On 3rd December 2014, as Guyana and Venezuela were still wrangling over Venezuela’s audacious entry into Guyana’s territorial waters, the towing away of the seismic survey ship the RV Teknik Perdana and the arresting and charging of some of its crew, thousands of miles away, the portrait of Friedrich Fromhold de Martens (1845-1909), whose alleged activities stand at the heart of the modern border controversy between Guyana and Venezuela, appeared on a stamp of the Russian Republic in recognition of his contributions in the field of international law.
Martens was the chairman of the 1899 arbitration tribunal that fixed the border between Guyana and Venezuela, and the main prop of Venezuela’s case to overthrow that tribunal’s decision rests upon a claim by Severo Mallet-Prevost, the secretary of the U.S./Venezuela delegation to the arbitration, that Martens made some kind of ‘deal’ with the British, which deprived Venezuela of the Essequibo lands.
Thus, in this controversy personalities are important and to bring our story to life and facilitate an appreciation of the seriousness with which the issue was taken and the people who were involved, what follows are snapshots of some of the main players in the arbitral process.
The Tribunal of Arbitration comprised the Right Honourable Baron Herschell (1837-1899) (whose place upon his death in February 1899 was taken by the Right Honourable Lord Russell of Killowen (1832–1900)) and the Right Honourable Sir Richard Henn Collins (1842–1911), chosen by Great Britain, the Honourable Melville Weston Fuller (1833–1910) and the Honourable David Josiah Brewer (1837–1910) chosen by Venezuela, and His Excellency Friedrich Fromhold de Martens, whom the previously mentioned honourable gentlemen chose to be chairman.
Baron Herschell was twice Lord Chancellor of Great Britain, in 1886 and again from 1892 to 1895 and was sitting on two international arbitrations (the other being the Alaska boundary dispute) when he died suddenly. His replacement by Lord Russell would have come as no surprise as Lord Russell had successfully represented Great Britain in the Bering Sea arbitration against the United States with a speech that lasted some eleven days. Russell was something of an Irish nationalist who in his early years in London was the weekly correspondent for an Irish nationalist organ, The Nation, which favoured home rule for Ireland. He was also a liberal MP and attorney-general of Great Britain.
Born in Dublin, after 30 years at the bar, Sir Richard Henn Collins (later Baron Collins), became a Lord Justice of Appeal and a member of the Privy Council in 1897. He was later appointed Master of the Rolls, Chairman of the Historical Manuscripts Commission and in 1907, a Lord of Appeal in Ordinary.
Given its reliance on the Monroe Doctrine and the American government to prosecute its case against Britain, it is not surprising that the Venezuelan government chose two very politically connected Americans as its representatives on the tribunal. Melville Weston Fuller was chief justice of the United States between 1888 and 1910 and was favoured by President Grover Cleveland, who had invoked the Monroe Doctrine and initiated the establishment of the Congressional Venezuelan/British Guiana border commission. The president tried to make Fuller chairman of the US Civil Service Commission and Solicitor General, both of which appointments Fuller refused, but in 1888, he accepted Cleveland’s nomination as chief justice.
After some three decades on the bench, David Josiah Brewer was confirmed as a member of the United States Supreme Court on December 18, 1889. He is said to have authored one of the first judicial opinions upholding the right of an African-American citizen to vote in a general election. Brewer took a leave from Supreme Court duties to serve as president of the U.S. congressional commission on the boundary dispute between Venezuela and British Guiana.
Friedrich Fromhold de Martens was unanimously chosen by the four country representatives to be the chairman of the tribunal and both this selection and the honour paid to him today appear well deserved. His best known work was the first comprehensive Russian textbook on international law, Contemporary International Law of Civilised Nations (1882–1883). Martens was repeatedly chosen for international arbitral work. Before the British Guiana/Venezuela border dispute, he represented Russia at the Hague Peace Conferences and contributed the Martens Clause, which ‘remains part of international humanitarian law until today and has been referred to in the jurisprudence of the International Court of Justice’ (Oxford Handbooks Online). For his contributions to international law, Martens received honorary LLDs from the universities of Oxford, Cambridge, Edinburgh and Yale and was runner-up nominee for the 1902 Nobel Peace Prize.
The senior counsel for Venezuela was former US president Benjamin Harrison, assisted by former Secretary of the Navy Benjamin Tracy, Severo Mallet-Prevost and James R. Soley. Attorney general Richard Webster represented Great Britain, assisted by Robert Reid, the 1st Earl Loreburn (who later served as Lord Chancellor), George Askwith, Sidney Rowlatt, and Sir Frederick Pollock.
Significant in all this was Venezuela not choosing any of its own nationals to adjudicate on or prosecute its claim. Confronted by this anomaly in the anti-colonial/anti-imperialist post-war era when it made its first concerted attempt to overthrow the 1899 tribunal decision, the government stated that it did not do so because ‘Great Britain made it clear that ‘no English Arbitrator could sit side-by-side with a creole or a coloured jurist’ (The Affairs of the Boundaries between Venezuela and British Guiana. (1965), Caracas, Venezuela). Be that as it may, it would do no harm to note that, at a time when Irish nationalism and demand for home rule were still raging, two Irishmen represented Britain on the commission!
The parties had eight months to prepare their cases, four months to reply to the other party’s case, and three months to provide their final printed case. The final arguments were submitted in December 1898, with the total evidence and testimony amounting to 23 volumes.
Rarely does anyone emerge from arbitration totally satisfied. Recently, in the case of Guyana v NH International Ltd, the Caribbean Court of Justice found it necessary to remind that, ‘Arbitration is a mode of dispute settlement that litigants often consciously choose in preference to litigation through the courts because of the convenience, finality and expedition of the arbitral route’ (SN 2/8/2015).
According to Article X111 of the Treaty of Arbitration between Great Britain and Venezuela signed in Washington on 2 February 1897, both the Venezuelan and British Governments agreed ‘to consider the result of the proceeds of the Tribunal of Arbitration as a full, perfect, and final settlement of all the questions referred to the Arbitrators.’
On 3 October 1899, the Tribunal handed down its decision, awarding all the lands claimed by Great Britain outside the Schomburgk line to Venezuela in addition to two areas within it.
