Mr. Secretary General, distinguished facilitators: With respect, Guatemala is putting forward an extraordinary proposition when they suggest that a frontier which has stood for 142 years could be set aside, and that more than half of Belize -a free and independent nation recognised by the United Nations - could somehow be declared to belong to Guatemala. To accept that proposition would be to ignore the border treaty of 1859, to ignore the further treaty of 1931, and to violate the most fundamental principles of international law.

So let me briefly state the position of Belize on the legal status of the treaties, and of the territory to which Guatemala seeks to lay claim:-

(i) Firstly, we rely on the 1859 Treaty as a valid and binding declaration of the boundaries between Guatemala and British Honduras. We say that Treaty was exactly what it said it was - a boundary treaty, not a treaty of cession; that it was freely entered into; and that Guatemala’s purported denunciation of it in 1946 after more than eighty years was both wholly unjustified and far too late.

(ii) Secondly, we rely on the 1931 Exchange of Notes as itself a valid and enforceable treaty, which was registered as a treaty with the League of Nations without a murmur of dissent from Guatemala. By the terms of that treaty, Guatemala acknowledged and confirmed the boundary established by the 1859 Convention and thereby the allocation of territory declared in that treaty. And this again makes a nonsense of the suggestion that the Treaty of 1859 could now be invalidated 142 years after its conclusion, and seventy years after its re-affirmation.

(iii) Finally, we say that the border, once established in 1859, acquired a life of its own independent of the treaty which gave it birth. And that border cannot be set-aside without violating one of the most fundamental principles of international law - that the stability of frontiers is essential and should be respected.

[A] THE 1859 TREATY: The Rival Submissions

I turn, firstly, then to the 1859 Treaty.

Guatemala first claims that, before the treaty, the territory of Belize belonged to Guatemala. Guatemala then claims that the treaty was forced on her unwillingly; that this was a disguised treaty of cession and was, as such, invalidated by ‘simulation’: and furthermore that Guatemala was entitled to repudiate the treaty because of Britain’s non-compliance with the obligations of Article 7.

We make five points in reply. Firstly we say the land was never Guatemalan; secondly that Guatemala entered into the treaty freely and without coercion to secure a settled boundary in her own interests; thirdly that, on its plain words, the treaty was a boundary treaty and not a treaty of cession; fourthly that there is no basis to invalidate the treaty on grounds of “simulation” – whatever that may mean: and finally that Guatemala had no right to terminate the treaty on grounds of the alleged breach of Article 7.

I will deal with these five points in turn.

1. The de facto position pre-1859

Firstly, Guatemala claims that the 1859 treaty was a treaty of cession of territory she already possessed. But this is wholly inconsistent with the actual facts on the ground in 1859, as Mr. Shoman has so convincingly demonstrated. Indeed Guatemala itself recognized this to be the case at the time. Sr. Aycinena, the Guatemalan Foreign Minister, made two key admissions in his report to the Guatemalan Chamber of Representatives in 1860 justifying the conclusion of the treaty. He expressly stated in that report:-

(i) Firstly that the territory into which the settlers had advanced from the Sibun to the Sarstoon and which Guatemala now claims had been - I quote - “relinquished and deserted by Spain itself and subsequently by Guatemala”.

(ii) Secondly that those territories had never been in the actual possession of Guatemala, nor had she “exercised any act of sovereignty over them”.

We have the full text of Sr. Aycinena’s statement. It is fatal to Guatemala’s claim. We ask you to read it in full.

Against that background we submit that the position is clear. To the Guatemalan claim that this was a treaty of cession, we respond that there was nothing to cede. Guatemala may have had a claim. But Guatemala did not have a title. And this was something that Guatemala itself recognized at the time in the words of its own foreign minister.

2. The absence of coercion

I turn secondly to the claim now made that Guatemala was coerced unwillingly into ceding territory by “the adverse circumstances prevailing at that time; the British threat of continuing its territorial advances; the imperial struggle taking place over Central America”. This is precisely the sort of “vague and general” allegation which the International Court of Justice condemned as manifestly insufficient to justify a charge of coercion in its judgment in the Icelandic Fisheries case. In fact, the so-called “adverse circumstances” referred to bear no relation to the serious and specific types of coercion recognised by international law as capable of invalidating a treaty. Coercion is only made out in cases where there is either force or the threat of force. This is now recognised by Articles 51 and 52 of the Vienna Convention. But here there is nothing of this sort. Nobody held a gun to Sr Aycinena’s head. No British troops were mobilized on the frontier. On the contrary:

(i) In May 1857, Guatemala itself initiated what Sr. Aycinena himself described as, I quote, “a proposal for a definite establishment of boundaries”. Guatemala’s reasons for seeking this boundary treaty were entirely self-interested. She wanted a clear boundary. She also wanted Britain as a friendly and law-abiding neighbour that was capable of controlling what Guatemala considered to be the lawless occupants of the Belizean hinterland. Those were the reasons expressly given by Sr. Aycinena to the chamber of deputies. In exchange Guatemala was prepared to, and did, recognize British sovereignty. As Sr. Aycinena put it Guatemala lost nothing of substance, and gained much by so doing.

