By Neil Marks in The Hague
The public vote set by Venezuela for December 3, 2023, is the textbook definition of annexation, Guyana argued before the International Court of Justice (ICJ) on Tuesday, saying the referendum is being used as the trigger for the Nicolas Maduro government to use military force to seize the Essequibo region and if is allowed to go ahead, it could mean permanent loss of two-thirds of Guyana’s territory.
As such, Guyana has come to The Hague, the seat of the court, to seek provisional measures to prevent Venezuela from going ahead with its referendum in its present form.
Upon a referral made by the United Nations Secretary-General, Guyana in March 2018 moved to the court for a full and final settlement to Venezuela’s rejection of the arbitral award which settled the boundaries of the two countries 124 years ago. Venezuela has refused to recognise the right of the court to determine the case.
The court hears oral arguments and makes a ruling for provisional measures when a party, in this case, Guyana considers that there is an imminent risk of irreparable prejudice to its rights. These measures, considered binding, are ordered by the judges as a matter of urgency.
Paul Reichler, one of the most eminent lawyers with extensive experience litigating on behalf of Sovereign States, presented evidence to the Court in which Venezuela is preparing to take military action to enforce the outcome of its referendum.
He played a video of the Venezuelan military developing an airstrip it says it will use to “serve as a logistical support point for the integral development” of the Essequibo region.
With the Venezuelan Vice President Delcy Rodriguez just a few feet away from him on the left, Mr Reichler told the Court that the referendum is no mere means by which Venezuela seeks to assess public opinion. Rather, he argued, the referendum is a “license” to act on decisions it has already made to assert and enforce its claim of two-thirds of Guyana’s territory – territory which it had ratified in law as being Guyanese after the borders were marked in 1905 following an arbitral award six years earlier.
Mr Reichler argued that Guyana risks irreparable harm or permanent loss of its territory if the referendum, in its present form, goes ahead and Venezuela takes action to annex the Essequibo region. If the court decides on the substantive case later and rules in Guyana’s favour, Mr Reichler argued that it would be difficult to reverse the annexation.
But he said the Court, one of the six principal organs of the United Nations, has time and can act before Venezuela does.
On Guyana’s side in court were: agent Mr Carl Greenidge, a former foreign minister; Attorney General and Minister of Legal Affairs Anil Nandlall SC; former Ambassador Ronald Austin, who serves as an advisor to the Leader of the Opposition on frontier matters; and Donald Streete, Director of the Department of Frontiers at the Ministry of Foreign Affairs and International Cooperation.
Mr Reichler emphasized that the referendum is but a rubberstamp for decisions already made by the highest officials of the Venezuelan government, including Maduro’s own declaration that Venezuela will never recognise the court.
Mr Greenidge, in his opening statement to the Court, pointed to the danger of the referendum to Guyana’s sovereignty.
“Once Venezuela creates a new state incorporating this territory and grants Venezuelan citizenship to the population, how will this seizure of Guyana’s territory be reversed, if in its judgements on the merits the court rules that the 1899 award is valid and that Guyana is the lawful sovereign? How will Venezuela’s actions be reversed and Guyana’s rights to the territory be restored if Venezuela rejects the Court’s jurisdiction and refuses to recognise the validity of its judgements on the merits?
“As I stand today, Guyana’s rights to over two-thirds of its territory are threatened, not only by irreparable injury but by permanent loss,” Mr Greenidge stated.
What is the purpose of Venezuela’s referendum?
The Venezuela referendum on December 3 asks the Venezuelan people to decide on five things:
- They are asked to agree or reject the 1899 Arbitral Award. Mr Reichler argued that most of them may never have heard of the Award.
- They are being asked to say whether support the Geneva Agreement as the only means to settle the controversy. The Geneva Agreement was reached in 1966 after Venezuela claimed that the arbitral award was null and void. This was after it participated in the exercise to mark the boundaries (a proceed that ended in 1905 and was ratified in its Parliament.) The agreement, while allowing for dialogue and a diplomatic solution, also allowed for the Secretary-General to seek a final end to the controversy if dialogue failed. Dialogue was carried out over many decades and failed to achieve a solution.
- They are being asked if they agree with Venezuela for not recognizing the jurisdiction or the legal right of the Court. The Court has already ruled that it has jurisdiction. And Maduro has already said Venezuela will “never” recognise the court, so Guyana argues the question is pure theatre.
