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BELIZE
Joint
Opinion of Sir Elihu Lauterpacht CBE, QC, Judge Stephen
M. Schwebel, Professor Shabtai Rosenne, and Professor Francisco
Orrego Vicuña.
1. This
Opinion examines the claim by Guatemala to sovereignty over
the territory of Belize.
2. That
claim (so Guatemala contends) is based on the title which
Spain possessed to the whole area of present Belize at the
time when Guatemala became independent in 1821 and on Guatemala's
succession to that title by operation of the doctrine of
uti possidetis. Guatemala maintains that the 1859 Convention,
which recognised the boundaries and thereby the extent of
British Honduras, was a cession of territory dependent upon
the performance by Britain of a provision in that Convention
(Article VII) to participate in the construction of a cart
road connecting Guatemala City to the Atlantic. Guatemala
asserts that, as Britain did not meet its obligations under
that provision, Guatemala was entitled to denounce the Convention,
which it did, and the territory which Guatemala had thereby
acknowledged as being the territory of British Honduras
thereupon reverted to Guatemala.
3. In
our view, the facts and the law of the matter do not support
analysis along the lines suggested by the Guatemalan arguments
set out above. This is because Guatemala's fundamental contention
that the 1859 Convention was one of cession and has ceased
to be operative is wholly contradicted not only by the facts
and the law relating to the termination of treaties but
also by a further treaty: the Exchange of Notes between
Britain and Guatemala of 1931. That agreement can only have
been concluded on the basis of the validity of the 1859
Convention in its entirety, by reason of its confirmation
of the location of the two cardinal points identified by
that Convention as marking the southern and western extremities
of Belize. Nothing has happened since 1931 to deprive that
Exchange of Notes of its validity and effect. Guatemala's
contention that it was entitled to denounce the 1859 Convention,
and did so in 1946, and that the 1931 Exchange of Notes
fell with it, is unsustainable. Thus the arguments on which
Guatemala has relied are not really to the point; and discussion
of them diverts attention from, and obscures, the controlling
feature of the situation - the 1931 Exchange of Notes. That
international treaty obligation appears, until very recently,
to have been overlooked or disregarded by Guatemala in its
exposition of the case.
4. Quite
apart from the position as a result of the treaties of 1859
and 1931, we are of the opinion that the facts on the ground
- of British and Belize possession of the territory in question
for virtually the last two hundred years, coupled with the
absence of any evidence of Guatemalan activity in the disputed
area - have by a process of historical consolidation (including
acquisitive prescription) secured title first to Britain,
and now to Belize, independently of the existence of the
1859 and 1931 agreements. These fundamental facts, of British
possession and of the absence of any Guatemalan possession
of Belize, were openly and frankly acknowledged by the Guatemalan
Minister of Foreign Affairs in a letter to the Guatemalan
Chamber of Deputies on 4 January, 1860, when the Guatemalan
Government was seeking, and obtained, that Chamber's approval
of the 1859 Convention.
5. Lastly,
as a reflection and confirmation of the actual possession
of the territory by
Britain and Belize, of the soundness of their legal title
to Belize and of the entitlement of an independent Belize
to succeed to the whole of the colonial territory, weight
must be given to the right of self-determination of the
people of Belize manifested in their acquisition of independence
in 1981 in accordance with the virtually unanimous opinion
of Members of the United Nations repeatedly expressed between
1975 and 1981 in full knowledge of the existence and main
features of the dispute.
6. The
title of Belize extends to the islands in its possession
appurtenant to its mainland territory.
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