(ii) Article 7 was, of course, agreed by Britain as an additional inducement. But would Britain need to offer any additional inducements if it was, as Guatemala claims, proceeding by way of coercion?

(iii) Thereafter, the Guatemalan House of Representatives openly debated the Convention submitted to it for consideration by the government and, “after detailed deliberation” decided to inform the government - I quote - “that the House of Representatives after having carefully examined the Convention ... finds it beneficial and expedient for the interests of the Republic and based on principles of sound policy”. The minority who opposed it spoke freely. That whole process of leisurely consideration, and due deliberation, is the very antithesis of what one would expect in a case of coercion.

The history itself therefore shows that this was a treaty freely chosen by Guatemala to define the boundaries, by which she recognized British sovereignty for sound and self-interested reasons of her own. So much for the allegation of coercion.

3. The 1859 treaty was not a treaty of cession

I turn thirdly to the Guatemalan claim that this was a disguised treaty of cession.

Language of the treaty

The first test to be applied in interpreting the nature of the treaty is the ordinary meaning of the terms of the treaty. That is the primary test laid down in Article 31 of the Vienna Convention which is, in this respect, merely declaratory of established principles of international law. The parties must be taken to have said what they meant to say. Applying that test, the actual wording of the treaty, and its expressed object and purpose, point conclusively to its being a boundary treaty, and not a treaty of cession.

Consider first the preamble. It refers to the fact that the boundary between the British settlement and possessions, and those of Guatemala “has not yet been ascertained and marked out”. It explains the object of the Treaty as being “to define the boundary aforesaid”. This is not the language of a treaty of cession.

But then look at Article 1, the key and operative article; it speaks only of the boundary. But more than that, it is expressed so as to be declaratory of the existing position: “It is agreed ... that the boundary ... was and is as follows”.

At paragraph 27 of their Replication, the Guatemalan government relies on an alleged contradiction between the words of the preamble that “The boundary ... has not yet been ascertained”, and the words of Article 1 declaring what the boundary was, and is. But there is no such contradiction. The fact that the precise limits of a boundary have not been ascertained does not mean that no boundary existed. Indeed the process of ascertaining a boundary (as opposed to creating it) logically presupposes the existence of a boundary capable of ascertainment.

As for Article 7, Guatemala can derive no support for its claim that this was a treaty of cession for compensation from the terms of Article 7 itself. Compliance with Article 7 is in no way expressed as a condition for the validity of the frontiers declared in Article 1. Article 7 assumes that the frontier is permanent and, on that assumption, proposes a joint enterprise for the mutual benefit of the two parties – namely the construction of the cart road between Guatemala City and the Atlantic.

Object and purpose

The plain terms of the treaty make clear what its primary purpose was – namely to define and settle the frontiers between the two states. Article 32 of the Vienna Convention only permits reference to the background history where there is genuine ambiguity in the actual terms of the treaty. And here there is none. So much for the claim that this was a treaty of cession.

4. The Allegation of Simulation

I turn to Guatemala’s claim that, because the treaty was “simulated”, they still retain the right even today to have it declared invalid or a nullity. We say they are wrong on two counts: wrong in their factual allegation of simulation, and wrong in the legal principle they rely on as a basis for nullity.

As to the facts, Guatemala suggests that the language of the treaty conceals a disguised act of cession because Britain wished to avoid any accusation by the United States that she was acquiring territory in Central America in violation of the 1850 Clayton-Bulwer agreement. But it was clearly understood by both the USA and Great Britain that the Clayton-Bulwer treaty did not apply to British Honduras. The position was restated in the clearest possible terms in a supplementary article to the Dallas-Clarendon treaty of 1856. And this treaty was actually ratified by the US with the supplementary article intact. That shows that the US had no objection to confirming the exclusion of British Honduras from the application of the Clayton–Bulwer Treaty. Moreover, upon conclusion of the 1859 treaty, the United States expressly stated that the 1859 negotiations have been “in harmony with the understanding of the subject entertained here and in London”. So there was no question of the United States complaining of fraud, or simulation.

