Memorandum of Venezuela

Memorandum of the Bolivarian Republic of Venezuela on the
Application filed before the International Court of Justice by
the Cooperative Republic of Guyana on March 29th, 2018

Table of Contents

INTRODUCTION ........................................................................................ 3
PART I ........................................................................................................... 9
I.1. “The 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,” known as the
Geneva Agreement of February 17
, 1966 ......................................... 10
I.2. Application of the Geneva Agreement between 1966 and 2015......... 12
I.3. From “The way forward” (2015) to the letter from the UN SecretaryGeneral of
January
30th,
2018
..................................................................
16
th
PART II ....................................................................................................... 28
II.1. Article IV.2 of the Geneva Agreement: text and context.................... 28
II.2. Article IV.2 of the Geneva Agreement is not by itself a basis of
jurisdiction under the Statute of the Court………………………………... 34

PART III ...................................................................................................... 43
III.1. The object of Guyana’s Application does not correspond to the
subject-matter of the dispute under the Geneva Agreement ............... 43
III.2. The conduct of the Parties in the territory under dispute ...................... 48

CONCLUSION ........................................................................................... 56

2

INTRODUCTION

1. The Cooperative Republic of Guyana has filed a unilateral application
against the Bolivarian Republic of Venezuela with the International
Court of Justice on March 29
, 2018. It requests the Court: 1) to declare
the validity and binding nature of the Arbitral Award of October 3
th
,
1899, and the called Agreement of January 10
rd
, 1905, 2) to grant
Guyana the entire territory in dispute and, 3) to impose on Venezuela
purported related obligations.
th

2. In its Application, Guyana claims that the Court has jurisdiction on the
basis of Article 36.1 of the Statute of the Court (which extends its
jurisdiction, inter alia, to matters especially provided for in treaties and
conventions in force). Guyana bases its claim that the Court has
jurisdiction in the present case on the fact that the Secretary-General of
the United Nations chose on January 30
, 2018 to choose the
International Court of Justice as “the means that is now to be used” by
the Parties to settle the dispute, object of the Geneva Agreement, dated
February 17
th
, 1966. However, Venezuela did not consent to the Court’s
jurisdiction under Article 36.1 of the Statute in relation to the present
dispute.

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According to paragraph 14 of the Application:

3

“The Court has jurisdiction over the controversy addressed in
this Application under Article 36, paragraph 1, of its Statute,
pursuant to the mutual consent of Guyana and Venezuela, given
by them in Article IV, paragraph 2, of the 1966 Geneva
Agreement”.

3. Guyana seeks to artificially justify the jurisdiction of the Court,
claiming that in Article IV.2 of the Geneva Agreement, Guyana and
Venezuela granted the UN Secretary-General the authority to choose the
means of dispute settlement, which he would have done on January 30
,
2018. According to Guyana this should be interpreted as having the
effect not only to designate the means of dispute settlement that should
be used by the Parties, but also as (i) granting in and by itself the Court
with jurisdiction, independently of the consent of the Parties and
without any need to define in particular the scope of the dispute and the
elements to be taken into account to settle it, and (ii) allowing unilateral
application to the Court by one Party only. Guyana fails to mention any
other legal basis of jurisdiction over the dispute.
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4. On June 18
, 2018, a meeting convened by the President of the Court
was held at the seat of the Court to determine the procedural course that
should be given to the Application. At that meeting, the Executive VicePresident
of
Venezuela,
Mrs.
Delcy
Rodriguez,
handed
over
a
letter
by

the

President of the Republic, Mr. Nicolas Maduro Moros, to the
President of the Court. After expressing his respect for the institution,
President Maduro announced that Venezuela would not participate in
the proceedings due to the manifest lack of a jurisdictional basis of the
Court, offering once again to resume the negotiations in accordance
with the letter and spirit of the Geneva Agreement.
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4

Guyana’s Application is ill-founded and the Court lacks jurisdiction

5. The Geneva Agreement requires a settlement be amicably reached
through a practical, acceptable, and satisfactory solution for both
Parties. The recourse to adjudication, including the International Court
of Justice, is not possible without a specific provision in a special
agreement (to be concluded) referring the case to the Court and
specifying that the Court should settle the dispute in accordance with
the Geneva Agreement, and not only on the basis of international law.
Moreover, the scope of the dispute to be referred to the Court is not
clearly defined which in this case shows even more the need for a
special agreement to spell out the subject-matter of the dispute in order
for the Court to have proper jurisdiction.

6. In any event, the Geneva Agreement does not constitute an agreement
under Article 36.1 of the Statute of the Court: the effect of the
Agreement is to have the UN Secretary-General deciding which means
of settlement shall be used; on the other hand, the agreement itself does
not grant jurisdiction to the Court. It is not a self-standing or a selfexecuting

agreement as regards jurisdiction of the Court. The UN
Secretary-General only designated “the means to be used for the
solution of the controversy”; to materialize the choice of the UN
Secretary-General, there is a need to comply with the Court’s Statute,
i.e. in the present case to conclude, in the absence of any other basis for
jurisdiction, a special agreement.

7. It is the same situation as compromissory clauses obligating States to
resort to arbitration. Such clauses are not enough to grant jurisdiction to
5

an arbitral tribunal. Jurisdiction requires an additional step to
materialize the obligation to adjudicate, which is the conclusion of a
special agreement.

8. In any case, even if Guyana were right -quod non- in claiming that
Article IV.2 of the Geneva Agreement “operates as a compromissory
clause conferring jurisdiction on the Court”, Article IV.2 does not
specify that it can be activated before the Court through a unilateral
application, as some compromissory clauses expressly indicate. In the
absence of any specification to the contrary in the Geneva Agreement, it
must be presumed that there is a need for a joint agreement referring the
case to the Court for it to have jurisdiction.

9. Guyana’s application is based on a false foundation. Article IV.2
indicates only that the Secretary-General may choose among the means
of dispute settlement listed in Article 33 of the UN Charter. But the
Court itself has observed in its Judgment in Aerial Incident of 10 August
1999 (India v Pakistan) (Jurisdiction) [2000] ICJ Rep. 12, para. 48, that
Article 33 of the Charter is not a “specific provision of itself conferring
compulsory jurisdiction on the Court”. Therefore, the mere invocation
of Article 33 is not a basis for the Court’s jurisdiction. Guyana is forced
to suggest, therefore, that a choice among the options contained in this
“non-basis” of jurisdiction can transform it into a true basis for the
Court’s jurisdiction. This is absurd. A choice among negatives cannot
generate a positive.

6

Venezuela’s Memorandum and its Structure
10. By Order dated June 19
, 2018, the Court decided “that the written
pleadings shall first be addressed to the question of the jurisdiction of
the Court”. For this purpose, it granted a period of five months to each
Party: November 19
th
, 2018 as time limit to file a Memorial by Guyana,
and April 18
th
, 2019 for Venezuela to submit a Counter-Memorial.

11. By note, dated April 12
th
, 2019, Venezuela confirmed to the Court its
non-participation in the written proceedings and informed that,
however,

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“out of respect for the Court and in accordance with the
precedents, the Bolivarian Republic of Venezuela will facilitate
in a later timely moment, with information in order to assist the
Court in the fulfilment of its duty as indicated in Article 53.2 of
its Statute”.

12. In accordance with this diplomatic note, Venezuela submits the present
Memorandum aimed at demonstrating the manifest lack of jurisdiction
of the Court and the absence of Venezuela’s consent to have this case
adjudicated by the Court, as its own Statute requires.

13. The Memorandum is divided into three parts. The first part (I) presents
the most relevant aspects of the Geneva Agreement, dated February
17th, 1966 (I.1), its application by the Parties until 2015 (I.2) and the
facts leading to the letter of the UN Secretary-General dated January
30th, 2018 (I.3).

7

14. The second part (II) analyses Article IV.2 of the Geneva Agreement,
which establishes the role of the UN Secretary-General, in its own
context, considering its practice and the travaux préparatoires (II.1)
and, next, it demonstrates that this provision, contrary to what Guyana
claims, does not turn the choice of the Court by the UN SecretaryGeneral

into a legal basis providing the Court with unconsented
jurisdiction (II.2).

15. The third part (III) highlights the discrepancy between the subject of the
dispute under the Geneva Agreement and the subject-matter of the
Application filed by Guyana (III.1) and it draws attention to the conduct
of the Parties in relation to the territory under dispute (III.2) to
conclude, finally, with a renewed invitation to negotiation, assisted by
political means, in accordance with the correct application of the
Geneva Agreement.

16. The Memorandum is accompanied by an Annex that chronologically
documents and elaborates on the facts upon which the document is
based.
8

PART I

I.1. The 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,” known as the Geneva
Agreement of February 17
th
, 1966

17. The manner and terms of negotiation and conclusion of the Treaty of
February 2
nd
, 1897, whereby the territorial dispute between the United
Kingdom and Venezuela concerning sovereignty over the territory west
of the centreline of the Essequibo River was submitted to arbitration, as
well as the manner how the arbitration unfolded and the Award of
October 3
rd
, 1899 was adopted were, from a historical perspective, an
outrage that, when analysed in the light of the relevant international law
in force today, should be null and void.

