Guyana v Venezuela: Intriguing Pleadings in an (In)conspicuous Case

Written by Milosz Gapsa     

November 30, 2023

On 14 and 15 November, the ICJ held oral arguments on the request for provisional measures in Guyana v Venezuela. Although, initially the chances of Guyana’s success were deemed doubtful, the ongoing events and arguments put forward by the parties have unfolded as quite intriguing. If the Court were to address all aspects, surprisingly, this inconspicuous case could shed light on many fascinating elements of provisional measures proceedings. This post delves into these captivating features.

The dispute between Guyana and Venezuela

The dispute centres on the territory of Guayana Esequiba, renowned for its oil reserves. The 1898 Arbitral Award granted this land to Guyana, once a colony of the UK. However, since the 1960s, Venezuela has contested the decision, alleging political motivation. To address the dispute, the UK and Venezuela signed the 1966 Geneva Agreement. Upon gaining independence, Guyana became a party to the Agreement, which, in Article IV (2), stipulates that if the parties cannot reach an agreement, the UN Secretary General determines the method of dispute resolution. After the failure of good offices in 2018, the Secretary General selected the ICJ, prompting Guyana to formally initiate proceedings.

Venezuela objected to the Court’s jurisdiction, refraining from submitting a counter-memorial and abstaining from oral arguments. In the 2020 Judgment, the ICJ ruled in favour of its jurisdiction. Subsequently, Venezuela altered its procedural approach, engaging in the case and filling Preliminary Objections, asserting that the case is inadmissible based on the Monetary Gold principle and the absence of the UK. The ICJ, in its 2023 Judgment, declared the case admissible. On 31 October 2023, Guyana sought provisional measures related to the upcoming referendum in Venezuela on 3 December 2023. The referendum questions are:

1. Do you agree to reject, by all means in accordance with the Law, the line fraudulently imposed by the 1899 Paris Arbitral Award, that seeks to strip us of our Guayana Esequiba?
2. Do you support the 1966 Geneva Agreement as the only valid legal instrument for reaching a practical solution satisfactory to Venezuela and Guyana, in relation to the controversy over the Guayana Esequiba territory?
3. Are you in agreement with the historic position of Venezuela of not recognizing the jurisdiction of the International Court of Justice to resolve the Guayana Esequiba territorial controversy?
4. Do you agree to oppose, by all means, in conformity with the Law, Guyana’s pretension of unilaterally making use of a sea pending delimitation, illegally and in violation of international law?
5. Are you in agreement with the creation of a Guayana Esequiba State and for an accelerated plan to be developed for comprehensive attention to the present and future population of that territory that would include, among other things, the granting of Venezuelan citizenship and identity cards, in conformity with the Geneva Agreement and International Law, consequently incorporating said State on the map of Venezuelan territory?

Guyana requested an order to halt the referendum, particularly questions 1, 3, and 5. The aim was to avoid challenging the ICJ proceedings and escalating the dispute. Pursuant to Article 62(1) ICJ Rules, the ICJ posed three questions to both parties: (1) has the Supreme Court of Venezuela ruled on the validity of the referendum questions; (2) will the referendum occur on 3 December and (3) do referenda in Venezuela carry binding force.

Guyana’s arguments

During Guyana’s oral arguments, the focus was on analysing the referendum questions and statements from Venezuelan authorities. Little attention was given to the criteria for indicating provisional measures. Guyana argued that jurisdiction prima facie arises from the Judgments of 2020 and 2023, and the plausibility of Guyana’s rights stems from the Arbitral Award itself. Irreparable prejudice is anticipated in Venezuela’s potential: rejection of the Arbitral Award, disregard for a future ICJ judgment, and armed annexation of Guayana Esequiba. Urgency is based on the time remaining until the referendum (CR 2023/23 para. 21 (Reichler)). Guyana placed the most emphasis on the link between the request and the merits, as it was the main theme of Professor Pellet’s pleadings. The conclusion was straightforward: Venezuela aims to use the referendum to justify its future procedural and factual actions concerning Guayana Esequiba.

