INTRODUCTION

The Republic of Guatemala relies on the doctrine of uti possidetis juris in support of its unfounded Claim to more than half the territory of Belize. Such reliance is, with respect, misconceived.

1. The Doctrine of Uti Possidetis

In international law, the doctrine of uti possidetis had its genesis in Latin America in the second decade of the 19th century. The doctrine held that states emerging from Spanish decolonisation inherited the colonial administrative borders that existed at the time of independence.

The application of the doctrine in Latin America served two purposes: i) to ensure that there was no terra nullius in Spanish America when the Empire crumbled and, ii) to reduce conflicts over borders between the newly independent states.

The Doctrine had no application to colonial territories that were not a part of the Spanish administrative departments or areas that were subject to rule by other colonial powers.

As the doctrine was applied by the Central American Republics inter se, a fundamental distinction was drawn between uti possidetis juris and uti possidetis de facto. The former refers to the legal right to possession of territory based on what Spanish colonial documents claimed as territory. The latter relates to the legal right to possession based on the territory that was actually possessed by Spain at the time of independence of the new state. This means such possession as derived from the actual exercise of Spanish administrative control in the particular area.

In the 20th century, a variation of the doctrine was introduced outside of the Americas, principally in Africa. In 1964, by a Resolution of the Organisation of African Unity, the basic principle of stability of borders that underpins the doctrine of uti possidetis was declared to be applicable to the African continent. At this time, however, most of Africa was already independent. This resolution was therefore, principally, a political statement directed at states where disputes were brewing. It was a political directive to settle differences by treaty based on pre-existing borders rather than by resorting to force. The doctrine is now regarded as an established principle of customary international law.

Uti possidetis Universalis is a hybrid. It has evolved as a part of the law of state succession in order to address boundary disputes between states of the same colonial power as well as between states of different colonial powers. It is different from uti possidetis Latin America which sought to preserve the administrative boundaries of one colonial power.

2. Guatemala’s contention

In 1821, the Captaincy-General of Guatemala proclaimed its independence from Spain. In 1823, the United Provinces of Central America – a federation - was declared. This Federation dissolved in 1838/9 and the five Central American Republics emerged as separate independent states. Their international borders were, in the main, those that existed as internal administrative divisions of the Captaincy-General of Guatemala.

Guatemala contends that the area between the Sibun River and the Sarstoon River formed a part of the Spanish Empire. They argue that the United Provinces of Central America exercised jurisdiction over the area as a successor state of Spain, and that therefore Guatemala succeeds to this part of Belize. According to their written submission dated 31st March 2001, and their Reply of the 15th instant, their Claim is based on the doctrine of uti possidetis juris.

However, before the Guatemala – Honduras Special Boundary Tribunal, the Republic of Guatemala, “with conviction and energy”, argued for uti possidetis de facto. I quote from the award:

" Guatemala contends that by reference to the ‘uti possidetis of 1821’ the Parties meant to have the line drawn ‘ in conformity with a fact rather than a theory, the fact being what the Spanish Monarch had himself laid down, or permitted, or acquiesced in, or tolerated, as between Province and Province, in 1821’ and that the test of that line should be ‘the sheer factual situation’ as it was at the time.”

In this new century Guatemala, it seems, has had an epiphany! Conveniently, they now argue the complete opposite: that uti possidetis is to be understood to mean uti possidetis juris.

By framing their argument in this fashion, Guatemala abandons uti possidetis de facto because they cannot sustain a claim relying on possession arising from the exercise of administrative control over the southern half of Belize. Let us discover what was the ‘sheer factual situation as it was at the time’. We look to the words of the illustrious Canciller of the Republic of Guatemala Pedro de Aycinena, in his report to the Chamber of Deputies:

"On examining this situation, we could not fail to recognise that the right we constantly alleged as being presumptive heirs of Spain’s sovereignty, was considerably weakend due to our lack of means to take possession of these territories that had been deserted and abandoned by Spain herself and subsequently by us. Furthermore, such a right, in the face of actual possession and practical exercise of sovereignty, regardless of the means by which they were acquired, could lead to a prolonged discussion and although supported with some foundation by us, did not offer any reasonable hope for success.”

Britain assumed sovereignty over British Honduras by 1817, if not before. At that time, the Captaincy-General of Guatemala was still a part of the Spanish Empire. Therefore, the doctrine of uti possidetis was completely unknown in international law! It follows ineluctably that the United Provinces of Central America in 1821, or Guatemala in 1839 could not have inherited from Spain that which Spain did not have.

As between England and Spain the doctrine of uti possidetis juris is entirely inapplicable for resolving title to British Honduras, now Belize.

B. The doctrine of uti possidetis juris is confined to succession of states of the Spanish Empire and therefore inapplicable as between Spain/Guatemala and England

But we go further. Assuming for the purposes of argument only that the Doctrine of uti possidetis juris was relevant, and we reject that entirely, it would be relevant only as between former Spanish colonial departments.

