Truman Bodden Law School, Cayman Islands
In a referendum held on 8th May 2019, the citizens of Belize voted by a majority of 55% (on a turnout of 65%) to approve the referral of the long-standing territorial dispute between Guatemala and Belize to the International Court of Justice (ICJ) pursuant to a Treaty signed on December 8, 2008, (the Special Agreement) between Guatemala and Belize (the State Parties). The outcome of the referendum is clearly significant in terms of future relations between Belize and Guatemala, but it also has considerable constitutional significance in at least two respects which I explore in this blog piece. The first concerns the previous tendency in the region for voters to reject any government proposal which is put to a referendum, which I have elsewhere described as ‘amendment culture’. The second is the challenge it has provoked to the constitutionality of the Special Agreement.
1. Amendment culture in the Commonwealth Caribbean
Since Jamaica became the first country in the region to gain independence in 1962, only one government in the Commonwealth Caribbean has won a referendum, and that government was Forbes Burnham’s People’s National Congress, which was widely suspected of having ‘rigged’ a 1978 referendum in Guyana on constitutional reform. Post-1978, the catalogue of failed referendums in the region has been steadily growing. In 2009, in St Vincent and the Grenadines, a referendum on constitutional reform failed to attract even a bare majority of votes, let alone the two-thirds majority that was required to amend the Constitution. In the Bahamas in 2016, voters rejected, overwhelmingly, amendments to their Constitution which were intended to enhance gender equality. In the same year in Grenada, in a referendum on seven Constitution (Amendment) Bills, there was no majority for even one of the seven proposed amendments to the Constitution. More recently, in 2018, the governments of Grenada and Antigua both failed in their attempts to reform their respective constitutions. The referendum in Belize could be distinguished from these other referendums in the region on the basis that it did not directly concern constitutional reform and, no doubt, part of the explanation for the governing United Democratic Party’s (UDP) success in the referendum was the belief of a majority of voters that Belize had nothing to lose and everything to gain by referring its dispute with Guatemala to the ICJ. Nevertheless, the UDP’s victory demonstrates that it is possible for a government in the region to win a referendum without ‘rigging’ the vote.
2. The Constitutionality of the Special Agreement
Though the referendum satisfies the requirements of Article 7 of the Special Agreement which requires the State Parties to submit for the approval of their electors by referendum the bringing of the dispute to the ICJ for final settlement, it does not settle the question of the constitutionality of the Special Agreement itself. This is now the subject of a constitutional challenge which has been brought by a number of members of the opposition People’s United Party (PUP) – Espat et Al v Prime Minister of Belize Claim No.151 of 2019.
This legal challenge centres on two key provisions of the Special Agreement. The first is Article 1, which provides that the ICJ is empowered to declare the rights therein of both State Parties, and to determine the boundaries between their respective territories and areas. The second is Article 5, which provides that the State Parties agree to accept the decision of the ICJ as final and binding, and undertake to comply with and implement it in full and in good faith.
Though the Special Agreement was approved by Belize’s Senate on November 30, 2016, in accordance with s61 A (2)(a) of the Constitution, which authorises the Senate to ratify any treaty by the Government of Belize, including any settlement of the territorial dispute between Belize and Guatemala, the Claimants’ argue that the Minister of Foreign Affairs did not have the authority to enter into the Special Agreement and a subsequent Protocol (concerning the date of the referendum) without also having the approval of the elected branch of the National Assembly, the House of Representatives.
The Claimants concede the executive’s competence by virtue of ‘the well-established prerogative powers of the Crown to enter into and withdraw from treaties’, but argue that this does not extend to a treaty which adds to, or amends, the Constitution and/or domestic law of the State. In support of this proposition, the Claimants rely on the Supreme Court of India’s judgment in Maganbha Ishwarbi Patel v Union of India and others  All India Reports 783, which was concerned with whether an award settling a boundary dispute between India and Pakistan (the’ award’) required a constitutional amendment for its implementation. Though the Supreme Court of India held in this case that a constitutional amendment was not necessary because the award did not purport to or operate as giving rise to an obligation on the part of India to cede territory, it also observed that the authority of parliament would be necessary whenever a treaty or agreement operated to restrict the rights of citizens or modify the laws of the State. The Claimants also rely on the UK Supreme Court’s decision in R (on the application of Miller and another) v Secretary of State for Exiting the European Union  UKSC 5, in which it was held that the UK Government could not by virtue of its prerogative powers exit the European Union by triggering the notice procedure under Article 50 of the Maastricht Treaty on European Union: exiting the European Union would change domestic law and, therefore, required an Act of Parliament.
Upon an application by the Claimants for an interim injunction to restrain the holding of the referendum pending the hearing of their substantive action, the Supreme Court briefly touched upon the question of the constitutionality of the Special Agreement and its Protocol in the context of whether there was a serious issue to be tried as a pre-condition to the granting of an interim injunction. Though the Court was persuaded that the lack of clarity in both the letter sent by the Prime Minister to the Governor General requesting the issue of a Writ of Referendum, pursuant to s2 Referendum Act, and in the Writ of Referendum itself, raised a serious issue about the legality of the referendum and granted an interim injunction on this basis, the Court was not persuaded, at this preliminary stage, that the constitutionality of the Special Agreement and its Protocol raised a serious issue. In the Court’s view, it was impossible at this point to know whether the Special Agreement operated to alter or amend the Constitution or domestic law. For that to happen, there would first have to be a ‘Yes’ vote in the referendum, and even then the ruling of the ICJ might ultimately result in an affirmation of the existing borders between Belize and Guatemala as defined by Schedule 1 of the Belize Constitution. In these circumstances it was simply too soon to speculate whether a constitutional amendment might be required at some point in the future.
Following the granting of the interim injunction, the Government sought fresh authority for the holding of a referendum by securing the passage through the National Assembly of The Belize Territorial Dispute Referendum Bill 2019 in very short order. A fresh Writ of Referendum was, accordingly, issued on 18th April, and the referendum was held on 8th May. The Claimants’ challenge to the constitutionality of the Special Agreement however remains and will be reconsidered by the Supreme Court when the hearing resumes on 24th June. Already, the Claimants are being urged by at least one very distinguished commentator on Caribbean affairs, Sir Ronald Sanders, to withdraw their challenge on the ground that: “The majority of Belizean people have spoken and in democracies the will of the majority prevails…the majority voted to submit the territorial claim to the ICJ. There can be no greater nor more powerful voice than that of the majority in any society.”
This has uncanny echoes of the pressure that was brought on Gina Miller, the claimant in the Miller case in the UK. As in the Miller case, the constitutional challenge is to the power of the executive in relation to the conduct of international treaties and, as in the case of Miller, there is a claim that challenging the constitutionality of the executive’s actions entails defying the will of the people.However, unlike the Miller case – in which the UK Supreme Court upheld the challenge to the exercise of the executive’s prerogative powers, and insisted that the authority of an Act of Parliament was required before Article 50 could be triggered – the signs are that, pending the ICJ’s decision, the Supreme Court is unlikely to rule that the Special Agreement is unconstitutional because it has not been approved under the authority of the National Assembly.
Derek O’Brien is a Senior Lecturer at the Truman Bodden Law School in the Cayman Islands.
Suggested Citation: Derek O’Brien, ‘Belize votes in referendum to refer territorial dispute with Guatemala to the International Court of Justice’ IACL-AIDC Blog (20 May 2019)