Venezuela’s arguments

The oral arguments by Venezuela took a starkly different trajectory. The opening statement from the Vice-President carried a distinctly political tone, affirming Venezuela’s non-recognition of the ICJ’s jurisdiction. She accused Guyana of being influenced by ExxonMobil and the USA, labelling the upcoming referendum as a celebration of democracy. She asserted that both Venezuela and its President, Nicolás Maduro, strongly support democracy. The Vice-President responded evasively to the Court’s questions, particularly concerning the binding nature of the referendum. Although she later referred to it as consultative (eg CR 2023/24 para. 48 (Rodríguez)), her earlier statement indicated that Venezuela would indeed implement the voices of its citizens (para. 24).

In Venezuela’s substantive stance, Professor Mbengue solely focused on three key points. Firstly, he highlighted errors in Guyana’s request, arguing it was filed at an inappropriate time since Guyana was previously aware of the upcoming referendum (paras. 5–6 (Mbengue)). Venezuela contended that Guyana’s presumed sovereign rights remain unaffected by Venezuela’s actions post-referendum (paras. 7–8). Additionally, there was a hypothetical accusation that Venezuela aims to exploit the referendum to disregard the judgment on the merits (paras. 12ff). According to Venezuela, the ICJ’s role is to settle the dispute, not to ensure compliance with the decision (para. 18). Secondly, Venezuela contends that organizing a referendum falls within its domaine réservé, and the ICJ has no right to comment on this matter (paras. 19–28). Thirdly, Venezuela has alleged a lack of jurisdiction. According to it, none of the previous judgments in the case confer jurisdiction upon the ICJ, and Guyana’s request exceeds the competence ratione materiae of the pending dispute (paras. 29–45).

Commentary

Paradoxically, Venezuela raised more intriguing points for analysis:

• Only settlement of disputes. An unresolved dispute concerns the objective(s) of provisional measures: whether those aimed at protecting the parties’ rights are distinct from those meant to non-aggravate the dispute, and what the protection of the parties’ rights entails. Regardless, Article 41 ICJ Statute must be understood very broadly. The rights of the parties do not end with the decision on the merits because there is an obligation to comply with it (Article 94(1) UN Charter). As President Jiménez de Aréchaga claimed in Aegean Sea, ‘The essential object of provisional measures is to ensure that the execution of a future judgment on the merits shall not be frustrated by the actions of one party pendente lite’ (16).
• Request not ‘in good time’. While Venezuela does not directly reference LaGrand, it alludes to its principle that the request must be submitted in good time (19). However, since even the request in LaGrand was deemed timely, the argument that Guyana had knowledge of the planned referendum for two years appears unconvincing here.
• Referendum as the domaine réservé. Venezuela deliberately sidestepped discussing customary law outlined in Article 26 VCLT. This is particularly noteworthy given its intent to implement the will of its people or, in Guyana’s words, to justify future actions based on it. Additionally, the argument that the ICJ lacks the right to comment on internal judgments is flawed. Venezuela failed to acknowledge that in ICSFT/CERD, the Court’s order directly contradicted the decisions of the Supreme Court of Crimea and the Supreme Court of Russia.
• Lack of jurisdiction. Pursuant to Article 73(1) ICJ Rules, a request can be submitted at any stage of the proceedings. Scholars emphasize that if made following the ICJ’s decision on jurisdiction, it strengthens the jurisdiction prima facie, as in Temple (Request). Therefore, Venezuela’s argumentation appears peculiar. The claim of a lack of jurisdiction ratione materiae also attempts to allude to the absence of the link between the request and the merits. While the ICJ decided this in Arbitral Award of 1989, the circumstances of that request (fishing in the contested territory) were entirely different.

Venezuela’s actions are quite surprising. Although its Supreme Court ruled on the validity of the referendum questions, its objectivity is questionable. Just a few days later, the Court hosted the pre-release of the documentary film ‘Our Esquibo’. Venezuela’s procedural strategy is also puzzling: on one hand, it appears before the ICJ and presents its arguments, while on the other hand, it officially asserts that the referendum will proceed. The context is made even more complex by public demonstrations in Venezuela and statements from authorities, especially its President, who sent a letter to the UN Secretary General stating that Venezuela does not recognize the ICJ’s jurisdiction over the dispute.