The position, as it applied between Guatemala and Honduras, was quite succinctly described in the Opinion of the Special Arbitral Tribunal in Guatemala v. Honduras of 1933:

The expression uti possidetis undoubtedly refers to possession. It makes possession the test. In determining in what sense the Parties referred to possession, we must have regard to their situation at the moment the colonial regime was terminated. They were not in the position of warring States terminating hostilities by accepting the status of territory on the basis of conquest. Nor had they derived rights from different sovereigns. The territory of each party had belonged to the Crown of Spain. The ownership of the Spanish monarch had been absolute. In fact and law, the Spanish monarch had been in possession of all the territory of each. Prior to independence, each unit being simply a unit of administration in all respects subject to the Spanish King, there was no possession in fact or law, in a political sense, independent of his possession. The only possession of either colonial entity before independence was such as could be ascribed to it by virtue of the administrative authority it enjoyed. The concept of “uti possidetis of 1821” thus necessarily refers to an administrative control that rested on the will of the Spanish Crown.”

This quotation establishes the following in relation to uti possidetis, as it existed in 1821:

i. The territory of each party must have belonged to the Crown of Spain in which ownership of the Spanish monarch had been absolute. In fact and law, the Spanish Monarch must have been in possession of all the territory of each.

ii. Prior to independence, each unit must have been simply a unit of administration in all respects subject to the Spanish King.

In the celebrated case of Libya v. Chad the ICJ makes it patently clear at para 122 that:

“It must however be pointed out that the application of this principle is not without its difficulties on the ground, especially where the administrative boundaries are not clear, but at least it can be said that it gave a definitive starting point. While there is no doubt that, at least, in principle the doctrine of uti possidetis juris is applicable and applied among all the former Spanish colonies, one cannot say so regarding non-former Spanish territories.” [Emphasis added]

Distinguished Facilitators, the Republic of Guatemala is attempting to turn back the hands of the clock. It is seeking in 2001, to retroactively apply uti possidetis juris to a territory that was by 1817 no longer under Spanish sway. In the Burkina Faso v. Mali case, the ICJ ruled against this:

"By becoming an independent state, a new State acquires sovereignty with the territorial base and boundaries left to it by the colonial power. This is part of the ordinary operation of the machine of State succession. International law – and consequently the principle of uti possidetis – applies to the new State (as a State) not with retroactive effect, but immediately and from that moment onwards. It applies to the State as it is, i.e., to the “photograph” of the territorial situation then existing. The principle of uti possidetis freezes the territorial title; it stops the clock, but does not put back the hands.”

C. The Treaties of 1859 and 1931 Override Uti Possidetis

The Republic of Guatemala does not deny the boundary treaties of 1859 and 1931 between itself and the United Kingdom. Once concluded, these treaties took legal effect and had legal consequences. As was pointed out most eloquently by Edward Fitzgerald QC, these two Treaties established the border between the two countries, which border has a life of its own.

International law has developed a definitive approach to resolving boundary/territorial disputes where the disputants rely on treaties on the one hand, and uti possidetis on the other. The principle that has emerged is that where a court finds that there is a boundary established by agreement or other definitive instrument then uti possidetis is to be disregarded.

I pray in aid, and commend to your goodselves, the decision in Libya. Chad, and specifically the following extracts from paragraphs 75 and 76 thereof:

"It will be evident from the preceding discussion that the dispute before the Court, whether described as a territorial dispute or a boundary dispute, is conclusively determined by a Treaty to which Libya is an original party and Chad a party in succession to France. The Court’s conclusion that the Treaty contains an agreed boundary renders it unnecessary to consider the history of the ‘Borderlands’ claimed by Libya on the basis of title inherited from the indigenous people, the Senoussi Order, the Ottoman Empire and Italy. Moreover, in this case it is Libya, an original party to the Treaty rather than a successor State that contests its resolution of the territorial or boundary question. Hence there is no need for the Court to explore matters which have been discussed at length before it such as the principle of uti possidetis…. The 1955 Treaty completely determined the boundary between Libya and Chad.”

I would also rely on the very recent case before the ICJ, viz. Qatar v. Bahrain. This case related to competing cases over a number of islands and certain maritime areas. Both countries were part of the dominion of the United Kingdom. In respect of the Hawar islands, some of the islands in dispute, the Rulers of Qatar and Bahrain were informed in writing on 11th July 1939 that the British government had decided that the Hawar islands belonged to Bahrain I quote from the judgment:

"The parties’ lengthy arguments on the issue of sovereignty over the Hawar islands raised several legal issues: the nature and the validity of the 1939 Decision by Great Britain; the existence of an original title; effectivites; and the applicability of the principle of uti possidetis juris to the present case. The Court will begin by considering the nature and validity of the 1939 British Decision.”

After considering the parties’ arguments on the 1939 Decision, the Court found that the Decision was “binding on the parties.” It then said:

"The conclusion thus reached by the Court on the basis of the British decision of 1939 makes it unnecessary for the Court to rule on the arguments of the Parties based on the existence of an original title, effectivites, and the applicability of the principle of uti possidetis juris to the present case.”

