It is difficult to separate the rational from the emotional in the face of a territorial problem, because, among other things, explosive factors are mixed in that aggravate the confrontation, which is why nations have historically gone to war to resolve them. Hence, at this moment in the history of the world, it is considered irresponsible for governments to manipulate public opinion according to what they consider should be the solution to the controversy.
And that is precisely what the regime of Nicolás Maduro Moros is trying to do by calling for a referendum on December 3, 2023, trying not only to cover the surrender for political reasons made by Hugo Chávez Frías in 2004, through a Joint Declaration that allowed Guyana to develop and populate the Reclamation Zone, but also to create a situation of political effervescence in the country that will prevent the holding of the elections scheduled for 2024, elections that the regime has already lost. Such is the desperation of the regime to cling to power, that it is capable of provoking a border conflict with Guyana, alleging with this referendum that "it is the people who claim".
Hence, it is of paramount importance for Venezuelans to fully understand, without the need to be lawyers specialized in International Law, and in its fundamental parts, the scope of this complex plot that began to be public from the signing of the Arbitral Award of 1899, signed in Paris between the representatives of Venezuela and the United Kingdom and Northern Ireland, where they stole from us "in open ground" the territory of Esequibo.
From that moment in 1899 until the signing of the Geneva Agreement in 1966 between Venezuela and the United Kingdom of Great Britain and Northern Ireland, what happened in Paris was not recognized worldwide, to the point that the United Kingdom signed there that the Arbitral Award of 1899 on the border between Venezuela and British Guiana (as a British possession at that time) was NULL AND VOID. The history for all our purposes starts from that very moment.
And why did the British have to recognize that? That is answered by Dr. Allan R. Brewer Carías:
“The boundary established in the 1899 arbitration tribunal was considered to be settled for the next half-century, until a memorandum written by Severo Mallet-Provost (11 August 1944), a lawyer who had acted as a junior counsel for Venezuela at the Paris tribunal, was published posthumously in the 1949 issue of the American Journal of International Law (O Schoenrich ‘The Venezuela-British Guiana Boundary Dispute’ (1949) 43 AJIL 523, 528–30). The memorandum adduced that the arbitral tribunal’s president had coerced several members into assenting to the final decision, the result of a political deal between Britain and Russia. Reportedly, this memorandum had been dictated five years earlier by Mallet-Provost to Judge Otto Schoenrich, his partner in the US law firm of Curtis, Mallet-Prevost, Colte and Mosle, with instructions that it was not to be published until after his death, and even then, only at Judge Schoenrich’s discretion. Mallet-Prevost died on 10 December 1948, and his memorandum appeared in print some six months later” (see Guyana-Venezuela border dispute, in https://allanbrewercarias.net/Content/449725d9-f1cb-474b-8ab2-41efb849fea8/Content/Guyana-Venezuela%20Border%20Dispute.%20Max%20Planck%20EPIL,%202006.pdf) (emphasis ours).
In other words, the arbitration trial had had defects of nullity confessed posthumously by one of its protagonists, where the judges colluded to give the United Kingdom possession of our territory. This makes the British position untenable, leaving the controversy open again.
New trial or negotiation?
As we say in Venezuela, "who is bitten by the snake, is afraid of the bejuco". And that is what is happening here. Historically, Venezuela has consistently refused a new trial, alleging direct negotiation between the parties as a mechanism to resolve the dispute with Guyana. And this was so until Guyana sued us before the International Court of Justice (ICJ) on March 29, 2018 "in respect of a dispute concerning "the legal validity and binding effect of the Award relating to the boundary between the colony of British Guiana and the United States of Venezuela, of October 3, 1899" (See ICJ Judgment of December 18, 2020, at https://revistas.urosario.edu.co/xml/4295/429566597007/index.html). They are suing us because they claim that the 1899 Arbitration Award is still valid!
And why did this happen? Because Article IV, paragraph 2, of the 1966 Geneva Agreement provides that if the parties do not agree on the choice of one of the means of settlement provided for in Article 33 of the Charter of the United Nations, they shall refer the decision on the means of settlement to an international body they agree upon, and if they do not agree upon one, to the Secretary-General of the United Nations (see in Spanish Geneva Agreement 1966, at http://www.consulvenevigo.es/subido/ACUERDO%20GINEBRA%20ONU%201966.pdf
And it finally happened. UN Secretary General Antonio Guterres unilaterally decided to send the conflict to the ICJ. Article 33 of the UN Charter states: "The parties to a dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice" (see in Spanish UN Charter, in https://www.oas.org/36ag/espanol/doc_referencia/carta_nu.pdf).