18. Nearly fifty years later, the testimony of one of the lawyers who had
represented the interests of Venezuela revealed new facts that
reactivated the assertion of the nullity of the 1899 Award. Based on
these grounds, the Venezuelan title to the territory west of the Essequibo
River was presented to the United Kingdom, which administered
Guyana first as its colony and later as a non-autonomous territory.

19. The Venezuelan claim coincided with the independence process of
Guyana, which extended to the territory east of the Essequibo River. In
this specific context, a negotiation was opened that resulted in the
“Agreement to resolve the controversy between Venezuela and the
9

United Kingdom of Great Britain and Northern Ireland Over the
Frontier Between Venezuela and British Guiana,” known as the Geneva
Agreement, concluded February 17
, 1966, three months before the
independence of Guyana.
th

20. Article VIII of the Geneva Agreement provided that, once independent,
Guyana would automatically become a party. Guyana achieved its
independence and assumed all obligations contained in the Agreement.
Venezuela proceeded to its recognition with an express reservation of its
territorial claim over the territory west of the Essequibo River. The
territorial dispute was therefore inextricably linked to the birth of
Guyana as an independent State. Guyana cannot ignore now its pending
condition or reduce it to the question of the validity of the 1899 Award
on basis of a new interpretation of the Geneva Agreement.

21. This Agreement is the unquestionable regulatory framework for the
settlement of the territorial dispute between Guyana and Venezuela over
the Guayana Esequiba. This has been persistently upheld by Venezuela
and it is revealing that, despite the constant disloyalty of Guyana to this
Agreement, the latter decides to unilaterally use it now artificially as the
exclusive basis of the Court’s jurisdiction. It is manifest that Guyana’s
new interpretation of the Geneva Agreement does not correspond to its
terms nor to the intention of the Parties.

22. The Geneva Agreement:

a) expressed the conviction that the pending dispute would prejudice a
closer cooperation between British Guiana and Venezuela and “should
therefore be “amicably resolved in a manner acceptable to both parties”
(Preamble, third and fourth paragraphs, emphasis added);
10

b) confirmed the existence of a “controversy between Venezuela and the
United Kingdom which has arisen as the result of the Venezuelan
contention that the Arbitral Award of 1899 about the frontier between
British Guiana and Venezuela is null and void” (Article I);

c) provided for the creation of a Mixed Commission “with the task of
seeking satisfactory solutions for the practical settlement of the
controversy” (Article I, emphasis added) and provided for a procedure
to be followed in the event that, once elapsed a four-year term as from
the date of the Agreement, the Commission “should not have arrived at
a full agreement for the solution of the controversy” (Article IV.1). This
finally should end with the intervention of the UN Secretary-General
(Article IV.2). If the means chosen by him, from those provided for in
Article 33 of the Charter of the United Nations, do not lead to a
solution, the UN Secretary General should choose “another of the means
stipulated in Article 33 (…) and so on until the controversy has been
resolved or until all the means of peaceful settlement there
contemplated have been exhausted” (Article IV.2, emphasis added);

d) in order to “facilitate the greatest possible measure of cooperation
and mutual understanding”, it froze on that date the basis for claiming
“territorial sovereignty in the territories of Venezuela or British Guiana,
or of any previously asserted rights,” noting that it did not prejudge the
position or rights of any of the Parties concerning the territorial
sovereignty in the territories of Venezuela or British Guiana (Article
V.1);

11

e) established the irrelevance of any act or activity carried out during
the validity of the Agreement as a basis for or against the claim to
territorial sovereignty or to create sovereign rights in said Territories
(Article V.2).

I.2. Application of the Geneva Agreement between 1966 and 2015

23. The Geneva Agreement established, according to its explicit terms, a
negotiation procedure for a practical, acceptable and satisfactory
settlement for both Parties of the territorial dispute. According in
particular to the preamble of the Agreement, the controversy between
the Parties “should … be amicably resolved in a manner acceptable to
both Parties”. It is worth briefly reviewing its application since its entry
into force (Article VII) to understand its meaning for the purpose of the
Court’s alleged jurisdiction in the present case.

24. The Mixed Commission, created in accordance with Article I of the
Agreement, exhausted the four-year period granted to seek a satisfactory
settlement of the dispute pursuant to Article IV.1, without achieving its
objective. The three pages of its Final Report, incorporating as annexes
the respective memoranda of the Parties, was delivered on June 18th,
1970. This document evinced the failure of the attempt.

25. The representatives of Guyana deliberately and systematically blocked
the negotiation by introducing as a preliminary question the decision on
the issue of the validity or nullity of the 1899 Award. This legal issue
could have been addressed, as such, when the Geneva Agreement was
negotiated. Instead, the Parties opted for seeking a practical settlement
of the territorial dispute acceptable for both Parties. The Parties to the
12

Agreement therefore recognized the existence of a pending territorial
dispute whose settlement depended on a process that should lead,
following a comprehensive consideration of all the factors involved, to
reciprocal, balanced, and, ultimately, equitable solution.

26. According to the last part of paragraph 1 of Article IV of the
Agreement, the Governments of Guyana and Venezuela should choose
“without delay” one of the means of peaceful settlement provided for in
Article 33 of the Charter of the United Nations. However, on the same
date that the Final Report of the Mixed Commission was presented, the
Parties agreed in a protocol (Protocol of Port of Spain), to a twelve-year
suspension, renewable for identical periods, of Article IV of the Geneva
Agreement, in order to promote mutual trust and the improvement of
their relations.

27. Guyana claims that, during that period, Venezuela launched
intimidation campaigns and did not take initiatives aimed at meeting the
objectives of the Protocol mentioned above. This is not correct. High
level contacts took place during this period and the representatives of
Guyana presented proposals for a practical settlement that included the
transfer of important portions of territory southeast of Punta Playa. At
the bilateral meeting held in Caracas between November 30
and
December 3
th
, 1977, the Guyanese Foreign Minister Wills tried to
encourage Venezuela’s involvement to finance the dam that Guyana
planned to build in Alto Mazaruni, suggesting a number of hypotheses
of rectification of the boundary line.
rd

13

28. Certainly, Guyana would have preferred to keep Article IV of the
Geneva Agreement in suspension for a new period of twelve years.
However, on April 4th, 1981, on the occasion of the visit of the
President of Guyana, Mr. Forbes Burnham, to Caracas, the President of
Venezuela, Mr. Herrera Campins, informed that the suspension period
would not be renewed.

29. Aware of Venezuela’s decision not to extend the suspension of Article
IV of the Geneva Agreement, Guyana initiated an international
campaign to discredit Venezuela in international fora, presenting it as a
rich, large and powerful country that coveted two thirds of a small
newly independent state, on which it waged an economic warfare and
against which it executed a policy of aggression. Venezuelan Foreign
Minister Zambrano Velasco qualified this manoeuvre as “strident and
aggressive”.

30. Moreover, Guyana reaffirmed that the problem with Venezuela was
limited to the Treaty of 1897 and the 1899 Award. A statement by the
Venezuelan national government dated May 2
, 1981 stated that,
according to that explanation of the dispute, it was obvious that Guyana
intended to
nd

“disregard the Geneva Agreement. Refusing to negotiate in
accordance with the agreement involves not only neglecting the
injustice committed against Venezuela, but also refusing to
comply with the international commitments undertaken.”

31. On December 11
, six months before the end of the suspension period
of Article IV of the Geneva Agreement, Venezuela, in accordance with
the provisions of Article V of the Protocol, notified its termination, thus
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14

resuming the application of Article IV of the Agreement on June 18th,
1982. Although the attitude of Guyana did not make it easy, Article IV
was once again reactivated and in force for both parties.

32. Venezuela and Guyana failed to agree on the choice of a means of
settlement and to designate an “appropriate international organ” to
proceed to do it, as provided for in the first subparagraph of Article IV.2
of the Agreement. Venezuela insisted on direct negotiations and Guyana
insisted on submitting it to the International Court of Justice. Later,
Venezuela proposed to entrust the UN Secretary-General with the
choice of the means; Guyana committed it to the General Assembly, the
Security Council or the International Court of Justice.

33. The purpose was to choose an acceptable means to both Parties.
However, in light of the disagreement, Venezuela addressed the matter
to the UN Secretary-General in 1983, as provided for in the first
subparagraph in fine of Article IV.2 of the Geneva Agreement. In 1987,
both Parties finally accepted the procedure of good offices and in 1989,
the person - the good officer- in charge of its implementation.

34. As it can be observed from the dates (1983-1989), the letter of the UN
Secretary-General, Javier Perez de Cuellar, was a laborious one, not
only because of the dilatory policy of Guyana, but also because it
required the consent of both Parties to the means of settlement and the
person implementing them.

