Essequibo referendum: An unlawful threat of force?

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Essequibo (or Guayana Esequiba according to Venezuela) is an oil rich region given to Guyana by the 1899 Paris Arbitral Award. It amounts to approximately two thirds of Guyana’s territory. Since the early 1960s, Venezuela disputed the validity of the arbitral award and laid claim to the territory. In 1966, the Geneva Agreement was signed which provided for the peaceful settlement of territorial disputes. Article IV of the Agreement conferred on the UN Secretary-General the power to choose the most appropriate dispute settlement mechanism. In 2018, the Secretary-General chose judicial settlement by the International Court of Justice (ICJ). Following this, Guyana filed an application to the ICJ which in 2020 decided that it has jurisdiction to entrain the application in so far as it ‘concerns the validity of the 1899 Award and the related question of the definitive settlement of the land boundary dispute’ between Guyana and Venezuela. Venezuela raised objections which were  held inadmissible in 2023.

On October 20, 2023 Venezuela announced that it will hold a consultative referendum regarding the status of the region. One of the questions put to the voters, question 5, asked:

‘Do you agree with the creation of the Guayana Esequiba state and the development of an accelerated plan for comprehensive care for the current and future population of that territory, which includes, among others, the granting of citizenship and identity card in accordance with the Geneva Agreement and International Law, consequently incorporating said state on the map of Venezuelan territory?’

After the announcement of the referendum, Guyana applied to the ICJ to request provisional measures. The ICJ decided on December 1, 2023 that ‘pending a final decision in the case, the Bolivarian Republic of Venezuela shall refrain from taking any action which would modify the situation that currently prevails in the territory in dispute, whereby the Co-operative Republic of Guyana administers and exercises control over that area,” and that “Both Parties shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.’

That notwithstanding Venezuela went ahead with the referendum which was held on December 3, 2023. According to reports, 95.9% of the voters said ‘yes’ to question 5, although overall turnout was weak.

Immediately after the referendum, the President of Venezuela announced a series of measures to implement the result of the referendum. More specifically, he created a high commission for the defence of Guayana Esequiba; ordered the National Assembly to create the state of Guayana Esequiba; established a military zone for the new state; ordered the state-owned oil company to grant operating licenses in the new state; ordered Venezuelan identity cards to be issued to the local population.

Guyana’s President condemned these actions as being in full defiance of international law and ‘a direct threat to Guyana’s territorial integrity, sovereignty and political independence’ (see here). He said that Guyana is preparing to defend itself and placed the military on high alert. He also requested a meeting of the SC which took place on December 6, 2023 without issuing any official announcement. The OAS issued a statement which expressed ‘a sense of urgency and gravity regarding the aggressive stance of the Maduro regime of Venezuela towards the Cooperative Republic of Guyana, which has escalated to a point of significant concern for regional security and constitutes a matter that threatens the stability and territorial sovereignty within our hemisphere’ and continued by saying ‘the Maduro regime is continuing to take and promote unlawful actions against Guyana, such as conducting an illegal and illegitimate referendum on December 3, 2023, by which it seeks to annex the Essequibo region. This action was taken not only in flagrant disregard for international law and decisions of the ICJ but also, once more, with an undemocratic use of democratic processes’

The US conducted flight operations over the region and Brazil sent troops to the border with Guyana with its President saying ‘we do not want and we do not need war in South America’ (here). On December 14, 2023, the Presidents of Venezuela and Guyana met at Saint Vincent and The Grenadines and promised not to use threats or force but failed to reach an agreement on how to resolve the dispute (see here). In light of the above, this post will shed light on the legal issues involved and in particular the interaction between the prohibition of the threat of force and the obligation to settle territorial disputes peacefully.

The prohibition of the threat of force

The prohibition of the threat of force is enshrined in Article 2(4) of the UN Charter and forms part of customary law (see Paramilitary Activities case, paras 187-190). A threat of force consists of a promise that force will be used if a certain demand is not met (see Bronwlie p. 364 and Roscini p. 235) .

A threat of force can be explicit or implicit but whether certain conduct constitutes a threat of force depends on the context (see the Independent International Fact-Finding Mission on the Conflict in Georgia Report pp. 231-2). Thus, whereas an ultimatum is evidently a threat of force, the movement of troops or overflights in a situation characterised by high tensions may also constitute a threat of force. Moreover, for a threat of force to exist, the use of force does not need to be imminent or certain. What matters is the intent to use force by one side which creates a reasonable expectation in the other side that force will be used (Buchan and Tsagourias 33-35). 

