VI. GUATEMALA'S CLAIM TO THE ISLANDS

179. In addition to the mainland territory of Belize, Guatemala also claims all the offshore islands under the control of Belize with the exception of St George's Caye and its immediate neighbours. The Guatemalan argument is that St Georges Island was the only island expressly included in the Spanish grant of usufruct by the 1786 Treaty and that otherwise there was no grant by Spain to Britain of any rights over the adjacent islands which therefore remained under Spanish sovereignty and eventually devolved upon Guatemala.

180. We find this contention unpersuasive. The islands were evidently as much the subject of British and subsequently Belize occupation as the area of Belize south of the Sibun.

181. A map annexed to a Colonial Office Memorandum dated 25 October 1834 shows the whole area of British Honduras. It bears an inscription in the top right-hand corner (NE) stating:

     "All Keys and Islets which are situated between the Hondo and the Sarstoon are in active British occupation, and must be comprehended in the Treaties."

A similar inscription appears in the SE corner of the map.

182. On 20 January 1835 a Colonial Office memorandum on the subject of the boundaries of British Honduras stated:

     "With respect to the Islands and Keys, the British claim might be defined as
embracing all the Islands and Keys within thirty miles of the coast between the mouth of the Hondo and the mouth of the Sarstoon, or in other words, the Islands and Keys comprehended between 15º 55' and 18º 30' N.Lat; between the Meridian of the Easternmost point of Light House Reef.

This would include all the Islands of which there has been any occupation or
any question of claim by Great Britain . . ."

183. The "waters, islands and keys lying between the coast and 87º 40' W. Long. together with the islands of Ruatan and Bonacca" were also specified in the British note to Spain of 5 April 1835. As was indicated in the declaration made by the United States at the time of the ratification of the Clayton-Bulwer Treaty, the Treaty was understood not to be applicable to

     "the British settlement in Honduras (commonly called British Honduras, as distinct from the State of Honduras), nor the small islands in the neighbourhood of that settlement, which may be known as its dependencies. To this settlement, and these islands, the Treaty we negotiated was not intended by either of us to apply."

184. The same considerations therefore apply to the determination of title to the islands as do to the adjacent mainland. Title to the islands does not rest upon any grant by Spain but rather upon the fact of long and effective possession by Britain and the absence of any competing Spanish or Guatemalan presence on them. Consequently, the scope and effect of the Anglo-Spanish Treaties of 1783 and 1786 are quite irrelevant. We observe that Guatemala appears to treat the islands as appurtenant to the adjacent mainland territory, for that is the only basis on which Spain could have had any sovereign rights over them at the time of the 1783 and 1786 Treaties. The fact that the 1859 Convention does not expressly refer to the islands thus makes no difference to the legal situation. However, it should be observed that when Mr Stevenson initiated the negotiations relative to the boundary with the Guatemalan representative, Sr Martin, in 1857, part of Mr Stevenson's description of the boundary read as follows:

     "East, from the Hondo to the Sarstoon, on the shores of the Bay of Honduras, including all the Cays and islets off the mainland within the same latitude."

Although the express reference to the cays and islets did not appear in the final text of the treaty, the British internal correspondence provides an explanation of its omission. A letter of 16 February 1859 from the Earl of Malmesbury to Mr Wyke, states that

     ". . . the proposed line of demarcation . . . is not exactly the same in terms as the line described by Mr Stevenson to M. de Francisco Martin. In the first place, it has been deemed unnecessary to describe, in a treaty with Guatemala, the sea-frontier, or any more of the land-frontier than that which relates to the territory of Guatemala . . .".

In these circumstances, there is no ground for assuming that the original British intention as thus evidenced was the subject of any objection by Guatemala. Indeed, the amplitude of the provision in Article 1, paragraph 3, of the 1859 Convention, that

     " . . . all the territory to the north and east of the line of the boundary above described belongs to Her Britannic Majesty . . .",

is sufficient in the circumstances to cover the position of the islands appurtenant to the eastern mainland coast.

185. We note more generally in this connection the reference in the Yemen-Eritrea award to the question of

     "how far the sway established on one of the mainland coasts should be considered to continue to some islands or islets off that coast which are naturally "proximate" to the coast or "appurtenant" to it."

The Tribunal observed:

     "This idea was so well-established during the last century that it was given the name of the portico doctrine and recognized as a means of attributing sovereignty over off-shore features which fell within the attraction of the mainland."

The Tribunal accepted the relevance of these doctrines of international law to the case before it. There is no reason why the same rules should not apply in the present case.

186. In short, there is no ground on which it is possible to distinguish the question of the islands from the question of the mainland. In our view, just as the mainland undoubtedly belongs to Belize, so do the islands.

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