The Way Forward for the Venezuela/Guyana Dispute at the International Court of Justice
By Andrés Sellitto Ferrari
The International Court of Justice (ICJ) recently held hearings to address Venezuela’s preliminary objections in the matter of Arbitral Award of 3 October 1899 (Guyana v. Venezuela) on November 17-22, 2022. This follows the Court’s December 18, 2020 judgment finding that it had jurisdiction to consider Guyana’s 2018 application instituting proceedings against Venezuela, initiating a new period in the nations’ near two-century long territorial dispute over the Essequibo region.
As the dispute stands today, the ICJ must determine the validity of the Arbitral Award of 3 October 1899, which established the present-day disputed border between Venezuela and Guyana. That award placed 90% of the Essequibo region on the Guyanese side of the border, and is the legal basis for Guyana’s claim to that territory.
Map of the Disputed Territory. Courtesy: Sovereign Limits
The stakes of the dispute have risen dramatically. On December 20, 2019, ExxonMobil announced it had been able to extract crude oil from an offshore site located in the disputed territory’s waters. Over the past three years, exploration and production has grown significantly in the disputed waters, leading to the potential production of 820,000 oil barrels per day by 2025. In contrast, Venezuela’s current production level is estimated at around 660,000 oil barrels per day.
However, beyond the current economic and political context, and in light of the recent hearings, it is useful to examine the legal and factual foundations of the dispute.
Under the customary international law principle of uti possidetis juris, colonies in Latin America that declared independence and became states maintained the former colonial borders as their new international borders; there was no terra nullius, or territory that was not under the sovereignty of any state.
Uti possidetis has been applied in other regions with an imperial past. The doctrine was adopted as a treaty obligation by the African Union in 2001, enjoining member parties to respect boundaries as inherited from their predecessor colonial entities. Outside the colonial context, the arbitration commission charged with resolving territorial disputes resulting from the breakup of Yugoslavia applied uti possidetis to facilitate the establishment of boundaries between the nascent independent Balkan nations. Another example that has taken increased relevance since February 2022 is the Alma Ata Declaration of 21 December 1991, which established the administrative borders of former Republics of the Soviet Union as (theoretically inviolable) international borders once the Soviet Union dissolved.
Based on this principle, Venezuela has persistently claimed sovereignty over the territories that Spain colonized throughout the 1500s, and administered as the Captaincy-General of Venezuela colony beginning in 1777. The Captaincy-General of Venezuela included the entire Essequibo region.
Based on the uti possidetis principle, Venezuela’s claim is not one of expansion, but instead one of completion/preservation of its territorial integrity. Indeed, Article 10 of the Venezuelan Constitution states that
“the territory and other geographical spaces of the Republic are those which belonged to the Captaincy-General of Venezuela before the political transformation began on April 19, 1810 [the beginning of the Venezuelan War of Independence], as amended by virtue of the treaties and arbitration awards which have not been vitiated with nullity.”
The Article’s last clause refers to Venezuela’s position that the 1899 Arbitral Award, which established the present border (essentially in the United Kingdom’s favor), carries no legal weight.
One of Venezuela’s strongest arguments against the Award’s validity is its lack of reasoning. Principles of public international law in 1899 provided that non-justification of an arbitral award is a reason to demand its annulment, while contemporaneous experts considered that a legal sentence without justification is “inconceivable” and would “sacrifice justice for political considerations.” Such remarks were expressed as a rebuke of the President of the Venezuela-United Kingdom arbitral tribunal, Russian diplomat Frederic de Martens, who had heavily lobbied the 1899 Hague Peace Conference to prevent the establishment of an arbitral rule requiring justification of arbitral awards.
Martens’ wish not to “embarrass” arbitrators was dutifully followed in the 1899 Arbitral Award. In their decision, the arbitrators simply delineated the proposed land border without providing any arguments grounded on the evidence that the parties presented during the hearings, or any reasoning at all for that matter.
Venezuela’s argument also focuses on the United Kingdom’s alleged corrupt actions during the arbitral process in 1899. Severo Mallet-Prevost, a member of Venezuela’s legal team during the arbitral proceedings, confided to his mentee Otto Schoenrich that Lord Chief Justice Russell, one of the British arbitrators, told him that international arbitrations should not be decided “exclusively on legal grounds,” but rather that decisions “should take into consideration questions of international policy.” Later during the deliberations, United States Supreme Court Justice David Josiah Brewer, one of the two American arbitrators appointed by Venezuela, told Mallet-Prevost that Martens threatened to vote with the British arbitrators to take away not just the Essequibo region, but also the mouth of the Orinoco River from Venezuela, if a unanimous compromise was not reached. Without leverage, and faced with a pragmatic choice, the Venezuela-appointed arbitrators agreed to concede ninety percent of the disputed territory, while preserving the mouth of the Orinoco River for Venezuela.
