Memorial of Guyana on the merits

INTERNATIONAL COURT OF JUSTICE
CASE CONCERNING
ARBITRAL AWARD OF 3 OCTOBER 1899
CO-OPERATIVE REPUBLIC OF GUYANA
v.
BOLIVARIAN REPUBLIC OF VENEZUELA
GUYANA’S MEMORIAL ON THE MERITS
VOLUME I
8 March 2022

i
Table of Contents
Chapter 1 Introduction ............................................................................................ 1
I. Reasons for the Institution of Proceedings against Venezuela ...............2
The Scope of the Dispute .......................................................................8
Structure of this Memorial .................................................................10
Chapter 2 Guyana and the Essequibo Region ....................................................... 19
Geographical and Ecological Features ..................................................19
Natural Resources and Economic Activity ..........................................27
Human Settlement ..............................................................................28
Governance ........................................................................................37
Chapter 3 The Boundary Dispute between Great Britain and Venezuela and
the Parties’ Agreement to Settle It by International Arbitration ... 41
I. The Boundary Dispute between Great Britain and Venezuela .............41
II. The Intervention of the United States ..................................................49
III. The Terms of the Agreement to Arbitrate ..........................................59
IV. The Arbitral Proceedings and the Tribunal’s Award .........................66
Chapter 4 Venezuela’s Acceptance of the Arbitral Award ................................... 79
Venezuela’s Acceptance of the Arbitral Award ...................................80
The Joint Boundary Commission, the Demarcation of the Boundary
and the 1905 Agreement ................................................................83
Venezuela’s Strict Adherence to the 1899 Award and 1905
Agreement and Refusal to Accept any Modifications to the
Boundary with British Guiana .......................................................96
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Venezuela’s Demarcation of its Boundary with Brazil and the Tri-
Junction Point with Brazil and British Guiana in Strict Conformity
with the 1899 Award and 1905 Agreement .................................103
Venezuela’s Declaration that the Boundary with British Guiana Was
Chose Jugée, and its Repeated Official Statements Reaffirming the
Legal Validity of the 1899 Award and the 1905 Agreement .......117
Chapter 5 Venezuela’s Repudiation of the 1899 Award .................................... 131
Venezuela’s Change of Position on the Arbitral Award .....................131
The Examination of Archival Documents and the Conclusion of the
Geneva Agreement.......................................................................140
Chapter 6 The 1899 Award Was Intended to Be Final and Binding, and Is
Entitled to a Presumption of Validity ......................................... 147
The 1899 Award Is Final and Binding ................................................147
A. Arbitral Awards Are Final and Binding as a Matter of
Law ..................................................................................147
B. The 1899 Award Was Intended to Be Final and Binding 153
C. The Award Continued to Be Final and Binding Following
the Geneva Agreement .....................................................158
The 1899 Award Enjoys a Presumption of Legal Validity ................161
A. Arbitral Awards Benefit from a Presumption of
Validity ............................................................................162
B. The Burden and Standard of Proof of Alleged Invalidity 164
C. The Applicable Law on the Invalidity of Awards and the
Existing Grounds of Invalidity in 1899 ...........................168
Chapter 7 The Compromis Was Validly Concluded and the Tribunal Was
Properly Constituted ................................................................... 173
No Error, No Fraud, No Corruption ....................................................174
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A. Conditions for Invalidating a Treaty on the Grounds of
Error, Fraud or Corruption ...............................................175
B. The Special Agreement Was Concluded by Venezuela with
Full Knowledge of all the Relevant Facts ........................183
C. Venezuela’s Knowledge and Approval of the Composition
of the Tribunal..................................................................193
No Coercion or Duress ......................................................................199
A. The Notion of Coercion in an Intertemporal Perspective
and in its Relationship with Treaty Law ..........................200
B. To the Extent that Pressure Can Be Said to Have Existed, It
Was Exerted on Great Britain ..........................................203
C. The Alleged Pressures on Venezuela Are Not Such as to
Invalidate the Treaty ........................................................212
Chapter 8 The Arbitral Tribunal Properly Exercised its Functions and
Produced a Legally Valid Award ................................................ 217
I. The Arbitral Tribunal Fulfilled the Functions Conferred upon It under
the Treaty and Neither Exceeded its Authority nor Committed
Error .............................................................................................217
A. The Written and Oral Proceedings before the Arbitral
Tribunal Were Conducted in Conformity with the
Treaty ...............................................................................217
B. The Award Complied with the Formal Requirements
Contained in the Treaty ....................................................221
C. The Award Demonstrates that the Arbitral Tribunal
Fulfilled its Functions and Did Not Exceed its Powers ...222
II. Venezuela’s Allegations of Corruption, Collusion and Nullity .........225
A. The Mallet-Prevost Memorandum ...................................225
iv
B. Report by Venezuelan Experts to the National Government
of Venezuela (1965) .........................................................231
III. Response to Venezuela’s Allegations of Nullity ..............................232
A. The Absence of Reasons in the Award Does Not Render
the Award a Nullity ..........................................................232
B. The Arbitrators Did Not Fail to Take into Account
Applicable Principles of Law or Fail to Investigate and
Ascertain the Extent of the Territories Belonging to the
Netherlands and Spain at the Date of Great Britain’s
“Acquisition” ...................................................................238
C. The Arbitrators Did Not Fail to Comply with the
Requirements in the Treaty Concerning the Calculation and
Application of the 50-Year Prescription Rule .................243
D. The Arbitral Tribunal Did Not Exceed its Powers by
Determining the Free Navigation of the Barima and
Amakura Rivers ...............................................................245
E. Venezuela’s Allegation that Great Britain Submitted
Doctored Maps to the Arbitral Tribunal and that these
Maps Were of “Decisive Importance” .............................247
F. Venezuela’s Allegation that the Award Is a Nullity Because
It Was the Product of Coercion and a “Political
Compromise” or “Political Deal” ....................................253
Chapter 9 The Legal Consequences of Venezuela’s Prolonged Acceptance of
the Award and the Boundary ...................................................... 273
The Legal Effect of the Prolonged Acceptance of the Award on the
Award Itself and on the Right of Venezuela to Raise a Nullity
Claim ............................................................................................276
The Legal Effect of the Prolonged Acceptance of the Outcome of the
Award on the Delimitation It Effectuated ....................................284
SUBMISSIONS .................................................................................................. 287
1
CHAPTER 1
INTRODUCTION
1.1 The Co-operative Republic of Guyana (“Guyana”) instituted these
proceedings against the Bolivarian Republic of Venezuela (“Venezuela”) by
Application dated 29 March 2018. In its Application, Guyana asked the Court to
resolve the controversy that has arisen as a result of Venezuela’s contention,
formally asserted for the first time in 1962, that the 1899 Arbitral Award Regarding
the Boundary between the Colony of British Guiana and the United States of
Venezuela (the “1899 Award” or the “Award”) is “null and void”.
1.2 In regard to jurisdiction, Guyana invoked the 30 January 2018 decision of
the United Nations Secretary-General, António Guterres, to select the Court as the
means of settlement for the controversy. The Secretary-General acted pursuant to
the authority conferred upon him by the agreement of the Parties reflected in Article
IV, paragraph 2, of 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”, signed at Geneva on 17 February
1966 (the “Geneva Agreement”).
1.3 By an order dated 19 June 2018, the Court decided that the question of its
jurisdiction would be determined separately prior to any proceedings on the merits.
In accordance with the timetable set by the Court, on 19 November 2018, Guyana
filed its Memorial on Jurisdiction. By a letter dated 12 April 2019, Venezuela
indicated that it had decided “not to participate in the written procedure”.
Nevertheless, it later submitted a detailed document entitled “Memorandum of the
Bolivarian Republic of Venezuela on the Application filed before the International
Court of Justice by the Co-operative Republic of Guyana on March 29th, 2018”,
2
together with a 155-page “Annex” containing various arguments regarding the
controversy and the Court’s jurisdiction in respect of Guyana’s Application.
1.4 On 30 June 2020, the Court held a public hearing on the question of its
jurisdiction. Venezuela did not participate. By its Judgment dated 18 December
2020, the Court held that it has jurisdiction in respect of Guyana’s Application.1
The scope of that jurisdiction is addressed further in Section II below.
1.5 By an Order dated 8 March 2021, the Court fixed the deadline for the filing
of Guyana’s Memorial on the Merits as 8 March 2022 and the deadline for
Venezuela’s Counter-Memorial on the Merits as 8 March 2023. Guyana submits
this Memorial in accordance with that Order.
I. Reasons for the Institution of Proceedings against Venezuela
1.6 Guyana is a developing country in the northeast mainland of South
America. It is the third smallest (by geographic area) and second smallest (by
population) of the twelve South American States. It is also one of the youngest,
having attained independence on 26 May 1966, following several centuries of
colonial rule by the Dutch (from the early seventeenth century until the early
nineteenth century) and then the British (from then until the attainment of
independence some 162 years later).
1 Arbitral Award of 3 October 1899 (Guyana v. Venezuela), Jurisdiction of the Court, Judgment,
I.C.J. Reports 2020 (hereinafter “Jurisdiction Judgment”), p. 455.
3
1.7 Guyana’s neighbour to the west, Venezuela, is more than four times larger
by territory and has a population more than thirty-five times greater than that of
Guyana. Venezuela is endowed with abundant natural resources (which are
reported to include the largest proven oil reserves of any country in the world).2
1.8 In the second half of the nineteenth century, a dispute regarding the location
of the boundary between Venezuela and the then-British colony of British Guiana
arose. The United States took Venezuela’s side in the dispute, based on its “Monroe
Doctrine”, by which it opposed territorial claims by European colonial powers in
the Americas. Tensions rose to such a level that the United States even threatened
war against Britain, but diplomacy prevailed. Facilitated by the United States, in
1897, Venezuela and Great Britain concluded an agreement — the Treaty of
Washington — by which they agreed to submit the dispute regarding the location
of the boundary to binding arbitration (“the 1899 Arbitration” or “the Arbitration”)
before a tribunal of eminent jurists, including the heads of the judiciary of the
United States and Great Britain (“the Arbitrators”, “the Arbitral Tribunal” or “the
Tribunal”).
1.9 On 3 October 1899, the Arbitral Tribunal delivered its Award, which
determined the boundary between Venezuela and British Guiana (“the 1899
Award”). The 1899 Award was the culmination of arbitral proceedings during
which the respective territorial claims of Great Britain and Venezuela were
addressed at great length and in detail by distinguished legal counsel representing
the two States, including through many thousands of pages of written submissions
2 People’s Power Ministry of Petroleum (“PDVSA”), “Exploration and Production”, available at
http://www.pdvsa.com/index.php?option=com_content&view=article&id=6545&…
g=en (last accessed 22 Feb. 2022).
4
and more than 200 hours of oral hearings before the Arbitral Tribunal. Under the
terms of the Treaty of Washington, Great Britain and Venezuela agreed that they
would “consider the result of the proceedings of the Tribunal of Arbitration as a
full, perfect, and final settlement” of all matters referred to the Tribunal.
1.10 For more than six decades after the 1899 Award was delivered, Venezuela
treated the Award as a final settlement of the matter: it consistently recognised,
affirmed and relied upon the 1899 Award as “a full, perfect, and final”
determination of the boundary with British Guiana. In particular, between 1900 and
1905, Venezuela participated in a joint demarcation of the boundary, in strict
adherence to the letter of the 1899 Award, and emphatically refused to countenance
even minor technical modifications of the boundary line described in the Award.
Venezuela proceeded to formally ratify the demarcated boundary in its domestic
law and thereafter published official maps, which depicted the boundary following
the line described in the 1899 Award. In July 1928, Venezuela concluded a
boundary agreement with Brazil that expressly confirmed the tri-junction point of
the boundaries of British Guiana, Venezuela and Brazil as described in the 1899
Award. For more than sixty years, Venezuela gave full effect to that Award, and
never raised a concern as to its validity and binding legal effects.
1.11 As British Guiana’s independence came into view in the early 1960s,
however, Venezuela abruptly and drastically changed tack. After more than half a
century of recognition, affirmation and reliance, Venezuela sought to repudiate the
1899 Award for the first time. On the basis of that departure from its longstanding
recognition of the Award, Venezuela began to make far-reaching and aggressive
claims that it was entitled to three-quarters of Guyana’s sovereign territory. In the
decades since Guyana attained independence, Venezuela has continued to advance
5
those claims, with increasing menace, and in disregard of the impact of its claims
on Guyana and the wider region.
1.12 Venezuela’s words have been reinforced by aggressive actions, including
unlawful occupation of Guyana’s sovereign territory, interception of vessels in
Guyana’s territorial waters, and various other actions designed to interfere with and
prevent economic development activities authorised by Guyana in its territory west
of the Essequibo River. Venezuela’s claims and conduct have had — and continue
to have — a profoundly detrimental effect on Guyana. Since its emergence as a
sovereign State in 1966, Guyana’s stability and development have been unsettled
by Venezuela’s repudiation of the 1899 Award and by its aggressive claims to
three-quarters of Guyana’s sovereign territory. These actions on Venezuela’s part
have impeded foreign investment in Guyana and cast a long and anxious shadow
over the security of Guyana’s territory, economy and people.
1.13 Venezuela’s contention of nullity on the eve of Guyana’s independence set
in train a protracted process during which Venezuela was given every opportunity
to explain, investigate and substantiate the allegations underlying its new
contention, including by appointing a panel of experts to review previously
confidential archival materials relating to the 1899 Arbitration. Despite this
extensive investigation, Venezuela was unable to produce any documentary
evidence to support its contention that the Arbitral Tribunal or any of its members
acted improperly in carrying out their mission to determine the boundary between
Venezuela and British Guiana. Nevertheless, Venezuela persisted in its claim that
the Award was null and void due to such alleged impropriety.
1.14 As mentioned, on 17 February 1966, the Governments of the United
Kingdom, Venezuela and British Guiana concluded the Geneva Agreement. This
6
was intended to establish a binding and effective mechanism for achieving a
permanent resolution of the controversy arising from Venezuela’s repudiation of
the 1899 Award. Under the auspices of the Geneva Agreement, a Mixed
Commission was established for the purpose of “seeking satisfactory solutions for
the practical settlement of the controversy” arising from Venezuela’s contention of
nullity. The Mixed Commission held numerous meetings during its four-year term
between 1966 and 1970 but was unable to make any progress towards the
settlement of the controversy. Following a twelve-year moratorium between 1970
and 1982 and a seven-year period of consultations on a means of settlement
between 1983 and 1990, the Parties then engaged in a twenty-seven-year Good
Offices Process, under the authority of the United Nations Secretary-General,
between 1990 and 2017, including a one-year Enhanced Mediation Process. Once
again, this process yielded no significant progress towards the resolution of the
controversy.
1.15 Venezuela has been afforded ample time and opportunity to explain and
substantiate its contentions of nullity under the various procedures established
under the Geneva Agreement in the six decades since it first formally sought to
question the validity of the 1899 Award. Nevertheless, it has adduced no evidence
that is remotely capable of substantiating its claims that the Award was the product
of coercion, collusion, fraud or some other nullifying factor. On the contrary, the
evidence overwhelmingly confirms what Venezuela itself accepted for more than
half a century: namely, that the 1899 Award was a lawful, conclusive and binding
delimitation of the Parties’ boundary.
1.16 Guyana’s case before the Court is both legally and factually
straightforward. It is founded upon two basic and fundamental principles of
international law that underpin the orderly relations of States, namely, pacta sunt
7
servanda and the binding character of international arbitral awards. The case
involves the application of those axiomatic precepts to a factual record which is
clear, consistent and irrefutable. The relevant legal principles and facts point to
only one conclusion: the 1899 Award is valid and binding, and the Parties’
boundary follows the line described therein.
1.17 As the principal judicial organ of the United Nations, the Court will be fully
aware of the harm that can ensue when States choose to disregard binding treaties
and arbitral awards. Those deleterious consequences are particularly stark in a case
involving the location of a longstanding international boundary, and where the
repudiation is asserted in aid of aggressive and expansionist claims by a larger State
in respect of the territory of a much smaller one.
1.18 Venezuela’s rejection of the 1899 Award undermines the basic norms of
international law, respect for which is fundamental to maintaining international
peace, security and stability. Venezuela’s disregard for its international legal
obligations is an acute threat to Guyana. It impedes Guyana’s development and
imperils the security of the entire region by undermining the sanctity of
longstanding and voluntarily executed arbitral awards and boundary agreements.
So long as Venezuela continues to advance its unfounded claims to vast swathes of
Guyana’s sovereign territory, Guyana will be unable to fulfil its full potential as an
independent sovereign State.
1.19 The decision of the Secretary-General of the United Nations to select the
Court as the means of settlement of the controversy reflects this stark reality and
the need for an authoritative, independent and binding affirmation of the Parties’
rights and obligations under the 1899 Award.
8
1.20 Since attaining independence in 1966, Guyana has consistently treated the
international rule of law as the bedrock of its relations with its neighbours. As it
explained at the jurisdictional phase of the proceedings, Guyana has brought its
Application with the firm conviction that adherence to international agreements,
respect for international judicial and arbitral awards and the inviolability of
established territorial boundaries are crucial to maintaining amity between
sovereign States. Guyana files this Memorial in accordance with that conviction
and in the confident expectation that the Court will determine its Application
independently, fairly and in accordance with international law.
The Scope of the Dispute
1.21 By its Judgment dated 18 December 2020, the Court held that it has
jurisdiction “in so far as it concerns the validity of the Arbitral Award of 3 October
1899 and the related question of the definitive settlement of the land boundary
dispute between the Co-operative Republic of Guyana and the Bolivarian Republic
of Venezuela”. The Court concluded that it “does not have jurisdiction to entertain
the claims of the Co-operative Republic of Guyana arising from events that
occurred after the signature of the Geneva Agreement” on 17 February 1966.3
1.22 In reaching these conclusions as to the scope of its jurisdiction, the Court
observed that “the subject-matter of the controversy which the parties agreed to
settle under the Geneva Agreement relates to the validity of the 1899 Award and
its implications for the land boundary between Guyana and Venezuela”.4 The Court
added that “the object and purpose of the Geneva Agreement … was to ensure a
3 Jurisdiction Judgment, p. 455, para. 138.
4 Ibid., para. 129.
9
definitive resolution of the dispute between Venezuela and the United Kingdom
over the frontier between Venezuela and British Guiana”.5 In this regard, the Court
observed that, “it would not be possible to resolve definitively the boundary dispute
between the Parties without first deciding on the validity of the 1899 Award about
the frontier between British Guiana and Venezuela”.6
1.23 The Court therefore concluded that it has jurisdiction ratione materiae with
respect to both “Guyana’s claims concerning the validity of the 1899 Award about
the frontier between British Guiana and Venezuela and the related question of the
definitive settlement of the land boundary dispute between Guyana and
Venezuela”.7 At paragraph 137 of its Judgment, the Court reiterated its conclusion
that it has jurisdiction ratione materiae in respect of:
“Guyana’s claims concerning the validity of the 1899 Award about
the frontier between British Guiana and Venezuela and the related
question of the definitive settlement of the land boundary dispute
between the territories of the Parties.”8
1.24 Accordingly, given the Court’s conclusions as to the scope of its
jurisdiction ratione materiae and ratione temporis, Guyana’s Memorial addresses
the validity of the 1899 Award and the related question of the definitive settlement
of the land boundary dispute between Guyana and Venezuela. In so doing, and in
5 Ibid., para. 129.
6 Ibid., para. 130.
7 Ibid., para. 135.
8 Ibid., para. 137 (emphasis added).
10
keeping with the decision of the Court in its Judgment on Jurisdiction, Guyana does
not address any claims arising from events that occurred after 17 February 1966.
Structure of this Memorial
1.25 Guyana’s Memorial on the Merits consists of four volumes. Volume I
contains the main text of the Memorial. Volumes II — IV contain supporting
documents.
1.26 Volume I consists of nine Chapters, followed by Guyana’s Submissions.
After this Introduction, the following four Chapters address the factual aspects of
this dispute. The final four Chapters then address the relevant legal principles and
their application to the facts and circumstances of the case.
1.27 Chapter 2 provides a description of Guyana’s geography and, in particular,
the land territory between the Essequibo River and the boundary with Venezuela
established by the 1899 Award. It sets out the principal geographic and ecological
features of that territory — which include some of the most pristine and
ecologically diverse rainforests in the world — as well as its economic importance
to the country, its settlement by the Dutch, who occupied and administered the
territory between the Essequibo and Orinoco Rivers until the early nineteenth
century, when they were supplanted by the British, and the governance of the
territory by Guyana since it achieved independence in 1966.
1.28 The three Chapters that follow then describe the historical background to
the controversy concerning the validity and effect of the 1899 Award. Chapter 3
recounts the origin of the dispute over the boundary between British Guiana and
Venezuela in the middle of the nineteenth Century, and then describes how,
11
following the intercession of the United States, Great Britain and Venezuela agreed
in the 1897 Treaty of Washington to settle the dispute by international arbitration.
The Chapter describes the Treaty’s provisions, which called for the establishment
of an Arbitral Tribunal comprising five eminent jurists, including two “on the part
of Great Britain … two on the part of Venezuela” and a fifth to be selected by the
other four;9 and its stipulation that the Tribunal determine the legal status of the
disputed territory as at the date when Great Britain acquired the colonial
possessions of the Dutch, and that it ascertain what territory could have been
lawfully claimed by the Dutch and Spanish, respectively, at that time. As explained
in Chapter 3, the Treaty contained detailed and prescriptive provisions concerning
the constitution of the Arbitral Tribunal, the process to be followed during the
proceedings and the form and content of the final Award. It also prescribed various
“Rules”, which the Arbitral Tribunal was required to apply in deciding the location
of the boundary. The Chapter describes the written and oral phases of the 1899
Arbitration, during which the respective territorial claims of the two States were
addressed in great detail. Following the hearings, the Tribunal engaged in several
days of intensive deliberations and handed down a unanimous decision on the
location of the boundary, as detailed in this Chapter.
1.29 Chapter 4 addresses Venezuela’s prolonged acceptance of, and
acquiescence in, the boundary as determined by the 1899 Award. It begins by
describing Venezuela’s immediate approbation and acceptance of the Award,
which it hailed as an emphatic “victory” for Venezuela and a costly defeat for Great
Britain. The Chapter then explains how, between 1900 and 1905, Venezuela
9 Treaty between Great Britain and the United States of Venezuela Respecting the Settlement of the
Boundary Between the Colony of British Guiana and the United States of Venezuela, 5 U.K.T.S.
67 (2 Feb. 1897). AG, Annex 1.
12
participated in a laborious and meticulous joint demarcation of the entire 825-
kilometre boundary in strict accordance with the description contained in the 1899
Award, culminating in a formal agreement on the boundary signed by the
representatives of the two States. In the decades that followed, Venezuela
participated in the maintenance and replacement of boundary markers and
published numerous official maps, which depicted the boundary following the line
demarcated by the Joint Boundary Commission in accordance with the 1899
Award. Venezuela repeatedly and consistently insisted that all boundary markers
must be placed in strict conformity with the precise letter of the 1899 Award, and
it refused to assent to any deviation — no matter how technical or minor — from
the line described in the Award. During this period, Venezuela consistently
regarded the boundary, in the words of its Ministry of Foreign Affairs, as a “frontier
du droit” and a “chose jugée”.10
1.30 Chapter 5 describes how, following more than 60 years of acceptance and
affirmation of the 1899 Award and acquiescence in the boundary established and
described therein, in February 1962 Venezuela seized upon the advent of Guyana’s
independence with intimations of “Cold War” considerations to contrive an
unfounded and meritless claim that the 1899 Award was null and void. The radical
nature of that volte-face is reflected by the fact that, less than a month earlier,
Venezuela had told the United States Government that it did not question the
legality of the 1899 Award.
10 See Letter from the Venezuelan Minister for Foreign Affairs, P. Itriago Chacín, to W. O’Reilly
(31 Oct. 1931). MMG, Vol. III, Annex 53; Letter from the Venezuelan Foreign Minister, E. Gil
Borges, to British Ambassador to Venezuela, D. Gainer (15 Apr. 1941). MMG, Vol. III, Annex 56.
13
1.31 The reversal in Venezuela’s position was purportedly based on a single
document, a memorandum written in obscure circumstances in 1944 by one of
Venezuela’s legal counsel in the 1899 Arbitration, Mr Severo Mallet-Prevost. The
memorandum, the original of which has never been made available, was allegedly
reproduced and published posthumously in 1949 — some fifty years after the
events which it purported to describe and some thirteen years before Venezuela
first repudiated the 1899 Award. The memorandum consisted of a mixture of Mr
Mallet-Prevost’s purported recollections of events half a century earlier (many of
which were demonstrably false) together with unsubstantiated speculations about
the existence of a secret Anglo-Russian “deal” regarding the outcome of the 1899
Arbitration.
1.32 The Chapter goes on to describe how, in an effort to dispel any doubts
regarding the validity of the 1899 Award and avoid any impediment to the orderly
progress towards British Guiana’s independence, the British Government offered
to participate with Venezuela in an examination of documentary material regarding
the 1899 Arbitration. Following Venezuela’s acceptance of this offer, experts
appointed by Venezuela and Great Britain examined documents at the official
archives in Caracas and London. Those examinations did not yield any documents
that supported Venezuela’s contention of nullity. Nor did the four-year proceedings
before the Mixed Commission, established by the Geneva Agreement, between
1966 and 1970, turn up any material to support the allegations of coercion,
corruption and a secret Anglo-Russian “deal”. Nor in the five decades since then
has Venezuela produced any credible evidence whatsoever in support of its
contention of nullity.
14
1.33 The final four Chapters of the Memorial address the relevant legal
principles and their application to the factual circumstances summarised in the
preceding Chapters.
1.34 Chapter 6 addresses the presumption of validity to which the 1899 Award
is entitled under international law, and the implications in respect of the burden and
standard of proof of its alleged invalidity that flow from this presumption. It is well
established that, in view of their final and binding character, arbitral awards benefit
from a presumption of validity. Accordingly, Guyana does not bear any burden to
establish the validity of the 1899 Award; rather, the burden rests squarely on
Venezuela to establish that the 1899 Award is null and void. It is equally well
established that any contention of nullity is subject to a high standard of proof,
which can only be met by evidence of “weighty” or “exceptional” circumstances.
The onerous nature of that standard of proof is reflected by the fact that the Court
has never previously found an arbitral award to be null and void.
1.35 Chapter 7 addresses the validity of the Treaty of Washington and the
constitution of the Arbitral Tribunal. The Chapter begins by considering the
conditions for establishing that a treaty is null on the grounds of error, fraud or
corruption. It explains how the Treaty of Washington was concluded in
circumstances where Venezuela had full knowledge of all relevant facts. It then
explains why Venezuela’s claim that the Treaty of Washington is invalid is entirely
without merit. First, the 65-year delay between the conclusion of the Treaty in 1897
and Venezuela’s first attack on its validity means that Venezuela has unequivocally
lost any right to challenge the Treaty. Second, at the date when the Treaty was
signed in 1897, coercion was not a recognised basis for invalidating a treaty.
Accordingly, even if (quod non) Venezuela’s contention of coercion had any basis
in fact, the argument that this invalidated the Treaty is legally untenable. Third, and
15
in any event, there is no evidence whatsoever that Venezuela entered the Treaty as
a result of any coercion. On the contrary, to the extent that the Treaty was the
product of any pressure at all, that pressure was directed solely at Great Britain by
the United States, which was acting on behalf and at the behest of Venezuela.
Venezuela, for its part, actively sought and welcomed the conclusion of the Treaty.
In short, the Treaty cannot be characterised as involving any coercion or fraud
against Venezuela.
1.36 The Chapter also describes how the Arbitral Tribunal was constituted in
full conformity with the terms of the Treaty and all applicable rules of international
law. The five Arbitrators were all distinguished jurists, each appointed in strict
accordance with the terms of the Treaty. Venezuela’s nomination of its two
Arbitrators reflected its conviction that the appointment of two Supreme Court
Justices from the United States would serve to guarantee the effective future
implementation of the Award. The President of the Tribunal, Prof Fyodor Martens
from Russia — one of the most experienced, distinguished and highly-regarded
international lawyers of his era — was chosen by the four party-appointed
Arbitrators with the consent of the parties.
1.37 Chapter 8 explains why Venezuela is manifestly incapable of discharging
its burden of proving the invalidity of the 1899 Award itself. The Chapter begins
by describing how the written and oral proceedings before the Arbitral Tribunal
conformed to the terms of the Treaty. The Chapter then explains how the 1899
Award itself complied with the formal requirements contained in the Treaty and
demonstrates beyond any doubt that the Arbitral Tribunal fulfilled its functions and
did not exceed the powers conferred upon it by the Treaty.
16
1.38 The Chapter then addresses and refutes the allegations of nullity advanced
by Venezuela from 1962 onwards. It explains why the absence of reasons for the
Arbitral Tribunal’s decision was in accordance with the requirements of the Treaty,
the contemporaneous expectation of the parties, and the general prevailing practice
at the time. It then refutes Venezuela’s misconceived allegations that the Arbitral
Tribunal failed to take into account applicable principles of law and that it failed to
comply with its obligation to investigate and ascertain the extent of the territories
belonging to the Netherlands and Spain at the date of Great Britain’s acquisition of
the relevant territory. The Chapter then addresses Venezuela’s baseless claims that
the Arbitral Tribunal exceeded its powers by determining the free navigation of the
River Barima and River Amacuro and that Great Britain fraudulently submitted
doctored maps to the Arbitral Tribunal.
