OAS Mediates in Belize-Guatemala Border Dispute
I. Introduction:
On November 8, 2000, the heads of the delegations of Belize and Guatemala signed an agreement to adopt a comprehensive set of "confidence-building measures to avoid incidents between the two countries", according to the press release E-195/00 issued by the Permanent Council of the Organization of the American States (OAS) in Washington, D.C. This agreement was described by the Secretary-General of the OAS, Cesar Gaviria, as a milestone.
The OAS-mediated agreement seeks to resolve by peaceful means and through a specific agenda of measures to be implemented, a territorial differendum that originated two centuries ago between Britain and Spain over their colonial territories in Central America. The dispute has continued, following the independence of Guatemala from Spain in 1839 and Belize from the United Kingdom in 1981, between these two countries. The dispute arises from territorial claims to the areas between the Hondo River (on the boundary with Mexico) and the Sibun River in the area allocated to British Honduras (now Belize) in an 1859 treaty between Great Britain and Guatemala. The treaty set the boundary between Guatemala and British Honduras as follows: "Beginning at the mouth of the River Sarstoon in the Bay of Honduras, and proceeding up the mid-channel thereof to Gracias a Dios Falls; then turning to the right and continuing by a line drawn direct from Gracias a Dios Falls to Garbutt's Falls on the River Belize, and from Garbutt's Falls due north until it strikes the Mexican frontier."1 Guatemala also claims coastal islands, except for Cayo de San Jorge.
The General Assembly of the United Nations urged Guatemala and Belize to find a peaceful solution to their territorial differendum in Resolution 35/20 in 1980. However, the territorial, aerial and maritime dispute between Belize and Guatemala has given rise, in the recent past, to serious incidents between the military forces of the two countries and to bloody confrontations with peasants and indigenous inhabitants, loss of life, destruction of crops in adjacent areas, and the incursion and capture of armed forces personnel. There is a risk that the bilateral dispute could undermine stability in neighboring countries.
At the core of the dispute lies what Guatemala sees as the inability of the United Nations General Assembly in November 1980 to reach a satisfactory solution to Guatemala's unresolved territorial claims against Britain. Guatemala regards such a solution as essential to the continuing validity of its acceptance of Belize's borders upon its declaration of independence from Britain in 1981. Belize contends that its borders have been accepted by previous Guatemalan governments (i.e. Cerezo and Serrano), by the international community, by the United Nations and the OAS.
Guatemala's point of contention relates inter alia to territories allegedly usurped by Britain from the Sibun to the Sarstoon rivers. This alleged 'usurpation' has preempted Guatemala from gaining access to the Atlantic coast, thus hampering its future economic development and its access to the high seas through the territorial sea of Belize and the use of Belize's port facilities. However, Belize's Prime Minister, H.E. Said Musa, has publicly indicated the willingness of his country to assist Guatemala in gaining access to the Atlantic in exchange for access to the Pacific by Belize.
II. The Parties' Positions:
A. Belize:
Belize's position was laid out in a Note Verbale from the Prime Minister and Minister of Foreign Affairs of Belize to the Minister of Foreign Affairs of Guatemala dated June 8th, 2000. In essence, Belize claimed that, since its independence from Britain in 1981, it has succeeded to title over the disputed areas on the grounds that Britain gained title through prescriptive acquisition over any rights Guatemala or Spain could have held before the Treaty of 1859 between Britain and Guatemala. Belize argued that Britain and Guatemala jointly delimited their territorial boundary in 1861 and 1863 and that Belize, as successor to Britain, accepted the established border. In Belize's view, legal title to the disputed territories originated in the Treaties of 1763, 1783 and 1786 between Spain and Britain, whereby Spain granted usufructuary rights to British settlers from the Hondo to the Sibun rivers. Belize also asserts that Britain had effectively occupied the area from the River Sibun to the River Sarstoon. By 1821, Spain was ousted from the Americas. While Spain continued to claim sovereignty over the territories throughout the 1890s, British settlers had not only repulsed Spanish attacks in the famous "battle of St. George" in 1798, but had proceeded to occupy the territories under usufruct as well as other territories, effectively keeping a continued presence and thus permitting the British government to establish administrative control, to implement a legal and legislative system and to exercise continuous jurisdiction over the settlement.
Belize further argues that Spain acquiesced in British occupation and therefore title was gained through prescriptive acquisition of the territories in dispute. Belize objects to Guatemala's claim that the 1859 Treaty could be terminated because of Britain's failure to comply with Art. VII. By virtue of this article, Britain and Guatemala undertook to use their best efforts to establish communication by cart road and rivers from Guatemala City to a point on the coast near the Belize settlement in order to increase the commerce of Britain and the prosperity of Guatemala. It is Belize's view that Britain's failure to provide maritime access to Guatemala is not a sufficient ground on which Guatemala could rely to terminate the Treaty. Belize also rejects claims to fifty percent of Belize's territory made by Guatemala in 1994 at the withdrawal of a British garrison from Belize, rejects Guatemalan grants for oil exploration in the maritime areas claimed by Belize, and argues that the conflict has been at all times political in nature.
