By Melinda Janki LL.B, BCL (Oxon), LL.M
Guyana’s border with Venezuela was determined in 1899 under the Washington Treaty by an Arbitral Award which produced a “full, perfect and final settlement” under international law. That is a statement of law and fact. I hope the International Court of Justice will uphold this Award. The British had claimed territory to the mouth of the Orinoco River, as shown on historical maps from the 18th and 19th centuries, some of which I have. The arbitrators rejected that claim but confirmed British sovereignty over Essequibo. Venezuela and Great Britain jointly demarcated the boundary. It is incontrovertible that as a matter of law there was no longer any legal dispute over the boundary or sovereignty.
Nevertheless, on 15th November 2023, in seeking to persuade the International Court of Justice to indicate provisional measures against Venezuela but not Guyana, Guyana’s lawyer Paul Reichler assured the International Court of Justice (the Court) that “There is nothing that Guyana or British Guiana before it has done, in the 124 years it has been administering the territory following the 1899 Arbitral Award, that would prevent it from ceding the territory to Venezuela if the Court were to set aside the Award and establish a new boundary along the line that Venezuela now claims.” Who authorised Reichler to say that Guyana could cede Essequibo to Venezuela? What happened to Guyana’s sovereignty over Essequibo? How come the full, perfect and final settlement could be set aside? Despite Reichler’s assurance, on 1st December 2023, the Court indicated provisional measures against Guyana and Venezuela to refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve. They also indicated provisional measures against Venezuela to refrain from taking any action which would modify the situation that currently prevailed in Essequibo. Provisional measures are binding and create international legal obligations. Nevertheless, President Ali flew to the tiny island of St. Vincent and on 14th December 2023, issued the ‘Argyl Declaration’ a joint statement with President Maduro on, “matters consequential to the territory in dispute” between Guyana and Venezuela i.e. Essequibo. What legal advice did he take?
Venezuela first attempted to raise a legal dispute over the Essequibo in 1962, by suddenly claiming that the 1899 Award, made unanimously by the five arbitrators, was the result of a political transaction and was null and void. Venezuela did not produce any evidence to support its claim that the British judges Lord Russell and Sir Richard Collins, the US Supreme Court judges Chief Justice Melville and David Brewer, and the Russian jurist de Martens had acted improperly. Under international law, Venezuela could not create a dispute just by saying so. In the South West Africa Cases 1962 the Court had held that “…it is not sufficient for a party to a contentious case to assert that a dispute exists with the other party. A mere assertion is not sufficient to prove the existence of a dispute …” The British dismissed Venezuela’s attempts to create a dispute over the Award. US State Department records show that closer to home, Venezuela’s claim “irritated the hell out of Burnham”. The British position that there was no legal dispute was vindicated in 1966 when the Venezuelan Foreign Minister signed the Geneva Agreement, along with the UK Foreign Secretary and Prime Minister Forbes Burnham of British Guiana, which said that a ‘controversy’, had arisen because of Venezuela’s contention that the 1899 Award was null and void. Venezuela had tried to create a legal dispute over the border. Venezuela had failed. Instead, Venezuela was bound by an international treaty which reduced its claim to a political controversy. The British Foreign Secretary told Parliament it was clear after Geneva, that the border was legally settled in 1899.
Since there was no legal dispute over the Award or over the border there was no need for a legal settlement. The Geneva Agreement set up a Mixed Commission to find “satisfactory solutions for the practical settlement of the controversy.” It did not work. Venezuela seized the eastern half of Ankoko Island. Venezuela has continued to threaten and infringe Guyana’s sovereignty. The Geneva Agreement said that if the Mixed Commission did not get full agreement on a solution to the controversy they would refer any “outstanding questions” to the governments of Guyana and Venezuela who would choose a means of peaceful settlement. If they could not agree the UN Secretary-General would choose. In 2018, he chose the Court.
At this stage there was no legal dispute over the 1899 award or the boundary. So, what legal question would Guyana ask the Court to determine? Venezuela had accepted the award for 63 years, had demarcated the boundary in 1905 and had issued maps in 1911 showing that Essequibo was Guyana’s territory. Guyana could have asked the Court the legal question of whether it was too late for Venezuela to challenge the 1899 Award. Guyana’s Application to the Court even said that Venezuela’s prolonged acceptance of the Award called to mind the Case concerning the Arbitral Award by the King of Spain in which the Court concluded that Nicaragua could not challenge an arbitral award because Nicaragua had by express declaration and conduct recognised the arbitral award as valid and failed to raise any question about its validity for around 5 years. So, Guyana could have asked the legal question of whether Venezuela was “estopped” under international law from challenging the Award. Suppose the Court had then followed its jurisprudence and said that it was too late for Venezuela to challenge the Award. Guyana would have won a significant victory. The matter would have been over legally. But that’s not what Guyana’s legal team did.