Given that negotiation is also contained (and heads) as a means of conflict resolution Article 33 of the UN Charter, Venezuela continued to deny the competence of the ICJ, to the point that the same 2015 National Assembly, considered legitimate by the International Community, enacted on February 6, 2018 an "Agreement in rejection of the decision of the UN Secretary General, Antonio Guterres to send the dispute over the Essequibo and the Atlantic facade of Venezuela to the International Court of Justice" coinciding at present with the position of the Maduro regime (see in Spanish Agreement in https://www.asambleanacionalvenezuela.org/actos/detalle/acuerdo-en-rechazo-a-la-decision-del-secretario-general-de-la-onu-antonio-guterres-de-enviar-la-controversia-sobre-el-esequibo-y-la-fachada-atlantica-de-venezuela-a-la-corte-internacional-de-justicia--240).
But the ICJ did not lag behind after the decision of the UN Secretary General. On December 18, 2020, they decided that this instance did have jurisdiction to decide the dispute between Venezuela and Guyana, interpreting the UN Secretary General's decision as binding because the parties had effectively consented to its decision in the 1966 Geneva Agreement: "If the Parties consented to the judicial settlement of their dispute under Article IV, paragraph 2, of the Geneva Agreement-Decision of the Secretary-General binding on the Parties-Article IV, paragraph 2, refers to Article 33 of the UN Charter, which includes judicial settlement as a means of dispute resolution-The means of dispute settlement available to the Secretary-General, to which the Parties consented, include judicial settlement. Whether the consent given by the Parties to judicial settlement of their dispute was subject to any conditions-Whether the Secretary-General should follow a particular order in choosing the means of dispute settlement enumerated in Article 33 of the Charter-No obligation on the Secretary-General to follow a particular order or to consult with the Parties on his choice" (ver Sentencia de la CIJ del 18 de diciembre de 2020, referida supra).
In other words, we are involved in the trial. However, this does not mean that we necessarily have to follow it. According to Dr. Nicolás Boeglin Naumovic, expert in International Law, consultant on issues related to the implementation of norms deriving from International Law for national, regional and international entities, "The strategy followed by Venezuela before the lawsuit filed by Guyana in March 2018 against it in The Hague attempts to enforce an angular principle in international law: the prior consent of a State to international justice. This is a rule according to which no State can be brought before an international judge without its consent. For its part, Guyana resorts to the treaty signed in 1966 between the United Kingdom and Venezuela and to the letter issued by the Secretary General in January 2018 to establish the ICJ's jurisdiction to settle this dispute" (ver Guyana/Venezuela: La Corte Internacional de Justicia anuncia que fijó plazos, en https://ciarglobal.com/guyana-venezuela-la-corte-internacional-de-justicia-anuncia-que-fijo-plazos/).
But - and this is a
very important but - Boenglin concludes that it is preferable to be than not to
be in that trial: "It should be
noted that the strategy chosen by Venezuela is not without risk: indeed, Venezuela's non-participation deprives
it of the possibility of presenting its legal arguments at the preliminary
stage where it can precisely question the ICJ's competence in the contentious
proceedings: the stage of preliminary objections. In other words, by
Venezuela choosing not to participate, the basis of jurisdiction used by Guyana
(which is limited to a recommendation of the current Secretary General of the
United Nations) will not be questioned before the judges of the ICJ"
(emphasis added).
Then, returning to
Venezuela's strategy, it would be a sovereign stupidity harmful to the interests
of the country not to attend that trial, and this time, and unlike 1899,
representing our interests ourselves, armed to the teeth with the best
historians, lawyers, experts in International Law, documents of our foundation
as a Republic, to prove once and for all our sovereignty over that territory,
because the reason assists us and has always assisted us. If we believe that
the judges are going to collude again, then they will find us as a united
nation capable of defending its territory in this new opportunity. The conditions are not the same as in 1899.