1.39 The Chapter concludes by addressing Venezuela’s claim that the 1899
Award is a nullity because it was the product of coercion and a secret “political
compromise” or “political deal”. Contemporaneous documents authored or
produced by the Arbitrators demonstrate conclusively that the Tribunal engaged in
earnest, intensive and wide-ranging deliberations regarding the location of the
boundary, and that the individual Arbitrators initially held divergent views in
relation to this issue. Those same documents demonstrate that through that process
of discussion and deliberation, a settled consensus ultimately emerged — a
consensus that was the product of mutual compromises and adjustments in the
Arbitrators’ respective positions, including compromises facilitated by the
Tribunal’s President, who strove to achieve a unanimous Award. Contrary to what
Venezuela alleges, there is not a shred of evidence to substantiate the claim that the
boundary unanimously determined by the 1899 Award was the product of improper
coercion exerted over any of the Arbitrators or a secret “political deal” concocted
by Great Britain and Russia, or by anyone else. The allegation of an Anglo-Russian
17
“political deal” is flatly inconsistent with the Arbitrators’ own contemporaneous
private documents and correspondence, and the outcome of the Award, which gave
Venezuela the mouth of the Orinoco River — the most prized and important
strategic point at stake — and which was hailed at the time and subsequently by
Venezuela as a great triumph. Venezuela’s allegations of nullity are entirely devoid
of any credible factual basis.
1.40 Finally, Chapter 9 addresses the legal significance of Venezuela’s
prolonged acceptance of the 1899 Award. It explains how even if (quod non) the
1899 Award were to be adjudged a nullity, this would not affect the location of the
Parties’ boundary. This is because, for more than half a century after the 1899
Award was delivered, Venezuela positively and emphatically insisted that the
boundary line described in the Award, and demarcated by a Joint Boundary
Commission that produced a formal boundary agreement executed by both parties
in 1905, was the correct and legally binding boundary. Venezuela repeatedly
manifested its acceptance of that boundary as legally binding over the course of the
following decades, including in the course of installing a physical marker of the trijunction
point where the boundaries of British Guiana, Brazil and Venezuela meet
in accordance with “the letter of the [1899] award”, because this was, in
Venezuela’s official view, a “frontier de droit”. In 1941, more than four decades
after the 1899 Award was delivered, Venezuela continued to assure Great Britain
that the boundary between Venezuela and British Guiana was “chose jugée”.
1.41 It was only in 1962 — more than six decades after the 1899 Award was
handed down — that Venezuela first adopted an official position that the Parties’
boundary was not, in fact, as described in the Award. In the circumstances, under
well-established principles of international law, Venezuela’s prolonged
recognition, acceptance and insistence upon the boundary described in the Award
18
requires that, irrespective of the legal status of the Award, the Parties’ land
boundary follows the line described therein.
1.42 The Memorial concludes with Guyana’s Submissions on the Merits.
19
CHAPTER 2
GUYANA AND THE ESSEQUIBO REGION11
2.1 This Chapter describes Guyana and its land territory located between the
Essequibo River in the east and the boundary with Venezuela in the west, as fixed
by the 1899 Award and the 1905 Boundary Agreement between British Guiana and
Venezuela. It highlights key geographical and ecological features, natural
resources and economic activity, early settlement and modern-day governance.
Geographical and Ecological Features
2.2 Guyana is located on the northeast coast of South America.12 As depicted
in Figure 2.1,13 the Atlantic Ocean lies to its north, and three neighbouring States
are adjacent to it: the Republic of Suriname, to the east; the Federative Republic of
Brazil, to the south and southwest; and the Bolivarian Republic of Venezuela, to
the west.14 The Essequibo Region comprises all of Guyana’s land territory lying to
the west of the Essequibo River, for which the Region is named.15 Measuring
11 In this Memorial, the term “Essequibo Region” refers to the geographic area that extends from
the east bank of the Essequibo River to the boundary with Venezuela defined in the 1899 Arbitral
Award and the 1905 Agreement. This area is not formally designated by Guyana as the “Essequibo
Region”, but is comprised of six separate Administrative Regions as identified in note 16 below.
12 Its location is approximately Latitude 5oN and Longitude 59oW. Guyana Lands and Surveys
Commission, “Fact Page on Guyana: Introduction”, available at
https://factpage.glsc.gov.gy/geography/ (last accessed 22 Feb. 2022).
13 Worldometer, “Map of Guyana (Road)” (2018). MMG, Vol. II, Figure 2.1.
14 Guyana Lands and Surveys Commission, “Fact Page on Guyana: Introduction”, available at
https://factpage.glsc.gov.gy/geography/ (last accessed 22 Feb. 2022).
15 Guyana Lands and Surveys Commission, “Fact Page on Guyana: Counties of Guyana”, available
at https://factpage.glsc.gov.gy/counties-of-guyana/ (last accessed 22 Feb. 2022); Dr Odeen Ishmael,
20
approximately 159,500 square kilometres, the Essequibo Region accounts for
roughly three-quarters of Guyana’s total land territory of approximately 215,000
square kilometres.16
“A Documentary History of the Guyana-Venezuela Border Issue” (1998, updated Jan. 2013),
available at www.guyana.org/features/trail_diplomacy.html (last accessed 22 Feb. 2022).
16 Guyana Ministry of Foreign Affairs, Annual Report, 1998, p. 101, available at
https://parliament.gov.gy/documents/acts/4979-annual_report_foreign_aff… (last
accessed 22 Feb. 2022); Guyana Lands and Surveys Commission, “Fact Page on Guyana: Counties
of Guyana”, available at https://factpage.glsc.gov.gy/counties-of-guyana/ (last accessed 22 Feb.
2022); Six out of the ten Administrative Regions in Guyana are in the Essequibo. These are: Region
1 - Barima-Waini, to its east, Region 2 - Pomeroon-Supenaam, to its east, Region 3 - Essequibo
Islands-West Demerara, and moving south below Regions 1 and 2, Region 7 - Cuyuni-Mazaruni,
Region 8 - Potaro-Siparuni, and Region 9 - Upper Takutu-Upper Essequibo. Much of the current
data on the Essequibo is organised by these Administrative Regions. Guyana Lands and Surveys
Commission, “Fact Page on Guyana: Administrative Regions”, available at
https://factpage.glsc.gov.gy/admin-regions-detailed/ (last accessed 22 Feb. 2022).
21
Figure 2.1. Map of Guyana
22
2.3 “Guiana” is an Amerindian word which means the “land of many waters”.17
It is an apt name for this territory. Guyana has a hydrographic network consisting
of fourteen major drainage basins.18 As can be seen in Figure 2.2,19 it has three
principal river systems all of which discharge into the Atlantic Ocean. From west
to east, these are the Essequibo River, the Demerara River, and the Berbice River.
In the extreme east, a large segment of Guyana’s boundary with Suriname is
formed by the Corentyne River.20
17 U.S. Army Corp of Engineers, “Water Resources Assessment of Guyana” (Dec. 1998), available
at
https://www.sam.usace.army.mil/Portals/46/docs/military/engineering/doc…
a%20WRA.pdf (last accessed 22 Feb. 2022), p. i.
18 Ibid., p. 8.
19 Guyana Lands and Surveys Commission, “Fact Page on Guyana: Major Rivers” (undated). MMG,
Vol. II, Figure 2.2.
20 Ibid.
23
Figure 2.2. Guyana's Major Rivers
2.4 The Essequibo River is by far the longest in Guyana, extending for some
1,014 kilometres, and is amongst the largest in South America. Its major tributaries,
24
which flow through the Essequibo Region are the Potaro, the Cuyuni (part of which
borders Venezuela), the Mazaruni and the Rupununi.21
2.5 The Essequibo River and its tributaries are the arteries and capillaries that
nourish Guyana’s growth and development. They provide vital highways for access
throughout the Region, and for trade and social intercourse. They sustain the
rainforests and diverse landscapes, provide fresh water, unique ecosystem services,
biodiversity and carbon sinks, all of which are managed sustainably for Guyana’s
national development, and in the context of Climate Change, generate life-giving
resources for the sustenance of future generations.
2.6 In addition to its rivers, Guyana is also traversed by a series of interconnecting
mountain ranges, which are shown in Figure 2.3.22 These are primarily
located in the Essequibo Region. The most prominent are the Pakaraima
Mountains, where Mount Roraima, the highest mountain in Guyana at 2,810
metres, forms a tripartite boundary between Guyana, Venezuela and Brazil.23
Mount Roraima National Park is believed to be one of the oldest rock formations
on Earth — dating back two billion years — and is home to a diverse ecosystem of
great natural beauty, including waterfalls and plateaus, as well as mountains.24
21 Ibid.
22 Guyana Lands and Surveys Commission, “Fact Page on Guyana: Mountain Ranges” (undated).
MMG, Vol. II, Figure 2.3.
23 Guyana Lands and Surveys Commission, “Fact Page on Guyana: Mountain Ranges” (undated).
MMG, Vol. II, Figure 2.3.
24 Nelson Joaquim Reis, “Mount Roraima, State of Roraima: The Sentinel of Macunaíma,
Geological and Palaeontological Sites of Brazil”, available at
http://sigep.cprm.gov.br/sitio038/sitio038english.pdf (last accessed 22 Feb. 2022).
25
Figure 2.3. Guyana’s Mountain Ranges
2.7 The Iwokrama Rainforest, situated in the centre of the Essequibo Region,
is one of the last four untouched tropical rainforests in the world, and is of global
26
significance.25 It is referred to as the “green heart” of Guyana.26 In all, it
encompasses 3,716 square kilometres.27 It is extremely rich in species diversity,
including over 420 species of fish, 90 species of bats, and 500 species of birds,
more than any comparable area in the world,28 as well as numerous animals that
are threatened with extinction.29 As such, it is a sanctuary for conservation,
scientific research and ecotourism.30 Guyana has been a steadfast protector of the
rainforest and its rich biodiversity. Preservation of the Iwokrama Rainforest was
established by the Iwokrama Act (1996), and a joint mandate between Guyana and
the Commonwealth Secretariat (an international organisation).31 Protection of
“Guyana’s natural heritage and natural capital” within the Essequibo Region is also
ensured by the Protected Areas Act. It protects and conserves a system of National
25 Protected Planet, “Iwokrama International Centre”, available at
https://www.protectedplanet.net/116298 (last accessed 22 Feb. 2022); Iwokrama, “About Us”,
available at https://iwokrama.org/about-us/ (last accessed 22 Feb. 2022).
26 Iwokrama, “About Us”, available at https://iwokrama.org/about-us/ (last accessed 22 Feb. 2022).
27 Protected Planet, “Iwokrama International Centre”, available at
https://www.protectedplanet.net/116298 (last accessed 22 Feb. 2022); Iwokrama, “About Us”,
available at https://iwokrama.org/about-us/ (last accessed 22 Feb. 2022).
28 Wildlife World, “Iwokrama Rainforest”, available at
https://www.wildlifeworldwide.com/locations/ iwokrama-rainforest (last accessed 22 Feb. 2022).
29 Dr. Mark Engstrom & Dr. Burton Lim, GUIDE TO THE MAMMALS OF THE IWOKRAMA (1999),
available at https://iwokrama.org/wp-content/uploads/2018/01/Iwokrama-Mammal-Guide-2…-
Web.pdf (last accessed 22 Feb. 2022), p. 14.
30 Iwokrama Rainforest, “Wildlife World”, available at
https://www.wildlifeworldwide.com/locations/iwokrama-rainforest (last accessed 22 Feb. 2022).
The Iwokrama Rainforest is renowned as one of the best places in the world to see a jaguar in its
natural habitat. The same is true for many other species that inhabit its trees and canopy, including
the squirrel monkey, red and green macaw, red billed toucan, harpy eagle, tree boa, paca and hula
tree frog.
31 Iwokrama, “About Us”, available at https://iwokrama.org/about-us/ (last accessed 22 Feb. 2022).
27
Protected Areas including the Iwokrama Rainforest, Kaieteur National Park and
Shell Beach, among other areas in the Region.32
Natural Resources and Economic Activity
2.8 The Essequibo Region is the source of abundant natural resources and
economic activity that are critical to Guyana’s development. Gold mining has been
conducted in the Region since the nineteenth century,33 and records show that
annual production reached 4,400 kilograms in 1894. One of the largest mines, the
Omai Gold Mine, is on the west bank of the Essequibo River. In April 2021, Omai
announced that it had struck high-grade gold in its 5,000-metre drilling
programme.34 Gold is also mined in the Barima-Waini area and the Potaro-Sipuruni
area of the Essequibo Region, where Mazda Mining Company Ltd. has the largest
mining operation.35 Considerable deposits of calcined and metal grade bauxite have
also been discovered in the Essequibo and will be mined at the Bonasika Mining
Project. Most of Guyana’s known deposits of manganese are also found in the
region. Guyana Manganese Inc. is now preparing a new round of production.
32 Protected Areas Trust Guyana, “Protected Areas”, available at https://protectedareastrust.org.gy/
protected-areas/ (last accessed 22 Feb. 2022); Wildlife World, “Mammals”, available at
https://iwokrama.org/mammals/frame.html (last accessed 22 Feb. 2022).
33 M. Moohr, “The Discovery of Gold and the Development of Peasant Industries in Guyana, 1884-
1914: A Study in the Political Economy of Change”, Caribbean Studies, Vol. 15, No. 2 (July 1975),
p. 61.
34 “Omai strikes high-grade gold in Region 7”, Guyana Times (22 Apr. 2021), available at
https://guyanatimesgy.com/omai-strikes-high-grade-gold-in-region-7/ (last accessed 22 Feb. 2022).
35 Ministry of Local Government and Regional Development, “Region 1 – Barima-Waini”,
available at https://mlgrd.gov.gy/category/region-1/ (last accessed 22 Feb. 2022); Ministry of Local
Government and Regional Development, “Region 8 – Potaro–Sipuruni”, available at
https://mlgrd.gov.gy/category/region-8/ (last accessed 22 Feb. 2022).
28
2.9 The Essequibo Region is also a major agricultural area, especially in the
low-lying regions along the coast, where the topography has lent itself to rice
cultivation.36 The Pomeroon-Supenaam area is even known as the “Rice Land”.37
The oldest co-operative rice mill in Guyana, at Vergenoegen (an old Dutch name),
facilitates the milling of paddy planted in the Region.38 In the Upper Essequibo
area, cattle are raised for beef and dairy,39 and there are large ranches at Aishalton,
Annai, Dadanawa and Karanambo, where much of the beef is exported to Brazil.40
Human Settlement
2.10 The South American coast between the mouths of the Orinoco River in the
northwest and the Amazon River in the southeast was a difficult and unwelcoming
terrain to early European explorers. The region was populated by numerous
Amerindian peoples, including the powerful Caribs, who did not welcome
36 UNICEF, “Essequibo Islands – West Demerara”, available at
https://www.unicef.org/lac/media/4591/file/PDF%20Essequibo%20Islands-
West%20Demerara.pdf (last accessed 22 Feb. 2022).
37 Ministry of Local Government and Regional Development, “Region 2 – Pomeroon-Supenaam”,
available at https://mlgrd.gov.gy/category/region-2/ (last accessed 22 Feb. 2022).
38 UNICEF, “Essequibo Islands – West Demerara”, available at https://www.unicef.org/lac/media
/4591/file/PDF%20Essequibo%20Islands-West%20Demerara.pdf (last accessed 22 Feb. 2022), p.
4.
39 Ministry of Local Government and Regional Development, “Region 2 – Pomeroon-Supenaam”,
available at https://mlgrd.gov.gy/category/region-2/ (last accessed 22 Feb. 2022); Ministry of Local
Government and Regional Development, “Region 3 – Essequibo Islands – West Demerara”,
available at https://mlgrd.gov.gy/category/region-3/ (last accessed 22 Feb. 2022).
40 Ministry of Local Government and Regional Development, “Region 9 - Upper Takutu – Upper
Essequibo”, available at https://mlgrd.gov.gy/category/region-9/ (last accessed 22 Feb. 2022).
29
explorers or would-be settlers. It was for these reasons that the territory came to be
known in Europe as the “Wild Coast”.41
2.11 The first Europeans to settle in present day Guyana, including the
Essequibo Region, were the Dutch. They arrived in 1598, seventeen years after the
“United Provinces” declared independence from Spain.42 They explored the
Orinoco inland, up to the Caroni River.43 From there they moved eastward along
the coast and established settlements at various points between the Orinoco and the
Amazon Rivers.44 In 1607, the Dutch established the West India Company and
sought to exercise “full right of trade and navigation with the Indies”.45 In 1616,
the Anglo-Dutch firm Courteen and Co. sponsored Dutch businessmen to migrate
to the Essequibo Region and establish settlements there.46 In the same year, Dutch
Commander Adrian Groenewegen founded the Essequibo Colony and built Fort
41 Cornelis Ch. Goslinga, THE DUTCH IN THE CARIBBEAN AND ON THE WILD COAST 1580–1680
(1971), p. 56, p. 409.
42 See Account of a Journey to Guiana and the Island of Trinidad, performed in the Years 1597 and
1598, submitted to the States-General by the “Commies-Generaal”, A. Cabeliau (3 Feb. 1599).
MMG, Vol. III, Annex 8.
43 See ibid.
44 See Petition to the Noble and Mighty Lords the States-General of these United Provinces
concerning the Population of the Coasts of Guiana situated in America (undated). MMG, Vol. IV,
Annex 94. See also Extract from a Report on Trinidad de la Guayana in reference to the Dutch
Settlements on the Coast between the Amazon and the Orinoco, from Señor Don Antonio de
Muxica, Deputy Governor of Santo Thomé de la Guayana, to His Majesty (25 June 1613). MMG,
Vol. IV, Annex 58.
45 See Extract from a Despatch in reference to the founding of a Dutch West India Company from
Don Juan de Mancicidor to Secretary Prada (7 Jan. 1607). MMG, Vol. III, Annex 46; Extract from
Despatches in reference to Treaty of Truce finally made in 1609 from the Marquis de Spinola to the
King of Spain (7 Jan. 1607). MMG, Vol. III, Annex 9.
46 See Silvia Kouwenberg, “The historical context of creole language emergence in Dutch Guiana”,
Revue belge de Philologie et d’Histoire, Vol. 91, No. 3, (2013), pp. 696-97.
30
Kykoveral as its governing seat. The location of the colony and Fort Kykoveral is
shown in Figure 2.4.47
Figure 2.4. Map of Essequibo and Demerary (Demerara) Rivers (1770),
Highlighting Ft. Kykoveral
47 Jacobus van der Schley, “Caart van Essequibo en Demerary” (G. Tielenburg, 1770). MMG, Vol.
II, Figure 2.4.
31
2.12 In 1621, the Dutch States General granted a Charter to the West India
Company, including a 24-year monopoly on trade.48 One of the Company’s
Chambers, the Zeeland Chamber, formally carried out the colonization of the
Essequibo Region.49 The Charter authorised the making of contracts, alliances,
fortresses, appointment of governors and the full right of trade and navigation with
the Indies.50 The seat of government for the Essequibo Colony was formally
established at Kykoveral, and, from there, the United Provinces exercised
possession, control and political authority over the territory between the Essequibo
and Orinoco Rivers.
2.13 The nearest Spanish settlement was farther to the west, at Santo Thomé, on
the banks of the Orinoco River. Spanish colonization of northern South America
began in the sixteenth century, at New Granada, where present-day Colombia is
located, and slowly extended eastward as far as the Orinoco River. In 1621, the
King of Spain issued a decree ordering fortification of Santo Thomé to defend
against attacks by the Dutch, who had already built numerous settlements between
the Orinoco and the Essequibo Rivers.51 The Spanish Governor of Santo Thomé
48 Charter Granted by their High Mightiness the Lords the States-General to the West India
Company (3 June 1621). MMG, Vol. IV, Annex 77. See also Venezuela-British Guiana Boundary
Arbitration, The Case of the United States of Venezuela (1898), Vol. I, pp. 54-55. MMG, Vol. IV,
Annex 123.
49 Venezuela-British Guiana Boundary Arbitration, The Case of the United States of Venezuela
(1898), Vol. I, p. 75. MMG, Vol. IV, Annex 124. See various letters and reports issued by the
Zeeland Chamber of the West India Company managing logistics of colonization in the Guianas:
Proceedings of the West India Company (Zeeland Chamber) (1626-1628). MMG, Vol. III, Annex
57; Report on Conditions for Colonies, adopted by the West India Company (the Nineteen) (22
Nov. 1628). MMG, Vol. IV, Annex 59.
50 Charter Granted by their High Mightiness the Lords the States-General to the West India
Company (3 June 1621). MMG, Vol. IV, Annex 77.
51 Cedula Issued by the King of Spain to the Governor of the City of Santo Thomé de la Guyana (9
Aug. 1621). MMG, Vol. III, Annex 10; Letter of the Request of the City of Santo Thomé and Island
32
acknowledged the vulnerability of his position “on account of [Santo Thomé] being
so far distant from” other Spanish settlements “the nearest being Venezuela, distant
120 leagues [over 650 kilometres]”.52
2.14 The Spanish did not establish settlements east of the Orinoco River.
Historical records show that the last Spanish expedition across the Orinoco River,
for more than a century, took place in 1619, and was rebuffed by the Dutch. After
that defeat, the Spanish focused their efforts on holding Santo Thomé.53 By the
1630s, Dutch authority extended to all ports east of the Orinoco River.54 As the
closest Spanish settlement, Santo Thomé was a repeated target of attack by Dutch
forces.55
of Trinidad of the Presidency of Guayana for Help (undated, likely issued in 1621). MMG, Vol. III,
Annex 11.
52 Letter of the Request of the City of Santo Thomé and Island of Trinidad of the Presidency of
Guayana for Help (undated, likely issued in 1621). MMG, Vol. III, Annex 11.
53 See Letter from Don Diego Lopez de Escobar, Governor of Guayana and Trinidad (28 May 1637)
(Inclosure in Letter from Jacques Ousiel, late Public Advocate and Secretary of the Tobago, to the
West India Company (1637)). MMG, Vol. III, Annex 13; Memorandum by Don Juan Desologuren
as to the Powers of the Dutch in the West Indies (19 Nov. 1637). MMG, Vol. IV, Annex 61. See
also Report of the Council of War to the King respecting the state of Guayana (10 May 1662).
MMG, Vol. IV, Annex 62 (noting that the only permanent Spanish settlements in the region were
that of Santo Thomé and the Island of Trinidad).
54 Extract of Letter from the Corporation of the Island of Trinidad to the King of Spain (22 Apr.
1637). MMG, Vol. III, Annex 12.
55 See Report from the Council of the Indies to the King of Spain (8 July 1631). MMG, Vol. IV,
Annex 60 (recounting the sacking of the town in 1629); Letter to the King of Spain from the
Corporation of Trinidad Concerning the state of the town of Santo Thomé of Guiana, taken,
plundered, and burnt by the Dutch, and the Indian Caribs, who also threatened the said island of
Trinidad with a powerful fleet (27 Dec. 1637). MMG, Vol. III, Annex 14 (calling for aid after the
burning of the town by the Dutch in 1637).
33
2.15 In 1648, by the Treaty of Münster, Spain formally accepted the
independence of the United Provinces of the Netherlands. The Treaty provided that
Spain and the Netherlands would accept and respect the status quo in regard to their
existing colonies in both the West and East Indies, with the Dutch retaining
authority over their colonies, and the Spanish retaining authority over theirs.56
Specifically, Article V of the Treaty preserved Dutch and Spanish sovereignty,
respectively, over territories held and possessed by each State at the time the Treaty
was executed, as well as the territories that either State should “come to conquer
and possess”. Spain thus relinquished any claims it might have had, inter alia, in
respect of the territory held and administered by the Dutch east of the Orinoco
River.57
56 See Venezuela-British Guiana Boundary Arbitration, The Case of the United States of Venezuela
(1898), Vol. I, pp. 71-74. MMG, Vol. IV, Annex 124.
57 Articles of the Peace of Münster (30 Jan. 1648), Art. V. MMG, Vol. IV, Annex 78: “The
navigation and trade of the East and West Indies shall be maintained pursuant to and in conformity
with the Charters already given, or yet to be given, therefore, and for the security of which the
present Treaty and the ratification to be procured from both sides shall serve. And there shall be
comprised under the aforesaid Lords States, or those of the East and West India Company, in their
name, are within the limits of their said Charter, in friendship and alliance. And each party, to wit,
the aforesaid Lords, the King and States respectively, shall continue to possess and enjoy such
lordships, towns, castles, fortresses, commerce, and lands in the East and West Indies, as also in
Brazil and on the coasts of Asia, Africa, and America respectively hold and possess, amongst which
are specially included the places which the Portuguese have since the year 1641 taken from the
Lords States and occupied, or the places which they shall hereafter come to acquire and possess”.
(emphasis added). See also, ibid., Art. III (“E[ach] party shall retain and actually enjoy the countries,
towns, places, lands, and lordships which he at present holds and possesses, without being troubled
or molested therein, directly or indirectly, in any way whatsoever, in which are understood to be
included the hamlets, villages, dwellings, and fields belonging thereunto”.).
34
2.16 A 1667 Dutch map — Figure 2.5 below58 — depicts the Orinoco River as
the boundary between Dutch and Spanish territory in northern South America, in
accordance with the Treaty of Münster:
Figure 2.5. Map of Guiana by William Blaeuw (1667), Highlighting the
Extent of Dutch Authority and Control
2.17 In 1713, the Treaty of Utrecht reaffirmed the provisions of the Treaty of
Münster, underscoring Dutch authority over the territory and settlements between
the Essequibo and Orinoco Rivers. In the meantime, Dutch expansion into the
interior of the Essequibo Region continued, extending throughout the basins of the
Pomeroon, Moruca, Waini, and Barima Rivers, as well as the Upper Cuyuni River.
58 William Blaeuw, “Map of Guiana” (1667). MMG, Vol. II, Figure. 2.5.
35
In 1744, a fort was constructed at Zeelandia, and the seat of the Dutch
administration of the Essequibo Colony was moved there from Kykoveral.59
2.18 Dutch control of this territory was never threatened by Spain. However,
differences between The Netherlands and its former ally, Great Britain — including
the former’s support for Britain’s North American colonies during their War for
Independence in the late eighteenth century — led to Britain’s seizure of the Dutch
territory in the early 1800s.60 In 1803, by way of the Articles of Capitulation of
Essequibo and Demerara, the Netherlands relinquished its colonies in this region,
including Essequibo, to British control.61
2.19 The British continued to exercise authority under this instrument until, at
the end of the Napoleonic Wars, the Netherlands officially ceded title to the
colonies of Essequibo-Demerara and Berbice to the British in the Convention of
London of 1814. The cession was later confirmed in the Treaty of Paris of 1815.
(Suriname, the easternmost of the Dutch colonies, was returned to the Netherlands).
The British administered Essequibo-Demerara and Berbice as separate colonies
until 1831, when King William IV formally consolidated them into a single entity
as “British Guiana”.62 Great Britain then exercised control over British Guiana,
59 See Boundary between the Colony of British Guiana and the United States of Venezuela, The
Case on behalf of the Government of Her Britannic Majesty (1898), pp. 35-36.
60 See Letter from Captain Edward Thompson, R.N., to Lord Sackville (22 Apr. 1781). MMG, Vol.
III, Annex 15.
61 Articles of Capitulation of Demerara and Essequibo (18-19 Sept. 1803). MMG, Vol. IV, Annex
79.
62 British Guiana, Letters Patent constituting the Colony of British Guiana and appointing Major-
General Sir Benjamin D’Urban, K.C.B., Governor (4 Mar. 1831). MMG, Vol. IV, Annex 80.
36
including the Essequibo Region, exclusively and uninterruptedly until 26 May
1966, the date on which Guyana became an independent State.
2.20 A legacy of the Dutch and British influence on the region, through the
practice of bringing enslaved people to the colony and later indentured labourers,
is the diversity of the people of the Essequibo Region: They are 39.8% of East
Indian descent, 29.3% of African descent, 19.9% mixed race, 10.5% Amerindian,
and 0.5% other ethnic groups.63 There are, in present day, nine
Indigenous/Amerindian tribes or ethnic groups in Guyana. They include the
Arawak (Lokono), Warau, Carib (Karinya), Akawaio, Patamona, Arekuna,
Macushi, Wapishana and Waiwai.64 All of these Indigenous peoples live either
entirely or largely within the Essequibo Region.65 The largest of these are the
Arawak and Carib tribes.
63 Enclyclopedia Britannica, “People of Guyana”, available at
https://www.britannica.com/place/Guyana/People (last accessed 22 Feb. 2022). Guyana’s racial
diversity is rooted in a dark period of human history. The country’s Afro-Guyanese are primarily
the descendants of African slaves forcibly brought to Guyana, and the Indo-Guyanese are primarily
descendants of Indian indentured labourers brought to Guyana by the colonizers when slavery
ended.