Instead they said Guyana placed its faith in the Court to resolve the “controversy”. The Court does not deal with controversies. It decides legal disputes. Did Guyana’s legal team fail to understand the difference between the political controversy caused by Venezuela’s unfounded contentions, and the legal issues arising from Venezuela’s belated attempt to overturn the Award?
Guyana’s legal team asked the Court to adjudge and declare (rule) that, “the 1899 Award is valid and binding upon Guyana and Venezuela, and the boundary established by that Award and the 1905 Agreement is valid and binding upon Guyana and Venezuela.” By phrasing Guyana’s case in this way, they made it legally possible for the Court to rule that the Award is no longer valid and binding. For nearly 60 years Venezuela had tried and failed to create a dispute over the Award. Guyana’s lawyers did it in one sentence. Why? Paul Reichler and Philippe Sands have publicly claimed that Guyana had been hoping for a final binding judgment from the Court on the Award. But that is untrue. For 119 years up to 2018, Guyana had a final and binding Award that was not subject to a legal dispute.
Next, Guyana’s lawyers asked the Court to rule that “Guyana enjoys full sovereignty over the territory between the Essequibo River and the boundary established by the 1899 Award and the 1905 Agreement…” By phrasing Guyana’s case in this way, Guyana’s lawyers made it legally possible for the Court to rule that Guyana does not have sovereignty over Essequibo. Why did they do that?
If the Court sets aside the Award and decides to draw a new boundary Guyana could lose Essequibo. But Venezuela’s territory is safe. Guyana’s lawyers asked the Court to rule that Venezuela enjoys full sovereignty over the territory west of the boundary established by the 1899 Award. Guyana cannot get back the Orinoco territory. Judge Tomka said, “It is rather unusual for the Applicant to ask the Court to determine over which territory the Respondent enjoys sovereignty.” So, why did Guyana’s lawyers do that?
Guyana’s lawyers asked the Court to rule that Venezuela should withdraw from the eastern half of Ankoko and refrain from threatening or using force against any person and/or company licensed by Guyana to engage in economic or commercial activity in Guyanese territory, and that Venezuela was internationally responsible for violations of Guyana’s sovereignty and sovereign rights, and for all injuries suffered by Guyana as a consequence. The Court refused jurisdiction, leaving Guyana with no remedy for these violations of its sovereignty. So, why did Reichler and Sands publicly assure the Guyanese that the Court’s decision was “entirely favourable” and a “historic victory” for Guyana?
Reichler and Sands have publicly said that the Court did not express a view on whether there is a land boundary dispute. But is that right? The Court said it had jurisdiction over two disputes – the validity of the Award and the definitive settlement of the “land boundary dispute.” Judge Tomka says if the Award is overturned, the Court will need further evidence and submissions to determine the “disputed boundary”.
In Guyana’s Memorial on the Merits (March 2022) Guyana’s lawyers rely on the Nicaragua case to argue that it is too late for Venezuela to challenge the Award. If it is too late to challenge the Award then it remains a full, perfect and final settlement and there would not be a land boundary dispute. Why didn’t they do this from the start instead of challenging Guyana’s Award and sovereignty?
For over 50 years British and Guyanese diplomacy ensured that Venezuela could not create a legal dispute over the Award. Guyana’s lawyers overturned those decades of careful diplomacy in one paragraph. They seem to have equated the ‘controversy’ created by Venezuela’s behaviour as a legal ‘dispute’. They have created two legal disputes – the validity of the Award and the boundary- both of which were legally settled in 1899. They have conceded that Venezuela has sovereignty over the territory west of Essequibo, thereby protecting Venezuela’s sovereignty, while putting at risk Guyana’s sovereignty over Essequibo. Why did they do that? Maybe there are good reasons. Maybe not.
The government dislikes being questioned but the Guyanese people are entitled to know how and why the Granger and Ali governments allowed Essequibo, which is two-thirds of Guyana, to go from Guyana’s sovereign territory to a disputed territory.