We are getting close. The most important decision of our young country is about to be made — by us. The referendum to decide if Belize will go to the International Court of Justice (ICJ) to settle the 150 year dispute with our neighbor to the west is little more than a month away. And if you are like me, you still haven’t made up your mind which way you will vote.
Most people I talk with agree on what is at stake. It is clear that a YES vote will send us to the ICJ ending the 150 year dispute with Guatemala over our borders. What is not clear to many is if that dispute will end with our current borders intact, or part of our country amputated. A NO vote keeps the status quo. Our borders will remain as they are, but the pressure and antagonism from Guatemala may continue till the next special agreement or treaty or skirmish occurs. Or a peaceful “cure” may be found by the next generation of leaders in both countries.
There are so many reasons why a NO or YES vote is a difficult decision. First, we are being asked to make a judgement on a legal matter. Few of us have the legal background to fully understand the nuances of the case or the court. We do know that there are an equal number of learned legal minds advocating for both sides. Unfortunately most advocate as if it were a debate, dismissing everything the other says while talking over each other with a louder voice. Not once have I heard “You have a valid point there” from either side. How can we non-lawyers make sense of the legal bickering?
Second, the issue has become a political inferno. Name calling is heated, character assassination is scorching, and I wouldn’t be surprised if bluenotes rained down in abundance on April 10th like ash. The PUP burns NO. The UDP blazes YES. A decision as important as this needs to leave party aside. As Belizean national hero George Price once quipped “National interest must override party politics”. If we are to believe George Price, it is important that each citizen makes the decision based on learned knowledge or trusted opinion, not on a Red or Blue flame. Unfortunately, as mentioned in the previous paragraph, educating ourselves in legal matters sufficient to make an informed decision is difficult, in some cases impossible. And finding trusted opinions about legal matters is even more difficult as outlined in a previous article here .
Third, leaving politics aside, the issue has become polarizing. You are branded a true patriot if you vote NO — “…not one blade of grass!!” becomes the rallying cry. You are likened to the Baymen at the Battle of St Georges Caye if you vote YES — “…imagine where we would be if they did not fight!!”. You are a traitor if you do not vote NO. You will burden our future generations with the dispute if you do not vote YES. Voices rise, arguments ensue, no one listen to each other. You are either for us or against us!
Fourth, and to me the most disheartening, is that, for many, life gets in the way of making an informed decision. While people can still put food on the table, most are struggling to get ahead — ahead of payments, of finding time with our families, of getting enough sleep, meeting social obligations, dealing with illness, fighting domestic abuse and the list goes on. People are tired just trying to live productive and fulfilling lives in a society so broken. Every day seems a battle and the TV and social media become the sedatives of choice. That means there is precious little time or energy to research and determine just what you should do about an issue that is very difficult to touch.
“Difficult to touch” means can anyone even imagine turning half our country over to Guatemala, let alone one blade of grass? It really is inconceivable. Voting YES and winning at the ICJ, keeping our current borders intact and ending the Guatemalan claim would be beyond wonderful…but what would it change? Would Guatemalan fisherfolk still harvest from our southern waters? Would Guatemalan poor still invade the Chiquibul? Would we still encounter Guatemalan gunboats in the Sarstoon?
And what happens if we maintain the status quo with a NO vote? We have been living with incursions into the Chiquibul, removing settlements along the Western Border, enduring harrassment on the Sarstoon, murder at Caracol and killings along the adjacency zone for decades, and except for a handful of Belizeans, no one is inconvenienced or impacted. While the border issue is part of our history, it has not been part of daily lives — till now.
First of all, you have to realize how important your vote is. Think about this. The political nature of this referendum means that the political parties may cancel each other’s votes out. The rabid YESers and NOers may cancel each other’s votes out. That means the decision may be made by those undecided and non-political…basically you and I. That is an awesome amount of democratic power in our ballot. Don’t waste that.
