BELIZE

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP08C01297R000400160011-1
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 56
• Document Creation Date: December 22, 2016
• Document Release Date: September 24, 2012
• Sequence Number: 11
• Publication Date: September 18, 1978
• Content Type: REPORT

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SALVADOR
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*BELIZE 40
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* JOINT OPINION 4:
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* Mr. E. LAUTERPACHT, Q. C. *
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* Dr. D. W. BOWETT, Q. C. *
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Printed by the Government Printery,
Belmopan, Belize, C.A.
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DR. DEREK WILLIAM BOWETT QC, LU).
President of Queens' College, Cambridge since 1969 and Reader in International Law in
the University of Cambridge. Queen's Counsel and Honorary Bencher of the Middle
Temple. Called to the Bar, Middle Temple, 1953.
Judge of the European Nuclear Energy Tribunal. Author of various books and articles
on international law. At one time Legal Officer in the United Nations Secretariat and Ge-
neral Counsel of UNRWA.
Dr. D. W Bowett, Q. C.
Mr. E. Lauterpacht, Q. C.
Elihu Lauterpacht, Q.C. has been a practitioner and teacher of International Law for
over 25 years. Called to the Bar in 1950, he became a Fellow of Trinity College, Cambridge
in 1953. In addition to his teaching at Cambridge, he has lectured at many Universities in
all continents and at the Hague Academy of International Law. As a practitioner he has
specilized in international law problems and has been Counsel for Governments and corpora-
tions in many international cases, including boundary disputes. He became a Queen's Coun-
sel in 1970. For three years (1975-1977) he was the Legal Adviser of the Australian Depart-
ment of Foreign Affairs and Deputy Leader of the Australian delegations to the Law of the
Sea Conference and to the UN General Assembly in those years. Between 1972 and 1975
he was part-time Chairman of the East African Common Market Tribunal and since 1974
has been a member of the Arbitration Panel of the World Bank Center for the Settlement of
Investment Disputes. He is also the Consultant on International Law to the United Na-
tions Institute for Training and Research. He was a member of the Board of Review of the
American Society of International Law and is a consulting member of the Canadian Council
of International Law, as well as being a mumber of other international legal bodies. He is
the Editor of the International Law Reports and has written numerous articles on international
law.
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vUTLINE
I INTRODUCTORY.. .
..
paras.
Summary of our views ..
..
1-9
Note on material .. ..
..
3
Area of the Territory .. .
..
4
Main parts of the Opinion
..
5-7
8-9
II
TITLE TO THE TERRITORY PRIOR TO 1859 ..
10-79
A. Irrelevance of alleged "historic ties"
? ?
10-11
B. Position prior to 1821 ..
? ?
12-23
1. Formal Spanish title ..
. ?
12
2. British activity .. .. .. .. ..
? ?
13
3. Absence of Spanish administration
? ?
14-15
4. Growth of British Administration .. .. ..
? ?
16-20
5. Absence of British claim to title by conquest
? ?
21
6. Conclusion .. .. .. .. .. .. . ? . ?
? ?
22-23
C. Effect of the loss of Spanish control in 1821
? .
24-25
1. Replacement of Spain by Guatemala ..
? ?
24
2. Doctrine of uti possidetis . . . . . . . . ? ?
? ?
25-28
3. Limited relevance of uti possidetis present case
? ?
29-35
4. Administrative history of the Belize area ..
? ?
35-45
(a) area north of the Sibun
? ?
37-44
(b) area south of the Sibun
? ?
45
D. The period 1821-1859 ..
1. British activity in the Territory
2. The conduct of Spain
46-76
47-53
54-61
3. Relations with Mexico ..
62-67
4. Relations with the USA ..
68-76
E. Conclusion
77-79
III
THE 1859 TREATY .
80-180
A. Introductory .. .. .
80-82
B. Material developments .. .. .. .. ? ?
83-101
1. Background to the Treaty .. .. .. .. ..
. ?
83-86
2. The beginnings of negotiations for the 1859 Treaty
? ?
87-91
3. The instructions given to Mr. Wyke .. ..
. ?
92-93
4. The terms of the Treaty .. .. ..
? ?
94-96
5. The interpretation of Mr. Wyke ..
97-99
6. The Guatemalan view .. .. ..
100401
C. Questions relating to the 1859 Treaty .. ..
102480
1. Was the 1859 Treaty a treaty of cession?
103-114
(a) The words of the treaty .. .. ..
104-110
(b) The intention of the Parties .. .. .. .. ..
..
111-112
(c) Irrelevance of the Clayton-Bulwer Treaty argument
? .
113
(d) The role of Article 7 .. .. .. . ? ? ? ? ? ? .
? ?
114
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paras.
2. Is Britain in breach of the 1859 Treaty?
115-157
(a) Developments, 1859-1863 .. .. ..
117-131
Conclusions relating to this period ..
132
(b) The 1863 Convention and after .. .. ..
133-143
(c) Assessment of the question of breach as at 1880
144-153
(d) Position after 1880
154-157
3. What is the legal consequence of any breach by Britain? ..
158-180
(a) Is the breach sufficiently "material"? .. .. .. ..
164-168
(b) Is Guatemala justified in terminating the whole treaty?
169-172
(c) Did Guatemala terminate the Treaty in good time?
173-180
IV,SELF-DETERMINATION ..
181-191
V CONCLUSION .. ..
192
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BELIZE
JOINT OPINION OF MR. E. LAUTERPACHT, Q.C. AND
DR. D. W. BOWETT, Q.C.
I. INTRODUCTORY
I. We have been asked to advise on the question of title to the territory of Belize (for-
merly British Honduras). We do so exclusively in terms of relations between Belize and its
western neighbour, Guatemala. The precise legal position which Guatemala adopts is not
easy to identify?varying as it has from time to time and not always being fully self-consistent.
Consequently, it may be simplest if we set out in positive terms what we understand to be the
principal elements upon which British sovereignty in Belize rests to-day and upon which the
integrity of Belize's eventual title to its territory as an independent State must also largely
stand.
2. We shall, therefore, adopt in the main part of this Opinion primarily a chronological
approach. It is essential, however, to appreciate that at the core of the problem lies a treaty?
the Treaty of 1859 between Britain and Guatemala. From the British point of view, this
treaty was no more than a boundary treaty, settling the limits of an area to which British title
was already established. From the Guatemalan point of view, however, at any rate as de-
veloped subsequent to the Treaty, it was a treaty of cession conditional upon the fulfilment
by Britain of an obligation to participate in the construction of a road. Since?so
Guatemala contends?the condition has not been satisfied, the Treaty lapses, the basis of
British sovereignty over Belize disappears and the territory must once again be seen
as Guatemalan. We find ourselves in disagreement with virtually every element in the
Guatemalan case (as we understand it).
3. Summary of our views. It may be helpful if we preface the principal part of this
opinion with a summary statement of our views.
(i) The basic reliance of Guatemala upon the doctrine of uti possidetis is unsound. As
a departure from the rules of international law generally applicable to the determination of
title to territory, the concept of uti possidetis can operate only between those successor States
of Spain in Latin-America which have agreed to accept its operation. The concept cannot be
invoked for the determination of boundary disputes between a State which is a successor to
Spain and one which is not.
(ii) Even if the doctrine were applicable, there is clear evidence that during the period
of Spanish administration the northern part of the Territory was subject to the jurisdiction
of the former Spanish provincial authorities of Yucatan (now in Mexico) and not of those
who controlled the area now in Guatemala. As regards the southern part, while there is little
evidence of administration by Yucatan, there is no evidence of administration by the province
which became Guatemala.
(ill) Consequently, the title of Spain to the Territory, which undoubtedly existed before
the beginning of the 19th century, did not pass to Guatemala. Nor was it retained by Spain
for long after the rebellion of her Central American colonies in 1821. Instead, British ad-
ministration of the Territory ripened into full sovereignty over the area by virtue of the
dereliction of Spanish title from 1821 onwards leading to a vacuum which was filled by British
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L.
presence. Alternatively, British presence in the area, giving rise to no opposition from Spain,
can be seen as the basis of a prescriptive acquisition of title by Britain. On either footing,
British title to the Territory was effectively established by 1859.
(iv) In these circumstances, the 1859 Treaty between Britain and Guatemala cannot
bear the construction which Guatemala seeks to put on it, namely, that it was a treaty of
cession of the Territory by Guatemala to Britain conditional upon the use of best efforts to
establish a communication route. Instead, the Treaty must be read in conformity with its
wording, which indicates that it is a treaty for the settlement of the boundary be-
tween Guatemala and what was at that time already British territory.
(v) The fact that the terms of Article 7 of the 1859 Treaty have not been implemented
?though arguably amounting to a breach by Britain of the Treaty?is in any event not a
circumstance which supports the claim by Guatemala to regard the Treaty as at an end.
(vi) However, even if the operation of the Treaty were terminated, this could do no
more than reconstitute the status quo ante which, as already stated, was one of British title to
the Territory.
(vii) In any event?and especially under these conditions?there is no legal basis for
excluding the operation of the concept of self-determination in accordance with standards
currently applied in the international community, with consequences entirely adverse to the
claim of Guatemala.
Note on the material used in the preparation of this Opinion.
4. We should explain that in the preparation of this Opinion we have made use only
of materials in the public domain. These have included the White Book prepared by the
Government of Guatemala, various histories of British Honduras and British official docu-
ments falling within the "open" period, i.e. up to 1948. We have not, however, been able to
go over the whole diplomatic history of British Honduras from original papers and in a num-
ber of important respects we have relied upon the works, and accepted the conclusions, of
historians who have made a special study of the problem.
The area of the Territory.
5. Before turning to the substantive part of the Opinion, however, it is important to be
precise about the area with which the Opinion is concerned and which we frequently simply
call "the Territory".
6. The present territory of Belize is the same as that of British Honduras. The essential
elements of the boundaries of the Territory are (in approximate terms) that, in the north,
they coincide with the Hondo River, in the south with the Sarstoon River. On west the
boundary with Guatemala runs approximately north-south along the meridian of longitude
89? 9" west. In addition, the territory includes a number of offshore islands and bays.
7. The territory has not always had these dimensions; and one of the facts to be ob-
served is that British settlement in this area expanded in the 18th and early 19th centuries
southwards from the Belize and Sibun rivers to the Sarstoon river.
Main parts of the Opinion
8. The legal claim of Guatemala raises the following three main categories of issues;
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3.
(1) Was Guatemala sovereign over the Territory or any part of it immediately before the
1859 Treaty? If it was not, then there is no basis for its present claim, even if the 1859 Treaty
had never been concluded or, having been concluded, was or became completely void.
(2) But let it be assumed that there is some basis on which the 1859 Treaty is an operative
link in the chain of British title to Belize, what is the effect of the Treaty?
(3) What is the role of the principle of self-determination?
9. Each of these issues raises further sub-issues. At this stage, however, it is sufficient
to indicate that we shall divide our Opinion into three principal parts corresponding with
these three main sets of issues.
H. TITLE TO THE TERRITORY PRIOR TO 1859
A. Irrelevance of alleged "historic ties"
10. In passing, it is necessary to advert to the statement by the Government of
Guatemala that "the Territory of Belize is an integral part of Guatemala, bearing in mind
that their "historic ties" go back to times before Columbus when Guatemala and Belize
were part of the ancient Maya Empire" and that these ties "continue to exist to-day in spite
of the territorial usurpation of the last century".1
11. Looking at the question exclusively from the legal point of view, we are bound to
point out that a statement of this nature can have no legal relevance to the question. Ques-
tions of sovereignty are determined?as will be seen?either by the conduct of States in rela-
tion to the disputed territory or by acts of self-determination. The historic ties of the in-
habitants of a territory, whatever the nature or extent of these ties may be, have relevance
only on the political plane.
B. The position prior to 1821.
1. Formal Spanish title.
12. Prior to 1821 there is no doubt that formal title to the Territory was vested in
Spain. The date 1821 is significant because in that year the Spanish colonies in Central and
South America overthrew the Spanish colonial regime, thus bringing to an end Spanish so-
vereignty in those areas over which new States effectively acquired possession and asserted
their own sovereignty. The subsequent devolution of Spanish tide is a matter to which we
shall turn presently. For the moment our concern is to indentify what happened in the Ter-
ritory during the period of Spanish sovereignty.
2. British activity.
13. British settlement in the Territory commenced in the 17th century. In 1763, under
the Treaty of Paris, Spain conceded to British Subjects the right to cut logwood in the area,
but without specifying precisely the geographical limits of the right. These rights were con-
firmed in the Treaty of Versailles of 1783 and were made more precise in Article VI which
defined the area to which they applied as "le district qui se trouve compris entre les revieres
1. See statement by the Minister for Foreign Affairs of Guatemala at the 30th Session of the General
Assembly, 1975, G.A.O.R., Plenary Mtgs., 2372nd mtg.
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4.
Wallis, ou Belize, et Rio Hondo " The Treaty of London in 1786 extended the area
southwards to the line of the River Sibun. The rights thus granted to British subjects were
merely usufructuary rights and involved no cession of territory.
3. Absence of Spanish administration
14. At the same time, it must be emphasized that the Spanish claim to title in the area
now comprised in the territory was not backed by any significant display of administrative
power. There was never any Spanish settlement in the area. As one historian puts it:
"The land which is now called Belize was never occupied by Spain, nor was
there a clear boundary between the territory under the jurisdication of the
Captain-General of Yucatan and that under the Governor of Guatemala. It
was generally believed that at least the area between the Hondo River and the
Sibun came under the authority of Yucatan. Certainly it was from Yucatan,
and not from Guatemala, that Commissioners were appointed to inspect the
settlement in accordance with the terms of the Anglo-Spanish Treaties " 1
15. Indeed, Spanish activity seems to have been largely confined to these visits from
the inspectors designed to ensure that the British settlements were being confined to the areas
specified in the treaties. The last such visit seems to have occurred in 1796. Spain did, how-
ever, protest against the construction of three forts by the settlers as late as 1816. 2
4. Growth of British administration
16. On the other hand, it is evident that there was a steady?though slow?develop-
ment of British administration in the area.
17. In 1765 the mission of Admiral Burnaby to the territory reported a "state of anar-
chy and confusion" and Burnaby promulgated certain minimum laws, the so-called "Burnaby
Code", which were designed to remedy this situation. The laws were to be administered by
the local magistrates, an elected body who had been so elected annually by the settlers as
early as 1738. The settlers had a rudimentary legislature in the form of the Public Meeting,
and in 1784 after the settlers had returned to the territory, 3 they both confirmed the
Burnaby Code and added new laws. The Public Meeting continued as a legislature until it
was replaced by a Legislative Assembly in 1854.
18. The involvement of the British Crown in the rudimentary governmental adminis-
tration began with the appointment by the Secretary of State for the Colonies of a Superin-
tendent in 1784, an official who acted under the authority of the Governor of Jamaica. It
was the Superintendent who in 1790 drew up a scheme of governmental administration for
the territory, a scheme approved by the Law Officers of the Crown. The Superintendent was
1. Dobson, A History of Belize (1973), p. 185. Burdon, Archives of British Honduras (1931), Vol. I,
p, 9, supports the statement that Spain never occupied the territory, but points out that Spain did
not regard her title as based on occupation.
2. Dobson, op. cit., p. 81.
3. During the War with Spain in 1779 the British settlers were driven out of Belize and withdrew to
the Mosquito coast further south. They returned to Belize after the peace concluded by the Treaty
of Versailles in 1733. See C. H. Grant, The Making of Modern Belize (1976), pp. 30-41.
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5.
not, however, a Colonial Governor, and his instructions were different from the Com-
mission issued to a Colonial Governor. This followed, of course, from the fact that the ter-
ritory was not regarded as a Crown Colony, but rather as a British settlement in territory
under Spanish sovereignty. As described in the British Act of 1817, for the more effectual
Punishment of Murder and Manslaughter committed in places not within His Majesty's
Dominions, Belize was
" a settlement, for certain purposes, in the possession and under the protec-
tion of His Majesty, but not within the territory and dominion of His
Majesty." I
The Superintendent certainly issued Proclamations, and used the locally-elected Magistracy
as a form of Executive Council, 2 for the settlements could scarcely function in a govern-
mental "void". Indeed, the British Parliament in Westminister again legislated directly for
the territory when in 1820 it enacted a law regulating the construction of vessels in the British
Settlement in Honduras.3
19. Land grants, conferring title to land, appear to have been made as early as 1807
by the Superintendent, and this authority to grant title within the treaty limits was confirmed
by Act of 28 October 1817.4 Indeed, the Judicial Committee of the Privy Council was later
to hold that by 1817 the Crown had acquired territorial sovereignty.5
20. The actual extent of the wood-cutting settlements went beyond the treaty limits,
and this was reported by successive Superintendents. By 1802 the settlements were down
to the Stann Creek and Deep River, by 1816 down to the Moho River, and by 1825 Superin-
tendent Codd's report to London enclosed a map showing occupation as far south as the
River Sarstoon. 6 The land occupied showed no evidence of any administration by Spain:
it was virgin land, inhabited by few Indians, and the Superintendent's attempts to confine the
settlements within the treaty limits proved quite ineffectual. The Honduras Almanack of
1826 stated the occupation of the coast down to the Sarstoon as a fact. 7
5. Absence of British claim to title by conquest
21. Despite occasional reference to the possibility that the Battle of St. George's Cay
In 1798,8 during the War between Great Britain and Spain of 1797-1802, might form the basis
for a British claim to title
I. 57 Geo. III, Cap. 53.
2. A concept familiar enough in England where the lay magistracy, the Justices of the Peace, through-
out the eighteenth and early nineteenth centuries had wide administrative powers in addition to
their judicial functions.
3. I Geo, IV, Cap. 1X, s. V of which described the territory as "the British Settlements at Honduras
in the Province of Yucatan".
4. Humphreys, The Diplomatic History of British Honduras (i961), p.- 14.
5. A.G. for British Honduras v, Bristowc (1880) 6 A.C. 143. The Judicial Committee was aware that
formal annexation did not take place until 12 May 1862.
