May 22, 2001

H.E. Eamon Courtenay S.C.

Guatemala’s presentation consisted, in the main, of a restatement of their original submission of the 30th March 2001 and their Reply of 15th May 2001. We have made comprehensive legal submissions in our written submission of the 31st April 2001 and in our oral presentation yesterday, and we will not repeat them.

I will confine my comments to new legal issues canvassed by Guatemala in its oral presentation yesterday.

In relation to the submission based on the Chamizal case, we simply say that that Arbitral Award did not decide that there was no concept of acquisitive prescription. On the contrary, it applied the principle and found, based on the factual matrix presented, that title was not made out by the USA. The facts in our case are manifestly different, and we submit that they do make out a title by acquisitive prescription.

In relation to their submissions that the elements needed to ground our defence of title on the basis of acquisitive prescription have not been satisfied, we do not reply to them seriatim. We confine our reply to saying that the facts now presented by Guatemala are entirely divorced from the facts as they were at the relevant time. In this connection we again commend to you the Report of Canciller Pedro de Aycinena. We need say no more.

Guatemala has invited you to consider the effects of reintegration of southern Belize into Guatemala. That is not a course open to you, as it necessarily presupposes a finding by you that Guatemala is entitled to more than half our country. In any event this is absolutely legally untenable. To consider that this course is remotely possible is to completely disregard the wishes and rights expressed by the peoples of this region. It would be positively inhuman to transfer half our country with all its settled population, with a distinct culture and identity, to Guatemala. The human rights and political implications of such ‘Balkanization’ are immense and horrific. Consequently, we specifically request that you expressly reject this idea.

Treaties

As you will recall, there were three pillars to our case based on
Treaties: (i) the 1859 Treaty, (ii) the 1931 Exchange of Notes, (iii) The Libya v. Chad Principle, i.e. that settled borders have a legal life independent of the treaties that gave them birth. In their submissions yesterday, they concentrated on the 1859 Treaty. They failed to deal with our second and third points.

But I turn to the points they did make on the 1859 Treaty.

As to the allegation of coercion which featured so large in their written submissions, this seems to have faded and been virtually abandoned, rightly so. Prof. Villagarn Kramer did refer loosely to Britain’s reputation as a naval power and Guatemala´s need to safeguard the rest of its territories. Mr. Fitzgerald has already commented on this type of vague allegation. Geopolitical pressures are one thing, the legal concept of coercion is something far more specific and serious. They no longer seriously suggest that it applies.

Guatemala argued that Britain subscribed to a compensatory clause in Article 7 and that non-compliance led to the declaration of termination in 1946. They asked you to look at the substance of the matter and to treat Article 7 as a compensatory clause. We say that you do not look beyond the expressed words if they are clear. They are, and Article 7 is not expressed as compensatory in any way. In this case, however, even if the words had not been clear and recourse could have been had to the background history, that too does not support the claim that Article 7 was compensatory: see Aycinena.

The recognition of the frontiers was not as a matter of form or substance made dependent on the completion of the road. Therefore, as a matter of law, the joint failure to build the road cannot be a basis for voiding the whole treaty.

Guatemala submitted that non-compliance justified termination in 1946. We do not accept that there was any unilateral breach by Britain. I will not restate the full history.

But, article 7 cannot be regarded as so fundamental to the main purpose of the Treaty that its breach, which is not admitted, could justify termination. If one applies the test laid down in Article 60 of the Vienna Convention, the fulfillment of Article 7 was not “essential to the object and purpose of the Treaty.” The primary purpose of the Treaty was the establishment of the border and this took effect immediately. The border could not thereafter be undone because of the joint failure to work out a way of implementing the vague and non-essential commitment “to use joint endeavours” appearing in Article 7.

Even if there were a breach of Article 7 the remedy would certainly not be the invalidation of the whole Treaty. There could be no question of undoing the border after so long. We detect signs in Guatemala’s Reply that they recognize that the problems we now face began with the former colonial power and not with Belize, and an acceptance that Belize should not be made to pay the price. We welcome the recognition of the reality that what they describe as a restitutio in integrum is really quite impractical even if there were any substance in their allegation of non-compliance. We ask them to continue along this road and to state clearly and publicly that they accept that the borders could not now be undone.

SIMULATION

Guatemala did not treat this issue fully. But we noted no further mention of simulation. For the reasons we gave yesterday we believe that they have rightly abandoned this claim.

1931 TREATY

They tried to subsume the 1931 Treaty in the argument on the 1859 Treaty. But it is an independent treaty and contains no equivalent of Article 7. We still wait to hear on what grounds recognized by the Vienna Convention they seek to justify termination of the 1931 Treaty.

Libya v. Chad

Guatemala has failed totally to respond to our submission that the Libya v. Chad Principle should apply. But again, we do detect a welcome recognition that the principle operates to make what they describe as restitutio in integrum impossible. Moreover, the undoing of the border, and transfer of territory after so long would plainly violate both the letter and spirit of the several UN Resolutions to which we referred yesterday.

We suggest that it would be helpful if the Facilitators were to clearly state that restitutio in integrum is simply impossible in the light of Article 60 of the Vienna Convention, the Libya v. Chad Principle, and the international community´s recognition of Belize’s right to self-determination with territorial integrity.

I wish to respond to two points made by the distinguished Foreign Minister in his address this morning. First, he stated that the 1931 Exchange of Notes was not a treaty. By way of reply I must point out that the Exchange of Notes was registered with the League of Nations as a treaty. If it were not a treaty they would not have registered it in the treaty series. Secondly, the Foreign Minister stated that the Vienna Convention had no retroactive effect and therefore could not apply to the 1859 and 1931 Treaties. He is correct in saying that it has no retroactive effect, however, it was declaratory of existing principles of customary international law. We therefore say that they principles are the same.

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