64 Inter-American Development Bank, p. 7, available at https://publications.iadb.org/publications
/english/document/Guyana-Technical-Note-on-Indigenous-Peoples.pdf (last accessed 22 Feb.
2022).
65 Ibid., p. 10.
37
Governance
2.21 The Dutch governed the Essequibo colony — as they did their other
colonies in the region — in accordance with the precepts of Roman Dutch law. In
the 1905 case, De Freitas v. Jardim, the local Chief Justice noted:
“The general law of Demerara and Essequebo [sic] (so far as it
remains unaltered by legislation) is declared by Ordinance of the 4th
October, 1774, to be the Roman-Dutch law therein indicated, and in
art. 1 of the Articles of Capitulation 1803 [by which the Dutch
provisionally ceded control of these colonies to the British], that law
is retained in force”.66
2.22 In the nineteenth century, under British rule, Roman Dutch law eventually
gave way to English common law, in the Essequibo Region and throughout British
Guiana. Upon independence, Guyana inherited and maintained the common law
system. Administratively, in modern times Guyana has exercised its governmental
authority in the Essequibo Region in the same manner as in the rest of the country.67
Public order, for example, is maintained by the Guyana Police Force.68 Electricity
is supplied by Guyana Power and Light Company.69 Other public services include
66 M. Shahabudeen, THE LEGAL SYSTEM OF GUYANA (1973), p. 184.
67 Guyana Lands and Surveys Commission, “Fact Page on Guyana: Administrative Regions”,
available at https://factpage.glsc.gov.gy/admin-regions-detailed/ (last accessed 22 Feb. 2022).
68 Guyana Police Force (2019), available at https://www.guyanapoliceforce.gy/ (last accessed 22
Feb. 2022).
69 Guyana Power & Light, “What We Do”, available at https://gplinc.com/about-us/what-we-do/
(last accessed 22 Feb. 2022); Guyana Department of Public Information, “Essequibo electricity grid
boosted with new 5.4MW Power Plant” (27 Apr. 2019), available at https://dpi.gov.gy/essequiboelectricity-
grid-boosted-with-new-5-4mw-power-plant/ (last accessed 22 Feb. 2022).
38
housing,70 water,71 universal healthcare,72 sanitation and waste management,73
public education,74 postal service,75 licensing and regulation of fishing,76
environmental conservation and protection77 and investment in infrastructure
70 Guyana Ministry of Finance, “National Development Strategy” (June 2017), available at
https://finance.gov.gy/wp-content/uploads/2017/06/nds.pdf (last accessed 22 Feb. 2022), p. 17;
Guyana Bureau of Statistics, “Guyana Population and Housing Census 2012: Preliminary Report”
(June 2014), available at https://statisticsguyana.gov.gy/wpcontent/
uploads/2019/10/2012_Preliminary_Report.pdf (last accessed 22 Feb. 2022); Housing
officials for Essequibo Coast outreaches, https://dpi.gov.gy/housing-officials-for-essequibo-coastoutreaches/
(last accessed 22 Feb. 2022).
71 Guyana Water, Inc., “Regional Profiles”, available at https://gwiguyana.gy/regional-profiles (last
accessed 22 Feb. 2022); Guyana Water, Inc., “Increasing number of Guyanese gaining potable
water access in Hinterland”, available at https://gwiguyana.gy/news/increasing-number-guyanesegaining-
potable-water-access-hinterland (last accessed 22 Feb. 2022).
72 Pacific Prime, “Guyana Health Insurance”, available at
https://www.pacificprime.com/country/americas/guyana-health-insurance-p…
text=The%20government%20of%20Guyana%20operates,of%20
Guyana’s%20public%20healthcare%20system (last accessed 22 Feb. 2022).
73 Ministry of Local Government and Regional Development, “Solid Waste Management”,
available at https://mlgrd.gov.gy/solid-waste-management/ (last accessed 22 Feb. 2022).
74 Guyana Ministry of Education, “List All Schools”, available at
https://education.gov.gy/web2/index.php/other-resources/other-files/lis… (last accessed
22 Feb. 2022).
75 The postal service in the Essequibo is run by the Guyana Post Office Corporation. Guyana Post
Office Corporation, “About Us”, available at https://guypost.gy/about-us/ (last accessed 22 Feb.
2022). The towns within the Essequibo are all served by the Guyana Post Office Corporation.
Guyana Post Office Corporation, “Post Office Telephone Directory”, available at
https://guypost.gy/directory/ (last accessed 22 Feb. 2022).
76 Guyana Ministry of Agriculture, “Fisheries”, available at https://agriculture.gov.gy/fisheries/
(last accessed 22 Feb. 2022).
77 Guyana Environmental Protection Agency, “Annual Report 2018”, available at
https://www.epaguyana.org/epa/resources/annual-reports/summary/10-annua…-
2018 (last accessed 22 Feb. 2022); Guyana Environmental Protection Agency, “EPA meets
the public (Region 2)”, available at https://www.epaguyana.org/epa/news/194-epa-meets-thepublic-
region-2 (last accessed 22 Feb. 2022); Guyana, Act No. 14 of 2011, Protected Area’s Act
2011 (7 July 2011), available at http://extwprlegs1.fao.org/docs/pdf/guy172057.pdf (last accessed
22 Feb. 2022).
39
projects.78 No other State has engaged in any of these administrative activities since
Guyana achieved independence in 1966, or at any time prior thereto, except for the
Dutch and British colonial authorities.
2.23 Likewise, Guyana collects taxes from business entities and individuals
within the Essequibo Region, the same as it does throughout the country, through
the Guyana Revenue Authority.79 Guyana also carries out a census every ten
years.80 The last census, carried out in 2012, covered every village in the Essequibo
Region.81 It showed that the population of the Essequibo Region was 235,928,82 or
nearly one third of Guyana’s entire population of 746,955. Perhaps the most
renowned of Guyana’s citizens to hail from the Essequibo Region, on the
international level, is Dr Mohamed Shahabuddeen, who, among his other
78 For instance, a 1993 World Bank Staff Appraisal Report shows that Guyana obtained funding for
the Essequibo Road Rehabilitation Project. World Bank, “Staff Appraisal Report, Guyana,
Infrastructure Rehabilitation Project”, (22 Feb. 1993), available at
http://documents1.worldbank.org/curated/en/263761468250853522/text/mult… (last
accessed 22 Feb. 2022). More recently in 2019, the World Bank published its Analytical Evidence
to Support Guyana’s Green State Development Strategy: Vision 2040 Resilient Infrastructure and
Spatial Development, which noted that Guyana’s non-urban infrastructure including coastal
protection and connections to the hinterlands was a cornerstone of the green transition, and includes
multiple Essequibo projects. Guyana Energy Agency, “Annex A(5), Analytical Evidence to Support
Guyana’s Green State Development Strategy: Vision 2040 Resilient Infrastructure and Spatial
Development”, available at https://gea.gov.gy/wp-content/uploads/2019/07/A5-Resilient-
Infrastructure-and-Spatial-Development.pdf (last accessed 22 Feb. 2022).
79 Guyana Revenue Authority, “About Us”, available at https://www.gra.gov.gy/about-us/ (last
accessed 22 Feb. 2022).
80 Guyana Bureau of Statistics, “Demography, Vital & Social Statistics—Population & housing
Census”, available at https://statisticsguyana.gov.gy/publications/ (last accessed 22 Feb. 2022).
81 Guyana Bureau of Statistics, “Population and Housing Census – 2012, Household by Dwelling
Ownership and by Village”, available at https://statisticsguyana.gov.gy/publications/ (last accessed
22 Feb. 2022).
82 Ibid.
40
outstanding achievements, served for nine years as a Judge on the International
Court of Justice, and also as a Judge and Vice President of the International
Criminal Tribunal for the Former Yugoslavia. Dr Shahabuddeen was raised in the
village of Huis T’Dieren, and served as a magistrate in the village of Suddie, in the
Essequibo Region.83
2.24 Guyana also administers national and regional elections in the Essequibo
Region. The official results of the last national elections, which were held on 2
March 2020, reflect that votes were cast by Guyanese citizens throughout the
Essequibo Region,84 and that 21 Members of the national Parliament (out of a total
of 25) were elected from geographical constituencies in the Region.85
2.25 In sum, the Essequibo Region is an integral part of Guyana. Taken together,
the geography, economic activity and continuous governance of the land and
peoples in the Region — first by the Dutch and British colonial authorities, and
then by Guyana itself following independence — demonstrate the deep and abiding
linkage between the Essequibo Region and the rest of the country.
83 Dr Shahabuddeen was not only a jurist, but a scholar of history, especially Guyanese history. His
major works include M. Shahabudeen, CONSTITUTIONAL DEVELOPMENT IN GUYANA: 1621-1978
(1978).
84 Guyana Elections Commission (GEM), “Official List of Electors 2020”, available at
https://www.gecom.org.gy/home/ole_list (last accessed 22 Feb. 2022).
85 Guyana, “Legal Suplement – B”, The Official Gazette (20 Aug. 2020), available at
https://gecom.org.gy/assets/docs/gre-2020/GRE20_Gazetted_Results.pdf (last accessed 22 Feb.
2022).
41
CHAPTER 3
THE BOUNDARY DISPUTE BETWEEN GREAT BRITAIN AND
VENEZUELA AND THE PARTIES’ AGREEMENT TO SETTLE IT BY
INTERNATIONAL ARBITRATION
3.1 This Chapter recounts the rise of the boundary dispute between Great
Britain and Venezuela in the middle of the nineteenth century and the
circumstances which led the two States to agree to settle it by final and binding
arbitration. It then describes the terms of their arbitration agreement, as embodied
in the 1897 Treaty of Washington, and the arbitration process itself, which resulted
in the Award issued in 1899.
3.2 Section I describes Great Britain’s efforts to survey, demarcate and
establish the limits of the territory it had formally obtained from the Dutch at the
end of the Napoleonic Wars and consolidated into the single colony of British
Guiana in 1831. It also describes the origin of Venezuela’s claim to the territory
bounded by the Orinoco River in the west and the Essequibo River in the east, in
conflict with Britain’s claim to the same territory. Section II recounts the
intercession by the United States and its efforts to facilitate an agreement between
Venezuela and the United Kingdom to submit the controversy over title to the
disputed territory to final and binding international arbitration, which culminated
in the 1897 Treaty of Washington. Section III then describes the terms of the 1897
Treaty, and Section IV addresses the arbitral process that took place under the
Treaty and the issuance of a unanimous final Award on 3 October 1899.
I. The Boundary Dispute between Great Britain and Venezuela
3.3 After the British consolidated the former Dutch colonies of Essequibo,
Demerara and Berbice into a single colonial entity in 1831, they set out to survey
42
and demarcate the territorial limits of newly established British Guiana. Between
1835 and 1839, at the behest of the Royal Geographical Society, German-born
botanist, surveyor, and geographer Robert Schomburgk conducted three
expeditions into this area, during which he explored and sketched out the contours
of the territory between the Essequibo River and the western boundary formerly
claimed by the Dutch.86
3.4 In 1840, after Schomburgk completed his work on behalf of the Royal
Geographical Society, the British Government commissioned him to survey and
demarcate the colony's boundaries for eventual communication to the Governments
of Brazil and Venezuela.87 Great Britain informed Venezuela of the commissioning
of these efforts prior to their commencement.88 The President of Venezuela
responded positively, writing that he “ha[d] conceived this to be the best
opportunity to settle definitively this affair, which interests both nations”.89 The
Venezuelan President proposed that, prior to Schomburgk’s exercise, Venezuela
and Great Britain conclude a Treaty of Limits establishing a Joint Commission for
carrying out the survey.90 No such Treaty was concluded, however, since
86 See Letter from Mr. Schomburgk to Governor Light (1 July 1839) (Inclosure in Letter from the
Colonial Office to the Foreign Office (6 Mar. 1840)). MMG, Vol. III, Annex 16. “Map Depicting
the Expeditions of Robert Schomburgk (1835-1839)” in Vol. II, Annex of Maps and Figures shows
the routes that Schomburgk followed on these expeditions. MMG, Vol. II, Figure 3.1 (in Vol. II
only).
87 Letter from Lord J. Russell to Governor Light (23 Apr. 1840) (Inclosure in Letter from Colonial
Office to Foreign Office (28 Apr. 1840)). MMG, Vol. III, Annex 17.
88 Letter from Viscount Palmerston to Sir R. Ker Porter (28 Nov. 1840), Letter from Mr. O’Leary
to Viscount Palmerston (24 Jan. 1841) and Letter from Mr. O’Leary to Viscount Palmerston (2 Feb.
1841). MMG, Vol. III, Annex 18 (charging Sir Ker Porter to communicate the commission of Mr
Schomburgk to the Government of Venezuela).
89 Ibid.
90 Ibid.
43
Schomburgk had already embarked on his mission by the time Venezuela’s letter
was received in London.91
3.5 Between 1841 and 1844, Schomburgk conducted five more expeditions
across the territory claimed by the British.92 During the first of these expeditions,
in 1841, Schomburgk traversed the Barima and Cuyuni Rivers, and he raised
British flags and placed other marks of the Crown at the mouth of the Amakura
River and at Barima Point.93 As he explained:
“The British Empire acquired, therefore, Guiana, with the same
claims to the termini of its boundaries as held by the Dutch before
it was ceded by Treaty to Great Britain .... Of equal importance is
the determination of the western boundary of British Guiana, the
limits of which have never been completely settled. The Dutch,
when in possession of the Colony, extended their sugar and cotton
plantations beyond the River Pomaroon. They recognized neither
the mouth of the River Pomaroon nor that of the Moroco [Moruca],
where a military fort was established as the limits of their territory.
They had even occupation of the eastern banks of the small River
Barima (before the English, in 1666, had destroyed the fort of New
Zealand, or New Middleburg), which military outpost they
considered to be their western boundary. When the settlements were
in the possession of the Netherlands the present countries of
91 Letter from Señor Aranda to Governor Light (31 Aug. 1841) and Letter from Governor Light to
Señor Aranda (20 Oct. 1841) (Inclosures in Letter from Governor Light to Lord Stanley (21 Oct.
1841)). MMG, Vol. III, Annex 19.
92 Schomburgk’ expeditions during this period are shown in “Map Depicting the Expeditions of
Robert and Richard Schomburgk (1840-1844).” MMG, Vol. II, Figure 3.2 (in Vol. II only).
93 See Letter from Señor Aranda to Governor Light (31 Aug. 1841) and Letter from Governor Light
to Señor Aranda (20 Oct. 1841) (Inclosures in Letter from Governor Light to Lord Stanley (21 Oct.
1841)). MMG, Vol. III, Annex 19. See also Boundary between the Colony of British Guiana and
the United States of Venezuela, The Case of the Government of Her Britannic Majesty (1898), p.
66. MMG, Vol. IV, Annex 119.
44
Demerara and Essequibo were divided into the Colonies of
Pomaroon, Essequibo, and Demerara (vide Hartsinck, ‘Beschryving
Van Guiana’, Amsterdam, 1770, vol. 1, p. 257).
As the first was the most western possession, and formed the
boundary between Spanish Guiana, its limits were considered to
extend from Punta Barima, at the mouth of the Orinoco, in latitude
8º 4’ north, longitude 60º 6’ west, south-west and by west to the
mouth of the River Amacura, following the Caño Cuyuni from its
confluence with the Amacura to its source, from whence it was
supposed to stretch in a south-south-east line towards the River
Cuyuni (a tributary of the Essequibo), and from thence southward
towards the Massaruni.”94
3.6 Based on these findings, Schomburgk determined the outer limit of British
territory to be the Amakura River, four miles west of Barima Point “as it is no doubt
the most natural limit west of the former possessions of the Dutch”.95 He noted in
his report that Dutch settlements abutted the Barima River and that throughout the
eighteenth century, disinterested scholars acknowledged the Barima as the
boundary of Dutch territory.96 Schomburgk published a report of his findings and
devised a map of the territory. The map included a proposed territorial boundary
line, separating British Guiana from Venezuela, which later came to be known as
the Schomburgk Line. This is depicted below, on Figure 3.3, as the “Original
Schomburgk Line”.
94 Letter from Mr. Schomburgk to Governor Light (1 July 1839) (Inclosure in Letter from the
Colonial Office to the Foreign Office (6 Mar. 1840)). MMG, Vol. III, Annex 16.
95 Letter of Mr. Schomburgk to Governor Light (30 Nov. 1841) enclosing Memorandum by Mr.
Schomburgk. MMG, Vol. III, Annex 21.
96 Ibid.
45
3.7 The publication of the Schomburgk Line in 1844 alarmed Venezuela and
prompted it to assert a claim, for the first time, to territory lying east of the Orinoco
River, which Schomburgk had determined to be British. Subsequently, Venezuela
made various protests to the British, eventually asserting its sovereignty over all of
the territory between the Orinoco and Essequibo Rivers.97 Venezuela based its
claims on the alleged Spanish discovery of the Americas, broadly speaking, with
little assessment of the extent of Spanish exploration of the Guianas in particular,
or of their historical settlement and control by the Dutch, followed by the British.
Venezuela argued that, in accordance with a 1493 Papal Bull issued by Pope
Alexander VI (a Spaniard), “[t]he right of Spain [and Venezuela by rights of
succession] to the territory of America has always been indisputable in the eyes of
all the nations of the world”.98 For Venezuela, the treaties by which the British
acquired British Guiana from the Dutch could not be respected because the
Netherlands was unable to convey “what did not belong to her, and what she knew
did not belong to her — to England”.99 Great Britain rejected these arguments,
emphasising that Dutch dominion over the Essequibo Region was confirmed by
Spain in the Treaties of Münster and Utrecht, and by the absence of any Spanish
settlement of the Region.100
3.8 This standoff persisted until 1877, when the Venezuelan Minister in
London, José de Rojas, wrote to the British Foreign Secretary, proposing an
97 See, e.g., Letter from Señor de Rojas to the Earl of Derby (13 Feb. 1877). MMG, Vol. III, Annex
23 (reiterating Venezuela’s claim of all land west of the Essequibo River and proposing an amicable
settlement through a mutually agreed upon conventional line).
98 Letter from Señor Calcaño to the Earl of Derby (14 Nov. 1876). MMG, Vol. III, Annex 22.
99 Ibid.
100 See, e.g., Letter from The Marquess of Salisbury to Señor de Rojas (10 Jan. 1880). MMG, Vol.
III, Annex 24.
46
amicable settlement.101 In 1880, the two States entered formal negotiations on a
boundary line. Great Britain proposed a line based on Schomburgk’s initial surveys
of the region further west than the Schomburgk Line.102 The British claim
commenced at a point 29 miles due east of the right (eastern) bank of the Barima
River, and extending south from that point to the Accarabisi River until its junction
with the Cuyuni River, and thence to its source in the Essequibo River along the
line proposed by Schomburgk.103 This proposal is depicted in Figure 3.3, as the
“Extreme Boundary Claimed by Great Britain”. Figure 3.3104 also depicts the
101 Letter from Señor de Rojas to the Earl of Derby (13 Feb. 1877) (reiterating Venezuela’s claim
of all land west of the Essequibo River and proposing an amicable settlement through a mutually
agreed upon conventional line). MMG, Vol. III, Annex 23.
102 The boundary line Schomburgk proposed largely followed natural features, based on what he
considered “the absolute necessity that the boundaries of British Guiana should be based upon
natural divisions” (see Letter from Mr. Schomburgk to Governor Light (15 Sept. 1841). MMG, Vol.
III, Annex 20). On this basis, he attributed the Yuruari River basin, in the west, to Venezuela even
though it had been settled and controlled by the Dutch. Great Britain was unwilling to make the
concession proposed by Schomburgk. It continued to claim what it regarded as the full extent of the
former Dutch possessions, including the Yuruari River and its basin, holding fast to the position
that British Guiana’s territory extended far beyond the Schomburgk Line, while emphasising that
the territory had been under the uninterrupted possession of The Netherlands and Great Britain for
two centuries. See Boundary between the Colony of British Guiana and the United States of
Venezuela, The Case of the Government of Her Britannic Majesty (1898), p. 18. MMG, Vol. IV,
Annex 117 (“In 1840 Mr R. H. Schomburgk was employed by the British Government to survey
the boundaries of British Guiana. He laid down a line which commenced at the mouth of the
Amakuru, followed that river to its source in the Imataka Mountains, thence followed the crest of
that ridge to the sources of the Acarabisi Creek, and descended that creek to the Cuyuni, which it
followed to its source in Mount Roraima. This line, which is clearly defined in his reports and shown
on two of the original maps drawn by him, possesses advantages in point of physical features, but
would have given to Venezuela a large tract of territory north and west of the Cuyuni which was
never occupied by the Spanish Missions, which was, on the other hand, formally claimed by the
Dutch, and to which Great Britain is now entitled as part of British Guiana”.).
103 Memorandum on the Question of Boundaries between British Guiana and Venezuela, (Inclosure
in Letter from Earl Granville to Señor de Rojas (15 Sept. 1881)). MMG, Vol. IV, Annex 63.
104 Scottish Geographical Magazine, “Boundary Lines of British Guiana” (1896). MMG, Vol. II,
Figure 3.3.
47
Original Schomburgk Line and Venezuela’s claim to the entire area between the
Orinoco and Essequibo Rivers.
Figure 3.3. Boundary Lines of British Guiana (1896)
48
3.9 In November 1883, there having been no progress toward an agreement,
Venezuela proposed that the boundary be settled by arbitration rather than
negotiation. This was communicated in a letter from the Venezuelan Foreign
Minister, Rafael Seijas, to Colonel C. E. Mansfield, the British Minister in Caracas.
The letter explained that Venezuela was barred by its constitution from voluntarily
ceding any of its sovereign territory, and coupled with the inflexibility of Britain’s
demands, it would be impossible to bring “this discussion to a conclusion by any
other means than by the decision of an Arbitrator who, freely and unanimously
chosen by the two Governments, would judge and pronounce a sentence of a
definite character”.105
3.10 In response, on 29 February 1884, the British Foreign Minister expressed
concern that:
“if Her Majesty’s Government consent to arbitration, the same
provision of the Constitution may be invoked as an excuse for not
abiding by the Award should it prove unfavourable to Venezuela.
If, on the other hand, the arbitrator should decide in favour of the
Venezuelan Government to the full extent of their claim, a large and
important territory, which has for a long period been inhabited and
occupied by Her Majesty’s subjects, and treated as part of the
Colony of British Guiana would be severed from the Queen’s
dominions.”106
105 Letter from Señor Seijas to Colonel Mansfield (15 Nov. 1883). MMG, Vol. III, Annex 25.
106 Letter from Earl Granville to Colonel Mansfield (29 Feb. 1884). MMG, Vol. III, Annex 27.
49
3.11 Venezuela replied by giving its assurances that the Venezuelan Constitution
would not be an impediment to acceptance and compliance with an arbitral award
fixing its boundary with British Guiana:
“[W]hen both nations, putting aside their independence (of action)
in deference to peace and good friendship, create by mutual consent
a Tribunal which may decide in the controversy, the same is able to
pass sentence that one of the two parties, or both of them, have been
mistaken in their opinions concerning the extent of their territory.
Thus the case would not be in opposition to the Constitution of the
Republic, there being no alienation of that which shall have been
determined not to be her property.
Arbitration alone possesses that advantage among the means for
settling international disputes, above all when it has become
palpable that an arrangement or transaction has become an
impossibility for attaining the desired aim.”107
3.12 Despite this assurance, the British were unwilling to submit the settlement
of the boundary to arbitration. On 20 February 1887, Venezuela informed Great
Britain that, due to the protraction of the dispute and alleged aggravation thereof
by the British, it had decided to suspend diplomatic relations, since it was not
“fitting to continue friendly relations with a State which thus injures her”.108
II. The Intervention of the United States
3.13 The impasse between Great Britain and Venezuela provoked the diplomatic
engagement of the United States, which regarded the British claims as a threat to
107 Letter from Señor Seijas to Colonel Mansfield (9 Apr. 1884) (Inclosure in Letter from Colonel
Mansfield to Earl Granville (18 Apr. 1884)). MMG, Vol. III, Annex 26 (emphasis added).
108 Letter from Señor Urbaneja to Mr. F. R. St. John (20 Feb. 1887). MMG, Vol. III, Annex 28.
50
its enforcement of the Monroe Doctrine, by which the U.S. had sought, since the
1820s, to resist or limit European colonization in the Western Hemisphere.
3.14 In February 1887, the U.S. Secretary of State, Thomas Bayard, serving
under President Grover Cleveland, communicated the President’s willingness to
provide good offices to achieve a settlement of the dispute. The Secretary of State’s
letter stated that the United States maintained a “sense of responsibility ... in
relation to the South American republics”, and as a warning to the British, asserted
that the Monroe Doctrine remained in force.109
3.15 Venezuela welcomed the intervention of the United States and, at the
outset, asked it to act directly on its behalf with respect to the dispute with Great
Britain,110 in the hope that intercession from the United States would induce Great
Britain’s agreement to arbitrate. On 18 September 1888, the Venezuelan chargé
d’affaires in Washington, Fr Antonio Silva, sent a letter to Colonel George
Gibbons, the diplomatic agent of Venezuela in New York. This stated:
“To the President of the United States, Grover Cleveland, my
country is largely indebted for his sympathy and the notion taken by
him toward the Government of Great Britain, in showing that
Government that the United States of America was not indifferent
109 Letter from Mr. Olney to Mr. Bayard (20 July 1895), in U.S. Department of State, Papers
Relating to the Foreign Relations of the United States, with the Annual Address of the President,
Part I (Transmitted to Congress 2 Dec. 1895) (1896), Doc. 527, available at
https://history.state.gov/historicaldocuments/frus1895p1/d527 (last accessed 22 Feb. 2022),
quoting American Secretary Of State Thomas Bayard To The American Minister To Great Britain,
Edward John Phelps, February 1887.
110 Ibid.
51
to the unwarranted acts of encroachment by Great Britain on the
territory of the Republic of Venezuela.
This timely interference on the part of President Cleveland has for
the present stopped the English Government in her attempted acts
of spoilation, encroachment, and appropriation to herself of very
nearly one-third of our whole republic, and besides taking
possession of the Orinoco River, which connects with the River
Amazon and the Plate, the possession of which would have given to
Great Britain the absolute control of the trade of the whole of South
America. My Government and people feel that in President
Cleveland they have a friend and protector, and that the power of
Great Britain over this trade is at an end, and that closer commercial
and friendly relations between the United States and my country are
firmly established in the wishes of my country men and will be
carried out by my Government.”111
3.16 It took years before President Cleveland’s efforts to encourage the parties
to submit their dispute to binding international arbitration, as Venezuela desired,
111 Letter from Venezuelan Chargé d’Affaires In The United States Of America, Fr. Antonio Silva,
to Col. George Gibbons, Diplomatic Agent Of Venezuela In New York Doc. 870 (18 Sept. 1888)
available at http://www.guyana.org/Western/1888-1891.html (last accessed 22 Feb. 2022). See
also, subsequent entreaties from Venezuelan government authorities to the United States: Letter
from Mr. Peraza to Mr. Blaine (17 Feb. 1890), in U.S. Department of State, Papers Relating to the
Foreign Relations of the United States, with the Annual Address of the President, (Transmitted to
Congress 1 Dec. 1890) (1891), Doc. 496, available at
https://history.state.gov/historicaldocuments/frus1890/d496 (last accessed 22 Feb. 2022); Letter
from Mr. Scruggs to Mr. Blaine (6 Mar. 1890), in U.S. Department of State, Papers Relating to the
Foreign Relations of the United States, with the Annual Address of the President, (Transmitted to
Congress 1 Dec. 1890) (1891), Doc. 488, available at
https://history.state.gov/historicaldocuments/frus1890/d488 (last accessed 22 Feb. 2022); Letter
from Mr. Peraza to Mr. Blaine (24 Apr. 1890), in U.S. Department of State, Papers Relating to the
Foreign Relations of the United States, with the Annual Address of the President, (Transmitted to
Congress 1 Dec. 1890) (1891), Doc. 497, available at
https://history.state.gov/historicaldocuments/frus1890/d497 (last accessed 22 Feb. 2022); Letter
from M. Andrade to Mr. Gresham (31 March 1894), in U.S. Department of State, Papers Relating
to the Foreign Relations of the United States, with the Annual Address of the President,
(Transmitted to Congress 3 Dec. 1894) (1895), Doc. 820, available at
https://history.state.gov/historicaldocuments/frus1894/d820 (last accessed 22 Feb. 2022).
52
bore fruit. As of 1894, the President was still pursuing this end. In his Annual
Address to the U.S. Congress in that year, he said:
“The boundary of British Guiana still remains in dispute between
Great Britain and Venezuela. Believing that its early settlement on
some just basis alike honorable to both parties is in the line of our
established policy to remove from this hemisphere all causes of
difference with powers beyond the sea, I shall renew the efforts
heretofore made to bring about a restoration of diplomatic relations
between the disputants and to induce a reference to arbitration, a
resort which Great Britain so conspicuously favors in principle and
respects in practice and which is earnestly sought by her weaker
adversary.”112
3.17 By 1895, the United States’ frustration with Great Britain’s refusal to
submit the boundary dispute with Venezuela to arbitration prompted the U.S.