6. Humphreys, op. cit., pp. 15-16.
7. Ibid., p. 18.
8. This "battle" involved the repelling of a Spanish attack by sea on the English settlement in Belize.
Itis desci Med by Dobson, A History ofBelize (1973), 75-78 and Mendoza, Britian and Her Treaties
on Belize (1947), pp. 63-64.
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6.
by conquesel Such a claim has never been seriously pursued. The effective answer to such a
claim is the provision in the Treaty of Amiens of 1802 for the mutual restoration of captured
territories. This clearly serves to nullify any possibility of title by right of conquest.2 The
position is not altered by virtue of the fact that in 1835, when Britain formally requested from
Spain the transfer of sovereignty over the territory, it did so by referring to conquest as the
basis of British title from the Hondo down to the Sarstoon.3
6. Conclusion regarding the period before 1821.
22. The position in 1821 was, therefore, a curious one: Spain was sovereign in terms
of legal title, but the British Crown was exercising all the powers normally associated with the
exercise of sovereignty, a sort of de facto sovereign over the territory.
23. In this connection it is necessary to emphasize that the fact that Belize could be
described in the Preamble to the Act of 1817 (see para. 19 above) as a settlement "not within
the territory and dominion of His Majesty" is not conclusive of the position in international
law distinguishes clearly between areas which are territories or dominions of the Crown for
purposes of English law and "protectorates" which are not. But the distinction does not
imply that the areas thus regarded as not being part of British dominions were, for purposes
of international law, to be regarded as under the sovereignty of anyone else.r
C. The effect of the loss of Spanish control in South America in 1821
1. Replacement of Spanish by Guatemala
24. On 15 September 1821 the Kingdom or Captaincy-General of Guatemala?which
consisted of several Provinces within the Spanish administration of Central America?de-
clared its independence of Spain.
In the same year, the Province of Yucatan4?which further to the north, proclaimed its in-
dependence separately as "Mexico". Until it broke up in 1839 the Kingdom of Guatemala
included what are now the independent States of El Salvador, Honduras, Nicaragua, Costa
Rica and Guatemala, under the collective name of the Central American Federation. After
1839 what is now Guatemala was limited to those parts of the former kingdom or Captaincy.
General which prior to 1821 had formed the Province of Guatemala.
1. See, for example, a Statement by the representative of Guatemala in the Fourth Committee of the
General Assembly, G.A.O.R., 20th Session, Fourth Committee, 2162nd mtg., para. 77 See also
Bloomfield, The British Honduras?Guatemala Dispute (1953), at p. 11. A similar claim was made
by H.M. Government in correspondence with the U.S. Government in 1850-1854, summarised in
British Digest of Internaitonal Law, Vol. 2 pp. 644-647. The Law Officers of the Crown in 1882
continued to speak of the Crown's sovereignty over British Honduras as "acquired by conquest"
see Further Correspondence respecting the Construction of a Canal across the Isthums of Pnama,
Part II, 1881-82 (Conf. 4769, No. 95).
2. Article 3 provided that Britin should "restitue ala Republique Francaise eta ses allies toute les
possessions et colonies qui leur appartenaient respectivernent, et qui ont ete occupees ou con-
guises par les forces britanniques dans le cours de la guerre, a l' exception de ". The named
exceptions were Holy Island, Ceylon but not British Honduras. For text see 56 Consolidated
Treaty Series (ed. Parry), p. 291. Moreover, in her 1826 Treaty with Mexico, Great Britain pre-
served the rights of British subjects under the 1786 Treaty with Spain. This is scarcely consistent
with view that Great Britain had become sovereign by conquest in 1798.
3. See F.O. 72/441.
4. Tho history of these events is briefly described in the Arbitral Award on Honduras Borders
Guatemala/Honduras, 23 January 1933, 2 UNRIAA, 1325; also in Dobson, op. cit., 181-183 or
Bloomfield, The British Honduras?Guatemala Dispute (1953), p. 13.
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7.
2. The doctrine of uti possidetis
25. The present claim of Guatemala to Belize rests upon the invocation by Guatemala
of the concept of uti possidetis. An authoritative statement of the purpose and justification
of the concept is to be found in the Award between Colombia and Venezuela in 1922 by the
Swiss Federal Council:
"When the Spanish colonies of Central and South America proclaimed their
independence in the second decade of the nineteenth century, they adopted a
principle of consituitional and international law to which they gave the name
of uti possidetis juris of 1810 for the purpose of laying down the rule that the
boundaries of the newly established republics should be the frontiers of the
Spanish provinces which they were succeeding. This general principle offered
the advantage of establishing an obsolute rule that in law no territory of the
former Spanish America was without an owner. Although there were many
regions that had not been occupied by the Spanish and many regions that were
unexplored or inhabited by uncivilized natives, these regions were regarded as
belonging in law to the respective republics that had succeeded the Spanish
provinces to which these lands were connected by virtue of old royal decrees
of the Spanish mother country. These territories, not occupied in fact, were
by common agreerrent considered as Leing occupied in law by the new
republics from the very beginning. Encroachments and illtimed efforts at
colonization beyond the frontiers, as well as de facto occupation, became
ineffective and of no legal consequence,"1
26. The utility of adopting the former Spanish administration boundaries is obvious.
It can be seen from the statement above that uti possidetis operated primarily to resolve the
question of sovereignty over the areas not evidently occupied by the authorities of one or
another Province or Captaincy-General of Spain. But where an area was actually occupied
there were only two possibilities: either the occupation conformed to the administrative
boundaries (in the sense that the occupants were subject to that particular administrative
authority) or it did not. If it did, there was no problem. It adhered to the successor State.
If it did not, there then arose the need to determine which of two States was sovereign: one
holding itself out as a successor to the Province which previously had possessed formal ad-
ministrative authority in the area (the de jure approach); the other holding itself out as suc-
cessor to the Province which had in fact performed administrative acts in the area (the de
facto approach).
27. These alternatives were discussed in some detail in a case to which Gustemala
was a party, and involving its south-eastern boundary with Honduras. There Guatemala
invoked the de facto approach and Honduras the de jure approach. In the Award on the
Honduras Borders, 1933, the Special Boundary Tribunal concluded essentially in favour of
the Guatemalan approach, as the following extracts show:
"Guatemala contends that by reference to the 'ad 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
1. 1 UNRIAA 228: the original Award was in French. The English translation given above is taken
from the Judgement of Judge Holguin in the Case Concerning the Arbitral Award mode by the Kin,
of Spain on 23 December 1906 (Honduras v. Nicaragua) I.C.J. Reports, 1960, 226.
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permitted, or acquiesced in, or tolerated, as between Province and Province
(emphasis supplied), in 1821', and that the test of that line would be 'the sheer
factual situation' as it was at that time. Honduras insists that the phrase `uti
possidetis in Article V signifies 'nil possidetis furls', and that a line could not be
considered 'as being juridically based on a uti possidetis de facto'.
"In the Mediation proceedings, the representative of Guatemala referred to
"the improper formula of uti possidetis;' stating that 'This principle in practice
has divided the opinions of publicists, inasmuch as while some maintain that
insolving the boundary questions by the uti possidetis;, they must consider only
the fact of the possession without entering into the question of the title to the
ownership, others think that the application of that formula would compel the
study of titles of both jurisdictions and the granting to the nations, not precisely
what they have possessed, but that which, according to the decrees of the so-
vereign, they had a right to possess. These opinios have been expressed in the
formulas still more improper of uti possidetis furls and uti poswidetis; facto".
The representative of Guatemala then pointed out that as between Guatemala
and Honduras there was 'happily no room even to discuss which one of the
two opinions must prevail', as the Treaty of 1914 had stated the test (in the
provision above mentioned) 'with all possible clearness' and that by these stipu-
lations 'the so-called pi inciple of uti possidetis furls acquired binding force of
law for the two High Parties'.
Honduras, by its counsel, definitely accepted the principle as thus declared by
Guatemala.
The Parties derive different inferences from these former proceedings and
the agreement therein as to the test then invoked. Guatemala urges that it
was because of the failure of these proceedings and the unsatisfactoriness of
that test, that the Parties in the present Treaty must be taken to have intended
to prescribe a different test and hence deliberately used the expression 'till pos-
sidetis of 1821', as referring to the factual situation, instead of uti possidetis
furls, as defining legal right. Honduras, on the contrary, refers to the former
proceedings as showing an agreement between the two countries as to the
'principle of uti possidetis of 1821' and this is deemed to be continued by Art-
icle V of the Treaty of 1930, which is said to require the 'running' of a juridical
line de jure between the two countries upon the nil possidetis, naturally jariA,
or 1821'.
"The expression 'all possidetis' undoubtedly refers to possession. It makes
possession the test. In determining in what sense the Parties referred to pos-
session, we must have regard to their situation at the moment the colonial re-
gime was terminated. They were not in the position of warring States terminat-
ing hostilities by accepting the status of territory on the basis of conquest. For
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 pos-
session of all the territory of each. Prior to independence, each colonial entity
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 indepen-
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dence was such as could be ascribed to it by virtue of the administrative authori-
ty it e ijoyed. The concept of 'lid possidetis of 1821' thus necessarily refers to an
administrative control which rested on the will of the Spanish Crown. For the
purpose of drawing the line of `uti possidetis of 1821' we must look to the exist-
ence of that administrative control. Where administrative control was exer-
cised by the colonial entity with the will of the Spanish monarch, there can be
no doubt that it was a juridical control, and the line drawn according to the
limits of that control would be a juridical line. If, on the other hand, either
colonial entity prior to independence had asserted administrative control con-
trary to the will of the Spanish Crown, that would have been mere usurpation,
and as, ex hypothese, the colonial regime still existed and the only source of
authority was the Crown (expect during the brief period of the operation of the
Constitution of Cadiz) such usurpation could not confer any status of `pos-
session' as against the Crown's possession in fact and law.
The question, then is one of the administrative control held prior to inde-
pendence pursuant to the will of the Spanish Crown. The time for the applica-
tion of this test is agreed upon by the Parties. It is the year 1821 when inde-
pendence was declared. We are to seek the evidence of administrative control
at that time.
"The colonial entities, described as Provinces, which respectively became on
independence the States of Guatemala and Honduras, were districts or divi-
sions of the Kingdom of Guatemala terminated and it had no successor save
as the short-lived Central American Federation may be considered to be such.
The present inquiry as to administrative control on the part of Guatemala and
Honduras thus relates not to the authority of the Kingdom of Guatemala but
to that enjoyed by the Governments of the provincial divisions which became
the States of Guatemala and Honduras."1
28. It is critical to observe that, as thus authoritatively described, the function of the
doctrine of uti possidetis was to divide territory between (in 19th century terms) the newly-
emerged States of Central and Latin America which had rejected continued Spanish rule.
The doctrine served to divide territory "as between Province and Province" (see the words
emphasized in the first paragraph of the quotation in paragraph 27 above). And in making
this division, the doctrine reflected the factual, not the formal, distribution of authority be-
tween the former Provinces. The only exception to succession on the basis of fact was where
the province prior to independence "had asserted administrative control contrary to the will
of the Spanish Crown". In other words, it would appear that where the limits of a Province
were ill-defined or vague, their determination for purposes of succession would rest on
actual administrative control. Where, however, they had been precise or could be readily
identified, actual administration by a neighbouring authority in usurpation of right would
not confer title.
3. The limited relevance of uti possidetis in the present case.
29. The fact that the concept of uti possidetis is so well established as a rule operating
between the former colonies of Spain in America does not mean that it is necessarily aprlic-
able in the present case. When the present situation is looked at in terms of general inter-
I. 2 UNRIAA, 1322-25.
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1 V.
national law, it is evident that what Guatemala advances as a case of uti possidetis is only a
particular application of the rules relating to State succession. Guatemala contends that in
respect of a certain part of the territory of Central it is the successor to Spain. But one must
ask?what is the basis of the succession? It was not the consequence of a voluntary cession
of territory by Spain. It took place as a result of rebellion. The legal consequences of re-
bellion are a reflection of the facts and the facts only. The rebels acquire from the original
sovereign rights only over the territory which they actually occupy. Rights to any other
areas can only come about as a result of grant by the original sovereign.
30. It so happens that because of local circumstances?the fact that most of the States
in Central and Latin-America-rebelled against one sovereign, it was convenient for those
States inter se to develop the concept of uti possidetis, especially for the purpose of dividing
between them peripheral areas which had not specifically been the scene of active rebellion.
But what was convenient inter se for the States of Spanish origin does not make law for others.
As between these others, including British Honduras and the new States or Spain, the ques-
tions of title fall to be determined by more traditional rules?i.e. by the reference to the extent
of occupation. The point was taken as early as 1825 by the British Law Officers when advis-
ing about sovereignty in Latin-America. H.A. Smith in Great Britain and Law of Nations intro-
duces a reference to an Opinion of Robinson in 1825 by the following sentences (vol. I, p. 372)
"We may now turn to the question of succession to territory. For reasons
of practical convenience the new republics accepted as their frontiers the lines
which divided the former Spanish vice-royalties. Since these lines ran for a
large part through unsettled and unknown country, frontier disputes between
the republics have been of common occurrence down to the present day, but
the general principle of division along the Spanish lines was accepted as between
the repiblic themselves. But this arrangement was not binding upon other
States unless the other conditions governing international title were fulfilled."
Smith then cites Robinson's Opinion of 28 March 1825 to show "that he refused to admit the
validity of a purely paper title unsupported by actual occupation and control Robinson
questioned "whether the Recognition of (i.e. by) this Country (i.e. Britain) can justly extend
further than to places within the actual possession and occupation of the new Government....
(ibid, p. 373).
31. Nearly twenty years later the same point was made by Lord Palmerston in relation
to the dispute with Nicaragua regarding British rights in the Mosquito Coast. In denying
Nicaragua's claim to the Port of Grey Town, Palmerston said:
"Now in the first place I have to remark that, since the people of Nicaragua
have never occupied any part of the Territory of Mosquito the sole pretence
upon what the State of Nicaragua can claim a Right to any part of the
Mosquito Territory is the allegation that the Mosquito Territory belonged to
Spain, and that Nicaragua has inherited the rights of Spain over that Territory.
But assuming for the sake of argument that Spain had Rights over the
Mosquito, how can it be shown that those rights have devolved to Nicaragua?
Has Spain ever conveyed such rights to Nicaragua by Treaty? Certainly
not. Has Nicaragua obtained them by conquest? Equally not.
"The People of Nicaragua revulted indeed against the King of Spain, and
established by Force of Arms and de facto, their practical independence
But the successful revolt of the People of Nicaragua could give them no right
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with reference to Spain, except the right of self-government. The very princi-
ple on which their revolt was founded and which the success of that Revolt
established goes to forbid them from practising towards other Nations that
kind of oppression from which they had freed themselves. The fact of their
having thrown off the yoke of Spain could give them no Right to impose their
yoke upon the People of Mosquito Even supposing that the Crown of Spain
had possessed Rights of Sovereignty over the Mosquito Territory, the People
of Nicaragua might just as well claim a derivative Right from Spain to govern
and to be Masters of Mexico, New Granada, or any of the neighbouring States
of Central America, as to govern and possess by such a derivative Right the
Mosquito Territory which was never occupied or possessed by the People of
Nicaragua.
"The People of each of the revolted Districts of the Spanish American Pro-
vinces, established their own Independence and their own Right of self-govern-
ment within the Territory which they had actually occupied, but nothing more "
32. This position was supported by the Legal Opinion on which the Award of the Em-
peror of Austria as to the interpretation of the Treaty of Managua was based (Great Britain
v. Nicaragua, 1881):
"The righful sovereignty over the territory inhabited by the Mosquito In-
dians had been long in dispute. On the one side it was claimed by those re-
publics which had broken loose from Spain in the third decade of the present
country, and which founded their claim to the Mosquito territory upon their
succession to the rights of the mother country. The Spanish Crown had
claimed from of old the sovereignty over the Mosquito Indies and this claim
was expressly put forward by a decree in the year 1803 regulating the territorial
demarcation and the administrative distribution of the coast territory. But
as neither Spain nor the colonies which had fallen away from her and attained
independence had actually exercised the pretended rightful sovereignty, and con-
sequently the asserted occupation lacked the essential element of taking possession
in f Jet, the Mosquito Indians were able to maintain not only their actual freedom,
but also their legislative independence, and to act as a separate community. (em-
phasis added"1
33. Similar reasoning would appear to underly?albeit inarticulately, but nonetheless
effectively?the decision in the arbitration relating to the Boundary between British Guiana
and Brazil. It is significant that in approaching the determination of the extent of the sove-
reignty of the parties, the tribunal concerned itself exclusively with the indentification of the
area of effective possession by each party. No suggestion appears to have been made that the
rights of Brazil could to any extent rest upon the theoretical limits of the provinces to
which Brazil succeeded; occupation alone was the test.
34. More recently, in a study committed specifically to the present question, Mr.
Bloomfield has said this of the doctrine of uti possidetis:
"It became a principle by which the American Republics have decided to
adjust their boundary differences. But in no case has the International Corn.
(I bid., pp. 377-8).
1. 5 Moore's International Arbitrations 4956.
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community recognised, as an institution of international law, the principle of
till possidetis. It remains, just like the Bull of Pope Alexander VI wherein it
originates, derogatory to general international law, which insists on occupation
as a basis for sovereignty. A rule derogating to generally accepted customary
international law is binding only on those persons which have, by a conven-
tion, expressly agreed to it." (The British Honduras?Guatemala Dispute
(1953, p. 94).
35. It is thus evident that, even if the concept of uti possidetis is invoked by
Guatemala as the basis for its claim to title over the Territory, the necessity still remains for
Guatemala to show that the authorities of that area over which the present Government of
Guatemala now exercises control in fact exercised control over the Territory at the material
period. Or, to put the same point in more specific terms, it is not sufficient for Guatemala
to allege a general succession to Spain in respect of title to the Territory. The present State
of Guatemala is today's reflection of the original Spanish administrative region which passed
under the name of the Captaincy-General of Guatemala. It is, therefore, necessary for
Guatemala to show that it was that Province rather than some other Spanish Province
which exercised control over the Territory at the relevant time. On the basis of the material
which we have examined?and to which we shall now refer?we reach the conclusion that
Guatemala cannot show a degree of exercise of authority over any part of the Territory in
the period prior to the lapse of Spanish rule sufficient to warrant any such conclusion.
