Dhirubhai Ambani International Model United Nations 2019 Forum: International Court of Justice

Issue: Arbitral Award of 3rd October 1899

Student Officer: Vibhav Amarbabu

Position: Deputy President

Introduction

The conflict up for contention at the International Court of Justice this year has been passed around through every form of resolution over the 210 years of its history. The matter of the legality of the Arbitral Award of the 3rd of October 1899 has evolved into a global issue, encompassing world powers and developing nations alike, as well as the booming oil industry.

The parties mainly involved in the conflict are the Cooperative Republic of and the Bolivarian Republic of , with Guyana being the institutor of the proceedings of the case in the ICJ. Other parties involved subliminally include the United States of America, Great Britain and Russia.

This dispute regarding the Guyanese-Venezuelan boundary has its origins in the early 16th century, to when the land was under the jurisdiction of the Dutch and Spanish empires. There was no clear boundary defined between the two colonies, which led to a lot of border breaches by both empires on one another’s territory. Following a series of wars, the land that would come to be known as the British, making it the first British colony on the northern coast of South America, captured Guiana. To prevent any further boundary infringement, the British government decided to officially define the boundary of their colony and entrusted the job to Robert Schomburgk, an explorer under the aegis of the Royal Geographical Society, in 1835. The Schomburgk Line was officially declared to the public in 1840 and encompassed area near the mouth of the River, far past the boundary previously assumed. Venezuela disputed the border markers being placed at the mouth of the Orinoco and claimed that all Guianese land West of the River was a part of their territory. In response to this, Britain offered a proposal regarding a modification of the border by Venezuela but there was no agreement between the two nations except to not colonize the disputed territory (1850).

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Figure 1: Region as divided by the Schomburgk Line

Come 1876, Venezuela began to claim two-thirds of to be a part of their territory. The timing was detrimental for Guiana as the British Guiana Mining Company had just been setup to explore and mine the newly discovered rich gold deposits in the area. Acting for Guiana, Britain counter-claimed both the area claimed by Venezuela and the upper Cuyuni basin and a swath of the land in the Amakura and Barima basins up the right bank of the Orinoco River. Venezuela proposed a frontier line in 1881, but this proposal was rejected, as it would have given the entire Barima district to Venezuela. In response to this, Britain declared the Schomburgk Line the provisional frontier of British Guiana in 1886 and the situation reached a high-tension status, which needed to be defused. Venezuela appealed to the United States to intervene under the Monroe Doctrine, a US policy of opposing European colonialism from 1823 onwards. Unwilling to become a major part of this issue, the US put forth the notion of arbitration between the nations. Following arbitral talks between the two nations, the Washington Treaty was signed in February 1897. The Arbitral Award of the 3rd of October 1899 was a signifier of a settlement between the two nations with regards to any issues that may have arisen relating to the boundary line between them. As per the Award, Venezuela would receive 5000 square miles of British Guiana territory, including Barima Point at the mouth of the Orinoco (control over the Orinoco River Basin) and a fair amount of territory to the east of the line.

After the Award, an Anglo-Venezuelan Boundary commission identified, demarcated and permanently fixed the boundary established within the Award between 1900 and 1904. The representatives of the two nations signed a joint declaration and began the production of maps with the updated boundary line (1905 Agreement).

Page 2 of 14 | Research Report Dhirubhai Ambani International Model United Nations 2019 A relatively peaceful period took place from 1899 to 1962. British Guiana (under the United Kingdom) accepted that the Award and following Agreement settled any territorial claims and disputes and demarcated the border between the two nations. Venezuela consistently reiterated their stance regarding legal validity and binding force of the 1899 Award and 1905 Agreement, and respected the boundary it shared with British Guiana.

Severo Mallet-Prevost was a Venezuelan advocate who took part in the arbitral talks as a part of the US delegation. Posthumously, he had a memorandum released in which he stated that the Award was biased, and provided details for a meeting between Britain and Russia, making an ex-parte contract. Venezuela formally raised the issue again at an international level before the United Nations in 1962. Venezuela threatened to not recognize the newly formed state of Guyana or its boundaries unless the United Kingdom set aside the 1899 Award and the 1905 Agreement and ceded to Venezuela all of its territories west of the Essequibo River (Guyana’s part of the Award), citing the Russia-UK deal noted within the memorandum as an offence of collusion. On the 15th of May 1962, the American Ambassador in Caracas, C. Stewart, wrote to the USDOS a telegram in which he stipulated that “President Betancourt of Venezuela, through a series of conferences with the British before Guiana’s Independence, a cordon sanitaire would be set up between the present boundary line and one mutually agreed upon by Venezuela and Britain.”

