Declaring that absolutely nothing—not even the Court—can prevent its referendum planned for December 3rd, Venezuela’s resolute position is that Guyana’s county of Essequibo belongs to it, and it is prepared to fully defend its sovereignity.
In fact, Venezuela sought to reiterate its previously stated position that the International Court of Justice (ICJ) has no jurisdiction to even adjudicate the border controversy between it and Guyana over Essequibo.
These were among the submissions made yesterday by Venezuela before the ICJ – also known as the World Court – which is currently seized of the matter for determination on the merits of the controversy.
In no uncertain terms, Venezuela’s Vice President and Agent for her country to the Court, Delcy Rodriguez, informed the 14-member panel of justices yesterday that Venezuela’s participation in the hearing by way of submissions, ought not to be interpreted as recognition of the jurisdiction of the Court to hear the controversy.
In opening the addresses on behalf of her country, Rodriguez told the Netherlands-based World Court at the Hague that it has a right to hold its referrendum
Guyana has described the planned referendum an “existential threat ” to its sovereignty and territorial integrity, and in submissions before the Court on Tuesday, said that Caracas was seeking to evade the jurisdiction of the Court and its acts of aggression are intended to lay the path for annexation.
On October 31st, Guyana applied to the World Court for urgent provisional measures in the wake of Venezuela’s pending referendum, which it describes as a “sham.”
In its response yesterday to Guyana’s application, Venezuela contends that the interim measures requested by Georgetown, are “in flagrant violation of the Charter of the United Nations and the Statute of this Court.”
Rodriguez in her impassioned address to the Court said that Guyana’s attempt to revoke the Venezuelan constitutional order by preventing the consultative referendum is unacceptable. “Venezuela will not accept it” she declared.
She described the 1899 arbitral award by which Essequibo was declared Guyana’s, as dispossessing Venezuela of its territory by fraud.
Rejecting the jurisdiction which the Court has already declared it has to hear the substantive claim, Rodriguez said that within the United Nations (UN), from its inception to present, Venezuela has expressed its position against the compulsory and automatic jurisdiction of the Court on no less than 12 occasions,
She said it was for this reason that Venezuela is among the 119 countries which have not made the declaration provided for in the Statute of the Court, as have countries such as the United States of America and Guyana on recognising the court’s jurisdiction.
In a statement that will raise concerns, Rodriguez alleged that Guyana was targeting the Venezuelan population living here in violation of international human rights norms and promoting xenophobia. Around 30,000 to 40,000 Venezuelans are thought to be living here after fleeing harsh circumstances in their country.
Judicial route
The Venezuelan Vice President said that Venezuela’s historical position is expressly contained in the 1966 Geneva Agreement, “which does not recognise the judicial route as the amicable means of reaching a practical solution satisfactory to the parties.”
On this point, she made it known that Venezuela firmly rejects statements made before the Court on Tuesday by Guyana which, according to her, “through crude and childish manipulation,” sought to stigmatize the historical tradition and legal doctrine, which she asserted by no means represents an exceptional situation as is shared by the majority of the international community.
“We come to defend the independence, sovereignty and self-determination of Venezuela,” Rodriguez further went on to assert; while adding that “without prejudice to our position and doctrine on jurisdiction, we come before this Court today to defend independence, sovereignty and self-determination as inalienable rights of our nation.”
On the lapel of her cerulean blue suit, Rodriguez wore a pin depicting a map of Venezuela which included Guyana’s Essequibo, an act which would be construed as contemptuous of the court which is presiding over a substantive case brought by Guyana.
Venezuela accuses Guyana of not only abandoning and transgressing the Geneva Agreement, but said “it now intends to flout the international order and promote a change in the Venezuelan political system through interventionist and reckless action that seeks to instrumentalize the Court against Venezuela.”
“This is a clear line of action of judicial colonialism,” Rodrigues told the panel of international judges.
Describing Guyana’s call for the cancellation of the planned referendum in its present form as “reckless” and interfering in the internal affairs of Venezuela, Rodriguez strongly affirmed, “nothing will prevent the referendum scheduled for 3 December from taking place.”
