Updated: Oct 16, 2020
On June 30th of this ongoing year, the International Court of Justice (ICJ) held public hearings on the Venezuela-Guyana longstanding dispute over the Essequibo region. Said hearings were to be initially held on March 23rd, 2020, but they were suspended due to the COVID-19 pandemic. Nonetheless, the ICJ held them via online which marked the first time in history that public hearings were held in that manner. Not only was this important to note, but also the fact that Venezuela decided not to participate in the referred hearings.
In that sense, it seems necessary and interesting to see the legal implications of Venezuela’s non-participation in the hearing and the proceedings as a whole, and what this can mean for said country.
A little background
The origins of the Venezuela-Guyana dispute go back to 1835, year in which Great Britain commissioned Austrian explorer Robert Schomburgk to embark on an expedition to define the limits between what was known at the time as British Guiana and Venezuela. Mr. Schomburgk drew up a map in which the limits between both territories where established in the Essequibo River, except for the Pomerun and Moruca regions, in an area of 4,920 square kilometers. This border came to be known as the Schomburgk Line. However, in 1840 the same explorer advanced that line another 142 square kilometers further into Venezuelan territory, resulting in what became known as the second Shomburgk line, which is reflected on the so-called Sketch Map from the Parliamentary papers of that year.
After the publication of said map in that same year, the Venezuelan government protested British hindrance on Venezuelan territory. This marked the official beginning of the Venezuela-Guyana territorial dispute. Ten years later, Venezuela and Great Britain signed an agreement, namely the Agreement of 1850 in which both nations agreed not to occupy the contested territory. Said agreement lasted until the 1899 Arbitration Award, but during that time, the issue of the territorial dispute was raised by the Venezuelan representative at the 1889-1890 Pan-American Conference held in Washington, although no resolution was achieved in favor of the country, mainly because of the rejection of the United States (US).
Five years after, a group of English commissars who had lowered the Venezuelan flag and raised the Great Britain’s instead in the disputed territory were arrested by Venezuelan troops, in what came to be known as the “Yuruan incident”. Although this incident cost Venezuela a fine, it also helped in changing the U.S.’s position to curb the expansionist aspirations of Great Britain in the continent (For more information regarding the origin of the dispute see Allan Randolph Brewer-Carias, “Guyana-Venezuela Border Dispute”, Max Planck Encyclopedia of Public International Law, Oxford University Press (2006): 1-7; and Federica Paddeu and Brendan Plant, “The Dispute between Guyana and Venezuela over the Essequibo Region”, Blog of the European Journal of International Law, https://www.ejiltalk.org/the-dispute-between-guyana-and-venezuela-over-the-essequibo-region/).
On February 2nd, 1897, Venezuela signed an Arbitration Treaty with Great Britain, in which both nations agreed to submit the territorial dispute to arbitration. The Arbitral Tribunal was composed of two representatives for the British and two representatives for Venezuela, namely: Lord Russell of Kilowen and Lord Henn Collins for the first nation and Melville Winston Fuller and David Josiah Brewer, as representatives of the latter. The Russian jurist Federico De Martens was appointed to preside over the Tribunal and the Secretary of the Tribunal was Mr. Severo Mallet Prevost. No Venezuelan jurist was allowed to form part of the arbitration tribunal.
On October 3rd, 1899 the referred Tribunal adopted an Arbitral Award which resulted unfavorable for Venezuela, as it granted the British the Essequibo territory. The Arbitral Award was immediately rejected by Venezuela and in 1903 said country denounced it before the International Permanent Court of Justice in The Hague (predecessor of the ICJ); the Award was executed notwithstanding.
In 1949 the posthumous Memorandum of Mr. Mallet Prevost was published, in which all the details of how the "farce" of the arbitral Tribunal was carried out were revealed. In 1962, Venezuela’s Foreign Minister at the time denounced before the United Nations (UN) that the arbitral award of 1899 was null and void because it was the product of fraudulent acts between English arbitrators and the president of the court, the Russian De Martens. This situation motivated the opening of talks between both nations in which Great Britain accepted the existence of a controversy or territorial dispute with Venezuela.
On February 17th, 1966, during the government of President Raúl Leoni, a delegation negotiated with Great Britain and the Prime Minister of the still-colony of Guyana, which resulted in the signing of the well-known Geneva Agreement, in which both Venezuela and Guyana agreed that there was indeed a territorial dispute and that the means will be sought to achieve a practical solution acceptable to both States. To this end, a Mixed Commission was created. But, in May 26th, 1966 Guyana declared its independence from the British and, thus, the negotiation process continued between Venezuela and Guyana solely.
Between 1966 and 1970, a series of negotiations were held between both nations in order to find practical and satisfactory settlements for the dispute, but unfortunately they were never reached. In 1970, the Protocol of Port of Spain was signed, an agreement to suspend the application of the Geneva Agreement for a span of 12 years. In 1982, Venezuela announced that it was not going to extend the Protocol of Port of Spain and decided to take the dispute to the UN. In the years after, negotiations between Venezuela and a UN representative began in order to determine and agree on the method of peaceful resolution. In 1989, the method of Good Offices was agreed, which consists of the assistance of a third party in the negotiations to help the negotiations but does not decide anything about the positions of those who are negotiating.
From that date until 2014 there have been three Personal Representatives of the Secretary-General appointed to conduct the Good Offices Process (one resigned and the other two passed away). In July 2015, Venezuela requested the UN the appointment of a new Personal Representative of the Secretary General to continue conducting the process. In 2017, UN Secretary General Ban Ki Moon appointed Norwegian Diplomat Ya Dag Nylander, marking the first time a person from a non-Caribbean country held the position.