The ensuing negotiations between the United Kingdom and Venezuela led to an Agreement to Resolve the Controversy Between Venezuela and the United Kingdom of Great Britain and Northern Ireland over the Frontier between Venezuela and British Guiana, signed at Geneva on the 17th of February 1966 (“Geneva Agreement”). It provided for recourse to a series of dispute settlement mechanisms to finally resolve the controversy caused by Venezuela’s reversal of position on the validity of the Award and its refusal to continue acceptance of the boundary demarcated in 1905 (more information in the historical background).

Since the forced entry of the United Kingdom and Guyana into the Geneva Agreement, the controversy has not been resolved as per the means of settlement as had been specified in the Agreement. Venezuela has sustained its contention for over two-thirds of Guyanese territory for over fifty years now, and this controversy has led to a slower growth of both the nations.

Secretary General Guterres declared following the failure of the UN Good Offices Process as in January of 2018, Guyana filed a case in the International Court of Justice.

Research Report | Page 3 of 14 Dhirubhai Ambani International Model United Nations 2019 Definition of Key Terms:

Arbitration

The use of an independent person or body officially appointed to settle a dispute.

Imperialism

The policy of extending a country’s power and influence through colonization, use of military force or other means.

Boundaries:

The lines defining the exact area contained within a kingdom or nation, used to distinguish between two nations bordering nations.

Historical Background

British Guiana

British Guiana was the name of the British colony, part of the British West Indies, on the northern coast of South America, now known as the independent nation of Guyana. The first part of the region to be colonized was the Essequibo and Berbice regions, taken by the Dutch in the early 17th century. Britain took over these two colonies and Demerara in 1796, in the midst of hostilities with the French that had gone and occupied the Netherlands. The British returned control to the Batavian Republic but captured the colonies again a year later during the Napoleonic Wars. The colonies were consolidated into a single colony in 1831, and the capital was made at Georgetown. The colony was initially developed for sugarcane plantations and was built exploiting both human resources (African slaves) and the natural resources.

Arbitration:

Following the Treaty of Washington on February 2, 1897, Venezuela and Great Britain agreed to place their contending claims to a tribunal consisting of five judges: two appointed by the British, two appointed by Venezuela and a fifth judge, the president of the tribunal, chosen by the other four judges. The tribunal was set up in 1898, and began proceedings by receiving written submissions from Venezuela and Great Britain. The Award was announced after the legal teams from each side made their oral presentations between June and September 1899; it upheld Great Britain’s ownership to the territory west of the Essequibo but denied British

Page 4 of 14 | Research Report Dhirubhai Ambani International Model United Nations 2019 entitlement to the upper Cuyuni basin and an area of land on the eastern bank near the mouth of the Orinoco River. The territory awarded to the British included a 4000 square-mile block south of the Pakaraima Mountains, bordered by the Cotinga River on the west, the in the south and the Ireng River in the East and the North. Following acceptance of the award of the tribunal, Great Britain and Venezuela appointed a mixed commission that carried out surveys and demarcated, between 1901 and 1905, the boundary as stipulated by the award.

Mallet-Prevost Memorandum:

The Arbitral tribunal consisted of two American Judges on behalf of Venezuela, two British Judges on behalf of British Guiana and a Russian Judge that acted as the President. One of the four lawyers who had appeared for Venezuela before the Arbitral Tribunal, Severo Malllet-Prevost, wrote a memorandum in which he attacked the Award on the alleged grounds that it was biased because of a political deal between Great Britain and Russia. However, this memorandum was only published after his death (1948) on the 12th of December 1949 by his associate Dr. Shoenrich.

“From that moment I knew that we could not count upon Lord Russell to decide the boundary question on the basis of strict rights… After Sir Richard Webster and I had concluded our speeches, the Tribunal adjourned for a short two weeks' holiday. The two British Arbitrators returned to England and took Mr. (de) Martens with them. When we resumed our sittings at the end of the recess, the change in Lord Collins was noticeable. He asked very few questions, and his attitude was certainly different from what it had been…. Martens have been to see us. He informs us that Russell and Collins are ready to decide in favor of the Schomburgk Line, which starting from Point Barima on the coast would give Great Britain the control of the main mouth of the Orinoco; and that if we insist on starting the line on the coast at the Moruca River he will side with the British and approve the Schomburgk Line as the true boundary… , I became convinced and still believe that during Martens' visit to England, a deal had been concluded between Russia and Great Britain to decide the case… that pressure to that end had in some way been exerted on Collins...”