35. Between 1990 and 2014, the UN Secretary-General successively
appointed Alister McIntyre (1990-1999), Oliver Jackman (2000-2007)
and Norman Girvan (2010-2014) as Personal Representatives and good
15

officers. In addition, the Parties appointed successive representatives
acting as facilitators, who maintained a regular relation between them
and with the Personal Representatives of the UN Secretary-General.
Foreign Ministers and Presidents of both Republics met with the UN
Secretary-General, particularly during the annual debate of the UN
General Assembly.

36. It is worth highlighting that the designation of the good officers always
took place upon acceptance by both Parties.

I.3. From “The way forward” (2015) to the letter from the UN
Secretary-General on January 30
, 2018

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37. The demise in 2014 of the third and last good officer, Mr. Girvan,
involved the appointment of a new one who may continue his labour,
but Guyana put the matter off despite the invitation of Venezuela. Some
new events strengthened its reluctance to negotiate: i) precisely in May
2015, Mr. David Granger wins the presidential elections, thus
accentuating such reluctance to continue the negotiation through good
offices; ii) Guyana had embarked upon an oil adventure as it began
disposing in a unilateral manner big prospection concessions to
transnational companies in non-delimited maritime spaces which are
projected by the Guayana Esequiba land territory; iii) Guyana reinforces
a victimhood position in an attempt to present Venezuela as an
aggressor that hinders Guyana’s development, thus trying to weaken
Venezuela’s stance. Therefore, Venezuela needed to resort once again to
the Secretary General of the United Nations Organization on July 9
,
2015, requesting him to intercede so that the Parties proceed with the
appointment of a new good officer.
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16

38. The Geneva Agreement kept the issue of territorial sovereignty open
and unsettled and Guyana never felt comfortable with it. For instance,
Cheddi Jagan, who had been Prime Minister of British Guiana during
the 1961-1964 period and many years later, in 1992, became president
of the Republic, had opposed the Agreement, and in his book The West
on Trial: My Fight for Guyana Freedom (Hansib Publications Ltd.,
1966, reprinted in 1997) wrote that with the Agreement: “Recognition
was thus given to the spurious Venezuelan territorial claim, and what
was a closed case since 1899 was re-opened”. This criticism remained
in the minds of Guyanese politicians. The Agreement was a thorn in the
throat, as President David Granger called it in 2015 (Interview in
Guyana Chronicle, August 13
, 2015).

39. Guyana sought to boycott the Geneva Agreement since the very
beginning, and ignored that its independence was recognized by
Venezuela with an express reservation concerning its territorial limits.
Guyana never opted for a serious negotiation based on political means.
Its policy was aimed at gaining time, trying to establish its effective
control of the land territory in dispute and exploiting its resources at the
expense of Article V. The attention paid by Guyana to the procedure
agreed in Geneva was purely formal in the hope that the mere passing of
time would make the situation irreversible.

40. However, in the first years of the current century the detection of
hydrocarbons in the continental shelf of the Guayana Esequiba
increased the risks linked to the uncertainty of the situation as
consequence of the absence of a final settlement of the dispute. This,
combined with the death of the last good officer in 2014, made Guyana
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17

change its mind and take the opportunity to make a leap in the dark with
the financing by Exxon Mobil and other companies interested in the
exploitation of these resources, even if it requires to grant licenses to
operate in disputed areas or, now, the fabrication of an ill-founded
Application.

41. Diplomatic Note 726/2015, of June 8
, 2015, of the Ministry of Foreign
Affairs of Guyana, was symptomatic of the tense atmosphere that
Guyana wanted to create by referring to:
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“the several recent actions initiated by the Government of the
Bolivarian Republic of Venezuela in its attempts to coerce the
Government of Guyana into accepting the spurious Venezuelan
claim for invalidity of the Arbitral Award of 1899 which
definitively settled the land boundary between Guyana and
Venezuela is null and void simply because Venezuela has
unilaterally declared it to be so”

Or denouncing:

“the adventurism of Venezuela’s unilateral and unfounded claim
to Guyana’s territory”

And requesting Venezuela:

“to respect the International Treaty to which Venezuela was a
signatory party and out of which was handed down the Arbitral
Award of 1899 as a full perfect and final settlement of the
boundary between Guyana and Venezuela”.

These statements are a gross disregard and breach of the Geneva
Agreement by Guyana: there is to date no final practical, acceptable and
18

satisfactory settlement of the dispute, as expressly stated in the Geneva
Agreement which object and purpose is precisely to settle the dispute by
finding a practical, acceptable and satisfactory solution to it.

42. The Note of June 8th, 2015 was the continuation of the policy of
successive governments of Guyana to the effect to tighten the situation,
block the negotiation of the settlement of the territorial dispute by
political means (as the good offices were or mediation could be), and to
force the judicial option at which Guyana aimed on the basis of an
interested interpretation that the dispute was reduced to a ruling on the
validity or nullity of the 1899 Award.

43. Since Mr. David Granger became President, Guyana adopted a
particularly radical and hostile attitude towards negotiation, either direct
or assisted by a third party, and considered only a judicial solution. The
Note of June 8
deliberately encouraged a scenario of inchoated
violence directed at the qualification of actions such as the promulgation
by Venezuela of Decree No. 1.787 that created Maritime and Insular
Operative Zones of Integral Defence as a threat to international peace.

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44. Venezuela’s reaction, reflected on the Diplomatic Note of June 9
th
,
avoided escalating the situation invoking the spirit of cooperation and
solidarity in sharp contrast with the manoeuvres of multinational
companies such as Exxon Mobil behind Guyana’s belligerent
approaches.

45. The UN Secretary-General, in addition to consultations in New York
and a personal meeting with the Presidents of Venezuela and Guyana,
sent a technical mission on two occasions to Caracas and Georgetown;
19

as a result, the UN Secretary-General made a document entitled “The
way forward”.

46. Throughout the consultations, Venezuela affirmed and reiterated that:

a) Article IV.2 of the Geneva Agreement clearly established a
successive and progressive course of means of peaceful settlement to
the dispute, which objective is to reach a practical, acceptable, and
satisfactory settlement for both Parties to the territorial dispute arisen
as the result of the Venezuela’s contention that the 1899 Award was
null and void;

b) Good offices should not be regarded as a failure;

c) It was willing to accept, within the successive and progressive
course of means provided for in Article IV.2 of the Geneva Agreement
(“and so on…”), the addition of mediation to the good offices, a
qualitative leap that could enable the mediator to make proposals on its
own initiative, and not only be the thread connecting the proposals of
the Parties;

d) The recourse to the International Court of Justice (and the same
could be said of arbitration) did not seem the appropriate means to
reach a practical, acceptable and satisfactory settlement for both
Parties, as explicitly provided in the Geneva Agreement;

e) In any case, it was contrary to the letter and spirit of this Agreement
and, particularly, of its Article IV.2, to bypass the political means
mentioned in Article 33 of the United Nations Charter, and directly
20

unilaterally impose what should be the last resort once the Parties
mutually agree on the failure of those means.

47. The President of Guyana welcomed the communication issued by
Secretary General Ban Ki-moon of December 15th, 2016 and stated that
on December 22nd, 2016, at a Christmas luncheon with the Guyanese
armed forces (GDF) as follows:

“Last Friday, for the first time in 51 years, the SecretaryGeneral

has decided that that 51-year-old claim by Venezuela
will go to the world court at the end of 2017 if the two countries
Guyana and Venezuela do not agree to make some other
arrangements. Well we have already decided that we have
already waited 51 years too long. It is our territory and we will
go to court to prove that it is our territory and you are there to
back me up aren’t you?", the President said to loud cheers and
shouts of “yes” from the members of the Force”,

As described by a press release reporting the speech published in the
official website of the Ministry of the Presidency of Guyana. One day
earlier, on December 21st, 2016, President Granger had sent a
communication to President Maduro whose thorough reading is
worthwhile. In said communication, he anticipates Guyana’s stance as
he says that “Guyana assures you its commitment to fulfilling the
highest expectations of the Good Office’ process”, as well as “Guyana’s
determination to do all in its power to ensure that the means of
settlement he has chosen will lead to a successful outcome”.

**********
21

48. “The way forward” document is a non-paper issued by the UN
Secretary-General in February 2016. It provided that the UN SecretaryGeneral,

after consulting with the Parties, would appoint a Personal
Representative to be intensively involved in the search for satisfactory
and acceptable solutions, expecting the cooperation of both Parties, in
good faith, through frequent and substantive meetings at the highest and
at working levels. Acting in person or through his Personal
Representative, the UN Secretary-General would make confidential and
non-binding suggestions on any relevant aspect of their bilateral
relation, including maritime and environmental aspects, in order to
assist them in reaching an agreement.

