4. Guatemala's assertions and protests

153. There have, over the years, been a number of protests by Guatemala against British sovereignty over British Honduras, especially in the United Nations in the period from 1945 until the independence of Belize in 1981, as well as since then. There have also been two assertions of title advanced in the Guatemalan Constitution. In the 1945 Constitution, Guatemala inserted a Transitory Clause 1 which read as follows:

      "Guatemala declares that Belize is part of its territory and considers of national importance actions directed towards securing its effective re-incorporation into the Republic." (Translation)

A similar provision was inserted in the 1956 Constitution. Does this repetition of protests and assertions serve to maintain in being such rights (if any) as Guatemala may have had to the territory of British Honduras or any part of it - especially having regard to the fact that there is no evidence of any actual exercise of authority by Guatemala or of Guatemalan presence on the ground at any time?

154. We recall in this connection two important statements of principle.

155. The first consists of certain observations of Justice Hughes, Chief Justice of the United States and former Judge of the Permanent Court of International Justice, the President of the Arbitral Tribunal in the Guatemala/Honduras Case, 1933, in relation to the disputed parts of the boundary between the two countries:

      "While no State can acquire jurisdiction over territory in another State by mere declarations on its own behalf, it is equally true that these assertions of authority by Guatemala (and other acts on her part disclosed by the evidence), shortly after independence, with respect to the territory to the north and west of the Motagua river, embracing the Amatique coast region, were public, formal acts and show clearly the understanding of Guatemala that this was her territory. These assertions invited opposition on the part of Honduras if they were believed to be unwarranted. It is therefore pertinent to inquire as to what action, if any, was taken by Honduras at or near the time of independence in relation to the territory now under consideration and in answer to the above-mentioned proceedings of Guatemala."

156. The second statement was made by the late Judge Sir Gerald Fitzmaurice, Legal Adviser of the British Foreign Office and later Judge of the ICJ:

     "It is true that an opposition, even if persistently maintained, may end by
losing all legal force because of its insufficient character. In short, protests, in order to preserve (or rather to go on preserving) the rights of the protesting State, and prevent the acquisition of a prescriptive right by the acquiring State, must be effective. Put in another way, this means that diplomatic protests will not indefinitely preserve rights or prevent the process of prescription unless they constitute the sole lawful means in the circumstances by which the State concerned can act, and can endeavour to keep its position intact. If, however, other means are available, e.g. a proposal for reference to international adjudication, or taking the matter before some competent international organisation, a mere continuance of diplomatic (i.e. paper) protests will not serve indefinitely to keep the position open. It comes to this, that reliance on routine protests, when means are available which, if used, would or might bring the matter to an issue, can in the end be construed as a constructive abandonment by the State of its rights - a tacit acquiescence in the situation, debarring it, as has been said (United Kingdom Written Reply in the Fisheries case), 'from further questioning what has become part of the established legal order'. However, all this still means no more than that acquiescence will, in fact, be presumed in certain circumstances, despite a formal attitude of protest - not that acquiescence can be dispensed with."

157. Applying, first, the words of Chief Justice Hughes, Guatemala cannot have acquired jurisdiction over the territory of British Honduras by mere declarations on its own behalf. Insofar as these protests and assertions indicate a belief that British Honduras was part of the territory of Guatemala, we note that Britain reacted with opposition on each occasion.

158. Applying next the words of Sir Gerald Fitzmaurice, it appears to us that any effect that might have been attributed to the Guatemalan protests was negated by Guatemala's failure to institute legal proceedings when it was open to it to do so. This is a matter that we consider in the next section.

159. Accordingly, we consider that the mere repetition of protests and assertions by Guatemala, unaccompanied by any further action, has been ineffective to preserve for Guatemala such rights, if any, as Guatemala may have had.

5. Proposals for international adjudication of the dispute

160. We turn now to consider what may be the effect, if any, of the various proposals that have been made to submit the differences between Guatemala and Britain or Belize to arbitration or judicial settlement.

161. On 30 June 1880 Guatemala suggested that the difference between the two countries might be submitted to "the impartial decision of the head of some friendly State." But the "difference" to which this suggestion referred related solely to "the clarification and compliance" with Article VII of the 1859 Convention. At that time Guatemala had not raised any question relating to Britain's title to the territory of British Honduras and title was, therefore, not in issue. Britain replied on 18 April 1880 that it could not "admit that there is any ground for submitting the question to arbitration." When, on 4 April 1884, Guatemala for the first time suggested that the alleged breach of Article VII of the 1859 Convention might have led to that treaty not being in force and protested at the de facto occupation by Britain of an integral part of Guatemalan territory, the suggestion for arbitration was not renewed.

162. In our view, this early proposal by Guatemala cannot be regarded as effective to maintain any Guatemalan title because the offer was not of adjudication of the question of title, but only of adjudication of the alleged breach by Britain of Article VII of the 1859 Convention.