These two cases establish that where there is a binding treaty or other binding ruling [1939 Decision] applicable to a boundary or territorial dispute, the treaty or decision shall prevail and render otiose claims based on uti possidetis.

We therefore rely on the 1859 Boundary Convention signed by Aycinena and the 1931 Exchange of Notes signed by Skinner Klee, which definitively establish the common border between Belize and Guatemala, to submit that the arguments relying on uti possidetis advanced by Guatemala are entirely irrelevant and inapplicable.

We say:

What Aycinena has agreed to, Orellana should accept; what Skinner-Klee has agreed to, Sinner-Klee should accept!

Guatemala’s Insular And Maritime Claim

(i) Insular

The claim of Guatemala to the islands and cayes of Belize, like its claim to southern Belize, is based on uti possidetis juris. Again, they do not offer an iota of proof of occupation or exercise of administrative control over any of the islands of Belize by Spain or Guatemala.

Guatemala denies Belize’s title to the cayes and islands on the allegation that no title can accrue to Belize because the islands were “usurped”. They allege, without proof, that Belize’s occupation is on the basis of force.

The Treaty of 1859 provides “that all the territory to the north and to the east of the line of boundary… belongs to her Britannic Majesty”. There is absolutely no doubt that it was the intention of both Guatemala and Britain that this description included the cayes lying off Belize. In 1857, Stevenson, who was negotiating the boundary treaty with Minister Francisco Martin of Guatemala, wrote to Lord Clarendon setting out the description that he had agreed with Minister Martin. The description specifically included “all the kayes and islets off the mainland.” In the letter to Lord Clarendon, Stevenson explains that after they had agreed the description and terms, he handed over the description to the lawyers in the Foreign Office “to be shaped into articles for a Treaty of boundaries.” He recounts further, that he got back the draft from the lawyers and “have since perused those Articles as they have been prepared; and think that they are quite comprehensive, enough to settle the question of boundary, if acquiesced in by the Minister for Guatemala….” In the event, the Minister for Guatemala acquiesced in this description. We submit that they must have concluded that the legal description as appears in the Treaty was fully reflective of their prior agreement and in compliance with the instructions to the legal draftsman.

Furthermore, if Guatemala is right that the cayes and islands belong to them, then it would mean that Belize would be completely surrounded. Guatemala would envelop Belize on the west, on the south and on the east and Mexico would cap the north. It would be an extraordinary conclusion to draw that the British voluntarily concluded a treaty that doomed Belize to the fate of a landlocked state. Reason militates against such a strained construction.

Our position is that the taking of possession in contradiction to any right held by Spain over the islands and cayes of Belize was the first step in the process of acquisition of title by the British via adverse possession which by passage of time and exercise of authority and acts of occupation crystallized into a firm title.

The argument of Guatemala that both the permissive and the prohibitive language of the treaties of 1783 and 1786 excluded the islands specifically and by implication is rendered ineffectual because any intent of these treaties was overtaken by the uncontroverted fact of British possession for a long period prior to 1850.

In fact, in 1821, the very year of the declaration of independence by the Captaincy-General of Guatemala, the colony’s Superintendent Colonel Arthur received permission from London to construct a lighthouse on the coral atoll of Lighthouse Caye. It was noted in the letter granting permission that similar permission had been earlier given to construct a lighthouse on a different caye: Glovers Reef. In February 1831, permission was sought from the Governor of the territory by a British settler to occupy “Southwest Caye at Glovers Reef”, the previous occupant having “ been lost … some time back”.

In 1834, the map of British Honduras annexed to the memorial dated “Colonial Office 1834” contained the following inscription “ all keys and islets which are situated between the “ Hondo” and the “ Sarstoon” are in actual British occupation and must be comprehended in her treaties.”

In 1851, the Governor indicated his willingness in writing to grant a lease for ten years over the cays in the Glovers Reef Atoll. And in 1858, the Governor granted a lease of “Long Kaye” by way of an Indenture to one Phillip Gill for ten years.

These instances are clear indicators not only of presence, but also of the exercise of sovereignty over the islands and cayes of Belize by both the local and British authorities.

(ii) Maritime

Both Belize and the Republic of Guatemala accept that the delimitation of their respective maritime areas, and that of Honduras, depends on the definitive settlement of the territorial dispute. Having regard to Belize’s sovereignty over its mainland, islands and cayes, we are prepared to enter into appropriate negotiations with Guatemala and Honduras as contemplated by the Articles 15, 74 and 83 of Law of the Sea Convention.

Excellencies, the claim by the Republic of Guatemala harks back to ancient times. It brings to mind a quote from F. Scott Fitzgerald’s The Great Gatsby. I quote:

"So we beat on; boats against the currents;
borne ceaselessly backwards into the past.”

We say to our brothers and sisters across our common border: it is time to turn; it is time to look forward.

In the name of the people of Belize, thank you for your attention.

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