49. As for its schedule, in March/April and in September 2016, the UN
Secretary-General would meet with the Presidents of Venezuela and
Guyana to assess the progress made and to strive for significant
progress toward the settlement of the dispute. The UN SecretaryGeneral

would evaluate the progress made no later than November
2016. The Parties should aim to reach an acceptable mutual agreement
by then. Otherwise, unless the Parties jointly requested the UN
Secretary-General to postpone its decision for a year, the UN SecretaryGeneral,

based on its own assessment, would have the intention to
choose the International Court of Justice as a means of settlement.
Venezuela sent on March 15th, 2016 a communication to the Secretary
General of the United Nations Organization explaining, based on the
Geneva Agreement, the reasons preventing to resort to the judicial way,
as well as various criticisms and observations to the document titled The
Way Forward because it distorted and hindered the purpose of reaching
a practical and mutually satisfactory settlement of the territorial
contention.
22

50. The implementation of the schedule planned by the non-paper of the UN
Secretary-General was delayed by one year (communiqué of the UN
Secretary-General of December 15
, 2016) due to the difficulty to
designate a good officer accepted by both Parties.
th

51. “The way forward” document and its sequitur in the communiqué of the
UN Secretary-General of December 15
, 2016, was subject to numerous
criticisms. First, the one-year period of mediation was too short to reach
an agreement given the complexity of the issue; second, the announced
recourse to judicial settlement which is inadequate and, in any case,
premature, did not conform to the principles of graduality and
progressivity enshrined in Article IV.2 of the Geneva Agreement; and,
third, the terms in which the UN Secretary-General would try to lead the
Parties before the International Court of Justice were ambiguous.
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52. It should be stressed that by enriching good offices with mediation, the
means of settlement was being transformed, moving a step further in the
progressive course provided for in Article IV.2 of the Agreement, being
the period of time of one year insufficient to achieve the objective
pursued, namely the practical, satisfactory and acceptable settlement, for
both Parties, of a dispute as complex and entrenched as that of the
Guayana Esequiba.

53. Influenced by Guyana, and its view that the sole issue under dispute was
the validity or nullity of an arbitral award, the UN Secretary-General
anticipated the intention of choosing the International Justice Court as a
means of settlement. This made previous good offices including the
extremely short period considered for mediation a mere formality,
23

condemned beforehand to failure. Venezuela repeatedly expressed its
disagreement with the provision stating that the extension of good
offices with mediation for one year beyond December 2017 would
depend on a joint request of the Parties.

54. If Guyana’s good faith in cooperating constructively in the search for a
settlement by political means could already be called into question, it
was foreseeable, as confirmed by the facts, that Guyana would reject
any extension of the experimentation of such means, once the UN
Secretary-General anticipated his intention to “choose the International
Justice Court as the means of settlement in order to obtain a final and
obligatory decision on the dispute” in the case that “satisfactory
solutions for the practical settlement of the controversy, acceptable for
both Parties, were not reached before December 2016” (finally
December 2017).

55. The logical course of action, in accordance with the spirit and practice
of the previous application of the Geneva Agreement, was that the UN
Secretary-General would have opened consultations with both Parties
on the choice of the means of settlement if at the end of a reasonable
term, no mutually acceptable agreement had been reached and if the
good offices with mediation did not offer a relative guarantee of
progress. None of these steps were observed.

**********

56. In 2017, Guyana systematically rejected all the proposals made by
Venezuela to advance in a negotiated settlement with the assistance of
the Personal Representative of the UN Secretary-General. The intention
of the UN Secretary-General to refer the dispute to the Court
24

encouraged the passivity of Guyana in the negotiating rounds and its
persistence in the most radical positions requiring Venezuela to
unconditionally accept the totality of its pretentions.

57. Parameters for assessing the extent to which a Party adopts a
constructive attitude in the settlement process of the dispute include: 1)
to abstain from any kind of unilateral initiative which could hinder the
progress of the negotiation/mediation process; 2) to avoid public
statements of its authorities which could have the same outcome; and 3)
to be receptive to the proposals of the other Party and be willing to
make concessions. In the case of Guyana, the principles that should
characterize any negotiation in good faith were conspicuous by their
absence.

58. Under the presidency of Mr. David Granger, Guyana adopted an attitude
of radical hostility to any negotiation. In addition to exclusively betting
on the judicial means, it insisted on: 1) Unilateral initiatives, concerning
not only the land territory under dispute, but also the maritime spaces
which are its projection and, even, that of the Venezuelan Delta
Amacuro; 2) Offensive and discrediting public statements against the
authorities of Venezuela, before the UN General Assembly, the
Legislative Assembly of Guyana and other international instances, as
well as press releases and statements; and, 3) Absolute disdain for the
proposals of Venezuela at Greentree meetings (New York, 2017)
convened by the Personal Representative of the UN Secretary-General,
Mr. Dag Nylander.

59. Guyana seemed more interested, once again, in returning to the alleged
military threat of Venezuela. On September 20
th
, 2017, its President,
25

Mr. David Granger, wanted to call the world’s attention from the
podium of the UN General Assembly, to a regional peace at risk:

“The choice has become one between just and peaceful
settlement in accordance with international law, and a
Venezuelan posture of attrition that is increasingly more
blustering and militaristic … Guyana has been working
assiduously with
the Secretary General’s Personal
Representative. Guyana looks to the international community to
ensure that Venezuela is not allowed to thwart the process of
judicial settlement which are the clear and agreed path to peace
and justice”

With a speech of this nature, what would be expected in the Greentree
meetings?

60. The attitude of Guyana has been characterized by the misrepresentation
of the Venezuelan proposals, the interpretation of its own claims as
being vested with undisputed rights, the deliberate disdain towards the
position of the “other”, the erroneous idea of the negotiation as the
imposition of one’s own points of view, ignoring that the commitment
resulting from any negotiation in good faith requires the Parties to
envisage abandoning their maximalist positions, and the use of a
categorical language to dogmatically delegitimize the adversary. For
Guyana, the only possible agreement was the one that implied the
unconditional acceptance of all its pretentions by Venezuela. Such an
attitude is not compatible with the Geneva Agreement requiring to find
a practical, acceptable and satisfactory settlement to the dispute.

26

61. Guyana’s self-interested interpretation of Article IV.2 of the Geneva
Agreement cannot be accepted. And even if it could be accepted (quod
non) that the political means were exhausted, this would not have
(i) automatically created the legal basis, as required by the Statute of the
Court, to find a basis for jurisdiction, or (ii) transformed the rationale
for the settlement of the dispute as agreed in the Geneva Agreement in
general and its Article IV.2 in particular, as it will be shown in the
second part of this Memorandum.
27

PART II

II.1. Article IV.2 of the Geneva Agreement: text and context

62. The Geneva Agreement raises, for the purpose of assessing the
jurisdiction of the Court, two main issues: (i) the first one concerns, on
the one hand, the scope of the mandate granted to the UN SecretaryGeneral
by
the
Parties
and,
on
the
other,
the
rights
and
obligations
of
the

Parties

arising from the performance by the UN Secretary-General of
the mandate granted; (ii) the second one concerns the subject-matter of
the dispute.

63. In accordance with the general rule of interpretation of Article 31 of the
Vienna Convention on the Law of Treaties of May 23
, 1969, reflecting
customary law, it is well-established that
rd

a) According to paragraph 1 of above-mentioned article, a treaty clause
should be interpreted “in good faith in accordance with the ordinary
meaning to be given to the terms of the treaty in their context and in
the light of its object and purpose”.

b) Paragraph 2 provides that for the purposes of interpretation the
“context” shall comprise, first, “in addition to the text, including its
preamble and annexes”, as well as “...b) any instrument which was
made by one or more parties in connexion with the conclusion of the
treaty and accepted by the other parties as an instrument related to
the treaty”.

28

c) Paragraph 3(b) adds that, together with the context, “any subsequent
practice in the application of the treaty which establishes the
agreement of the parties regarding its interpretation” shall be taken
into account.

64. The travaux préparatoires and the circumstances of conclusion of the
treaty are supplementary means to confirm the meaning resulting from
the application of the general rule of interpretation or to determine it
when the application of the general rule leaves it ambiguous or obscure
or leads to a result which is manifestly absurd or unreasonable, as
provided in Article 32 of the Convention. Some consider these means to
be more than supplementary and are integrated into the operation of the
general rule for fixing the scope of a text.

65. Finally, in treaties, as in the case of the Geneva Agreement,
authenticated in more than one language, the text is equally authoritative
in each language, unless otherwise provided (Article 33 of the
Convention).

**********

66. Applying these rules, the first point to be addressed is the text of the
Geneva Agreement in its context. According to Article IV.2 of the
Geneva Agreement, if the means chosen by the UN Secretary-General
do not lead to a settlement of the dispute, the UN Secretary-General
shall choose

“another of the means stipulated in Article 33 of the Charter of
the United Nations, and so on until the controversy has been
29

resolved or until all the means of peaceful settlement there
contemplated have been exhausted”

67. In his communication of January 30th, 2018, the UN Secretary-General
chose the International Court of Justice as the means of settlement to the
dispute “to be used” between Guyana and Venezuela, once he
considered that the good offices had not produced significant progress.
Guyana relies on this communication to establish the jurisdiction of the
Court as the only basis of its unilateral Application.