163. This, by itself, is a sufficient reason to exclude the effectiveness of the first Guatemalan proposal for adjudication. But even if it were not, all Guatemala's conduct prior to 1931 must be considered in the light of the conclusion of the 1931 Exchange of Notes. As indicated earlier in this Opinion, in our view the effect of that Exchange of Notes was to confirm the efficacy of the 1859 Convention, the alleged termination of which had been, in Guatemala's contention, the basis of Guatemala's claim to the territory of British Honduras. Thus, the 1931 Exchange of Notes put an end to the effect, if any, of all assertions relating to title made by Guatemala before that time. After 1931 the only protests that Guatemala might effectively have made would have been ones relating to post-1931 breaches of the 1859 Convention and of the 1931 Exchange of Notes. It is in relation to such breaches (if any) that we must examine proposals for adjudication that have been made since that date.

164. On 31 January 1940 Britain took the unusual step of publishing in the British Honduras Gazette Extraordinary an announcement that it was informing Guatemala of Britain's willingness to submit to the Permanent Court of International Justice the dispute arising out of Guatemala's allegation of the non-fulfilment by Britain of Article VII of the 1859 Convention to be dealt with under Article 38 of the Court's Statute, "which enables the Court to take into account questions of equity when giving its final decision." As an alternative, Britain indicated that it was prepared to consider recourse to an arbitral tribunal under the summary procedure of Chapter 4 of the Hague Convention of 1907 for the settlement of disputes. As a further alternative, Britain stated its willingness to accept a reference to an ad hoc tribunal of three members of which the third member, or umpire, would be nominated by President Roosevelt.

165. This announcement reflected the terms of a longer note sent to Guatemala on 29 January 1940 in which, additionally, the issues were elaborated as follows:

(i) is there still any practical method by which the original obligations laid down
in Article VII can be effectually carried out?;

(ii) if the answer to (i) is in the negative, whether and, if so, to what extent,
Britain is responsible for failure to carry out the mutual obligations under Article VII?; and

(iii) having regard to any responsibility of Britain, by what method, applying all
relevant legal and equitable principles, shall Britain now discharge its obligations under Article VII?

166. Britain's offer was made conditional upon Guatemala consenting to a final delimitation and marking of the boundary, to take place in a mutually convenient manner immediately after the tribunal would have pronounced its final award.

167. On 3 February 1940 Guatemala replied, agreeing to accept the third alternative. However, as to the terms of reference of such an arbitral tribunal, Guatemala contended that Britain's previous attitude had left Article VII "without effect and therefore also the whole of the stipulations of the treaty". Guatemala was of the view that by reason of the non-fulfilment of Britain's obligations, Guatemala had "the right to recover the territory ceded to" Britain and also that Britain's non-compliance had caused Guatemala material and moral damages. Accordingly, Guatemala was

     "of opinion that the tribunal should take into account all these points and not the mere interpretation of Article VII . . . One of the principal points to be settled by the Tribunal is whether Britain is legitimately occupying the territory of British Honduras, or whether on the contrary Guatemala has the right to put forward pertinent claims."

Guatemala concluded that if Britain agreed to look in this light at the question to be decided, it would be easy to agree on the concrete points to place the tribunal in a position to resolve the dispute.

168. On 4 March 1940 Britain replied to Guatemala saying that while Britain adhered to its offer to submit to arbitration the question as framed on 29 January, it would dispute the validity of any claim by Guatemala to the cession of territory. Nonetheless, the British Note said if Guatemala is

     "of the opinion that a claim for a cession of territory can and should be brought within the scope of the dispute, it will be open to Guatemala to bring it forward at such time and in such a manner as they may think best, and to seek a ruling of the Tribunal upon it."

169. Although this note left it open to Guatemala to raise the questions of the status of the 1859 Convention and the title of Britain to British Honduras, it was not read in that way by Guatemala. In a note of 7 March 1940 Guatemala stated that

     "the time has passed for examination of the method of giving effect to the fulfilment of the obligations under the extinct convention of 1859, which lost all force and legal validity because Britain for nearly a century has declined to carry out the solemn compensatory obligation in favour of Guatemala. Furthermore, there is no question of cession of territory . . . The tribunal should decide whether or not, as this instrument (the 1859 Convention) is null and void, the status quo is that prior to 1859, and also decide which compensations and indemnities are just and equitable."

170. In the correspondence that followed, Guatemala's position underwent some change. Instead of saying that the 1859 Convention had been brought to an end, it said that Britain's breach of Article VII "had given Guatemala the option of repudiating Article I of the agreement." This was repeated in a further Guatemalan note of 24 April 1940 expounding at length the whole of Guatemala's case: the repudiation by Britain of Article VII gave Guatemala the option of repudiating in its turn the remaining articles of the 1859 Convention. The Note stated that

     "this country (Guatemala) sustains the nullity of the 1859 agreement and claims the restitution of Belize . . . For this reason Guatemala does not agree to the proposal of Britain to reduce the matter to a mere legal interpretation of Article VII of the 1859 Convention."

