Guyana wants Judicial Settlement of the Border Issue with Venezuela

By: Dr. Odeen Ishmael, Ambassador Emeritus and historian who served as Guyana’s ambassador to Venezuela from 2003 to 2011. Currently a  Senior Research Fellow at the Council on Hemispheric Affairs.

On March 3, the Guyana government announced its intention to opt out of the United Nations Good Offices process—a mechanism anticipated to assist in resolving the renewed claim that Venezuela had made on a portion of the Essequibo region of Guyana. In explaining the country’s decision and its desire to request a judicial settlement, Foreign Affairs Minister Carolyn Rodrigues-Birkett, pointed out that the Good Offices process has yielded little results over the last past twenty-five years. She added that Guyana was examining other available options, while at the same time suggesting that Venezuela remained comfortable with the current process “because it suits their purpose – no movement.”

These “other options” will eventually have to be decided by the UN Secretary General. According to Article 33 of the UN Charter, they include, in addition to “Good Offices,” the resort to mediation, facilitation, dialogue processes, arbitration and judicial settlement. However, all, except a judicial settlement process, have already been tried.

The UN Good Offices Process

Since 1990, when Dr. Alister McIntyre was appointed as the UN special representative, the two countries have been obliged to keep within the ambit of the Good Offices process, which ended when the last special representative, Dr. Norman Girvan, died in April 2014.

This decision by Guyana to inform the UN that it has opted to no longer participate in the Good Offices process will, no doubt, push the Secretary General to determinedly act. It was clear since early 2014 that the Secretary General himself was becoming concerned with the process, which appeared to go nowhere, since he had not bothered to name a new representative.

This most recent development in this territorial controversy arose just after the Venezuelan foreign minister, at the beginning of March, objected to the exploratory drilling for oil by the American company, Exxon Mobil, in a concession granted by Guyana. Venezuela claimed that the area is located in its “territory” despite the fact that the drilling area is deep within Guyana’s maritime economic zone. In response, Guyana’s foreign affairs ministry stated that it requested the Venezuelan government to desist from taking any actions that could only result in hindering the development of Guyana and relations between the two countries.

In a rebuttal, Venezuela in a communiqué in mid-March, labeled as “unjust and false,” the claims that it was deliberately obstructing Guyana’s development and pointed to the instances of collaboration and support between the two states as evidence to the contrary.

At the same time, the communiqué insisted that Venezuela remained committed to the Good Offices process “as an optimal and convenient methodology to assume bilateral and amicable, without the irritating interference of foreign factors, negotiations in order to achieve a practical and satisfactory solution for both sides.”

Some observers feel that the Venezuelan objection arose because of the involvement of Exxon Mobil in the drilling at the time when the United States has imposed a series of political sanctions on Venezuela. Significantly, Venezuela was being ordered by an international arbitration panel in October 2014 to pay Exxon Mobil $1.6 billion USD for the company’s oil assets nationalized in 2007.

The Guyana government’s decision has received support across the national political spectrum, and wider afield from Caricom and Commonwealth governments. The former opposition spokesman on international affairs, Aubrey Norton, noted that little progress was recorded in the UN Good Offices process and proposed that the government and opposition should set up a joint committee to come up with a way forward. He insisted that territorial issues should transcend partisan political interest.

Meanwhile, the former foreign minister, Shridath Ramphal, who was the country’s top negotiator of the Protocol of Port of Spain in 1970, said that Venezuela has “abused” the Good Offices process while it lasted. He explained that all other modes of settlement such as arbitration were already explored and the only available option that remained would be a judicial settlement.

The Genesis of the Controversy

The boundary between Venezuela and Guyana (formerly British Guiana) was settled in 1899 by an international arbitration tribunal which, in its award regarded as a “full, perfect and final settlement,” described in detail the boundary between the two countries. Venezuela willingly accepted this decision and fully honored it.

However, in 1944, forty-five years after the arbitral award, Severo Mallet-Prevost, one of the four lawyers who had appeared for Venezuela before the arbitration tribunal, wrote a memorandum in which, for the first time, he attacked the award on the alleged grounds that it was the result of a political deal between Great Britain and Russia. This formed the basis of a claim the administration of President Romulo Betancourt, for reasons unrelated to legality, raised that matter before at the UN in 1962 when it unilaterally declared that the 1899 arbitral award was “null and void” and resuscitated the claim to almost all the area west of the Essequibo River—which in effect comprised about 50,000 square miles representing nearly two-thirds of the territory of British Guiana.

