187. As already stated, we consider that the reasoning set out in Part One of this Opinion is sufficient by itself to establish the title of Belize to the territory within the limits set by the 1859 Convention. That reasoning entirely overrides the various considerations hitherto advanced by Guatemala in support of its claim and thus renders superfluous any discussion of those points. Nonetheless, as indicated, we shall briefly express our views regarding these contentions advanced by Guatemala.

I. GUATEMALA'S ARGUMENT REGARDING THE 1859 CONVENTION AS A TREATY OF CESSION: THE QUESTIONS OF UTI POSSIDETIS AND THE CLAYTON-BULWER TREATY

188. Guatemala's argument that the 1859 Convention is a treaty of cession rests upon the propositions (I) that the territory of British Honduras was Spanish until the date of the independence of Guatemala in 1821 and (II) that Guatemala inherited that territory from Spain by virtue of the doctrine of uti possidetis. (III) There is also a third Guatemalan argument. Guatemala argues that it had title to Belize in 1859 when the 1859 Convention was concluded. The 1859 Convention was worded as it was in order to conceal the fact that it was a treaty of cession, the conclusion of which by Britain would have violated the terms of a treaty that Britain had previously concluded with the United States, namely, the Clayton-Bulwer Treaty of 1850.

A. SPANISH TITLE BEFORE 1821

189. There is no need to question that at the time of the conclusion of the Treaties of 1783 and 1786, by which Spain accorded to Britain certain rights in Belize north of the River Sibun, Spain had, by the legal standards then operative, title to Belize; and this was acknowledged by Britain. It need hardly be said, however, that the Papal basis of Spain's title then would not, in the absence of acts of possession sufficient to exclude any other claimant, be effective to support that title today by reference to the standards applicable now.

190. It is also a fact that in the years following 1786 the British settlers began to occupy areas lying outside the limits laid down by the Treaties. Spanish authority in Belize withered away and after 1798 ceased entirely to exist in that area.

191. The indications of the lapse of Spanish title in the area have been detailed above where the facts relating to British presence in the area south of the Sibun River prior to 1821 - and the corresponding dispossession of Spain - are set out as part of the history of British presence in the area over the much longer period of the past 200 years. There is no need to recapitulate those facts here.

B. UTI POSSIDETIS

192. Guatemala has based its claim to have inherited Spain's title on the operation of the doctrine of uti possidetis juris. This doctrine, at least in the view taken by Guatemala in the past (as shown in its contentions in its boundary dispute with Honduras), operates only in relation to territory that was actually under the authority and control of Spain or of its provincial administration.

193. As the title of Spain and hence that of any local Spanish administration had already by 1821 been attenuated to the point of disappearance there was no title to which Guatemala could succeed and Guatemala therefore did not acquire title to Belize by operation of the doctrine of uti possidetis.

194. However, even Guatemala's claim that authority over the whole of Belize was during the period of Spanish sovereignty vested in the Captaincy-Generalship of Guatemala cannot be assumed to be correct. As will be shown in Appendix II, there is significant support for the contention of Mexico that the Captaincy-General of Yucatan exercised authority at least over the northern part of Belize, and even perhaps over the southern part.

195. If that contention is correct, then it casts considerable doubt on the existence of Guatemala's authority over both the northern and the southern part of Belize. Guatemala's claim on the basis of uti possidetis was originally, it will be recalled, one of succession to the whole of Belize. Only recently has Guatemala limited its claim to the southern part of Belize. What is totally lacking is any proof of Guatemala's authority, formal or actual, over any part of present day Belize during the period of Spanish sovereignty. This is to be contrasted with the evidence of the authority of the Captaincy-General of Yucatán.

196. Even if Guatemala did acquire some title to the area of British Honduras on the basis of the doctrine of uti possidetis, that would, as the doctrine was understood at that time and for many years after, have operated only as against other States deriving their title by succession from Spain. As Chief Justice Hughes said in the Guatemala/Honduras Boundary Dispute, the system of uti possidetis operated on the basis that both States involved in the boundary dispute were part of the Spanish colonial regime and that the only source of authority was the Spanish Crown. The concept would, therefore, not then have applied as against third States and thus would not have served to vest a title in Guatemala capable of overriding Britain's possessory title.

197. It need hardly be added that the concept of uti possidetis has in recent years come to be regarded in wider terms - as recognising generally the stability of frontiers inherited by new States from the previous sovereign of the area. Thus, in the Burkino Faso/Mali case, a Chamber of the ICJ said:

     "Although there is no need, for the purposes of the present case, to show that this is a firmly established principle of international law where decolonization is concerned, the Chamber nonetheless wishes to emphasise its general scope, in view of its exceptional importance for the African continent and for the two Parties. In this connection it should be noted that the principle of uti possidetis seems to have been first invoked and applied in Spanish America, inasmuch as this was the continent which first witnessed the phenomenon of decolonization involving the formation of a number of sovereign States on territory formerly belonging to a single metropolitan State. Nevertheless the principle is not a special rule which pertains solely to one specific system of international law. It is a general principle, which is logically connected with the phenomenon of the obtaining of independence, wherever it occurs. Its obvious purpose is to prevent the independence and stability of new States being endangered by fratricidal struggles provoked by the challenging of frontiers following the withdrawal of the administering power."

But the modern view cannot be applied retroactively to the concept as it operated in 1821.