Guyana’s application before the ICJ
On December 16th, 2016, the UN Secretary General Ban Ki Moon announced that the Good Offices Process would continue for a final year, until the end of 2017, with a reinforced mediation mandate. Mr. Moon also stated that if by the end of 2017, the Secretary General concludes that no significant progress has been made towards a complete agreement to resolve the dispute, the ICJ would be chosen as the next means of solution, unless the Governments of Guyana and Venezuela, jointly, request that he refrain from doing so. On January 30th, 2018, UN Secretary General Antonio Guterres, announced that in the absence of progress, he will leave the solution to the territorial dispute between Venezuela and Guyana in the hands of the ICJ. Said decision was supported by many Caribbean countries, but was immediately rejected by Venezuela.
Following the UN Secretary General’s decision, on March 29th, 2018, Guyana filed an application against Venezuela before the ICJ regarding the validity of the 1899 Arbitral Award (to see application click here). On June 18th of that same year, Venezuela notified the ICJ its intention of not participating in the proceedings before the Court regarding the case over the Essequibo region introduced by Guyana, because it holds that the Court lacks jurisdiction to resolve the dispute. On April 18th, 2019 the time-limit for the filing of the Counter-Memorial expired for Venezuela (to see the ICJ’s order click here).
In light of the above, Venezuela’s Chancellor, Jorge Arreaza issued a statement through which he ratified Venezuela’s intention of not participating in the proceeding before the ICJ, as well as he announced that Venezuela would be transmitting the necessary information to back its position in relation with the ICJ’s lack of jurisdiction, as per article 53 (2) of the ICJ’s Statute. Additionally, Venezuela’s National Assembly issued a Parliamentary Agreement that was remitted to the Office of the ICJ’s Secretary, in which it reiterated its rejection to the application filed by Guyana, as well as it also held the ICJ’s lack of jurisdiction (to see the aforementioned Parliamentary Agreement click here).
On the other hand, Guyana’s Ministry of Foreign Affairs issued a statement in which it made public its request that the ICJ continue to set the deadline for holding the hearings regarding the issues of jurisdiction and admissibility as soon as possible.
Current status of the proceedings before the ICJ
As mentioned in the beginning of this article, on June 30th, 2020 the ICJ held public hearings on whether it has jurisdiction to resolve the longstanding border dispute between Guyana and Venezuela, in which the latter country decided not to participate. Now, it is up to the ICJ to decide whether or not it has jurisdiction to resolve the territorial dispute between the two nations, based on the memorial presented by Guyana and the arguments presented by said nation in the referred public hearings, as per articles 36 and 37 of the ICJ’s Statute.
Mistakes or strategy?
It is important to remember that the whole proceedings surround the validity of the 1899 Arbitral Award. Thus, Guyana is intending on obtaining a final and binding ruling from the Court that establishes that said Award remains valid; whereas, Venezuela is holding that the ICJ lacks jurisdiction, hence its non-participation stance in the proceedings. Unfortunately, regardless of Venezuela’s non-participation, the nation is a part of the proceedings as it has been held by the Court in previous decisions (see inter alia, Fisheries Jurisdiction, paragraph 17), and the final ruling will be legally binding, as per articles 94(1) of the UN Charter and 59 and 60 of the Statute of the ICJ. This raises the question if Venezuela’s choice to not participate in the public hearings was a good decision at all.
In my opinion, holding the historical position of not recognizing the Court’s jurisdiction in the case was and still is the right strategy. But not participating in the public hearings seems like a mistake. Although it is true that as per article 53 of the ICJ’s Statute there is no obligation for States to participate in proceedings before the Court and Venezuela is free to decide at any stage of these to participate as it has been held in previous occasions by the ICJ (see Nicaragua v. United States of America, paragraph 284), Venezuela should’ve grasped the opportunity to present its arguments and counterarguments formally before the Court.
From a strategic and legal point of view, not participating in the public hearings and, consequently, not being able to plead or answer questions raised by the judges, or to submit supporting evidence or challenge those introduced by Guyana was a grand error. Moreover, when the lack of jurisdiction is an argument that Venezuela must’ve presented formally to the Court, but which wouldn’t have meant that it recognized the Court’s jurisdiction on the case. Certainly, not presenting any arguments nor evidence whatsoever to support its claims could take a heavy toll for Venezuela in the present case.
What can we expect?
The ICJ could declare that it has jurisdiction in the case, based on the arguments and evidence presented by Guyana in the proceedings. If that is the case, Venezuela would need to change its legal strategy and start participating in the proceedings. Despite the fact that there is a chance the Court might take into consideration Venezuela’s informal statements to ascertain and determine important facts on the matter, as it has been done in other cases (see, inter alia, Aegean Sea Continental Shelf) this may not be enough. Historical data shows that there have been very few cases in which the ICJ declared the nullity of an Arbitral Award. Therefore, Venezuela could need to appoint experienced legal representatives for the case, as it may well require all the legal manpower it can get to defend its rights and interests over the contested area.
Truthfully, the years in which the Good Offices Process was applied should’ve been seized to achieve a practical and peaceful agreement. But now, Venezuela may well have to engage in a drawn-out legal proceeding that could prove harmful to the country’s geopolitical future.
Juan Andres Miralles is a lawyer from Universidad Catolica Andres Bello (Caracas, Venezuela) currently working in private practice and is co-editor of The Explorer. You can find him on Linkedin at Juan Andres Miralles Quintero.