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PUP Say ICJ Special Agreement Insufficient To Change Borders
posted (February 19, 2019)
And while you have one additional day to get registered and be eligible to vote in the referendum, three local attorneys have produced a detailed legal opinion on the 2008 Special Agreement. They say it does not pave the way clearly for a path to the ICJ.

PUP Parliamentarian Kareem Musa, the former PUP Legal Advisor, Anthony Sylvestre, and attorney Richard "Dickie" Bradley, a former PUP Minister, have done some very detailed research on the Special Agreement, and they are asserting that the Government has made a major misstep.

They say that the Special Agreement gives authority to the ICJ to change Belize's borders, if they should rule that way, and that the Barrow Government has not properly ratified this Special Agreement to allow for this.

In their 38-page document, the 3 attorneys reason that Belize's borders are defined in the Constitution, and in order to change them, the Government would have to make a constitutional amendment by way of support from the entire legislature, meaning the House and the Senate. From the 3 attorneys' perspective, the Government did not follow the proper procedure, and so, it cannot legally transfer authority to the ICJ to change Belize's borders.

It may appear to be a complex legal argument, but the attorneys say that the general public ought to know about the problems as they see them. So today, we went to the attorneys themselves to try and simplify it as much as possible, and here's how Kareem Musa explained it to us. He told us that this is a separation of powers issue, and that the executive cannot usurp the authority of the entire legislature and simply agree on behalf of Belize that the ICJ may change Belize's borders if they so choose:

Kareem Musa, attorney
"I have always held the belief that something as important as this compromise, this special agreement that was signed` onto by the Minister of Foreign Affairs in 2008 ought to be something that should come to the national assembly and by national assembly I mean the house of representatives as well as the senate for ratification. It cannot be that the minister and the government and a few other individuals can look at a document and review it and say that we speak on behalf of an entire country and we are going to take an entire country to the international court of justice without first, putting it to the people and by putting it to the people I mean taking it to the national assembly for ratification. As you know the section of constitution, section 1and the schedule 1 of the constitution sets out the borders of our country Belize. Section 68 of that very say constitution says that only the national assembly has the power to alter the constitution and to make laws and so what the current government was doing in 2008 up to present is actually assigning the power of the legislator onto the ICJ. When in fact it should first come to the house for us to be able to vote on that to review that, to ventilate it properly and ensure that the compromise has all of the terms that we can all agree on as a country, before we take it to the ICJ. Each entity: the legislator, executive and the judiciary have a role to play and we cannot bypass the role that the legislator plays in such an important decision as this one; the biggest decision that us as Belizeans will have to make."

We also got a few clarifications from attorney Anthony Sylvestre, who is credited with most of the research on on this legal opinion. He says that from his inquiry on this topic, until the Government brings the Special Agreement for ratification to the House of Representatives and then the Senate, it is still only be a treaty with no effect on Belize's domestic law:

Anthony Sylvestre, attorney
"The special agreement is a treaty in accordance with the clear definition of a treaty as set out in the Vienna convention on the law of treaties. But with treaties, treaties operate on the international plain and this is very important for Belizeans to understand and appreciate. They have 2 levels at play here; the international plain and domestically within the country. On the international plain, once a country signs, the executive (government) which has the authority to enter into treaties, into agreements on behalf of the state. When they do that and when they ratify the treaty, the agreement, that they signed, that binds the state on the international plain such as what has occurred with the special agreement. But domestically, in our national law the treaty does not have any binding force, until and unless it is incorporated it is made law. You cannot have an agreement which has the effect of changing or altering rights or laws. You cannot have such an agreement being implemented or enforced until and unless the National Assembly steps in and gives its approval by way of having its say in the House of Representative and Senate and passing by a required majority of that law. Now in the case of the proposed boundary redefinition or re-determination because as you know our boundaries are already defined in the constitution. So in order for the country's to be redefined, the National Assembly has to give that authority to the I.C.J. but as is the case presently that has not been done. All that has occurred is that the government has on the international plain, agreed that that will be done. Now what has to happen domestically is that the National Assembly has to be engaged. It has to give its authority and since it involves a constitutional change because the boundary determination is effectively a constitutional change, that will require a bipartisan support."

The attorneys tell us that they are hoping that the Government will take heed of their legal opinion, and take the necessary corrective steps. But, hope is not a strategy and this team has no plans to take this paper to court, so the court of public opinion appears to be as far as this one will go.

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