Why is Guatemala going to the ICJ if they know they will lose?
I still haven’t made up my mind about how to vote in the International Court of Justice (ICJ) referendum. After all the debates, talk shows, articles, and comments; all the research and reading; all the obscene billboards and meetings, you might think that the choice would be easy; but not for me. There hasn’t been a smoking gun that instantly makes everything clear and leads me down the right path. Also, there is a final burning question that has yet to be answered in this debate.
First, for me, the No vote is the default — the “innocent before proven guilty” vote. I will accept the status quo unless there is a safer, better option. By default, the YES vote has to convince me that accepting litigation risk — no matter how small or large — and voting YES is not only a better choice, but the best of all possible options.
First, for me, the No vote is the default — the “innocent before proven guilty” vote.
Unfortunately, the whole referendum/re-registering/ICJ education process has been, what appears from the outside, a disaster. Starting with a very non-transparent process (e.g. Special Agreement lawsuit), to an inefficient and discriminatory registration process (hard on those with low discretionary funds to travel and voter suppression against the diaspora), to a one-sided education campaign (inexplicably hijacked by the YESers).
During the past couple weeks, I’ve been posting the main reasons why I have not been convinced to vote YES. The first article discussed trust, more specifically, the lack thereof. The second article searched the legal opinion commissioned by the Belize Bar Association for the associated risk of going to the ICJ. This piece looks at a question that has not been sufficiently examined by either side for me: Why would Guatemala agree to go to the ICJ if they know they will lose?
According to the YES camp there are three reasons. The following is quoted verbatim from page 26 of their signature publication “YES a zine on the Referendum NO” (words in quotes are mine):
Why would Guatemala agree to go to the ICJ if they are bound to lose?
•Because it (Guatemala) was (or is?) suffering internationally. It has been (or still is?) seen as a bully, violating international norms.
• Guatemala wants to be accepted as a law-abiding member of the international community.
• It needs legal certainty from the ICJ, since its Constitutional Court has declared the (1859) Treaty void.
This confuses me — does that sound like the legal strategy of a belligerent neighbor trying to take over part of our country? On the contrary, it sounds like Guatemala is looking for a way out of the dispute. Apparently they just need “legal certainty” and crave acceptance by the international community.
Some suggest they may also need political cover to dismiss their claim. But from my limited conversations with Guatemalan journalists, NGOs and others, the Belize border is a non-issue with the general population. It appears a small elite minority in Guatemala — only 26% of the population voted — is driving the border dispute process and an expensive visit to the ICJ. Sound familiar?
It is important to note, that besides the Sarstoon muscle flexing — which we encourage not only by our lack of military response, but also by enabling their fishermen to harvest in our waters — it is not the Guatemalan government that is encroaching on Belizean territory, it is the rural impoverished, often driven by organized crime. Read this recent article about what is driving incursions into the “lawless borderlands” of Belize.
If, as the YESers say, Guatemala knows they are going to lose, then here’s a thought. Why go? We are no longer disputing and negotiating where the border is — apparently we both agree with the current borders. If we believe the YESers, the border dispute has now entered a new phase in our relationship — discussing ways to help Guatemala out of the hole they dug through 150 years of a baseless claim. Going to the ICJ then is our way to help them gain “legal certainty”?
If, as the YESers say, Guatemala knows they are going to lose, then here’s a thought. Why go?
So if we are to believe the YESers assertions, it is now a PR problem for our neighbor. Guatemala is only interested in going to the ICJ to raise their standing in world affairs, to be accepted as a good international partner instead of a bully, and to slip a change into their constitution past their people. So in effect, the YESers are asking us to go to the ICJ to help Guatemala solve their problems.
If Guatemala is truly looking at improving their standing in the eyes of the world, what would be a greater accomplishment than solving a border dispute without the courts? Both Belize and Guatemala would benefit far more from working together without litigation. Instead of spending millions on lawyers to go to the ICJ, both Belize and Guatemala could use that money in more constructive ways.