171. Nothing more was done during the remainder of the Second World War. After the end of the war, Britain, on 13 February 1946, made a declaration under the Optional Clause of the Statute of the ICJ, accepting for a period of five years the jurisdiction of the Court

      ". . . in all legal disputes concerning the interpretation, application or validity
of any treaty relating to the boundaries of British Honduras, and over any questions arising out of any conclusion which the Court may reach with regard to such treaty."

This declaration was renewed in 1951 for a further period of five years.

172. This opened the way to Guatemala, if it had wished to test the effectiveness of its protests, to initiate proceedings against Britain at any time between 1946 and 1956. Guatemala did not pursue this option. The position of Guatemala thus fell squarely within the terms of Fitzmaurice's statement:

      " . . . if, however, other means [not protest] are available, e.g. a proposal for reference to international adjudication . . . a mere continuance of diplomatic (i.e. paper) protests will not serve indefinitely to keep the position open."

As is evident from the context of this statement , the proposal for international adjudication must be in relation to the rights of the protesting State. This necessarily implies a proposal for adjudication according to law. A proposal that a decision be reached ex aequo et bono would not be such a proposal.

173. At the same time, we recall the qualification expressed by Fitzmaurice in the passage quoted above.

     "Of course, once arbitration or judicial settlement has been proposed, and rejected, or not taken up by the acquiring State, [here, Britain] continued protest, even if only diplomatic, will retain all its preventive force."

In our understanding, this does not apply when, as here, the offer of adjudication is made not by the protesting State [here, Guatemala] but by the acquiring State [here, Britain] and is not taken up by the protesting State [Guatemala]. In that case, the continuing protests of the protesting State [Guatemala] cannot be legally effective.

174. On 27 January 1947 Guatemala made a declaration under the Optional Clause of the Statute of the ICJ in which it accepted for a period of five years the jurisdiction of the Court in all legal disputes. But it expressly excluded

     ". . . the dispute between England and Guatemala concerning the restoration of the territory of Belize, which the Government of Guatemala would, as it has proposed, agree to submit to the judgment of the Court if the case were decided ex aequo et bono, in accordance with Article 38(2) of the Statute."

The offer thus made by Guatemala, limited to a decision ex aequo et bono, was not taken up by Britain.

175. The Guatemalan declaration, though made by the protesting State, is self-evidently not one that falls within the terms of Fitzmaurice's statement because it is not an offer to adjudicate on the basis of law, but only on an ex aequo et bono basis i.e. on a basis that is not one of law. Since the dispute is really one about law, namely, the issue of title to British Honduras, Guatemala's offer to submit to adjudication on some other basis is obviously not one that can operate to preserve its legal claim. Moreover, it may be observed in passing, the fact that Guatemala was only prepared to adjudicate on an ex aequo et bono basis was a tacit admission that it did not think that its case would withstand legal scrutiny.

176. Subsequent to the independence of Belize, Guatemala, on 18 October 1999, indicated in general terms a willingness to submit its differences with Belize to the ICJ or arbitration. The words used by Guatemala were as follows:

      ". . . the Government of Guatemala formally proposes to the Government of
Belize that the matter be submitted either to international arbitration or to the International Court of Justice. In either case, the two governments could submit, by common agreement, the issue to be resolved or adjusted."

177. However, this proposal could not change the pre-existing legal position. We note, in particular, that the Guatemalan proposal did not amount to an unconditional acceptance of the jurisdiction of an international tribunal to decide the matter in accordance with law , comparable to the British declaration of 13 February 1946. Instead, the reference to "common agreement" by Guatemala merely amounted to a proposal to negotiate about the issue to be submitted to the tribunal. This would only have given rise to prolonged discussion since Guatemala would undoubtedly have insisted on introducing a reference to Article VII of the 1859 Convention and Belize would have insisted on limiting the issue to the question of the boundary. Even more pertinently, Guatemala indicated by its use, in the emphasised part of the sentence of the words "or adjusted", that it would be proposing yet again that the matter be resolved ex aequo et bono. Belize did not reply to this proposal and Guatemala did not repeat it, even though it used some of the phraseology of its letter in subsequent notes to Belize.

178. We conclude, therefore, that this, Guatemala's latest proposal to submit the dispute to adjudication, does not meet the condition stated by Fitzmaurice for the effective maintenance of Guatemala's legal position. But even if the Guatemalan proposal had taken the form of an unconditional acceptance of the jurisdiction of the ICJ to decide the case on a strictly legal basis, this should not have changed the legal situation, by then long established, of Guatemala's acceptance of the title of Belize.

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