68. This claim is futile. First, the UN Secretary-General’s letter does not
conform to the terms of his mandate under Article IV.2 of the Geneva
Agreement and, second, in any case, even accepting, as a hypothesis,
that the UN Secretary-General has correctly exercised the powers
granted to him by the Parties, his choice does not in itself confer
grounds on which to base the jurisdiction of the Court on a matter
unilaterally submitted by one of them.

69. The only legal effect of the UN Secretary-General’s letter, under article
IV.2 of the Geneva Agreement, would be the choice of the International
Court of Justice as a means of settlement succeeding the good offices
with mediation elements referred to in the UN Secretary-General’s
communication of December 15
, 2016. However, neither Article IV.2
nor any other provision of the Geneva Agreement establishes, either
explicitly or implicitly, the basis of jurisdiction of the Court under
Article 36 of its Statute, nor the modalities of action under Article 40; in
particular, in no part of the Agreement, the Parties agreed to accept that
a party can without the consent of the other unilaterally bring the
dispute before the Court.
th
30

70. In other words, the choice of the Court as a means of settlement by the
UN Secretary-General does not give the Court more jurisdiction over
the dispute, let alone authorize a party to initiate proceedings through
unilateral action. For the Court to have jurisdiction, further action is
required, that needs to be "fulfilled in accordance with the provisions of
the Statute" [ICJ, Corfu Channel, ICJ Rep 1948, at 26]. Such course of
action is legally dependent on both Parties’ consent to the jurisdiction of
the Court, to be expressed, and framed, by a special agreement to be
concluded by them.

**********

71. Although judicial settlement (and arbitration) is mentioned in Article 33
of the Charter of the United Nations, together with other peaceful means
of dispute settlement, which begins with negotiation, continues with
inquiry, mediation and conciliation, and ends with recourse to regional
bodies or agreements or other means that the Parties may choose,
Article IV.2 of the Geneva Agreement refers to a successive
experimentation of them, indicative of a certain preferred sequence. In
any case, since the signature of the Geneva Agreement, good offices,
which are not expressly mentioned in Article 33, are the only means that
have been resorted to. In the letter of the Secretary-General of the
United Nations dated December, 15
, 2016, elements of mediation were
to be experimented along with the good offices for some moths of 2017
at Greentree meeting, but such elements did not count neither with the
time nor with the willingness of Guyana to the negotiation.

th
72. In the preamble of the Agreement itself, the Parties declared their
conviction that the application of the Agreement will settle the dispute
31

amicably in a manner acceptable to both parties, and Article I referred
to the search of solutions for the practical settlement of the dispute. This
excludes arbitral and judicial means, which are not expressly mentioned
in any part, unless the Parties consent to them by special agreement. It is
not just a question of settling the dispute, but of doing it by means of a
practical, acceptable and satisfactory settlement agreed by the Parties.

73. This interpretation of the Geneva Agreement is fully consistent with the
recent Judgment of the Court on jurisdiction in Ukraine v. Russia. The
Court expressly decided that the objective to reach “an amicable
solution of the matter”, as contemplated in the treaty at stake in this
case, means that the objective pursued by the Parties to the treaty “is for
the States concerned to reach an agreed settlement of their dispute”, ie
“to settle a dispute by agreement”, by contrast to recourse to
adjudication (see paras 109 and 110 of the Court’s Judgment on
Preliminary Objections, dated 8 November 2019, in Ukraine v. Russia).
The same applies in the present case.

74. In principle, the judicial or arbitral means are not the most appropriate
to reach that practical, acceptable and satisfactory settlement to both
Parties, which is configured as the object and purpose of the Geneva
Agreement. Venezuela, therefore, has sound reasons, based both on the
text of Article IV.2 itself and on the object and purpose of the
Agreement, to insist on continuing entrusting the settlement of the
dispute to a negotiation based on the political means set forth in Article
33 of the Charter of the United Nations. The principles of graduality
and progressivity that must guide the settlement of the territorial dispute
through political means are enshrined in Article IV.2; they are an
32

essential feature of the procedure established in the Agreement. It is
clear that they have not been observed in this case.

75. Guyana affirms that the 28 years of Good Offices, plus the 52 years
since the conclusion of the Geneva Agreement, have not allowed the
dispute to be settled; therefore, it should have recourse to the Court.
Guyana highlights the long period of time but had no interest in
explaining the reasons why the dispute had not been settled yet by good
offices.

76. The absence of a solution to the dispute is due to Guyana’s
unwillingness to cooperate in good faith in the application of good
offices as an assistance means of negotiation of the parties in the search
of a practical, acceptable and satisfactory settlement for both. Guyana
has preferred to ignore the dispute, considering that the course of time
played in favour of a consolidation of the effects of its unilateral
initiatives on a territory that it occupies and controls de facto, and then
to defraud the object and purpose of the Agreement by seeking to
impose a judicial decision on the validity of the 1899 Award. This issue
was not on the negotiating table, where Venezuela always maintained a
political and multi-faceted approach to a dispute over territory that goes
beyond the mere discussion on the validity or legal nullity of the arbitral
award with which Guyana wanted to falsely close the issue sixty years
ago.

77. The good offices began in 1989. Perhaps there have been too many
years of good offices, although not as many as Guyana affirms
considering the several pauses. Not a single year has been devoted to
mediation or experimentation with the other means mentioned in Article
33

33 of the Charter of the United Nations, which would have reflected
better the successive nature that the Parties agreed in Article IV.2 of the
Agreement.

78. The Geneva Agreement does not establish a time limit to achieve that
settlement, and it is that objective, namely the practical, acceptable and
satisfactory settlement, which should guide the choice of the means. The
Agreement only set a time limit for the work of the Mixed Commission.
The choice of the political means assisting the Parties is open-ended and
indefinite as long as the Parties so agree. In fact, good offices are not
expressly set forth in Article 33 of the Charter and are covered by the
generic reference to “other means” of choice. Good offices are not the
only political means of settlement, but only the first and most
elementary of them, the least intrusive in the necessary negotiation
between the Parties.

79. The logical thing to do, within the natural and progressive sequence
provided for in Article IV.2 of the Geneva Agreement, is to resort to
mediation, if good offices are considered exhausted. Establishing a term
to the mediation, as proposed by the UN Secretary-General, may be
considered by the Parties provided that its duration is realistic. As
mentioned above, this was not the case in “the way forward” proposed
by the document of the UN Secretary-General in 2015.

II.2. Article IV.2 of the Geneva Agreement does not constitute a
basis for jurisdiction under the Statute of the Court

80. It is a fundamental principle in the law applicable to the judicial
settlement of disputes between States that no court can exercise
34

jurisdiction without the consent of the Parties, that is, with a clear and
unequivocal manifestation of their willingness to accept such
jurisdiction.

81. In order to have recourse to the International Court of Justice, it is
required to have a specific basis of jurisdiction. The only one that
Guyana invokes is the one that, in its opinion, is granted by the
communication of the Secretary-General of the United Nations of
January 30th, 2018, based, in turn, on a sweeping interpretation of
Article IV.2 of the Geneva Agreement. There are no treaties to which
Venezuela and Guyana are parties that provide a basis for a unilateral
claim, and neither Guyana nor Venezuela has deposited declarations
under the optional clause of Article 36.2 of the Statute. In these specific
circumstances, the only way for Guyana’s unilateral application to be
accepted would require Venezuela to accept the jurisdiction of the Court
over the subject of the claim, as forum prorogatum. Venezuela did not
do it, and it will not do it.

82. Venezuela has not given its consent to the Court’s jurisdiction. This
follows from the correct application of the general rule of interpretation
to the UN Secretary-General’s communication of January 30
, 2018,
communication allegedly made within the framework of the powers
granted to him by the Parties in the last subparagraph of Article IV.2 of
the Geneva Agreement. These documents must be interpreted on their
own merits, in their specific context and circumstances.
th

83. Even if submission of the dispute to a court or tribunal were to be seen
as possible under the Geneva Agreement, it would mean in any case that
there is a need to settle the dispute in accordance with the Geneva
35

Agreement to specify the subject-matter of the dispute and the
parameters to be taken into account beyond mere international law rules.
This would require the conclusion of a special agreement.

**********

84. Venezuela does not exclude arbitral and judicial means as ultima ratio,
once the failure of all political means available have been established by
both Parties along with the UN Secretary-General and his Personal
Representative. On the other hand, shortcuts, as those implied by
Guyana, cannot be accepted, especially when they are not in conformity
with a correctly interpreted Article IV.2 of the Agreement as Venezuela
has demonstrated.