Even before we even get to the referendum, you should know that a major argument of the NO camp is that there is no dispute. We know our borders and there is no need for the ICJ to determine them for us — you have to determine if this is a realistic claim when dealing in international disputes in this strange age where anything seems to go.
Also, attorneys in Belize are preparing to challenge the Special Agreement (the treaty that sets up the referendum and outlines how both countries will present at the ICJ) in the Supreme Court, questioning its legality, validity and constitutionality. So there is a possibility that the referendum will be postponed, despite what the Prime Minister says, or possibly even constitutionally invalidated.
Assuming the referendum takes place, how are we to make an informed decision about this complex legal matter with unimaginable consequences? Fortunately, the Belize Bar Association commissioned an independent study of the issue by a very experienced and learned professor from Jamaica, a Prof. Stephen Vasciannie (PSV). You can view the document here. While PSV concluded that Belize has a very strong ICJ case, he did qualify that the case is not without risk. It is paramount we understand the risks.
PSV reports that the main weakness of the Belizean case arises from the fact that this dispute turns on questions of history about which opinions differ. Determining and proving the date of the original British title to the area stretching from the Sibun to the Sarstoon River is not an easy matter. He says that title to the disputed territory prior to 1821 Independence is not entirely free from doubt. This is critical to Guatemala’s case as he writes “…where the territory which is the subject of the dispute is effectively administered by a State other than the one possessing legal title, preference should be given to the holder of the title.” I understand that to mean if Guatemala can prove title prior to 1821, then they have a strong case, something the YES people divine won’t happen.
Central to the NO position is the premise that the Special Agreement is too broad (as well as being unconstitutional), allowing the Guatemalans to bring in evidence prior to the 1859 treaty — specifically evidence of title prior to 1821. Some NO’s say that Belize should have restricted the ICJ case to just the validity of the 1859 treaty, which is our strongest point. The YES’s counter that the “any and all” phrase in the Special Agreement was purposefully done to end every claim that Guatemala could bring in the future, even though it might introduced what they call negligible risk.
Unfortunately, Guatemala’s entire claim seems to “…proceed on the basis that Guatemala derived title to Belizean territory in 1821. The legal basis for the claim is the uti possidetis juris principle which, for Guatemala, is binding as customary international law. The claim also rejects the idea that the 1859 Treaty between Guatemala and the United Kingdom operated to transfer title from Guatemala to the United Kingdom, and by extension to the current State of Belize.”
In other words, as bizarre as it sounds, “…two postcolonial States, Guatemala and Belize, will be called upon before the Court to rely on arguments originating from the imperial Governments of Spain and the United Kingdom to justify their positions…(Belize) now finds itself (having to) defend its territory on the basis of 17th century log cutters, equivocal 19th century negotiators, a British Government that ostensibly failed to meet its obligations to share in the cost of building a cart road or some suitable riparian alternative…”. Again, the risk, though ostensibly small, does not disappear by the import of its size.
The Belizean case may also face a particular challenge concerning Article 7 of the same 1859 Treaty — the infamous “road” to the sea that the British where to help build. The Court could take the view that Article 7 cannot be ignored: it is or was a British commitment that was never fulfilled. PSV says “…Thus the Court may wish to find some way of giving effect to Article 7 if it is to uphold the Belizean boundary…”. The YES camp declares Article 1 delineating the boundary between countries is not dependent on Article 7, so they counter there is minimal risk again.
Finally, PSV states that “…it is important to ensure that the British, Spanish and Guatemalan archives are fully surveyed to ensure that all key documents are available … this will also prevent the possibility of surprise in the litigation, an ever present risk when more than 300 years of documentary evidence have to be assessed…” . Is there a risk that we missed something? Maybe there was a secret agreement made somewhere along the line that we haven’t found? Secret by definition is something designed to escape notice. We know how fond our governments are of secret agreements and how they turn out in Belize. It usually costs us — the taxpayers — millions of dollars in legal fees. In this case it could cost us half our country.
