used in the Norwegian Fisheries case, in which he was a Judge. The passage is of such importance that it may be useful to cite it at some length:

4. Consolidation by Historic Titles The fundamental interest of the stability of territorial situations from the point of view of order and peace explains the place that consolidation by historic title holds in international law and the suppleness with which the principle is applied. It is for these situations, especially, that arbitral decisions have sanctioned the principle quieta non movere, as much out of consideration for the importance of these situations in themselves in the relations of States as for the political gravity of disputes concerning them. This consolidation, which may have practical importance for territories not yet finally organised under a State regime as well as for certain stretches of sea-like bays, is not subject to the conditions specifically required in other modes of acquiring territory. Proven long use, which is its foundation, merely represents a complex of interests and relations which in themselves have the effect of attaching a territory or an expanse of sea to a given State. It is these interests and relations, varying from one case to another, and not the passage of a fixed term, unknown in any event to international law, that are taken into direct account by the judge to decide in concreto on the existence or non-existence of a consolidation by historic titles.

     In this respect such consolidation differs from acquisitive prescription properly so-called, as also in the fact that it can apply to territories that could not be proved to have belonged formerly to another State. It differs from occupation in that it can be admitted in relation to certain parts of the sea as well as on land. Finally, it is distinguished from international recognition - and this is the point of most practical importance - by the fact that it can be held to be accomplished not only by acquiescence properly so called, acquiescence in which the time factor can have no part, but more easily by a sufficiently prolonged absence of opposition either, in the case of land, on the part of States interested in disputing possession or, in maritime waters, on the part of the generality of States.

     "Thus, as Professor Johnson says, Professor de Visscher has 'embraced under a single heading the notion of straightforward possession on the one hand and of adverse possession on the other hand. . . . Under the single heading of "consolidation" it is now possible . . . to include both "straightforward possession" and "adverse possession".

     "But the idea of historical consolidation is something more than a terminological reform. It opens the door to a mode of acquiring title that is, or at least may become, subtly different from what is found in the old learning about occupation and prescription. Prescription, as we have seen, is based upon a peaceable, effective possession - a possession as of a sovereign extending over a considerable period. But such a possession may not be self-evident in a disputed case. It must, therefore, be proved, and for the purpose of this demonstration, a great variety of evidences may be relevant - particularly the attitude of third States, because repute is always an important factor in any question concerning rights over land. But the notion of consolidation introduces something over and above the notion of evidences of sovereign possession; for these factors of repute, acknowledgement and so on then become, if I have understood this aright, not merely evidences of a situation apt for prescription but become themselves decisive ingredients in the process of creating title.

     ". . .Now it must be acknowledged at once that this passage from Professor de Visscher's analysis is not just a suggestion de lege ferenda; it is a penetrating and illuminating observation of the way Courts actually tackle questions of title to territorial sovereignty. Thus it makes clear how recognition in varying forms, and acquiescence, and estoppels perhaps are given an important place in this scheme of things; and this is no doubt right.

     ". . . it must be emphasised that however important all these various consolidating factors may be, it is still the fact of possession that is the foundation and the sine qua non of this process of consolidation.

     ". . . It should be made quite clear, therefore, that the process of consolidation cannot begin unless and until actual possession is already an accomplished fact and that, although no time is laid down, it remains true that it cannot be completed until after a considerable period of possession as of a sovereign.

     ". . . the whole tendency of consolidation is to make the origin of the possession of ever-diminishing importance. No doubt this is in a sense realistic.

     ". . . 'What is of decisive importance . . . is not indirect presumptions deduced from events in the Middle Ages, but the evidence which relates directly to the possession of the Ecrehos and Minquiers groups.' "

76. A recent acknowledgement of the concept of consolidation is to be found in the first Award of the Arbitral Tribunal in the Eritrea/Yemen case. There, the Tribunal said:

      "But an historic title has also another and different meaning in international law as 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. These titles too are historic in the sense that continuity and the lapse of a period of time is of the essence."