4. Administrative history of the Belize area.
36. The history of the administration in this area has recently been closely examined by
Dr. Humphreys in his work on the Diplomatic History of British Honduras (1961), particulary
in Appendix I on "The Problem of Spanish Colonial Jurisdiction". We have not attempted
so go over the ground he has covered and, though occasionally supplementing his statements
with additional authority, will rely principally upon his analysis of this detailed and technical
matter.
(a) The area north of the river Sibun
37. In this area there could?in any interprovincial dispute ?have been only two con-
testants. One was the Intendencia de Merida de Yucatan, which formed part of the vice-
royalty of New Spain. The other was the Captaincy General or Kingdom of Guatemala,2
The jurisdiction of Guatemala over the inland regions to the west of the Territory, namely,
Paten and Vera Paz was clear by as early as the end of the seventeenth century. The same
was not true over the coastal areas which subsequently became the British settlement.
38. Dr. Humphreys writes of the matter in these terms:
"The question whether this alien settlement within the confines of the
Spanish Dominions lay under the jurisdiction of the Captain-General of
Guatemala or under that of the Captain-General of Yucatan was not on that
1. 11 UNRIAA, 21.
2. Prior to 1560 the position was different in that Yucatan was included in the Audiencia de los Con
fines (or Guatemala). By a royal decree of that year, Yucatan was separated from Guatemala and
Placed within the juridict ion of the Audiencia of Mexico.
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appears greatly to have troubled the contemporary mind. The British settler
in Belize, however, always believed that the land they occupied lay within the
territory of Yucatan; and there is strong evidence to show that they were not
alone in this belief."1
He cites, in support, the proposal of the Governor of Yucatan in 1736 to build a fort at the
mouth of the Belize; the disavowal by the President of Guatemala in 1755 that he had any
responsibility for the fortification of Belize in 1754, on the ground that it fell within the jur-
isdiction of Campeche; the Governor of Yucatan's specification of areas on the Belize river
for woodcutting in 1764;2 punitive raids against the settlement were undertaken from
Yucatan?with Guatemala assisting only once in 1754; the fact that the Governor of
Yucatan was charged with supervision of the Treaties of 1763 and 1783; and the statement
by the President of Guatemala (sic) in 1784 that the area between the Hondo and the Belize
came under Yucatan jurisdiction.
39. The contray evidence referred to by Guatemala is the map used by the Spanish
plenipotentiaries in negotiating the 1783 Treaty.3 Dr. Humphreys, however, regards this as
too primitive a map to have much evidentiary value. He also cites the instructions to the
plenipotentiaries to the effect that "Walix"?the Belize river?formed the "extreme limits
of the province of Yucatan." Moreover, another map used by the plenipotentiaries showed
the boundary of Yucatan as reaching the coast at about 16? latitude, only just north of the
Sarstoon.4 The conclusion drawn by Dr. Humphreys is that the Belize River was regarded
as the dividing line between Guatemalan and Yucatan authority, at least until 1786.5 How-
ever, this line was not static. As the British settlements began to extend south of the Belize
towards the Sibun river, so it was the Governor of Yucatan who was charged with executing
the treaty of 1786. The Spanish inspectors or commissioners who visited the settlements
came from Yucatan,6 and the last such visit occured in 1796 .....
There is no evidence of any act of administration from Guatemala. Thus Dr. Humphreys
concludes:
" long after 1786 the authority of the Captain-General of Yucatan was con-
ceived to extend not merely to Belize but also to the Sibun".7
40. Guatemala argues, however, that in 1787 new boundaries were fixed between
Guatemala and Yucatan, along the 17? 49' latitude8 (i.e. north of the Belize river.), and that
these new limits were shown on maps of 1802, used in the subsequent discussions between
Mexico and Guatemala over boundaries in 1882. It is true that the Mexican Foreign Mi-
1. Op. cit., p. 169. He is here speaking of the area between the Hondo and the Belize Rivers. See
also Bancroft, History of Central America, Vol, 11, p. 629 (cited in White Book, p. 454) to the effect
that it was the Governor of Yucatan who exercised control over the settlement on behalf of Spain.
Also Belize, in "Mexico through the centiries", Vol. II, cited in White Book, on. 462-3,467.
2. But this lette- con'ained the phrase "y por lo que mira ala parte de Guate rala sobre las ri be .as
del de Walix", which Humphreys sugges's may indim*e that the dividin line between Yucatan
and Guatemalan administration may have Wen the Belize (Walix) op. cit., p. 170.
3. White Book, Continuation, viii, p. 401.
4. Mapa que comprehende la major parte del reyno de Guatemala Madrid, Archly() Historico Na-.
clonal, Estado 4203, and Estado, map 12 (the reference is given by Humphreys, p. 171, note 20).
5. Op. cit., p. 172.
6. Mendoza, op cit., pp. 87-88 dismisses this as mere administrative convenience.
7. p. 173.
8. White Book, Continuation, viii p. 497.
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14.
!lister, when justifying to the Mexican Senate the 1893 Mexican/British Treaty fixing
the northern boundary of British Honduras along the line of the River Hondo, stated that
the Province of Yucatan terminated at that river, at least after 1787, and thereby sought to
avoid the criticism that he had ceded Mexican territory to Britain. But Mexican scholars
have denied the correctness of the Foreign Minister's statement.1 Moreover, there appears
to be no evidence of the claimed Spanish decree of 1787 said to have fixed the 17? 49' latitude
as a boundary, nor is there evidence of the existence of the maps of 1802. Indeed,
even Mendoza?whose commitment to the cause of Guatemala is manifest?also rejects the
170 49' parallel as the boundary between El Peten and Yucatan' He says:" in reality, that
boundary line is nowhere recorded between the Captaincies of Guatemala and Yucatan.
We have carefully studied the Ordenanza etc', and we cannot find a single word on that
subject, nor have we been able to find it anywhere else "2
41. There is further cartographic evidence for the extension southwards, at least to
the Sibun river, of the administrative authority of Yucatan.
42. In connection with the arbitration proceedings between Guatemala and Honduras,
Guatemala published in 1929 a "reply" to a cartotraphic report by a Dr. Williams on behalf
of Honduras. This reply was entitled: Cartographia de las America Central (Publication of
the Boundary Commission), Tipografia Nacional, Guatemala, C.A. December 1929. It
contained, amongst others, three maps relevant to the period before 1821.
(0 No. 32, map by Mana Elwe, Amsterdam, 1793. This is a copy of an earlier map
by Otten, 1756. It shows Yucatan as covering most of the area, with Vera Paz lying to the
south-west of the "Golfo de Guanajos" (equivalent to the Gulf of Honduras).
(ii) No. 35, Guthrie's map, 1809. It shows Yucatan as covering the whole of the
peninsula and with striking clarity covering to both north and south the region described as
"British Logwood Cutters".
(iii) No. 42, Tanner's map, 1822. This also has the word "Yucatan" running north-
east along the peninsula and covering the region marked as "English Possession". These
are shown as stretching south-east across the Belize river. Vera Paz is marked as lying south-
west to the Gulf of Honduras.
43. In addition, Humboldt's Atlas of New Spain, published in 1812, shows the Inten-
dencia de Merida de Yucatan extending far to the south of the Belize river. And this is signifi-
cant becaase Humboldt himself identified the source of this depiction in the following terms:
'Le Yucatan a ete ajoute d' apres la carte du Golfe du Mexique, publiee par le Deposito hi-
drografico de Madrid".3
44. On these points Dr. Humphreys concludes:
" it seems that little weight can be given to the assertions of the Conde de
la Cortina, repeated by Mariscal (the Mexican Foreign Minister) and by the
White Book. There is no evidence to suggest that at the end of the eighteenth
century the Captaincy-General of Guatemala exercised any authority either
1. Fabela, Belice, Defensa de los Derechos de Mexico, pp. 192, 298, 317-18; Calderon Quijano, Belice,
p. 15.
2. Op. cit., p. 228.
3. See the introduction to Humboldt, Atlas Geographique et Physique de la Nouvelle-Espagne
(Stuttgart, 1969, ed. Beck and Bonaeker), No. 2, p. 52.
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in law or in fact over the area between the Hondo and the Sibun. In the eyes
of Spain this area was and remained part of the old Captaincy-General of
Yucatan and the new Intendencia de Merida de Yucatan."'
(b) The area south of the river Sibun
45. The position regarding the area south of the Sibun appears to be somewhat
different. There is reason to suppose that the area of the Sibun as far as the Sarstoon may
have lain within the theoretical limits of the Captaincy-General of Guatemala.2 On some
contemporary maps it is in this area that Vera Paz (which was part of this Captaincy-General),
though not clearly demarcated, seems to extend. However, even if technically within the
administrative limits of Vera Paz, there is no evidence of any actual administration by Vera
Paz or the Captaincy-General of Guatemala.
D. The period 1821-1859
46. It is now appropriate to return to developments between 1821 and 1859. The
material question is whether during that period Guatemala demonstrated a degree of control
over the area either consistent with a claim to exercise sovereignty on a uti possidetis Lasis or
sufficient to displace the effect of actual British possession.
1. British activity in the Territory
47. In the period following Spain's loss of control over its American colonies, Britain
continued to maintain and develop its authority in the Territory-not merely to the Sibun
river but beyond the Treaty limits as far south as the Sarstoon river. Superintendent Codd
reported in 1825 that the latter was the effective southern boundary of the Territory.3
48. In 1834 the Council of British Honduras with the Superintendent, made a formal
determination that the area of which the settlers were in full and undisturbed possession was
bounded in the north by the Hondo and in the south by the Sarstoon.4 Their concern was
to prevent encroachments to the west, beyond Garbutt's Falls, for fear of trespass on Cen-
tral American territory, and they seem not to have anticipated protest by Guatemala about
the southern limits.5 The Colonial Office supported the view that the settlement had ac-
tual possession of the coastal region of the Sarstoon and constructive possession of the un-
occupied hinterland.6 In 1827 the Superintendent began making grants of land outside the
treaty limits, down to the Sarstoon, but these appeared to be by way of confirmation of
existing settlements. The grants, like the earlier grants, were subject to a safeguard arrange-
ment with Spain.7
49. Although Parliament had legislated for the territory in 1817, 1820 and 1833, the
need for a comprehensive legal system was patent. Accordingly, in 1840 the Superintendent
issued a Proclamation which, having recited the "imperfect state and undefined nature of the
existing Laws and custcms of this Settlement", declared the Law of England to be the Law
"of this Settlement or Colony of British Honduras".8
1. Op. cit., p. 177.
2. Humphreys, op. cit., p. 181. This was conceded as beyond doubt by Mexico in 1894: see White
Book, p. 497.
3. White Book, p. 43.
4. Humphreys, op. cit., p. 22.
5. Ibid.
6. Colonial Office Memorandum, 20 January 1835, cited by Humphreys, ibid. p. 23.
7. Ibid., p. 25. This is accepted in the White Book, pp. 40, 55.
8. 13urdon, op. cit., Vol. II p. 411.
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50. In 1814 the Governor of Jamaica, to wh0111 the Superintendent was responsible,
urged on the British Government that the Settlement should be regarded as a Colony. Lord
Palmerston agreed and was prepared to notify Spain that the Settlement must be declared to
be British territory.! But his successor, Lord Aberdeen, thought that whilst Spain would
continue to acquiesce in the British Government of the territory she would not be prepared
formally to cede sovereignty.2
51. In 1850 the settlers petitioned for Colonial status, but again no action to grant such
status was taken.3 Yet in 1851 the Law Officers of the Crown advised that, in their view,
the Settlement had become part of the dominions of the Crown, and that the British Pos-
sessions Act and other statutes extended to it.4 By a local Act, to which the Crown assent
was given, a Legislative Assembly was established. Nonetheless, the reluctance to use the
term "colony" persisted as Lord Clarendon was wishing to avoid any further misunder-
standings with the U.S.A. at that time.5
52. In March 1861 the Settlers once more petitioned that the settlement should become
"in name, what it really is in fact, a 'colony".6 The Law Officers repeated their earlier view
that the settlement was, both de facto and de jure, part of the Crown dominions.7 Eventually
the Crown formalised the position; by Letters Patent of May 1862 British Honduras was
formally declared a Colony.
53. In short, there is little doubt that the Crown exercised exclusive jurisdiction over
the entire Settlement at least from 1796 onwards, when the last official Spanish visit was
made. The Crown governed 8 and legislated for the territory to the exclusion of all other
Powers and was de facto sovereign prior even before 1821. Subsequently, the consolidation
of that title took place by stages. It was evidenced by Spain's abandonment of the territory,
its acquiescence in British conduct and by the attitude of other States, in particular the United
States, Mexico and, finally, Guatemala. The next following headings of this section will
deal with the position of Spain, the United States and Mexico. The position of Guatemala
will be treated separately in the section on the 1859 Treaty.
2. The conduct of Spain
54. Spanish conduct during the period following 1821 is particularly significant. As
already indicated, there is no valid basis for the Guatemalan contentions that as a matter of
general law the doctrine of uti possidetis applied to the position of Britain in the area or that,
even if the doctrine did apply, it would operate to support a Guatemalan claim to title. Con-
sequently, it is necessary to pursue the history of Britain's relations with Spain in respect of
the territory because it is between those two States--and those two alone at that epoch?that
the question of title fell to be determined.
1. Palmerston's Minute, on Stephen to Leveson, 20 August 1841: F.O. 15/27.
2. Aberdeen's Minute, on Hope to Canning, 11 November 1841: F.O. 72/596.
3. Chatfield to Palmerston, 20 May 1850: F.O. 15/64.
4. Dodson, Rornilly, and Cockburn to Grey, 14 March 1851: CO. 123/94.
5. Humphreys, op. cit., p. 60
6. Ibid., p. 91.
7. 16 September: C.O. 123/107.
8. Although the first Superintendent was appointed in 1874, the earlier acts of administration by the
Set le s are relevant to the consolidation of the Crown's authority, for it has always been held that
English settle s could not establish sove eignty in their own right but only in the right of the Crown:
see the precedents cited by Fawcett, The British Commonwealth in International Law, pp. 108-9.
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55. In 1835, H.M.G. received information that Spain was willing to recognise the new
States of South and Central America. The Colonial office 1 deemed the time opportune
for the negotiation of a formal treaty of cession, by which Spain would cede to Britain the
entire territory from the River Hondo down to the River Sarstoon. The British Ambas-
sador in Madred was instructed accordingly, but the Spanish Government made no formal
response to the approach.2 The Spanish Foreign Minister appears to have indicated orally
that he saw no difficulty in meeting the British request 3, but no treaty of cession was secured.
However, in February 1836 the British Ambassador secured from the Spanish Foreign Mi-
nister an undertaking that, in any negotiations between Spain and Mexico, the issue of the
northern boundary of the Settlement in Honduras would be excluded. But there was never,
in the event, any formal treaty of cession.
56. Instead, it is evident that two elements continued to consolidate Britain's emerging
sovereignty over the Territory. First, Spain in effect abandoned the Territory. Secondly,
as already indicated, Britain maintained and extended its administration over the Territory.
Whether this is looked at as occupation of a derelict territory in respect of which there was
no competing title or as prescription against Spanish title, the result is the same. By the time
that Britain came to make the 1859 Treaty with Guatemala the Territory was, in interna-
tional law, British.
57. The abandonment or 'dereliction' of territory by one sovereign, though not com-
mon, is an accepted concept 4 and it leads to the possibility of occupation and sovereignty
being established by another sovereign. Two elements are required, namely the physical
withdrawal of occupation and the evidence of an intention not to return. In the words of
Oppenheim:
" dereliction requires, first, actual abandonment of a territory, and second-
ly, the intention of giving up sovereignty over it. Actual abandonment alone
does not involve dereliction as long as it must be presumed that the owner has
the will and ability to retake possession of the territory."5
58. As we have seen, Spain never truly occupied the territory. Although she expelled
the British settlers in 1779, they returned in 1783 and repulsed a further attempt by Spain to
expel them in 1798. Thereafter Spain made no attempt to occupy the territory. Her last
gesture nominal sovereignty?the protest over fortifications--occured in 1816. There is no
record of any protest against the various sovereign acts by Britain, including the eventual
conferment of Colonial status on the territory in 1862. Thus evidence of abandonment by
Spain of its title is incontrovertible. While it is not possible to indentify a precise moment at
which abandonment took place, it would seem reasonable to suggest that the successful re-
volts in 1821 in the rest of Central America induced in Spain a state of mind equivalent to
an intention to abandon at that time. Certainly the indication in 1835 that she saw no diffi-
culty in acceding to the British request for formal cession is inconsistent with any intention
to reassert title thereafter.
I. Memorandum of 20 January 1835: F.O. 73/452.
2. Villiel s to Martinez de la Rosa, 5 April 1835: F.O. 72/441.
3. to Wellington, 4 May 1835: F.O. 72/442.
4. See Lindley, The Acquisition and Government of Backward Territory in International Law (1926),
Ch. VI, citing the examples of the abandonment by Spain of the Bahamas and Tobago, by England.
of Santa Lucia, and by Spain of British Honduras.
5. International Law, 7th Ed., Vol. I (Ed. Lauterpacht), p.531.
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18.