Secretary of State, Richard Olney, to send a communication to the British Prime
Minister, Lord Salisbury, invoking the Monroe Doctrine and threatening U.S.
military intervention in support of Venezuela’s claims:
“Thus far in our history we have been spared the burdens and evils
of immense standing armies and all the other accessories of huge
warlike establishments, and the exemption has largely contributed
to our national greatness and wealth as well as to the happiness of
every citizen. But, with the powers of Europe permanently
encamped on American soil, the ideal conditions we have thus far
enjoyed cannot be expected to continue. We too must be armed to
the teeth, we too must convert the flower of our male population
into soldiers and sailors, and by withdrawing them from the various
112 Annual Message of President Grover Cleveland to the Congress of the United States (3 Dec.
1894), in U.S. Department of State, Papers Relating to the Foreign Relations of the United States,
with the Annual Address of the President, (Transmitted to Congress 3 Dec. 1894) (1895), available
at https://history.state.gov/historicaldocuments/frus1894/message (last accessed 22 Feb. 2022).
53
pursuits of peaceful industry we too must practically annihilate a
large share of the productive energy of the nation…
In these circumstances, the duty of the President appears to him
unmistakable and imperative. Great Britain’s assertion of title to the
disputed territory combined with her refusal to have that title
investigated being a substantial appropriation of the territory to her
own use, not to protect and give warning that the transaction will be
regarded as injurious to the interest of the people of the United
States as well as oppressive in itself would be to ignore an
established policy with which the honor and welfare of this country
are closely identified.”113
3.18 Lord Salisbury responded that the dispute between British Guiana and
Venezuela was not a manifestation of colonial expansion but rather a boundary
dispute between territorial neighbours that warranted no involvement on the part
of the United States, let alone invocation of the Monroe Doctrine:
“But the circumstances with which President Monroe was dealing,
and those to which the present American Government is addressing
itself, have very few features in common. Great Britain is imposing
no “system” upon Venezuela, and is not concerning herself in any
way with the nature of the political institutions under which the
Venezuelans may prefer to live. But the British Empire and the
Republic of Venezuela are neighbours, and they have differed for
some time past, and continue to differ, as to the line by which their
dominions are separated. It is a controversy with which the United
States have no apparent practical concern. It is difficult, indeed, to
see how it can materially affect any State or community outside
those primarily interested, except perhaps other parts of Her
Majesty’s dominions, such as Trinidad. The disputed frontier of
Venezuela has nothing to do with any of the questions dealt with by
113 Letter from Mr. Olney to Mr. Bayard (20 July 1895), in U.S. Department of State, Papers
Relating to the Foreign Relations of the United States, with the Annual Address of the President,
Part I (Transmitted to Congress 2 Dec. 1895) (1896), Doc. 527, available at
https://history.state.gov/historicaldocuments/frus1895p1/d527 (last accessed 22 Feb. 2022).
54
President Monroe. It is not a question of the colonization by a
European Power of any portion of America. It is not a question of
the imposition upon the communities of South America of any
system of government devised in Europe. It is simply the
determination of the frontier of a British possession which belonged
to the Throne of England long before the Republic of Venezuela
came into existence.”114
3.19 In December 1895, one month after receiving Lord Salisbury’s response,
President Cleveland issued another Message to the U.S. Congress, once again
citing the Monroe Doctrine, and indicating that it had become “incumbent” on the
United States “to take measures” to establish the “true” boundary between
Venezuela and British Guiana:
“[T]he [Monroe] doctrine upon which we stand is strong and sound,
because its enforcement is important to our peace and safety as a
nation and is essential to the integrity of our free institutions and the
tranquil maintenance of our distinctive form of government ...,
If a European power by an extension of its boundaries takes
possession of the territory of one of our neighboring Republics
against its will and in derogation of its rights, it is difficult to see
why to that extent such European power does not thereby attempt to
extend its system of government to that portion of this continent
which is thus taken ....
[T]he dispute has reached such a stage as to make it now incumbent
upon the United States to take measures to determine with sufficient
114 Letter from Lord Salisbury to Sir Julian Pauncefote (26 Nov. 1895), in U.S. Department of State,
Papers Relating to the Foreign Relations of the United States, with the Annual Address of the
President, Part I (Transmitted to Congress 2 Dec. 1895) (1896), Doc. 529, available at
https://history.state.gov/historicaldocuments/frus1895p1/d529 (last accessed 22 Feb. 2022).
55
certainty for its justification what is the true divisional line between
the Republic of Venezuela and British Guiana.”115
3.20 Soon after delivering this message, President Cleveland, with financial
support from the Congress, established the United States Venezuela Border
Commission to investigate, as a third party, the competing territorial claims of
Great Britain and Venezuela.116 To chair this Commission, President Cleveland
selected Supreme Court Justice David J. Brewer, who would later be appointed as
one of the members of the Tribunal in the 1899 Arbitration.117 Four other prominent
U.S. citizens who enjoyed the confidence of the President were also appointed, one
of whom, Mr Andrew Dickson White of New York, described the Commission’s
work in his autobiography, published in 1905.118 The Commission was staffed by
a Secretary, Mr Severo Mallet-Prevost, a lawyer from New York who would later
serve as one of Venezuela’s counsel in the 1899 Arbitration.119 The Venezuelan
115 Speech of Grover Cleveland: Message Regarding Venezuelan-British Dispute (17 Dec. 1895),
available at https://millercenter.org/the-presidency/presidential-speeches/december-…-
message-regarding-venezuelan-british-dispute (last accessed 22 Feb. 2022).
116 United States 54th Congress, Act of the United States Congress, Public Act No. 1 (21 Dec. 1895).
MMG, Vol. IV, Annex 82 (appropriating one hundred thousand dollars “for the expenses of a
commission to be appointed by the President to investigate and report upon the true divisional line
between the Republic of Venezuela and British Guiana”.).
117 United States 55th Congress, 1st Session, Report from the Secretary of State regarding the Work
of the Special Commission Appointed to Reexamine and Report upon the True Line between
Venezuela and British Guiana, Transmitted to the U.S. Senate Committee on Foreign Relations,
Doc. No. 106 (25 May 1897). MMG, Vol. IV, Annex 65.
118 White was a founder of Cornell University. The other members of the U.S. Commission included
Richard H. Alvey, Chief Justice of the Court of Appeals of the District of Columbia; F.R. Coudert,
international scholar and president of New York bar (1890–91); and Dr D.C. Gilman, geographer
and President of the Johns Hopkins University.
119 See United States 55th Congress, 1st Session, Report from the Secretary of State regarding the
Work of the Special Commission Appointed to Reexamine and Report upon the True Line between
Venezuela and British Guiana, Transmitted to the U.S. Senate Committee on Foreign Relations,
Doc. No. 106 (25 May 1897). MMG, Vol. IV, Annex 65.
56
Minister of Foreign Affairs, Mr Pedro Ezequiel Rojas, communicated to U.S.
Secretary of State Richard Olney his Government’s support of the Commission, as
well as an offer to transmit archival documents to assist the Commission’s
efforts.120
3.21 The British were not quite as content. According to Mr White’s account,
President Cleveland was frustrated by Britain’s refusal to agree to arbitration and
settled on the Commission as a means to pressure the British to change their
position. He wrote that the President proposed a U.S. Commission “since Great
Britain would not intrust the finding of a boundary to arbitration” but would fear
more the appointment by the U.S. President of “commissioners to find what the
proper boundary was, and then, having ascertained it, should support its sister
American republic in maintaining it”.121 As Mr White explained:
“Of course, every thinking Englishman looked with uneasiness
toward the possibility that a line might be laid down by the United
States which it would feel obligated to maintain, and which would
120 Letter from Mr. Andrade to Mr. Olney (1 Feb. 1895), in U.S. Department of State, Papers
Relating to the Foreign Relations of the United States, with the Annual Address of the President,
Part I (Transmitted to Congress 2 Dec. 1895) (1896), Doc. 766, available at
https://history.state.gov/historicaldocuments/frus1895p2/ (last accessed 22 Feb. 2022); Letter from
Mr. Andrade to Mr. Olney (1 Feb. 1895), in U.S. Department of State, Papers Relating to the
Foreign Relations of the United States, with the Annual Address of the President, Part I (Transmitted
to Congress 2 Dec. 1895) (1896), Doc. 767, available at
https://history.state.gov/historicaldocuments/frus1895p2/d767 (last accessed 22 Feb. 2022). See
also Venezuela Ministry of Foreign Affairs, Memorandum by The Ministry of Foreign Affairs of
Venezuela relative to the Note of Lord Salisbury to Mr Richard Olney, dated November 26, 1895,
on the question of boundary between Venezuela and British Guayana (1896), pp. 3-4 (Letter from
P. Ezequiel Rojas to Richard Olney (28 Mar. 1896)). MMG, Vol. IV, Annex 64 (providing to the
Commission a Memorandum containing the Government of Venezuela’s assessment of the history
of the territorial claims).
121 Andrew D. White, AUTOBIOGRAPHY OF ANDREW DICKSON WHITE (1917), Vol. II, p. 118.
57
necessitate its supporting Venezuela, at all hazards, against Great
Britain.”122
3.22 The pressure on the British succeeded. As related by Mr White:
“The statesmanship of Mr Cleveland and Mr Olney finally
triumphed. Most fortunately for both parties, Great Britain had at
Washington a most eminent diplomat ... Sir Julian, afterward Lord,
Pauncefote. His wise counsels prevailed; Lord Salisbury [the British
Prime Minister/Foreign Secretary] receded from his position; Great
Britain agreed to arbitration; and the question entered a new
stage”.123
3.23 Upon Britain’s agreement to arbitrate, in April 1896, U.S. Secretary of State
Olney wrote to Supreme Court Justice Brewer, as Chairman of President
Cleveland’s Commission:
“The United States and Great Britain are in entire accord as to the
provisions of a proposed treaty between Great Britain and
Venezuela. The treaty is so eminently just and fair as respects both
parties — so thoroughly protects the rights and claims of Venezuela
— that I cannot conceive of its not being approved by Venezuelan
President and Congress. It is thoroughly approved by the counsel of
Venezuela here and by the Venezuelan Minister at this capital.”124
122 Ibid., p. 124.
123 Ibid., p. 124.
124 United States 55th Congress, 1st Session, Report from the Secretary of State regarding the Work
of the Special Commission Appointed to Reexamine and Report upon the True Line between
Venezuela and British Guiana, Transmitted to the U.S. Senate Committee on Foreign Relations,
Doc. No. 106 (25 May 1897), p. 13. MMG, Vol. IV, Annex 65.
58
3.24 In his December 1896 Annual Message to Congress, President Cleveland
claimed success in his efforts to obtain Britain’s agreement to submit its dispute
over British Guiana’s boundary with Venezuela to binding arbitration:
“The Venezuelan boundary question has ceased to be a matter of
difference between Great Britain and the United States, their
respective Governments having agreed upon the substantial
provisions of a treaty between Great Britain and Venezuela
submitting the whole controversy to arbitration. The provisions of
the treaty are so eminently just and fair that the assent of Venezuela
thereto may confidently be anticipated.”125
3.25 Indeed, Venezuela promptly assented. Its President, Joaquín Sinforiano De
Jesús Crespo, hailed the crucial role played by President Cleveland in encouraging
the British to assent to arbitration, as “solicited by Venezuela”.126 In a speech
delivered to the National Congress of Venezuela, the President highlighted that, in
conducting its negotiations with Great Britain, the United States consulted with the
Venezuelan Legation in Washington and that, when a protocol for the basis of an
arbitration treaty was negotiated, it was submitted directly to him for his review
125 Annual Message of President Grover Cleveland to the Congress of the United States (3 Dec.
1894), in U.S. Department of State, Papers Relating to the Foreign Relations of the United States,
with the Annual Address of the President, (Transmitted to Congress 7 Dec. 1896) (1897), p. 121,
available at https://history.state.gov/historicaldocuments/frus1896/message-of-the-p… (last
accessed 22 Feb. 2022).
126 “The Venezuelan Treaty: President Crespo’s Message to Congress Regarding the Document
Received Here”, The New York Times (12 March 1897) (“The Department of Foreign Affairs has
given during the past year particular attention to the boundary question of British Guiana, a question
of absorbing interest ever since his Excellency, Mr Cleveland, demonstrated to the world the way
in which the United States intended to exercise the intervention solicited by Venezuela. After this
the dispute assumed a most favorable aspect… While the Venezuelan Government, through the
patriotic and earnest efforts of its Foreign Office, was presenting and urging its rights before the
Boundary Commission, the State Department at Washington, with laudable efforts, was
endeavoring to secure arbitration from the British Ministry, in order to adjust with greater facility
and success this unpleasant dispute of almost a century”.).
59
and approbation. The Venezuelan President pointed out, in particular, that he had
procured a change to the protocol to ensure that “Venezuela should have a voice in
the naming of the arbitral tribunal”.127
III. The Terms of the Agreement to Arbitrate
3.26 The Treaty of Arbitration between Great Britain and Venezuela was signed
in Washington on 2 February 1897.128 The “Treaty of Washington”, as it came to
be known, stated in its Preamble that its purpose was “to provide for an amicable
settlement of the question which has arisen between their respective Governments
concerning the boundary between the Colony of British Guiana and the United
States of Venezuela, having resolved to submit to arbitration the question
involved”.129 The mandate of the Arbitral Tribunal was spelled out in Articles I, III,
IV (including the rules laid out in that Article) and V. In due course, the Tribunal
proceeded to elaborate further rules of procedure for the Arbitration, which it
adopted unanimously without objection from either party.130
127 Ibid.
128 Treaty Between Great Britain and the United States of Venezuela Respecting the Settlement of
the Boundary Between the Colony of British Guiana and the United States of Venezuela, 5 U.K.T.S.
67 (2 Feb. 1897). AG, Annex 1.
129 Ibid., (emphasis added).
130 Boundary between the Colony of British Guiana and the United States of Venezuela, First Day’s
Proceedings (25 Jan. 1899). MMG, Vol. IV, Annex 96. Boundary between the Colony of British
Guiana and the United States of Venezuela, Second Day’s Proceedings (15 June 1899), pp. 6-8.
MMG, Vol. IV, Annex 97.
60
3.27 Article I stated the question to be decided:
Article I
An Arbitral Tribunal shall be immediately appointed to determine
the boundary line between the Colony of British Guiana and the
United States of Venezuela.
3.28 In making this determination, Article III provided that the Tribunal should
consider the legal status of the disputed territory as of the time Great Britain
acquired the colonial possessions from the Dutch and ascertain what territory could
have been lawfully claimed by the Dutch and the Spanish, respectively, at that time.
Article III
The Tribunal shall investigate and ascertain the extent of the
territories belonging to, or that might lawfully be claimed by the
United Netherlands or by the Kingdom of Spain respectively at the
time of the acquisition by Great Britain of the Colony of British
Guiana, and shall determine the boundary line between the Colony
of British Guiana and the United States of Venezuela.
3.29 Article IV set out the rules governing the Arbitration and applicable law:
Article IV
In deciding the matters submitted, the Arbitrators shall ascertain all
facts which they deem necessary to a decision of the controversy,
and shall be governed by the following Rules, which are agreed
upon by the High Contracting Parties as Rules to be taken as
applicable to the case, and by such principles of international law
not inconsistent therewith as the Arbitrators shall determine to be
applicable to the case:
“Rules.
a) Adverse holdings or prescription during a period of
fifty years shall make a good title. The Arbitrators
may deem exclusive political control of a district, as
well as actual settlement thereof, sufficient to
constitute adverse holding or to make title by
prescription
61
b) The Arbitrators may recognize and give effect to
rights claims resting on any other ground whatever
valid according to international law, and on principle
of international law which the Arbitrators may deem
to be applicable to the case, and which are not in
contravention of the foregoing rule.
c) In determining the boundary-line, if the territory of
one Party be found by the Tribunal to have been at
the date of this Treaty in occupation of the subjects
or citizens of the other Party, such effect shall be
given to such occupation as reason, justice, the
principles of international law, and the equities of the
case shall, in the opinion of the Tribunal, require.”
3.30 Article V provided that the Tribunal “shall proceed impartially and
carefully to examine and decide the questions laid before them”.131 To assure that
the Tribunal’s decisions would finally and permanently settle all boundary-related
questions, Article XIII stipulated that the parties “engage to consider the result of
the proceedings ... as full, perfect and [the] final settlement of all the questions
referred to the Arbitrators”.132
3.31 The manner of constituting the Tribunal was specified in Article II, which
called for a panel of five Arbitrators, two to be selected by Great Britain, two
selected by Venezuela, and the fifth by the other four. By the time the Treaty was
in force, the four party-appointed Arbitrators had already been selected, and their
official appointments were recorded:
131 Treaty Between Great Britain and the United States of Venezuela Respecting the Settlement of
the Boundary Between the Colony of British Guiana and the United States of Venezuela, 5 U.K.T.S.
67 (2 Feb. 1897), Art. V. AG, Annex 1.
132 Ibid., Art. XIII.
62
“The Tribunal shall consist of five jurists; two on the part of Great
Britain, nominated by the members of the Judicial Committee of
Her Majesty’s Privy Council, namely, the Right Honourable Baron
Herschell, Knight Grand Cross of the Most Honourable Order of
Bath, and the Honourable Sir Richard Henn Collins, Knight, one of
the Justices of Her Britannic Majesty’s Supreme Court of the
Judicature; two on the part of Venezuela, nominated, one by the
President of the United States of Venezuela, namely, the
Honourable Melville Weston Fuller, Chief Justice of the United
States of America, and one nominated by the Justices of the
Supreme Court of the United States of America, namely, the
Honourable David Josiah Brewer, a Justice of the Supreme Court of
the United States of America; and of a fifth jurist to be selected by
the four persons so nominated, or in the event of their failure to
agree within three months from the exchange of ratification of the
present Treaty, to be so selected by His Majesty the King of Sweden
and Norway. The jurist so selected shall be the President of the
Tribunal.”133
3.32 The composition of the Tribunal was exactly as sought by Venezuela in the
negotiation of the Treaty. On 26 January 1897, James Storrow, Legal Counsel to
Venezuela during the negotiation, highlighted this accomplishment in his
communication to the Venezuelan Foreign Minister:
“I think you have got what you desired — a clear and formal
recognition of the appointing power of Venezuela on the face of the
treaty; precisely the same two Jurists whom, at Caracas, you told
me you preferred; and in addition to that you will have (if the plan
is carried out) two of the highest judicial officers, on the part of
Great Britain. This you owe to the tact of Mr Andrade, to the kindly
help of President Cleveland and Mr Olney, and in considerable part
133 Ibid., Art. II.
63
to the disposition of the English Government to make the
arrangement agreeable to Venezuela.”134
3.33 Mr. Andrade himself wrote to the Foreign Minister on the eve of the
Treaty’s signature, explaining the benefit to Venezuela of having two prominent
American jurists on the Arbitral Tribunal:
“The more I think of it, the more I am convinced that Venezuela, far
from wishing to restrict the participation of the United States in the
composition of the Tribunal, should seek to augment it so that she
(the U.S.A.) may have greater moral responsibility with regard to
the result of the arbitration, and that more effective her concern
during the judgment”.135
3.34 The four Arbitrators chosen by the parties were among the most
distinguished jurists in their respective countries. Due to the unfortunate passing of
Baron Herschell after the first preliminary meeting of the Tribunal,136 he was
replaced, in conformity with paragraph 2 of Article II of the Treaty, by the Right
Hon. Lord Russell of Killowen, Lord Chief Justice of England.137 One of the
American Arbitrators, U.S. Supreme Court Justice David J. Brewer, was the same
jurist whom President Cleveland had appointed the previous year as Chairman of
his United States Venezuela Border Commission. This fact was well known to the
parties, and there was no objection.
134 Letter from James J. Storrow to Dr P. Ezequiel Rojas, Venezuelan Minister of Foreign Relations
(26 Jan. 1897). MMG, Vol. III, Annex 31.
135 Letter from Señor Andrade to Minister Ezequiel Rojas (9 Jan. 1897). MMG, Vol. III, Annex 30.
136 Boundary between the Colony of British Guiana and the United States of Venezuela, First Day’s
Proceedings (25 Jan. 1899), p. 1. MMG, Vol. IV, Annex 96.
137 Ibid.
64
3.35 All of the Arbitrators were highly accomplished and widely respected
individuals. Lord Justice Collins was first a Judge of the High Court of Justice, and
subsequently became Lord Justice of Appeal in the Court of Appeal, the second
highest of the Courts of England and Wales.138 His diligence and impartiality were
widely recognised and were reflected in his subsequent elevation to two of the most
senior judicial offices in Great Britain.139 The Right Hon. Lord Russell of Killowen
was not only the Lord Chief Justice of England, but also represented Britain in the
Bering Sea Arbitration. He had served as Attorney-General and been a member of
the Appellate Committee of the House of Lords and the Judicial Committee of the
Privy Council (respectively the highest Courts in the United Kingdom and the
British Empire). Chief Justice Melville Weston Fuller led the U.S. Supreme Court
for twenty-two years, and was on the Permanent Court of Arbitration for ten
years.140 At the time of his appointment to the Tribunal, it was said that, “the feeling
is wide, and steadily widening, that the great office [of Chief Justice] was never in
abler, cleaner, safer hands”.141 Finally, Justice David Josiah Brewer spent his career
in the judiciary, beginning as a district judge and rising to the U.S. Supreme Court,
138 As an article published in the American Law Review in 1897 explained: “His [Lord Justice Henn
Collins’] professional reputation could hardly be higher. Appeals from his decisions are not
enterprises lightly undertaken; for his knowledge is not greater than his care, patience, and zeal in
investigating every case brought before him .... His fairness, courtesy, and painstaking, are always
spoken of with unbounded admiration; and a decision of his is as likely to be absolutely right as any
conclusion of a man of flesh and blood can be.” (G.C. Worth & G. H. Knott, “The Venezuela
Boundary Arbitration”, Am. L. Rev., Vol. 31, No. 481 (1897), p. 493).
139 In 1901, Lord Justice Collins was appointed Master of the Rolls (the second most senior judicial
position in the Court of Appeal). In 1907, he was appointed a Lord of Appeal in Ordinary and
thereafter sat for a number of years on the Appellate Committee of the House of Lords.
140 Clare Cushman, “Melville W. Fuller 1888-1910” in THE SUPREME COURT JUSTICES:
ILLUSTRATED BIOGRAPHIES, 1789-2012 (CQ Press, 2013). MMG, Vol. III, Annex 6.
141 G.C. Worth & G. H. Knott, “The Venezuela Boundary Arbitration”, Am. L. Rev., Vol. 31, No.
481 (1897), pp. 493, 501.
65
where he served for twenty years and was considered an expert on substantive due
process.142 He was renowned for his independence and integrity.143
3.36 In accordance with their mandate under Article II, the four appointed
Arbitrators jointly selected the fifth, who would serve as President of the Tribunal.
They unanimously agreed upon Russian jurist, Fyodor Fyodorovich Martens, to
head the Tribunal.
3.37 Among his many accomplishments in the field of international law and
dispute settlement, Prof Martens was one of the principal architects of the First
Hague Convention for the Pacific Settlement of International Disputes, which
entered into force in 1899. As a leading international legal scholar, Prof Martens
had authored a number of texts on international law.144 By the time of the 1899
Arbitration, he had established a track record of impartially adjudicating
international disputes. Between 1895 and 1897, for example, he served as the sole
arbitrator in the Costa Rica Packet Arbitration between Great Britain and the
Netherlands.145 The high esteem in which Prof Martens was held as a jurist and
arbitrator at the date of his appointment to the Tribunal was reflected in the fact
that he was commonly known by the sobriquets “Lord Chief Justice of
142 Clare Cushman, “David J. Brewer 1890-1910” in THE SUPREME COURT JUSTICES: ILLUSTRATED
BIOGRAPHIES, 1789-2012 (CQ Press, 2013). MMG, Vol. III, Annex 5.
143 See G.C. Worth & G. H. Knott, “The Venezuela Boundary Arbitration”, Am. L. Rev., Vol. 31,
No. 481 (1897), pp. 493, 498 (“in all the long and bright array of men who have adorned that
position, none ever came to it with cleaner hands than those of David J. Brewer”).
144 For example, see Fedor Fedorovich Martens, TRAITÉ DE DROIT INTERNATIONAL (Léo Alfred
trans., Chevalier-Marescq et cie) (1883) and the 15-volume Fedor Fedorovich Martens, Recueil des
Traités et conventions conclus par la Russie avec les puissances étrangeres (1874).
145 Costa Rica Packet Arbitration, (Great Britain v Netherlands) (1897) 184 C.T.S. 240.
66
Christendom”146 and “Lord Chancellor of Europe”.147 Prof Martens’ contribution
to the development of international law was subsequently marked by various
international honours and awards,148 including numerous nominations for the
Nobel Peace Prize.149
IV. The Arbitral Proceedings and the Tribunal’s Award
3.38 On the first day of the proceedings before the Tribunal, counsel for
Venezuela, Mr Mallet-Prevost, praised the “Arbitrators whose distinguished
records and whose high reputation give us the assurance that the questions involved
will be decided in justice and equity”.150 Similar sentiments were expressed by
146 See F. De Martens, “International Arbitration and the Peace Conference at the Hague”, The North
American Review, Vol. 169, No. 516 (Nov. 1899), p. 604, note 1.
147 Willard L. King, MELVILLE WESTON FULLER – CHIEF JUSTICE OF THE UNITED STATES 1888-
1910 (Macmillan Company, 1950), p. 254. MMG, Vol. III, Annex 2.
148 For example, in 1902 he received the Red Cross Distinguished Service Award for services to
society. His contribution to the development of international law was also recognised by the
conferring of honourary degrees from the universities of Oxford, Cambridge, Edinburgh and Yale.
149 In respect of the qualification of the members of the Arbitral Tribunal, the President of the United
States stated in an address given on 5 December 1898: “the two members named on behalf of
Venezuela, Mr Chief Justice Fuller and Mr Justice Brewer, chosen from our highest court,
appropriately testify the continuing interest we feel in the definitive adjustment of the question
according to the strictest rules of justice. The British members, Lord Herschell and Sir Richard
Collins, are jurists of no less exalted repute, while the fifth member and president of the tribunal,
M. F. De Martens, has earned a world-wide reputation as an authority upon international law”.
Annual Message of President William Mckinley to the Congress of the United States (5 Dec. 1898),
in U.S. Department of State, Papers Relating to the Foreign Relations of the United States, with the
Annual Address of the President, (Transmitted to Congress 5 Dec. 1898) (1901), p. 274, available
at https://history.state.gov/historicaldocuments/frus1898/message-of-the-p… (last accessed
22 Feb. 2022).
150 Boundary between the Colony of British Guiana and the United States of Venezuela, First Day’s
Proceedings (25 Jan. 1899), p. 4. MMG, Vol. IV, Annex 96.
67
counsel for Great Britain, Sir Richard Webster.151 In a closing argument on behalf
of Venezuela, its lead counsel likewise emphasised that the constitution of the
Tribunal rendered it “absolutely impartial”:
“It seems to me that, if this process of settling international
difficulties is to commend itself to the nations, it can only be by
setting up for the trial of such questions an absolutely impartial,
judicial Tribunal ... It seems to me, Mr President, that anticipating
what seemed to be so prominent in this discussion at the Hague,
these nations have adopted that basis in the constitution of this
Tribunal.”152
3.39 During the course of the oral proceedings, Justice Brewer reportedly
“expressed great admiration for the impartial and strict sense of justice shown by
the British arbitrators during the proceedings of the Tribunal”.153
3.40 Both sides were represented by capable and distinguished legal counsel.
Each party appointed an Agent, as required by Article V of the Washington Treaty,
to “attend the Tribunal, and to represent it generally in all matters connected with
the Tribunal”.154 Great Britain was represented by a four-person legal team led by
151 Ibid., pp. 3, 9. During his opening speech at the start of the substantive hearing, Sir Richard
Webster hailed Prof Martens’ “reputation as a jurist, as a lawyer, as a diplomatist is not confined to
the boundaries of his own country, but extends to every civilized nation”. Boundary between the
Colony of British Guiana and the United States of Venezuela, Second Day’s Proceedings (15 June
1899), p. 9. MMG, Vol. IV, Annex 97.
152 Boundary between the Colony of British Guiana and the United States of Venezuela, Fiftieth
Day’s Proceedings (19 Sept. 1899), p. 2982. MMG, Vol. IV, Annex 111.
153 Letter from Mr Buchanan to Lord Salisbury, No. 52 (24 July 1899). MMG, Vol. III, Annex 34.
154 Treaty Between Great Britain and the United States of Venezuela Respecting the Settlement of
the Boundary Between the Colony of British Guiana and the United States of Venezuela, 5 U.K.T.S.
67 (2 Feb. 1897), Art. V. AG, Annex 1.
68
the Attorney-General of Great Britain, Sir Richard Webster, and one of his
predecessors in that office, Sir Robert Reid.155 Venezuela was similarly represented
by a four-person team of counsel who were led by the former President of the
United States, Benjamin Harrison,156 and Benjamin F. Tracy, a former U.S.