77. The Tribunal also said:

     Evidence of intention to claim the islands à titre de souverain is an essential element of the process of consolidation of title".

This sentence relates back to one in an earlier paragraph where the Tribunal said:

     "The modern international law of the acquisition (or attribution) of territory generally requires that there be an intentional display of power and authority over the territory, by the exercise of jurisdiction and State functions, on a continuous and peaceful basis. The latter two criteria are tempered to suit the nature of the territory and the size of its population, if any."

2. Acquisitive prescription

78. Although there has been some doctrinal controversy relating to the idea of
acquisitive prescription, there can be no real doubt today that sufficiently long adverse possession of a disputed territory by one State can override the claim or title of another State which may originally have possessed title but has not in fact exercised it. The current position is authoritatively summarised in Oppenheim's International Law (9th edition, by Sir Robert Jennings and Sir Arthur Watts) at p.706:

     ". . . Again, others, whilst not requiring possession from time immemorial, held that undisturbed continuous possession could under certain conditions produce a title for the possessor, if the possession had lasted for some time.

     "This latter opinion seems to be in accordance with practice. There is no doubt that, in international practice, a state has been considered to be the lawful owner even of those parts of its territory of which originally it took possession wrongfully, provided that the possessor has been in undisturbed possession for so long as to create the general conviction that the present condition of things is in conformity with international order. Prescription in international law was therefore defined in the previous edition of this work, as the acquisition of sovereignty over a territory through continuous and undisturbed exercise of sovereignty over it during such a period as is necessary to create under the influence of historical development the general conviction that the present condition of things is in conformity with international order."

79. The application of the concept of acquisitive prescription was examined by the ICJ in the Kasikili case. The Court first observed that "the Parties agree between themselves that acquisitive prescription is recognised in international law" and stated that "for present purposes the Court need not concern itself with the status of acquisitive prescription in international law" . Nonetheless, the Court did examine at length the conditions under which title can be so acquired. It is hardly likely that the Court would have done this if it had taken the view that there is no doctrine of acquisitive prescription. The Court's consideration of the conditions required to complete a prescriptive title will be mentioned in paragraph 83 below.

3. The nature of the possession required

80. We should also recall the nature of the possession required to create and sustain title. It is important to bear in mind that the question of the title of Belize to its territory is not simply a matter of considering whether Belize has or has not title. It is also a matter of considering whether Guatemala has or has not title. In other words, one must look at both sides of the coin. It is the relative strengths of the cases of the two sides that must be considered. Even if there were imperfections in the title acquired by Britain, imperfections that are not apparent, it is still necessary, if that title is to be displaced, to show that Guatemala has a stronger title. This means that if Guatemala did acquire title to all or part of the territory of British Honduras by, as it claims, the operation of the doctrine of uti possidetis in 1821, it would still need to show that it had maintained that title throughout the relevant intervening period. As was stated by Judge Huber in the Island of Palmas case:

     "If a dispute arises as to the sovereignty over a certain portion of territory, it is customary to examine which of the States claiming sovereignty possesses a title - cession, conquest, occupation etc. - superior to that which the other States might possibly bring forward against it. However, if the contestation is based on the fact that the other Party has actually displayed sovereignty, it cannot be sufficient to establish the title by which territorial sovereignty was acquired at a certain moment; it must be shown that the territorial sovereignty has continued to exist and did exist at the moment which for the decision of the dispute must be considered as critical. This demonstration consists in the actual display of State activities, such as belongs only to the territorial sovereign."