As to Guatemala’s submission as to the legal effects of the alleged simulation:- There is no substance at all in their claim that they could seek a declaration from an international court that the treaty was void because of the alleged simulation of not mentioning the alleged territorial cession. Neither Britain, nor the Guatemalan foreign minister, nor the US at the time regarded this as a case of simulation. To them it was a simple recognition of reality. Guatemala is not alleging that it was itself deceived by fraud or misrepresentation. So article 49 of the Vienna Convention does not apply. In the circumstances, Guatemala has identified no basis in international law for its assertion that the treaty could be avoided because of what they call “simulation.” They have not explained their concept of simulation, a concept which is nowhere mentioned in the Vienna Convention. They have cited no authority to support the existence of the concept. They have cited no authority to justify its application to void a treaty.

Moreover, Guatemala has surely lost any right to seek to invalidate the treaty on grounds of the simulation they alleged. It has lost that right by reason of its own express assertion that the treaty was valid throughout the period from 1859 to 1946, and by reason of its own acquiescence in the validity of the treaty throughout the period. If there was any simulation, it was a simulation to which Guatemala was a willing party for many years. In these circumstances, the international law principle enshrined in article 45 of the Vienna Convention applies. The principle that a party should not benefit from its own inconsistencies debars Guatemala from even raising the point that the treaty could be invalidated on this basis. Adapting the words of the Arbitrator in the Costa Rica/Nicaragua boundary case, Guatemala was “silent when it ought to have spoken and so has waived the objection now made”.

Failure to invoke supposed ground for termination within a reasonable time

But there is a more conclusive response to Guatemala’s reliance on Britain’s alleged breach of Article 7 to justify the repudiation of the treaty. And that is, quite simply, the time factor. It is a clear principle of international law, now enshrined in Article 45 of the Vienna Convention, that a party alleging a breach must not by its conduct acquiesce in the continued validity of the treaty. By necessary implication it must exercise the right to terminate within a reasonable time. So, if Guatemala was to repudiate the treaty for non-compliance with Article 7, she had to do so within a reasonable time. This Guatemala did not do. Indeed Guatemala took no steps to denounce the treaty until 1946. By then it was far too late. Not only had more than 80 years elapsed. But Guatemala had already affirmed the original treaty of 1859 in the later treaty that is comprised in the 1931 Exchange of Notes.

[B] The 1931 Exchange Of Notes

That brings me to our second major point. For Belize’s case does not rest on the 1859 treaty alone. We rely in addition on the further treaty concluded between Britain and Guatemala in 1931. This took the form of the Exchange of Notes dated 25/26 August 1931. The agreement contained in that Exchange of Notes is as much a binding international treaty as if it had been described as a “treaty” or convention. That is why it was registered with the League of Nations as a “treaty pursuant to Article 18 of the Covenant of the League of Nations”. And Guatemala never protested at its registration.

Guatemala has never before questioned the existence, authenticity or validity of the 1931 Exchange of Notes. But Guatemala has chosen not to recognise its full significance. The effect of it is entirely to exclude any possibility that the 1859 Convention had been terminated by any alleged breach of Article 7 in the years between 1859 and 1931, or that any reliance can now be placed on Guatemala’s allegation that there was simulation in the 1859 Treaty.

I turn now to the express words of the 1931 Exchange of Notes. The text can be found at Annex 1 of the Belize Response. I have here a copy of the original signed by Senor Skinner Klee, the illustrious grandfather of one of the Guatemalan delegates here today.

The English Note is dated 25th August 1931. It refers to the fact that the boundary between British Honduras, and Guatemala “was laid down” in the 1859 Convention. It goes on to describe how the joint commissioners had in 1929 established concrete markers to mark the boundary at Garbutt’s Falls and Gracias a Dios Falls. The note then confirms on behalf of the British Government that the concrete monuments erected by the commissioners correctly mark the terminal points of the boundary. Finally the Note invites the government of Guatemala to give a similar assurance on its part as to the fact that the boundary has been correctly marked by the concrete monuments; and it states that “the present note and Your Excellency’s reply will constitute the agreement between the government of the United Kingdom and Guatemala on this matter”.

The Guatemalan response is unequivocal. It accepts the concrete monuments as definitively marking the boundary between British Honduras and the Republic of Guatemala. I quote the relevant parts. They expressly state:

"The government of Guatemala agrees to accept the concrete monuments erected at Garbutt’s Falls and the Rapids of Gracias a Dios.”

And later:

"These monuments, thus determined, form part of the boundary line between British Honduras and the Republic of Guatemala.”

What the monuments did was to mark the boundary between Guatemala and British Honduras in the southern part of Belize. And you will see that it is the very area to the east of that agreed boundary that Guatemala now claims. And yet, at the time of that Exchange of Notes, in 1931, Guatemala made no reservation laying claim to that part of British Honduras lying east of the boundary. And they made no reservation that in any way questioned the validity of the 1859 Convention - though the boundary confirmed in 1931 is the same boundary laid down in the 1859 Convention.