Secretary of State, as well as Mr Severo Mallet-Prevost and Mr Jarvey Russell
Soley.157
3.41 The arbitration was conducted in two phases, written and oral. The written
phase consisted of three rounds of written pleadings, submitted simultaneously by
the parties. The first of these submissions (the “Cases”) were delivered to the
Tribunal on 15 March 1898. Venezuela’s opening brief consisted of 236 pages, and
more than 900 pages of annexed documentary evidence. Great Britain’s pleading
encompassed 164 pages, plus over 1,600 pages of documentary evidence.
3.42 Four months later, on 15 July 1898, the parties presented their “Counter
Cases”, of lengths similar to those of their initial “Cases”, as well as additional
documentary evidence. Finally, four months after that, on 15 November 1898, the
parties submitted their “Printed Arguments”, which included new evidence and
highlighted the main arguments of their previous pleadings.
155 Sir Richard Webster and Sir Robert Reid were both later appointed to high judicial office: Sir
Richard Webster was Lord Chief Justice (as Lord Alverstone) between 1900 and 1913 and Sir
Robert Reid was Lord Chancellor (as Lord Loreburn) between 1905 and 1912.
156 Harrison was the 23rd President of the United States between 1889 and 1893.
157 Tracy served as United States Secretary of the Navy between 1889 and 1893. Prior to this, he
spent 11 years as United States Attorney for the Eastern District of New York.
69
3.43 The oral hearings opened in Paris on 25 January 1899 and closed more than
eight months later, on 3 October 1899, after fifty-six sessions that included more
than two hundred hours of oral argument and testimony.158
3.44 The records show that the opening arguments of each party lasted thirteen
days each. In his opening remarks for Venezuela, Mr Mallet-Prevost declared:
“Today has realized for Venezuela a dream that she has had for
years, and the efforts of her statesmen for half a century past have
been towards this end. It is a matter of great congratulations not only
for Venezuela but I think I may be permitted to say ....
[T]he old cordiality and friendship which existed between the two
Nations has been renewed and cemented firmly, and that we are
today able to submit the very serious questions involved not only to
a Tribunal of Arbitration, but to Arbitrators whose distinguished
records and whose high reputation give us assurances that the
questions involved will be decided in justice and equity.”159
3.45 This view was shared by his co-counsel, former President Harrison, who
closed Venezuela’s arguments by stating:
“I have been most courteously dealt with, Mr President, by every
member of this Tribunal, not only as we sit here, but in the
intercourse which we have had with one another in these long weeks
of our session. If they have been in any way a manifestation of
158 A comprehensive record of the proceedings was published by Her Majesty’s Stationery Office
in 1899.
159 Boundary between the Colony of British Guiana and the United States of Venezuela, First Day’s
Proceedings (25 Jan. 1899), p. 4 (Mallet-Prevost). MMG, Vol. IV, Annex 96.
70
personal respect I beg to assure every member of this Tribunal that
I deeply and fully reciprocate that feeling.”160
3.46 In addition to the many hundreds of pages of written submissions and over
200 hours of oral arguments, more than 2,600 documents were placed before the
Tribunal.161
3.47 In accordance with Article XI of the Treaty — which required the
Arbitrators to “keep an accurate record of their proceedings” — a verbatim record
of the oral proceedings was produced day by day, issued in 56 parts. The published
record of the entire oral proceedings ran to more than 3,200 pages.
3.48 As Sir Richard Webster observed, there was a “very vast mass of matter…
discussed and… presented to the Tribunal”.162 To similar effect, in his closing
address to the Tribunal, former U.S. President Harrison explained that Venezuela’s
counsel had “present[ed] a full and complete discussion of every question of law
and fact that we thought was in the case”.163
160 Boundary between the Colony of British Guiana and the United States of Venezuela, Fifty-Fifth
Day’s Proceedings (27 Sept. 1899), p. 3233 (Harrison). MMG, Vol IV, Annex 115.
161 Boundary between the Colony of British Guiana and the United States of Venezuela, Fifty-Sixth
Day’s Proceedings (3 Oct. 1899), p. 3238. MMG, Vol. IV, Annex 116 (Prof Martens: “Our special
thanks we owe to the Counsel of both Powers, who in their most eloquent speeches with great
wisdom and ability have put before the Tribunal all the arguments, all the facts, all the documents,
which are more than 2650 in number, and thanks to that oral argument the Tribunal has been able
to have a clear view of whole case put before them”.).
162 Boundary between the Colony of British Guiana and the United States of Venezuela, Second
Day’s Proceedings (15 June 1899), p. 9 (Webster). MMG, Vol. IV, Annex 97.
163 Boundary between the Colony of British Guiana and the United States of Venezuela, Fiftieth
Day’s Proceedings (19 Sept. 1899), pp. 2984-2985 (Harrison). MMG, Vol. IV, Annex 111.
71
3.49 In the proceedings, Venezuela argued that Spain discovered the area and,
“by a first and timely settlement of a part of the whole, perfected her title to the
whole of the geographical unit known as Guiana”.164 Venezuela dismissed the
significance of the 1648 Treaty of Münster on the ground that, in its interpretation,
Spain ceded to the Dutch only the places in Guiana that the Dutch physically
possessed, and that the rest of the territory remained open to future possession by
Spain.165 On this basis, Venezuela argued that all the territory to the north and west
of the Dutch settlements were Spanish territory on which the Dutch were prohibited
from encroaching by the Treaty. Thus, according to Venezuela, the Dutch could
not transfer those lands to Great Britain by the 1814 London Convention or the
1815 Treaty of Paris, and Great Britain was not entitled to any territory beyond that
physically held by the Dutch at the time of the Treaty of Münster of 1648.
3.50 Based on these arguments, Venezuela claimed the entire Essequibo Region
as far east as the western bank of the Essequibo River, and south as far as the border
with Brazil.166 It claimed that the Amakura, Barima and Waini River Basins were
164 Boundary between the Colony of British Guiana and the United States of Venezuela, The Printed
Argument on behalf of the United States of Venezuela (1898), Vol. II, p. 719. MMG, Vol. IV,
Annex 135; See also Venezuela-British Guiana Boundary Arbitration, The Case of the United
States of Venezuela (1898), Vol. I, pp. 35-36. MMG, Vol. IV, Annex 122. Venezuela-British
Guiana Boundary Arbitration, The Case of the United States of Venezuela (1898), Vol. I, p. 221.
MMG, Vol. IV, Annex 127.
165 Venezuela-British Guiana Boundary Arbitration, The Case of the United States of Venezuela
(1898), Vol. I, pp. 71-74. MMG, Vol. IV, Annex 124. Venezuela-British Guiana Boundary
Arbitration, The Case of the United States of Venezuela (1898), Vol. I, p. 221. MMG, Vol. IV,
Annex 127. Venezuela-British Guiana Boundary Arbitration, The Case of the United States of
Venezuela (1898), Vol. I, p. 231. MMG, Vol. IV, Annex 129; Boundary between the Colony of
British Guiana and the United States of Venezuela, The Printed Argument on behalf of the United
States of Venezuela (1898), Vol. II, p. 719. MMG, Vol. IV, Annex 135.
166 Venezuela-British Guiana Boundary Arbitration, The Case of the United States of Venezuela
(1898), Vol. I, p. 14. MMG, Vol. IV, Annex 121.
72
Venezuelan, on the ground that they formed an integral part of the Orinoco Delta
Region.
3.51 Great Britain, however, denied that there was extensive Spanish exploration
or any Spanish settlement between the Essequibo River in the east and the Orinoco
River in the west. The British argued that: “Discovery and exploration, unless
followed by possession within a reasonable time, are insufficient to give title”.167
The British recognised that the Spanish had established one settlement on the
Orinoco River (at Santo Thomé), but argued that the Orinoco Delta did not include
the Amakura, Barima or Waini River Basins because those rivers were not
tributaries of the Orinoco River.168 To this end, Great Britain argued that it was
entitled to all of the area east of the Orinoco River.
3.52 Both parties presented historical and contemporaneous maps in support of
their respective submissions. In addition, the Tribunal received substantial
evidentiary material from President Cleveland’s Commission, which had
conducted its own investigation of the claims of the two parties and deliberated
over the boundary line that should be drawn to settle the dispute justly. However,
as reported by one of the Commissioners:
“Arbitration having been decided upon, our commission refrained
from laying down a frontier-line, but reported a mass of material,
some fourteen volumes in all, with an atlas containing about
167 Boundary between the Colony of British Guiana and the United States of Venezuela, The
Counter-Case of the Government of Her Britannic Majesty (1898), p. 130. MMG, Vol. IV, Annex
131.
168 Boundary between the Colony of British Guiana and the United States of Venezuela, The
Counter-Case of the Government of Her Britannic Majesty (1898), pp. 6-7. MMG, Vol. IV, Annex
130; Boundary between the Colony of British Guiana and the United States of Venezuela, The Case
of the Government of Her Britannic Majesty (1898), pp. 54-55. MMG, Vol. IV, Annex 118.
73
seventy-five maps, all of which formed a most valuable contribution
to the material laid before the Court of Arbitration at Paris.”169
3.53 The three-rounds of written submissions and 56 days of oral proceedings
demonstrate that both parties had a full and ample opportunity to present their
respective cases to the Tribunal, including all of their factual evidence and legal
arguments. Neither party objected to the manner in which the proceedings were
conducted, nor were there any complaints about unfair or unequal treatment, or a
denial of justice.
3.54 On 3 October 1899, the Tribunal issued a unanimous Award signed by all
five Arbitrators, in which they indicated that they had “duly heard and considered
the oral and written arguments” of the two parties and that, in so doing, they
“impartially and carefully examined the questions laid before them, and have
investigated and ascertained the extent of the territories belonging to or that might
lawfully be claimed by the United Netherlands or by the Kingdom of Spain
respectively at the time of the acquisition by Great Britain of the Colony of British
Guiana”. The Tribunal thus applied the legal standard advocated by Venezuela for
determining which parts of the disputed territory fell to Venezuela and which to
Great Britain.
3.55 In fulfilment of its mandate under Articles I and III of the Treaty of
Washington, the Tribunal then determined the boundary between British Guiana
and Venezuela on this basis, as follows:
“Starting from the coast at Point Playa, the line of boundary shall
run in a straight line to the River Barima at its junction with the
169 Andrew D. White, AUTOBIOGRAPHY OF ANDREW DICKSON WHITE (1917), Vol. II, p. 124.
74
River Mururuma, and thence along the mid-stream of the latter river
to its source, and from that point to the junction of the River Haiowa
with the Amakuru, and thence along the mid-stream of the Amakuru
to its source in the Imataka Ridge, and thence in a south-westerly
direction along the highest ridge of the spur of the Imataka
Mountains to the highest point of the main range of such Imataka
Mountains opposite to the source of the Barima, and thence along
the summit of the main ridge in a south-easterly direction of the
Imataka Mountains to the source of the Acarabisi, and thence along
the mid-stream of the Acarabisi to the Cuyuni, and thence along the
northern bank of the River Cuyuni westward to its junction with the
Wenamu ... to its westernmost sources, and thence in a direct line to
the summit of Mount Roraima, and from Mount Roraima to the
source of the Cotinga, and along the mid-stream of that river to its
junction with the Takutu, and thence along the mid-stream of the
Takutu to its source, thence in a straight line to the westernmost
point of the Akarai Mountains, and thence along the ridge of the
Akarai Mountains to the source of the Corentin called the Cutari
River.”170
3.56 The boundary established by the Tribunal did not match the claim of either
party, but divided the disputed territory between them. Venezuela’s claim to the
entire Essequibo Region, comprised of all the territory between the Essequibo and
Orinoco Rivers, was rejected. Likewise, Great Britain’s “Extreme Boundary
Claim” and its alternative claim based on the Schomburgk Line were rejected.
Instead, the Tribunal adopted the standard that Great Britain was entitled to the
territory possessed by the Dutch at the time the British acquired it from them, and
Venezuela was entitled to the territory belonging to Spain at that time. The Tribunal
drew a line that, as it described, divided the Amakura and Barima basins, leaving
the former on the Venezuelan side and the latter on the British side, with the result
170 Award regarding the Boundary between the Colony of British Guiana and the United States of
Venezuela, Decision of 3 October 1899, RIAA, Vol. XXVIII, p. 331-340 (3 Oct. 1899) (hereinafter
“1899 Award”), p. 338.
75
that Venezuela was given Point Barima on the Atlantic Coast, with a strip of land
about fifty miles long. This gave it dominion and control over the entire mouth and
surrounding delta of the Orinoco River. And it left the British with far less territory
than it would have received if the Original Schomburgk Line had been adopted as
the boundary, let alone the more extreme boundary claimed by Great Britain.
3.57 The map produced in Figure 3.4 depicts the boundary adopted by the
Arbitral Tribunal in comparison with the British claim. As shown, the Tribunal
awarded the British 50,000 square kilometres less than they had claimed in the
Arbitration.
76
Figure 3.4. Sketch Map of the 1899 Arbitral Award and British Claim
77
3.58 Commission member White recorded in his autobiography that, after
extensive historical and legal research and prior to its suspension, the boundary
Commission appointed by President Cleveland produced its own proposed
boundary line between British Guiana and Venezuela, and that:
“It is with pride and satisfaction that I find their [i.e., the Tribunal’s]
award agreeing, substantially, with the line which, after so much
trouble, our own commission had worked out.”171
3.59 And of the boundary line itself he wrote:
“I believe it to be thoroughly just, and that it forms a most striking
testimony of the value of international arbitration in such questions,
as a means, not only of preserving international peace, but of
arriving at substantial justice.”172
3.60 Others, likewise, considered the boundary line fixed by the Tribunal to be
just. According to Lord Russell:
“I think the Award gives Her Majesty no territory or advantage to
which she is not justly entitled and I think it does give to her
substantially all to which she is entitled.”173
3.61 President Cleveland considered the Award favourable to Venezuela. As he
explained:
“The line they determined upon as the boundary-line between the
two countries begins in the coast at a point considerably south and
171 Andrew D. White, AUTOBIOGRAPHY OF ANDREW DICKSON WHITE (1917), Vol. II, p. 124.
172 Ibid., p. 123.
173 Letter from Lord Russell to Lord Salisbury (7 Oct. 1899), in Papers of 3rd Marquess of Salisbury,
Vol. A/94, Doc. No. 2, p. 2. MMG, Vol. III, Annex 36.
78
east of the mouth of the Orinoco River, thus giving to Venezuela
the absolute control of that important waterway, and awarding to
her valuable territory near it. Running inland, the line is so located
as to give to Venezuela quite a considerable section of territory
within the Schomburgk line. This results not only in the utter denial
of Great Britain’s claim to any territory lying beyond the
Schomburgk line, but also in the award to Venezuela of a part of the
territory which for a long time England had claimed to be so clearly
hers that she would not consent to submit it to arbitration.”174
3.62 Venezuela agreed. Four days after the 1899 Award was rendered, Mr
Andrade, who had played an important role in the negotiation of the 1897 Treaty
and the Arbitration itself, and had been appointed as Venezuela’s Minister to
London, declared:
“Greatly indeed did justice shine forth when in the determination of
the frontier we were given the exclusive dominion over the Orinoco
which was the principal aim we sought to achieve through
arbitration.”175
174 Grover Cleveland, THE VENEZUELAN BOUNDARY CONTROVERSY (Princeton University Press,
1913), pp. 117-118.
175 Letter from the Venezuelan Ambassador to the United Kingdom to the Venezuelan Minister of
Foreign Affairs (7 Oct. 1899), p. 2. MG, Vol. II, Annex 3.
79
CHAPTER 4
VENEZUELA’S ACCEPTANCE OF THE ARBITRAL AWARD
4.1 This Chapter recounts Venezuela’s acceptance of the Arbitral Award for
over 60 years — from 1899 until 1962 — until, on the eve of Guyana’s
independence, Venezuela first formally challenged the validity of the Award.
4.2 Section I addresses Venezuela’s immediate acceptance and celebration of
the Award in 1899, including its declaration that “Venezuela’s victory” in winning
the prized territory of Point Barima at the mouth of the Orinoco River was a “costly
defeat” for the British. Section II describes the meticulous and arduous process of
demarcating the border fixed by the Arbitral Award between 1900 and 1905 by a
Joint Boundary Commission, which culminated in an international agreement on
the entire length of the boundary, from the northernmost point on the Atlantic Coast
at Punta Playa to the border with Brazil in the south. Section III sets out
Venezuela’s strict adherence to the 1899 Award and 1905 Agreement and its
refusal to countenance any modifications to the boundary, even for practical
reasons, because it was a legal boundary that had been duly ratified and could not
be changed. Section IV relates Venezuela’s demarcation of its boundary with
Brazil and the tri-junction point where its boundaries with Brazil and British
Guiana met in conformity with the 1899 Award and 1905 Agreement. Finally,
Section V addresses Venezuela’s unequivocal declaration that its boundary with
British Guiana was “chose jugée”, and its repeated reaffirmation until 1962 of the
legal validity of the 1899 Award and the 1905 Agreement. The last four of these
Sections display contemporaneous, official Venezuelan maps showing the
boundary with British Guiana as determined in the Arbitral Award and demarcated
in the 1905 Agreement.
80
Venezuela’s Acceptance of the Arbitral Award
4.3 As set out in Chapter 3, the Arbitral Tribunal delivered its unanimous
Award on 3 October 1899, in the presence of the formal representatives and counsel
of both parties. Venezuela immediately accepted the land boundary with British
Guiana established by the Tribunal.
4.4 In a telegram to the Venezuelan Minister of Foreign Affairs, the Agent of
Venezuela before the Arbitral Tribunal, Dr José M. Rojas, described the Award as
follows:
“Sentence of Tribunal: England gives up Point Barima and the coast
until Point Playa from thence the line goes until Schomburgk’s
(line) which it follows until the junction of the Cuyuni and Wenamu.
This gives us five thousand square miles east of the Schomburgk
line. Arbiters and Counsel for Venezuela were brilliant. Important
details by French mail.”176
4.5 The reference at the outset to Point Barima and the coastline west of Point
Playa reflected the great importance that both parties attached to this territory. By
awarding it to Venezuela, the Arbitral Tribunal attributed to that State the entire
Orinoco Delta, including all of the Orinoco River’s principal distributaries. In a
message dated 7 October 1899, the Ambassador of Venezuela in London, José
Andrade — the brother of Venezuelan President Ignacio Andrade — triumphantly
declared, as indicated above, that “in the determination of the frontier we were
176 Letter from the Venezuelan Ambassador to the United Kingdom to the Venezuelan Minister of
Foreign Affairs (7 Oct. 1899), p. 1 (internal quotations omitted). MG, Vol. II, Annex 3.
81
given the exclusive dominion over the Orinoco which was the principal aim we
sought to achieve through arbitration”.177
4.6 Ambassador Andrade further observed that, while in his view it was
“unjust” for Venezuela not to have been awarded the entire territory in dispute, the
Award “nevertheless proves that Venezuela did well in forcing England to submit
the question to arbitration in 1897”.178
4.7 The President of Venezuela agreed:
“[L]’arrêt était un motif de satisfaction pour le pays, car la justice
internationale lui avait restitué une partie de son territoire usurpé et
donnait raison à son bon droit.”179
4.8 Venezuela’s counsel also claimed that the Arbitral Award was a victory for
Venezuela. According to its principal advocates before the Arbitral Tribunal,
former U.S. President Benjamin Harrison and Mr Severo Mallet-Prevost:
“[I]n order to appreciate the significance of the award pronounced
by the tribunal it should be remembered that up to the time of the
intervention of the United States Government Great Britain had
distinctly refused to submit to arbitration any portion of the territory
lying to the east of the Schomburgk line, alleging that her title to the
territory was so clear that it could not be the subject of dispute.
177 Letter from the Venezuelan Ambassador to the United Kingdom to the Venezuelan Minister of
Foreign Affairs (7 Oct. 1899). MG, Vol. II, Annex 3.
178 Ibid.
179 «Nouvelles de l’Étranger: Venezuela», Le Temps (11 Oct. 1899) quoting Venezuelan President
Ignacio Andrade. (“The award was a source of satisfaction for the country, as international justice
had returned a part of its territory that had been usurped, and vindicated its right”.) (Translation of
Guyana).
82
Within the Schomburgk line lay the Amakuru river and Point
Barima, the latter forming the southern entrance to the great mouth
of the Orinoco. No portion of the entire territory possessed more
strategic value than this, both from a commercial and a military
standpoint, and its possession by Great Britain was most jealously
guarded.
This point had been awarded to Venezuela, and along with it a strip
of coast about 50 miles in length, both giving to Venezuela the
entire control of the Orinoco river. In the interior another long tract
to the east of the Schomburgk line, some 3,000 square miles in
extent had also been awarded to Venezuela, and thus, by a decision
in which the British arbitrators had themselves concurred, the
position taken up by the British Government until 1895 had been
shown to be without foundation. This in no way expressed the extent
of Venezuela’s victory. Great Britain had put forward a claim to
more than 30,000 square miles of territory west of the Schomburgk
line, and it was this territory which in 1890 Great Britain was
disposed to submit to arbitration. Every foot of this territory had
been awarded to Venezuela.”180
4.9 There was no indication of any dissatisfaction with the Award by
Venezuela or its ally, the United States. Nor was there any hesitation on
Venezuela’s part in proceeding to implement the Award. To the contrary, as set out
below, Venezuela indicated its eagerness to demarcate the boundary established by
the Arbitral Tribunal and obtain the United Kingdom’s signature to a permanent
boundary agreement.
180 “Declarations from Mallet-Prevost and General Harrison, Venezuelan’s Agents before the 1899
Tribunal”, The Times (4 Oct. 1899).
83
The Joint Boundary Commission, the Demarcation of the Boundary and
the 1905 Agreement
4.10 Soon after the 1899 Award was delivered by the Tribunal, the parties
established a Joint Boundary Commission and appointed its members, who
proceeded to physically demarcate the boundary.181 Given the remote and
inhospitable location of the newly established frontier, this was a costly and
challenging exercise that took five years to complete. Venezuela was particularly
eager to demarcate the boundary with precise measurements to ensure that there
would be no doubt that the territory awarded to it by the Arbitral Tribunal fell under
its sovereignty. In particular, as early as 1900, at Venezuela’s instigation,182 the
parties concluded a preliminary agreement on the location of the northern land
boundary terminus on the coast at Punta Playa, from which the demarcation of the
full boundary extending to its southern terminus proceeded.183
181 The British members were Michael McTurk (Senior Boundary Commissioner), Arthur Wybrow
Baker (Second Commissioner), John Charles Ponsonby Widdup (3rd Commissioner), and Harry
Innis Perkins (4th Commissioner). The Venezuelan members were Felipe Aguerrevere
(Commissioner and Engineer-in-Chief), and Trino Celis Rios (Commissioner and Legal Adviser),
Santiago Aguerrevere (1st Assistant Engineer), Abraham Tirado (2nd Assistant Engineer), Dr Elias
Toro (Medical Officer), Lorenzo M Osio (Draughtsman) and Gustave Michelena (Interpreter). See
British Guiana, Report of the British Commissioners appointed to Demarcate the boundary between
the colony of British Guiana and the United States of Venezuela (8 Dec. 1900). MMG, Vol. IV,
Annex 67; Letter from Sir Cavendish Boyle to Michael McTurk, Esquire, and Captain Arthur
Wybrow Baker (24 Sept. 1900). MMG, Vol. III, Annex 37; Ministry of Foreign Relations of
Venezuela, [Resolución de 8 de junio de 1903, por la cual se reconstituye la Comisión Venezolana
de límites con la Guayana Británica] Resolution of June 8, 1903, reconstituting the Venezuela
Commission on Boundaries with British Guiana (8 June 1903). MMG, Vol. IV, Annex 68.
182 Letter from Sir M.E. Grant Duff to Lord Salisbury, No. 101 (26 Sept. 1900). MMG, Vol. III,
Annex 38.
183 For original (in Spanish) see Republic of Venezuela, Ministry of Foreign Affairs, [Tratados
públicos y acuerdos internacionales de Venezuela: 1920-1925] Public Treaties and International
Agreements 1920-1925, Vol. III (1927), Act of Mururuma, p. 356. MMG, Vol. IV, Annex 84.
84
4.11 In November 1900, the Commission began the process of demarcation by
determining the initial point of the boundary at Punta Playa on the Atlantic Coast
based on astronomical observations. The geographical position of Punta Playa as
agreed by the Commissioners (English and Venezuelan) on 24 November 1900 was
Latitude 8o33’22” North and Longitude 59o59’48” West.184 Both the British and
Venezuelan Commissioners made observations, twelve in total, to determine the
exact position of the boundary. As their results differed slightly, a mean latitude
was chosen, and a formal agreement was signed, as “drawn up by the Legal Adviser
of the Venezuelan Commissioners and at their instigation.”185 A concrete beacon
The agreement provided in relevant part that:
“Whereas the undersigned, members of the Commission appointed by Her Majesty the
Queen of Great Britain and Ireland to technically delineate the dividing line between the
United States of Venezuela and the Colony of British Guiana, in execution of the Paris
Award of October 3, 1899, Messrs. Michael Mc. Turk, C. M. G., 1st. Commissioner, ... on
the one hand, and on the other hand, Doctors Felipe Aguerrevere and Trino Celis Ríos, ...
respectively, of the Commission appointed by the Government of the United States of
Venezuela for the same purpose, hereby certify that as both Commissions have established
themselves at Punta Playa, a place on the coast designated in said Award as the starting
point for the boundary line, with the relevant scientific work and operations having been
carried out, by mutual and perfect agreement they determine the geographical location of
the said place Punta Playa at
Latitude 8°. 33’ . 22” . North
Longitude 59° . 59’ . 48” . West of Greenwich,
therefore, the starting point of the boundary line between the United States of Venezuela
and the Colony of British Guiana on the Atlantic coast is thus fixed in accordance with the
arbitral decision of October 3, 1899”.
184 Ibid.
185 Letter from Michael McTurk (24 Nov. 1900). MMG, Vol. III, Annex 39. See also British Guiana,
Report of the British Commissioners appointed to Demarcate the boundary between the colony of
British Guiana and the United States of Venezuela (8 Dec. 1900), pp. 9-10. MMG, Vol. IV, Annex
67.
85
was then constructed to mark this site as the northern terminus of the land
boundary.186 Its location is depicted in Figure 4.1.
Figure 4.1. Sketch Map Indicating the Location of Punta Playa
4.12 The boundary beacon contained the following inscription on its sides: on
the east, “British Guiana”, and on the west, “EEUU de Venezuela [United States
of Venezuela]”. Its latitude and longitude were also inscribed. And “[a]nother
beacon [was] erected three hundred metres from the first one in the same straight
line towards Point Playa in order completely to facilitate the determining of the
186 Letter from Michael McTurk (24 Nov. 1900). MMG, Vol. III, Annex 39; British Guiana, Report
of the British Commissioners appointed to Demarcate the boundary between the colony of British
Guiana and the United States of Venezuela (8 Dec. 1900). MMG, Vol. IV, Annex 67; Letter from
F.M. Hodgson to Alfred Lyttelton enclosing Abraham Tirado, Minister of Foreign Affairs, Report
of the Frontier towards British Guiana (20 Mar. 1905). MMG, Vol. III, Annex 42.
86
boundary limits for all future time”.187 Two more markers were added further
inland at the mouth of the Haiowa River near Mururuma (Latitude 8o13’4” North
and Longitude 59o56’39” West).188 Recent photographs of what appears to be one
of these markers are shown in Figure 4.2189 and Figure 4.3.190
187 British Guiana, Report of the British Commissioners appointed to Demarcate the boundary
between the colony of British Guiana and the United States of Venezuela (8 Dec. 1900). MMG,
Vol. IV, Annex 67.
188 Republic of Venezuela, Ministry of Foreign Affairs, [Tratados públicos y acuerdos
internacionales de Venezuela: 1920-1925] Public Treaties and International Agreements 1920-
1925, Vol. III (1927), Haiowa Act on 21 January 1901, p. 358. MMG, Vol. IV, Annex 84.
189 Guyana Times, “Guyana-Venezuela boundary marker located in Region 1” (4 Dec. 2017). MMG,
Vol. II, Figure 4.2.
190 Guyana Times, “Guyana-Venezuela boundary marker located in Region 1” (4 Dec. 2017).
MMG, Vol. II, Figure 4.3.
87
Figure 4.2. Photograph of Boundary Marker Found in the Barima-Waini
Region (2017)
Figure 4.3. Photograph with Close-Up of Boundary Marker (2017)
88
4.13 By April 1901, the Commission had completed the demarcation of the
boundary south of Punta Playa as far as the head of the Amakura River.191 By
November 1902, they had reached the Imataka Mountains and the source of the
Barima River and concluded four written agreements identifying the geographic
coordinates of particular points along the boundary line.192
4.14 In 1903 and 1904, as the demarcation process continued into less
accessible terrain, the boundary was demarcated along the Cuyuni and Venamo
Rivers to its southern limit on the summit of Mount Roraima.193 Great care was
taken to achieve an accurate demarcation, in strict compliance with the 1899
Arbitral Award. The Venezuelan Commissioners, in particular, strove to ensure
“that the demarcation which is to be carried out on the frontier shall be of
permanent character to avoid any uncertainty in the future or doubt as to the real
frontier between either territory”.194
191 Letter from Walter Sendall to J. Chamberlain (10 Apr. 1901). MMG, Vol. III, Annex 40.
192 Republic of Venezuela, Ministry of Foreign Affairs, [Tratados públicos y acuerdos
internacionales de Venezuela: 1920-1925] Public Treaties and International Agreements 1920-
1925, Vol. III (1927), Act of Mururuma. MMG, Vol. IV, Annex 84.