85. Resorting to judicial or arbitral means without prior verification that all
available non-experimented or insufficiently experimented political
means have been exhausted is not only a leap incompatible with the rule
of the Geneva Agreement, but also, due to its very nature, the juridical
means are not the most adequate, as it has been noted above, to satisfy
the object and purpose of the Agreement. That said, an exhaustion of
means in this case does not create basis of jurisdiction.

86. Arbitration or judicial settlement are means in which a third party
decides for the Parties, and not only assists them, in the settlement of
the dispute. Therefore, arbitration or judicial settlement can only ensure
that the dispute is “amicably resolved in a manner acceptable to both
parties” (preamble to the Geneva Agreement), if both Parties accept
those means and negotiate a special agreement spelling out its purpose
and the body or institution entrusted with the mission, the legal basis
36

and equity motivating their decision, as well as other aspects of the
procedure, such as the language or languages used in order to respect
the equality of the Parties. To submit, as Guyana does, that consultation
and acceptance by both Parties is appropriate to embark on a diplomatic
process and then unilaterally abandon them when it comes to a judicial
process cannot be accepted.

**********

87. The UN Secretary-General’s non paper (“The way forward”) provided
in one of its paragraphs that “after the agreement of both parties with
the present proposal, the UN Secretary-General shall issue a detailed
press release on the agreed procedure” (emphasis added).
Consequently, the UN Secretary-General, in accordance with the
previous practice in the implementation of the Agreement, cannot
initiate the “way forward” without the consent of both Parties. Any
choice made by the UN Secretary-General is not sufficient in and by
itself to materialize the recourse to a specific means of settlement.

88. Venezuela gave its consent clarifying that it would not accept a decision
choosing the International Court of Justice as the next means of
settlement.

89. Considering his communication of January 30
, 2018, the UN
Secretary-General incorrectly exercised his powers under Article IV.2
of the Agreement. He disdained the principle of balance of the Parties,
in an unusual alignment with the position of one of them, and ignored
th
37

the practice in the application of the procedure, based not only on
consultation but on acceptance by both Parties.

90. The UN Secretary-General has at no time pronounced himself on the
effects of his letter and has not responded to the objections raised by
Venezuela over these years. For the reasons stated above, it is clear that
his communication can only be taken as a recommendation.

91. Even if the UN Secretary-General’s letter were to be seen as being in
conformity with the Geneva Agreement and/or that the UN SecretaryGeneral
were
to
be
seen
as
having
exercised
his
powers
within
the
limits

set

out in Article IV.2 of the Agreement, the interpretation given by
Guyana of Article IV.2 has no merits.

92. Guyana wants to read into the last subparagraph of Article IV.2 of the
Geneva Agreement a sort of implicit arbitration clause which can be
activated by a decision of the UN Secretary-General whenever he deems
it convenient, allowing one of the Parties, on the basis of that decision,
to infer from it the legal grounds of the jurisdiction of the Court and
unilaterally initiate proceedings before it. This interpretation is clearly
abusive and must be rejected in all its terms.

93. Venezuela considers that Article IV.2 of the Geneva Agreement does
not grant the UN Secretary-General the prerogative intended by
Guyana, regardless of the manner how he has exercised his role.
Choosing the Court as a means of settlement by the UN SecretaryGeneral
cannot
be
conflated
with
the
issue
of
its
jurisdiction.

94. Neither Article IV.2 in fine, nor any other provision of the Agreement
identifies the consent of Venezuela to grant the UN Secretary-General
38

the unprecedented power to decide with a binding nature the possibility
for a unilateral submission of the dispute by Guyana to the International
Court of Justice, nor grant one of the Parties the right to bring a claim,
that is, to lodge a unilateral application. A choice on the means of
settlement to be experimented by the Parties is not in itself sufficient to
grant unconsented jurisdiction to any Court, in the present case the ICJ,
let alone replace it. If Guyana were right, it would mean that the UN
Secretary-General could choose any court and tribunal and that such a
choice would suffice to grant jurisdiction to this court, independently of
the rules governing its jurisdiction. That, of course, cannot be right.

95. The truth is that the UN Secretary-General did not intend to do so in his
communication of January 30
, 2018: “...I have chosen -he says- the
International Court of Justice as the next means to be used” for the
resolution of the dispute. He adds:
th

“if both Governments accepted the proposal for a
complementary good offices process, I believe that such a
process could contribute to the use of the chosen peaceful
means of settlement”.

96. The International Court of Justice is the principal judicial body of the
United Nations. Resorting to it falls within the array of possibilities of
the judicial settlement. However, it would be truly surprising, with
regard to the Application filed by Guyana, that the Court would
consider that Venezuela, by merely signing the Geneva Agreement: 1)
unequivocally expressed its specific consent to the jurisdiction of the
Court (and, in fact, according to Guyana’s interpretation of Article IV.2,
expressed its consent to the jurisdiction to any international or tribunal,
so long as the UN Secretary-General chooses that court or tribunal);
39

and, 2) accepted that the submission of the dispute to the Court could be
made by a unilateral application and not by a special agreement.
Guyana’s interpretation constitutes a redrafting and revision, not an
interpretation, of Article IV.2. This provision does not expressly
mention the Court, does not refer to consent to jurisdiction, and does not
allow for unilateral application to the Court.

97. In the history of the Geneva Agreement application, it is wellestablished
that
Venezuela
has
always
chosen
the
less
intrusive
political

means
of
assistance
to
negotiate.
There
can
be
therefore
no
presumption

of
an
intention
to
consent
to
unilateral
action
against
it.

98.

The judicial settlement cannot be better than arbitration in terms of the
consent of the Parties on which an exercise of jurisdiction can be based.
Should the hypothetical choice of arbitration by the UN SecretaryGeneral

as a means to address the solution to the dispute be deemed
binding on the Parties, the Parties would have to negotiate a special
agreement.

99. In addition, it is worth recalling that in Venezuelan constitutional law
that special agreement, being a treaty that would delegate a decision on
territorial sovereignty to a third party’s decision, would also require a
consultative referendum. Such a referendum did not take place.

100. There is an obvious, very substantial difference between Article IV.2 of
the Geneva Agreement and compromissory clauses agreed to by States
to resort to the Court. The Geneva Agreement, on the other hand, does
not appear in the list as an agreement with compromissory clauses that
the Court itself has been publishing.
40

101. Venezuela’s practice confirms the inadmissibility of such implication,
as the persistent and systematic exclusion of arbitral and judicial
recourse to settle its international disputes has been a traditional feature
of its foreign policy. It is difficult to find Venezuela on the list of
countries that have signed treaties, protocols, or arbitration clauses
submitting controversies to the Court. Venezuela has made reservations
with regard to the clauses of this nature included in multilateral treaties,
it has refrained from being a party to them, as well as from ratifying or
adhering to optional protocols of acceptance of any kind of arbitral or
judicial jurisdiction.

102. All of this confirms that Article IV.2 of the Geneva Agreement does not
constitute and cannot be construed nor interpreted, in and by itself, as a
compromissory clause allowing for a unilateral recourse to the Court.

103. Only a clear and positive acceptance by Venezuela, and not an artful
revision through an apparent interpretation of Article IV.2 of the
Geneva Agreement, could establish the Court’s jurisdiction over
Guyana’s Application. In the absence of any basis for the Court's
jurisdiction in the Geneva Agreement, Guyana’s claim could only be
considered, for the purposes of that jurisdiction, from the perspective of
the forum prorogatum, an invitation for Venezuela to accept such
jurisdiction once the claim has been filed. Only such acceptance by
Venezuela would make the Court’s jurisdiction viable. Once again,
Venezuela reaffirms that it did not, does not, and will not accept the
Court’s jurisdiction in the present case.
41

PART III

III.1. The object of Guyana’s Application does not correspond to
the subject-matter of the dispute under the Geneva
Agreement

104. In relation to the subject-matter of Guyana’s Application, Guyana
claims that its object is the validity or nullity of the 1899 Award (and
the Agreement of 1905). In addition, it has sought to nourish its claim
with a series of submissions allegedly linked to the declaration of
validity requested, which clearly exceed the scope of jurisdiction, which
in any cause is wrongly asserted on the basis unilaterally invoked by
Guyana.

105. Guyana’s interpretation is overstretched and wrong. A careful and bona
fide reading of Article 1 of the Geneva Agreement shows that the
dispute arises “as the result of the Venezuelan claim for invalidity of the
Arbitral Award of 1899...is null and void” (emphasis added). The
dispute has to do with the sovereignty over the territory itself, based on
the Venezuelan claim for invalidity of the Award, which is not as such
the subject of the dispute contemplated by the Geneva Agreement. The
validity or nullity of the Award is not the core of the dispute. Were that
the case, instead of the Geneva Agreement, a different Agreement
would have been entered into containing an arbitration or judicial
clause.

42

106. An award is either valid or null; there is no middle ground, and, under
that strict legal perspective, there would be no room for a practical,
acceptable and satisfactory settlement of the dispute, as required by the
Geneva Agreement. The validity or nullity of an arbitral award is nonnegotiable.