59. The perfection of a British title as against Spain occured correspondingly through
the process of acquisitive prescription. Again, in the words of Oppenheim:
" the Law of Nations recognises prescription both in cases where the State
is in bona fide possession and in cases where it is not. The basis of prescrip-
tion in International Law is nothing else than general recognition of a fact,
however unlawful in its origin, on the part of the members of the Family of
Nations. And prescription in International Law may therefore be defined as
the acquisition of sovereignty over the territory through continious and undis-
turbed exercise of sovereignty over it during such a period as is necessary to cre-
ate under the influence of historical development the general conviction that the
present condition of things is in conformity with international ardent
60. What is of singular importance is the point that there does not have to be a lawful
origin for the title: the prescriptive title arises notwithstanding that the occupation may
have been originally a trespass, an occupation in bad Mith.2 The relevance of this to
the British occupation of Belize is clear. For not only did the British convert a unsufructuary
right into an occupation as sovereign, but they extended that occupation beyond the limits
agreed with Spain by treaty. These acts, originally trespasses against the sovereign. Spain,
would not, however, defeat the development of a prescriptive 'title': on the contrary, they
are typical of the type of circumstances in which a prescriptive title arises to acknowledge
the legality of a situation which, in origin, may have been unlawful.
61. As to the other conditions required for the completion of aprescriptive title, name-
ly, that the prescribing State must possess a titre de souverain, that the possession must be
peaceful and uninterrupted, that it must be public and obvious, and that it must endure for
a certain lenth of time?these were plainly satisfied by Great Britain. Thus one arrives at
the conclusion that, at least as against Spain, Great Britain acquired a valid prescriptive title
over the whole territory. Whether the title is equally valid against Guatemala depends, of
course, on a separate consideration; for if Guatemala truly did become sovereign over the
territory in 1821, the conditions for a prescriptive title would have to be satisfied by Great
Britain in relation to Guatemala.
3. Relations with Mexico
62. The consistency of the British position in relation to the Territory is reflected in
its relations with Mexico. Though the process took nearly seventy years, eventually in 1893
Mexico agreed that the River Hondo both is and was the boundary of British Honduras, thus
recognizing that the territory was British and that Mexico's rights did not extend south of
that river.
63. The principal elements in reaching this conclusion were as follows:
(a) In 1825 in the course of negotiations with Britain for a Commercial Treaty, Mexico
proposed that the conditions under which British rights in Belize were exercised under the
1783 and 1786 Treaties with Spain should remain in force "for that part of the territory of
1. Op. cit., 527. Emphasis supplied.
2. To the same effect see Johnson, "Acquisitive Prescription in International Law" 27 B.Y.I.L. 332-
1950. Also Verykios, La Prescription en droit internaional (1934), pp. 74-75: "A quoi bon exigir
une telle condition en droit inte-national, alors qu'elle no sera jamais remplie? Carnous preten-
dons que, specialement pour les territores hatites,l'Etat possesseursera toujours de mauvaise foi."
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the United States of Mexico to which they apply".1 The draft was rejected by Britain on the
ground that it would have recognised "Mexico's right to territory which she possesses neither
de jure de facto "2 The eventual treaty of 1826,3 Article 14, contained no provision assert-
ing territorial rights either Mexico or Great Britain, but preserved the rights of British sub-
jects under the 1786 Treaty with Spain and any other concession by Spain.
64. (b) The 1826 Treaty contemplated "further arrangements", but these were not
made. A joint survey of the boundary was agreed to in 1839 but never carried out. Nor was
Britain prepared to regard Mexico as successor to Spain in regard to the British-Spanish
Treaty of 1786. 4
65. (c) In 1864, by a decree of 19 September promulgated by the Imperial Commis-
sioner for Yucatan, Mexican sovereignty was asserted over the whole of what was by now
the British Colony of British Honduras. 5 Although the subject of a formal British protest,
this decree as not in fact withdrawn' 6 A projected Treaty of Commerce with Mexico,
signed in 1866, contemplated settlement of the Belize question by treaty or arbitration, but
this was never ratified. In 1886 diplomatic relations between Great Britain and Mexico were
severed and not renewed until 1884.
141116-
66. (d) Not withstanding the absence of diplomatic relations, in 1872 HMG ad-
dressed a claim for compensation to the Mexican Minister of Foreign Affairs, arising from
the incursions into British Honduras of marauding Indians coming from Mexican territory.7
This expliet assertion of sovereignty by HMG was rereated NA hen a similar claim was made
in 1878. However, the Mexican reaction differed on the two occasions. In 1872 Mexico
simply repudiated responsibility on the ground that the marauders were a savage tribe, illi-
citly supplied with arms from British Honduras territory. 8 But in 1878 the Mexican Min-
ister of Foreign Affairs retorted by a claim that the territory of British Honduras in fact be-
longed to Mexico. 9 This claim was rejected by HMG. 10
1. Humphrey's, The Diplomatic History of British Honduras 1638-1901 (1960., p. 26, citing Fabela,
Belice Defensa de los Derechos de Mexico (1944), p. 195.
2. Canning to Ward, 9 September 1825: F.0./ 50/9.
3. Hertslet's Commercial Treaties, Vol. III, p. 253.
4. Mexico in 1849 called on Britain to observe Article 14 of that Treaty, as to prevent the arms trade
across the frontier with indigenous Indians; by Britain rejected the Mexican claim to have succeed-
ed to those treaty rights: Humphreys, op. cit., pp. 65-6. There is additional evidence of Mexican
attempts to succeed to Spain's treaty rights and, therefore, to sovereignty over the territory. When
in the negotiations leading to the 1836 Mexican-Spanish Treaty, Mexico had attempted to insert
an article referring to the 1783 and 1786 Treaties and the northern border of the British Settlement,
Spain, in implementation of its promise to Britain, refused to accept this, See Humphreys, op. cit.,
p. 28.
5. Humphreys, op. cit., p. 133 Maximilian's government published a similar decree on 3 March 1865:
see Clegern, British Honduras (1967, p. 137.)
6. Memorandum by Hertslet on the British Right of Sovereignty over Belize, or British Honduras,
Foreign Office, 20 February 1887: (Conf. 5412), pp. 37-8.
7. Earl Granville to Mexican Minister of Foreign Affairs, 2 December 1872: Correspondence re-
specting the Boundary question of British Honduras, 1872-73: (Conf. 2640). No. 3. The matter
of the Indian tribes north of the Hondo was complicated. The marauders who invaded British
Honduras were the Icaiche, but these were often in open hostility with the Santa Cruz and it was
the latter who received arms from British Honduras and who were regarded by the Mexican Gov-
ernment as rebels.
IL Sr. Lafraquire to Earl Granville, 12 February 1873, Ibid.
9. See the refutation in the Memorandum by Mr. Scarlett respecting the Boundary Question of British
Honduras, No. 1 and Humphreys, op. cit., p. 142.
10. Marquis of Salisbury to Mexican Minister for Foreign Affairs, 8 June 1878, F.O. 50/434.
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67. (e) Negotiations between Mexico and HMG were resumed in 1880 and Mexico
proposed a draft declaration which would have reserved Mexican rights over Belize. The
proposal was rejected by HMG. Negotiations resumed in 1886, but proved abortive, and
were again resumed in 1892, this time culminating in the Treaty of 8 July 1893, 1 a treaty
finally ratified in 1897.2 This treaty of 1893 recognised the River Hondo as the boundary be-
tween Mexico and British Honduras, thus, in effect, abandoning the Mexican claims:
"It is agreed that the boundary between the Republic and the Colony of British
Honduras was, and is, as follows:?
the River Hondo, which it follows in its deepest channel, passing west of
Albion Island, continuing up Blue Creek until the said creed crosses the meri-
dian of Garbutt's Falls at a point due north of the point where the boundary
lines of Mexico, Guatemala, and British intersect
4. Relations with the U.S.A.
68. The question of Britain's title to the Territory arose in U.S.?British relations only
at a relatively late stage in the period under review and the material developments extend
beyond the date of the 1859 Treaty. However, in view of the eventual American acceptance
of the British position, the facts may conveniently be referred to at this point.
69. Article 1 of the Clayton-Bulwer Treaty of 19 April 1850,' embodied a joint re-
nunciation by both the U.S.A. and Great Britain of territorial ambitions in certain areas where
such ambitions might bring about exclusive control over projected trans-Isthmian canal.
" agreeing that neither will ever erect or maintain any fortifications com-
manding the same, or in the vicinity thereof, or occupy, or fortify, or colonize,
or assume or exercise any dominion over Nicaragua, Costa Rica, the Mosqui-
to Coast, or any part of Central America "
The phrase "or any part of Central America" was somewhat broad and HMG was con-
cerned to have a clear understanding that it did not embrace British Honduras. Thus, in
ratifying, an explicit declaration that the Treaty did not apply to "Her Majesty's Settlement
at Honduras, or to its dependencies" was made. 3 The U.S. Secretary of State confirmed
this understanding by a Note of 4 July 1850:
"To this settlement and these islands the Treaty we negotiated was not in-
tended by either of us to apply. The title to them it is now, and has been my
intention throughout the whole negotiation to leave, as the Treaty leaves it,
without denying, affirming, or in any way meddling with the same, just as it
stood previously." 4
70. That the U.S.A. wished to maintain a non-committal, or "neutral" attitude on the
question of title to the territory was further emphasised in the Secretary of State's Memo-
randum stating:
1. Hertslet's Commercial Treaties, Vol. 20, pp. 796, 802.
2. Hertslet's Commercial Treaties, Vol. VIII, p. 969.
3. Written declaration of 29 June, 1850: ibid.. Vol. X, p. 643.
4. Ibid., pp. 645-6.
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" I wrote him (Sir H.L. Buhver) my note of the 4th July, acknowledging
that I understood British Honduras was not embraced in the Treaty of the 19th
of April last, but, at the same time, carefully declining to affirm or deny the
British title in their settlement or its alleged dependencies." 1
71. But even then a difference remained as to what area was understood by the term
"British Honduras". For some four years later the U.S.A., in a statement to HMG, re-
ferred to "the Belize Settlement lying between the Rio Hondo and the Sibun, the usufruct of
which for a special purpose, and with a careful reservation of his sovereign rights over it,
had been granted by the King of Spain to the British under the Treaty of 1786" 2 and the
statement continued by referring to the area between the Sibun and the Sarstoon in these
terms:
"It is presumed that the encroachments of these settlers south of the Sibun
have been made without the authority or sanction of the British Crown, and
that no difficulty will exist in their removal. "3
72. HMG was not prepared to accept implication that, whatever by the status of its
title north of the Sibun, the settlements below the Sibun down to the Sarstoon were a mere
trespass. The Secretary of State replied in a statement delivered to U.S. Minister in these
terms:
" Her Majesty's Government not only has to repeat that the Treaties with
Old Spain cannot be held, as a matter of course, to be binding with respect to
all the various detailed portions of the old Spanish-American Monarchy, but
it has also to observe that the Treaty of 1786 was put an end to by a subsequent
state of war between Great Britain and Spain; that during that war the bound-
aries of the British Settlement in question were enlarged; and that when peace
was re-established between Great Britain and Spain no Treaty or a political
nature, or relating to territorial limits, revived those Treaties between Great
Britain and Spain which had previously existed," 4
73. The U.S.A., with some justification, declined to accept this statement of a "title by
conquest", pointing out that if the extension of the settlement south of the Sibun took place
after the 1809 Treaty of Alliance terminated the war (as the U.S.A. believed to be the case)
the argument had no substance. And if it occurred before 1809, then it was extraordinary
that Great Britain did not in the Treaty make clear that it intended to assert sovereignty
over the area occupied. 5 It may also be added that the notion of "title by conquest" was
quite imcompatible with HMG's later approach to Spain to have a formal cession of the
title by treaty.
74. Indeed, the U.S.A. went on to question even the nature of the British title within
Belize proper.6
I. /bid., p. 647.
2. Reproduced in Memorandum by Sir E. Hertstet etc. (Conf. 5412) pp. 11-13.
3. Ibid.
4. Ibid.
5. Ibid., pp. 15-16.
6. !hid., p. 16 iThe whole cor-espoilence is in Corremml-nre w el Slat re jr in
Central America, 1865, and in Mrining, Diplomatic Correspnadence, Vol. VII.
1
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"It is, however, distinctly to be understood that the Government of the
United States acknowledge no claim of Great Britain within Belize, except the
temporary 'liberty of making use of the wood of the different kinds, the fruits,
and other produce in their natural state,' fully recognising that the former
Spanish sovereignty over the country belongs either to Guatemala or
Mexico."
75. It must be said; in passing, that it could not be expected at that time that the U.S.A.
would take an objective and impartial view of the British claim to title; on the contrary, it
was part of the policy of the United States to contain and, where possible, diminish the Euro-
pean possessions in the New World. A change of party (the Democratic victory) in 1853
may also have influenced the policy of the U.S. Government at that time.
76. The disagreement between the U.S.A. and Great Britain was sought to be resolved
by Article II of the Clarendon-Dallas Treaty of 1856, 2 which, having referred to the Settle-
ment as "bounded on the north by the Mexican province of Yucatan, and on the south by
the River Sarstoon" re-affirmed that it was excluded from the terms of the 1850 Treaty and
expressed the hope that the limits of the said Belize "on the west, as they existed on the said
19th of April 1850" should be settled by HMG in agreement with Guatemala within the
next two years. This Treaty was never ratified, because of HMG's objection to other articles,2
but it indicated a preparedness on the part of the U.S.A. to accept the British title, down to
the River Sarstoon, subject to settlement of the western boundary with Guatemala.
E. Conclusion
77. On the basis of the material examined in this section, we reach the conclusion that
the rebellion against Spain in 1821 of its colonies in Central America did not by itself change
the position regarding sovereignty over Belize. While for their own purposes inter se, the
republics of Central American Republic (or later the Republic of Guatemala) and Britain.
As between these two States the only law relevant to questions of sovereignty was the tradi-
tional law. This related title to effective occupation.
78. Even prior to 1821 British settlers had gradually extended their settlements south
of the Sibun River towards the Sarstoon and by 1834 had been long enough involved in the
environs of the Sarstoon to warrant their obtaining land grants from the authorities of the
Settlement. To the extent that the movements of British settlers went beyond Treaty limits,
their actions affected Spain, not Guatemala. This was because the rebellions against Spain
were operative only in the areas under control of the new States. Spain's reaction to those
encroachments was one of acquiescence and there can be no doubt that by 1859 British pre-
sence as far south as the Sarstoon River had Crystallized into valid title.
79. The position might have been different had there been any Guatemalan exercise
of authority or control over the area in question. But there was not. This is a key element
in the situation. It must be borne in mind that in the face of actual British presence in Belize
for over a century, more is required to establish Guatemalan sovereignty than the mere as-
sertion on its part of a title based on uti possidetis. Evidence of actual Guatemalan sovereign
presence in the area, sufficient to counter the fact of British presence, is required. We have
not been able to find any such evidence. Nor is any to be found in the place where it might
most be expected, namely, the Guatemalan White Book. And it is to be noted that the ab-
I. Correspondence re.spe,..1.1.1g ?.0 16.)o-uk): Par! Papers 1861, Vol. LXVIII, No. I.
2. Those concerned the Bay Islands, not the boundaries of British Honduras.
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sence of evidence of Guatemalan presence in the area, which is relevant in a dispute over
sovereignty between Guatemalan and Britain, is also material to Guatemala's invocation of
uti possidetis. For, as has been established in relations between Guatemala and her neigh-
bours, what matters is uti possidetis. in fact, not in theory.
III THE 1859 TREATY
A. Introductory
80. We now turn to examine the 1859 Treaty. On the British approach to the pro-
blem, its relevance is slight. British title to Belize existed before, and independently of, the
Treaty. The Treaty could only become material if in some way it reduced pre-existing British
title. As will presently be seen, this was not the case. On the Guatemalan approach to the
matter, the Treaty of 1859 is the controlling instrument. Guatemala contends that without
the Treaty, Britain would have no title in Belize; that the Treaty is one of cession; that its
operation is conditioned by the requirement that a cart-road be built in accordance with
Article 7; that that condition has not been satisfied; that Guatemala is accordingly entitled
to end the Treaty; that it has done so; and that title has now revested in Guatemala.
81. We have reached the conclusion that every element in the Guatemalan approach
is wrong, with the possible exception of the proposition that Britain is in breach of Article 7.
That possibility, however, even if established would not serve to vest in Guatemala title to
Belize.
82. It will be convenient to approach the problems connected with the 1859 Treaty by
way, in the first place of a statement of material developments.
B. Material developments
1. Background to the Treaty
83. As early as 1825 the Colonial Office regarded as urgent and important a treaty
with Guatemala so that "the limits of the territory of Honduras as they exist de facto should
be secured to the Crown".! The mention of de facto limits obviously referred to the fact that
the British Settlements had been extended beyond the treaty limits, the River Sibun, south-
wards for more than a hundred miles to the River Sarstoon. 2 The view of HMG was that
this extension of the settlement was a matter for discussion with Spain alone. 3
84. The Government of the Central American Republic (of which Guatemala was a
part until 1839) appeared willing to negotiate a treaty with Great Britain and in 1826 sent
an envoy to London for that purpose although he was recalled in 1831. 4 The evidence of
the attitude of HMG at this time suggests that, whilst willing to contemplate a Treaty of
Commerce with Guatemala, the question of boundaries was a matter for discussion with
Spain, not Guatemala. Indeed, in 1833 Lord Chatfield, appointed as British Consul to
Guatemala, was instructed not to negotiate with Guatemala over boundaries. 5 Then in
1. Colonial Office to Foreign Office, 23 September 1825: F.O. 15/4.
2. See Report of Supe' intendent of 1833, referred to in Burdon, op. cit., Vol. II, p. 347.
3. Foreign Office to Colonial Office, 19 February 1834: F.O. 15/15.
4. Dobson, op. cit., pp. 187-8.
5. Burdon, op. cit., Vol. II, p. 372.
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1834 the Government of Guatemala took a step which could only be interpreted as a claim
to sovereignty: it made two grants of concessions to land within the territory regarded by
HMG as within the limits of the British Settlement" 1 HMG warned the persons interested
that the concessions had no validity; and there is no evidence they ever became effective. 2
85. In 1838 the Constituent Assembly of Guatemala invited the inhabitants of the
settlement to send a deputy to the Constituent Assembly. This, too, was an implied asser-
tion of sovereignty. Great Britain protested and the legislative decree was repealed. 3
86. The conclusion of the proposed Treaty of Amity, Commerce and Navigation
between Great Britain and Guatemala was achieved in 1847. It contained no territorial
provisions, but the Guatemalan negotiator, in a separate Note to his British counter-
part, recorded that the Treaty "in no way involves or affects the rights of the Republic
of Guatemala in the boundary matter relative to the concessions in the territory of
Belize ". "In addition, referring to the British-Mexican Treaty of 1826 (and Article
14 in particular), he rejected the notion that Mexico had any rights in the territories
of the "concession of Belize". 4 This Note was treated as an unacceptable reservation
by HMG, so the treaty was never ratified. Only in 1849, when a second Convention
was agreed, without the Guatemalan reservation, did the Convention come into force.
