1859 Treaty, 1931 Treaty, Historial Consolidation, Acquisitive Prescription, Self Determination, Independence, Estabilished Boundary Has Life Of Its Own.
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