Geneva Agreement of 1966:

The Agreement was established to resolve the disagreement between Venezuela and the United Kingdom regarding the border that had been established between Venezuela and British Guiana. It originated in Venezuela’s contention that the Arbitral Award of 1899 about the frontier “is null and void”, followed by Venezuela declaring ownership of a large portion of Guyana’s territory.

Research Report | Page 5 of 14 Dhirubhai Ambani International Model United Nations 2019 The Agreement specified that a “Mixed Commission” of Guyanese and Venezuelan representatives would be established to seek a “satisfactory solution for the practical settlement of the controversy”. It also provided that “no new claim or enlargement of an existing claim to territorial sovereignty in these territories shall be asserted”. The British Government, as stipulated in the Agreement, would remain a party in it even after Guyana achieved independence. It was essentially a legal basis for dealing with the political situation caused by Venezuela asserting and maintaining a claim to two thirds of Guyana’s territory.

Economic Effects:

Ankoko Island is located at the confluence of the Cuyuni River and the Wenamu River, on the border between Venezuela and the area disputed to be a part of Guyana Esequiba. This is one of the densest regions for Guyana, and since 1966, there has been a Venezuelan military base placed on the island, inhibiting any economic growth for both the region and the nation. As per the Award, the boundary between the two was to run along the midstream of the Acaribisi to the Cuyuni, and then along the northern bank of the Cuyuni westward to its conjunction with the Wenamu.

Furthermore, ExxonMobil, on being commissioned by the Guyanese government, checked the entire region for oil and literally struck liquid gold, having made over 13 discoveries of oil reservoirs having more than 90 meters worth of height the reservoirs would allow for 700 million barrels of oil, making it worth over $40 Billion. Being locked in disputed waters, the company cannot explore or make use of this oil deposit.

The Agreement has been registered by Venezuela in the General Office of the Organization of the United Nations under registration Number I-8192.

Present Situation:

A Venezuelan Presidential Decree in 2015[1] laid claim to the Atlantic waters off the Essequibo cost, and Venezuela’s navy has intervened in the disputed area on numerous occasions. This decree was met with protests from Guyana.

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Procedural Background:

There have been multiple attempts at a resolution to this matter (documented later) but the only possible way forth which includes a solution that is peaceful in nature is one which includes a judgment by the International Court of Justice.

The case was filed in the ICJ by Guyana against Venezuela on the 4th of April 2018 after they began their application institution proceedings on 29th March 2018. The Court ordered the two nations to prepare their Memorial and Counter-Memorial.

Requirements of the Court:

1. Debating the jurisdiction of the Court with regards to this case pursuant to Articles 36 (6), keeping in mind Article 36 (1-5) of the Statue of the ICJ.

2. Jurisdiction of the court in summoning a state to the Court for a case of breach of international obligation.

3. Outlining the implications of the judgment regarding this case as setting a precedent for century-old treaties and international obligations.

4. Understanding the laws governing land acquisition during an imperialist era, and debating their applicability today

5. Defining the basis for the legitimacy of a treaty or agreement, and the factors that prove otherwise.

Major Countries and Organizations Involved

Cooperative Republic of Guyana:

Guyana is one of the two main parties involved in this conflict. The controversy has existed for over seventy years before its independence, and seems to be continuing into the present era with increasing tensions. The Essequibo region that has been claimed by Venezuela consists of over a quarter of Guyana’s population and approximately 60% of its natural resources. The growth of Guyana as a nation has been slowed because of this conflict on its border, and has prevented a much-needed oil-exploration based boost to the economy. In

Research Report | Page 7 of 14 Dhirubhai Ambani International Model United Nations 2019 1999, Guyana struck a deal with Exxon Mobile to search for oil within the nation, and in 2014, Exxon reported the discovery of an oil field worth $44 billion, all contained within the Essequibo region.

Guyana has stipulated that the original boundary as had been demarcated by the Boundary Commission in 1905 basis the Arbitral Award be upheld. They uphold the integrity of the Award and declared that there was no foul play with reference to its proceedings.

Bolivarian Republic of Venezuela:

Venezuela is the other main party involved in this conflict. The nation has been fighting for this particular region since the 18th Century, and its growth as a nation has been fairly hindered as a result of such. The Essequibo region, according to them, should rightfully be theirs as they are the original landowners of this entire region.

Venezuela has contended the validity of the Arbitral Award on a global scale since 1962, and has since laid claim to over two-thirds of Guyanese land in and around the Essequibo region.

United Kingdom:

At the time of this conflict’s first instance, Guiana was still a part of the British Empire as one of its colonies. When the Arbitration tribunal took place, the British represented Guiana, and when the land was awarded, it was awarded to Great Britain seeing as they were its colonizers. When Venezuela first began its contention regarding the legality of the Award, Great Britain signed the Geneva Agreement as Guiana was still under its purview at the time. Hence, Britain is a country that has been involved greatly in this matter.