Mendoza says of this Treaty that Britain thereby "officially recognised the Republic with
the same jurisdiction as the former Spanish province including the territories of the con-
cessions granted by His Catholic Majesty in 1783 and 1786".5 However, neither the text
nor the travattx preparatoires support this assertion.
2' The beginnings of the negotiations for the 1859 Treaty
87' On 14 February 1857 the Minister of Guatemala in Paris, Sr. Martin, informed the
Guatemalan Government that he would be visiting London, to initiate the negotiation
of a boundary treaty, and to solicit just compensation for the territory unduly invaded by the
English in Belize". 6
88. The first conversations in the negotiation occured in May 1857' In his reports to
Guatemala, Sr. Martin always referred to "the boundary treaty", not to a "treaty of ces-
sion" 7 This expression was also used in correspondence emanating from the Government
in Guatemala to Sr. Martin, 8 as well as in communications to the British Government.
89. In June 1857 Mr. Stevenson (the British Superintendent in Belize) explained to
Sr. Martin (the Guatemalan Minister) "the extent of the British occupations, beyond the
original limits of the Spanish Treaties as they existed on and for many years to the 1st of
January 1850, and also the nature and foundation of the British claim to a line of boundary
that would cover all such actual occupations and effectually prevent all future trespasses by
either party that many of these actual occupations had existed for periods ranging between
thirty, forty and fifty years " 9 Mr. Stevenson added that "upon that point (occupation),
however, I have no hesitation in saying that I believe all the information I have received and
furnished to have been perfectly correct". The proposed southern boundary stretched along
the Sarstoon to the Gracias a Dios Falls.
1. One concession was to a London Company, the other to Colonel Galindo.
2. Humphreys, op. cit., pp. 41-44.
3. Dobson, op. cit., p. 193; burdon. op. cit., Vol. 11, p. 406.
4. For the text see White Book, pp. 66-77; Bloomfield, op. cit., p. 19.
5 Mendoza, op. cit. 96.
6. White Book, p. 72.
7. Ibid., p. 75.
8. Ibid., p. 75.
9. Ibid., p. 79.
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90. On 8 July 1857, Sr. Martin presented to the British Government a Guatemalan
proposal for the "boundary" treaty. I Because it differs in so many respects from the 1859
Treaty?and because these respects are so significant ?it is necessary to set out some of its
salient details:
(i) In the Preamble, paragraph 1 referred to "the British Settlement in British Hon-
duras on the coast and within the self same territory of the Republic of Guatemala".
(ii) The second paragraph of the Preamble spoke of the concessions granted by Spain
in 1783 and 1786 as relating to "territory located in the region then known as the Kingdom
of Guatemala, within his dominions in America" and continued "the former could not
acquire it for her own sovereignty and property ".
(iii) Article I provided:
"The Republic of Guatemala now and forever relinquishes in favour of
Great Britian her property and sovereign rights over that part of the territory
comprised within the natural and recognized boundaries within her dominions,
settled at the present time by subjects of Her Britannic Majesty and known by
the name of the Settlement of British Honduras".
(iv) Article V provided:
"As a compensation for the renunciation made by the Republic of Guatemala
in article I of the present Treaty, Her Majesty the Queen of the United Kingdom
of Great Britain and Ireland promises to give her effective and positive gua-
ranty against any enterprise which might be attempted with detriment to the
Republic by adventures without any legally recognized national character ".
(v) Article VI provided:
"The Government of Her Britannic Majesty to carry out the above men-
tioned guaranty, does not bind herself to anything besides the use of her ma-
ritime forces she constantly maintained on the east and west coasts of America
for the protection of her commerce and subjects ".
91. This approach was expressly approved by the Guatemalan Government on 2 Sept-
ember 1857. 1 But on 15 September 1857 Sr. Martin reported to his Foreign Minister that
he did not think that it would be possible to obtain from the British Government "the com-
pensations' for which he had asked in his draft "since they give no importance whatever to
the Settlement, nor do they obtain advantage therefrom. They would gladly enter into a
boundary treaty only to legalize the situation" 3. And their matters appear to have rested
for nearly a year and a half.
3. The instructions given to Mr. Wyke
92. On 16 February 1859 Mr. Wyke (a British official) was instructed to enter into
negotiations with the Guatemalan Government to settle the question of the limits between
I. For text, see Mendoza, Britain and Her Treaties on Belize (2nd ed., 1959), p. 127.
2. White Book, p. 83.
3. Aid., p. 85.
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Belize and Guatemala. He was told that HMG were desirous that the limits of British
Honduras should be established on the basis of the actual British occupation, as described in
a draft Convention which was forwarded to him and which he was instructed to propose to
the Guatemalan Government. He was also told to be "exceedingly careful not to accept any
part of the proposed boundary as a cession from the Republic of Guatemala, or to accept,
as it were, a title to any part of the British occupation from the Republic,." One reason
for the emphasis of the British position was the anxiety of HMG to avoid any breach of
the terms of the Bulwer-Clayton Treaty of 1850. The instructions said:
"It is, in short, absolutely necessary that the line of boundary to be
established by the proposed Convention should therein be described, not as
involving any cession or new acquisition from the Republic of Guatemala (in
which case the United States might contend that Great Britain had violated
the self-denying clause of the Treaty of 1850), but, as it is in fact, simply as the
definition of a boundary long existing, but not hitherto ascertained." 1
93. Wyke reported that he encountered much difficulty with the Guatemalan Govern-
ment, who would not hear of surrendering unconditionally what they claimed to be their
rights. Wyke himself observed that this opposition was the more difficult to overcome since in
point of fact the English "had no right, beyond that of actual possession, to the tract of coun-
try between the Rivers Sibun and Sarstoon, which formerly belonged to the ancient Kingdom
of Guatemala". 2 So he developed the plan of finding some inducement to Guatemala to
agree to his terms, while at the same time avoiding the situation in which he might be seen
to be receiving title to any part of the British occupation from Guatemala. He therefore
proposed that both Parties engage to use their best efforts conjointly to construct a cart-road.
This proposal became Article 7 of the 1859 Treaty. 3
4. The terms of the Treaty
94. The recital began:
"Whereas the boundary between Her Britannic Majesty's settlement and
possessions in the Bay of Honduras, and the territories of the Republic
of Guatemala, has not yet been ascertained and marked out "
Article 1 provided:
"It is agreed between Her Britannic Majesty and the Republic of Guatemala,
that the boundary between the Republic and the British Settlement and Pos-
sessions in the Bay of Honduras, as they existed previous to and on the 1st
day of January, 1850, and have continued to exist up to the present time, was,
and is 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
I. Text in: F.O. Confidential (5490), P. 1; and Pan. Pap. 1860, lxviii, (2478), p. 171. The line, as
proposed in the instructions and incorporated in Article 1 of the Treaty, would begin "at the mouth
of the River Sarstoon, in the Bay of Honduras, and proceed up the mid-channel of that river to
Gracias a Dios Falls; it would then turn northward, and continue 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".
2. Ibid., p. 2.
3. Ibid., p. 3.
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turning to the right and continuing by a tine 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.
It is agreed and declared between the High Contracting Parties that all the
territory to the north and east of the line of boundary above described be-
longs to Her Britannic Majesty, and that all the territory to the south and west
of the same belongs to the Republic of Guatemala.
95. Articles 2-6 dealt with the appointment of boundary commissioners and the con-
sequential task of demarcating on the ground the boundary agreed in Article 1.
96. Then came Article 7, in the following terms;
"With the object of practically carrying out the views set forth in the pre-
amble of the present Convention for improving and perpetuating the friendly
relations which at present so happily exist between the two High Contracting
Parties, they mutually agree conjointly to use their best efforts by taking ade-
quate means for establishing the easiest communication (either by means of a
cart-road, or employing the rivers, or both united, according to the opinion
of the surveying engineers), between the fittest place on the Atlantic coast
near the settlement of Belize and the capital of Guatemala; whereby the com-
merce of England on the one hand and the material prosperity of the Republic
on the other, cannot fail to be sensibly increased, at the same time that the
limits of the two countries being now clearly defined, all further encroach-
ments by either party on the territory of the other will be effectually checked
and prevented for the future."
5. The interpretation of Mr. Wyke
97. In a report dated 30 April 1859 Mr. Wyke explained that early in the negotiations
it soon became evident that he would need to find an inducement to persuade the Guatemalan
Government to agree to his terms. He said:
" it struck me that the compensation they claimed might in some sort be
afforded if we aided them in the construction of a practicable cart-road where-
by the old commercial relations with Belize would be renewed, and both Con-
tracting Parties mutually benefitted without either appearing to receive a fa-
vour from the other "
" I at last succeeded in getting this Government to accept the Convention
word for word, and without a single alteration, on the condition that an Ad-
ditional Article should be added to it "
98. In conclusion Mr. Wyke expressed the hope that he had not incurred the displea-
sure of HMG
"for having so far exceeded my instructions, when, by so doing, I consider
that I have obtained a double advantage at the price of, comparatively speaking,
a trifling sacrifice".I
L Pad, pap. 1860, lxviii, (2478), p. 251.
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99. Within two weeks of the receipt of Mr. Wyke's despatch on 16 June 1859, the Fore-
ign despatched?on 30 June?British ratification of the Treaty.1
6. The Guatemalan view
100. On 17 September 1859 ratifications of the Treaty were exchanged. On that oc-
casion the Guatemalan plenipotentiary wrote to the British plenipotentiary that
"it has been very satisfactory to his Excellency (the President of Guatemala)
that the Article relative to the opening of the road, proposed on our part, and
acceded to by Mr. Wyke, has been fully approved of by HMG "2
101. The Treaty was laid before the Guatemalan Chamber of Representatives in
January 1860, together with a justificatory report, In it Sr. Aycinena, the Foreign Minister,
stated, inter alia, that Spain had abandoned the territories outside the Treaty lines, that they
had never been in the actual possession of Guatemala and that she had never exercised any
act of sovereignty over them. 3
C. Questions relating to the 1859 Treaty
102. The Treaty has occasioned three questions: first, was it in effect a treaty of cession
whereby Guatemala ceded the territory to Great Britain; second, is Great Britain in breach
of the treaty, especially by reference to Article 7; and third, if so, what is the legal conse-
quence of such a breach?
I. Was the 1859 Treaty a treaty of cession?
103. Two elements are relevant to determining whether the 1859 Treaty was a treaty
of cession. The first consists of the words actually used. The second is the intention of the
parties.
(a) The words of the Treaty
104. The actual wording of the Treaty is more consistent with the notion that it is a
boundary treaty than that it is a treaty of cession.
105. The preamble refers to the fact that the boundary between British territory and
that of Guatemala has "not yet been ascertained and marked out". It states also that the
Parties are desirous "to define the boundary aforesaid" and "have resolved to conclude a
convention for that purpose". There is no suggestion anywhere in the preamble or in the
text that the Treaty is really one of cession.
106. The same is true of the wording of the operative articles. The principle article
speaks only of the boundary. But more than that, it is expressed so as to be declaratory of
an existing situation. Thus: "It is agree:! .that the boundary was and is as follows". That
is evidently inconsistent with any idea of cession by virtue of the Treaty.
107. And if there could be any doubt left on this score, it is put at rest by the additional
words which describe
I. Ibid., p. 257.
2. Pal, pap 1860, lxviii, (2478) p. 300.
3. See Humphreys, op. cit., p. 88.
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"the British Settlement and Possessions in the Bay of Honduras, as they
existed previous to and on the 1st day of January, 1850 and have continued to
exist up to the present time "
108. Yet again, in the last paragraph of Article 1, when providing that the territory to
the north and east of the described boundary is British, the verbs used are "it is agreed and
declared". The word "declared" necessarily refers to a situation already existing and its
use in this context is again incompatible with the idea of cession.
109. The only provision which can be invoked (and has by Guatemala been invoked)
for the purpose of converting the Treaty into one of cession is Article 7. But for the Article
to achieve this something quite specific would be required to counteract the effect of the
earlier provisions. One might, perhaps, have expected words such as: In consideration of
the transfer of territory effected by Article 1". But nothing like that can be found in Article
7.
110. Indeed there are two indications within the text of Article 7 itself which confirm
that it was seen by both parties as being fully consistent with the "boundary-fixing" character
of the Treaty. First, the reference to the preamble in the opening lines of Article 7, though
not specifically directed to the part dealing with the definition of the boundary, makes it clear
that in including Article 7 the Parties had not overlooked the Preamble as a whole. The
second point is more striking. At the end of Article 7 there appear the words "the limits of
the two countries being now clearly defined". This is not the kind of language which one
would have expected if in fact the Article was either intended to serve the purpose of chang-
ing the treaty to one of cession or of reflecting such a change.
(b) The intention of the parties
111. It is clear from the passages cited in paragraphs 92-3 above?the instructions to
Mr. Wyke and his report?that HMG had no intention of becoming a party to a treaty of
cession. More than that, it is evident from a comparison of the Guatemalan draft of 8 July
1857 and the Treaty as finally adopted that the initial attempt by Guatemala to express the
agreement in terms of cession was entirely repudiated by Britain and that Guatemala ac-
cepted that repudiation. This last point is emphasized by the terms of Sr. Aycinena's pre-
sentation to the Guatemalan Chamber of Representatives in January 1860.
112. We have, of course, considered whether Mr. Wyke's observations that the British
claim was not valid outside the old treaty lines runs counter to this evidence of intention as
derived from the text. Our conclusion is that they do not affect the situation. The instruc-
tions given to Mr. Wyke were clear and, despite his own misgivings, it is also clear that the
British Government did not feel that the text as adopted departed from those instructions.
Also, it appears to us that Mr. Wyke in making his assessment of the situation did not ap-
preciate the significance of the absence of any effective Guatemalan presence or administra-
tion in the areas occupied by the British settlers. So, while Mr. Wyke's views cannot be ig-
nored, they do not in our view change the position to be derived from the texts
and Sr. Aycinena's report.
(c) Irrelevance of the Clayton-Bulwer Treaty argument
113. Guatemala has suggested that the language of the Treaty does not reflect the
alleged intention that it should serve as a transfer of tide because Britain wished to avoid the
accusation by the United States that she was acquiring territory in Central America in viola-
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tion of the 1850 Clayton-Bulwer Treaty.1 Two considerations run counter to this argu-
ment. First, as has been shown, it was understood by both the USA and Great Britain that
the 1850 Clayton-Bulwer Treaty excluded British Honduras. Second, Article II of the 1856
Clarendon-Dallas Treaty between Great Britain and the USA had not only accepted the
Rivers Hondo and Sarstoon as the northern and southern frontiers of the settlement but had
incorporated an expression of hope that Great Britain would conclude a Treaty with
Guatemala within the next two years agreeing the boundary in the west. 2 In short, the
1859 Treaty, far from being regarded as a violation of the 1850 Clayton-Bulwer Treaty, was
exactly what the United States expected. If any further evidence of this were needed, it
can be found in the expressions of satisfaction with which the US Government greeted the
1859 Treaty: the US Representative in London, Mr. Buchanan, on December 1860, refer-
red to the agreement as "entirely satisfactory to his Government", 2
(d) The role of Article 7
114. Despite the fact that we are of the opinion that the 1859 Treaty is not a treaty of
cession, we cannot leave the question without some reference to the role of Article 7.
Guatemala contends that the British undertakings in Article 7 represent the price which
Britain was prepared to pay for the cession of territory by Guatemala. And on that basis
Guatemalan seeks to change the significance of the languagge which appears in the earlier
Articles and which, in our view, so clearly marks the treaty as one defining boundaries. We
acknowledge that some function must be attributed to Article 7, especially in the light of
Mr. Wyke's reference to the necessity for an "inducement". But the role which we see Ar-
ticle 7 playing is not that of an "inducement" to part with territory,. It represents rather
the Quid pro quo to Guatemala for agreeing to abandon a claim. Up to that date Guatemala
had been asserting?contrary to British contentions?a claim to the territory of Belize. By
the 1859 Treaty Guatemala was agreeing to the definition of the boundary of Belize and,
as we see it, agreeing for a price to abandon the pretence that the territory or any part of
it remained Guatemalan.
2. Is Britain in breach of the 1859 Treaty?
115. We now turn to consider the Guatemalan allegation that Britain is in breach of
the 1859 Treaty by virtue, so it is asserted, of the fact that Britain has not fulfilled its part of
the undertaking in Article 7 to use its best efforts, conjointly with Guatemala, for establishing
the easiest communication by means of a cart-road, or employing the rivers, between the
fittest place on the Atlantic coast near the settlement of Belize and the capital of Guatemala.
116. In order to assess the validity of this Guatemalan contention, it is necessary to
look fairly closely at the course of developments. And for this purpose it may be helpful to
reply in large part upon Guatemala's own collection of materials?the so-called White Book.
I. See White Book, p. 105.
2. The fact that this Treaty was not ratified was not connected with question of Belize.
3. Miller, Treaties of the US, Vol. V, p. 802. It is, of course, true that over twenty years later, in1882,
the USA did allege that the 1859 Treaty with Guatemala violated the 1850 Clayton-Bulwer Tr eaty:
see the communication by Mr. Frelinghuysen, US Secretary of State to the British Foreign Off ice,-
31 May 1882, (British and Foreign State Papers, Vol. 73, pp. 892, 898). This communication sug-
gested that the breach lay in extending the Settlement beyond its limits as they existed in 1850 and
in converting the Settlement into a Colony. This view of the US Government is, of course, com-
pletely at variance with the view it took in 1860 and it would be difficult to treat it seriously as an
argument based on a breach made after so long a delay. The motivation of the USA was probably
that she herself wished to get out of the 1850 Treaty because it tied her hands in relations to plans
for a traas-Isthmian canal.