Had the object of the Geneva Agreement be to settle this
issue (which is a strict, legal and justiciable issue), the United Kingdom
and British Guyana would not have, as they did, opposed the mention of
arbitration or judicial means (not to say the Court) in the negotiation
process leading to the conclusion of the Geneva Agreement.

107. Since the signature of the Geneva Agreement, contemporary
Venezuelan actors (such as Carlos Sosa Rodriguez, an active participant
in the negotiation of the Agreement) expressed their conviction that the
solid ground for recourse against of the 1899 Award had led to set aside
the issue of its validity or nullity when discussing the content of the
Agreement to avoid jeopardizing its conclusion as consequence of the
conflicting views of the Parties on the matter.

108. The note of Secretary of State of the Foreign Office, Michael Stewart, to
the British Ambassador to Caracas, Anthony Lincoln, on February 25th,
1966, stated that Venezuela

“tried hard to get the preamble to the Agreement to reflect their
fundamental position: first, that we were discussing the
substantive issue of the frontier and not merely the validity of
the 1899 Award, and secondly, that this had been the basis for
our talks both in London and in Geneva. With some difficulty I
persuaded the Venezuelan Foreign Minister to accept a
commitment wording which reflected the known positions of
both sides.”
43

109. The contention of nullity of the 1899 Award triggered a substantive
negotiation on the means to settle in a practical, acceptable and
satisfactory manner the territorial dispute, and not a procedural
examination of the merits of the contention. The Geneva Agreement
was drafted and adopted on that basis. Without conceding it, the United
Kingdom was well aware of the irregularities of the arbitration
procedure and the resulting Award (which lacked motivation), and
understood that it was necessary to seek a solution through diplomatic
channels. In other words, the Geneva Agreement bypassed the question
of the validity or nullity of the Award. Therefore, identifying the dispute
as concerning the nullity of this Award, as Guyana does, ignores the
spirit, the text, the content and the effects of the Agreement.

110. The core of the Geneva Agreement is the search for “satisfactory
solutions for the practical settlement of the controversy” (emphasis
added). This precision of the object and purpose is the mantra of the
Agreement. The object and purpose of the Agreement was framed in
the same terms under item 2 of the agenda agreed for the London talks
(December 9
, 1965) and reiterated in the agenda of the
Geneva talks (February 16
th
th
and 10
, 1966). To consider that the issue
of the nullity or validity of the Award lies at the heart of the real dispute
under the Geneva Agreement, as Guyana contends, would render the
countless references to a practical, acceptable and satisfactory
settlement pointless and absurd and would deprive them of any legal
effect (effet utile).

th
th
and 17
111. The rationale of the Agreement shows that, given the Venezuelan
contention of nullity of the Award, the Parties had to accept a
44

negotiation assisted by third parties on the territorial dispute in order to
reach a practical, satisfactory and acceptable settlement.

112. The null and void nature of the Award is a Venezuelan contention
which the Parties took note in order to deal with the territorial dispute
deriving from such contention, and to which a satisfactory settlement
for both Parties must be sought in accordance with the procedure
provided in the Geneva Agreement.

113. It is worth recalling that the Venezuelan Minister of Foreign Relations,
Iribarren Borges, was willing to take the real dispute, namely the
territorial dispute, to arbitration or to the International Court of Justice,
not the validity or nullity of the 1899 Award. This explains the BritishGuyanese
reluctance
to
mention
these
means
in
the
Geneva
Agreement

and

their desire for not referring to them explicitly in the articles
regulating them. Therefore, Guyana cannot have it both ways today, i.e.
having a court deciding on the validity or nullity of the 1899 Award.
This claim does not correspond to what was agreed in Geneva in 1966:
the subject-matter of the Geneva Agreement is the territorial dispute, not
the validity or nullity of the 1899 Award; and the Parties decided to
exclude any explicit reference to adjudication in the Agreement.

114. There are a number of lessons that arise from the travaux préparatoires
of the Geneva Agreement:

1) Venezuela wished to reach, as soon as possible, a settlement to the
territorial dispute with the United Kingdom (and Guyana) on the
boundaries with British Guiana;

45

2) It is Venezuela that, in order to reach that settlement, did not rule out,
on the contrary, it proposed, as a last resort, arbitration and judicial
settlement, if a practical settlement could not be reached within a Mixed
Commission or other political means of settlement, such as mediation
(whose duration was intended to be limited to avoid its indefinite
duration);

3) the United Kingdom and Guyana, following a dilatory policy, did not
wish to see arbitration or judicial settlement expressly mentioned in the
Agreement; instead, they preferred a generic reference to the means
provided in Article 33 of the Charter of the United Nations;

4) the attitude of United Kingdom and British Guyana could not be
explained if the matter was to decide on the validity of the 1899 Award;

5) the proposal of the Venezuela’s Foreign Minister, Iribarren Borges, to
consider arbitration or judicial settlement as a last resort was always
concerned with the territorial dispute arising from a contention - the
nullity of the Arbitral Award - which is not on the negotiating table of
the Agreement; and,

6) the Venezuelan Minister understood that arbitration or judicial
settlement did not operate mechanically or unilaterally but were
subjected to an agreement negotiated between the Parties, making equity
a fundamental source of decision, in accordance with an imperative of
substantial justice. The object of the arbitration that Iribarren Borges
proposed as a final settlement becomes even more evident when he
observed: “there may be a solution other than arbitration: they might
agree to make a division of the territory”.

46

115. The reality is that those who now seek to find in Article IV.2 of the
Geneva Agreement an unconditional consent by Venezuela to the
jurisdiction of the Court, rejected at the time any mention, not only of
the Court, but also of arbitration or judicial settlement. They were aware
that resorting to the Court to settle the territorial dispute through the
means envisaged in the Agreement implied the revision of the 1899
Award. Venezuela expressly addressed this matter in London and
Geneva in terms of a historic justice, morality, equitable rectification. In
those negotiations, Venezuela, which is now accused of dilatory tactics,
was then the driving force behind proposals in search of final and
substantive settlement, within a reasonable time.

III.2. The conduct of the Parties in the territory under dispute

116. The narrative of Guyana’s Application seriously disregards the facts and
deliberately omits the many actions implemented by Venezuela in its
favour and in favour of its people within the framework of a policy of
regional integration and solidarity, as stated in Guyana Report to the
World Trade Organization of July 28
, 2015. It is worth mentioning that
under the presidency of Hugo Chavez a policy was adopted not to
impede the implementation of projects by Guyana to the west of the
Essequibo when their action had a positive social impact.
th

117. The accounts of the events that have occurred since the signature of the
Geneva Agreement in 1966 reveals Guyana’s recurrent recourse to
accusations of threats and aggression by Venezuela, before the Security
Council and other international fora, in order to multilateralize the
47

situation and avoid compliance with its obligations under the
Agreement.

118. This policy was particularly perceptible in the early 1980s, when
Guyana reacted with hostility to Venezuela’s decision not to renew the
Protocol of Port of Spain and to block Guyanese projects west of the
Essequibo of great strategic and environmental importance, such as the
Alto Mazaruni hydroelectric dam. A policy further intensified due to the
oil issue when Mr. David Granger became President of Guyana in 2015.

119. President Granger’s speeches in different scenarios (his formal speeches
in the general debate of the UN General Assembly, and in regional and
sub-regional fora), some of which are included in the narrative of
Guyana’s Application, falsely present Venezuela as an aggressor State
against a poor country. It is a historical fact that Venezuela has never
engaged in a war. The facts presented in Guyana’s Application are a
paradigmatic example of what is now called post-truth, the deliberate
distortion of a reality to manipulate beliefs and emotions.

120. Victimhood has been one of the recurrent strategies of Guyana’s
political action, trying to discredit Venezuela with false accusations and
seeking international solidarity, fabricating the accusation that the
Venezuela’s claim was a giant obstacle to the full exercise of its right to
development. The insulting terms used by the Guyanese authorities are
not in line with the policies of solidarity and integration encouraged and
carried out with the sacrifice of domestic policies by Venezuela; in
particular, the bilateral oil supply agreement. There have been no
aggressive actions from Venezuela towards Guyana; on the contrary, it
has contributed to the development of the Guyanese economy,
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promoting a message of Latin American and Caribbean brotherhood and
support for its integration.

121. The small number and trivial nature of the alleged illicit acts that
Guyana attributes to Venezuela demonstrate Guyana’s exaggerations of
the events that, even if happened, lack of entity to support its
accusations. Moreover, these accusations are incorrectly premised on a
territorial sovereignty that not only is disputed but also, even if
admitted, constitute minor incidents in de facto neighbourhood
relations.

**********

122. According to Article V.2 of the Geneva Agreement:

“No acts or activities taking place while this Agreement is in
force shall constitute a basis for asserting, supporting or
denying a claim to territorial sovereignty... or create any rights
of sovereignty...”