She said that Guyana is daring in its attempts to prevent Venezuelans from exercising what she underscored was their “sacred right to vote on an issue of their own, internal and of considerable importance, such as the Essequibo (controversy).”
Guyana will not succeed in so doing Rodriguez said even as she said that the referendum is an exercise of sovereignty and self-determination and a right of the Venezuelan people.
The organisation of a consultative referendum is an exercise of sovereignty and self-determination of the people. There is no authority for Guyana to restrict the right of the Venezuelan people to freely establish their political status or to intervene in their internal affairs, she went on to add.
The Venezuelan Agent said that Guyana should be reminded that, under Article 2 of the Charter of the United Nations, “[n]o provision of this Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any State, nor shall it oblige Members to submit such cases to a procedure for settlement under the present Charter.”
She said that similarly, according to United Nations General Assembly Resolution 2131, “No State shall have the right to interfere, directly or indirectly, for any reason whatsoever, in the internal or external affairs of another State.”
Consequently she noted, not only armed intervention, but also any other form of interference or threat, directed against the personality of a State or against its political, economic and cultural elements, are condemned.
Rodriguez emphasised that participation in public affairs, through the referendum, is a human right for every Venezuelan and that the right is recognized and protected both by Venezuela’s Constitution and by the International Covenant on Civil and Political Rights.
“There can be no reason to interfere in Venezuela’s internal affairs and prevent consultation with the Venezuelan people as a whole and individually,” the Vice President asserted; adding it is “outrageous to try to replace the will of a country with what she described Guyana’s application for provisional measures as being “unheard-of interim measures.”
In putting her country’s case for the referendum before the Court, Rodriguez said that Venezuela has a strong institutional system that guarantees the constitutionality and legality of government actions.
That system, she said, was activated, and by a ruling of the Supreme Court of Justice, it confirmed the constitutionality of the referendum questions; even as she went on to assert that “in Venezuela, nothing is above the Constitution.”
Continuing, she said that the referendum is whole, single and indivisible, and represents the diverse visions and aspirations of their society. “Venezuelans have the right to consult and listen to each other. No one can deny or divide this right,” Rodrigues said.
The Vice Presidemt firmly asserted that the Venezuelan state “will not turn its back on what the people decide in the referendum.”
Guyana she said, is not a victim but a perpetrator of violations of international law; stating according to her, that in Guyana’s presentations before the Court on Tuesday “we all witnessed one of the worst set-ups devised by Guyana in its false desire to present itself as a defenceless sheep and to portray Venezuela as an aggressor State that hinders its development and threatens regional stability and peace.”
“Nothing could be further from the truth,” Rodriguez said. She then went on to say that to the contrary, Venezuela had provided fuel assistance to CARICOM countries including Guyana on concessional terms. At one point, she said Venezuela was supplying 50% pf Guyana’s energy needs. She added that Guyana was also able to profit significantly from trading rice under this arrangement.
She also sought to argue that ExxonMobil’s presence here has influenced US policy as evidenced by the short-lived appointment of former ExxonMobil head Rex Tillerson as US Secretary of State. She said it was at this point that the US first supported Guyana’s position on thre 1899 arbitral award. She alleged that Guyana had prepared for a militry attack against Venezuela in tandem with the US. She also alleged hostile behaviour by Guyana in relation to its membership of the Lima Group.
Rejecting criticisms by Guyana on Tuesday of bellicose behaviour by Venezuelan President Nicolas Maduro, Rodriguez hailed him as a “true democrat” and a “man of peace”.
Meanwhile, in his presentation, counsel on behalf of Venezuela; Professor Makane Moïse Mbengue, underlined what he said were main deficiencies of Guyana’s request for the provisional measures.
Deficiencies
According to him, among the deficiencies is that none of the claims in the provisional measures requested are new either to Guyana or the Court.
He said that whether it is the invalidity of the Arbitral Award of 1899, the importance of the Geneva Agreement in order to reach a satisfactory solution to both Parties, or the disagreement as it comes to the jurisdiction of the Court in the present proceedings, these are all matters that have been known by the Court and Guyana for a long time.