According to declassified US State Department documents, the Venezuelan government of that period was worried about an independent British Guiana with the socialist Cheddi Jagan as prime minister, a concern he shared with Washington. President Betancourt felt that if the claimed area came under Venezuelan sovereignty, it would undermine “the danger of infiltration of Venezuela by British Guiana if a Castro-type government ever were established.”

Both the government of the Great Britain (the colonial sovereign) and the ruling authorities in British Guiana rejected the Venezuelan claim. Nevertheless, records were again examined, and although Venezuela could not locate any document to prove its assertion, the governments of Venezuela, Great Britain, and British Guiana, in February 1966, signed an agreement at Geneva, Switzerland, by which a Mixed Commission (of Venezuelan and Guyanese representatives) was appointed to seek satisfactory solutions for the practical settlement of the controversy arising from the Venezuelan contention that the arbitral award was “null and void.”

But while this body was in existence, Venezuela, on a number of occasions, carried out military incursions over the border and shortly after British Guiana became the independent nation of Guyana in May 1966, it occupied the Guyanese half of the tiny border Ankoko Island in the Cuyuni River. Venezuela was also accused by the government of Guyana of interfering in Guyanese internal affairs.

This state of affairs dragged on until June 1970 when, by the Protocol of Port of Spain, both Venezuela and Guyana agreed to shelve the search for a solution to the controversy (as directed by the Geneva Agreement) for a period of at least twelve years. This protocol came to an end in 1982 when Venezuela refused to renew it. Subsequent discussions by the two governments under the terms of the Geneva Agreement, which was now again fully operational, eventually led to both governments agreeing to request the UN Secretary General to find a method, based on Article 33 of the UN Charter, for reaching a settlement. Subsequently, the UN secretary general in 1990 appointed a “good officer” to meet with representatives of Guyana and Venezuela to examine various proposals. Meetings involving the UN and both governments continued at regular intervals but reached no decision as to the method to be applied to reach a solution.

By the end of 2003, there was a marked cooling down of the belligerent voices on the border issue. President Hugo Chavez, who at first was adamant in asserting Venezuela’s claim to Guyanese territory, during a visit to Guyana in February 2004, announced that “the Venezuelan government will not be an obstacle to any project to be implemented in the Essequibo territory aimed at benefitting the population of that area. This includes projects such as access to water for human consumption, new roads, energy programs and agricultural activities.” He added, “The issues over the Essequibo territory will be dismissed from the context of social, political and economic relations between both countries.”

On March 2005, Chavez also took the position that the border issue was the result of an “imperialist” legacy, and at the same time expanded economic and political cooperation with Guyana. On his nationally televised program, Aló Presidente, he stated for the first time that the United States intended to use Venezuela in 1962 to overthrow Cheddi Jagan, allegedly “out of fear that Guyana could become a communist government along the lines of Cuba.”

This statement induced attacked from his political opponents who accused him of agreeing with the Guyana government’s position that the border issue was stirred up through connivance between the American and Venezuelan governments in 1962 with the aim of destabilizing the socialist government of Cheddi Jagan in Guyana.

Chavez maintained close friendly relations with Guyana and the border issue was kept out of the spotlight. After his death, President Nicolas Maduro continued his predecessor’s policy toward Guyana.

Proposals Considered in 1970

Going back to 1970, long before the involvement of the UN, proposals were tabled by both Venezuela and Guyana during bilateral official discussions to work out the terms of the report of the Mixed Commission (set up by the Geneva Agreement of 1966), but mutual agreement was never reached.

Guyana, from a logical point of view, insisted that Venezuela should prove its case of the nullity of the arbitral award of 1899 since that was the prime reason for the existing controversy. Surprisingly, the Venezuelan delegation felt that the question of nullity of the arbitral award was not a matter with which the Mixed Commission should concern itself, and that the only issue before the commission was how much land Guyana was prepared to make over to Venezuela. In other words, Venezuela was making the assumption that nullity of the award was a foregone conclusion.

Guyana, not unnaturally, declined to proceed in that way. The Venezuelan team then sought to circumvent argument about the contention of nullity by putting forward proposals for the “joint development” of the western Essequibo area claimed under an arrangement which would have effectively transferred to Venezuela substantial elements of sovereignty over the area. These “joint development” proposals were consequently unacceptable to Guyana.