123. It is obvious, however, that Guyana’s occupation of the territory
claimed by Venezuela has given rise to Guyanese activities whose real
impact is unquestionable. It is logical that Venezuela has been interested
in obtaining the fullest knowledge of the reality on the ground, both in
terms of demography and infrastructure, exploitation of resources and
conservation of the environment. It would have been desirable to agree
on a mechanism for joint action - or at least consultation - on what is
done and how is done in a territory whose sovereignty is under dispute.
Article V.2 refers to “the territories of Venezuela or British Guiana”.

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124. In relation to the land territory under dispute, Venezuela deems
important the respect and protection of the natural habitat of the
indigenous populations, the conservation of its flora and fauna and a
development characterized by sustainability. Unfortunately, Guyana’s
administration has not followed these policies. It suffices to mention
that Guyana is one of the few States in the world that, as today
(September, 21
, 2019), is not a party to the Convention on Wetlands
(Ramsar Convention, 1971).

st
125. The treatment of indigenous peoples both in the Venezuelan
Constitution and in practice is an example to the world. The indigenous
populations of the Essequibo keep natural links with those of the Delta
Amacuro. Constitutionally, Venezuela is obliged to protect indigenous
peoples and has therefore defined a policy of protection of the ancestral
lands, identity, culture and traditions of these populations and of their
environment, in the face of the threat posed by the intensive exploitation
of their resources by transnational companies that have obtained
concessions from the Guyanese Government, unable to apply adequate
safeguards and controls.

126. The Guayana Esequiba population had to be consulted within the
framework of the decolonization process, especially when there was a
Venezuelan claim pending over that territory. It was not consulted.
Indigenous peoples have raised their voices and asked Venezuela in the
past for greater political participation and legal action to protect their
rights as indigenous cultures. In any case, there is no international norm
that prohibits Venezuela from providing the indigenous population of
the Essequibo with a right of option to the Venezuelan nationality, or
providing them with communal rights over the lands that its legislation
50

recognizes to other indigenous populations, anticipating that they will
become effective on the day when the Guayana Esequiba is recognized
as Venezuelan territory.

**********

127. The Geneva Agreement is the backbone of the means agreed to by the
Parties to reach a practical and reasonable settlement of the territorial
dispute. Its solution is decisive in the attribution of maritime spaces
which are the projection over the coast, in accordance with the wellestablished

principle in international law that “the land dominates the
sea” and, as a logical sequence, in its delimitation with respect to the
maritime areas of the other Party, a matter that goes beyond the scope of
the Agreement. Guyana has been adopting unilateral decisions
involving maritime spaces of territory under dispute. A risky and
destabilizing conduct regardless of its high aspirations over the
Essequibo.

128. A particularly serious expression of its reckless policy has included the
concessions licenses for the exploration and eventual exploitation of
hydrocarbon deposits on large blocks of the continental shelf that
ignored Venezuela’s neighbourhood. The delimitation of some of these
blocks and the exploration licenses granted by Guyana are located in
areas that are the immediate projection of the Delta Amacuro. These
areas, independently of the attribution of sovereignty over the Guayana
Esequiba, penetrates Venezuelan spaces. Not only does Guyana ignore
the maritime dimension of the territorial dispute, but also seeks to
unilaterally deny Venezuela its Atlantic condition. This series of
unilateral actions by Guyana is incompatible with the provisions of the
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Manila Declaration (res. 37/10 of November 15th, 1982, Article 5) and
with the Principles and Guidelines for International Negotiations
adopted by the UN General Assembly (res. 53/101, Article 2.e), which
reflect general rules of international law.

129. For its part, Venezuela has proceeded with caution. Logically, Guyana’s
behaviour has been subject to a diplomatic protest time and time again.
Venezuela has also addressed the corresponding warning letters to the
licensee companies. These protests began in 1965, even before Guyana
became a sovereign State, over the concessions made by the United
Kingdom in the waters of the Essequibo coastal front. They were
reiterated in the last decade of the twentieth century and have multiplied
in the present century with only one exception. In 2017 Guyanese
concessions and exploration activities spiked, however, this time
Venezuela refrained from protesting so as not to disrupt the
experimentation of the formula proposed by the UN Secretary-General
combining for the first time good offices with mediation elements.

130. In some cases, Venezuelan naval units have approached platforms or
exploration ships to verify that they were operating under a Guyanese
license and to inform them that those waters were Venezuelan or under
dispute, and they could be sanctioned. There was even an arrest in 2013.
This is what Guyana impertinently portrays and denounces as being
hostile, interfering and even aggressive acts by Venezuela.

131. There have been no major incidents other than the exchange of
diplomatic notes and statements from one Party to the other. However,
it should be noted that the blocks opened by Guyana for oil exploration
and exploitation have an aggressive nature, as they are not limited to the
52

maritime projection of the Essequibo coast, but penetrate the maritime
projection of the Delta del Orinoco, disturbing the Atlantic condition of
Venezuela. The profile of the blocks is even more dangerous as licenses
and exploration activities move westwards. Once those activities have
been successful and plans are adopted for immediate extractive
operations, the result is a perfect storm. The geopolitical interest of the
United States in dominating these spaces, coupled with the economic
interest of its large energy consortia - the first of them, Exxon Mobil -
and Guyana’s interest in laying its own development on the foundations
of this resource operates at unison.

132. Unlike Venezuela, Guyana is a party to the United Nations Convention
on the Law of the Sea (UNCLOS) and, therefore, it should know that, in
case of pending delimitation of maritime areas, what is needed is to
reach provisional practical arrangements that, without prejudging the
final delimitation, favours a climate of understanding and cooperation.
Equidistance does not appear in any part of the UNCLOS, or in the
general norms of international law, as a rule of subsidiary or transitory
application, in absence of agreement. Equidistance application is even
less clear when there are detrimental effects to one of the parties
involved in the delimitation.

133. If Venezuela were to act as Guyana does, in complete disdain of the
disputed nature of the territory west of the Essequibo River, it would
have to draw a provisional line from the median of the mouth of the
river.

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CONCLUSION

134. Guyana, which rejected the mere mention of arbitration and judicial
settlement in the Geneva Agreement, has become a defender of
(unilateral) recourse to the International Court of Justice, manipulating
its spirit and object. Should the Court assert its jurisdiction over
Guyana’s claims, then the Geneva Agreement will be terminated
without having satisfied the ultimate purpose that motivated its
conclusion, namely, a practical, acceptable and satisfactory settlement
of the territorial dispute. Deciding on the validity of the 1899 Award
will not serve this purpose. On the contrary, it will make its settlement
more difficult.

135. Besides, it will involve the Court in a breach of the Geneva Agreement.
In addition, it would, in any event, entail that the Court cannot settle the
dispute under the terms of the Geneva Agreement, since the Court is not
in a position, as a Court and on the sole basis of Guyana’s Application,
to reach a practical, acceptable and satisfactory solution to the dispute.
As a result, any judgment of the Court on the merits of Guyana’s
Application (whatever its legal conclusions) would not settle the dispute
as contemplated in the Geneva Agreement.

136. If Venezuela were now to insist on the responsibility of the United
Kingdom for its colonial and imperialist policy, under which it
organized the fraudulent so-called arbitration, Venezuela, which
actually holds the status of ‘victim’ that Guyana claims today for itself disregarding

history and eluding the commitment to an amicable
54

negotiation with which it was born because it was undertaken before
rising as an independent republic in 1966-, would have to be treated as
such victim by Guyana. But Guyana has preferred to back British
imperialism with the Arbitral Award which motivated the Venezuelan
contention about its nullity and voidance in the Geneva Agreement.
With the Arbitral Award, the United Kingdom sought the plundering of
Venezuela over the territory of Guayana Esequiba, and its heir, Guyana,
is well aware of that.

137. If Venezuela were now to insist on the responsibility of the United
Kingdom for its colonial and imperialist policy, under which it
organized the fraudulent so-called arbitration, Venezuela, which
actually holds the status of ‘victim’ that Guyana claims today for itself disregarding

history and eluding the commitment to an amicable
negotiation with which it was born because it was undertaken before
rising as an independent republic in 1966-, would have to be treated as
such victim by Guyana. But Guyana has preferred to back British
imperialism with the Arbitral Award which motivated the Venezuelan
contention about its nullity and voidance in the Geneva Agreement.
With the Arbitral Award, the United Kingdom sought the plundering of
Venezuela over the territory of Guayana Esequiba, and its heir, Guyana,
is well aware of that.

138. Venezuela is not going to resort to force, not only because it is
prohibited by international law but also because of its own regional
policy of peace, integration, and solidarity. Venezuela once again
invites Guyana to the negotiating table in the fraternal and supportive
spirit that has always animated its policy of good neighbourliness and
integration. The treatment of the dispute by Venezuela will always be in
55

accordance with the principles of the UN Charter and the maintenance
of peace.

56