Guatemala Pushes to Join ICJ Battle Over Sapodilla Cayes

A fast round of oral arguments was heard yesterday and today by the International Court of Justice (ICJ) at the Peace Palace in The Hague regarding the application by Guatemala to be a party in the Honduran claim over Belize’s Sapodilla Cayes.  On November 6, 2022, Belize instituted proceedings against Honduras which was claiming sovereignty over the cayes.  Memorials and counter memorials were subsequently submitted by Belize and Honduras, separately.  Guatemala then requested copies of the pleadings by both countries which the court granted and subsequently applied in December 2023 to be a party in the hearing.  According to Guatemala, they wanted to intervene to ensure that matters in this case would not hamper or overlap in its current claim against Belize.  Presiding over the case yesterday was President Iwasawa who opened the session with an overview of the case and then outlined how much time each party will have over the two days of oral arguments.  In yesterday’s hearing, Guatemala had arguments presented by its Agent, Ana Cristina Rodríguez Pineda, who alluded to an intentional disturbance by Belize in the Belize/Guatemala case at the ICJ.

Ana Cristina Rodriguez Pineda, Agent of Guatemala: “Notably, Belize commenced the present proceedings just a few days before Guatemala was due to file its reply in the Guatemala-Belize case on 8 December 2022. This move by Belize has created an unfortunate procedural conundrum for the court. For the sake of consistency and efficiency, hearing the merits of the two overlapping cases back to back could be appropriate, particularly if Guatemala is permitted to intervene. The interplay between the two cases is obvious. It has specifically been acknowledged by Belize in correspondence and over the course of several meetings with Honduras. For instance, in notes verbals between April and October 2022, Belize sought to obtain guarantees from Honduras that it “would not assert a claim to the Sapodila Cayes by way of application to intervene in the case before the International Court of Justice pending between Belize and Guatemala.” Despite the case at hand being intrinsically related to its pending case with Guatemala, Belize unilaterally instituted proceedings against Honduras with no prior consultation or information provided to Guatemala. One can only imagine that Belize wished to avoid Honduras coming in support of Guatemala’s legal position, especially since both Guatemala and Honduras share partly similar views with respect to the question of legal title over the Cayo Sapotillos (Sapodilla Cayes). Indeed, like Guatemala, Honduras considers that Spain had sovereignty over the cayes until Until 1821 when Central America became independent, that Great Britain recognized Spanish title on many occasions, that the British settlers’ activities could not and did not displace Spanish title before 1821, nor that of the newly independent state that inherited it. And finally, that the convention between the Republic of Guatemala and her Britannic majesty, relative to the boundary of British Honduras of 30 April 1859, did not apply to islands. Belize’s actions impair equality between the parties in the Guatemala-Belize case, and I seek to introduce new arguments and evidence relating to that case through the backdoor of another case involving a third state, Honduras. At best, Belize’s strategy in pursuing at this point in time a case against Honduras could only have been aimed towards prejudging its existing dispute with Guatemala, arrogating itself the procedural right of further presenting to the court its case on the disputed islands. At worst, it is an attempt by Belize to prompt the court to dispose of an important aspect of Guatemala’s insular claim without Guatemala’s involvement.”

Also presenting on behalf of Guatemala yesterday to have them included as party on the matter were Mónica Renata Bolaños Pérez, the Vice-Minister for Foreign Affairs of Guatemala, as well as Rodman R. Bundy, a senior Counsel & Advocate, among others.  Speaking first on behalf of Belize, Special Envoy and Agent Assad Shoman reaffirmed Belize’s position that it does not object to Guatemala’s participation if the Court believes such intervention would assist its work. Shoman emphasized that Belize’s priority remains the efficient and complete resolution of all territorial claims against the country, noting that two separate but related cases are currently before the Court, namely, the Guatemala versus Belize, concerning all of Guatemala’s historic territorial, insular and maritime claims and the Belize versus Honduras, focused specifically on sovereignty over the Sapodilla Cayes. Shoman highlighted that both cases have been fully prepared for merits hearings for more than a year, stressing that coordinated scheduling would best serve judicial economy and Belize’s long-standing interest in final, peaceful settlement. He told the Court that Belize “actively seeks co-ordination” of the two cases and that sequencing the Guatemala/Belize case first, followed closely by the Sapodilla proceedings, would allow the judges to consider the full record of all three states before delivering judgments. 

