The International Court of Justice (ICJ) today ruled that Venezuela must not take any decision that modifies Guyana’s control over the Essequibo region.
This is in relation to its planned referendum on Sunday where one of its questions is tantamount to the annexation of Guyana’s Essequibo county.
The court said that the decision has a binding effect on the parties and creates a legal obligation.
The session was held under the presidency of Judge Joan E. Donoghue, President of the Court who delivered the order today in the Hague, Netherlands.
The court also said that neither Venezuela nor Guyana should take any measure to aggravate conditions related to the 1899 arbitral award case currently before the court.
Its order that Venezuela should not take any measure that would modify Guyana’s control over the areas is a key victory for this country and would be seen to be aimed at stopping Venezuela from acting on question five of the referendum which seeks the creation of a state out of Essequibo.
The judge explained the basis for the issuing of a provisional measure. These depended on the plausibility of Guyana’s case which she said existed. It also required a nexus between that plausibility and the measures sought by Guyana which she found existed. She also said that it had to be of an emergency nature which she also found. She also tested the view that the referendum could cause “irreparable prejudice” to the case and also found in favour of Guyana’s application.
She noted that the 5th question in the referendum refers explicitly to the creation of the Guayana Esequiba state as well as an accelerated and comprehensive plan for the development of the area and the granting of Venezuelan citizenship and ID cards to the population of that territory, consequently incorporating the Guayana Esequiba state into the map of Venezuela’s territory.
The judge also pointed out that Venezuela’s Supreme Tribunal of Justice has confirmed the constitutionality of the question. The judge also adverted to the fact that during the oral proceedings last month before the court Venezuela said that it would not “turn its back on what the people decide in the referendum”.
In considering the urgent nature of the request, the judge also cited statements by Venezuelan President Nicolás Maduro and his Defence Minister Vladímir Padrino López suggesting that the referendum on Sunday would lead to steps to take the Essequibo.
The order of the court today noted: “On 24 October 2023, the President of Venezuela, Mr Nicolás Maduro Moros, publicly stated that the referendum `is the first time that all arguments – political, diplomatic, legal, historic, territorial – are given to our people
so that we take a collective decision as a country’ [translation by the Court]. Other official statements suggest that Venezuela is taking steps with a view towards acquiring control over and administering the territory in dispute. For instance, on 6 November 2023, the Minister of Defence of Venezuela, General Vladimir Padrino López, made an appeal to `go to combat’ with reference to the territory in question. Furthermore, Venezuelan military officials announced that Venezuela is taking concrete measures to build an airstrip to serve as a `logistical support point for the integral development of the Essequibo’.
“The Court considers that, in light of the strong tension that currently characterizes the relations between the Parties, the circumstances described above present a serious risk of Venezuela acquiring and exercising control and administration of the territory in dispute in the present case.
“It therefore concludes that there is a risk of irreparable prejudice to the right claimed by Guyana in the present proceedings that the Court has found plausible (see paragraph 23 above). The Court further considers that Venezuela’s expressed readiness to take action with regard to the territory in dispute in these proceedings at any moment following the referendum scheduled for 3 December 2023 demonstrates that there is urgency, in the sense that there is a real and imminent risk of irreparable prejudice to Guyana’s plausible right before the Court gives its final decision”.
The judge pointed out the binding nature of the order:
“The Court recalls that its orders indicating provisional measures under Article 41 of the Statute have binding effect and thus create international legal obligations for any party to whom the
provisional measures are addressed”.
The judge also took pains to point out that today’s order does not in any way prejudice the position of either country in relation to the substantive case before the court – Guyana’s request for the upholding of the validity of the 1899 arbitral award finally settling the boundaries between the two countries.
On October 30, 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 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?
