This column is being written with the layman in mind. As such, it avoids the use of technical and formal legal language and terms. As a result, precise formulations may have been sacrificed in the interest of producing a column which is easily understood by the average man,
Guyanese have long been bombarded with the idea that the Essequibo belongs to Guyana and that Venezuela is a bully who is trying to dispossess Guyana of its territory. Guyanese have been brainwashed into accepting this version of the controversy between itself and its western neighbour.
Guyana’s position on the territorial dispute is based on the fact that in 1899 there was an Arbitral Tribunal that demarcated the borders between Guyana and Venezuela. Guyana’s position is that the award is full and final.
Venezuela takes a different view. It is of the opinion that the Arbitral Award was not a legal adjudication of the merits of each country’s claim, but was based on a political deal between certain members of the Arbitral Tribunal, and that in this deal, Venezuela lost much of the land to which it feels it is entitled. In so doing, Venezuela relies on a letter written by a Counsel in the case which, upon his instructions, was made public after he died.
Some persons, supportive of Guyana’s position, have attempted to discredit the letter on the basis that it was written soon after he was given a national award by his country. But they have failed to consider the credentials of the Counsel who was highly respected and considered an eminent Counsel, even outside of Venezuela.
They have also failed to consider the 1899 judgment itself. It is a most unusual judgment. Unlike most arbitral judgments which provide the historical and legal basis of its decision, the Arbitral Award of 1899 provides no reasons or analysis as to how the tribunal arrived at its decision. The tribunal simply announced the demarcation without giving reasons or its reasoning.
Guyana considers the absence of any legal arguments in the award as immaterial. Guyana says that Venezuela has not produced any evidence of the invalidity of the 1899 Arbitral Award. And Guyana has stuck to its position that the award is a final settlement which is binding upon all the parties.
Venezuela pressed the issue of the invalidity of the 1899 award just before Guyana gained its Independence. Venezuela’s protestations led to the signing of the Geneva Agreement of 1966 which, in Guyana’s opinion, is intended to settle the controversy which had resulted from Venezuela’s contention that the 1899 award was invalid.
The Geneva Agreement recommended that a Mixed Commission comprising persons from Guyana and Venezuela, meet to find a resolution to the controversy. It said that if within a certain period no agreement was reached, then the two countries should refer the matter to the Secretary General of the United Nations, who would then choose a means of settlement from among the measures which are provided for the peaceful settlement of disputes in the Charter of the United Nations.
Guyana’s position was that the Mixed Commission was tasked with examining the controversy which had developed from Venezuela’s claim that the 1899 award was invalid. Guyana therefore did not see the Geneva Agreement as a means of reopening the border dispute which was settled in 1899. As far as Guyana was concerned, the Geneva Agreement did not and could not reopen the dispute over border.
Venezuela, however, has interpreted the Geneva Agreement as reopening its claim to more than 2/3 of Guyana. And this why onto this day it still persists in contending that the Geneva Agreement provides the basis for the resolution of the issue. And for Venezuela, the issue that is reopened is the territorial dispute.
It is interesting that former President of Guyana, Forbes Burnham who was a signatory to Geneva, never pressed for a judicial settlement of this dispute. It has been suggested in some quarters that this was an implicit admission, on his part, that the Geneva reopened the border case.
In fairness to him, he did manage in 1970 to have the controversy shelved for 12 years and he only lived three years after. So it would not be fair to suggest that he did not contemplate judicial settlement.
However, he did consider a proposition of allowing Venezuela a channel to the Sea. If he had agreed, this would not have necessarily been a concession of territory, because the Arbitral Award of 1899 provides for the merchant ships of both countries to have rights to navigate in the Barima and Amakura rivers. International law also provides for the right of passage for certain vessels.
Guyana feels that it will obtain a favourable decision in front of the ICJ. But Guyana must also try to understand the Venezuelan side. If that is not done, ICJ decision or no ICJ decision, the tension between the two countries over the border will continue to exist.
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