By this time, negotiations had commenced on a moratorium arrangement (later to become known as the Protocol of Port of Spain) during which programs of economic cooperation would be discussed and implemented where possible.

At the official level meetings, three other proposals were made for reaching a resolution on the boundary controversy. These were:

(a) Neutral Observer Presence – Proposal by Guyana

Guyana’s unabated fears of possible Venezuelan military intervention during that period moved the Guyana government to insist that Venezuela’s acceptance of a neutral observer presence was an essential condition to its acceptance of any proposals for economic cooperation. Guyanese officials were at pains to explain that the government’s proposal for a neutral observer presence did not necessarily mean the existence of a permanent physical presence on the border but rather that there should be agreement regarding the need for such a team to visit the border area at agreed intervals and to be on call should any incidents occur in that area.

The added advantage of having such a team would be that any hostility on the frontier would be immediately investigated. This would serve to localize the area of conflict and prevent its escalation to the point of frustrating the moratorium and the programs of economic cooperation.

Despite these assurances, Venezuela rejected this proposal.

(b) Arbitration – Proposal by Venezuela

In an attempt to break the ensued deadlock, the government of Venezuela proposed that the issue of Venezuela’s claim to western Essequibo should be settled by arbitration under the principle of ex aequo et bono [according to what is right and good]. Under this proposal, the arbitrators would be given full scope to determine their own terms of reference as practiced under customary international law relating to arbitral proceedings. It was further contended that should the government of Guyana agree to this proposal, Venezuela would regard the existence of the controversy with Guyana as having been settled and in this regard would formally undertake, at the June 1970 meeting of OAS foreign ministers, to support the entry of Guyana into the hemispheric organization.

However, Guyana saw little merit in any recourse to a second arbitral tribunal since Venezuela was discrediting the work of the previous arbitral tribunal of 1899. Guyana further indicated that the very objections which the Venezuela was raising with respect to the 1899 arbitral tribunal might conceivably be equally raised with respect to any subsequent arbitral tribunal involving the two absolving countries.

(c) Recourse to the ICJ for a Judicial Settlement – Counterproposal by Guyana

Guyana then counter-proposed that recourse to the International Court of Justice (ICJ) would be a more practical and a definitive means of resolving the issue. A formal proposal for a reference to the ICJ was therefore made by the government of Guyana at a meeting of officials in Georgetown on May 10, 1970, on the basis that the court should decide whether the existing boundary between Guyana and Venezuela as demarcated by the arbitral award of 1899 was made binding on both parties. However, the government of Venezuela rejected this counter-proposal.

UN Secretary General to Decide

With the recent announcement that Guyana will opt out from the Good Offices process and support a judicial settlement, Venezuelan experts, on the other hand, are insisting that their government should not abandon the current mechanism. According to the Venezuelan newspaper, El Universal, retired Colonel Pompeyo Torrealba, the head of the Essequibo advisory unit of the Venezuelan foreign ministry, stated on March 4: “Venezuela should continue the procedure of the Good Offices because it enables us to hold a direct negotiation, without middlemen. We already know about the results where we have negotiated with intermediaries: we have lost valuable territory.”

El Universal stated that experts it had consulted had agreed that Venezuela’s approval would be always necessary for the case to be settled at the International Court of Justice in The Hague, or in any other court of competent jurisdiction, as determined by the Secretary General. They, therefore, felt that Guyana’s decision to move away from the Good Offices process “is irrelevant.”

However, contrary to this “expert” view, the Secretary General, under the terms of the Geneva Agreement of 1966, has the sole authority of deciding on a method of solution to the long-standing controversy, in the same manner as he had decided on the Good Offices mechanism back in 1990. Both parties had empowered him to take such action under the terms of the Geneva Agreement of 1966 but, no doubt, he will have to consult with both governments before he makes his decision.

By: Dr. Odeen Ishmael, Ambassador Emeritus and historian, who served as Guyana’s ambassador to Venezuela from 2003 to 2011, and is currently a Senior Research Fellow at the Council on Hemispheric Affairs in Washington D.C. He is a premier researcher on Guyana-Venezuela relations and has already published two volumes of his three-part history of the border issue under the title, The Trail of Diplomacy.

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Featured Image: Odeen Ishmael