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(a) Developments, 1859-1863
117. At the outset, it is appropriate to notice that the obligations established by Article
7 were far from precise. First, they were not expressed as resting exclusively upon Britain.
They were stated in terms of conjoint use of best efforts to take adequate means to establish
and objective which was itself not set out in exact terms. This objective was "the easiest
communication" between the fittest place on the Atlantic Coast near the settlement of Belize
and Guatemala City. The precise mode of communication was left uncertain; it could be
by a cart road, or employing rivers, or both. Thus the subsequent conduct of the parties
becomes the more significant as an aid to the indentification of the true content of the pro-
vision.
118. It is appropriate, therefore, to note the following items:
(i) It is to be observed that the Guatemalan White Book in presenting material relating
to the period immediately after the conclusion of the 1859 Treaty does so on what appears
to be a selective basis. Thus, while it includes documents reflecting the views of critics of the
Treaty it omits the statements made at that time by the Guatemalan Government in support
and justification of the Treaty. Without knowing the contents of the ommitted documents,
it is not possible to assess the significance of the mission. In the present context, however,
it is sufficient to refer to the document which appears at pp. 113-119 of the White Book and
is there introduced by the following heading:
"The Highly Important Vote of the Councellor of State, Pedro J.
Valenzuela, against the Boundary Convention. There is no Guaranty for
Guatemala in the Vagueness of Article 7, and England will never comply with
her Agreement".
In the courEe of his statement Mr. Valenzuela said of Article 7:
" it has the disvantage that such a provision is so indefinite because it
does not fix time, quality, duration or to other circumstances, that any obstacle
arising there from would easily frustrate the undertaking; if it had at least been
stipulated that the cession of that land would not take place, but that the Gov-
ernment could recover it in case the road should not be constructed in a pro-
per manner, there might then have been a probable balance in the contract".1
He continued later;
" the compensation which has been discussed in my opinion nothing more
than a formula of words which may delude momentarily; but which well con-
sidered is reduced to nothing . To trust the interests of a nation to the simple
word of the government of another, to hand over immediately and with full
dominion a part of its frontier territory without any condition is not prudent
nor proper for a foresighted government". 2
119. (ii) On the same date as ratification of the Treaty were exchanged, 12 September
1859, the British Consul in Guatemala conveyed to the Guatemalan Government a note
confirming the British Government's approval of Mr. Wyke's acceptance of Article 7
1. White Book. p. 114.
2. !bid., p. 115.
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"whereby the two parties engaged to cooperate for the establishment of a line of communi-
cation" and asking
"to be made acquainted with the views of the Guatemalan Government as
to the best means of giving effect to that article". 1
120. (iii) On 17 September 1859 the Guatemalan Government responded in terms
which indicated their view that "the line of communication" referred to in the British note
should be a "road" and desired that without delay "it (Article 7) be put into execution and
a work be undertaken by the two government ". The note proposed the immediate des-
patch of an engineer to commence the surveying and mapping of the line of communication. 2
121. (iv) By January 1860 more specific ideas were in evidence. The next material
document which the Wiiite Book prints is a note from the Guatemalan Foreign Minister to
the Guatemalan Envoy to France and Britain, Sr. Martin, dated 2 January 1860, expressing
the view?based on Sr. Martin's reports of his conversations with British officials and the
Minister's conversation with Mr. Wyke in Guatemala?that
"H.M.'s Government must assist us, furnishing us the engineers and direc-
tors of the work, as well as in the payment of the labourers; we contributing
on our part the material necessary and seeing that there are labourers to work
at fair wages".
The same note recorded Guatemala's view.
"that for the time being the most essential (idea) is the dispatch of the en-
gineers and the practical road director who should come to study the ground,
to see which are the most appropriate places to open the road; we reserving
the right to state later what should be done to carry out the plan". 3
122. (v) At about the same time?in January 1860?Captain Wray R.E. was sent to
Guatemala to make a report and estimate regarding the construction of a road. On 6 January
1861 he reolrted that the construction of such a road as was contemplated by the
Treaty would cost ?121,315 for materials and manual labour, besides ?24,115 for the scientific
direction of the work?totalling ?145,465. 4 This sum exceeded the original estimates of
both parties.
123. (vi) In the meantime, however, the tone of the correspondence passing between
Sr. Martin and the Guatemala Foreign Minister suggests that the two Governments were not
ad idem in their understanding of Article 7. In a note of 15 April 1860, to the Guatemalan
Foreign Minister Sr. Martin says he hopes to go to London and adds:
" I shall try to talk to the Minister to make him understand the true sense
of Article 7".
Sr. Martin asserts that the obligation assumed by Britain was that it would pay the skilled
and day labourers, whereas, apparently, the British Foreign Minister thought that the ex-
penses of material and labourers would be borne by the Guatemalan Government. 5
I. Ibid., pp. 126-127.
2. Ibid., p. 128.
3. Ibid., p. 114.
4. F. 0. Coafidential (5490), p. 7.
5. White Book, p. 147
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124 (vii) Between pages 149 and 165 the White Book then prints correspondence
passing between the Guatemalan Foreign Minister and Sr. Martin, as well as between Mr.
Wyke and the Guatemalan Foreign Minister and Sr. Martin respectively, the effect of which
was to show:
(a) that while the Guatemalan Government believed that Britain was going to pay the ex-
penses of the skilled, expatriate, personnel plus all the wages of the labourers, Mr. Wyke
appeared to think that the British Government were going to pay only half the wages of the
labourers;
(b) that the original estimate of ?,80,000 as being the total cost of the venture was wrong,
and that the cost was likely to be double that;
(e) that Guatemala appeared to expect that Britain would meet ?100,000 of this cost; and
that the two sides eventually agreed that the coastal terminus should be Izabal rather than
Santo Tomas.
125. (viii) By June 1861, Sr. Martin is reporting to the Guatemalan Foreign Minister
that the British Government expects to pay no more than ?50,000. 1
126. (ix) In September 1861 the Guatemalan Foreign Minister informed Sr. Martin
that if the British Government
"insists, in spite of our good right, that the expenses of the road are to be
paid in half in the sense which Lord John Russell understands",
he might make "this equitable settlement", 2
127. (x) The differences of view partly summarized in a memorandum prepared by
the Guatemalan Foreign Minister on 2 September 1861. He interpreted the terms of Article 7
as requiring Britain to pay more than half the cost. He stressed the undertaking that the
parties would conjointly use their "best means for the execution of the work" which he did
not see as reflecting an obligation to contribute equal shares. 3
128. (xi) On 27 January 1862, the British Minister in Guatemala in a note to the
Guatemalan Foreign Minister said that the terms of Article 7 "are so vague that a total dif-
ference of opinion has apparently existed in this interpretation". He conveyed a proposal
for the British Government that
"the two Governments shall each pay down a sum of E25,000 towards the
expense of contructing the road, and that the scientific superintendence shall
be exclusively at the charge of HMG, while the cost of providing the materials
required at the various points shall be exclusively defrayed by the Government
of Guatemala". 4
129. (xii) Yet on 13 May 1862, the British Minister still found it necessary to write
that, as a result of a conversation with the Guatemalan Foreign Minister, he apprehended
"that a serious difference of opinion may exist between HMG and that of
Guatemala respecting the share to be borne by each in making the projected
road to the Atlantic".5
1. Ibid., p. 166.
2. Ibid., pp. 174-175.
3. Ibid., pp. 176-178.
4. Ibid., pp. 180-181.
5. Ibid., p. 195.
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130. (xiii) There was further correspondence in 1862 between the British Minister
and the Guatemalan Foreign Minister which reflected the continuing absence of agreement
between the two sides. 1
131. (xiv) In May 1863 the Guatemalan Government proposed to the British Gov-
ernment a Convention to "supplement" the 1859 Treaty. The draft proposed that HMG
should contribute ?.60,000 and "any other indispenable expense" and should also designate
and send to Guatemala a skilled engineer, with assistants, to direct the project. This contri-
bution would be accepted by Guatemala as full compliance with Article 7 of the 1859 Trea-
ty. 2 After further exchanges an Additional Convention was concluded on 5 August 1863.
132. Conclusions relating to the period 1859-1863 The reason why we have set out in
some?but by no means complete-detail the nature of the differences which emerged between
the Parties regarding the interpretation of Article 7 of the 1859 Treaty is that?as will be seen
?this has a direct bearing upon the consequences of the failure, presently to be described, to
bring into force the supplementary convention of 1863. For immediate purposes, it is suf-
ficient to note that by their conduct in the period 1859-63, the parties showed that Article 7
taken by itself left unsettled the means of communication to be adopted, the coastal terminus
of the line of communication and, above all, the division of obligation between the parties,
especially with regard to the nature and extent of Britain's material contribution.
(b) The 1863 Convention and after
133. It is now necessary to refer more fully to the 1863 Convention? its terms and its
fate.
134. In the Additional Convention of 5 August 1863 it was agreed that HMG would
recommend to Parliament to provide ?50,000 in order to fulfil the obligation established by
Article VII of the 1859 Treaty. This sum was to be paid in five equal annual instalments.
135. The date fixed for the ratification of the additional Convention was on or before
5 February 1864. By that date Guatemala had not ratified it. On April 1864 the
Guatemalan Minister in London asked for one year's extension of the time for exchange of
ratifications. The reason he gave was that conditions of civil war in Guatemala had made it
impossible for the Guatemalan President to take the necessary action. At the same time,
the Guatemalan Minister used language which led HMG to believe that this was not the
true reason for the Guatemalan failure to ratify, but rather that they were waiting to see if
the canalization of the River Motagua could be effected. 3 The British Government de-
clined to accede to the Guatemalan request, taking the view that if the Government
of Guatemala chose to put off the exchange of ratifications beyond the term fixed, the 1863
Convenion for the present fell to the ground and the British Government would not consent
reopen the discussion.
136. In May-June 1866 the Government of Guatemala made a further attempt to per-
suade the British Government to agree to ratification of the 1863 Convenant. In so doing,
it proposed two 'clarifications" of the text. The first was that the engineers and other skill-
ed labourers who were to be in charge of the construction of the road might be procurred
1. See ibid., pp. 201-202, 205-208, 212-213, 214, 215, 216, 217. 219, 220, 221, 222, 224-225, 229-232,
233, 234-237.
2. Ibid., pp. 236-237.
3. Test in F.O. Confidential (5490), p. 7.
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in Europe "or in any other place" (in contrast with the original text which contemplated
procurement in Europe only). The second clarification was that, as regards the proof to
be given by the Guatemalan Government to the British Government of the satisfactory ter-
mination of each portion of the road, it should be understood that the Guatemalan Gov-
ernment's obligation "is to prove bona fide that work has been adequately done for this
purpose" (whereas the original text had spoken only of "satisfactory proof" and had re-
quired that the work be verified to the satisfaction of the two Governments by a person ap-
pointed for that purpose).
137. The British Government read these proposals for "clarification" as amounting
to suggestions for modification of the Convention. This interpretation strengthened the
British Government's adherence to its position that the Convention had lapsed.
138. The British reply of 29 August 1866 1 is of some importance. After quoting Article
VII of the 1859 Treaty, it said that "It cannot be denied that Her Majesty's Government have
used their best efforts to discover what adequate means could be found" and cited the activi-
ties of the survey expedition. The Note then referred to the 1863 Convention as laying down
"a new plan" which, by reason of non-ratification by Guatemala, had fallen to the ground.
But the Note did not stop at this point. It specifically raised the central issue. "The ques-
tion then remains in what manner shall the provisions of the Treaty of 1859 be carried into
effect?" It made the point that "the end originally contemplated" cannot be executed at
such a cost as "to render it remunerative in a pecuniary point of view to either of the Gov-
ernments" and asked whether it would not be better if the project should be abandoned "by
mutual consent". If the Guatemalan Government were to agree, that would be the end of
the matter. But if it were not to agree, then
"it will be for them to suggest a method of proceeding which shall give suf-
ficient security to HMG for the work being undertaken in an economical
manner, for an equal share of the expense being borne by Guatemala, and for
the commercial result being such as to justify the large outlay which, in any
case, must be necessary'. 2
139. In urging HGM to permit ratification of the 1863 Convention, the Guatemalan
Minister on 21 December 1866 said that Article VII of the 1859 Treaty had been introduced
at the express desire of the Guatemalan negotiator as a "decorous Form" of compensation
for the abandonment of Guatemala's territorial rights on Belize. 3 The British For-
eign Secretary replied on 3 January 1867 that it was his duty to state in the most ex-
plict manner that HMG never admitted the existence of Guatemalan territorial rights in
Belize, that the boundary had existed since the explusion of Spain, that the definition of the
boundary involved no element of cession and that the British negotiator had been expressly
prohibited from admitting into treaty anything which might bear that construction. 4 The
Foreign Secretary also explained that the reason why Britain had not agreed to the
Guatemalan request for an extension of time for ratification of 1863 Convention was that
the prospect of obtaining Parlimentary sanction for the proposed contribution of ?.50,000
had disappeared because the state of things in the country had materially changed to a point
at which "probably no Government would possess influence enough to obtain such a vote as
1. White Book, p. 272.
2. Ibid., p. 11.
3. F.O. Confidential (4982), p. 10.
4. Text in F.O. Confidential (5490), p. 12.
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would be required". The prospect in 1864 was doubtful: "but it was quite certain, in
the opinion of HMG, that the House of Commons would not sanction it in 1867", 1
140. Finally the Foreign Secretary made the point that by signing the Convention of
1863 and being ready to ratify it in 1864 at the appointed time, HMG
"had done all that was incumbent upon them to fulfil the engagement of the
Convention of 1859, and were thus released from the obligations of the latter
Convention by the conduct of the Guatemalan Government itself". 2
141. The immediate reaction of the Guatemalan Government was contained in Sr.
Martin's reply of 13 September 1866. 3 He made clear his disagreement with the British
assessment of the uneconomic character of the proposed road, indicated that Guatemala
could not offer better conditions of security and said that he could not see "what more
could be asked".
142. Further communications on the subject of the 1863 Convention were made by
the Guatemalan Government in December 1866, August 1867 and in September 1869. In
the third note (of 24 September 1869) the Guatemalan Minister referred to a speech by Mr.
Layard in the House of Commons on 16 May 1862 in which he acknowledged that the agree-
trent to construct the road was the "equivalent" of "certain concessions".4 The British
Foreign Secretary reiterated on 15 November 1869 that be cause of the Guatemalan delay in
ratilcation "the state of affairs had materially changed" and whole question had "lost its
interest". 5
At the same time, he reiterated that
"the territory which composes the British Colony of Belize was maintained
by Great Britain against the hostile attack of Spain while the two countries
were at war, long before the Republic of Guatemala had any existence. It was
not restored to Spain after the war, nor did Spain ever take any steps to re-
gain it. Guatemala never at any time, or in any way, had possession of it, and
could have no sort or right or claim to or over any part of it",6
143. A request by the Guatemalan Government in 1878 to reopen discussion on the
matter was declined by HGM, as was a suggestion of arbitration which the Guatemalan
Government made in 1880. 7
(c) Assessment of the question of breach as at 1880.
144. At this point it is convenient to attempt some answer to the question of whether
by 1880 Britain was in breach of Article 7 of the 1859 Treaty. We choose 1880 simply be-
cuse the fact that in that year Guatemala proposed arbitration indicates that by that date
Guatemala considered that there existed a justifiable dispute relating to the performance
of the Treaty.
145. While we shall presently be referring to various expressions of British official
opinion regarding the question of British fulfilment of Article 7 of the 1859 Treaty, we should
1. Ibid., p. 13.
2. Ibid.
3. White Book, p. 274.
4. Ibid., p. 14.
5. F.O. Confidential (5490), p. 14.
6. Ibid.
7. F.O. Confidential (4982), p. 17.
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?
37,
say now that it seems to us to be far from evident that Britain was by 1880 in breach of
the Treaty. As already stated, the reason why we have extended the description of the
course of events from 1859 to 1863 was to show that both parties were agreed that
Article 7 was so vague as to be inoperable for practical purposes. It could only be
implemented by a further specific agreement. This was achieved in the 1863 Con-
vention. But the Convention never entered into force and lapsed. We recognize
that there may be scope for an argument that the 1863 Treaty represented an
agreed interpretation of the 1859 Treaty and that in consequence its terms set a standard of
performance which Britain was required to meet even though the Convention never became
operative. However, such an argument, so it appears to us, fails to take into account the
elaborate history of negotiation which led up to the 1863 Convention. From this history it
is evident that the Convention was not simply an "interpretation". It was not limited to
recording an accord between the parties on a particular interpretation of Article 7 to which,
on an objective approach, a third party could have said the words as used necessarily led.
The fact is that the 1863 Convention contained a truly "legislative" element which added
specific content to Article 7 of the 1859 Treaty. Thus, when the 1863 Convention lapsed,
the parties were thrown back to the vagueness of Article 7 of the 1859 Treaty.
146. This is not to say that when the 1863 Treaty lapsed Article 7 of the 1859 Treaty
ceased to be a legally binding obligation. Not at all. It remained binding, but with no more
content than it orginally possessed. And as we have seen, the Parties were at one in their
inability to attribute specific content to it. In these circumstances, we find it impossible to
say that the fact that no line of communication has been built between the coast of Belize
and the capital of Guatemala means that Britain, and Britain alone, is necessarily in breach
of Article 7 of the Treaty. The only way in which Britain can be fixed with a breach of the
1859 Treaty is by showing that it has not made a good faith effort to "agree conjointly"
with Guatemala to use its best efforts to establish the easiest communications between the
places contemplated in the Treaty.
