E. Rainbow Willard, How to Get Less Than You Bargain For: Adjudicating the Guatemalabelize Territorial Dispute at the I.c.j

• Citation: Vol. 23 No. 2
• Publication year: 2009

HOW TO GET LESS THAN YOU BARGAIN FOR: ADJUDICATING THE GUATEMALA-BELIZE TERRITORIAL DISPUTE AT THE I.C.J.

INTRODUCTION

On a Thursday afternoon in June of 2006, Emilio Hernandez and his brother wandered deep into the jungle of Guatemala to cut xate leaves.¹

Mostly indigenous Mayans, xateros sell the xate leaves they collect, which eventually end up on the international market and are quite popular with florists in the United States.²While cutting leaves in the thick forest, Emilio and his companion wandered across the "imaginary line" that separates Guatemala from Belize.³Belizean soldiers opened fire on the xateros.⁴The soldiers shot Emilio and took his brother to jail in Belize for crossing the border illegally, a crime in that country.⁵Emilio was returned to the Guatemalan side of the border where he was rushed to a hospital and treated for gunshot wounds.⁶This was not the first time that a seemingly innocent venture somewhere in the liminal space between Guatemala and Belize turned violent.⁷In 2000, members of the Guatemalan military took four Belizean patrolmen from the Belizean side of the border into custody, forcing the longstanding conflict between these two countries into the international spotlight for a brief moment.⁸According to Guatemalan reports, xateros have been shot at and even killed various times when they have crossed over into Belize.⁹Indigenous Mayans living in the area feel that the xate, growing wild in the jungle, should belong to anyone who expends the labor collecting it.¹⁰

More than 250 Guatemalans wander daily onto the Belizean side of the border to collect xate leaves, aggravating a conflict that has its roots deep in the history of these two Central American nations.¹¹

Since its independence from Spain, Guatemala has asserted a territorial claim to what is now the country of Belize.¹²Guatemala's claim has varied from a claim to all of Belizean territory to a claim over what is now approximately the southern half of Belize.¹³Guatemala bases its claim on various legal arguments, including a breached treaty with Great Britain prior to Belize's independence and the notion of inheritance from Spain following Guatemala's independence (uti possidetis juris).¹⁴During approximately the first half of the twentieth century, this territorial dispute was characterized by occasional skirmishes on the border of Belize/Guatemala.¹⁵As noted above, when, in 2000, Guatemalan security forces took a four-man Belizean border patrol into custody, it returned the conflict to international attention.¹⁶After the return of the four Belizean officers, the Organization of American States ("OAS") started a facilitation process between the two countries¹⁷and made a detailed proposal to end the dispute.¹⁸While international attention and OAS involvement have quieted the conflict for the moment, Guatemala maintains its claim to Belizean territory. Belize states that due to Guatemala's claim, it is forced to divert important resources from development to focus on this dispute.¹⁹Belize is wary of ignoring Guatemala's claim because it is a small nation of 250,000 with security forces of only 800, while Guatemala's military forces alone are about 40,000 strong.²⁰Belize has also accused Guatemala of allowing Guatemalan citizens to settle on the Belizean side of the border.²¹

The Guatemalan government has renewed its push for an International Court of Justice ("ICJ") resolution to the conflict since it formally rejected the OAS proposals in 2002.²²In January of 2008, a new Belizean Prime Minister was elected on the platform of sending the border dispute to the ICJ.²³The two governments signed a pact in December of 2008 to send the dispute to the ICJ.²⁴However, both countries' laws require this step to be approved by a popular vote.²⁵While Guatemalan popular opinion remains strongly in favor of the ICJ resolution, many Belizeans are harshly opposed to leaving their fate in the hands of strangers.²⁶

In Part I, this Comment explores the historical causes of the conflict and analyzes the current social situations in both countries that have led to an intensification of hostility in the border area. Part II discusses the legal bases of each party's claim to the territory. Part III examines the history of negotiations between the parties and analyzes the many failures to reach a resolution. Part IV explores possible resolutions to the conflict. Part V examines problems with the possible resolutions and discusses the ramifications of an ICJ adjudication for both parties. Part V further analyzes the reasons why Guatemala-a sure loser at the ICJ-is pushing for such a resolution, while Belize-a sure winner at the ICJ-is opposed to this resolution to the conflict. Part VI concludes by demonstrating how an ICJ adjudication will fail to serve the interests of either party. This Comment advocates a negotiated solution and illustrates what both countries stand to lose by insisting on an ICJ resolution to the conflict.