193 During this period, the Commission was reconstituted. The British members included Harry
Innis Perkins (Senior Commissioner on behalf of British Guiana), and Charles Wilgress Anderson
(Second Commissioner on behalf of British Guiana), and the Venezuelan members were Dr
Abraham Tirado (Chief of the Boundary Commission), and Dr Elias Toro (Second Commissioner
on behalf of Venezuela). Ministry of Foreign Relations of Venezuela, [Resolución de 8 de junio de
1903, por la cual se reconstituye la Comisión Venezolana de límites con la Guayana Británica]
Resolution of June 8, 1903, reconstituting the Venezuela Commission on Boundaries with British
Guiana (8 June 1903). MMG, Vol. IV, Annex 68. Letter from Alejandro Ybarra to P.C. Wyndham
(19 June 1905). MMG, Vol. III, Annex 43.
194 Letter from Alejandro Ybarra to P.C. Wyndham (19 June 1905). MMG, Vol. III, Annex 43.
89
4.15 This is reflected in the reports sent by Dr Abraham Tirado, the leading
Venezuelan member of the Commission, to the Foreign Ministry in Caracas:
“Immediately upon arrival I started on the technical astronomical
work by observing the absolute conditions of the chronometers and
their ratings: — observations that were essential, and which it was
most important to make with the greatest accuracy, seeing that they
were necessarily the foundation for the most delicate part of the
work, viz. the determination of Longitudes. The careful attention
paid to this matter has been well rewarded by the completeness of
the results obtained; and I am personally very proud of being able
to present a plan of the outcome of our work which, considering the
very unfavourable conditions under which our various journeys
were made, is wonderfully accurate.”195
4.16 Such meticulous work was undertaken all along the 825-kilometre
boundary, including deep into the tropical jungles of the interior, by setting up
camps along different rivers and waiting for adequate weather conditions to
undertake astronomical observations. In certain places, geographical features like
rivers and mountain ridges were used to mark the boundary. In most locations on
land, however, the Commission marked the boundary by clearing a path along the
boundary line. In key locations, they left more permanent marks, inscribing rocks
and trees with the initials of their countries: “V.B.G.”196 This was done, for
example, on Mount Roraima, at the southern boundary terminus, where “the
195 Letter from F.M. Hodgson to Alfred Lyttelton enclosing Abraham Tirado, Minister of Foreign
Affairs, Report of the Frontier towards British Guiana (20 Mar. 1905). MMG, Vol. III, Annex 42.
196 Ibid., p. [pdf] 16. MMG, Vol. III, Annex 42. Letter from Mr. Perkins to Government Secretary
(9 Jan. 1905), p. [pdf] 9. MMG, Vol. III, Annex 41.
90
boundary was marked on a rock, with the initials of the two nations and of the
Commissioners, separated by a vertical straight line”.197
4.17 These efforts were not without considerable risk. Several members of the
Commission — including Venezuela’s Dr Tirado — became gravely ill from
tropical diseases, while others — including Venezuelan Commissioner Dr
Armando Blanco — perished. The conditions were such that even the local
Indigenous people who had been hired to assist in the work succumbed to illness
and died. The circumstances were described by Dr Tirado:
“I ought not to omit to mention the unforeseen trials, the difficulties,
and the discomforts, the excessive exertion and the laborious
struggling, the endless hardships, and the great determination that
was necessary to enable us to arrive at the objective of the first
expedition which we attained at the most westerly source of the
Venamo river. There lay, as a mute witness to all that this implies,
the remains of a poor fellow whose hardihood and habitual life in
the forest stood him in no stead against the conditions of life which
we had to endure there. There physical energy was annihilated and
one’s spirits were so depressed that it was only an exalted sense of
duty, and the satisfaction that one felt in serving one’s country that
could possibly sustain us during such dismal days.”198
4.18 By 1905, Dr Tirado reported with great satisfaction that the demarcation of
the boundary had been completed in conformity with the 1899 Arbitral Award:
“The long and tedious work in this town, up to the day of writing
[20th March 1905], has consisted in (i) The calculation of more than
197 Letter from F.M. Hodgson to Alfred Lyttelton enclosing Abraham Tirado, Minister of Foreign
Affairs, Report of the Frontier towards British Guiana (20 Mar. 1905), p. [pdf] 33. MMG, Vol. III,
Annex 42.
198 Ibid., pp. [pdf] 16-17.
91
two thousand observations and the correlation of their results, which
was effected by the method of least squares, with the view of
accepting the most satisfactory of them; — the preliminary
calculations these, for the drafting of the general map: (ii) The
drafting of that map from Punta Playa to Roraima on a scale of 1 in
200,000, in which the whole of the boundary line is contained; for
this we agreed to use the system of polyconical projection with
Clarke’s spheroidal data: (iii) A copy of all the data obtained by the
English Commission, when on account of special circumstances I
was not able to take them directly from the country, as for instance
in the case of the explorations of the Parima and Camarang: (iv) The
interesting collection of data and a sketch of triangulations made by
Mr Anderson: (v) Calculations to determine the altitude of the
different points, both by means of the aneroids and by the boiling
point of water: (vi) Partial drafts of the different surveys of the
whole of the Venamo river: (vii) A tracing of the general map of the
boundary line on tracing paper: (viii) Detailed correspondence with
the Ministry on a subject concerning the honourable office, with
information and a sketch-plan relative to the modification of the
Venamo-Roraima straight line, and a Minute giving the
astronomical positions of the different points of the boundary line
as laid down by the Arbitral Award of Paris.”199
4.19 Dr Tirado concluded:
“The honourable task is ended, and the delimitation between our
Republic and the Colony of British Guiana an accomplished fact.
I, satisfied with the part which it has been my lot to play,
congratulate Venezuela in the person of the patriotic Administrator
who rules her destinies and who sees with generous pride the longstanding
and irritating dispute that has caused his country so much
annoyance settled under his regime.”200
199 Ibid., pp. [pdf] 36-37.
200 Ibid., pp. [pdf] 3-39.
92
4.20 On 10 January 1905, the Agreement Between the British and Venezuelan
Boundary Commissioners with Regard to the Map of the Boundary (“the 1905
Boundary Agreement” or “the 1905 Agreement”) was signed, demarcating the
entire boundary between British Guiana and Venezuela in compliance with the
1899 Arbitral Award.201 The Agreement provided that the parties:
“regard this Agreement as having a perfectly official character with
respect to the acts and rights of both Governments in the territory
demarcated; that they accept the points mentioned below as correct,
the result of the mean of the observations and calculations made by
both Commissioners together or separately, as follows. ... That the
two maps mentioned in this Agreement, signed by both
Commissioners, are exactly the same ... containing all the
enumerated details related to the demarcation, with the clear
specification of the Boundary line according with the Arbitral
Award of Paris”.202
4.21 The official map produced by the Commissioners, preceded by its cover
page, are reproduced in Figure 4.4203 and Figure 4.5.204 The agreed boundary is
201 Agreement Between the British and Venezuelan Boundary Commissioners with Regard to the
Map of the Boundary (10 Jan. 1905) reprinted in Government of the Republic of Venezuela,
Ministry of External Affairs, Public Treaties and International Agreements of Venezuela, Vol. 3
(1920-25) (1927). AG, Annex 3.
202 Ibid.
203 “Map of the Boundary Line between British Guiana and Venezuela, Surveyed by the
Commissioners of Both Countries from November 1900 to June 1904, Georgetown” (7 Jan. 1905).
MMG, Vol. II, Figure 4.4.
204 “Map of the Boundary Line between British Guiana and Venezuela, Surveyed by the
Commissioners of Both Countries from November 1900 to June 1904, Georgetown” (7 Jan. 1905).
MMG, Vol. II, Figure 4.5.
93
shown by a red line, from Punta Playa to Mount Roraima, “with the clear
specification of the Boundary line according with the Arbitral Award of Paris”.205
205 Agreement Between the British and Venezuelan Boundary Commissioners with Regard to the
Map of the Boundary (10 Jan. 1905) reprinted in Government of the Republic of Venezuela,
Ministry of External Affairs, Public Treaties and International Agreements of Venezuela, Vol. 3
(1920-25) (1927). AG, Annex 3.
94
Figure 4.4. Cover Page of Map Produced by the Joint Boundary Commission
in 1905
95
Figure 4.5. 1905 Map Produced by the Joint Boundary Commission,
Demarcating the Boundary Line between British Guiana and Venezuela
96
4.22 Accordingly, as of 10 January 1905, there was a formal and official
international agreement on the location of the entire land boundary between British
Guiana and Venezuela, in strict accordance with the terms of the 1897 Washington
Treaty and the 1899 Arbitral Award. In the words of Venezuela’s Chief Boundary
Commissioner, who signed the 1905 Agreement:
“The honourable task is ended, and the delimitation between our
Republic and the Colony of British Guiana an accomplished
fact.”206
Venezuela’s Strict Adherence to the 1899 Award and 1905 Agreement
and Refusal to Accept any Modifications to the Boundary with British
Guiana
4.23 In the years that followed the conclusion of the 1905 Boundary Agreement,
Venezuela formally and repeatedly recognised the boundary established by the
1899 Award, as implemented by the 1905 Agreement and, on several occasions,
resisted even the most modest technical changes to it. For Venezuela, the boundary
fixed by the Award and the Agreement was immutable, and it had to be fully
respected.
4.24 In October 1905, Dr Abraham Tirado, Boundary Commissioner for
Venezuela, endorsed a slight modification of the boundary that had been
recommended by his British counterparts,207 and which he considered beneficial to
Venezuela. He communicated his position to the Venezuelan Foreign Ministry:
206 Letter from F.M. Hodgson to Alfred Lyttelton enclosing Abraham Tirado, Minister of Foreign
Affairs, Report of the Frontier towards British Guiana (20 Mar. 1905). MMG, Vol. III, Annex 42.
207 British Guiana, Recommendations of the Boundary Commissioners for the Adoption of the Line
of the Watershed between the Caroni, Cuyuni and Mazaruni River Systems as the Boundary between
the Source of the Wenamu River and Mount Roraima in place of the Direct Line Mentioned in the
97
“[T]he English Commissioners suggested to me the substitution of
the watershed between the Orinoco and the Essequibo for the
straight Venamo-Roraima line that the Paris Award declared to be
the boundary.
I thought over the matter, and being convinced that the modification
was undoubtedly to the advantage of my country, I answered them
that I would at once report on the above-mentioned proposal to my
Government through the proper channel, viz., the Minister for
Foreign Affairs, my official head. And I did so accordingly in a
special despatch; in which I enumerated as clearly as I possibly
could what I considered, and still consider to be, real
advantages.”208
4.25 In the absence of a response on the matter from Caracas, in February 1906,
Great Britain formally requested that the Venezuelan Minister for Foreign Affairs
obtain his country’s approval of the recommended change in the boundary.209 This
resulted in an exchange of diplomatic correspondence in which Venezuela’s
Foreign Minister, José de Jesús Paúl, advised the British that: (1) the 1905
Agreement had been duly ratified by Venezuela’s Federal Executive; and (2) the
proposed modification of the boundary was rejected by the Venezuelan Congress
upon the recommendation of the Federal Executive.210 In respect of the ratification
of the 1905 Agreement, the Venezuelan Minister wrote:
Award of the Arbitral Tribunal of Paris, Dated 3rd October 1899, British Guiana Combined Court,
Annual Session (10 Jan. 1905). MMG, Vol. IV, Annex 69.
208 Letter from F.M. Hodgson to Alfred Lyttelton enclosing Abraham Tirado, Minister of Foreign
Affairs, Report of the Frontier towards British Guiana (20 Mar. 1905). MMG, Vol. III, Annex 42.
209 Letter from Mr. Bax-Ironside to General Ybarra (20 Feb. 1906) (Inclosure in Letter from Mr
Bax-Ironside to Sir Edward Grey (10 Mar. 1906)). MMG, Vol. III, Annex 44.
210 Letter from Dr. Paúl to Mr. Bax-Ironside (10 Oct. 1906). MMG, Vol. III, Annex 45; Letter from
Mr. O’Reilly to Sir Edward Grey (July 1907) (Inclosure in Letter from Foreign Office to Colonial
Office (11 July 1907)). MMG, Vol. III, Annex 47; Letter from Sir Edward Grey to Mr. O’Reilly
98
“The ratification of the Federal Executive is thus limited to the work
done by the Mixed Delimitation Commissions in accordance with
the Paris Award of the 6th [sic] of October, 1899, and recorded in a
Report and maps prepared by the last Commissioners at
Georgetown, and dated at the capital of British Guiana on the 10th
January, 1905”.211
4.26 On Venezuela’s refusal to agree to the proposed modification of the 1905
Agreement, the Minister explained:
“[R]elative to the demarcation of the frontier between Venezuela
and British Guiana in accordance with the Paris Award of the 6th
[sic] October 1899, I have the honour to inform you that the
question of the modification of the boundary-line by the adoption
of the watershed as the frontier between the most westerly source of
the River Venamo and Mount Roraima instead of the straight line
laid down by the Award, was laid before Congress at its last Session
through the Ministry of Foreign Affairs, and that Congress,
concurring in the opinion of the Federal Executive, approved the
Report of the Permanent Committee of both Houses on Foreign
Affairs and declared the modification proposed to be inacceptable,
principally because it amounts to a veritable cession of territory.”212
(18 Oct. 1907). MMG, Vol. III, Annex 49; Letter from Sir V. Corbett to Dr. José de Paúl (25 Feb.
1908) (Inclosure in Letter from Sir V. Corbett to Sir Edward Grey (25 Feb. 1908)). MMG, Vol. III,
Annex 50; Letter from Señor Paúl to Mr. O’Reilly (4 Sept. 1907) (Inclosure in Letter from Mr.
O’Reilly to Sir Edward Grey (5 Sept. 1907)), pp. 1-2. MMG, Vol. III, Annex 48; Letter from J. de
J. Paúl to Sir Vincent Corbett (12 Mar. 1908) (Inclosure in Letter from Sir Vincent Corbett to Sir
E. Grey (16 Mar. 1908)). MMG, Vol. III, Annex 51. Department of Foreign Affairs of Venezeula,
[El Libro Amarillo: Presentado al congreso Nacional en sus sesiones de 1911] The Yellow Book:
Presented to the National Congress in its 1907 Sessions (1911), p. xxxiv. MMG, Vol. IV, Annex
70.
211 Letter from Señor Paúl to Mr. O’Reilly (4 Sept. 1907) (Inclosure in Letter from Mr. O’Reilly to
Sir Edward Grey (5 Sept. 1907)), pp. 1-2. MMG, Vol. III, Annex 48.
212 Ibid., pp. 1-2.
99
4.27 In 1908, the British Ministry of Foreign Affairs communicated its
insistence on the proposed deviation from the 1899 Award line213 but was once
again rebuffed by the Venezuelan Foreign Minister, Dr Paúl, who reiterated that
Venezuela was committed to strict adherence to the 1899 Arbitral Award and
would not agree to any change in the 1905 Agreement that deviated from the “Paris
award”:
“the ratification accorded by the Federal Executive to the labours of
the Commissions for the delimitation of the frontier between
Venezuela and British Guyana … is entirely restricted to that part
which is conformity with the Paris award of October 6th [sic] 1899,
without extending the deviation of the line recommended by the
Commissioner”.214
4.28 This remained Venezuela’s steadfast position, as reflected in further
exchanges with the British regarding the installation or replacement of pillars to
mark the course of the boundary. In 1911, for example, it was discovered that the
concrete beacon that marked the northernmost boundary terminus at Punta Playa
— which had been installed in 1900 — had been washed away by the sea.
Commissioners from both Venezuela and British Guiana collaborated to replace
the marker:
“After the sea destroyed the post placed between Venezuela and
British Guiana on the seaside in Punta de Playa and inundated part
of the land around this post, it has been agreed with the English
government that commissions from the two governments will
213 Letter from Sir V. Corbett to Dr. José de Paúl (25 Feb. 1908) (Inclosure in Letter from Sir V.
Corbett to Sir Edward Grey (25 Feb. 1908)). MMG, Vol. III, Annex 50.
214 Letter from J. de J. Paúl to Sir Vincent Corbett (12 Mar. 1908) (Inclosure in Letter from Sir
Vincent Corbett to Sir E. Grey (16 Mar. 1908)). MMG, Vol. III, Annex 51.
100
proceed in replacing a post at a point exactly marked by the
boundary line between Venezuela and British Guiana.”215
4.29 The Venezuelan commissioners emphasised that the new marker had to be
placed at precisely the same point as determined by the 1899 Award, pursuant to a
decree issued by President Juan Vincente Gómez:
“WHEREAS the Government of the Republic has accepted the
proposition made by the English Government to replace the said
post with another which must be placed at the precise site in which
the boundary line between the two countries out the new coast
which was fixed in the year nineteen hundred in accordance with
the award signed at Paris the 3rd of October 1899 by the Mixed
Commission Anglo-Venezuelan [sic].
…
WHEREAS I confer FULL POWERS that in his capacity a
Commissioner following the instructions given will proceed to
replace the post which was washed away by the sea in the extreme
of the Frontier between Venezuela and British Guiana at Punta
Playa with another which necessarily will be placed at the precise
point where the boundary line cut now the line fixed in nineteen
hundred in accordance with the Award signed at Paris the 3rd of
October 1899 by the Mixed Commission Anglo-Venezuelan
[sic].”216
4.30 Given the firmness of Venezuela’s commitment to the 1899 Award and the
1905 Boundary Agreement, it is unsurprising that the official Venezuelan
215 Department of Foreign Affairs of Venezeula, [El Libro Amarillo: Presentado al congreso
Nacional en sus sesiones de 1907] The Yellow Book: Presented to the National Congress in its 1907
Sessions (1911), p. xxviii. MMG, Vol. IV, Annex 70.
216 Letter from General Juan Vicente Gomez, President of the U.S. of Venezuela (1 Feb. 1911).
MMG, Vol. III, Annex 52.
101
cartography of the period unambiguously identified the boundary line as that fixed
by the Award and demarcated by the Joint Boundary Commission with no
reservation or other indication of provisionality. This is first of all the case of the
map annexed to the Agreement of 10 January 1905 on the demarcation of the
boundary, which is “annexed to an official text of which [it forms] an integral
part”217 and therefore falls “into the category of physical expressions of the will of
the State … concerned”.218
4.31 The same is true of the official map prepared and published by the
Venezuelan Ministry of the Interior in 1911, reproduced as Figure 4.6.219
217 Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986 (hereinafter
“Frontier Dispute (Burkina Faso/Republic of Mali)”), p. 582, para. 54.
218 Ibid., p. 582, para. 54; p. 583, para. 56.
219 Department of Internal Affairs of Venezuela, “Mapa Físico y Político de los E.E.U.U de
Venezuela, 1: 1,000,000” (1a ed., 1911). MMG, Vol. II, Figure 4.6.
102
Figure 4.6. Physical and Political Map of Venezuela, Commissioned by
President J. V. Gomez (1911)
103
4.32 As shown in the succeeding Sections of this Chapter, official Venezuelan
maps between 1905 and 1962 continuously and consistently showed that the
boundary between Venezuela and British Guiana was the one determined by the
1899 Arbitral Award and demarcated by the 1905 Agreement.
Venezuela’s Demarcation of its Boundary with Brazil and the Tri-
Junction Point with Brazil and British Guiana in Strict Conformity with
the 1899 Award and 1905 Agreement
4.33 Venezuela further affirmed and demanded strict adherence to the boundary
established by the 1899 Award, as demarcated by the 1905 Agreement, during the
process to fix the tri-junction point where its boundaries with British Guiana and
Brazil meet. The process began in 1926 with a boundary agreement between British
Guiana and Brazil, continued through 1928 with a Venezuela/Brazil boundary
agreement, and concluded with a tripartite agreement on the tri-junction point in
1932. Throughout this six-year process, Venezuela repeatedly insisted upon
absolute conformity with the terms of the 1899 Award.
4.34 The Treaty and Convention between His Majesty and the President of the
Brazilian Republic for the Settlement of the Boundary between British Guiana and
Brazil was signed on 22 April 1926 and ratified on 16 April 1929. It provided that
the boundary would end “where Venezuelan territory commences … on the said
Roraima mountains”, as provided in the 1899 Award and 1905 Agreement.220 An
exchange of notes confirmed that the boundary terminus would be “at the point of
220 United Kingdom, Brazil, Treaty Series No. 14, Treaty and Convention for the settlement of the
Boundary between British Guiana and Brazil (22 Apr. 1926). MMG, Vol. IV, Annex 83.
104
junction of the three territories of British Guiana, Brazil and Venezuela”.221
Venezuela did not protest; indeed, it reached a similar agreement with Brazil in
1928.
4.35 The “Protocol between Brazil and Venezuela respecting the Demarcation
of the Frontier” was signed in Rio de Janeiro on 24 July 1928, with ratifications
exchanged on 31 August 1929, four months after the agreement between Brazil and
British Guiana was ratified. Both agreements placed the tri-junction point on the
summit of Mount Roraima in accordance with the 1899 Award. The
Venezuela/Brazil agreement specified that:
“the frontier between the two countries should be clearly defined,
from the island of Sao Jose to a point on Mount Roraima where the
frontiers of Brazil, Venezuela and British Guiana meet.”222
4.36 In accordance with both agreements, a physical marker, numbered B-BG/0,
was placed on the summit of Mount Roraima in 1931 at the following coordinates:
Latitude 05o12’08”.30 North, Longitude 60o44’09”.20 West, at an altitude of
221 Exchange of Notes between the United Kingdom and Brazil approving the General Report of
the Special Commissioners Appointed to Demarcate the Boundary-Line between British Guiana
and Brazil, 51 U.K.T.S. 1946 (15 Mar. 1940). MMG, Vol. IV, Annex 87.
222 Protocol between Brazil and Venezuela respecting the Demarcation of the Frontier, Ratification
exchanged at Rio de Janeiro 31 Aug. 1929 (24 July 1928), available at
https://babel.hathitrust.org/cgi/pt?id=mdp.39015035801896&view=1up&seq=… (last
accessed 22 Feb. 2022), p. 448.
See also League of Nations, “Brazil and Venezuela: Exchange of Notes for the Execution of the
Provisions regarding the Frontier Delimitation between the two Countries, contained in the Protocol
signed at Rio-de-Janeiro, July 24, 1928. Caracas, November 7, 1929”, Treaty series: Publications
of treaties and international engagements registered with the Secretariat of the League of Nations
(1930). MMG, Vol. IV, Annex 86.
105
2771.8 metres.223 The marker is a pyramidal structure of approximately 2.50 metres
in height, made of stones and covered with cement. It has the names of each of the
three countries on the sides facing their respective territories. The sides facing
Brazil and Venezuela are inscribed with “BRAZIL”, “VENEZUELA”, and “1931”
and have the Coats of Arms of each country. And it has “on the side facing British
Guiana … a brass plate inscribed ‘BRITISH GUIANA’”.224 An image of one side
of this marker, facing Venezuela, appears in Figure 4.7.225
223 Exchange of Notes between the United Kingdom and Brazil approving the General Report of
the Special Commissioners Appointed to Demarcate the Boundary-Line between British Guiana
and Brazil, 51 U.K.T.S. 1946 (15 Mar. 1940). MMG, Vol. IV, Annex 87.
224 Ibid. See also Federative Republic of Brazil, Ministry of Foreign Affairs, “9.4 – BV-0 Mount
Roraima Marker”. MMG, Vol. IV, Annex 92.
225 “Mount Roraima Tripoint Marker, Venezuela’s Side” (undated). MMG, Vol. II, Figure 4.7.
106
Figure 4.7. Tri-Junction Point Marker between Venezuela, British Guiana
and Brazil
107
4.37 In fixing the tri-junction point, Venezuela insisted on strict adherence to the
1899 Award. In particular, in September 1931, during the demarcation process
between Brazil and British Guiana, it became apparent that the boundary marker
installed by the Venezuela-British Guiana Boundary Commission in 1904 had been
incorrectly placed. Instead of being on the actual summit of Mount Roraima as
stipulated in the 1899 Award, the marker was on one of its edges, such that the
geographical coordinates in the 1905 Agreement were also inaccurate. The British
proposed to Venezuela that the boundary established by the 1904 marker and 1905
Agreement be maintained, even if it did not mark the exact summit of Mount
Roraima.226 Venezuela rejected the British proposal and insisted that the trijunction
point must be fixed so that its location was fully and exactly consistent
with the boundary established by the 1899 Award, referring to this boundary as the
“frontier de droit”.227
4.38 This is reflected in a statement by Venezuela’s Foreign Minister, Pedro
Itriago Chacín, in a communication to Great Britain’s envoy to Venezuela, William
Edmund O’Reilly:
“I have most carefully considered the proposal contained in your
letter of the 25th of September last relative to a modification of the
frontier de droit between Venezuela and British Guiana.
A similar modification was proposed as long ago as 1904 by the
British members of the commission which then demarcated the
frontier and was considered by the Venezuelan Government, which
found itself, however, unable to accept it for many reasons of which
the principal and conclusive one was the Venezuelan constitutional
226 Letter from the Venezuelan Minister for Foreign Affairs, P. Itriago Chacín, to W. O’Reilly (31
Oct. 1931). MMG, Vol. III, Annex 53.
227 Ibid.
108
principle which forbids the alienation, in whole or in part, of
national territory to a foreign Power.
At the present time also there exist objections of principle to an
alteration by agreement of the frontier de droit, since, as this frontier
is the result of a public treaty ratified by the Venezuelan legislature,
it could only be modified by a process which would take
considerable time, even supposing that other difficulties, also of
principle, could be got over.”228
4.39 The Foreign Minister further pointed out that it was in the interests of both
parties to remain faithful to the “Paris Award”:
“As you will realise, it would be impossible in any case, for lack of
time, to take advantage of the present expedition of the Venezuelan
and British Commissioners to Roraima, and it is clear that both
parties have a legitimate interest in the completion, as soon as
possible, of the work required to carry out the Paris Award.”229
4.40 In conclusion, the Foreign Minister advised the British:
“[The] Venezuelan government regret that for constitutional
reasons they are unable to depart from the letter of the award.”230
4.41 Venezuela’s position on the primacy of the 1899 Award was reiterated in a
Memorandum of 25 December 1931, prepared by its Foreign Ministry’s
Directorate of International Political Affairs:
“In accordance with the Paris Award of the 3rd October, 1899, the
Anglo-Venezuelan boundary ends with a straight line drawn from
228 Ibid.
229 Ibid.
230 Telegram from P. Itriago Chacín, to W. O’Reilly (23 Nov. 1931). MMG, Vol. III, Annex 54.
109
the sources of the Venamo to the summit of Roraima. The latter is
also the terminal point of the Anglo-Brazilian boundary.”231
4.42 The British agreed to Venezuela’s demand that the tri-junction point be
fixed at the summit of Mount Roraima, in conformity with the 1899 Award, and to
place a new boundary marker at that location.232 Venezuela responded with
satisfaction, in a note signed by the Foreign Minister on 3 November 1932:
“The Government of the Republic has noted with satisfaction that
His Majesty’s Government has decided to accept the Venezuelan
proposal that the boundary in question should be a straight line
drawn from the source of the Wenamu river to the point of trijunction
on Mount Roraima of the frontiers of Venezuela, British
231 Memorandum from the Venezuelan Ministry of Foreign Affairs, No. 1638 (16 Dec. 1931) in
Caracas despatch No. 51 (25 Dec. 1931). MMG, Vol. IV, Annex 71. See also Bulletin of the
Ministry of Foreign Affairs of Venezeula, [Acta de Inaguracion de dos hitos Venezolano-Brasileros
en el Monte Moraima] Act of Inaguration of two Venezuelan-Brazilian Boundary Marks on Mount
Roraima. MMG, Vol. IV, Annex 95.
232 The tri-junction marker, relocated to the summit of Mount Roraima, remains standing at that
location. It continues to be recognised by Brazil, as well as Guyana as the terminus of its boundary
with Venezuela. On 23 August 1973, in an official act signed during the 41st Conference of the
Brazil-Venezuela Mixed Commission for Boundary Demarcation, the Brazilian representatives
responded to Venezuela’s assertion that the tri-junction point was subject to a territorial claim as
follows:
“The Head of the Brazilian Commission then stated that he took
due note of the statement made by his distinguished colleague,
but wished to place on record that, for purposes of the relevant
demarcation, the location of this boundary marker is the same
as the location described in the respective Inauguration Act that
was drawn up and signed by the representatives of the
Venezuelan and Brazilian Commissions on December 29,
1931.”
