The Dispute between Guyana and Venezuela over the Essequibo Region

Introduction

On 29 March 2018, Guyana filed an Application against Venezuela before the International Court of Justice (‘ICJ’) concerning the two States’ long-standing dispute over the Essequibo region. This Application was filed after the UN Secretary General decided on 30 January 2018 that the dispute between Guyana and Venezuela should be submitted to the Court. The Secretary General’s decision was welcomed in Guyana and received support from Caribbean countries. But it was received with some hostility in Venezuela. A decision by the ICJ could be the final act in a dispute which has, sometimes bitterly, divided the neighbouring countries for over a century. The dispute between the two States includes both procedural and substantive elements.

Procedurally, the parties disagree (and have disagreed for some time) as to whether the ICJ has jurisdiction to hear the dispute. As will be discussed below, the Secretary General’s role in the dispute is based on the provisions of the Geneva Agreement of 1966 between the UK (the colonial power in Guyana at that time) and Venezuela. Under this agreement, in the event that bilateral efforts to solve the dispute fail, the Secretary General is empowered to choose ‘…another of the means stipulated in Article 33 of the Charter of the United Nations…’. However, questions arise as to whether the Secretary General may submit the dispute to the ICJ in a manner which is binding on both parties. As for the substantive aspect of the dispute, the parties disagree as to the alleged nullity and invalidity of an arbitral award handed down in 1899 which found that the Essequibo region lies on British Guiana’s side of the border with Venezuela.

The resolution of the dispute is of significant economic interest to the parties, as the area is rich in natural resources: the world’s largest untouched oil reserves lay in the east of Venezuela, around the Orinoco river delta, close to the disputed border with Guyana. Natural resources are also present in the (as yet undelimited) coastal waters, and Guyana’s exploratory activities in the area have been protested by the Venezuelan government. In 2015, a Venezuelan Presidential Decree (1787, as amended by Decree 1859) laid claim to Atlantic waters off the Essequibo coast, and Venezuela’s navy has intervened in the disputed area on numerous occasions. The Decree met with protest from Guyana. As is common in these disputes, nationalist sentiment rides high as sovereignty over the area is seen as a matter of national honour and pride, and the rhetoric concerning the dispute has intensified on both sides. Venezuelan officials and civil society (see here and here) have decried the UNSG’s decision to submit the dispute to adjudication by the ICJ as a ‘hostile’ act against Venezuela. In Guyana, where Venezuela’s conduct is often perceived as a form of bullying by its more powerful neighbour, the Government is organising a public awareness campaign, including educating schoolchildren about the controversy.

The dispute has a long and complex history, so in this post we will offer only a brief outline of its historical context and the main issues now in contention between the parties, including the question of the ICJ’s competence to hear and determine the issue.

Background and the Paris Award of 1899

The disputed area between the two States lies roughly between the Orinoco and the Essequibo Rivers. Venezuela lays claim to this territory as successor to the Spanish Empire, from which it declared independence in 1810, on the basis that the Spanish established sovereignty in the late-16th century by discovering, settling and exercising political control over the region. The British, on the other hand, claim to have acquired the territory from the Dutch by a formal cession under the terms of the Anglo-Dutch Treaty of 1814. According to the British, Dutch subjects had settled in the area in 1616 and continued trading on the Essequibo and other rivers in the vicinity in the following decades. Dutch sovereignty over these settlements was recognized by Spain in 1648 when, as part of the Peace of Westphalia, the Spanish and Dutch signed the Peace of Münster to end the Eighty Years War between them. Under Article 5 of the Peace of Münster, Spain agreed that the Dutch would retain all of the ‘lordships, cities, castles, fortresses, trades and lands in the… West Indies’ under their possession at that time, but the treaty did not specify the boundary dividing their respective possessions in the region. From the 1650s onwards, the Dutch expanded their settlements and trading activities in the area, and the Dutch West India Company controlled the coast between the Essequibo and Orinoco rivers. The British seized the Dutch settlements in 1803, and in 1814 the Dutch formally ceded to them the colonies of Essequibo, Demerara and Berbice, though, again, the boundaries of these colonies remained undefined. In 1831, the British consolidated these settlements as British Guiana.

