II. GUATEMALA'S ARGUMENT THAT THE 1859 CONVENTION WAS IMPOSED ON GUATEMALA

206. Guatemala has at times suggested that the 1859 Convention was imposed on her.

207. When an allegation of this kind was considered by the International Court of Justice in the Fisheries Jurisdiction cases the Court said:

     "it is . . . clear that a court cannot consider an accusation of this serious nature on the basis of a vague general charge unfortified by evidence in its support."

Referring to the negotiations that led to the agreement then under consideration, the Court said that the history of the negotiations

     "reveals that these instruments were freely negotiated by the interested parties on the basis of perfect equality and freedom of decision on both sides. No fact has been brought to the attention of the Court from any quarter suggesting the slightest doubt on this matter."

208. The same is true in the present case. The facts simply do not bear out Guatemala's contention. The diplomatic documents of both Great Britain and Guatemala contain no indication of any threat of force or suggestion of duress by Great Britain in the period in which the treaty was under negotiation, i.e. between 1857 and 1859. None of the adverse votes in the Guatemalan legislature on the occasion of the ratification of the 1859 Convention refers to any such threat by Great Britain to secure Guatemala's acceptance of the Convention, beyond general and vague references to the "inevitable expansionism of a highly industrialised colonial power."

209. Guatemala has at various times contended that Article VII of the 1859 Convention imposed obligations on Britain and that Britain's failure to comply with those obligations led to the Convention's becoming "null and void." In the words of Guatemala's representative in the General Assembly on the occasion of the admission of Belize into the United Nations, "that pledge was never kept and the Convention was therefore null and void, since the conditions on which Guatemala entered into the contract were not fulfilled." We have already indicated our opinion that any responsibility for non-performance of that Article relates only to the period of Britain's rule in British Honduras and has not devolved upon independent Belize. Here we consider only Guatemala's argument regarding the effect of the alleged breach of Article VII on the 1859 Convention as a treaty establishing the boundary of Belize.

210. By way of preface, however, we observe that in so far as the alleged breach occurred before the Exchange of Notes of 1931, that Exchange of Notes, as an entirely independent agreement, operated as a confirmation of the 1859 Convention. As such, without prejudice to any possible claims of Guatemala against Britain arising before that Exchange of Notes, the Exchange of Notes extinguished any possible claim by Guatemala that the alleged breach rendered the Convention void. Nothing that has occurred since the Exchange of Notes serves to eliminate that effect or to transmute possible Guatemalan claims against Britain into possible Guatemalan claims against Belize.

211. Assuming, arguendo and without prejudice to the positions of Britain or Guatemala regarding any alleged breach of Article VII, that Britain is in breach of Article VII, the question arises of the effect of that breach, if duly confirmed, on the continuing validity of the boundary that the 1859 Convention established and the Exchange of Notes of 1931 confirmed. The point of departure of this examination is to be found in the law of treaties. That law does not recognise any breach of a treaty as automatically leading to the termination of the treaty, and a fortiori to the nullification of a boundary established by that treaty. At most, a confirmed breach of a treaty gives to the injured party the right to call for the termination of the treaty, not unilaterally to proclaim its termination, or repudiate it. It would then be the treaty that is terminated, in so far as it imposed any further executory obligations on either side (and it will be recalled that Article VII imposed obligations on both parties), and not any boundary established by that treaty.

212. The position today is clarified by Article 60 of the 1969 Vienna Convention on the Law of Treaties. That Convention distinguishes between what it terms a "material" breach of a treaty, and other breaches. A "material breach" of a treaty is defined as "(a) a repudiation of the treaty not sanctioned by the present Convention, or (b) the violation of a provision essential to the accomplishment of the object and purpose of the treaty". A material breach of a bilateral treaty by one of its parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part. The question is, therefore, whether the alleged unilateral breach by Britain of Article VII is a material breach as thus defined. This can be reformulated as the question whether Article VII is a provision that is essential to the accomplishment of the object and purpose of the 1859 Convention.

213. The object and purpose of that Convention are set out in detailed terms in its preamble, which we have mentioned in paras. 20-21 above. Given the character and content of the 1859 Convention and the circumstances in which Article VII came to be included in it, it is clear that Article VII was never conceived as being essential to the accomplishment of the purpose and object of the Convention. It was at most included, as Guatemala puts it, "in order to compensate us for the mutilation, when we consented that Great Britain extend the limits of Belize as far as the Sarstoon river in territory absolutely Guatemalan" . As the representative of Guatemala stated in his speech at the 13th plenary meeting of the 36th session of the UN General Assembly, it was "an inducement, a compensatory clause". Such a clause might have been needed to procure the conclusion of the 1859 Convention. That was a question between Guatemala and Britain. But it is not and cannot be a provision essential to the accomplishment of the object and purpose of the Convention as a boundary treaty. That object and purpose was the establishment of the boundary between the two countries and was accomplished when the Convention entered into force.

214. Since, in our opinion, the alleged non-fulfilment by Britain of Article VII is not a "material breach" of the Convention, the question arises whether regarding it as a simple "breach" has any relevance to the matter. We answer that question in the negative. In the words of the ICJ:

     ". . . it is only a material breach of the treaty itself, by a State party to the treaty, which entitles the other party to rely on it as a ground for termination of the treaty. The violation of other treaty rules or of rules of general international law may justify the taking of certain measures, including countermeasures, by the injured State, but it does not constitute a ground for termination under the law of treaties".

Leaving aside the special problem of material breach, breach of a treaty thus comes within the scope of the general rules on State responsibility. It would be, in the words of the International Law Commission, a breach of an international obligation of Britain, and as such an internationally wrongful act attributable to Britain, and only to Britain. Leaving out of consideration whether possible breach of Article VII by Guatemala itself has not contributed to the breach, the normal consequences of breach do not extend to repudiation of the treaty. At most they would consist of such traditional processes as reparation, either as agreed or as determined after appropriate proceedings. As we have shown , the possibility of judicial settlement of claims arising from the breach of the Convention certainly existed between 1946 and 1956, and possibly even earlier. It is clear that whether under the law of treaties or any other basis, alleged breach by Britain of its obligations under Article VII has no effect whatsoever on the continued validity of the 1859 Convention. It accordingly has no effect on the boundary established by that Convention. This is, and remains, the boundary originally established between Guatemala and British Honduras, and now effective between Guatemala and Belize.

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