81. As will be seen, at no time since 1821 (with two minor and transient exceptions) has Guatemala ever attempted to assert, by governmental conduct specifically related to the area, whatever nominal title it may then have acquired. Once more, one may turn to Judge Huber:

      "It seems therefore natural that an element which is essential for the constitution of sovereignty should not be lacking in its continuation. So true is this, that practice, as well as doctrine, recognises - though under different legal formulae and with certain differences as to the conditions required - that the continuous and peaceful display of territorial sovereignty (peaceful in relation to other States) is as good as a title. The growing insistence with which international law, ever since the middle of the 18th century, has demanded that the occupation shall be effective would be inconceivable, if effectiveness were required only for the act of acquisition and not equally for the maintenance of the right. If the effectiveness has above all been insisted on in regard to occupation, this is because the question rarely arises in connection with territories in which there is already an established order of things. Just as before the rise of international law, boundaries of lands were necessarily determined by the fact that the power of a State was exercised within them, so too, under the reign of international law, the fact of peaceful and continuous display is still one of the most important considerations in establishing boundaries between States."

82. Again, we may refer to Judge Huber:

     "Manifestations of territorial sovereignty assume, it is true, different forms, according to conditions of time and place. Although continuous in principle, sovereignty cannot be exercised in fact at every moment on every point of a territory. The intermittence and discontinuity compatible with the maintenance of the right necessarily differ according as inhabited or uninhabited regions are involved, or regions enclosed within territories in which sovereignty is incontestably displayed or again regions accessible from, for instance, the high seas. It is true that neighbouring States may by convention fix limits to their own sovereignty, even in regions such as the interior of scarcely explored continents where such sovereignty is scarcely manifested, and in this way each may prevent the other from any penetration of its territory. The delimitation of Hinterland may also be mentioned in this connection.

     "If, however, no conventional line of sufficient topographical precision exists or if there are gaps in the frontiers otherwise established, or if a conventional line leaves room for doubt, or if, as e.g. in the case of an island situated in the high seas, the question arises whether a title is valid erga omnes, the actual continuous and peaceful display of State function is in case of dispute the sound and natural criterium of territorial sovereignty."

83. In the Kasikili case, the conditions for prescription examined by the Parties were:

(1) whether possession was exercised à titre de souverain;

(2) whether the possession was peaceful and uninterrupted;

(3) whether the possession was public; and

(4) whether the possession has endured for a sufficient length of time.

The Court examined only the first condition and, having found that it was not satisfied, did not examine the remainder. But as will be seen from the facts that are set out below, all four conditions are satisfied in the present case and fully support the title of Belize.

4. Acquiescence, estoppel and preclusion

84. We mention these principles because they are relevant as elements affecting not only the legal relations of States generally but also title to territory in particular. In the Temple case the ICJ attributed a determining role to the conduct of Thailand, first in its failure to react to a map which it subsequently sought to repudiate - a failure which the Court saw as amounting to acquiescence. Additionally, the Court considered that Thailand was precluded from asserting that the map had not been accepted by it because for fifty years it had not raised the point and during that time had enjoyed the benefit of a stable frontier.

85. Again, in the Case concerning the Arbitral Award of the King of Spain, Nicaragua argued that the King's award was a nullity. The Court held that Nicaragua had recognised the award by express declaration and by conduct, as well as by not challenging it for a number of years. Though the Court did not use the terms estoppel, preclusion or acquiescence to explain its conclusion, the significance attached to Nicaragua's conduct is evident.

86. Likewise, in the Land, Island and Maritime Frontier Dispute between El Salvador and Honduras, though the Chamber of the Court attached major importance to the principle of uti possidetis juris, it nonetheless held that the application of the principle could be qualified by the conduct of the parties in the form of acquiescence or recognition. The Chamber said:

     "If the uti possidetis juris position can be qualified by adjudication and by
treaty, the question then arises whether it can be qualified in other ways, for example, by acquiescence or recognition. There seems to be no reason in principle why these factors should not operate, where there is sufficient evidence to show that the parties have in effect clearly accepted a variation, or at least an interpretation, of the uti possidetis juris position."