In 1840, Britain commissioned a German surveyor, Robert Schomburgk, who had previously explored the area, to delineate the boundaries of British Guiana (the ‘Schomburgk Line’). Venezuela disputed Schomburgk’s line, and in 1850 the parties agreed not to occupy the disputed area. Despite this, in the late 19th century, British citizens settled in the area, prompting renewed protests by the Venezuelan government, which later broke off diplomatic relations and sought assistance from the United States. In 1897, the parties agreed to submit the dispute to arbitration. A tribunal was constituted with two British members, two Americans, and the Russian jurist Fiodor de Martens as president. The tribunal sat in Paris and, during the proceedings, Venezuela was represented by American counsel. The tribunal issued a short, unanimous award in 1899, offering merely a description of the course of the boundary line, without giving any reasons for the decision. The award granted Britain almost 90% of the disputed territory, but assigned to Venezuela a valuable portion at the mouth of the Orinoco river. Under Article XIII of the Treaty of Arbitration, the parties had agreed to consider the result of the arbitration as ‘a full, perfect, and final settlement’ of the issue, and Venezuela did not protest the award after it was delivered. The border was subsequently fixed by the Anglo-Venezuelan Boundary Commission in 1905.

Claims of fraud and the Geneva Agreement

On 8 February 1944, Severo Mallet-Prevost, a junior lawyer in the Venezuelan legal team before the Paris Tribunal, wrote a letter which was posthumously published in the American Journal of International Law in 1949 ((1949) 43 AJIL 523). The letter contained allegations of impropriety by the tribunal, claiming that the award was the result of a secret deal between the president of the tribunal and the British arbitrators. In 1962, Venezuela declared that it would no longer abide by the 1899 Award on the basis that it was null and void. It claimed that the decision had not been based on a fair arbitral process, but was the result of a political deal made behind Venezuela’s back. The claim was communicated in writing to the UK and was also made, publicly, in the UNGA. The two States held talks and in 1966 signed an agreement to resolve the controversy (the ‘Geneva Agreement’). Article I of the Geneva Agreement provided for the establishment of a mixed commission, tasked with seeking ‘satisfactory solutions for the practical arrangement’ of the dispute. Furthermore, pursuant to Article IV, in the event that the mixed commission failed to reach a solution after four years, the parties would be required to select one the means of peaceful dispute settlement in Article 33 of the Charter to resolve the conflict. In accordance with Article VIII of the Agreement, Guyana became a party to the treaty when it gained independence in 1966.

The mixed commission referred to in Article I of the Geneva Agreement was established in 1966 and, after holding 16 sessions, its term expired in 1970 without a resolution to the dispute. In that same year, the parties agreed the Protocol of Port-of-Spain, which suspended the operation of Article IV of the Agreement for 12 years. The Protocol expired at the end of its term in 1982, after Venezuela decided not to renew the agreement.

In 1990, in accordance with Article IV(2) of the Geneva Agreement, the parties sought the Good Offices of the UN Secretary General in an effort to move the dispute forward. In 2016, the UNSG announced that absent significant progress towards a solution of the controversy by the end of 2017, and unless both parties jointly request that he refrain from doing so, he would choose the ICJ as the next means of settlement. As noted, after a series of unsuccessful meetings between the parties, the UNSG announced his decision to submit the dispute to the ICJ in January 2018.

Present dispute

The dispute between the two States includes both substantive and procedural elements.

Substantively, this is not a straightforward territorial dispute. Indeed, the parties disagree as to whether a territorial dispute exists at all. The current issue turns on the meaning and implications of the 1966 Geneva Agreement. Venezuela’s understanding is that the Geneva Agreement constitutes an implicit acknowledgement by the parties that the 1899 Award is invalid, with the result that the dispute between the two countries concerning sovereignty over the Essequibo remains unresolved (see here, here and here). According to Guyana, the Geneva Agreement carries no implications concerning the validity or nullity of the 1899 Award; in its view, the only subject in dispute between the parties is whether the 1899 Award is, as Venezuela asserts, null and void (see here). Indeed, in its Application, Guyana has asked the Court to confirm that the award is valid and binding.