Britain has stipulated in the past of its solidarity with regards to the integrity of the Award, as was proven by their response to Venezuelan contention of such, specifically the Geneva Agreement.

United States of America:

The United States obliged Venezuela’s request for arbitration as per the Monroe Doctrine, and nearly went to war with Britain to “force it to agree to arbitration to decide the border.”

Page 8 of 14 | Research Report Dhirubhai Ambani International Model United Nations 2019 In the present day, Venezuela has claimed that the United States was amongst those responsible for the arbitral “fraud” and hence can be held partially responsible for the existence of this controversy.

The United States had sent advocates on behalf of Venezuela to take part in the Arbitration tribunal and hence hold an important role in this matter. The US would be favorable towards a peaceful and timely resolution as it has the potential to lead to a senseless war over the Essequibo region, which could have devastating economic impact to both the economies, and would greatly undermine the security and stability of the Caribbean Basin.

Russian Federation

The fifth judge that took part in the Arbitration tribunal was of Russian citizenship and was the President of the tribunal. In the past, they were expected to have no clear inclination towards either nation, and have had little to no involvement in the matter in recent years. However, seeing as one of their citizens was a part of the arbitral process, they must take a portion of the responsibility of the Award and the outcome that it had.

United Nations Good Offices Program

The failure of the Good Offices Program with regards to this situation is a fairly important situation leading to a question of the drawbacks of the process as well as what can be improved upon so as to increase the efficacy of the process.

Timeline of Events

Date Description of event

2nd February 1897 Treaty of Arbitration signed at Washington

3rd October 1899 Arbitral Award

November 1900-June 1904 Anglo-Venezuelan Boundary Commission established

10th January 1905 Joint declaration of boundary with accompanying maps

Research Report | Page 9 of 14 Dhirubhai Ambani International Model United Nations 2019 12th December 1944 Mallet-Prevost Memorandum published

15th May 1962 Venezuela shows discontent, threatens Guyana

5th May 1966 Geneva Agreement

Jan 1990-Jan 2018 UN Good Offices Process

30th Jan 2018 Declared failure of the Good Offices Process

29th March 2018 Application Institution Proceedings begin

4th April 2018 Filing of Case against Venezuela

2nd July 2018 Time limits set for memorial and counter

Relevant Treaties and Documents:

• Arbitral Award of 1899 (British Guiana and United States of Venezuela)[1]: The Arbitral Award forms the crux of the matter and is the document whose validity will be contended in front of the ICJ.

• Geneva Agreement, 1966: I-8192, UN General Office[2]: The Geneva Agreement was the first step in achieving peace between the two nations, and was the first attempt at a resolution after Venezuela contended the validity of the Award in 1962.

• Treaty of Washington (Great Britain and the United States of Venezuela)[3]: The Treaty of Washington was a peaceful agreement between the two nations to ensure a fair resolution to the boundary controversy that had been afflicting them.

• Agreement between the Boundary Commissioners with regards to the shared boundary 1905[4]: This agreement stipulated the first official boundary between the two nations.

• Model Rules on Arbitral Procedure 1958: UN International Law Commission [5]: In order to judge the validity of an Arbitral Award, the rules created to ensure fairness in the proceedings is important.

• Vienna Convention on Succession of States in Respect of Treaties 1978[6]: The Vienna Convention stipulates the differences that came about after the decolonization process, and is important as it distinguished newly independent states (former colonies).

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• Peace of Munster[7]: This treaty gives important background information with reference to the ownership of the land of the Caribbean Basin up till the late 15th century.

• Protocol of Port of Spain[8]: A moratorium on Venezuela’s reclamation of the Esequiba

• Monroe Doctrine[9]: The reason for the United States’ participation in the Arbitral Process

• Arbitral Award by the King of Spain (1906): Judgment of November 1960[10]: Another ICJ case based on the validity of an Arbitral Award made by the King of Spain.

Previous Attempts at a resolution:

Article I of the Geneva Agreement called for the establishment of a Mixed Commission with the task of seeking a satisfactory solution for the practical solution of the controversy. This Commission was given a mandate of four years, that expired on the 17th of February, 1970, having made little headway with regards to a solution.

The Agreement also authorized the UNSG, in absence of any agreement between the Parties to advise which means of dispute amongst those stated under Article 33 of the UN Charter would be most advisable to pursue (Para 2, Article IV of the Agreement). The disputing states have made attempts at attaining a resolution by means of negotiation, enquiry, mediation, conciliation and arbitration.