- They are being asked to oppose Guyana’s use of its maritime space. Guyana is not asking for provisional measures on this question because the Court has ruled that it cannot entertain matters outside of the Geneva Agreement. Guyana has proposed talks with Venezuela on this question but it has refused.
- They are being asked to agree with the creation of a “Guayana Esequiba”, essentially the territory of Guyana it claims, and grant Venezuelan citizenship and ID cards and then incorporate the territory on the map of Venezuela.
WHAT ARE THE PROVISIONAL MEASURES GUYANA SEEKS?
On October 30, Guyana filed its request for provisional measures. In that request, it outlined the reason: “[o]n 23 October 2023, the Government of Venezuela, through its National Electoral Council, published a list of five questions that it plans to put before the Venezuelan people in a . . . ‘Consultative Referendum’ on 3 December 2023”.
Guyana stated that the referendum serves “to obtain responses that would support Venezuela’s decision to abandon [the current proceedings before the Court], and to resort instead to unilateral measures to ‘resolve’ the controversy with Guyana by formally annexing and integrating into Venezuela all of the territories at issue in these proceedings, which comprises more than two-thirds of Guyana”.
Guyana is asking the Court to indicate the following provisional measures:
- Venezuela shall not proceed with the Consultative Referendum planned for 3 December 2023 in its present form;
- In particular, Venezuela shall not include the First, Third, or Fifth questions in the Consultative Referendum (these questions are reflected in a, b, and c below);
- 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):
- the legal validity and binding effect of the 1899 Award;
- sovereignty over the territory between the Essequibo River, and the boundary established by the 1899 Award and the 1905 Agreement; and
- the purported creation of the State of ‘Guayana Esequiba’ and any associated measures, including the granting of Venezuelan citizenship and national identity cards.
- Venezuela shall not take any actions that are intended to prepare or allow the exercise of sovereignty or de facto control over any territory that was awarded to British Guiana in the 1899 Arbitral Award.
- Venezuela shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.”
How will the court rule and when?
The Court will hear Venezuela’s side on Wednesday and will then deliberate and come back with a ruling. In these cases for provisional measures, the Court usually comes back with a ruling rapidly, depending on the urgency of the situation.
It this case, Guyana would be hoping it’s sooner since the Venezuelan referendum is less than three weeks away. The Court, in a previous case, had indicated that orders indicating provisional measures have binding force.
The decision of the court comes in the form of an order.
WHAT IS THE HISTORY OF THE CONTROVERSY?
In the arbitral tribunal award of October 3rd, 1989, the borders of Guyana (then British Guiana) and Venezuela were settled, with Venezuela inheriting 13,000 square kilometers of what was then British Guiana territory – an area bigger than Jamaica or Lebanon.
Venezuela was bound under international law to respect that award, which it did for the subsequent six decades. Venezuela, however, at the onset of Guyana’s independence in 1966, resorted to various strategies and challenged the award.
There has been a series of acts of aggression by Presidents of Venezuela against Guyana, starting with a Presidential decree of June 1968 to the time of President Nicolás Maduro Moro’s decree of May 26, 2015, which sought to extend Venezuela’s land claim to also annex the country’s maritime space.
In 2013, Venezuelans sent a naval ship into Guyanese waters and seized a U.S.-chartered oil survey ship, and escorted it to Margarita Island. In the same year, a Canadian-based mining company Guyana Goldfields said it had received a notification of possible legal action by Venezuela over its operations in Guyana.
In September 2015, Guyanese authorities also said the Venezuelan army was up the Cuyuni River, in the northwest of the country that borders Venezuela.
An agreement reached in Geneva on February 17, 1966, allowed for the United Nations Secretary-General to determine a resolution to the controversy, and dialogue and talks ensued for decades.
In mid-February 2017, the new UN Secretary-General António Guterres appointed Dag Halvor Nylander of Norway as his Personal Representative on the Border Controversy, in a final effort at dialogue to settle the matter. That failed.
On January 31, 2018, the UN Secretary-General referred the matter to the ICJ and Guyana filed its case.
The first step was to establish jurisdiction, whether the court can rule on the case and it did so on April 6 this year. While boycotting much of the procedure, Venezuela tried to stop the case from moving forward by arguing the United Kingdom should be involved as Guyana was a British colony in 1899, but judges rejected that reasoning and said they had jurisdiction.
The court by 14 votes to 1, rejected the preliminary objection raised by the Bolivarian Republic of Venezuela.