Columbia Law School professor Arthur Nussbaum wrote that in practice, Martens did not behave as a neutral arbitrator in the Essequibo tribunal, and that his actions showed his application of the so-called “expediency” doctrine, based on which disputes between states should not be resolved according to legal principles, but rather taking into account the interests of the states involved.
Venezuela has also highlighted credible accusations of collusion between Britain’s counsel and its appointed arbitrators. In a letter to British diplomat Lord Salisbury, the United Kingdom’s lead counsel Sir Richard Webster wrote that where “necessary,” he would take “independent action . . . privately through our arbitrators” in order to ensure a favorable outcome. Such a statement, among others, points to British arbitrators acting as agents of the United Kingdom, rather than as appointed arbitrators.
Venezuela also argues that the United Kingdom is a necessary party to the adjudication of this dispute. Under the Monetary Gold doctrine, a court cannot rule without the consent of a third-party whose legal interests are directly affected by the “very subject-matter” of the case. Here, the United Kingdom is the only other party to the original arbitration, and the only other signatory to the Geneva Agreement. The Court will also have to adjudicate Venezuela’s claims of fraudulent conduct against the United Kingdom. The principle has previously been applied to issues of admissibility, beyond the jurisdictional stage, where the Court has found that it cannot “exercise the jurisdiction it has.” Venezuela is thus requesting for the Court to decline to exercise the jurisdiction it has found to have.
Without the United Kingdom, the proceedings would not only be flawed in substance, but in procedure as well. Art. 62(1) of the Rules of Court allows the ICJ to demand discovery of documents relevant to the dispute. Venezuela should be allowed to request relevant diplomatic wires, letters, and other documents kept secret that could allow her to prove the fraud and deceit for which red flags already exist. As to a likely refusal from the United Kingdom based on state secrecy, the Court should exercise its freedom to draw its own conclusions from a party’s failure to produce relevant documents, as it has held in the past.
Mallet-Prevost’s disclosures to Schoenrich were published in 1949, and served as the basis for Venezuela to restart its claim to the territory in earnest in 1962. In 1966, the parties agreed to reach a negotiated outcome (the “Geneva Agreement”). The Agreement is the only legal framework agreed to by Venezuela and the United Kingdom as equals. Indeed, the 1899 arbitration was de facto a process between two imperial powers, the United States and the United Kingdom, with Venezuela and Guyana participating as directly or indirectly colonized proxies. While one sought legalization of a land grab, the other sought recognition of its domination of the Americas through the Monroe doctrine. The United Kingdom’s subsequent four-year long attempt to reach a legal settlement with Venezuela through the Geneva Agreement betrays an implicit recognition of its own colonial wrongdoing. Yet, despite the legally mandated process outlined in the Agreement, in 2018 Guyana instituted an application before the ICJ seeking to obtain a decision establishing its sovereignty over the disputed territories.
Given the circumstances of the dispute, Venezuela’s political resolve to pursue this claim will only increase in the coming years. The Essequibo claim may be the only issue on which there is a consensus among politicians and society, in a country otherwise rocked by general instability and authoritarian rule. The presence of valuable natural resources in the Essequibo region will only heighten the government’s incentive to act more aggressively.
A process that does not reach the merits stage seems unlikely to create a peaceful consensus. The solution is clear: eliminate the lasting effects of imperialism and colonialism by returning to the Geneva Agreement framework, and to a process of mediation and compromise between two sovereign nations.
Andrés Sellitto Ferrari is a law clerk (bar admission pending) at Hughes Hubbard & Reed LLP in Washington, DC. He is a part of the firm’s Litigation department. His practice focuses on investor-state dispute settlement and international commercial arbitration, and has experience in offshore and asset tracing litigation. He holds a B.A. from Cornell University, a J.D. from the University of Pittsburgh School of Law, and an LL.M. from the Université de Paris I Panthéon-Sorbonne. A native of Venezuela, Andrés speaks Spanish, French, and English. This post reflects Andrés’ personal views, and not those of his employer. He can be reached at andres.sellitto@hugheshubbard.com.