I. HISTORY OF THE CONFLICT

A. Before Belize's Independence

Prior to Spanish conquest, the areas that now make up modern-day Belize and Guatemala were populated by the Maya.²⁷In the early Spanish colonial period, this area, as well as regions further south in Central America and north into Chiapas, made up the Kingdom of Guatemala,²⁸also known as the Captaincy-General of Guatemala.²⁹This "Kingdom" included at least the southern half of Belize.³⁰During the late seventeenth and early eighteenth centuries, British buccaneers and woodcutters began to settle on the Caribbean coast.³¹The Spanish built large forts along the coast in an attempt to keep the British out, but for the most part these efforts failed.³²The competition for

Belize's coast, and the mahogany and dyewoods there, continued into the eighteenth-century, with British woodcutters occasionally being ousted and repeatedly returning.³³

Great Britain and Spain signed a series of treaties during this period to limit British activity in the area and maintain Spain's sovereign rights.³⁴When Mexico and the Central American states gained independence from Spain, the Captaincy-General of Yucatan, north of the area of British activity, became part of what is modern-day Mexico.³⁵In 1826, Mexico recognized Great Britain's rights to the land now known as Belize.³⁶The Captaincy-General of Guatemala, to the south, became the Central American Federation from which Guatemala eventually seceded.³⁷Neither the Federation-nor Guatemala- recognized Great Britain's rights to Belize.³⁸In 1859, Great Britain and Guatemala signed a treaty in an attempt to resolve this conflict.³⁹However, disagreement over terms of the treaty continued, and the dispute over Belize was left unresolved.⁴⁰In 1931, Great Britain and Guatemala again addressed the problem in an Exchange of Notes, but disagreement over the meaning of terms in this treaty and absence of pressure to resolve the conflict again left the fate of Belize up in the air.⁴¹

In 1945, Guatemala adopted a new Constitution that asserted its claim to the full territory of Belize.⁴²Great Britain proposed that the dispute be submitted to the ICJ, but the parties could not agree on how the dispute should be decided.⁴³In 1947, Great Britain deployed infantry from Jamaica to Belize and sent a warship to the Bay of Honduras.⁴⁴While the Guatemalans did not respond with force, the Guatemalan claim was regularly reasserted, and the British continued to keep a military presence in Belize.⁴⁵

The conflict continued to be an issue between Great Britain and Guatemala and again came to a head when Great Britain began to consider a plan for Belize's self-governance.⁴⁶Armed Guatemalan civilians entered into Belize, and when the plan for self-governance was adopted, Guatemala reduced relations with Great Britain to the consular level.⁴⁷A United States-led mediation, resulting in a 1968 Model Treaty, also failed to reconcile the parties.⁴⁸The U.S. plan was viewed as encouraging Guatemala's assertion of a claim to the Belizean territory.⁴⁹In the early 1970s, Guatemala planned to attack Belize.⁵⁰Guatemala joined forces with El Salvador at this time, promising El Salvador to settle Salvadoran peasants in what would become

Guatemalan territory (once annexed from Belize).⁵¹The British responded by reinforcing the military presence in Belize.⁵²

During this decade, it became more obvious that Great Britain would have to grant Belize its independence.⁵³As part of an international push for decolonization, the U.N. pressured Great Britain to give Belize independence.⁵⁴However, Great Britain was loath to decolonize Belize with the Guatemalan claim still open.⁵⁵As Great Britain saw it, granting Belize its independence could have two effects.⁵⁶If Great Britain pulled out of Belize, this action would open up the country to the possibility of a Guatemalan occupation.⁵⁷Otherwise, post-independence, Great Britain would be forced to continue its military protection of Belize.⁵⁸Despite a push for negotiation in the 1970s, when Belize gained its independence in 1981, Guatemala still asserted a claim to the entire country.⁵⁹Belize was admitted to the U.N. four days after its independence with a near-unanimous General Assembly vote.⁶⁰

Only Guatemala voted not to admit Belize.⁶¹At this time, Guatemala also broke off consular relations with Great Britain and closed the border with Belize.⁶²

B. After Belize's Independence

As a result of the continued Guatemalan claim to the Belizean territory, Great Britain left its military garrison intact in Belize for more than a decade after Belize gained independence.⁶³Guatemala continued to deny Belize's existence and independence until 1986, when Guatemala indicated that it was ready to negotiate directly with Belize-at least a de facto recognition of

Belize as a separate and independent nation.⁶⁴In 1988, a Permanent Joint

Commission was formed between the two nations with an eye toward resolving the dispute.⁶⁵In 1991, the Guatemalan President...