198. In any event, even assuming that the doctrine of uti possidetis juris was sufficient originally to have vested in Guatemala title to the area of Belize, the title thus vested could not have survived in the face of continuing adverse British possession and Guatemala's acquiescence in it.

C. THE CLAYTON-BULWER TREATY

199. Guatemala has argued that the 1859 Convention was so worded by Britain as not to create the impression that it involved a cession of territory that would be in conflict with the terms of the Clayton-Bulwer Treaty of 1850. Though constantly repeated by Guatemala, the argument is not persuasive.

200. It is to be noted that in 1847 even before the Clayton-Bulwer Treaty, the question of Belize was seen by Guatemala as a boundary matter rather than one regarding title. When in June of that year a treaty of amity, commerce and navigation was signed between Guatemala and Britain (though never ratified), the Guatemalan representative declared that

     " . . . it has not been believed that the said treaty might affect in any way, nor involve the rights of the Republic of Guatemala in the pending boundary question with the British Government, as far as the concessions in the territory of Belize are concerned . . . I received the understanding in which we have proceeded . . . considering that the treaty signed on June 25 (1847) in no way involves or affects the rights of the Republic of Guatemala in the boundary matter relative to the concessions in the territory of Belize . . ."

The British Consul in Guatemala, to whom the Guatemalan note had been addressed, replied that he had no instructions on the subject, but that

     "I conceive that the Treaty . . . need not affect any arrangement which the Government of this Republic may desire to conclude at a future time with Great Britain respecting boundaries."

201. As the documents show, at the time when Britain was drawing up its
instructions to its negotiator, Mr Wyke, it did not regard the prospective delimitation as a cession, though it was concerned to ensure that the treaty was not seen as such by the United States Government and, therefore, as a possible breach of the Clayton-Bulwer Treaty of 1850. There really was no need for Britain to be so concerned about the matter. At the time of the conclusion of that Treaty Britain had been at pains to ensure that its terms were not to be viewed as applicable to British Honduras by making a declaration "that Her Majesty does not understand the engagements of that Convention to apply to Her Majesty's settlement at Honduras, or to its dependencies". True, the United States replied (by Mr Clayton) in guarded terms: " . . . I understood British Honduras was not embraced in the treaty of the 19th of April last, but, at the same time, carefully declining to affirm or deny the British title in their settlement or its alleged dependencies." In other words, Mr Clayton was acknowledging that the Treaty did not apply to British Honduras, but reserved his position as to whether Britain had a good title to the country.

202. The inapplicability of the Clayton-Bulwer Treaty of 1850 to British Honduras was, however, subsequently acknowledged in the "Separate Articles" of the Clarendon-Dallas Treaty of 1856. Article II (1) provided:

     "That Her Britannic Majesty's settlement called Belize or British Honduras, on the shores of the Bay of Honduras, bounded on the north by the Mexican province of Yucatan, and on the south by the River Sarstoon, was not and is not embraced in the Treaty entered into between the Contracting Parties on the 19th day of April, 1850, and that the limits of the said Belize, on the west, as they existed on the said 19th of April, 1850, shall, if possible, be settled and fixed by Treaty between Her Britannic Majesty and the Republic of Guatemala, within two years from the exchange of ratifications of the instrument; which said boundaries and limits shall not at any time hereafter be extended."

203. When the Treaty came before the United States Senate for its consent, the Senate was only prepared to approve it subject to certain changes. According to a note from the British Ambassador in Washington to the Foreign Secretary of 16 April 1857, one of these changes involved the deletion from the provision above quoted of the words which indicated the boundaries of Belize or British Honduras; and the settlement of those limits was referred to negotiation, not only with Guatemala, as prescribed by the Treaty, but also with the Republic of Honduras. Nonetheless, the Resolution of the Senate, as actually adopted, and as sent by the United States Ambassador in London to the British Foreign Secretary, contains no such amendment to Article II (1) of the Additional Articles, but only one to Article II (2) unconnected with Belize. This latter amendment was not acceptable to Britain, which proposed a variation of the amendment. The United States did not agree to this and no further progress was made with that Treaty.

204. But the fact that the Clarendon-Dallas Treaty did not enter into force does not mean that its terms have no relevance in the present situation. Regard may properly be had to its wording, not as containing a legal obligation, but as evidencing a fact, namely, the acknowledgement by the United States that the southern boundary of British Honduras was at the Sarstoon River and that a British claim to that limit did not conflict with the terms of the Clayton-Bulwer Treaty. The judgment of the ICJ in the Qatar/Bahrain case (16 March 2001), para. 89, contains the following statement that exactly covers the situation:

     "The Court observes that signed but unratified treaties may constitute an accurate expression of the understanding of the parties at the time of signature".

205. Another development that confirms the inapplicability of the Clayton-Bulwer Treaty arose out of the protest to Guatemala on 1 October 1859 by the United States Minister in Guatemala that the 1859 Convention involved a violation of that Treaty. The Guatemalan Foreign Minister replied on 18 October 1859 saying that "if there were a motive to protest", the protest should have been directed to Britain, not to Guatemala, since "it is not incumbent upon the Government of this Republic to discuss this question, nor is it competent to judge of it - having no part in it." On 12 July 1860, the Acting Secretary of State of the United States, in a note to the Guatemalan Minister in the United States, disclaimed the protest, saying that it was not approved by the United States Government, the 1859 negotiations having been "in harmony with the understanding of the subject entertained here and at London."

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