87. Lastly, reference should be made to the acceptance by the arbitral tribunal in the Taba arbitration of the conduct of the parties as amounting to the recognition of the location of a subsequently disputed boundary-pillar, notwithstanding that the location of the pillar did not satisfy an express treaty requirement that pillars should be intervisible .

5. The legal effect of unilateral declarations

88. As will be seen in paragraphs 120 below, the factual position during the period from 1798 to 1859 was the subject of a letter to the Guatemalan House of Representatives from Sr Aycinena, the Guatemalan Minister of Foreign Affairs, dated 4 January 1860. This statement is a significant confirmation of the facts described below relating to British possession of Belize. Its legal standing as a unilateral declaration made on behalf of the Government of Guatemala is also significant. The nature of such declarations was considered by the ICJ in the Nuclear Tests case. The material paragraphs are as follows:

      "It is well recognised that declarations made by way of unilateral acts,
concerning legal or factual situations, may have the effect of creating legal obligations. Declarations of this kind may be, and often are, very specific. When it is the intention of the State making the declaration that it should become bound according to its terms, that intention confers on the declaration the character of a legal undertaking, the State being thenceforth legally required to follow a course of conduct consistent with the declaration. An undertaking of this kind, if given publicly, and with an intent to be bound, even though not made within the context of international negotiations, is binding. In these circumstances, nothing in the nature of a quid pro quo nor any subsequent acceptance of the declaration, nor even any reply or reaction from other States, is required for the declaration to take effect, since such a requirement would be inconsistent with the strictly unilateral nature of the juridical act by which the pronouncement by the State was made.

     Of course, not all unilateral acts imply obligation; but a State may choose to
take up a certain position in relation to a particular matter with the intention of being bound - the intention is to be ascertained by interpretation of the act. When States make statements by which their freedom of action is to be limited, a restrictive interpretation is called for.

     One of the basic principles governing the creation and performance of legal
obligations, whatever their source, is the principle of good faith. Trust and confidence are inherent in international co-operation, in particular in an age when this co-operation in many fields is becoming increasingly essential. Just as the very rule of pacta sunt servanda in the law of treaties is based on good faith, so also is the binding character of an international obligation assumed by unilateral declaration. Thus interested States may take cognizance of unilateral declarations and place confidence in them, and are entitled to require that the obligation thus created be respected."

The declarations in that case took the form of a number of statements made by the President of France and the French Ministers of Foreign Affairs and Defence.

89. As to the intention of the Guatemalan Minister of Foreign Affairs it must, as the Court said, "be ascertained by the interpretation of the act". As is evident, Sr Aycinena wished to be understood by the members of the House of Representatives as truthfully conveying the Government's genuine understanding of the circumstances. It appears to us that Britain, as an "interested State" was entitled to "take cognizance" of the statement and "place confidence" in it.

6. Self-determination

90.A third, highly pertinent, aspect of customary international law is the development of the principle of self-determination. Rather than review the enormous amount of literature on this subject, we find it convenient to express our agreement with the views expressed in the latest and highly authoritative study of the subject, the work by Professor A. Cassese entitled Self-Determination of Peoples - A Legal Reappraisal. Professor Cassese observes:

     "Close scrutiny of the views of Governments, State practice and pronouncements of international bodies such as the UN General Assembly and the International Court of Justice warrants the conclusion that the UN Charter provisions on self-determination have been the starting point of a gradual law-making process generating two sets of legal standards; the treaty provisions of the UN Covenants of 1966 and a cluster of general norms. At the level of general international law one may discern the formation of a general principle and a number of customary rules".

He also says that

     "the conclusion is justified that self-determination constitutes a peremptory norm of international law".

