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Guyana-Venezuela Territorial Controversy

By Professor Ivelaw Griffith

 

Settlement of the Guyana-Venezuela territorial controversy evokes memories of the award-winning play Waiting for Godot by the famous Irish playwright Samuel Beckett. In the play two characters, Didi and Gogo, engage in interminable conversations near a leafless tree while waiting for another character named Godot, who never arrived.

The waiting game dates to February 1962, when Venezuela first formally challenged the validity of the 1899 Paris Arbitral Award, informing the United Nations Secretary-General that it considered a dispute to exist over the demarcation of the frontier with the then colony of British Guiana. Venezuela contended that “The award was the result of a political transaction carried out behind Venezuela’s back and sacrificing its legitimate rights. The frontier was demarcated arbitrarily, and no account was taken of the specific rules of the arbitral agreement or of the relevant principles of international law. Venezuela cannot recognise an award made in such circumstances.”

The ICJ

After several decades of conversations under the auspices of the Secretary General, the dynamics of the waiting game shifted to the International Court of Justice (ICJ) in March 2018, when, with green-lighting from Secretary General Ban Ki-moon and his successor António Guterres, Guyana took the matter to that body. Using the Beckett play analogy, the ICJ is the Godot in the Guyana-Venezuela conversation. Happily, in this case, there is light at the end of the waiting game tunnel; Godot will eventually arrive, in that the ICJ will ultimately deliver a judgment.

Following Court rules, the ICJ first needed to consider whether it had jurisdiction in the matter before considering the merits of the case. In December 2020 the Court decided that it did, indeed, have jurisdiction to consider the matter, and in March 2021 it gave Guyana until March 8, 2022, to submit its Memorial (case brief); Venezuela was given until March 8, 2023, to submit its Counter-Memorial. Barring any unforeseen circumstances, the Court should have a ruling on the substance of the case by March 2024. But this was before Venezuela’s latest move, which is discussed below.

Submission

One noteworthy recent development in the waiting game is Guyana’s submission of its Memorial by the specified March 8, 2022, date. Guyana is seeking the Court’s judgement in several areas. Quite importantly, among other things, it asks the Court to find the 1899 Award to be valid and binding and the boundary established in 1899 and by the 1905 boundary agreement also valid and binding. Second, Guyana wants the Court to declare that it enjoys full sovereignty over the territory between the Essequibo River and the boundary established by the 1899 Award and the 1905 Agreement, and that Venezuela enjoys full sovereignty over the territory west of that boundary. Further, Guyana has asked that Venezuela be ordered to withdraw immediately from and cease its occupation of the Guyana part of the Island of Ankoko.

Guyana’s Memorial submission prompted relatively swift action by Venezuela, not in relation to its Counter-Memorial, however. It has another nine months for that submission. In a letter dated June 6, 2022, which indicates that it recognises the foolhardiness of paying scant regard to the importance of the proceedings, Venezuela named its Co-Agents for the case: Samuel Reinaldo Moncada Acosta, Permanent Representative to the United Nations; Félix Plasencia González, former foreign minister; and Elsie Rosales García, Professor at the Universidad Central de Venezuela. Incidentally, Guyana had named its Agents since March 2018 when it submitted its petition: Carl Greenidge, then foreign minister; Sir Shridath Ramphal, former foreign minister; and Ambassador Audrey Waddell, then director general of the Ministry of Foreign Affairs.

More significant, though, the following day—on June 7, 2022—Venezuela filed preliminary objections to the admissibility of Guyana’s petition. Venezuela’s move has implications for the waiting game, in that under the Rules of the Court, the proceedings on the merits have been suspended and a time-table must be established for Guyana’s formal response to the preliminary objections. The practice of the Court is to grant one party up to four months from the date any preliminary objections are filed for a response. Thus, the ICJ has fixed October 7, 2022, as the date by which Guyana must present its written response. This injects a new dynamic into the waiting game.

Essequibo

Unlike Venezuela, Guyana has been moving with alacrity and paying due deference to the authority of the ICJ because the case has existential implications for South America’s lone English-speaking republic. Venezuela claims the entire Essequibo territory, some 61,600 sq. miles of Guyana’s 83,000 sq. mi, almost 75% of the country. Essequibo, which could accommodate Jamaica fourteen times, with room to spare, holds six of Guyana’s 10 administrative regions, the equivalent of states or provinces in other countries, with some 300,000 of the country’s population of just under 800,000 living there.

The area has an abundance of natural resources, including oil, gold, diamond, bauxite, manganese, uranium, and other minerals, and timber. It also is part of the Guiana Shield, which extends across the Guainía department of Colombia; Venezuela, where the Orinoco River makes the northern limit of the Shield; Guyana; Suriname; and French Guiana. Consequently, it is rich in biodiversity. Guyana’s massive offshore oil discoveries since May 2015, and its now 11 billion barrels equivalent of oil reserves, have raised the stakes to an all-time high, as much of the oil lies beneath the maritime zone claimed by Venezuela. Indeed, just this past July 26, two new discoveries were announced. This brings the total discoveries within the Stabroek Block to 33, with the overall discoveries totalling 38, according to News Room Guyana.

New discoveries increase Guyana’s existential anxieties and hopefulness that the waiting game will end sooner rather than later, even though Guyana has no control over the resolution timeline. There’s also an impact on Venezuela, which also lacks direct influence on the timeline, but can affect it indirectly thought legal manoeuvres, such as the one pulled in July. Theirs is not existential anxiety, though, but geopolitical desperation. In the next article in this series, we shall name some of the movers and shakers in this waiting game that involves petro-giant Venezuela and oil-power-in-the-making Guyana.