He said that importantly, the referendum—the main substance of Guyana’s request—was announced by Venezuela at a meeting held by the President of the Court with the representatives of the Parties on February 26th, 2021.
Whilst Guyana requested a period of nine months, from the date of the Order fixing the time-limits, for the preparation of its Memorial, the professor said that Venezuela had already indicated that “it has not yet decided on its position in relation to the proceedings and that, in light of the alleged serious implications of the Court’s Judgment of 18 December 2020 for its sovereignty, it was required by its Constitution to conduct popular consultations on the matter, which would require a significant amount of time, and that it also faced a number of other difficulties in preparing its pleading.”
Against this background, Mbengue rhetorically asked, “Madam President, Members of the Court, how can it be that the calling of a referendum that was announced to Guyana over two years ago, now results in a request for provisional measures?”
Guyana, he contended, has had “ample time” to raise these issues but decided to keep silent until now. “This is not congruent with the essence of a request for provisional measures,” he said.
Referencing the fifth question outlined in the planned referendum which deals with the prospective creation of a Guyana Esequiba administrative region and the “development of an integral attention plan” which would include the issuance of identification cards, and the incorporation of the said state in the territorial map of Venezuela , the international law professor said that none of these administrative actions can affect Guyana’s alleged title to the disputed territory.
Concerning the issuance of IDs, the lawyer contended that “this would benefit the frontier population, particularly those who engage in commercial and day-to-day activities, and will ensure the free movement of persons in the area.”
Further, the incorporation of Guyana Esequiba on Venezuela’s map he said, “is something that Venezuela, who has a plausible claim to the disputed territory,” has already done many decades ago and of which he said Guyana, is very much aware.
Mbengue said that Guyana’s protest against the planned referendum is itself a deficiency in the provisional measures it seeks, as it surrounds an internal domestic matter that cannot have any damaging effect on Guyana’s alleged title to the disputed territory.
This, the lawyer said, should be enough to dismiss Guyana’s request, since the Court’s own precedent “makes it clear that provisional measures cannot be granted where the request for provisional measures “aims at preventing cannot in any event, or to any degree, affect the existence or value of the sovereign rights claimed . . .”
The third deficiency of the measures being sought by Guyana the attorney said is that the application lodged by Guyana five years ago had already claimed that Venezuela was about to use force in support of a request that the Court rule and declare that Venezuela should not use force or threaten to use force against Guyana.
Venezuela he said, made it clear, in its 2019 Memorandum, that it was “not going to resort to force, not only because it is prohibited by international law but also because of its own regional policy of peace, integration, and solidarity.”
He said that back then, “and rightly so, [the Court] paid no attention to Guyana’s unfounded allegations. Guyana is now coming back with the same allegation, in the form of a request for provisional measures, going even further by asserting that Venezuela intends to reject the Court’s judgments.”
He surmised that Guyana’s request is ultimately based on the unwarranted premise that the Court has already ruled on the merits in its favour. “From there, Guyana postulates that Venezuela intends to reject the future judgment and asks the Court to order Venezuela to accept this future judgment.”
The professor said that this is an unprecedented attempt that is not only contrary to the very nature and raison d’être of provisional measures, but also to the very function of the Court under Article 38, paragraph 1, which “is to settle disputes.”
Against this background, Mbengue said that “Guyana is asking the Court nothing less than to prejudge the merits of the pending dispute before it by explicitly approving Guyana’s claim and ordering Venezuela not even to maintain its own claim. This clearly denotes an abuse of process from Guyana’s part.”
Regarding the referendum itself, professor Mbengue said that there is an inescapable problem with Guyana’s request. The problem he said, is that, if there is one area that undoubtedly still falls within the domaine réservé of Venezuela, it is this one.
“Nothing in international law allows Guyana to dictate to Venezuela, through the Court, how its constitutional bodies should perform their functions,” he asserted; emphasising to the Court that it is common practice in constitutional law to hold referendums, especially when the boundaries or extent of the national territory are at stake.
Seeking the popular opinion on such issues belongs in principle to the domaine réservé of States, he noted; while reminding that this foundational principle is inherent in Article 2, paragraph 7, of the United Nations Charter, which refers to “matters which are essentially within the domestic jurisdiction of any state.”