147. The fact that Article 7 refers to the establishment of "the easiest communications"
means that the content of the obligation will necessarily alter as and when alternative com-
munications develop. Hence the general character of any agreement which the Parties
could conceivably have contemplated reaching would have been bound to alter as alternative
means of communication developed between Guatemala and the coast of Belize.
148. At the same time, we recall that in its note of 29 August 1866 the British Govern-
ment specifically reminded the Government of Guatemala that if the latter did not
agree that Article 7 of the 1859 Treaty should be abandoned by mutual consent, it would be
for them "to suggest a method of proceeding". We bear in mind too that the Guatemalan
Government in its reply of 13 September 1866 adhered to its view that the road should be
built and that in December 1866 the Guatemalan Government invited the British Govern-
ment to study the matter again and proposed further negotiations. 1 Yet the British reply
of 3 January 1867 was quite negative in content. It rested upon the purely legal position
that the 1863 Convention had not been ratified in time and restated the belief that the benefit
of the proposed road would be much less than originially contemplated. It put forward no
constructive proposal. Moreover, in refusing in 1880 to agree to arbitration, Britain ex-
cluded all possible means of finding a constructive solution to the controversy.
1. p. 287.
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38.
149. In these circumstances, although we cannot indentify a precise breach by Britain
of Article 7 of 1859 Treaty, we find it hard to say that Britain used her "best efforts" to im-
plement Article 7. We would emphasize, however, that the obligation in Article 7 was a
joint one and, in a sense, to pose the question of breach in terms of breach by Britain alone?
as Guatemala has done?is to mistate the issue. To express the question in these terms is
impliedly to suggest that Guatemala alone stood to benefit from the contemplated construc-
tion of some means of communication and that Guatemala alone was injured by the fact that
a cart road was not built. The basis of this suggestion is never expressed and by some in-
articulate process (possibly reflecting the fact that Britain was the richer nation which bene-
fited, so Guatemala contended, by the earlier articles of the Treaty) the issue has come to be
stated solely in terms of injury to Guatemala and of Britain's alleged responsibility therefore.
150. However when the matter is probed more deeply, it must be recalled that Article
7 creates obligation for both parties with the stated object of benefitting both parties. We
have already placed emphasis on the words "they mutually agree conjointly to use their best
efforts." It is now appropriate to point also to the words "whereby the commerce
of England on the ont hand, and the material prosperity of the Republic on thr other, cannot
but be sensibly increased". This is the language of common benefit; not of benefit
to Guatemala alone.
151. In such a situation it is, of course possible in theory for one party alone to incur
the sole responsibility for the failure to achieve the common end which both agreed to pursue.
But the facts would have to show that that party had by its action alone, and in the face of
continuous, consistent and perfect endeavour by the other to achieve the common object, led
to the frustration of the endeavour. However, those are not the facts in the present case.
Guatemala's contribution to the adjectives. Whatever may have been open to criticism in
Britain's behaviour, Guatemala itself contributed significantly to the failure to implement
Article 7. We need mention no more than the facts that Guatemala did not ratify the 1863
and that it did not respond Convention positively to the British proposal made in 1866 that
if Guatemala wanted to maintain Article 7 it should "suggest a method of proceedings".
Yet these are important facts and must be seen as having contributed to the situation of
which Guatemala now complains.
152. In short, while we can find elements of legal responsibility in Britain's actions and
attitudes after 1863, we do not consider that Britain's conduct can be assessed in isolation
from that of Guatemala or that when a comprehensive look is taken at the conduct of both
parties the situation is one which warrants Guatemala's assertion of a "unilateral breach" by
Britain entitling Guatemala to regard the 1859 treaty as at an end. In any case, the question
?despite emphasis laid upon it by Guatemala?does not control the question of title to
Belize.
153. In section which follows we explain in detail why it is that even if Britain was in
breach of the 1859 Treaty, Guatemala is not now entitled to treat any such breach as an ef-
fective ground for terminating the Treaty.
(d) The position after 1880
154. As we read the history of relations between Britain and Guatemala subsequent
to 1880, it contains nothing which materially alters the above stated conclusion.
155. We note with respect the now public views of Sir Edward Hertslet, the Librarian
and Keeper of the Papers of the Foreign Office from 1857 to 1896, who performed in his time
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39'
many of the functions of a legal adviser to the Foreign Office, as well as those of various Law
Officers of the Crown. Thus, in June 1884, Hertslet expressed some doubt as to whether
HMG had indeed used its "best efforts" to make the road. He questioned whether the col-
lapse of the 1863 Convention had cancelled the obligations under the 1859 Treaty. 1 He
suggested that the Law Officers should be asked for an opinion. They reported that
"it may well be urged that there is a moral obligation, if not something more,
to take some steps to give effect to Article VII of the Convention of 1859". 2
The Lord Chancellor also expressed the view
'that the obligations of Great Britain under the Treaty of 1859 are such as to
justify the suggested application to Parliament (for a grant of ?10,000 a year
for five years)."
He "adhered" to the views expressed by the Law Officers and concluded thus:
"I cannot think it is a sound view that HMG, by incurring expense for a pre-
liminary survey, and signing and being ready to ratify the Convention of 1863,
have used their best efforts by taking adequate means for establishing the easiest
communication between the fittest place on the Atlantic coast and the capital
of Guatemala.
"The delay which has taken place and the changed circumstances may no
doubt require a modification of the original scheme; but as there seems to be
no doubt that recognition of British rights to certain disputed territory in Ar-
ticle I of the Treaty of 1859 was obtained in consideration of the understanding
contained in Article VII, it would appear to be only right that some substantial
effect should be given to that Article". 3
156. It is, we believe, worthy of comment that despite the care which Hertslet generally
bestowed upon his analysis of events, he does not appear to have considered specifically the
significance of the developments between 1859 and 1863. Moreover, he seems to have re-
garded the obligation of Article 7 which was "to agree conjointly to use their best efforts"
as the same as an obligation resting upon HMG alone to use its best efforts to build a road?
an indentification which we do not share. The Law officers, it may be noted, assessed the
situation in terms of "moral" rather than "legal" obligations as did the Lord Chancellor.
157. Although there have over the past century been intermittent exchanges between
Guatemala and Britain regarding the matter, we do not see those exchanges as materially
alterning the position. The century of unsettled controversy between Britain and Guatemala
from 1880 to 1978 may seem a long period to pass over without detailed examination, but
we feel that it is unnecessary to enter further into it because the historical core of the dispute
was fully established by 1880. Activity thereafter, though having some diplomatic import-
ance, has not really changed the basic condition of things. In any event, even if a breach was
established as alleged, we do not see it as sufficient to bring the 1859 Treaty to an end or
otherwise to restore title to Guatemala. To this latter aspect of the matter we now pass.
3. What is the legal consequence of any breach by Britain?
158. The next question for consideration is, therefore, whether the allegation of breach
of Article 7 if established is sufficient to bring the 1859 Treaty to an end.
I. Memorandum of 17 June 1884. F. 0. Confidential (4987), p. 18.
2. Text of opinion in F.O. Confidential (5490), p. 18.
3. Quoted in Memorandum of 2 June 1886 F.O. Confidential p. 3.
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159. The Guatemalan argument 1 is to the effect that the 1859 Treaty as a whole Is
thereby invalidated, and that, since the 1859 Treaty was a treaty of cession, the territory re-
verts to Guatemala. As indicated earlier, there is no real basis for regarding the 1859 Treaty as
a treaty of cession. Even on the most favourable construction, the most that total invalidity
of theTreaty would secure for Guatemala would be the revival of her claims as they existed in
1859. In short, the Treaty, which otherwise estops Guatemala from contesting the British
title tothe territory, would be removed as evidence of an estoppel and as a binding engagem-
ent. But to invalidate the Treaty would not as such give Guatemala any greater claim than
she possessed in 1859. Nonetheless, we address ourselves to the problem because it is as
well to grapple with each of the principal issues raised in the Guatemalan arguments.
160. The question, therefore, is whether Guatemala is entitled to repudiate or terminate
the 1859 Treaty as a whole because of tne alleged breach by Britain.2
161. The existence of a breach by one party to a Treaty provision serves to make the
Treaty voidable, not void; that is to say, the breach may in certain circumstances afford a
ground for termination, but any such termination flows from the decision of the innocent
party to treat the Treaty as terminated, and does not flow automatically from the breach.
162. As Oppenheim puts it;
"Violation of a treaty by one of the contracting States does not ipso facto
cancel the treaty; but it is within the discretion of the other party to cancel it
on this ground." 3
163. The point is of some importance because, although the treaty was concluded in
1859, the termination (if it occured at all) could only have occurred when Guatemala elected
to treat the whole treaty as terminated, that is to say in 1940. There are in any event, four
separate issues to be considered.
(a) Is the breach by HMG sufficiently "material" to justify termination?
164. It is not any breach of a Treaty which entitles the innocent party to treat as ter-
minated. Although the writings of jurists disclosed considerable variation on this point, 4
many make a distinction between a breach of provisions which are "essential",5 or "funda-
mental", 6 or "grave", 7 or contained a "fundamental benefit" 8 and those which were
not or did not.
I. The Guatemalan Chancellor's letter of 22 February 1940 stated:
" the Goverrment of Guatemala considers that the Government of His Britannic Majesty has
relinquished article VII of the Convention of 59, and therefore all the stipulations of the aforesaid
Convention
2. "The Government of Guatemala believes that because of the situation arising from the non-ful-
filment of the obligations on the part of Great Britain, it has the right to regain possession of the
territories ceded to Great Britain when adjusting the boundaries referred to in the Convention of
1859." Cited in Mendoza, op. cit p. 279.
3. International Law, Vol. I, 6th Ed. (Ed. Lauterpacht), p. 843. To the same effect see McNair, Law
of Treaties (1961), p. 553; American Law Institute's Restatement If the Law, Second, Fcreign
Relations law of the U.S. (1965), pp. 484-487, s. 158. This remains :he contemporary law. See
the Report of the I.L.C. (Yearbook of the I.L.C., 1966, Vol. II p. 254): "The Commission was
agree that a breach of a treaty however serious, does not ispo facto put an end to the treaty...
4.
4. For a comprehensive survey of the views of jw ists see Frangulis, Theorie et Pratique des Traites, pp.
135-6; Gyorgy Haraszti, Some Fundamental Prot lems of the Law of Treaties (1973), pp. 310-315.
Opphenheim, op. cit., p. 853.
6. McNair, op. cit., p. 571.
7. Harasza . op. cit., p. 322.
8. American Re-statcment, /oc cit., s. 158, Comment, para. e.
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165. The international Law Commission opted for a distinction between "material"
and "non material" breaches, preferring this to one, between "fundamental" and other
breaches. The rule as adopted in the Vienna Convention on the Law of Treaties? the most
authoritative contemporary statement of the law?is contained in Article 60:
"Article 60
(1) A material breach of a bilateral treaty by one of the parties entitles the
other to invoke the breach as a ground for terminating the treaty or suspending
its operation in whole or in part
(3) A material breach of a treaty, for the purpose of this article, consists in:
(a) a repudiation of the treaty not sanctioned by present Convention,
or
(b) the violation of a provision essential to the accomplishment of the
object and purpose of the treaty."
166. We can ignore (3) (a)?since HMG has not repudiated the treaty. Thus, the
essential question is whether Article 7 can be regarded as "essential to the accomplishment of
the object and purpose of the treaty" for only in such a case will the breach of Article 7 be
a "material" breach
167. It will be recalled that the 1859 Treaty was essentially a boundary treaty, and that
Article 7 was not included in the earlier draft with which Wyke had been equipped. Certainly
it is clear that Wyke felt it necessary to include Article 7 in order to get the agreement of the
Guatemalan Government. But if the object and purpose of the treaty was to agree on the
boundaries, it is evident that Article 7 providing for the construction of the cart-road was
quite extraneous to that primary object and purpose. In short, though perhaps essential to
secure Guatemalan consent, it was by no means essential to the actual demarcation of the
boundary. The 1859 Treaty would have remained a perfectly coherent, sensible treaty with-
out Article 7, and the object and purpose could have been achieved without Article 7. It
is therefore doubtful whether any breach by HMG of Article 7 constitutes a "material"
breach so as to justify termination by Guatemala.
168. This view is reinforced by looking at the benefits which Guatemala secured, quite
apart from the benefit for which she hoped from Article 7. The Guatemalan Government
had wanted certain benefits from the treaty, and those were the benefits which the Govern-
ment had referred to prior to the treaty, namely
(1) A settled frontier to avoid, giving to the U.S.A. an excuse for inter-
vention; 1
(ii) Protection from filibustering by having the British on the coast; 2
(iii) The presence of a powerful, friendly neighbour; 3
(iv) The security of Guatemalan territory to the west, and the benefits of a
stable, recognised frontier. 4
Thus, it would be wrong to regard Article 7 as the only benefit to derived by Guatemala, and
the fact that Guatemala derived other and substantial benefits from the 1859 Treaty rein-
forces the view that any breach of Article 7 was not sufficiently fundamental or "material"
so as to justify the termination of the entire Treaty?
1. The Foreign Minister (Manuel Pavon) to Wyke, reported by Wyke to Lord Clarendon, 27 Novem-
ber 1853; F.O. 15/79.
2. Martin's instructions to Aycinena, 16 June 1857: White Book, p.76, also p.80.
3. Draft of the Guatemalan Government dated 17 July 1857: ibid., p. 80.
4. See the Beagle Channel Award (1977), para. 118; also Temple of Preah Vihear Case. IV. Rert.
962 .3: "When two countris establish a frontier between them, one of the primary objects
is to achieve stability and finality". The White Book, p. 71, refers to the "thought that the de-
termination of a boundary would protect the rest of the territory against te aggressor's invasions".
See also Guatemalan Draft of 17 July 1857, ibid., p. 80.
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(b) Is Guatemalan justified in terminating the whole Treaty?
169. This is yet a further consideration. It does not necessarily follow that, even with
a "material" breach, the innocent party is entitled to terminate the whole treaty. For
where the provision breached is severable, that is to say, capable of being regarded as a dis-
tinct provision the fulfilment of which is not essential to the whole object and purpose of the
treaty, the innocent party may be entitled to terminate or repudiate that provision only. To
cite McNair:
" some common-sense limit must be placed upon the unity and indivisibili-
ty of the sum total of the provisions of a treaty, and that, as in other matters
such as the effect of war upon treaty stipulations, the circumstances may be
such, and the treaty may be so framed, that one stipulation can be severed from
the rest as if it had formed the content of a separate and independent treaty....
and
and that the breach of a stipulation so severable does not create a right to abro-
gate the whole treaty '
170. Similarly, Article 60(1) of the Vienna Convention on the Law of Treaties refers to
a material breach as a ground for terminating or suspending the treaty "in whole or in part".
And Article 44, which deals specifically with the separability of treaty provisions, provides
that, whilst termination will normally operate on the treaty as a whole, this will not be so in
the follow-case
"3. If the ground relates solely to particular clauses, it may be invoked only
with respect to those clauses where:
(a) the said clauses are separable from the remainder of the treaty with
regard to their application;
(b) it appears from the treaty or is otherwise established that accept-
ance of those clauses was not an essential basis of the consent of the other
party to be bound by the treaty as a whole; and
(c) continued performance of the remainder of the treaty would not
be unjust."
171. These texts suggest strongly that Article 7 is severable. The reasons given above
for the view that a breach of Article 7 is not "material" also support the view that Article 7
is severable from the rest of the 1859 Treaty. It was not essential to the boundary treaty, it
required a totally different method of application from the other clauses (hence the abortive
1863 Convention), and its non-fulfilment did not deprive Guatemala of all the benefits of the
treaty. To say that Article 7 was necessary to induce the Guatemalan Government to sign
is not the same as saying Article 7 was an "essential basis of the consent" of Guatemala.
For example, in an exchange of territory, the cession of the one part is the quid pro quo for
the cession of the other?an "essential basis of the consent". But where, in boundary treaty,
some additional inducement is included, as was Article 7, that additional inducement is in-
cluded, as was Article 7, that inducement goes to making the bargain more attractive but it
does not necessarily form an "essential basis of the consent" in the sense that Guatemala's
obligations would only be explicable on the basis of HMG's obligations under Article 7.
Indeed, this is the more so when one recalls that Article 7 did not include simply obligations
on HMG, but joint obligations on both parties. There is, of course, the counter-argument
I. Op. elt.,p. 571
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that Article 7 must be regarded as an essential basis of Guatemala's consent (and therefore
non-severable) because that was all Guatemala got out of the treaty. But this would be to
ignore the other, and quite substantial, benefits which Guatemala did in fact derive from the
Treaty.
172. Thus, one may question whether the breach of Article 7 is "material"; one may
question whether, even if "material", the breach entitles Guatemala to terminate the whole
treaty; and one may similarly question whether Article 7 is not severable from the remainder
of the Treaty. In the final analysis, however, it is not these questions which defeat the Gua-
temalan claim but a quite different point, namely, that Guatemala in any event failed to in-
invoke the supposed ground for termination within a reasonable time.
(c) Did Guatemala terminate the Treaty in good time?
173. There is overwhelming authority for the proposition that, if the right to terminate
for a material breach is to be validly exercised, it must be exercised within a reasonable time
after the breach. 1 Indeed one of the well-known precedents for this proposition relates to
Belize itself. The U.S. had taken the view that in extending the area of settlement and con-
verting the settlement into a colonly, HMG was in breach of the Clayton-Bulwer Treaty of
1850. Nonetheless, Secretary of State Olney, in a memorandum of 1896, conceded that the
U.S. had, in effect, forfeited any right to treat the treaty as terminated by the breach because
the U.S. had not acted within a reasonable time but had, on the contrary, continued to treat
the treaty as a valid, subsisting treaty. He said:
"In no instance have the former failed to deal with the treaty as a binding
obligation?in no instance, when occasion justified it, has this Government
failed to call upon Great Britain to comply with its provisions?while, during
the first ten years of the life of the treaty, when it might have been abrogated,
either for violations by Great Britain or with the latter's consent, the United
States steadily insisted upon holding Great Britain to its obligations. Under
these circumstances, upon every principle which governs the relations to each
other, either of nations or of individuals, the United States is completely es-
topped from denying that the treaty is in full force and vigor," 2
174. The International Law Commission treated the matter in its Report on the Law
of Treaties in terms of the circumstances leading to a loss of the right to terminate a treaty.