Finally, for a threat of force to be unlawful, the projected use of force needs to be unlawful (see Nuclear Weapons advisory opinion, para. 47). Since the use of force by way of self-defence is lawful according to Article 51 of the UN Charter and customary law, any threat to use force by way of self-defence will not violate Article 2(4).

Assessing Venezuela’s actions

Venezuela’s actions following the referendum but also the referendum itself constitute an unlawful threat of force. They demonstrate Venezuela’s readiness to use force to annex the region if its claim over the territory is not met. These actions include the military preparations, the creation of the state of Guayana Esequiba and the granting of exploitation licenses to companies. Regarding the referendum, although holding a referendum falls within Venezuela’s domestic jurisdiction, the timing of the referendum and the questions posed to the voters confirm the view that Venezuela is contemplating the annexation of the territory having secured domestic approval. As CARICOM’s statement noted with regard to the referendum questions, ‘it is open to reasonable persons to conclude that “by all means”, includes means of force or war.’ (see here para 6). Furthermore, official statements such as ‘We are absolutely determined to recover our Guayana Esequiba’ (see here a 21) support the conclusion that force is contemplated to annex the territory. Since the forcible annexation of territory is unlawful, the threat to do so is also unlawful. It is therefore welcome that both countries agreed to avoid threats of force. That said, Guyana’s statements and military preparations donot amount to a threat of force because self-defence is lawful use of force.    

Can Venezuela put forward any justification to remove the threat from the ambit of Article 2(4)? One possible justification is the doctrine of protection of nationals abroad. This doctrine has a long pedigree in international law as a manifestation of the right to self-defence. Its central tenet is that an attack on nationals abroad is an attack on their state of nationality which can use force in self-defence to protect them. (Ronziti, Bowett, Dinstein pp. 275-9) provided that the action is in response to an actual or imminent threat due to the inability or unwillingness of the local authorities to protect nationals  and is strictly confined to their protection (Waldock 467,  Buchan and Tsagourias, 50-53). Such justification does not however apply to the case at hand because the local population is not nationals of Venezuela and there is no attack on them in that there is no danger to their life or limp. Even if that was the case, the annexation of the territory exceeds the requirements of their protection.  

However, Venezuela is granting nationality to the local population and thus manufactures nationals. Can one say that Venezuela’s threat of force is justified because the projected force constitutes pre-emptive self-defence? To explain, can it be said that Venezuela threatens to use force in order to avert forthcoming attacks on its new nationals? This would be a legally absurd construction. As the IIFFMCG Report put it with regard to the conferral of Russian nationality to Ossetians, ‘it seems abusive to rely on their need for protection as a reason for intervention, because Russia itself created this reason or intervention through its own policy’ (Independent International Fact-Finding Mission on the Conflict in Georgia Report, 288-289) Moreover, there is no right to pre-emptive protection of nationals in self-defence.

Remaining within the self-defence justification, can Venezuela claim that the projected use of force is in self-defence to recover territory belonging to Venezuela during the Spanish colonial period which was seized later by Guyana? Such a claim will remove the matter from the framework of territorial disputes and place it within the use of force framework but, as was said, to invoke self-defence, there needs to be a prior armed attack which is lacking in the case at hand.

The next question to consider is how the prohibition of threats of force interacts with the obligation to settle territorial disputes peacefully. According to Article 2(3) UN Charter states are duty bound to settle all their disputes peacefully and this obligation has attained customary law status. Although the qualification ‘peaceful’ may be subject to diverse interpretation, at minimum it means that no force or threat of force should be used to settle disputes (see Tomuschat,  Paramilitary Activities case para 290). As the ICJ opined ‘it would be illegal for a State to threaten force to secure territory from another State’ (Nuclear Weapons advisory opinion, para. 47).

Territorial disputes can thus involve both Article 2(3) and 2(4) of the UN Charter and according to the Guyana/Surinam Arbitral Tribunal, Suriname’s threat of force in the disputed area, ‘while also threatening international peace and security, jeopardised the reaching of a final delimitation agreement’ (Guyana/Suriname paras 483-4). As the Eritrea/Ethiopia Claims Commission also said ‘the practice of States and the writings of eminent publicists show that self- defense cannot be invoked to settle territorial disputes’ (see here para 10). The Falkland/Malvinas case is also indicative. Argentina’s use of force was deemed to be an armed attack which triggered the UK’s right to self-defence even if Argentina claimed that it was acting in self-defence against acts of aggression which referred to the way the islands were placed under British sovereignty (here para 12).