Ben Juratowitch, KC, Belize’s Lead Counsel: “We will simply make some discrete points arising from Guatemala’s submissions yesterday. We start by identifying aspects of those submissions that are common ground between Belize and Guatemala. The first is that it would be sensible for the court to hold the hearings on the merits in the two cases back to back. On the basis that Guatemala and Belize agree that the court should hear and resolve the merits of both disputes in a way that allows its deliberations in each of them to overlap, Belize does not object to Guatemala’s application. The second point of Common Ground is that Honduras did not make known its claim to the Sapodillas until 1981. That was when it became aware of the heads of agreement, which contemplated discussions aimed at a compromise resolution of the broader dispute between the United Kingdom and Guatemala concerning the territory of Belize, and which ultimately failed. The third point is that having made a claim in 1981, Honduras then left it dormant. The fourth point is this. Honduras could have applied to intervene in Guatemala – Belize but elected not to do so. It is undisputed, as between the three states, that there is no impediment to the complete resolution of all of Guatemala’s claims against Belize. So whilst it is correct that some common matters do arise in the two cases, Guatemala was quite wrong to say that the issues in the two cases largely overlap. Of course, the most striking overlap is the partly similar views between Honduras and Guatemala, to which Guatemala alluded yesterday. Guatemala and Honduras agree with each other that by operation of the doctrine of Utipositetus Eurus one of them succeeded to the sovereignty of the Central American Republic, which had in turn succeeded to Spanish sovereignty. They just disagree about the rather fundamental point of which one of them it was. Belize’s answer is that neither of them did so, but much more importantly that it does not matter at all because of what happened once each of them was independent.”

Following Belize’s submissions, Honduras addressed the Court and formally opposed Guatemala’s application, arguing that Guatemala already has an active case before the ICJ in which it can raise any concerns about the Sapodilla Cayes; specifically, its intervention in the Belize-Honduras matter would distort the legal proceedings and create a “three-way dispute”; and that the application amounts to a “misuse” of the intervention mechanism.

Alejandro Delvale Galvez, Honduras Agent: “Guatemala’s application, which ran counter to the statute and the rules of court. Guatemala’s application is a misuse of the institution of intervention. In performing this task, I would like to highlight four points. First, Guatemala’s application goes beyond the object of an intervention as an and non-party and distort the legal debate in the Sapodillo’s case. Second, it is unnecessary and superfluous application. Third, Guatemala’s application creates a new dispute. And fourth, it constitutes an obvious abuse of process contrary to the principle of a sound administration of justice because Guatemala is trying to exercise a right, recognizing the institute, in a manner contrary to the norm. Consequently, Guatemala’s application should be dismissed in limine. Mr. President, the court has established that that a state may be permitted to intervene under article 62 of the statute either as a non-party or as a party. The status of intervention as a party requires the assistance of a basis of jurisdiction as between the states concerned. For these proceedings, there is no jurisdictional link between Guatemala and Honduras, as expressly admitted by Guatemala. The absence of a jurisdictional link determines that Guatemala’s application is formulated as a non-party. Intervention as a non-party implies that the intervener can only inform the court. It cannot introduce a new dispute into the case, nor can it participate in a debate that that only concerns the disputing parties.”

The Court will now deliberate on whether Guatemala will be permitted to intervene as a non-party in the Sapodilla Cayes matter. A ruling on the intervention request is expected before the ICJ schedules full merits hearings in both the Belize-Guatemala and Belize-Honduras cases.