Speaking of this provision, the Rapporteur, Sir Humphrey Waldock, said':
"Article 47 was intended by the Commission to apply to certain grounds of
invalidity and termination a rule giving effect to the principle of preclusion
(estoppel) found in cases such as that concerning the Temple of Preah Vilhear
an implied agreement to be bound notwithstanding a right orginally to in-
voke a particular ground of invalidity or termination."3
175. The reasoning was, therefore, that a State continuing to regard a treaty as valid
was precluded or estopped from invoking a ground for termination: in short, reasoning iden-
I. McNair, op. cit., p. 571; American Law Institute, Re-statement, kc. cit., S. 158(1); Harvard Draft
Convention of the Law of Treaties, 29 A.J.I.L., Suppl. 1935, Article 27; Detter, Esays onthe Law
of Treaties (1967, p. 93: Haraszti, op. cit., p. 323.
2. 3, Moore, Digest of International Law, 1906, pp. 207-8.
2. Fiin Report on the Law of Treaties, Yearbook of the I.L. C'. 1966, Vol. II, pp. 6-7.
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tical to that used by Secretary of State Olney. It is based on the need for the State to invoke
the ground for termination within a reasonable time. As Sir Humphrey Waldock said:
" the fundamental concept is that a State must invoke a ground for invalidi-
ty, termination or suspension within a reasonable period of time, having regard
to all the circumstances of the particular case." 1
176. The particular provision of the Vienna Convention dealing with the loss of a right
to invoke a ground for termination is Article 45:
Article 45:
"A State may no longer invoke a ground for invalidating, terminating, with-
drawing from or suspending the operation of a treaty under articles 46 to 50
or articles 60 and 62 if, after becoming aware of the facts:
(a) it shall have expressly agreed that the treaty is valid or remains in force
or continues in operation, as the case may be; or
(b) it must by reason of its conduct be considered as having acquiesced in
the validity of the treaty or in its maintenance in force or in operation, as the
case may be."
177. It is clear from this text that once knowledge of the facts regarded as constituting
a breach is acquired the "innocent" party must exercise its right to terminate within a rea-
sonable time and must not by its conduct "acquiesce" in the continued validity of the
treaty. It is also clear that loss of the right to terminate by acquiescence, by "implied" con-
sent? for that is the principle of Article 45 (b)?was a proposition actively opposed by
Guatemala at the Vienna Conference. Guatemala was one of 8 States supporting an amend-
ment to delete paragraph (b). 2 But this amendment was rejected 3 and there is no doubt
that the right is, and always was, lost by "acquiescence".
178. It remains to consider the conduct of Guatemala in the light of this principle.
Guatemala knew all the facts upon which any allegation of a breach of Article 7 might rest
by 1864, when HMG declined to allow Guatemala the extension of time for which she asked
in order to ratify the 1863 Convention implementing Article 7. At the very least Guatemala
knew of the facts and believed a breach to exist in 1880 for in that year Guatemala proposed
arbitration. 4 This is only explicable on the basis that Guatemala believed HMG to be in
breach of the 1859 Treaty. Yet it took another 60 years?until 1940?for Guatemala to al-
lege formally that she regarded the Treaty as terminated.
179. During those 60 years the conduct of Guatemala can only be explained in terms
of her "acquiescence" in the Treaty, as the following illustrations demonstrate:
(1) In 1884 the Guatemalan representative, Medina, whilst adverting to the
alternatives that the 1859 Treaty must be either fulfiled in toto or termi-
nated, put HMG to the election rather than electing, on behalf of the
Guatemalan Government to regard the Treaty as terminated. 5
I. Ibid.,. p 7..
2. Official Records of the Vienna Conference, 1st Sess. 1968, (A/CONF. 39/C.I/L. 251 and Add. 1-3), p.390
3. /bid., . p 401, rejected by 47 votes to 20 with 27 absentions at the 69th Meeting of the Committee of
the Whole.
4. Ante, paragraphs 143 and 144.
5. See Letter to Lord Granby dated 5 April 1884 in White Book, p. 344.
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(ii) In 1916, 1924, 1929 and 1933 joint British/Guatemalan boundary de-
marcation projects were undertaken. These necessarily pre-supposed
that the boundary to be demarcated on the ground was that already defined
in the 1859 Treaty. 1 The Exchange of Notes of 25 and 26 August
1931 2 is the clearest recognition of this. The Note from HMG provided:
"The boundary between British Honduras and the Republic of
Guatemala was laid down in the Convention (of) 30th April 1859,
Article 1 "
The Guatemalan reply made no objection to this recital.
WO The Guatemalan Government continued to demand that HMG should
implement the Treaty, a course of action totally inconsistent with regard-
ing the Treaty as terminated for breach. For example, as late as 4 March
1933, in the context of a further request from the British Charge d' Af-
faires for the appointment by Guatemala of Engineers to examine a de-
marcation carried out unilaterally by British engineers, the Guatemalan
reply from Minister Klee was in these terms;
" I would desire to be informed by His Britannic Majesty's Government
whether, in compliance with the Convention of April 30, 1859, it would be
prepared to put into due effect the bilateral stipulations contained in article
VII of said convention." 3
Indeed, the Guatemalan Chancellor made an express demand that:
" on the part of His Majesty's Government the express statement be made
that it is prepare to satisfy, on its part, the obligation which pertains to it by
article VII of the Convention of April 30, 1859. " 4
And on 24th April 1934, Chancellor Klee, before accepting the report on boundry demarca-
tio, sought clarification and agreement "as to the manner in which the British Government
is to comply, on its part with the obligations assigned to it by article VII of that
Convention." 5 Moreover, the Guatemalan Government regarded the whole treaty as con-
tinuing in force, for in May 1934 Chancellor Klee stated:
" the Government of Guatemala, in order to authorise the demarcation
of the frontier defined in the convention of April 30, 1859 must know whether
His Majesty's Government are prepared to comply integrally with that pact,
through due satisfaction of the compensatory stipulations of its article VII." 6
180. As late as 11 September 1935, Chancellor Klee in a formal note to HMG was
referring to 'the absolute necessity of giving effective compliance to article VII of that Con-
vention". 7 And in March 1938 Guatemala again "renews it's demand for integral compli-
2. See the Guatemalan Note of 1 May 1933: "the Government of Guatemala accepts that the engi-
neers of the Colony of Belize proceed with the demarcation of the boundary withGuatemala,
precisely in theplace established by the Convention of 1859 ": cited in Mendoza, op pit., p. 253.
WhiteBook, pp.364, 367.
3. Martens, 3rd Ser. XXVI (1933), 42-48.
1. Cited Mendoza, op. cit., pp. 251-252.
2. Ibid., p. 253.
3. Ibid., p. 255.
4. White Book, p. 413.
5. Ibid., p. 424.
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46.
ance with the Convention of 1859 " 1 Thus, the conclusion must be that as late as 1938.
some 60 years after the claimed breach of Article 7, Guatemala had not attempted to termi-
nate the Treaty but, on the contrary, was insisting on full compliance by HMG. 2 There
could scarcely be a clearer illustration of "acquiescence". The sudden desicion in 1940 to
terminate was thus far too late to have any effect in law.
IV. SELF-DETERMINATION
181. The principal part of this Opinion has been devoted to an examination of the
question of title to Belize in terms of traditional international law. Our concentration in
this respect has reflected the emphasis which in the public exposition of its case Guatemala
has placed upon such elements as uti possidetis and Article 7 of the 1859 Treaty. We feel
that we have said enough to show that in terms of the traditional law of nations the claim by
Guatemala to Belize cannot be upheld.
182. There is, however, room for a brief suplement to our statement of the traditional
law. As is well known, questions of title in international law must be determined by refer-
ence to the concepts of law operative at the various stages in the history of the territory in
question (the so-called principle of "inter-temporal law"). One does not judge the validity
of a nineteenth century title by twentieth century standards, nor of a twentieth century title
by nineteenth century rules. So, to look at the matter to-day excluively in terms of concepts
such as occupation and the fulfilment of treaty obligations one hundred and twenty years old
may not be sufficient if the current approach to the determination of rights in territory re-
quires consideration of other factors. In the present situation, it is obviously necessary to
advert to the concept of self-determination.
183. There is no need at this stage of an already long opinion to develop in any detail
the concept of self-determination. It is the subject of a substantial literature. 3 It is ir-
reversibly established in the practice of States and of the United Nations. It has found ex-
pression in at least two 'major General Assembly resolutions:
(a) the Declaration on the Granting of Independence to Colonial Countries and Peo-
ples (Resolution 1514 (XV)' The resolution provides inter alio;
"2. All peoples have the right to self-determination; by virtue of that right
they freely determine their political status and freely pursue their economic,
social and cultural development.
"5. Immediate steps shall be taken, in Trust and Non-Self-Governing Ter-
ritories or all other territories which have not yet attained independence, to
transfer all powers to the peoples of those territories, without any conditions
or reservations, in accordance with their freely expressed will and desire, with-
out any distinction as to race, creed or colour, in order to enable them to enjoy
complete independence and freedom.
"6. Any attempt aimed at the partial or total disruption of the national
unity and the territorial integrity of a country is incompatible with the purpose
and principles of the Charter of the United Nations."
I. Ibid., p. 432.
2. Report of the I.L.C. to the General Assembly, Yearbook of the I.L.C. 1966 Vol. II, p. 225.
3. See, for example, A. Rigo Sureda, The Evolution of the right of selidetermination: a study of U. N.
Practice (1973): Decolonization, Fifteen Years of the U.N. Declaration on the Granting of Indepen-
dence to Colonial Countries and Peoples a Publication of the U.N. Dept. of Political Affairs, Trus-
teeship and Decolonisation, Vol. II, No. 6. December 1975; Umozurike, Self-Determination in Inter-
national Law (1972).
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47.
(b) the 1970 Declaration on Principle of International Law concerning Friendly Rela-
tions and Cooperation among States also contains comparable provisions:
"By virtue of the principle of equal rights and self-determination of peoples
enshrined in the Charter, all peoples have the right freely to determine, without
external interference, their political status ..and every State has the duty to
respect this right in accordance with the provisions of the Charter.
Every State has the duty to refrain from any forcible action which deprives
peoples of their right to self-determination and freedom and independence.
Every State shall refrain from any action aimed at the partial or total disrup-
tion of the national unity and territorial integrity of any other State or
country."
184. The International Court of Justice has also recognized the place of the concept in
contemporary international law. In its Advisory Opinion of 21 June 1971 on Namibia the
Court spoke of the development of international law in regard to non-self-governing terri-
tories as follows:
"A further important stage in this development was the Declaration on the
Granting of Independence to Colonial Countries and Peoples (General
Assembly resolution 1514 (XV) of 14 December 1960), which embraces all
peoples and territories which 'have not yet attained independence"." (I.C.J.
Reports 1971, p. 31.)
It went on to state:
" the Court must take into consideration the changes which have occured
in the supervening half-century, and its interpretation cannot remain unaffected
by the subsequent development of Law, through the Charter of the United
Nations and by way of customary law" (ibid).
The Court then concluded:
"In the domain to which the present proceeding relate, the last fifty years,
as indicated above, have brought important developments. These develop-
ments leave no doubt that the ultimate objective of the sacred trust was the self-
determination and independence of the peoples concerned. In this domain, as
elsewhere, the corpus iuris gentium has been considerably enriched, and this
the court, if it is faithfully to discharge its functions, may not ignore,"
(Ibid., pp. 31 f.)
The validity of the principle was again re-affirmed in the Advisory Opinion on Western
Sahara (I.C.J. Reports 1975, esp. at pp. 31-33).
185. More to the point, even, the specific applicability of the concept to the status of
Belize has been massively accepted by the international community. This is evidenced by
the views of the Commonwealth Heads of Government as expressed at Kingston, Jamaica in
1975 and again in London in June 1977, in the Declaration of the Fifth Conference of Mi-
nisters of Foreign Affairs of Non-Aligned Countries, held in Lima, Peru in August 1975,
and by the Heads of State and Government of the Non-Aligned Countries in Colombo, Sri
Lanka in August 1976; in the Conference of CARICOM Heads of Government held in
St. Lucia in July 1974; and; most importantly, by resolutions of the United Nations General
Assembly. By Resolution 3432 (XXX) of 8 December 1975,1 the Assembly.
1. Adoped by 110 to 9, with 16 absentions.
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"1' Reaffirms the inalienable right of the people of Belize to self-determina-
tion and independence;
"2' Declares that the inviolability and territorial integrity of Belize must be
preserved;
"3. Declares that any proposals for the resolution of these differencs of
opinion that emerge from the negotiations between the administering Power
and the Government of Guatemala must be in accordance with the provisions
of paragraphs 1 and 2 above;
186. This resolution was reaffirmed, in virtually identical terms, on 1 December 1976
in Resolution 31/50 and again on 28 November 1977 in Resolution 32/32. The terms of
these resolutions could scarcely he more emphatic' and it will be noted that they are specifical-
ly addressed to the issue of partition of the territory, declaring that the territorial integrity
of Belize must be preserved.
187. However, it appears that Guatemala rejects not only the competence of the Gene-
ral Assembly to express a view on the dispute?and especially on the application of the prin-
ciple self-determination to that dispute?but also rejects the principle itself in its application
to Belize.
188. There is many no substance in the Guatemalan objections to the A sserr bly's com-
petence. Examination of the General Assembly's action in relation to self-determination
over the pasi twenty or more years shows that in so far as self-determination is viewed by the
Assembly as an international legal right of all peoples, a State may not oppose the Assembly's
expression of interest on the basis that the matter must be left exclusively to the negotistions
of the parties. There have been many examples of the exercise of the Assembly's competence
concurrently with negotiations between the parties (Algeria, 1961; West Irian, 1955,
Gibraltar, 1967, the Falkland Islands, 1976; Timor, 1975). Indeed, the practice of the As-
sembly is to retain a "watching brief" over negotiations between the parties concerned to
ensure that the outcome is consistent with the right of self-determination.
189. The second Guatemalan objection to the application of the principle of self-deter-
mination to Belize lies in the Guatemalan view that self-determination cannot prejudice a
State's right to recover its territory. Indeed, in 1960, when General Assembly Resolution
1514 was being voted on, Guatemala proposed (but later withdrew) the following addition:
"the principle of self-determination of peoples may in no case impair the
right of territorial integrity of any state or its right to the recovery of territory". I
190. There are obvious difficulties in the Guatemalan position. First, as shown earlier
4 is not possible to sustain the Guatemalan claim to any part of the territory of Belize; all
that Guatemala has is a possible claim against the United Kingdom for non-fulfilment of
Article 7 of the 1859 Treaty. Second, the Guatemalan claim overlooks the fact than save
perhaps for a small minority, the people of Belize do not wish for union or association with
Guatemalan but clearly want complete independence. 2 Thus, whilst there may be some
1. G.A.O.R., 15th sess. Plen. Mtg. 947th, A/L.325, Emphasis added.
1. See text of the letter dated 6 June 1977 from the Hon. George Price, Premier of Belize to Common-
wealth Heads of Government.
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justification for the Guatemalan view that self-determination does not impair a State's right
to recover territory where the inhabitants of that territory themselves wish for reunion with
the claimant State, it is an entirely different matter to suggest that a claim to recovery of ter-
ritory prevails over the right of self-determination to the extent that the claim must succeed
despite the contrary wishes of the inhabitants. Such a view would, in many areas
of the world, produce a complete negation of the right of self-determination. And it has
certainly not be accepted by either the General Assembly or the International Court of Jus-
tice?as is evidenced by the sentence in the Court's Advisory Opinion on Western Sahara
in which it stated?without any adverse comment?that all General Assembly resolutions on
the self-determination of Western Sahara "were adopted in the face of reminders by Morroco
and Mauritania of their respective claims that Western Sahara constituted an integral part
of their territory".. 1
191. It is important to emphasis that in the present dispute there is a direct conflict
between the Guatemalan claim and the right of self-determination. The fact that the Ge-
neral Assembly has thrown its weight behind the latter is scarcely surprising. For on the
One hand we have a claim to territory based upon the uti possidetis of 1821, but relating to
territory never actually occupied by either Spain or Guatemala, and on the other hand we
have a principle?the right of self -determination?which may be viewed as part of the con-
temporary jus cogens, a premptory norm of international law, and which has proved to be
amongst the most influential of all the principles governing United Nations action.
1. I.C.J. Reports 1975, p. 35M
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so.
V. CONCLUSION
192. This brings us to the close of this Opinion in which we have examined the ques-
tion of title to Belize. As we began the Opinion with a summary of our views there is no
need to repeat what has already been said. We conclue only by emphasizing the essentials:
that the territory was British before 1859; that the 1859 Treaty is, therefore, not a treaty of
cession; that it is arguable that Britain may have been in breach of Article 7 of the 1859
Treaty, but that any such breach, can in no way establish a title to Belize in Guatemala; and,
finally,that in any event contemporary international law requires regard to be had to the
principle of self-detrmination?the effect of which is emphatically to exclude the
Guatemalan claim.
E.L.
D.W.B.
18 September, 1978.
3 ESSEX COURT,
TEMPLE, E.C. 4.
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"This booklet contains the full text of an Opinion on the question of title to the territory
of Belize prepared by two well-known and experienced British inter-national lawyers, Mr. E.
Lauterpacht, Q.C. and Dr. D. W. Bowett, Q.C. It should be emphasised that Counsel were
not asked to produce a brief in support of the position of the Government of Belize. Instead,
to use the words in which the case was sent to them, they were requested to write an opinion
'dealing with the legal history and status of Belize in international law and in particular with
the merits of the Guatemalan claim to Belize'. The tradition of the English Bar is that the
response to a request of this nature is met in as objective a manner as possible". "
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