Basically, the ICJ case for Belize, according to Professor Stephen Vasciannie, is exceptionally strong but does present risk. And, outside of this very credible legal opinion, we still have to take into account that the international lawyers we hire to represent us at the ICJ will have the same people that have led Belize to our current state of affairs (see previous article here) as clients. The clients (GOB) will have the final say in any decisions that need to be made along the way. The YES camp admits that Belize does not have, in country, the required expertise to represent us at the ICJ. Hence, we will still need to believe and trust in the leadership and decision-making capabilities of our broken government (the current and future ones) to navigate the ICJ journey.
Taking the admittedly unscholarly minimal discussion above which attempts to summarize the main weaknesses of our ICJ case, how do we make a decision? Let’s first agree that everyone wants the same thing, to end Guatemala’s claim on our territory without giving up one blade of grass. Where we actually disagree then is the risk we are willing to take to achieve that end.
One group of what I consider very reputable people claim they are 100% sure Belize will win at the ICJ without giving up a single blade of grass. They tell me they just can’t say “we 100% guarantee a win” in public because people get upset when they do and it is unethical in law to guarantee a ruling. I suggest we wave the unethical guarantee in this case and let them come forward and guarantee a win if that is what they truly believe. There should be no “hedging your bets” on this issue.
The other group of very reputable people tell me that there is only a 50–50 chance of coming out of the ICJ with our country intact — a bit disingenuous in light of the just published legal opinion. Both sides would do a great service to the country if they fairly and patriotically let people know what the real doubts and risks are, what the chances of winning and the consequences of losing are and let the people determine if there is too much risk or not. We are all on the same team, we should strategize together, not undermine each other. Where is the risk matrix?
Taking into account numerous discussions with proponents from both the YES’s and NOs, studying historical documents and legal opinions, listening to countless arguments and debates, and being unable find any risk matrix, I am forced to conclude my own risk assessment. I personally settled at an estimate of a 90% chance that Belize can come out of the ICJ whole. That means for me, there is around a 10% risk that something will go wrong, something unforeseen will develop, a question or evidence or secret agreement or ruling we did not expect will materialize and we will find ourselves facing the inconceivable. The stakes could not be higher, equivalent to you making a decision about the person you love the most living or dying.
In fact, one way to look at this is to make the decision a matter of life or death. Let’s assume someone you love — a daughter or son, husband or wife, mother or father — is living in excruciating pain, a debilitating racking torment that you can feel and breaks your heart when you see them. No amount of medication relieves the pain. What causes the pain is not lethal to date, but it also shows no sign of going away. Doctors have been searching 40 years for a cure without luck.
Then one day a team of researchers discover a magical cure. This cure will return your loved one to full health, completely free of that horrible daily agony. And on top of that, it has a 90% cure rate. One week after administering the cure, 9 out of 10 people will walk out of the hospital misery free.
Unfortunately, 1 out of 10 people will die from administering the cure. The person you love most in the world has a 10% chance of dying from taking this specific “cure”. You have to make a choice. What do you do?
“What level of risk are you willing to accept to lose your country?” is the question I ask — the stakes could not be higher. But I believe we all, the YESers and the NOers, have a lot more in common than we realize — we are all patriots; we all love our country; Belize is the only country and home we have; and we all love it more than any other country. Like the US moon program of the 1960’s, we should all be working together to achieve a common goal instead of brawling like enemies.
Unfortunately, that is not happening. We have opposing sides, and they tend to obfuscated the entire issue for me. So, I suggest we leave the details to the experts — but listen to both sides cautiously. I suggest both political parties issue gag orders, or you stop listening to them, as far as party policy. I suggest you estimate the risk the best you can, decide on what you are willing to accept, then vote. If you vote YES, roll the dice and let the butterflies commence. If you vote NO, grit your teeth to the coming pain — one we have been living with for almost 40 years as an independent country. Either way, we should roll up our sleeves and begin to work — together. Either way, we live in interesting times.
