On March 29, 2018, Guyana filed an application against Venezuela before the International Court of Justice (ICJ) concerning the two countries’ long-standing dispute over the Essequibo region. This application was filed after the UN Secretary General decided, on January 30, 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. But before the ICJ can make any judgment on the case, Guyana must prove that it has jurisdiction to hear the matter. Both Venezuela and Guyana have until November 19 to submit statements for and against in this regard.
The dispute has a long and complex history, so in this article, 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.
THE GENEVA AGREEMENT
On February 8, 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.
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 on 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 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. 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. Indeed, in its Application, Guyana has asked the Court to confirm that the award is valid and binding.
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.
(Information Provided by the European Journal of International Law and approved by the Ministry of Foreign Affairs)