Procedurally, the situation is certainly unlike any other, as noted by our colleague Mike Becker on Twitter. In Corfu Channel the UN Security Council recommended that Albania and the UK refer their dispute to the Court. But in this case, the UNSG seems to have the power to decide which means of dispute settlement to pursue: pursuant to Article IV of the Geneva Agreement, the UNSG ‘shall choose’ the means (absent agreement by the parties). The question is whether as one of those means, the UNSG can choose judicial resolution by the ICJ.

The parties have long disagreed on whether the ICJ has jurisdiction to hear the dispute. The Geneva Agreement does not expressly mention the ICJ as a means of dispute settlement. Rather Article IV(2) states that:

If, within three months of receiving the final report, the Government of Guyana and the Government of Venezuela should not have reached agreement regarding the choice of one of the means of settlement provided in Article 33 of the Charter of the United Nations, they shall refer the decision as to the means of settlement to an appropriate international organ upon which they both agree or, failing agreement on this point, to the Secretary-General of the United Nations. If the means so chosen do not lead to a solution of the controversy, the said organ or, as the case may be, the Secretary-General of the United Nations shall choose another of the means stipulated in Article 33 of the Charter of the United Nations, and so on until the controversy has been resolved or until all the means of peaceful settlement there contemplated have been exhausted.

Article 33 of the UN Charter does not expressly refer to the ICJ either, but it mentions ‘judicial settlement’ as one of the means for the pacific settlement of disputes. It seems logical to interpret, as the UNSG has done, Article 33 as including judicial settlement by the ICJ, seeing that it is the principal judicial organ of the UN, and that both States are parties to the ICJ Statute. On this interpretation, Article IV of the Geneva Agreement could be read, as Guyana has done in its application to the Court, as a compromissory clause which confers jurisdiction on the ICJ, albeit indirectly.

This interpretation is, however, disputed by Venezuela for four main reasons (which it has raised at different times: see here and here). First, because the decision of the UNSG exceeds its competence as a ‘good officer’ as agreed by the parties. Second, because such an interpretation of Article IV would contravenes the spirit, purpose and object of the Geneva Agreement which is, as stated in its preamble, to amicably resolve the dispute in a manner acceptable to both parties. Third, because a judicial resolution of the dispute would be unacceptable to Venezuela since, in accordance with its longstanding reservations about third-party dispute settlement, it does not recognise the jurisdiction of the Court either generally or for this dispute specifically. Finally, and this is more properly a question of admissibility, because the means of dispute settlement referred to in Article 33 of the UN Charter are successive, with the result that adjudication may not be pursued until attempts to seek a solution by diplomatic negotiation have been exhausted.

It also remains to be seen whether Article IV of the Geneva Agreement grants the Court jurisdiction to hear all of the claims submitted by Guyana, since Guyana has included in its Application, along with the question of the validity of the 1899 Award, claims that Venezuela bears responsibility for the infringement of its territorial sovereignty, its territorial integrity and for the threat or use of force in the disputed area. Guyana’s Application would seem to require the Court to decide these matters on the basis of customary international law, since the Geneva Agreement does not include any of these rules.

What the next practical steps are remains somewhat unclear. In particular, it is uncertain whether under the Geneva Agreement either of the parties can seise the Court unilaterally or whether they need to do so jointly—which raises issues similar to those considered by the Court in Qatar v Bahrain. A joint application was most unlikely, given Venezuela’s vehement and repeated objections to the UNSG’s decision. Guyana’s only option would have been to file the claim unilaterally, which it has now done. As expected, this choice was objected by Venezuela in a diplomatic note of 30 March 2018, in which reiterated its position in respect of the ICJ’s lack of competence to hear the dispute. Venezuela also suggested the resumption of diplomatic negotiations to resolve the dispute and to evaluate whether to continue with the UNSG’s good offices to this end. Guyana’s Foreign Affairs Minister has since refused Venezuela’s request, stating that Venezuela would have to abide by a decision of the ICJ. Given Venezuela’s distrust of international dispute settlement (it has recently withdrawn from the ICSID convention and the jurisdiction of the Inter-American Court of Human Rights), it would be unsurprising if it decided not to appear before the ICJ in the proceedings unilaterally commenced by Guyana—though one would hope that the Government will not choose this course of action.