As a result of its views, Belize did not consent to the jurisdiction of the International Court of Justice and sought, instead, a negotiated settlement through the Permanent Council of the Organization of American States.
B. Guatemala:
Guatemala's claim relies on an extensive, historical and quite detailed legal analysis of the vicissitudes of its title over the claimed territories. It therefore has sought to induce Belize to accept arbitration or the compulsory jurisdiction of the ICJ. Guatemala's position was laid out in Note Verbale dated July 14th, 2000 from the Minister of Foreign Affairs of Guatemala to the Minister of Foreign Affairs of Belize.
In Guatemala's view, Spain had granted territories to Britain in usufruct, but Britain proceeded to usurp other territories with rich coastal forests, which British settlers logged and then abandoned. Therefore, Britain could not properly claim effective occupation. At the time of its independence from Spain in 1839, Guatemala contends it had the animus dominium and therefore sovereignty over the territories from Spanish recognition and cession.
Guatemala claims to have exercised sovereignty at all times, granting concessions to a British company to develop the Atlantic coastline and the port of Santo Tomas de Castilla, and never surrendered its rights, which it reserved in the Treaty of Friendship, Commerce and Navigation with Britain of 1847. Guatemala further argues that Britain had conflicting international obligations arising from its Clayton-Bulwer Treaty of 18502 with the US, whereby, in Guatemala's view, both imperial powers undertook to abstain from further colonizing, usurping and occupying any parts of Central America as well as agreeing to the construction and management of a canal between the Atlantic and the Pacific. This canal was never constructed. Britain made a declaration when it ratified the Treaty to the effect that it did not apply to British Honduras. Although John Clayton, representing the United States, acknowledged that British Honduras was not embraced in the Treaty, Guatemala asserts that the US neither accepted nor rejected it. Guatemala contends that the US assumed that this reservation related to the territories under usufruct ceded to Britain by Spain. In this view, the 1859 Treaty between Guatemala and Britain was not one of boundary delimitation but one of territorial cession, which Guatemala argues contradicted Britain's obligations towards the US. In exchange for the cession of Guatemala's territory, Guatemala sought material compensation and access to the sea which it never received and, consequently, in 1884 it denounced the Treaty.
Guatemala rejects Belize's claim that a joint delimitation of borders between Britain and Guatemala had taken place in 1861 and 1863 because Britain suspended it. However, British loggers and settlers occupied the territories and there were bloody incidents. Further negotiations between Guatemala and Britain never resulted in further agreement, for which reason Guatemala continued to insist on the termination of the 1859 Treaty. While Guatemala accepts the right of self-determination of the population of Belize, it argues that such right is subject to the territorial integrity of Guatemala and that the principle of uti possidetis juris preempts the existence of any terra nullius within a state's sovereign territory. It appears that Guatemala's position amounts to a wholesale claim over Belize's territory, from the Hondo to the Sarstoon rivers and many islands off Belize's coastline.
III. The Agreement.
The agreement reached between Belize and Guatemala is of a limited and temporal nature. The agreement is valid until August 31st, 2001. It seeks to create sufficient trust between the parties to prevent or avoid incidents that could undermine the progress towards a solution of the territorial dispute under negotiation. Neither party renounces in whole or in part its sovereignty (terrestrial, aerial or maritime), nor any of its rights over the claimed territories. Neither party will use this agreement against the other and both will respect the principles of humanitarian law whenever those principles may apply to the circumstances.
In terms of legal technique, the agreement constitutes a pactum de contrahendo/pactum de negotiando,3 with the benefit of a rather specific agenda. International law has become familiar with the Roman law notion of the pactum. This concept has been defined as an obligation to reach an agreement or to negotiate with a view to reaching an agreement. This obligation may arise from a treaty and whether the parties are legally bound by the treaty to conclude a further agreement on a specific point will depend on an interpretation of the words used in the treaty. Vague or indeterminate language may indicate that the obligation to negotiate is political rather than legal. If the source of the obligation is clearly established, the pactum may create certain procedural obligations concerning a subsequent agreement. These obligations may need to be fulfilled immediately, or at a later date. In sum, pacta de contrahendo/de negotiando are mechanisms for the postponement of a definitive substantive agreement and for the negotiation of agreements which may or may not eventuate.