We could all think that the solution directly negotiated with Guyana could lead to a solution and that would be fine. But I believe that this train left a long time ago since the costs of the trial that Guyana is mounting for us in the ICJ is being financed for them by Exxon Mobil in an interested way: The year 2018 was titled: “Guyana begins to cash in ExxonMobil signing bonus to cover legal fees at ICJ. Guyana has begun the preliminary process in order to cycle funds from an US$18M signing bonus received from ExxonMobil in 2016, to defend its border controversy case at the International Court of Justice (ICJ)” (see Oil Now, April 26, 2018, Guyana begins to cash in ExxonMobil signing bonus to cover legal fees at ICJ , in https://oilnow.gy/news/guyana-begins-cash-exxonmobil-signing-bonus-cover-legal-fees-icj/). Do you think they are thinking about a negotiated solution with Venezuela? The glass has already been spilled, or rather, the oil well, there is no turning back…
Why we oppose the referendum
The questions made public to Venezuelans are aimed at openly manipulating public opinion in order to support the regime's political line in relation to this delicate generational problem (see in Spanish CNE aprueba por unanimidad cinco preguntas para el referendo consultivo, in https://www.asambleanacional.gob.ve/noticias/cne-aprueba-por-unanimidad-cinco-preguntas-para-referendo-consultivo) y que van en la dirección de manipular a los venezolanos:
Questions:
1. Do you agree to reject, by all means, in accordance with the law, the line fraudulently imposed by the Paris Arbitral Award of 1899, which seeks to dispossess us of our Guayana Esequiba?
This fraud has been perfectly demonstrated, to the point that it was accepted and recognized by the United Kingdom at the time. It makes no sense to go back on that as if we Venezuelans were a bunch of ignorant ignoramuses ignorant of history.
2. Do you support the 1966 Geneva Agreement as the only valid legal instrument to reach a practical and satisfactory solution for Venezuela and Guyana regarding the dispute over the territory of the Essequiba Guiana?
The question is irrelevant. As we have already seen, it is on the basis of the Geneva Agreement of 1966 that we start for a new solution to the problem.
3. Do you agree with Venezuela's historical position of not recognizing the jurisdiction of the International Court of Justice to resolve the territorial dispute over Guayana Esequiba?
Manipulated question. We have just demonstrated that Venezuela can insist on its position of not participating in the trial at the ICJ, but it is the furthest thing from our interests.
4. Do you agree to oppose, by all means, in accordance with the law, Guyana's claim to unilaterally dispose of a sea pending delimitation, illegally and in violation of international law?
A question manipulated to predispose Venezuelans to aggressive behavior. It is precisely for that reason that we should be presenting our case at the ICJ for a peaceful solution to this controversy.
5. Do you agree with the creation of the state of Guayana Esequiba and the development of an accelerated plan for the integral attention of the current and future population of that territory, which includes, among other things, the granting of Venezuelan citizenship and identity cards, in accordance with the Geneva Agreement and International Law, consequently incorporating said state in the map of the Venezuelan territory?
Again a manipulated question. Clearly, after settling this controversy in our favor at the ICJ, the Venezuelan State will be able to dispose of the now Reclaimed Zone as one more territory of the concert of federated states established in the Constitution.
My apologies in advance to those who have reached this point for the length of this note. Knowledge is, in my opinion, the best antidote to avoid falling into the manipulations of a regime that intends to use this referendum for political purposes, as Chavez did in 2004, this historical claim seeking the support of Venezuelans to remain in power.
In 1957, the dictator Marcos Perez Jimenez also tried to remain in power through a plebiscite. On December 15, 1957, he "won" that plebiscite with an overwhelming majority of 86.7% (see in Spanish Wikipedia, Plebiscito de Venezuela de 1957, en https://es.wikipedia.org/wiki/Plebiscito_de_Venezuela_de_1957), giving the perception that he would never leave because the "people accompanied him". But a few weeks later, on January 23, 1958, he ran out of the country, with the same people celebrating his fall in the streets. A Venezuela in resistance was telling the country at the same time, through the means at their disposal, with papers handed out in the streets and homes, that honor and dignity still existed, through messages such as the one that accompanies this note:
Venezuelans: The honor, dignity, freedom and rights of Venezuelans are at stake!!! Do not allow the outrage of the plebiscite! Do not allow the mockery of the National Constitution!
To the fight against tyranny! All Venezuelans as one man against the plebiscite! Let's save Venezuela from dishonor!
The struggle will not cease until we obtain a Government that rescues the Nation and submits to the Law!
The PATRIOTIC
BOARD
That message seems to have been written today and applies perfectly to this moment in Venezuela. Let us use the same courage, dignity and conscience that our elders had, demonstrated in 1957, to do what we must do to resist democratically by fighting to oust them from power: "The struggle will not cease until we obtain a Government that rescues the Nation and submits to the Law". So shall it be, Amen...
Caracas, November 11, 2023
Blog:
TIC’s & Derechos Humanos,
Email: luismanuel.aguana@gmail.com
Twitter:@laguana
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