The organization of this referendum plainly falls within Venezuela’s reserved domain, whereas no international law obligation could impact its holding or content, Mbengue said; even as he added that Guyana invokes no basis for any limitation to this reserved domain.
This, he submitted, is because nothing in international law allows Guyana to dictate to Venezuela, through the Court, “opportunistically instrumentalized,” how its constitutional bodies should perform their democratic functions.
The professor opined that it would be unprecedented for one State to force another to forego a domestic popular consultation—and for the Court to indicate to a State not to consult its population on such a crucial matter.
With submissions from both countries having been completed, President of the Court, Justice Joan E. Donoghue said that the Court will render its Order on the request for the indication of provisional measures as soon as possible.
She said that the parties through their agents, will be advised in due course as to the date on which the Court will deliver its Order in a public sitting.
Guyana’s submissions
With the controversy over the 1899 arbitral award still pending before the Court for final settlement, Guyana has denounced the aggressive new measures taken by Venezuela in furtherance of its claim to Guyana’s Essequibo Region.
The purported referendum is being seen as a move to ratify the Venezuelan government’s apparent decision to withdraw from the present judicial proceedings before the World Court, and proceed unilaterally to incorporate the Essequibo Region into its own national territory as an integral part of Venezuela.
Opening Guyana’s arguments before the 14-member panel of judges, Agent for Guyana to the Court, Carl Greenidge on Tuesday wasted no time in telling the Court that Caracas’ latest move constitutes an “existential threat” to Guyana and to more than two-thirds of its national territory.
Greenidge was keen in pointing out that what the referendum in essence seeks to do, is create a new Venezuelan State by annexing and incorporating into its own territory, Guyana’s entire Essequibo Region and to also grant Venezuelan citizenship to the population.
Emphasising that Guyana must therefore safeguard its rights to the county, Greenidge said that any “seizure” of Essequibo by Venezuela would be irreversible, if, in the Court’s judgment on the merits, it rules that the 1899 Award is valid and that Guyana is the lawful sovereign.
He said that not only would the harm to Guyana be irreparable, but that its loss would be permanent.
In his address to the Court, Counsel on behalf of Guyana, Paul Reichler emphasised that irreparable harm would beset Guyana, should Venezuela’s planned referendum be held.
He pointed to the clear demarcation on the map of the Essequibo belonging to Guyana, as had been fixed by the arbitrators; noting that it was the same boundary that had been demarcated by a joint commission and formally agreed to by Venezuela itself in 1905 and ratified by its national congress.
Reichler was particularly keen in pointing out that it is the very boundary that Venezuela has itself “consistently” recognised, as the international boundary with British Guiana without interruption and without formal protest until 1962.
On this point, counsel for Guyana referenced Venezuela’s clear message in its planned referendum, of seeking to carry out actions that it has already decided to take—which include—the definitive and final rejection of the 1899 Arbitral Award, the rejection of the Court’s jurisdiction in settling the controversy, the refusal of recognising the Court as the means of settlement, the annexation of Essequibo and the defence of the territory against Guyana’s assertion of its rights.
Reichler, an international law attorney surmised that the outcome intended by the Venezuelan government, could not be clearer as the collective decision being called for by its people involves nothing less than the annexation of the territory.
Projecting on screens in the courtroom, photos of soldiers and a military airfield, and referencing the military preparations which have already begun on Venezuela’s border, Reichler said that it all represents the execution of the plans for annexation.
One video translation showed visibly riled-up soldiers enthused and calling for combat stating that they were prepared to protect what they claim to be Venezuela’s territorial integrity.
French lawyer Professor Alain Pellet, who also represents Guyana, underscored in his submissions on Tuesday, the importance of each of the requests for provisional measures made by Guyana. He argued that the Venezuelan government is attempting to forestall the enforcement of any forthcoming judgment by the court using the peremptory argument of the people’s sovereignty. He argued that the court should not tolerate such a ploy.
He said it was important not to allow Venezuela to create a fait accompli. He said that Caracas posed an immediate threat and that this was not “a paper tiger”.