Following the failure of all of these attempts, Secretary General Javier Perez de Cuellar, chose to employ the UN Good Offices Process which, carried out under the Parties’ supervision, would peacefully settle the controversy over the validity of the 1899 Award and would bring about the finality of the boundary established thereafter.

In January 2018, Secretary Guterres declared a failure of the UN Good Offices Process in achieving a peaceful settlement of the controversy. As per Para 2, Article IV of the Geneva Agreement, he made a final and binding decision to pursue another mean of settlement amongst those stipulated under Article 33 of the UN Charter. The Office of the UNSG stated publicly that the matter would be settled by means of a judicial settlement in the International Court of Justice.

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Possible Solutions

Evaluation and submission of the proof of ownership:

One of the main issues hindering the resolution of this issue is that of a lack of evidence regarding the ownership of property from either nation. As is the aim of the arbitration process, both nations should be satisfied with the division of land between them so as to prevent any displeasure whatsoever. This ideal could be applied to a judicial settlement as well.

Mutual ownership of the land:

A joint venture by both nations to use the natural resources in the region with a proportional division of the profits made from the region could be a possible solution to this controversy. The Essequibo region is the largest untapped natural resources reserve in the world, and has over $40 billion worth of oil reserves discovered at a preliminary investigation. This economic boost will be extremely beneficial for both the nations.

Law of Accession:

Following the division of land on the basis of proof provided, the natural resources available on each piece of land shall be the property of the owner of that land.

Freeze Date

The freeze date with regards to the information contained within this document is the first of August 2019 (1.8.2019). Any information that may arise or come to light after this date will not be considered a part of committee proceedings.

The date chosen is apt as a freeze date because the last update with regards to this case was on the 22nd of July, 2018, when time-limits for the filing of written pleadings. There have been no major updates since then.

Page 12 of 14 | Research Report Dhirubhai Ambani International Model United Nations 2019 Bibliography

ICJ. “Arbitral Award of 3rd October 1899.” Latest Developments | Arbitral Award of 3 October 1899 (Guyana v. Venezuela) | International Court of Justice, International Court of Justice, www.icj-cij.org/en/case/171.

ICJ Statue. www.icj-cij.org/en/statute

Bronstein, Hugh. “At U.N., Guyana Blasts Venezuela over Century-Old Border Spat.” Reuters, Thomson Reuters, 29 Sept. 2015, www.reuters.com/article/us-un-assembly-guyana- venezuela/at-u-n-guyana-blasts-venezuela-over-century-old-border-spat- idUSKCN0RT2CA20150929. Accessed 3-7-2019

“The Trail of Diplomacy.” The Trail of Diplomacy-Part 4, www.guyana.org/features/trail_diplomacy_pt4.html. Accessed 2-7-2019

“Library Blog.” Peace Palace Library Essequibo the Territorial Dispute between Venezuela and Guyana Comments, Peace Palace Library, www.peacepalacelibrary.nl/2016/01/essequibo-the- territorial-dispute-between-venezuela-and-guyana/. Accessed 3-7-2019

“The Controversy between Guyana and Venezuela over the Essequibo Region.” Ministry of Foreign Affairs Cooperative Republic of Guyana, Guyana Ministry of Foreign Affairs (MinFor), www.minfor.gov.gy/featured/the-dispute-between-guyana-and-venezuela-over-the-essequibo- region/. Accessed 30-6-2019

Coha. “Guyana-Venezuela: The ‘Controversy’ over the Arbitral Award of 1899.” COHA, Dr. Odeen Ishamel, 29 Sept. 2015, www.coha.org/guyana-venezuela-the-controversy-over-the- arbitral-award-of-1899/ Accessed 1-8-2019

Research Report | Page 13 of 14 Dhirubhai Ambani International Model United Nations 2019 Appendix

Arbitral Award of 3rd October 1899: http://legal.un.org/riaa/cases/vol_XXVIII/331-340.pdf

Monroe Doctrine: “Monroe Doctrine (1823).” Our Documents - Monroe Doctrine (1823), www.ourdocuments.gov/doc.php?flash=false&doc=23

Geneva Agreement: https://treaties.un.org/doc/publication/unts/volume%20561/volume-561-i-8192- english.pdf

Treaty of Washington: https://www.marshall.edu/specialcollections/css_alabama/pdf/treaty_washington.pdf

Model Rules on Arbitral Procedure: http://legal.un.org/ilc/texts/instruments/english/commentaries/10_1_1958.pdf

Protocol of Port of Spain: https://treaties.un.org/doc/Publication/UNTS/Volume%20801/volume-801-I-11410- English.pdf

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