Writers differ about the legal obligations arising from each pactum. In a pactum de negotiando the obligation is to negotiate in good faith with a view to concluding an agreement, whereas in a pactum de contrahendo the obligation may be more extensive and may require the parties to reach an actual permanent agreement. The judicial elaboration of pacta has indicated specific duties for the parties.4 The parties are under a duty to negotiate specific details (terms, time, manner of negotiation, etc.), to relinquish previous positions in order to reach agreement, to give meaning to the negotiations by seeking an actual agreement, and to conduct themselves in a manner that indicates good faith. The latter can be assessed through objective criteria, by examining the summary of the negotiations, including diplomatic exchanges, formal conference negotiations, exchange of notes disclosing each party's views and direct negotiations through foreign ministers. Good faith can also be evaluated by examining whether the parties have regard for the procedures, show a willingness to consider promptly adverse proposals or interests, and are diligent in the negotiations. Bad faith may not be presumed, but will need to be proved by the party alleging it and be based on unjustifiably breaking off negotiations, abnormal delays, disregard for agreed procedures or systematic refusal to take into consideration adverse proposals or interests. Conduct characterized by proven bad faith allows the other party to claim discharge from the obligation to negotiate and may also give rise to a right to compensation. However, in a pactum de negotiando there is no obligation to agree to unfavorable conditions.
The OAS-mediated agreement does not contain all the elements necessary for the conclusion of a permanent agreement between Belize and Guatemala, since its nature is limited and temporary, and each party reserves the right to proceed with its claim before another forum. However, its importance lies in setting up precise terms to assist the parties in settling their ongoing dispute.
The agreement contains 13 paragraphs. Paragraph 6 provides that there will be a Line of Adjacency running from south to north from the mark of reference in Gracias a Dios in the south, to the mark of reference in the Garbutt's Falls and, from there, to the mark of reference in Aguas Turbias to the north. This line is not to be construed as a determination by the mediators, nor as a permanent agreement between the parties representing an international border between Belize and Guatemala, so that any claims remain intact. The parties shall work together to clear the area, locate and identify all the relevant marks and human settlements in the disputed area and jointly draw a complete map of the Line of Adjacency, which will be under a special regime set up in paragraph 6. This regime includes measures dealing with existing and new human settlements, census of the population, nationality and personal identification of the inhabitants, illegal settlements and removal of inhabitants, the need to use personnel who speak Maya-Kekchi or Maya-Mopan, respect for the human rights of the inhabitants, measures to prevent the establishment of new settlements not permitted under the agreement, public information campaigns, and the collaboration of the armed or police forces of both countries in the coordination of police and military patrols in the Line of Adjacency. The parties further agree to promote good relations between the area's inhabitants, to facilitate transit of persons, goods and services with minimal restrictions, to hold meetings fostering confidence-building measures and to avoid conflicts in the territorial sea or in the Exclusive Economic Zone of either party or on the high seas, as well as measures to communicate immediately whenever tensions arise and to prevent the escalation of incidents by tempering public statements. Finally, the agreement envisages a joint monitoring of the measures set up and, when necessary, referral of differences to mediators who may request the Secretary General of the OAS to set up a mission to investigate the incident, where appropriate.
IV. Conclusions.
The conflict is fueled by different readings of history and interpretation of the applicable international treaties. Agreement could not be reached in so far as Belize sought a political and Guatemala a legal solution. The limited and temporary nature of the OAS-mediated agreement locks the parties into a pactum de negotiando, but not de contrahendo. Therefore, the dispute may flare again without the parties having reached agreement concerning the methods for settling the dispute.
About the Author:
Montserrat Gorina-Ysern, Ph.D. from the University of New South Wales, Sydney, Australia (1996), teaches international law and legal order at the School of International Service, American University. Formerly she was a law professor at the University of Western Sydney-Nepean, of which she remains an Honorary Fellow. She is a member of the Illustrious College of Attorneys of Barcelona, Spain, since 1981 and the author of a monograph on "Bareboat Charters" (Bosch, 1986) and numerous articles on law of the sea, international law and human rights.
Endnotes:
1.Convention between Great Britain and Guatemala, 30 Apr. 1859, art. I.120 The Consolidated Treaty Series (Clive Parry ed., 1969).
2.Convention between Great Britain and the United States, 19 Apr. 1850, 104 The Consolidated Treaty Series 41 (Clive Parry ed. 1969).
3.Miaja de la Muela, A., Pacta de Contrahendo en Derecho Internacional Publico 21 REVISTA ESPANOLA DE DERECHO INTERNACIONAL 392 (1968); Beyerlin, U., Pactum de Contrahendo, Pactum de Negociando 11 ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW 371.
4.Tacna Arica Arbitration (Chile v. Peru) 1925) 2 U.N.R.I.A.A p. 921.; Railway Traffic Between Lithuania and Poland (1931) P.C.I.J. Series A/B, No. 42 p. 116; Lake Lanoux Arbitration (Spain v. France) (1957) 24 I.L.R (Award p. 123).; German External Debts Arbitration (1974) 47 I.L.R. p. 418.