Attached to the obligation of peaceful settlement is that parties to a dispute should not aggravate the dispute (Friendly Relations Declaration and South China Sea Arbitration paras 1171-9). The military build-up and the bellicose language used by Venezuela aggravate the dispute. It is thus welcome that the two countries agreed to  “refrain, whether by words or deeds, from escalating any conflict’ (see here)

If however Venezuela and Guyana were to agree to use a binding mechanism to determine who has sovereign title over the disputed territory and this mechanism decides to award Essequibo to Venezuela but Guyana refuses to withdraw and continues to exercise its sovereignty over Essequibo, Guyana’s presence would amount to an attack on Venezuela and constitute an unlawful occupation. Venezuela could then use force by way of self-defence to recover the territory as a measure of last resort if other means prove ineffective. This raises the question of whether the right to self-defence persists during occupation and for how long. In my opinion, there is an armed attack which persists as long as the occupation is maintained, justifying thus self-defence action at any time during this period (Buchan and Tsagourias, 48-50, Akande and Tzanakopoulos but contra Ruys and Rodríguez Silvestre). The occupation of Kuwait by Iraq is a good example in that Kuwait did not forfeit its right to use force in self-defence as long as the occupation continued. Whether a state exercises its right to self-defence boils down to the question of whether self-defence is necessary and of course on other political or material considerations.

Conclusion     

The sum of Venezuela’ actions amounts to a prohibited threat of force in violation of Article 2(4) of the UN Charter and a violation of the obligation to settle disputes peacefully enshrined in Article 2(3) of the UN Charter. The prohibition of the threat of force is of critical importance in the context of territorial disputes because states may feel an urge to settle them by force due to their nature and the issues of sovereignty, they raise.

Although the recent meeting and declaration are promising developments, a resolution to the dispute is not forthcoming and nothing prevents a flare up in particular due to next year’s elections in Venezuela. There is also another element in Venezuela’s conduct which makes it particularly alarming. Venezuela seems to replicate Russia’s behaviour towards its neighbouring countries. Russia for example used referenda and passportization to attack Georgia and Ukraine. Venezuela’s actions seem to follow the same pattern and constitute a serious threat to international and regional peace and security but also a challenge to international law if this presents the new normality.

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Nicolas Boeglin says

December 18, 2023

Dear Professor Tsagourias

Many thanks for this extremely interesting post.

When you refer to "Since the early 1960s, Venezuela disputed the validity of the arbitral award and laid claim to the territory", I suppose you refer - but with no details given - to the memorandum made public in 1949 by Judge Otto Schoenrich in the AJIL, in his article “The Venezuela-British Guiana Boundary Dispute,” (AJIL Vol. 43 (1949), pp. 523–530): it is the memorandum by the late Severo Mallet-Prevost.

I´m sure that you know a publication of 2009 of the Max Planck Institute of Heidelberg in Public IL in which we read that:

"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 MalletProvost 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".

Source: https://allanbrewercarias.net/Content/449725d9-f1cb-474b-8ab2-41efb849fea8/Content/Guyana-Venezuela%20Border%20Dispute.%20Max%20Planck%20EPIL,%202006.pdf

Since ASIL publication in 1949, Venezuela has maintained a prudent distance with all judicial mechanisms in different fora at universal and regional level as well as in its bilateral relations: it is a national policy of its MFA.

In my view, it constitutes a very rare case of a State feeling inconfortable with all judicial remedies offered by IL to States, particularly ICJ.

May I also refer you to

- the dissent opinion of Judge Abraham (France)

https://www.icj-cij.org/public/files/case-related/171/171-20201218-JUD-01-02-FR.pdf

- Judge Bennouna (Morocco) ´s dissent opinion

https://www.icj-cij.org/public/files/case-related/171/171-20201218-JUD-01-03-FR.pdf

- the declaration of Judge Gaia (Italy)

https://www.icj-cij.org/public/files/case-related/171/171-20201218-JUD-01-04-EN.pdf

- the dissent opinion of Judge Gevorgian (Russia)

https://www.icj-cij.org/public/files/case-related/171/171-20201218-JUD-01-06-EN.pdf

of 2020 ICJ decision on competence.

Yours sincerely

Nicolas Boeglin

Note: I refer you to a modest note on the origins of such sudden interest in Guyana unresolved dispute with Venezuela in 2018 by US Trump administration at:

https://derechointernacionalcr.blogspot.com/2018/04/guyana-presenta-demanda-contra.html