So the YESers will counter “We’ve tried to solve the dispute through negotiations for decades! This is our only choice, our last chance! Negotiations have failed! There is nothing else to try if we vote No!” But in the next breath the YESers say that Guatemala knows they have lost, Belize risks nothing by going to the ICJ, and all that is left is to get a legal ruling so Guatemala can gracefully bow out of the claim. As I interpret it, what the YESers are actually saying is Belize has won, Guatemala knows it, and now we have to spend millions on more legal fees, wait years for a ruling, accept litigation risk, tear our country apart and risk violence, for a legal ruling so Guatemala can find the cover necessary to change their constitution?
Will an Advisory Opinion give them cover, or “legal certainty” as the YESers say? If so, why litigate? If not, maybe Guatemala can find a way to make an advisory opinion work. “No!” the YESers say “an advisory opinion is not binding!”. Wait, we are talking about a Guatemala elite that waged 36 years of civil war and committed genocide against their Maya people, but they can’t find cover in an advisory opinion if they really want to? The Constitutional Court can declare a treaty dead after 60 years, but can’t declare the this bogus claim dead after 150 years?
…we are talking about a Guatemala elite that waged 36 years of civil war and committed genocide against their Maya people, but they can’t find cover in an advisory opinion if they really want to?
Belize and Guatemala have always approached the border issue as adversaries. If what the YES camp says is true — and why wouldn’t it be as they are expecting us to believe everything else they say — we should now approach Guatemala’s needs as partners, solving their problem with them, then their claim won’t be our problem any more. If we are to believe what the YES campaign says, then I think there is a far better and cheaper option than litigation; solve those three objectives with Guatemala outside the ICJ.
Many Belizeans are already doing that. Friends for Conservation and Development (FCD), the NGO that protects our Western Border in the Chiquibul, is forming partnerships with similar thinking NGO’s in Guatemala. As recently as Feb 28th, 2019, 12 civil society organizations from Guatemala and 8 from Belize signed a declaration of Good Intent aimed at strengthening coordination, partnerships, and strategic collaboration to promote protection, conservation and restoration of natural ecosystems, and cultural heritage — read about it here.
Representatives of the FCD Youth Environmental Group and Todos Por Un Mundo Verde signed an agreement to continue collaborating in areas of river conservation beyond the period of the present project funded by the Canada Fund for Local Initiatives — read about it here. And in the south, Mayan communities on both sides of the border are working together to curb incursions, limit deforestation,stop cattle ranching and solve the porous border at Jalacte. Are the Belizean people aware of what flows across the southern edge of our western border which seems practically free of immigration and custom controls?
So if we are to take the YES camp at their word, this is the next step after a NO vote. We diplomatically relay to our neighbors: We are going for an Advisory Opinion because this issue is causing a lot of anxiety and confrontation in our country. Basically it is tearing Belize apart. And you already know you will lose anyway(according to your and our experts). An Advisory Opinion should give you the legal certainty you need to change your constitution (did Guatemala need legal certainty to commit genocide?). We will do everything in our power to put this whole matter to rest — along side you — so that you save face and look great in the eyes of the world. Great PR for both of us.
Alternatively, if we go to the ICJ, there will be a decade of instability between us while the courts decide in our favor as you know they will. Your country will be embarrassed and humiliated on the world stage because of your 150 year unfounded claim that has cost lives and millions of dollars. After winning, we will sue for damages. Animosity will continue between two neighbors. And millions of dollars will be wasted on lawyers. Instead of going to the ICJ, let’s work together to get you the three goals listed above. We both save millions of dollars, our countries work together, and we both use the lawyer’s money we save to solve much more pressing problems, like poverty on our borders.
Yes, we want the dispute ended, and Guatemala apparently wants it ended. We have negotiated for decades to end the claim, and we have won because, according to the YESers, off the record, Guatemala knows the borders will stay the same. Unless, of course, the YESers are wrong. Is there another reason Guatemala is going to the ICJ — they believe they have evidence to win? In which case, we need to know what that evidence might be before we agree to go. What specifically are they counting on in such an apparently strong case for Belize? You can’t have it both ways.
Either way, the path I take at the ICJ referendum is becoming more clear…