Ministry of Foreign Relations, Mixed Venezuelan-Brazilian Commission on the Demarcation of
Boundaries, [Acta de la Cuadragesima Primera Conferencia] Minutes of the Forty-First
Conference (1973). MMG, Vol. IV, Annex 91; Ministry of Foreign Affairs of Brazil, First Brazilian
Commission to Establish Borders, “8.1 – Brazil – Guyana –Venezuela Tri-Border Area (Mount
Roraima)”. MMG, Vol. IV, Annex 93.
110
Guiana and Brazil, as recently determined and marked with a pillar
by the Commissions of the three countries — giving thereby a clear
proof of the spirit of justice, good faith and cordiality which
animates its actions in the conduct of international relations.”233
4.43 Throughout this period, and beyond, Venezuela’s official maps continued
to depict the boundary between Venezuela and British Guiana in conformity with
the 1899 Award and the 1905 Agreement. For instance, the boundary is clearly
defined in a 1928 map of Venezuela commissioned at the order of Venezuelan
President Juan Vincente Gómez (reproduced as Figure 4.8).234 The official
national map was updated in 1937, once again clearly depicting the border with
neighbouring British Guiana in accordance with the 1899 Award and the 1905
Agreement (Figure 4.9).235
233 Letter from P. Itriago Chacín, No. 1157/2 (3 Nov. 1932). MMG, Vol. III, Annex 55.
234 Department of Internal Affairs of Venezuela, “Mapa Físico y Político de los Estados Unidos de
Venezuela, Escala: 1: 1,000,000” (1a ed., 1928). MMG, Vol. II, Figure 4.8.
235 “Mapa Físico y Político de los Estados Unidos de Venezuela” (1937), reprint of “Mapa Físico y
Político de los Estados Unidos de Venezuela” (1928) (with territorial modifications). MMG, Vol.
II, Figure 4.9.
111
Figure 4.8: Physical and Political Map of Venezuela, Commissioned by
President J. V. Gomez (1928)
112
Figure 4.9: Physical and Political Map of Venezuela (1937)
113
4.44 In 1940, the Ministry of Public Projects and the National Cartography
Directorate produced the Atlas of Venezuela (reproduced in Figure 4.10236), also
in conformity with the 1899 Award and the 1905 Agreement.
236 U.S. of Venezuela, Ministry of Public Works, National Cartography Directorate, Division of
Map and Atlas, “Mapa de los EE.UU. de Venezuela” (1939, published in 1940). MMG, Vol. II,
Figure 4.10.
114
Figure 4.10. Atlas of Venezuela (1940)
115
4.45 To these may be added the official map published in 1939 by the British
War Office, which shows the boundary between British Guiana and Brazil (Figure
4.11237). Venezuela could not have been unaware of this map which was the work
of the Mixed Brazil-British Guiana Boundary Commission, with the participation
of a Venezuelan Commissioner for fixing the tri-junction point between the three
countries. Venezuela did not protest.
237 British War Office, “Map of the Boundary between British Guiana and Brazil, Scale
1;1,000,000” (1939). MMG, Vol. II, Figure 4.11.
116
Figure 4.11. Map of the Boundary between British Guiana and Brazil (1939)
117
Venezuela’s Declaration that the Boundary with British Guiana Was
Chose Jugée, and its Repeated Official Statements Reaffirming the Legal
Validity of the 1899 Award and the 1905 Agreement
4.46 In 1940 and 1941, with Britain fully engaged in war with the Axis Powers,
articles began to appear in the nationalist Venezuelan press, expressing discontent
with the 1899 Award and urging the Government to reclaim the portion of the
Essequibo Region that the Arbitral Tribunal had awarded to British Guiana. These
articles caused concern in London and prompted the British to seek reassurances
from Venezuela of its continued acceptance of the Award and the boundary
demarcated in the 1905 Agreement.
4.47 Venezuela responded in clear and express terms. In the words of its Foreign
Minister, Dr Esteban Gil Borges, in April 1941, the boundary between Venezuela
and British Guiana was “chose jugée”:
“Reports that a Caracas newspaper recently published series of three
articles alleging that His Majesty’s Government had unjustly
appropriated a part of Venezuelan territory and incorporated it into
British Guiana. Finally an award had been made which was unfair
to Venezuela and which should therefore be upset.
In reply to enquiry, Dr Gil Borges replies that his view and that of
Venezuelan Government were definitively that matter was chose
jugée and that views expressed by the paper never had been and
were not now shared by him or his Government.”238
238 Letter from the Venezuelan Foreign Minister, E. Gil Borges, to British Ambassador to
Venezuela, D. Gainer (15 Apr. 1941). MMG, Vol. III, Annex 56 (emphasis added). During the
proceedings on Jurisdiction, it was erroneously stated that Borges’ reply was made in 1944. Letter
from the Ambassador of the United Kingdom to Venezuela, to J.V.T.W.T. Perowne, U.K. Foreign
Office (3 Nov. 1944), pp. 1-2. MG, Vol. II, Annex 11. See also Foreign Ministry of Guyana, THE
NEW CONQUERORS: THE VENEZUELAN THREAT TO THE SOVEREIGNTY OF GUYANA (2016), p. 20
(emphasis in original). MMG, Vol. III, Annex 7 (“From time to time an odd article about British
Guiana appears in the Press but that I need take no notice of that; the articles were obviously written
118
4.48 While the Venezuelan Government’s position did not change, some
nationalist groups and politicians continued to criticise the 1899 Award. In 1944, a
British Colonial Office report stated that some Venezuelans, including politicians
in the Venezuelan Congress, “feel a grievance” over the boundary settlement “and
wish to re-open the matter”, with some referring to the Award as an “unparalleled
miscarriage of justice”.239
4.49 Nevertheless, the Venezuelan Government made clear that, despite these
sentiments it continued to accept the validity and binding character of the 1899
Award. That same year, in 1944, the Venezuelan Ambassador to the United States
made the following statement in an address to the Pan-American Society in
Washington:
“We have accepted the verdict of the arbitration for which we have
so persistently asked; but in the heart of every Venezuelan there is
the undying hope that one day the spirit of equity will prevail in the
world and that this will bring us the reparation which morally and
justly is due to us.”240
4.50 Venezuela’s acceptance of “the verdict of the arbitration” of 1899 and the
resulting 1905 Boundary Agreement continued through its accession to the United
by persons of little knowledge who have never had access to official files. So far as the Venezuelan
Government were concerned the one really satisfactory frontier Venezuela possessed (at that time)
was the British Guiana frontier and it would not occur to them to dispute it.” (emphasis omitted)).
239 McQuillen & Brading, Minutes regarding the Venezuelan - British Guiana Boundary Dispute
(10 Mar. 1944) (9 Sept. 1944). MMG, Vol. IV, Annex 88.
240 Speech by the Venezuelan Ambassador to the United States, to the Pan-American Society of the
United States (1944), p. 2. MG, Vol. II, Annex 9 (emphasis added).
119
Nations as one of its founding members in 1945, as reflected in the U.N. map
published in that year (reproduced in Figure 4.12241).
Figure 4.12. Map Presented at United Nations Conference at San Francisco
(1945)
241 “States Represented at the United Nations Conference on International Organisation”, San
Francisco (Apr.-June 1945). MMG, Vol. II, Figure 4.12.
120
4.51 Two years thereafter, in 1947, Venezuela’s Ministry of Public Works
published an official map (Figure 4.13242) that reaffirmed the same boundary
between Venezuela and British Guiana.
242 U.S. of Venezuela, Department of National Cartography, Ministry of Public Works, “Carta
Aeronáutica de Venezuela, Escala: 1: 1,000,000 (5 sheets)” (1947). MMG, Vol. II, Figure 4.13.
121
Figure 4.13. Physical and Political Map of Venezuela (1947)
122
4.52 The following year, in 1948, Venezuela’s Congress promulgated the
Organic Law of the Federal Territories [Ley orgánica de los Territorios Federales],
which confirmed that the Province of the Delta Amacuro, in Venezuela’s northeast,
was bordered in the east by British Guiana and that the border followed the
boundary line demarcated in the 1905 Boundary Agreement in accordance with the
1899 Award:
“Article 5. — The Delta Amacuro Federal Territory is formed by
the region found within the following boundaries: the Gulf of Paria
and the Atlantic Ocean to the north, the Atlantic Ocean and British
Guyana to the east, as defined by the Border Treaty between
Venezuela and Great Britain: ‘From Punta Playa in a straight line
to the confluence of the Barima and the Baruma. It continues along
the mainstream of this river until its source. From this point along a
straight line to the junction of the Haiwoa and the Amacuro. It
continues along the mainstream of the Amacuro to its source in the
Imataka Mountains; it continues southwest along the highest peaks
of the Imataka to the highest point opposite the source of the
Barima. Monagas State to the west, from which it is separated by
the Caño Manamo and the Brazo del Orinoco until the foot of the
Imataka Mountains between San Miguel and Aramaya; and Bolivar
State to the south’.”243
4.53 The map published by the Venezuelan Ministry of Public Works in 1950,
reproduced in Figure 4.14,244 also showed that that the boundary between
Venezuela and British Guiana was the one determined by the Award of 1899 and
agreed in 1905.
243 U.S. of Venezuela, [Ley orgánica de los Territorios Federales] Organic Federal Territories
Law (14 Sept. 1948), Article 5. MMG, Vol. IV, Annex 89 (emphasis added).
244 U.S. of Venezuela, Department of National Cartography, Ministry of Public Works, “Mapa
Físico y Político de los Estados Unidos de Venezuela” (1950). MMG, Vol. II, Figure 4.14.
123
Figure 4.14. Physical and Political Map of Venezuela (1950)
124
4.54 In the early 1950s, when British Guiana began to prepare for self-rule as a
first step toward its eventual independence in accordance with Great Britain’s
obligations under the U.N. Charter, Venezuelan officials commented that the
change in British Guiana’s status should not prejudice its “just demand” for an
“equitable rectification of the frontier”.
4.55 As expressed in 1954 by Venezuela’s representative to the Tenth Inter-
American Conference:
“In the particular case of the British Guiana, the Government of
Venezuela declares that no change of status which may occur in that
neighbouring country can prevent the National Government from
pressing its just demand that the injury suffered by the Nation when
its frontier line with British Guiana was demarcated should be
redressed by an equitable rectification of the frontier, in view of the
unanimous feelings of the Venezuelan people and the special
circumstances prevailing at the time. Hence, no decision on the
subject of colonies adopted at the present Conference can adversely
affect Venezuela’s rights in this respect, nor can it be interpreted in
any way as a renunciation of those rights.”245
4.56 The same position was expressed by Venezuela’s Ambassador in
Washington in a 1961 address to the Pan-American Society:
“In the opinion of the Government of Venezuela, no change of
status which may occur in British Guiana as a consequence of the
international situation, of any measures which may be adopted in
the future or of the advance of the territory’s inhabitants towards
self-determination will prevent Venezuela, in view of the special
circumstances prevailing when the frontier line with the British
Guiana was defined, from pressing its just demand that the injury
245 Ibid., p. 18; See also Minutes and Documents from the Tenth Inter-American Conference (1-28
Mar. 1954). MMG, Vol. IV, Annex 90.
125
suffered by the Nation on that occasion should be redressed by an
equitable rectification of the frontier.”246
4.57 Despite Venezuela’s nascent calls for an “equitable rectification of the
frontier”, beginning in the 1950s, it did not challenge the legal validity or binding
nature of the 1899 Award, the 1905 Agreement or the resulting boundary with
British Guiana. Instead, it hoped to obtain relief from the “injury suffered by the
Nation when its frontier line with British Guiana was demarcated” by means of a
new, more “equitable” agreement with Great Britain. There was no rejection of the
1899 Award, denunciation of the 1905 Agreement, or questioning of their legal
status, and no protest to such effect was made to the British or to any other party.
Meanwhile, official Venezuelan maps continued to recognise the boundary with
British Guiana in conformity with the 1899 Award and the 1905 Agreement.
4.58 Figure 4.16,247 Figure 4.17248 and Figure 4.18249 depict maps published
by the Venezuelan Ministry of Public Works in 1956, 1960 and 1962, respectively,
246 Letter from the Permanent Representative of Venezuela to the Secretary-General of the United
Nations (14 Feb. 1962), reprinted in U.N. General Assembly, Fourth Committee, 16th Session,
Information from Non-Self-Governing Territories transmitted under Article 73 of the Charter, U.N.
Doc A/C.4/536 (15 Feb. 1962), p. 16. MG, Vol. II, Annex 17.
247 U.S. of Venezuela, Department of National Cartography, Ministry of Public Works, “Mapa de
la República de Venezuela” (1956). MMG, Vol. II, Figure 4.16. See also Republic of Venezuela,
Department of National Cartography, Ministry of Public Works, “Mapa Físico y Político de la
República de Venezuela” (1955). MMG, Vol. II, Figure 4.15 (in Vol. II only).
248 U.S. of Venezuela, Department of National Cartography, Ministry of Public Works, “Mapa de
la República de Venezuela” (1960). MMG, Vol. II, Figure 4.17.
249 U.S. of Venezuela, Department of National Cartography, Ministry of Public Works, “Mapa de
la República de Venezuela” (1962). MMG, Vol. II, Figure 4.18.
126
all of which recognise the boundary established by the 1899 Award and the 1905
Agreement.
Figure 4.16. Official Map of Venezuela (1956)
127
Figure 4.17. Official map of Venezuela (1960)
128
Figure 4.18. Official map of Venezuela (1962)
129
4.59 In sum, between 1899 and 1962, Venezuela consistently manifested its
recognition and acceptance of the 1899 Arbitral Award and the 1905 Boundary
Agreement, without exception, in a plethora of official statements and actions,
including:
(i) the express acceptance of the Award by Venezuela’s highest
authorities;
(ii) the demarcation of an agreement upon a boundary drawn in strict
accordance with the 1899 Award;
(iii) the ratification of the 1905 Boundary Agreement by the Federal
Executive;
(iv) Venezuela’s refusal to accept any modification of the boundary that
deviated in the slightest degree from the terms of the 1899 Award;
(v) the agreement with Brazil and with British Guiana on a tri-junction
point consistent with the 1899 Award and the 1905 Agreement;
(vi) Venezuelan officials’ assertions to the British that the boundary
was chose jugée;
(vii) the continuous and unbroken recognition and respect for the agreed
boundary for more than half a century;
(viii) Venezuela’s failure to protest or question the legal validity or
binding nature of the Award or the 1905 Boundary Agreement
between 1905 and 1962; and, finally,
(ix) the publication of official maps that uniformly recognised the
boundary as determined by the 1899 Award and demarcated by the
1905 Agreement.
130
4.60 In regard to the maps, Guyana is aware that they may have limited
evidentiary value in the context of territorial disputes;250 however, in the present
case, the maps shown above offer a different and more authoritative conclusion: as
with the map annexed to the 1905 Agreement, such maps, drawn and published by
official branches of the Venezuelan Government, “fall into the category of physical
expressions of the will of the State ... concerned”.251 Moreover, they have at least
the legal value “of corroborative evidence endorsing a conclusion at which [the
Court will arrive] by other means unconnected with the maps”.252
250 See the celebrated analysis by the Chamber of the Court in its pre-cited Judgment of 22 December
1986, (Frontier Dispute (Burkina Faso/Republic of Mali), pp. 582-583, paras. 54-56). See also
Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, 19 November 2012, I.C.J.
Reports 2012, p. 661, para. 100; Kasikili/Sedudu Island (Botswana/Namibia), Judgment, I.C.J.
Reports 1999 (hereinafter “Kasikili/Sedudu Island (Botswana/Namibia)”), p. 1098, para. 84.
251 Frontier Dispuste (Burkina Faso/Republic of Mali), pp. 582-583, para. 54-56.
252 Ibid.
131
CHAPTER 5
VENEZUELA’S REPUDIATION OF THE 1899 AWARD
Venezuela’s Change of Position on the Arbitral Award
5.1 After more than sixty years of affirmation and acceptance of the 1899
Award and the 1905 Agreement, Venezuela changed course in 1962. In that year,
Venezuela made its first formal contention that the 1899 Award was null and void.
Previously, in the 1950s, as described in the preceding Chapter, Venezuela had
begun to express its discontent with the boundary that resulted from the Award and
its desire for an “equitable rectification”, but it never challenged the Award’s legal
validity or binding character. Only in 1962, for the first time, did Venezuela
officially change its position and claim that the Award was invalid.
5.2 Venezuela’s change of position followed closely upon the United
Kingdom’s decision to grant independence to British Guiana and its acceleration
of the decolonisation process. These events were precipitated by the United Nations
General Assembly’s near-unanimous adoption, on 14 December 1960, of
Resolution No. 1514 — the Declaration on the Granting of Independence to
Colonial Countries and Peoples. That historic Declaration called upon all colonial
powers, inter alia, to respect the right of self-determination of their colonised
peoples, including the right to choose independence from colonial rule. One year
later, on 18 December 1961, the Premier of British Guiana, Dr Cheddi Jagan,
petitioned the Special Political and Decolonization Committee of the General
Assembly — the Fourth Committee — to support “the immediate political
132
independence of his country”.253 In response, the United Kingdom informed the
Committee that it would soon hold a constitutional conference on the independence
of British Guiana.254
5.3 Within one month of Dr Jagan’s petition to the Fourth Committee, on 15
January 1962, Venezuela delivered a memorandum to the United States
Department of State in Washington asserting that the 1899 Award was inequitable,
indicating that it would bring its complaint to the attention of the Fourth Committee
to forestall British Guiana’s independence, and calling for negotiations with the
United Kingdom to reach agreement on a new boundary with British Guiana. The
memorandum to the U.S. Department of State took pains to make clear, however,
that Venezuela “was not questioning the legality of the Arbitral Award”. As
reported by the U.S. Department of State:
“Inasmuch as Venezuela has long cherished the aspiration of having
the 1899 Arbitral Award revised, it felt obliged to put its aspiration
on the record of the United Nations. …
Venezuela was not questioning the legality of the Arbitral Award
but felt it only just that the Award should be revised since it was
handed down by a Tribunal of five judges which did not include on
it any Venezuelans; Venezuela believes that the two British judges
and so-called neutral Russian judge had colluded in arriving at a
decision to support the British claims; and only valiant action by the
two US judges prevented the Award from recognising the extreme
253 U.N. General Assembly, Fourth Committee, 16th Session, 1252nd Meeting, Agenda item 39:
Information from Non-Self-Governing Territories transmitted under Article 73 of the Charter, U.N.
Doc A/C.4/SR.1252 (18 Dec. 1961). MG, Vol. II, Annex 14.
254Ibid.; see also Letter from the Permanent Representative of the United Kingdom, to the Secretary-
General of the United Nations (15 Jan. 1962), reprinted in U.N. General Assembly, Fourth
Committee, 16th Session, Information from Non-Self-Governing Territories transmitted under
Article 73 of the Charter, U.N. Doc A/C.4/520 (16 Jan. 1962). MG, Vol. II, Annex 15.
133
British claim. For these reasons Venezuela considers the Award to
have been inequitable and questionable from a moral point of view
(viciado).”255
5.4 Despite Venezuela’s assurances to the United States that it was not
questioning the legality of the 1899 Award, just one month later it changed position
and did just that. In a letter from its Permanent Representative to the United
Nations, Dr Carlos Sosa Rodríguez, to U.N. Secretary-General, U Thant, dated 14
February 1962, Venezuela declared for the first time that “it cannot recognize an
award” that was “the result of a political transaction”.256 Given the lack of any prior
protest, Venezuela referred only to the two official statements quoted in Chapter 4,
made in 1954 and 1961, in which it asserted that the boundary was inequitable and
called for its rectification, but refrained from challenging the legal validity of the
1899 Award or the boundary itself.257 Venezuela’s letter asserted, for the first time,
that:
“The award was the result of a political transaction carried out
behind Venezuela’s back and sacrificing its legitimate rights. The
frontier was demarcated arbitrarily, and no account was taken of the
specific rules of the arbitral agreement or of the relevant principles
of international law.
Venezuela cannot recognize an award made in such circumstances.
Ever since the date of the decision, Venezuelan public opinion has
unanimously refused to acknowledge its validity and has demanded
255 U.S. Department of State, Memorandum of Conversation, No. 741D.00/1-1562 (15 Jan. 1962)
(emphasis added) (partial emphasis in original). MG, Vol. II, Annex 16.
256 Letter from the Permanent Representative of Venezuela to the Secretary-General of the United
Nations (14 Feb. 1962), reprinted in U.N. General Assembly, Fourth Committee, 16th Session,
Information from Non-Self-Governing Territories transmitted under Article 73 of the Charter, U.N.
Doc A/C.4/536 (15 Feb. 1962). MG, Vol. II, Annex 17.
257 See supra paras. 4.55-4.56.
134
that the injustice suffered by Venezuela should be redressed. When
it obtained clear evidence of the defects which invalidate that
decision, the Government of Venezuela explicitly reserved its rights
at the Fourth Meeting of Consultation of Ministers of Foreign
Affairs of the American Continent in 1951 (annex II) and at the
Tenth Inter-American Conference in 1954 (annex III).”258
5.5 The change in Venezuela’s position on recognition of the 1899 Award
occurred at a time when Cold War tensions were at a peak, and Western countries,
especially the United States, were increasingly concerned about the spread of
communism in Latin America and the Caribbean, including the fear of a
“communist takeover in British Guiana” following the Cuban Revolution of the
late 1950s.259 Venezuela sought to take advantage of this political context. Its
President, Rómulo Betancourt, defended his country’s challenge to the 1899 Award
both as a means to delay British Guiana’s independence and to establish a “cordon
sanitaire” between Venezuela and a potential communist enclave in the former
colony. President Betancourt’s strategy was revealed in a May 1962 despatch from
the U.S. Ambassador in Caracas to the U.S. State Department in Washington:
“Through a series of conferences with the British before Guiana is
awarded independence a cordon sanitaire would be set up between
the present boundary line and one mutually agreed upon by the two
countries. Sovereignty of this slice of British Guiana would pass to
Venezuela but a carefully worded agreement would give preference
to British, Venezuelan and [the] U.S. capital to develop the zone.
The Venezuelans are convinced that the area contiguous to the
258 Letter from the Permanent Representative of Venezuela to the Secretary-General of the United
Nations (14 Feb. 1962), reprinted in U.N. General Assembly, Fourth Committee, 16th Session,
Information from Non-Self-Governing Territories transmitted under Article 73 of the Charter, U.N.
Doc A/C.4/536 (15 Feb. 1962). MG, Vol. II, Annex 17.
259 Memorandum on British Guiana from Secretary of State Dean Rusk for President John F.
Kennedy enclosing Action Program for British Guiana (12 July 1962), p. [pdf] 25. MMG, Vol. II,
Annex 72.
135
present boundary abounds in mineral resources .... Of course, the
reason for the existence of the strip of territory, according to the
President, is the danger of communist infiltration of Venezuela from
British Guiana if a Castro-type government ever were
established.”260
5.6 A subsequent memorandum from U.S. Secretary of State Dean Rusk to
President John F. Kennedy made clear that it was U.S. strategy to prevent the
establishment of a communist government in British Guiana by encouraging
Venezuela to pursue territorial claims that would destabilise the colony and delay
its independence:
“Should the program described above fail completely there are other
actions which could be taken to hamper or prevent a communist
takeover in British Guiana. Each has several drawbacks and is less
desirable than the action proposed. .... [Which was to] [e]ncourage
Venezuela and possibly Brazil to pursue their territorial claims. This
could result in an indefinite delay in independence.”261
5.7 Venezuela has stated that it reactivated its territorial claims under pressure
from the United States. President Hugo Chávez publicly disclosed this on various
occasions, including, for example, in February 2007, when he reported that
President Betancourt’s Government had been pressured by the U.S. to press
Venezuela’s claim to the territory east of the boundary line established by the 1899
Award and the 1905 Agreement:
260 Foreign Service Despatch from C. Allan Stewart, U.S. Ambassador to Venezuela, to the U.S.
Department of State (15 May 1962) (emphasis in original). MG, Vol. II, Annex 21.
261 Memorandum on British Guiana from Secretary of State Dean Rusk for President John F.
Kennedy enclosing Action Program for British Guiana (12 July 1962), p. [pdf] 25. MMG, Vol. IV,
Annex 72.
136
“In February 2007, President Chavez [sic] claimed, and since then
has repeated on several occasions, that the renewal of the
Venezuelan claim to Essequibo territory in 1962 by the government
of Romulo Betancourt was the result of pressure from the United
States, which was supposedly interested in destabilising the
autonomous (though not yet independent) government of the Prime
Minister of what was then known as British Guiana, Cheddi Jagan,
who was a Marxist — a self-confessed Leninist.”262
5.8 Not surprisingly, these were not the grounds cited by Venezuela in 1962 for
its abrupt volte face on the validity of the 1899 Award and the resulting boundary
with British Guiana. The first formal challenge to the Award was made by
Venezuela’s Permanent Representative to the United Nations, Carlos Sosa
Rodriguez, before the Fourth Committee of the U.N. General Assembly on 22
February 1962, while the Committee was discussing the question of British
Guiana’s decolonization. Exercising his right of reply in the Fourth Committee of
the United Nations General Assembly on 22 February 1962, the Representative of
the United Kingdom, Sir Hugh Foot, stated that:
“the United Kingdom government regarded the question of the
western boundary of British Guiana with Venezuela as
finally settled by the award of the Tribunal of Arbitration which had
followed the Treaty of 2 February 1897. Under article XIII of that
Treaty both Governments had pledged themselves to accept the
Tribunal's award as ‘a full, perfect and final settlement’.”263
262 S. Garavini Di Turno, “[La traición de Chávez] Chávez’s treason”, El Imparcial (22 Jan. 2012).
MMG, Vol. III, Annex 4.
263 Statement made by the Representative of the United Kingdom at the 132nd meeting of the Fourth
Committee on 22 February 1962, reprinted in U.N. General Assembly, Fourth Committee, 16th
Session, Information from Non-Self-Governing Territories transmitted under Article 73 of the
Charter, U.N. Doc A/C.4/540 (22 Feb. 1962), para. 42 (emphasis in original). MG, Vol. II, Annex
23.
137
5.9 The legal grounds for Venezuela’s challenge were not fully provided until
1 October 1962, in a speech to the General Assembly by Venezuela’s Foreign
Minister, Dr Falcon Briceño. According to Dr Briceño, Venezuela could no longer
accept the validity of the Arbitral Award because it “was the outcome of political
compromise rather than of the application of the rules of law to which the parties
had agreed”.264 This rendered it, in Venezuela’s view, null and void.
5.10 The basis for Venezuela’s claim that the 1899 Award was the product of a
“political compromise” was, according to Dr Briceño, a memorandum allegedly
drafted on 8 February 1944 by Venezuela’s counsel in the arbitral proceedings, Mr
Severo Mallet-Prevost; this was some forty-five years after the Award was issued
(“the Mallet-Prevost Memorandum” or “the Memorandum”). The Memorandum
was first made public in 1949, one month after the author’s death, allegedly at his
request. In it, Mr Mallet-Prevost expressed the opinion that the boundary
established by the Arbitral Tribunal was the result of a “political transaction”
between the Russian President of the Tribunal, Prof Fyodor Martens, acting on
behalf of his own Government, and the British, by which Britain would receive
more territory than it deserved in the Arbitration in exchange for British support
for Russian objectives in another part of the world. No documents were cited in Mr
Mallet-Prevost’s Memorandum, and no other supporting evidence for Mr Mallet-
Prevost’s opinion was provided or referenced. He did not specify how he learned
of the purported “deal” between Russia and Britain brokered by Prof Martens or
offer any indication of any source for this belief.
264 Speech by Dr. Marcos Falcón Briceño, reprinted in U.N. General Assembly, 17th Session,
Agenda item 9, U.N. Doc. A/PV.1138 (1 Oct. 1962), pp. 242-246, para. 68.
138
5.11 By the time it changed position in 1962, Venezuela had been aware of this
Memorandum for at least thirteen years, yet it had never previously made public
reference to it, much less cited it as a basis for challenging the Arbitral Award.
Nevertheless, in his 1962 speech to the General Assembly Dr Briceño quoted from
it extensively, referring to it as the “inside story” of the Arbitration and the 1899
Award.265 The Mallet-Prevost document, its blatant errors and overall lack of
credibility, and the inappropriateness of Venezuela’s reliance on it, are addressed
in detail in Chapter 8. It is worth noting here, however, that Dr Briceño assured the
members of the General Assembly that Venezuela had been “able to obtain
evidence which corroborates Mallet-Prevost’s testimony”, which, he pledged,
would be published “in due course”.266 Yet, despite his assurances, no such
evidence has ever been made public. To the contrary, published accounts of the
Arbitral Tribunal’s deliberations, from the private correspondence and memoirs of
the participants, tell a different story, as described in Chapter 8.
5.12 In fact, Prof Martens, in his diary, confirmed that the British Arbitrators,
especially Lord Russell, were displeased with his efforts to obtain concessions from
them in order to produce a unanimous Award:
“I opened the session with the story about my negotiations and made
it clear that I find a firm basis for the possible and complete
agreement in the concessions made by the Americans. My speech
irritated Lord Russell, who is inherently bad-tempered. He started
to talk defiantly, saying that the concluded negotiations between the
chairman and the members of the tribunal seem awkward and
confusing to him and that he is not going to make any concessions.