Our position is simple and straightforward. The 1931 Exchange of Notes rules out any Guatemalan contention that the 1859 Convention had come to an end. In effect the 1931 Exchange of Notes reaffirms the 1859 Convention. It rules out any reliance by Guatemala on the claim that the 1859 convention was a simulation and therefore void. Guatemala knew all the facts that it now relies on to prove simulation when it reaffirmed the 1859 Treaty in 1931, but it entered no reservation. The 1931 agreement further rules out any further reliance by Guatemala on Britain’s alleged breaches of Article 7 between 1859 and 1931. Guatemala knew of all the facts they now rely on when it reaffirmed the 1859 Convention in 1931, but it went ahead. And by that reaffirmation it has debarred itself as a matter of law from now turning around and alleging the invalidity of the treaty.

In the light of the 1931 Exchange of Notes, the government of Belize has called on Guatemala to reconsider its position. In its response, Guatemala does not dispute that in 1931 it did re-affirm the Treaty. Guatemala says that the treaty of 1931 is ancillary to the 1859 treaty. We do not understand what Guatemala means by describing this separate treaty as “ancillary.” They appear to suggest thereby that any invalidity in the 1859 treaty also invalidates the 1931 treaty. But this is not the case. The 1931 Exchange of notes is an independent treaty. Whatever the position in relation to the 1859 treaty, the 1931 treaty cannot depend for its validity on any compliance, with the obsolete requirements of article 7 of the earlier treaty. We ask then – On what basis recognized in the Vienna Convention does Guatemala claim the right to repudiate the boundary treaty of 1931?

Guatemala suggests that the 1931 treaty belongs to a second period of the history of this dispute, dating from 1859 to 1946, in which Guatemala complied with the Treaty and sought to ensure the fulfilment of its terms. That may be so. But they then make a quantum leap. They assert that somehow, despite their affirmation of the 1859 treaty in 1931, a right to repudiate the treaty crystallized in 1946. But nothing had happened between 1931 and 1946 to justify such a repudiation of the 1859 treaty. Still less had anything happened to justify the repudiation of the 1931 treaty and the abrogation of the border which that treaty expressly recognized. The grounds for repudiation are now set out in the Vienna Convention. And we ask Guatemala again: On what basis do they claim the right to repudiate the 1931 treaty?

Our submission is simple. Guatemala has identified no proper basis to repudiate the 1931 treaty. And by 1946 it was too late, far too late, to seek to repudiate the 1859 treaty’s border provisions when they had been expressly reaffirmed in 1931. We therefore submit that the 1931 Treaty leaves no room for further argument as to the status of the territory lying to the east of the boundary it affirms. It belongs to Belize and not to Guatemala.

[C] Autonomous Status Of The Frontier

But finally I come to our third major point. And that is this: Even if the Treaty of 1859 were invalid, the frontier that it recognised is not. And that is because, as a matter of international law, the validity of the frontier established in 1859 does not depend on the continuation of the treaty that created it. A wider principle of international law operates. It follows that, even if Guatemala were correct in its contention that the 1859 Convention has come to an end, and its contention that Belize belonged to it before 1859, that would not lead to the reversion of the territory to Guatemala. For, as the International Court of Justice has made quite plain in the Libyav. Chad case, once a boundary treaty has been established, the establishment of the boundary is a fact which “has a legal life of its own” independently of the fate of the treaty which created the boundary. As the court said at paragraph 73 of its judgment:-

"Once agreed, the boundary stands, for any other approach would violate the fundamental principle of the stability of boundaries, the importance of which has been repeatedly emphasised by the court”.

The reasoning of the court is even more applicable to this case. So too is the “fundamental principle of the stability of boundaries”. In the Libya v. Chad case the treaty was no more than forty years old. Here the treaty is now 142 years old. And its essential provisions have been applied over the whole of that period. The boundary has stood, it has been confirmed and demarcated, and the people of southern Belize living between the Sibun and the Sarstoon have now known for 142 years that they are living in Belize and not in Guatemala. If treaties mean anything, if reality means anything, if international law is to have any function in ensuring stability and certainty, then this border has long assumed the necessary permanence to be fixed and immutable as a matter of law. And its fate cannot, as a matter of reason or justice, depend on further labyrinthine historical dispute as to the fulfilment or non-fulfilment of the vague, and non-essential, requirements of Article 7. Still less can it depend on vague and inaccurate allegations of coercion, or meaningless and obscure talk of simulation.

We therefore respectfully invite the facilitators to suggest that the time has come for the Guatemalan claim to the territory of Belize to be consigned to the past. For the past is where it belongs. We say that the time has come to move on – for the sake of certainty, for the sake of justice, but above all for the sake of future peace between the people of Guatemala and the people of Belize.

Back to Menu