91.In the chapter of his work on "The impact of self-determination on traditional international law", Professor Cassese makes some highly pertinent statements regarding the relationship of the principle and the modes of the acquisition, transfer and loss of legal title over territory. First, he notes the gradual emergence of a set of legal obligations for those countries still enjoying sovereignty over colonial territories. Thus, he says:

      "These obligations make it incumbent on those States to enable the people of colonial territories freely to choose whether to opt for independent statehood, or association or integration with an existing State. Thus, those obligations do not produce the immediate legal effect of rendering the legal title over colonial territories null and void. Rather, besides setting out a series of limitations and qualifications intended greatly to restrict sovereignty, they envisage a temporary legal regime that must of necessity lead to the eventual extinction of legal title. In a way, these obligations act as a sort of time-bomb: the holder of the sovereign title has to fulfil them knowing that by this action it will eventually have to relinquish its title."

92. Moreover, he states:

     ". . . one of the consequences of the general principle of self-determination relates precisely to changes of territory, that is, to cases where sovereignty over a particular territory is transferred by one State to another by mutual agreement (obviously, acquisition of territory by force is no longer admissible in current international law). In the case of such transfers, the States involved are duty-bound to ascertain the wishes of the population concerned, by means of a referendum or plebiscite, or by any other appropriate means that ensure a free and genuine expression of will. It follows, of course, that any inter-state agreement that is contrary to the will of the population concerned would fall foul of the principle of self-determination."

93. In these respects, Professor Cassese directly reflects the views of the ICJ. In the East Timor case the Court said:

     "In the Court's view, Portugal's assertion that the right of peoples to self-
determination, as it evolved from the Charter and from United Nations practice, has an erga omnes character, is irreproachable. The principle of self-determination of peoples has been recognised by the United Nations Charter and in the jurisprudence of the Court".

94. A recent opinion by Judge ad hoc Thomas Franck in the International Court of Justice makes it abundantly clear that "historic title, no matter how persuasively claimed on the basis of old legal instruments and exercises of authority, cannot -except in the most extraordinary circumstances- prevail in law over the rights of non-self-governing people to claim independence and establish their sovereignty through the exercise of bona fide self-determination". The Judgment of the ICJ of 23 October, 2001 [Application by The Philippines for Permission to Intervene in the Case Concerning Sovereignty over Pulau Ligitan and Pulau Sipidan (Indonesia/Malaysia)] considered the request of the Philippines to intervene "to preserve and safeguard the historical and legal rights of the Government of the Republic of the Philippines arising from its claim to dominion and sovereignty over the territory of North Borneo". The Separate Opinion of Judge Franck concurred with the decision of the Court but went into greater detail on the question of self-determination. "In essence", he said, "the Philippine claim is to North Borneo and not to bits of it. This is not a boundary dispute to which evidence of historic title and evidence of texts and efficacies might well be relevant. This is, in effect, a claim by the Philippines to one of the federated states of Malaysia". Judge Franck noted that the "the decisions of this Court confirm the prime importance of [the] principle of self-determination of peoples", and concluded that:

"Accordingly, in light of the clear exercise by the people of North Borneo of their right to self-determination, it cannot matter whether this Court, in any interpretation it might give to any historic instrument or efficacy, sustains or not the Philippine claim to historic title. Modern international law does not recognise the survival of a right of sovereignty based solely on historic title; not, in any event, after an exercise of self-determination conducted in accordance with the requisites of international law, the bona fides of which has received international recognition by the political organs of the United Nations. Against this, historic claims and feudal pre-colonial titles are mere relics of another international legal era, one that ended with the setting of the sun on the age of colonial imperium."

95. In our understanding, the position as here expressed applies as much to Guatemala as to Britain. Both States are duty-bound to respect the right of the people of Belize to self-determination. The insistent reiteration by Guatemala of its claim to the "restoration" of Belize notwithstanding the clearly expressed wishes of the people of Belize to the contrary runs completely counter to the obligation of Guatemala to respect their right to self-determination. The facts of the situation will be set out more fully below. Appendix 1 sets out in full the application of by the United Nations General Assembly of the principle of self-determination to sustain the independence and territorial integrity of Belize.

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