Venezuela never had evidence to overturn 1899 Arbitral Award – Guyana’s legal team tells ICJ

…shows that Award was always meant to be final, binding settlement

By Jarryl Bryan

Venezuela has contended since 1962 that the 1899 Arbitral Award confirming Essequibo as part of Guyana was null and void. In the 58 years since, however, Venezuela has failed to provide a shred of evidence to show why the arbitral award should be vacated.

This point was hammered home by Guyana’s legal team, that appeared via video conferencing before the 15 Judges of the International Court of Justice (ICJ) on Tuesday for the public hearings in the Guyana v Venezuela border case. According to international lawyer and author, Professor Payam Akhavan, the treaty that led to the Arbitral Award of 1899 was clear in that it was a binding agreement.
“Upon Venezuela’s independence in 1810, the boundary had not yet been determined. By 1840, however, with the discovery of gold in the upper Cuyuni River, Venezuela had proposed a treaty claiming the Essequibo River as its boundary with British Guiana. Britain’s claim extended to the mouth of the Orinoco River,” Akhavan, who is a part of Guyana’s legal team before the ICJ, said.

“By 1895 the boundary dispute escalated into a diplomatic crisis. In 1895, under threat of war with the United States, Britain agreed to arbitration to resolve the boundary. The Washington treaty between the Great Britain and Venezuela was concluded on February 2, 1897. The preamble set out its purpose, as an amicable settlement.”
Akhavan pointed to Article 1 of the treaty, which provided for the creation of an arbitral tribunal. Article 3 meanwhile set out its jurisdiction to decide the boundary line between British Guiana and Venezuela. Article 8 of the Washington treaty also described the Tribunal of Arbitration “as a full, perfect and final settlement of all the questions referred to the arbitrators.”

Demarcation

In fact, it is a matter of public record that the United States proposed two jurists for the tribunal, Britain proposed two and between the two sides, a fifth jurist for the tribunal was appointed. Akhavan pointed out that the tribunal decided unanimously on the boundary, a decision that was accepted by all parties in particular Venezuela, for the next 63 years. In fact, Venezuela through a joint commission helped draw the boundary of what is now the Co-operative Republic of Guyana.
“The result was widely hailed as a victory for Venezuela. The Venezuelan Minister in London described it to his Minister of Foreign Affairs in these words: ‘greatly indeed did justice shine forth, when in the determination of the frontier, we were given the exclusive dominion over the Orinoco, which was the principle aim which we sought to achieve through arbitration’,” Akhavan said.
“The following year, Britain and Venezuela established a joint commission to undertake the physical demarcation of the boundary. By 1905, after years of work, the boundaries were demarcated with pillars and geographic features… the commission produced a clear boundary map with the specification of the boundary line within the arbitral award.”
The commissioners who demarcated the boundary were British-nominated Harry Innes Perkins and Charles Anderson and Venezuelan-nominated Dr Abraham Tirado and Dr Elias Toro. The four commissioners signed the map on January 7, 1905, officially giving effect to the 1899 Award and demarcating the current boundary between Guyana and Venezuela.

Flip-flop
Then came the flip-flop. Akhavan pointed out that in 1962, Venezuela suddenly claimed that the 1899 Award was null and void and cited a mysterious Anglo-Russian conspiracy and the correspondence of a deceased lawyer who had taken part in the 1899 Arbitral Award process. On these shaky grounds, the issue of the Award was reopened.
But in 1963, when the time came for Venezuela to present evidence that the 1899 Award was indeed null and void, the Spanish-speaking country failed to present anything of substance to Sir Geoffrey Meade, the British expert who was sent by the tripartite committee to Venezuela to examine their “evidence”.
“The only evidence invoked by Venezuela was a document published posthumously, allegedly written in 1944 by Mr Severo Mallet-Prevost, an American lawyer who had served as Junior Counsel to Venezuela 45 years earlier in 1899. It was published upon his death, in July 1949 issue of the American journal of international law. The memorandum did not identify, much less produce any evidence to support an Anglo Russian conspiracy,” Akhavan told the court.
“The tripartite examination was conducted by experts appointed by the parties. Between July and September 1963, the Venezuelan experts conducted an exhaustive examination of British documents in London. The next step was the expert acting on behalf of Britain to visit Caracas to examine documents in the Venezuelan archives. In December 1963, they travelled to Caracas. A British memorandum dated February 25, 1964, observed that the Venezuelan authorities were unable to supply a single shred of evidence!”
The public hearing into whether the ICJ has jurisdiction to hear this substantive issue was conducted without the participation of Venezuela, which has declared that they will not take part in the process.
Venezuela argued that the ICJ does not have jurisdiction and that United Nations Secretary General Antonio Gutteres exceeded the provisions of the 1966 Geneva Agreement by referring the matter there. A decision from the ICJ on its jurisdiction to hear the case is imminent. Guyana’s Foreign Secretary Carl Greenidge has also expressed optimism that a judgement on the substantive issues will be made by year-end.
Guyana is seeking a final and binding judgment that the 1899 Arbitral Award remains valid and binding on all parties, and legal affirmation that Guyana’s Essequibo region, which contains much of Guyana’s natural resources, belongs to Guyana and not Venezuela.
Guyana is also seeking Venezuela’s withdrawal from its occupation of the eastern half of the Island of Ankoko. In addition, Guyana is seeking an order that Venezuela refrains from threatening or using force against companies operating in Guyanese territory, land or maritime. A case in point is last year, when Venezuela attempted to land a helicopter on a vessel contracted by ExxonMobil to do work in Guyana’s Stabroek block.