Background
Venezuela began issuing threats to Guyana last month despite the fact that the two countries are before the ICJ on the question of the validity of the 1899 arbitral award which settled the boundaries between the two countries.
On September 18, Caracas denounced the award of offshore exploration blocks in Guyana’s waters.
On September 19, responding to the Venezuelan statement, Guyana’s President Irfaan Ali said: “The Government of Guyana reserves the right to pursue economic development activities in any portion of its sovereign territory or any appurtenant maritime territories. Any unilateral attempt by Venezuela to restrict the exercise by Guyana of its sovereignty and sovereign rights will be wholly inconsistent with the Geneva Agreement and the rule of international law”.
Guyana sought the urgent protection of the World Court, by filing with it a Request for Provisional Measures.
In that Request, Guyana seeks from the Court an Order preventing Venezuela from taking any action to seize, acquire or encroach upon, or assert or exercise sovereignty over, the Essequibo Region or any other part of Guyana’s national territory, pending the Court’s final determination of the validity of the Arbitral Award that established the land boundary between our two States, and the final and binding nature of that boundary.
Guyana said it has no doubt of the validity of that Arbitral Award and the land boundary, which Venezuela accepted and recognized as the international boundary for more than 60 years.
Guyana insists, as does CARICOM, the Secretaries-General of the United Nations and Organization of American States, and the entire international community, that the controversy over the validity of the Arbitral Award and the land boundary must be resolved by the International Court of Justice, which will assure a just, peaceful, binding and permanent solution to this matter, in accordance with international law.
In fact, the Court itself has determined, in two separate Orders, that it has the exclusive jurisdiction to resolve this matter, and that it will do so. Twice Venezuela has formally objected to the Court’s jurisdiction, and both times the Court overwhelmingly rejected Venezuela’s objections.
In the interim, pending the oral hearing on its request and the issuance of the Court’s Order, Guyana urges CARICOM and the international community to continue reminding Venezuela of its obligations under international law, including its obligation to accept the ICJ’s jurisdiction, plead its case to the Court, and comply with the Court’s rulings and Judgments.
On October 30th, Guyana requested the Court to indicate the following provisional measures:
“1. Venezuela shall not proceed with the Consultative Referendum planned for 3 December 2023 in its present form;
2. In particular, Venezuela shall not include the First, Third or Fifth questions in the Consultative Referendum;
3. Nor shall Venezuela include within the ‘Consultative Referendum’ planned, or any other public referendum, any question encroaching upon the legal issues to be determined by the Court in its Judgment on the Merits, including (but not limited to):
a. the legal validity and binding effect of the 1899 Award;
b. sovereignty over the territory between the Essequibo River, and the boundary established by the 1899 Award and the 1905 Agreement; and
c. the purported creation of the State of ‘Guayana Esequiba’ and any associated measures, including the granting of Venezuelan citizenship and national identity cards.
The five questions being asked at the Venezuelan referendum are:
Do you agree to reject by all means in accordance with the law the line fraudulently imposed by the Paris Arbitration Award of 1899 that seeks to deprive us of our Guayana Esequiba?
Do you support the 1966 Geneva Agreement as the only valid legal instrument to reach a practical and satisfactory solution for Venezuela and Guyana regarding the controversy over the territory of Guayana Esequiba?
Do you agree with Venezuela’s historical position of not recognizing the jurisdiction of the International Court of Justice to resolve the territorial controversy over Guayana Esequiba?
Do you agree to oppose by all means in accordance with the law Guyana’s claim to unilaterally dispose of a sea pending delimitation illegally and in violation of international law?
Do you agree with the creation of the Guayana Esequiba state and the development of an accelerated plan for the comprehensive care of the current and future population of that territory that includes, among others, the granting of citizenship and Venezuelan identity card in accordance with the Geneva Agreement and international law, consequently incorporating said state on the map of Venezuelan territory?
Venezuela Vice President Delcy Rodrigues presenting her arguments yesteday (ICJ photo)
The Venezyelan bench (ICJ photo)
Makane Moise Mbengue
