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Lisa Shoman Comments On, Differs With PUP Colleagues
posted (February 20, 2019)
Last night, we told you about the legal opinion that the attorneys Anthony Sylvestre, Kareem Musa and Dickie Bradley have produced on the 2008 Special Agreement in which Belize and Guatemala have agreed to submit Guatemala's claim to the ICJ. They say they've done extensive legal research on the Special Agreement, and from their opinion, the Government has made a major misstep. Among other issues they point to, these attorneys say that the Government has failed to take the Special Agreement to the entire legislature, which includes the House of Representatives and the Senate. From their perspective, if Belize agrees with Guatemala to submit the territorial claim to the ICJ, and IF the ICJ rules that Guatemala should get some of our territory, then the ICJ will not be able to re-define Belize's borders to put the ruling into effect. They say that in order to change Belize's borders, an amendment to the constitution would need to take place, and that can only be done with two-thirds support from the Legislature.

Today, Lisa Shoman, one of the former PUP foreign ministers who have publicly declared support along with Prime Minister Dean Barrow for taking the claim to the ICJ, was one of the first to respond to this legal opinion.

She pointed out what she thinks are flaws in the legal opinion:

Lisa Showman- ICJ Yes Proponent
"The special agreement is a kind of treaty. And so, because it is a treaty, under our law it has to be presented to the Senate; and it was, on 30th November 2016. So, that has been done and as far as I am concerned, this means that what needed to be done legally to then hold the referendum has been done. But these legal arguments that have been presented by my brethren say that this special agreement is challengeable in law. You need to carry it to court because it has serious problems with it. What are the problems? They are saying, first of all, that the terms of the special agreement are going to change Schedule 1 in the constitution that, for instance, describes our boundaries. They say that if we are voting yes- there is a lot of if's, so hold on to the ifs with me and follow. If the referendum is held, which it will be, if people vote yes, if we then refer it to the ICJ, if the ICJ looks at all the arguments and if the ICJ makes any changes to our boundaries as described in Schedule 1, then the special agreement would have, by implication, changed the constitution. Now, that is a lot of ifs. And those ifs are by no means certain. But even, let's for argument, say that they are right. One thing they have not considered is that Schedule 1 absolutely and completely references the 1859 treaty, at 1A. So, the first thing it says is our boundaries are those as set out in the 1859 treaty; that is number one. And we all know that that is what we are going to court to base our argument on. So, I don't see how any special agreement could be amending the constitution because we are going to the same base- 1859. It also says, when it talks about the territorial sea at 1C, that the maritime areas of Belize are those as set out at independence or by any law thereafter or otherwise. This is exactly what otherwise means. Otherwise means that if you go to the UNCLOS court, the United Nations Convention on the Law of the Sea, or if you go to the ICJ and there is any redefinition of maritime boundaries. Remember, you know, at one time we only used to claim 3 miles. Now, we claim 12, except for the portion in the South where we are still saying, we reserve our rights. But also, we are claiming a 200-mile exclusive economic zone and that needs to be put out there. So, I am saying the argument is seriously premature, but even if it isn't premature it is very flawed because it doesn't take into account what schedule 1 actually says. The other thing that they say is that, well, referendum is not really binding. Well, see, when you start to argue that, you start to argue a case that I took to the privy council. One of the last cases to the privy council, in fact. And that was the Vellos case. And what the courts said in the Vellos case was that even if referendums are not binding, they are only consultative and it would seem that that is the case, as to whether a government will obey it or not is a political question and courts will not interfere. Simply because the courts felt that the people have the remedy in their hand. In example, I don't like what you do, I can vote you out. So, that is a real consideration. Therefore, I would think that the argument as to whether it is binding or not binding is really an academic argument. And then, they make some other arguments about whether it should have gone to both houses. And every time I circle back to it, it is the same idea, which is that we have put this treaty exactly where it is supposed to go and that is to the Senate, the Senate has ratified it, there is no transfer of the separation of powers. There is no giving up of the powers of the national assembly to the ICJ. That is simply speculative, it is an interesting idea, it is one of these legal arguments that lawyers love to argue when we are taking a drink. But it is not practical."

From Shoman's perspective, the legal arguments raised here are very interesting, but academic, and therefore, if a challenge to the Special Agreement is actually filed in the court, she believes that such a case cannot prevail.

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