High stakes

Considering the high stakes involved, it is understandable that Guyana would marshal a formidable international team of experts in international law, geography, history, and allied subjects to press its case before the world court. The International Court of Justice’s (ICJ) December 2020 decision affirming jurisdiction in the matter identified Guyana’s battery of experts, which includes Mr. Paul S. Reichler of the top United States law firm Foley Hoag LLP; Alain Pellet, Emeritus Professor at the University Paris Nanterre, former Chairman of the International Law Commission, and member of the Institut de droit international; and Queens Counsel Philippe Sands, who is a professor of International Law at University College London and a barrister with Matrix Chambers of London.

Guyana’s legal legion also boasts Harvard-trained Payam Akhavan,  professor of International Law at McGill University, a member of the Bar of the State of New York and the Law Society of Ontario and a member of the Permanent Court of Arbitration; Philippa Webb, Professor of Public International Law at London’s King’s College, who is a member of the Bars of England and Wales and the State of New York and of London’s Twenty Essex Chambers, along with several local luminaries, including Ambassador and former history professor Cedric Joseph, and esteemed diplomat Rashleigh Jackson. Sadly, Jackson, who had distinguished himself as Permanent Representative to the United Nations before undertaking a marathon foreign ministerial stint from 1978 to 1991, died on September 1, 2022, at age 93. Moreover, as noted in Part 1, international lawyer and statesman Sir Shridath Ramphal, a former Guyana foreign minister and Commonwealth Secretary General, is one of Guyana’s Agents.

Cost

Needless to say, the pursuits before the ICJ are costly. At one stage Guyana had difficulty in settling obligations related to the case. In December 2017, for instance, Foreign Minister Carl Greenidge explained to the National Assembly that there were occasions in 2016 and 2017 when the government was unable to make timely payments to the legal team. This situation prompted him to recommend to President David Granger that US$15 million of the US$18 million that had been received from ExxonMobil in 2016 as a signing bonus for the oil exploration contract be assigned to cover the legal expenses. This decision caused a political firestorm, with questions raised by the political opposition and civil society groups, not so much about the use of the funds, but about how the entire episode was managed by the government.

Much has changed since 2017. Thanks to the oil revenues that began accumulating since March 2020, the government no longer is cash strapped. The country’s sovereign wealth fund, called the Natural Resource Fund, shows this clearly. The initial Natural Resource Fund law, passed by the National Assembly in January 2019, was replaced by updated legislation in December 2021. According to the Fund’s report for the second quarter of 2022, inflows for the reporting period amounted to US$232.16 million. Since its inception, the Fund has received US$849.63 million from 12 oil lifts and US$102.06 million from royalties. Also noteworthy is that Guyana likely will collect US$150 billion in oil and gas revenues over the ensuing three decades.

In a sense, then, money is no object, although how it is managed could be objectionable. Prudent management of the oil revenue—in relation to the ICJ case and all things—is not just desirable, but necessary. Foreign Minister Hugh Todd took pains this past February to signal prudence in the National Assembly, in defending his Ministry’s 2022 allocation, especially the GY$660 million (US$3,168,332) earmarked for the legal fees for the case. This allocation seems inadequate. Quite likely, Todd will need to secure a supplemental allocation from the Assembly later this year, especially in light of Venezuela’s delaying tactics with its preliminary objections, which will impact both the waiting game’s timeline and the costs incurred.

Defensive Diplomacy

Guyana continues to be mindful of the dangers of putting all its waiting game eggs in one basket, so to speak. The judicial basket is necessary, but not sufficient. The country continues to practice a strategy called Defense Diplomacy that dates to the Burnham presidency. It places a premium on diplomacy as the nation’s first line of defense, with a view to mobilising support from CARICOM, the United States, Britain, the Commonwealth, and other stakeholders. It was no coincidence, for example, that the Commonwealth leaders at their Summit held in Rwanda this past June reaffirmed their “firm and unwavering support for the maintenance and preservation of the sovereignty and territorial integrity of Guyana.”

Neither was it happenstance that the CARICOM summit a few weeks later also pledged continuing support of Guyana, although leaders were partial to Venezuela’s desire to resurrect PetroCaribe, the concessionary oil financing scheme that was a key plank of its foreign policy and alliance-building strategy. Also comporting with Defense Diplomacy is the visit to Washington, DC by President Dr. Mohamed Irfaan Ali and a high-level team in late July, where they met virtually and in person with Vice President Kamala Harris, Secretary of State Antony Blinken, and Commerce Department and other officials. They also conferred with Congressional leaders and interacted with officials at the Atlantic Council, the Center for Strategic and International Studies, and the Wilson Center, influential think tanks.

All things considered, much like Samuel Beckett’s characters in Waiting for Godot, Guyana is obliged to play the long game, a waiting game, holding relevant conversations, confident that, while the precise hour of Godot’s arrival is unknown, he surely will arrive. And, hopefully, this Godot—the ICJ—will deliver the final settlement of a controversy that dates to the 19th century and is creating existential anxiety in Guyana and geopolitical desperation in Venezuela. Yet, the million-dollar question is: will Venezuela accept the Court’s ruling if the 1899 Award is upheld? This question will be the subject of analysis later.

EDITOR'S NOTE: This article first appeared in the online publication, Oil Now, and is being reproduced here with the permission of the author

 

Ivelaw Lloyd Griffith, a Fellow of the Caribbean Policy Consortium and of Global Americans, is a former Vice Chancellor of the University of Guyana. His next book, Challenged Sovereignty in the Caribbean, will be published by the University of Illinois Press.


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