My brief and clear response was that I consider it not only as my
265 Ibid, para. 68.
266 Speech by Dr. Marcos Falcón Briceño, reprinted in U.N. General Assembly, 17th Session,
Agenda item 9, U.N. Doc. A/PV.1138 (1 Oct. 1962), pp. 242-246, paras. 68-70.
139
right, but rather as a moral duty to carry out such negotiations to
ensure full unanimity between the arbitrators and to achieve the
greatest objective — a unanimous arbitral award. Due to this I
consider the accusations of Lord Russell groundless and I do not
regret about the measures I undertook, which I always immediately
communicated to both sides.”267
5.13 The following passage from Prof Martens’ diary further dispels the
suggestion that he colluded with the British to produce a result in their favour:
“Lords Russell and Collins are still angry with me as I literally
forced them to be more flexible and to waive their excessive
demands.… Even though I did not take any side they still felt that I
put them in such a position that they had to make one more
concession and to accept my line from Cap Palaya. It was obvious
that if the British had not agreed to my compromise, I would have
joined the Americans rather than them. This is the reason of Lords
Russell and Collins, and that is how I managed to have the
unanimity of all the arbitrators. This is a great triumph!”268
5.14 To be sure, Prof Martens, as President of the Tribunal, sought to achieve a
unanimous Award, which the Arbitrators appointed by the two opposing sides
could accept. He made no secret of his objective in this regard:
“I was extremely happy about my triumph of having a unanimous
arbitral award, despite the complete opposition of interests, views
and law systems of both parties.”269
267 Private Diary Entries of Prof Fyodor Fyodorovich Martens (4 June 1899 - 3 Oct. 1899).
(emphasis in original). MMG, Vol. III, Annex 33.
268 Ibid.
269 Ibid.
140
5.15 However, there is no reference in the correspondence, memoirs or diaries
of any of the members of the Arbitral Tribunal to an alleged “deal” between Britain
and Russia, let alone one that affected the Arbitral Award or the deliberations that
produced it.
The Examination of Archival Documents and the Conclusion of the
Geneva Agreement
5.16 The reaction of the British Government to Venezuela’s 1962 contention that
the 1899 Award was “null and void” was strong and unequivocal.
5.17 The response to Foreign Minister Briceño’s statement in the U.N. General
Assembly was given by its then deputy-Permanent Representative, Mr Colin
Crowe, who emphasised that his Government still considered that the boundary of
British Guiana with Venezuela had been finally settled by the Award which the
Arbitral Tribunal had announced on 3 October 1899, and that the frontier had been
demarcated in accordance with that Award by a boundary commission appointed
by the British and Venezuelan Governments and recorded in an agreement signed
by the British and Venezuelan boundary commissioners on 10 January 1905.270 Mr.
Crowe further highlighted that the composition and rules of procedure of the
Arbitral Tribunal had been laid down by the Treaty and, most important of all,
under Article XIII of that instrument the two Governments had pledged themselves
to accept the Tribunal’s award as “a full, perfect and final settlement”.271 His
270 Speech by Dr. Marcos Falcón Briceño, reprinted in U.N. General Assembly, 17th Session,
Agenda item 9, U.N. Doc. A/PV.1138 (1 Oct. 1962), para. 180.
271 Statement made by the Representative of the United Kingdom at the 349th meeting of the Special
Political Committee on 13 November 1962, reprinted in U.N. General Assembly, Special Political
Committee, 17th Session, Question of Boundaries between Venezuela and the Territory of British
Guiana, U.N. Doc A/SPC/72 (13 Nov. 1962), p. 2. MG, Vol. II, Annex 24.
141
Government therefore could not agree that there could be any dispute over the
question settled by the Award.
5.18 The British representative thus:
“[urged] the Committee to consider most seriously whether, after
fifty-seven years from the date on which a frontier settlement is put
into effect, it is allowed to be re-opened, particularly when there is
no new evidence which has to be taken into account.”272
5.19 While it asserted and maintained this principled view, Britain feared that,
given Venezuela’s change of position, a newly independent Guyana would be
vulnerable to a military seizure of its territory by far superior Venezuelan armed
forces. Accordingly, notwithstanding Britain’s conviction that Venezuela’s claim
was entirely without merit, its representative to the Fourth Committee, Mr Crowe,
made a proposal for a peaceful resolution of the controversy. While emphasising
that the British Government did not accept that there was a boundary dispute to
discuss, he proposed that, to enable British Guiana to “move forward” with its
independence “without a shadow of a doubt about its frontiers”, a tripartite
examination of the “voluminous documentary material relevant to this question”
could be undertaken.273 Mr Crowe made clear that this was not “an offer to engage
in substantive talks about revision of the frontier”, as this been settled by the
Arbitral Award in 1899.274 Instead, he explained, the British offer was intended
only “to dispel any doubts which the Venezuelan Government may still have about
272 Ibid., p. 15.
273 Ibid., p. 17.
274 Ibid., p. 17.
142
the validity or propriety of the arbitral award”.275 Venezuela accepted the British
proposal, and the Chairman of Fourth Committee noted that, an agreement having
been reached, there was no need for further debate.276
5.20 Pursuant to this agreement, Venezuelan experts travelled to London to
examine the British archives, following which British experts travelled to Caracas
to study the Venezuelan archives. Upon his examination of the Venezuelan
archives, Sir Geoffrey Meade, who was the United Kingdom’s expert and also
acted on behalf of British Guiana at its request, reported that Venezuela had no
evidence to support Mr Mallet-Prevost’s opinion that the 1899 Award was the
product of an Anglo-Russian political deal:
“The main result of my visit to Caracas may therefore be summed
up as showing that Dr Falcon’s claim in his United Nations speech
that ‘the recent discovery of extraordinary important historical
documents enable us to be acquainted with the history of the
Arbitral award’ is not justified.
In fact he took his stand on Mallet-Prevost’s memorandum which
however, contains only one new factor — which is only the writer’s
personal opinion — that the award was influenced by a Russo-
British deal. So far the Venezuelan authorities have been unable to
supply a single shred of evidence to support this opinion and I feel
confident that the references asked for ... will not add any substance
to an aged lawyer’s flights of fancy which he was suffering from the
immediate after-effect of the receipt of a high Venezuelan
decoration.”277
275 Ibid., p. 17.
276 Ibid., p. 17.
277 United Kingdom, Department of External Affairs, Memorandum: Venezuelan Claim to British
Guiana Territory, No. CP(64)82 (25 Feb. 1964) (emphasis omitted). MG, Vol. II, Annex 26.
143
5.21 The “high Venezuelan decoration” to which Sir Geoffrey refers was, in
fact, Venezuela’s highest civilian decoration: the Order of the Liberator. It was
bestowed on Mr Mallet-Prevost by the President of Venezuela in January 1944,
one month before Mr Mallet-Prevost produced his Memorandum.
5.22 The examination of archival documents concluded on 3 August 1965, with
the exchange of the experts’ reports. These were diametrically opposed;
Venezuela’s experts claimed the 1899 Award was “void”,278 while Meade and his
colleagues concluded there was no evidence whatsoever to support this
contention.279 In the same year, Venezuela published a new official map —
reproduced in Figure 5.1. Physical and political map of Venezuela280 —
designating “Guayana Esequiba” as a “Zona en Reclamación”; a territory which
was to be “reclaimed” in disregard of the 1899 Award.
278 Hermann González Oropeza, S.J. & Pablo Ojer, [Informe que los expertos venezolanos para la
cuestión de límites con Guayana Británica presentan al Gobierno Nacional] Report submitted by
the Venezuelan Experts to the National Government on the Issue of the Boundaries with British
Guiana (18 Mar. 1965), p. 43. MMG, Vol. IV, Annex 74.
279 Sir Geoffrey Meade, Report on the Exposition presented by the Venezuelan Experts (3 Aug.
1965). MMG, Vol. IV, Annex 75.
280 U.S. of Venezuela, Department of National Cartography, Ministry of Public Works, “Mapa
Físico y Político de la República de Venezuela, Escala 1:4.000.000” (1965). MMG, Vol. II, Figure
5.1.
144
Figure 5.1. Physical and Political Map of Venezuela (1965)
145
5.23 In view of the urgency created by the imminent independence of British
Guiana, and Venezuela’s increasingly aggressive rhetoric in regard to its
“reclaimed” territory, the parties agreed to meet in London to attempt to reach
agreement on a peaceful means of resolution of the controversy. A Joint
Communiqué was released on 10 December 1965, which stated that “[i]deas and
proposals for a practical settlement of the controversy were exchanged”.281
Negotiations continued in Geneva on 16-17 February 1966, culminating in the
1966 Geneva Agreement which set out the agreed procedures for choosing the
means for resolving the controversy arising from Venezuela’s contention that the
1899 Award is null and void. The circumstances leading to the negotiation and
execution of the Geneva Agreement are described in Guyana’s Memorial on
Jurisdiction, at paragraphs 2.4 to 2.49, and in the Court’s Judgment on Jurisdiction,
at paragraphs 31 to 44.
5.24 As further described in Guyana’s Memorial on Jurisdiction, at paragraphs
2.70 to 2.73, and the Court’s Judgment on Jurisdiction, at paragraphs 54 to 60, the
dispute resolution procedure under the Geneva Agreement provided for a “Good
Offices Process” and “enhanced mediation” under the auspices of the U.N.
Secretary-General, which took place between 1990 and 2014 and in 2017.
Throughout that period, Venezuela maintained the position, first formally
articulated in 1962, that the 1899 Arbitral Award was null and void because of the
alleged collusion between Great Britain and Russia to produce a boundary between
British Guiana and Venezuela that was more favourable to Great Britain, and the
conspiracy between the President of the Tribunal and the British Arbitrators to
281 Government of the United Kingdom, Record of Discussions between the Foreign Secretary, the
Venezuelan Minister for Foreign Affairs and the Premier of British Guiana at the Foreign Office
on 9 December, 1965, No. AV 1081/326 (9 Dec. 1965). MG, Vol. II, Annex 26.
146
implement this illicit “deal”. However, despite numerous opportunities to do so,
and requests by Guyana and the Secretary-General’s representative, Venezuela
never — not once — presented any evidence in support of these allegations.
5.25 The following Chapters 6 through 9 apply the relevant legal principles to
the facts presented in Chapters 2 through 5.
147
CHAPTER 6
THE 1899 AWARD WAS INTENDED TO BE FINAL AND BINDING,
AND IS ENTITLED TO A PRESUMPTION OF VALIDITY
6.1 The 1899 Arbitral Award is final and binding under the terms of the 1897
Treaty of Washington, and it benefits from a legal presumption of validity. As such,
and as this Chapter demonstrates, a party alleging the Award’s nullity bears the
burden of proving the existence of one of the legally-recognised grounds for
nullification at the time it was rendered, by clear and convincing evidence.
The 1899 Award Is Final and Binding
6.2 It is a fundamental principle of international law that arbitral awards are
final and binding. Such was the case when Great Britain and Venezuela sought to
establish their boundary through international arbitration, and it continues to be the
case up to this day. This general rule was, furthermore, specifically agreed upon by
the parties in the 1897 Washington Treaty, and it was not displaced by the 1966
Geneva Agreement, which recognised the existence of a controversy arising from
Venezuela’s belated claim of nullity and established procedures for settling that
controversy, without affecting the validity of the 1899 Award.
A. ARBITRAL AWARDS ARE FINAL AND BINDING AS A MATTER OF LAW
6.3 Where disputing States have consented to arbitration, the resulting arbitral
awards are binding on them as a matter of international law. The binding character
of arbitral awards entails their finality, unless otherwise explicitly agreed by the
148
parties. This principle can be traced back to Grotius282 and has been repeatedly
confirmed since the Alabama Claims case, widely recognised as inaugurating the
era of modern inter-State arbitration.283 In 1872, the British arbitrator in the
Alabama Arbitration dissented from the final award, but nevertheless
acknowledged that “respect ... is due to the decision of a tribunal by whose award
[the parties have] freely consented to abide”.284
6.4 In 1874, Professor L. Goldschmidt of Leipzig, Rapporteur of the Institut de
Droit International on International Arbitration, concluded that the finality of
arbitral awards was already well “recognized in modern law”.285 In August 1875,
the Institut adopted the Draft Regulations for International Arbitral Procedure (the
282 See Case concerning the Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), Judgment,
Dissenting Opinion of Judge Weeramantry, I.C.J. Reports 1991 (hereinafter “Case concerning the
Arbitral Award of 31 July 1989, Dissenting Opinion Weeramantry”), p. 156 (“International law,
though still an infant science, has made remarkable progress since the days of Grotius who, at a
very rudimentary stage of its evolution, perceived the need to clothe the international arbitral
decision with finality and unquestioned validity”.).
283 Shabtai Rosenne, INTERPRETATION, REVISION AND OTHER RECOURSE FROM INTERNATIONAL
JUDGMENTS AND AWARDS (Martinus Nijhoff, 2007), p. 7 (“One of the features of the development
of international law and relations and the conduct of international affairs during the nineteenth
century has been the increasing use of arbitration procedures for the pacific settlement of
international disputes – that is the settlement of a dispute between two or more States (in the
nineteenth century conception of ‘State’) by judges of their own choice. This process reached its
culmination in the Alabama arbitration of 1871–72 between Great Britain and the United States of
America”.).
284 Geneva Arbitration, Papers Relating to the Treaty of Washington, Vol. IV (1872), Opinions of
Sir Alexander Cockburn, p. 544.
285 J.B. Scott, RESOLUTIONS OF THE INSTITUTE OF INTERNATIONAL LAW DEALING WITH THE LAW OF
NATIONS: WITH AN HISTORICAL INTRODUCTION AND EXPLANATORY NOTES (Oxford University
Press, 1916), p. 205.
149
“Draft Regulations”),286 Article 25 of which confirmed that an award “decides …
the dispute between the parties”.287
6.5 In 1899, the First Hague Peace Conference was convened.288 It proceeded
on the basis that an arbitral award “settles the dispute … definitively and without
appeal and closes all of the arbitral procedure instituted by the compromis”.289
There was discussion of the possibility of revision of awards, if specifically agreed
in the compromis.290 But the binding and final character of awards was not
disputed.
6.6 On 29 July 1899, the Hague Convention for the Pacific Settlement of
International Disputes (the “1899 Hague Convention”) was adopted.291 It
established that an award “puts an end to the dispute definitely and without
286 J.B. Scott, RESOLUTIONS OF THE INSTITUTE OF INTERNATIONAL LAW DEALING WITH THE LAW OF
NATIONS: WITH AN HISTORICAL INTRODUCTION AND EXPLANATORY NOTES (Oxford University
Press, 1916), p. 1.
287 Ibid., p. 7.
288 Shabtai Rosenne, INTERPRETATION, REVISION AND OTHER RECOURSE FROM INTERNATIONAL
JUDGMENTS AND AWARDS (Martinus Nijhoff, 2007), pp. 9-10.
289 J.B. Scott & Carnegie Endowment for International Peace, THE PROCEEDINGS OF THE HAGUE
PEACE CONFERENCES: TRANSLATION OF THE OFFICIAL TEXTS, Vol. I, The Conference of 1899
(Oxford University, 1920) (hereinafter “Hague 1899”), p. 1183.
290 Shabtai Rosenne, INTERPRETATION, REVISION AND OTHER RECOURSE FROM INTERNATIONAL
JUDGMENTS AND AWARDS (Martinus Nijhoff, 2007), pp. 10-12.
291 Convention for the Pacific Settlement of International Disputes, adopted by the First Hague
Conference (29 July 1899), reprinted in The Advocate of Peace (1894-1920), Vol. 81, No. 12 (Dec.
1919) (hereinafter “Hague Convention of 1899”).
150
appeal”,292 and is “binding on the parties who concluded the Compromis”.293 To
the same effect, Article 31 established that a compromis “implies the undertaking
of the parties to submit loyally to the Award”.294
6.7 These basic principles of arbitration were further confirmed by the 1907
Hague Convention for the Pacific Settlement of International Disputes. In
particular, Article 81 repeated that an “award … settles the dispute definitely and
without appeal”,295 while Article 37 reaffirmed that “recourse to arbitration implies
an engagement to submit in good faith to the Award”.296
6.8 Arbitral practice has also embraced the finality of awards. In 1910, the
Orinoco Steamship Company tribunal recalled that to “accept, respect and carry
out” an arbitral award was not only in the best “interest of peace and the
development of the institution of International Arbitration”, but was also “essential
to the well-being of the nations”.297 Venezuela was a party to that case.
292 Hague Convention of 1899, Art. 54.
293 Ibid., Art. 56.
294 Ibid., Art. 31.
295 1907 Convention for the Pacific Settlement of International Disputes (18 Oct. 1907) (hereinafter
“Hague Convention of 1907”), Art. 81.
296 Hague Convention of 1907, Art. 37.
297 Orinoco Steamship Co. Case (“United States v. Venezuela”), Arbitral Award of 25 October
1910, UNRIAA, Vol. XI, p. 227 (hereinafter “Orinoco Steamship Co. Case”), 238 (2006). A few
years later, the Trail Smelter tribunal remembered that “if it is true that international relations based
on law and justice require arbitral or judicial adjudication of international disputes, it is equally true
that such adjudication must … remain unchallenged, if it is to be effective to that end”. This
statement maintains its truth in force today; principally in this dispute. See also Trail Smelter Case
151
6.9 In due course, members of the League of Nations committed to “carry out
in full good faith any award or decision [of the Permanent Court of International
Justice (“PCIJ”)] that may be rendered”.298 No distinction was thus made between
the obligation to comply with arbitral awards or with judgments of the newly
established PCIJ.
6.10 Regional conventions also reaffirmed the finality of arbitral awards. The
General Treaty of Inter-American Arbitration of 1929 established in its Article VII
that “the award, duly issued and notified to the Parties, settles the dispute
definitively and without appeal”.299 A few years later, the PCIJ acknowledged that
“the terms of [an] award are definitive and obligatory”.300 Also, Article 46 of the
1948 American Treaty on Pacific Settlement of Disputes, known as the “Pact of
Bogota”, considered that an “award ... shall settle the controversy definitively, shall
not be subject to appeal, and shall be carried out immediately”.301
(United States v. Canada) Final Awards of 16 April 1938 and 11 March 1941, UNRIAA, Vol. III,
p. 1950.
298 League of Nations, Covenant of the League of Nations, Including Amendments adopted to
December 1924 (28 Apr. 1919), Art. 13.
299 [Tratado General de Arbitraje Interamericano] General Treaty of Inter-American Arbitration,
O.E.A. (5 Jan. 1929), entered into force on 28 Oct. 1929, Art. VII ([t]he award, duly issued and
notified to the Parties, settles the dispute definitely and without appeal”.). MMG, Vol. IV, Annex
85.
300 Société Commerciale de Belgique (Belgium v. Greece), Judgment, 1939, P.C.I.J. Series A/B, No.
78 (hereinafter “Société Commerciale de Belgique”), p. 175.
301 American Treaty on Pacific Settlement (“Pact of Bogota”), 30 U.N.T.S. 83 (1948), entered into
force 6 May 1949, Art. XLVI, available at
https://www.oas.org/sap/peacefund/resolutions/pact_of_bogot%C3%A1.pdf (“The award, once it
is duly handed down and made known to the parties, shall settle the controversy definitely, shall
not be subject to appeal, and shall be carried out immediately.”).
152
6.11 In 1950, a Memorandum by the Secretariat of the International Law
Commission acknowledged that, “[i]t is an accepted rule of international law,
whether or not stated in the compromis, that [an] award given is binding on the
parties”,302 and underscored that, “[t]he effect of the rule, or of the stated obligation,
is to make the decision of the tribunal res judicata, chose jugée — a final and
binding obligation upon the parties from which there is no legal escape except
through subsequent agreement between them”.303 On that basis, the ILC adopted in
1958 a set of “Model Rules on Arbitral Procedure”,304 which stated that awards are
“binding upon the parties [and] shall be carried out in good faith immediately”.305
They “constitute a definitive settlement of the dispute” submitted.306
6.12 In 1991, the Permanent Court of Arbitration (“PCA”) sought to
“modernize” the 1907 Hague Convention,307 confirming once more that awards are
“final and binding on the parties”.308 The Administrative Council of the PCA
302 Memorandum on Arbitral Procedure, prepared by the Secretariat, A/CN.4/35 (21 Nov. 1950),
reprinted in U.N., YBILC 1950/II, U.N. Doc. A/CN.4/SER.A/1950/Add.1 (1950), para. 96, p. 176.
303 Ibid., para. 96a, p. 176.
304 U.N., YBILC 1958/II, U.N. Doc. A/CN.4/SER.A/1958/Add.1 (1958), Art. 34, p. 11.
305 Ibid., Art. 32, p. 10.
306 Ibid., Art. 32, p. 86.
307 Shabtai Rosenne, INTERPRETATION, REVISION AND OTHER RECOURSE FROM INTERNATIONAL
JUDGMENTS AND AWARDS (Martinus Nijhoff, 2007), p. 23.
308 Permanent Court of Arbitration, Optional Rules for Arbitrating Disputes Between Two States
(20 Oct. 1992), Art. 32(2). This rule is also contained in article 34(2) of the PCA Rules of
Arbitration, adopted in 2012.
153
approved this rule as Article 32 of the 1992 Optional Rules for Arbitrating Disputes
between Two States.309
6.13 There is therefore no doubt that the binding and final character of arbitral
awards is a longstanding rule of international law, inherent in the very nature of
arbitration as a means for the settlement of international disputes. As recalled by
the U.N. Handbook on the Peaceful Settlement of Disputes:
“The outcome of an arbitration is an award which is binding upon
the parties to the dispute. Invariably, in all the compromis, parties
to the dispute further stipulate that they undertake to abide by the
decision of the arbitral tribunal in question.”310
6.14 This is exactly what happened in 1897, when Great Britain and Venezuela
concluded the Treaty of Washington, explicitly expressing the parties’ commitment
to treat the Award as final and binding.
B. THE 1899 AWARD WAS INTENDED TO BE FINAL AND BINDING
1. The Terms of the 1897 Washington Treaty in Light of its Object and
Purpose
6.15 The 1897 Treaty is a “treaty of arbitration”311 that is to “be interpreted in
accordance with the general rules of international law governing the interpretation
309 Ibid., Art. 32(2).
310 U.N., Office of Legal Affairs, Handbook on the Peaceful Settlement of Disputes between States,
U.N. Doc. OLA/COD/2394 (1992), para. 192, p. 65.
311 Jurisdiction Judgment, paras. 32-33.
154
of treaties”.312 Its terms unequivocally demonstrate consent and desire for the 1899
Award to be final and binding. Indeed, Article XIII of the Treaty provides in clear
terms that:
“The High Contracting Parties engage to consider the result of the
proceeds of the Tribunal of Arbitration as a full, perfect, and final
settlement of all the questions referred to the Arbitrators.”313
6.16 In its Judgment on Jurisdiction, the Court noted this provision.314 The
ordinary meaning of these terms, interpreted in their context and in light of the
object and purpose of the Treaty,315 leads to the inescapable conclusion that the
parties solemnly committed themselves to consider the 1899 Award final and
binding.
6.17 Article XIII of the 1897 Treaty confirms that the “settlement” that the 1899
Award would provide is described as “full”, “perfect”, and “final”. The term “full”
entails that no other decision would be necessary for the “settlement of all the
questions referred to the Arbitrators”. The term “perfect” demonstrates the parties’
312 See Case concerning the Arbitral Award of 31 July 1989, Dissenting Opinion Weeramantry, p.
53, para. 48.
313 Treaty between Great Britain and the United States of Venezuela Respecting the Settlement of
the Boundary between the Colony of British Guiana and the United States of Venezuela, 5 U.K.T.S.
67 (2 Feb. 1897). AG, Annex 1, Art. XIII; see also Arbitral Award of 3 October 1899 (Guyana v.
Venezuela), Memorial of Guyana, I.C.J. (19 Nov. 2018) (hereinafter “MG”), para. 1.19; Arbitral
Award of 3 October 1899 (Guyana v. Venezuela), Application Instituting Proceedings of the
Government of the Co-operative Republic of Guyana (29 Mar. 2018) (hereinafter “AG”), para. 31.
314 See Jurisdiction Judgment, para. 33.
315 As the Court made clear on multiple occasions, the rules on treaty interpretation enshrined in
Articles 31 and 32 of the VCLT reflect customary international law and are applicable to treaties
concluded prior to its entry into force (see Jurisdiction Judgment, para. 70; Kasikili/Sedudu Island
(Botswana/Namibia), para. 18).
155
ex-ante consent not to consider the 1899 Award to be flawed in any respect. Finally,
the parties recognised that the Award could not be appealed, revised or challenged
by agreeing that it was to be “final”. The 1897 Treaty makes no provision for
appeal, revision or challenge.
2. The Circumstances of the Conclusion of the 1897 Washington Treaty
6.18 Because the ordinary meaning of the terms of the 1897 Washington Treaty,
together with its object and purpose, leave no doubt as to the binding and final
character of the 1899 Award, recourse to the “circumstances of its conclusion”
within the meaning of Article 32 VCLT, is unnecessary.316 However, to the same
extent that “the Court may have recourse to the Treaty’s travaux préparatoires to
confirm its interpretation”,317 the “circumstances” in which the Treaty has been
concluded,318 as well as any other “relevant material”,319 may be relied upon in
order to confirm the interpretation of the terms of the Treaty.
316 This has been recognised by the Court in the following cases, inter alia, Immunities and Criminal
Proceedings (Equatorial Guinea v. France), Preliminary Objections, Judgment, I.C.J. Reports
2018, p. 321, para. 91; Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia),
Judgment, I.C.J. Reports 2002 (hereinafter “Sovereignty over Pulau Ligitan and Pulau Sipadan”),
p. 653, para. 53. In fact, the Court has avoided going to the travaux of a treaty in these
circumstances. See, for instance, Application of the International Convention for the Suppression
of the Financing of Terrorism and of the International Convention on the Elimination of All Forms
of Racial Discrimination (Ukraine v. Russian Federation), Preliminary Objections, Judgment, I.C.J.
Reports 2019, p. 558, para. 112.
317 Jadhav (India v. Pakistan), Judgment, I.C.J. Reports 2019, p. 439, para. 76.
318 Maritime Delimitation in the Indian Ocean (Somalia v. Kenya), Preliminary Objections,
Judgment, I.C.J. Reports 2017 (hereinafter “Maritime Delimitation in the Indian Ocean”), para. 99.
319 See, for example, Maritime Dispute (Peru v. Chile), Judgment, I.C.J. Reports 2014, para. 60;
Sovereignty over Pulau Ligitan and Pulau Sipadan, p. 653, para. 53; Maritime Delimitation and
Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 1995, p. 21, para. 40; Territorial Dispute (Libyan Arab
156
6.19 These circumstances and relevant materials confirm the commitment of the
parties to treat the 1899 Award as final and binding. The Court has acknowledged
that, by the time the 1897 Treaty was concluded, Great Britain and Venezuela had
conflicting claims over “the territory comprising the area between the mouth of the
Essequibo River in the east and the Orinoco River in the west”.320 Until that point,
Great Britain had resisted Venezuela’s demand that the dispute be settled by
international arbitration. The stalemate led the United States to intervene in support
of Venezuela’s position and especially to “encourage” both parties to submit their
territorial claims to binding arbitration. 321
6.20 In particular, Venezuela’s adoption of the Treaty in 1897 confirms its desire
for its border dispute with Great Britain to be settled in a final manner by
arbitration. On 20 February 1897, President Crespo declared that, under the Treaty,
“by means of arbitration ... an end to the old dispute between the two nations”
would be achieved, and “manifested the noble desire to see accepted [such]
compact which, in his opinion, was just and advantageous”.322
6.21 Thus, the circumstances leading to this commitment confirm the parties’
intention for the 1899 Award to be final and binding. Their conflicting claims had
posed a risk to their security and was a matter of interest throughout the continent.
Jamahiriya/Chad), Judgment, I.C.J. Reports 1994 (hereinafter “Territorial Dispute (Libyan Arab
Jamahiriya/Chad)”), p. 27, para. 55.
320 Jurisdiction Judgment, para. 31.
321 Ibid., para. 32.
322 Message from President Joaquín Sinforiano De Jesús Crespo to Congress (20 Feb. 1897),
reprinted in Odeen Ishmael, “Chapter 13 – The Arbitral Tribunal and the Award” in TRAIL OF
DIPLOMACY (GNI Publications, 1998), available at
http://www.guyana.org/features/trail_diplomacy_pt3.html#chap13 (last accessed 22 Feb. 2022).
157
A resolution to such claims needed to be provided with no uncertainty or openendedness.
3. The Reception and Implementation of the 1899 Award
6.22 Immediately after the delivery of the unanimous 1899 Award, the parties
acknowledged its final and binding character. Venezuela was particularly satisfied
with the outcome. As indicated previously, four days after the 1899 Award was
rendered, Venezuela’s Minister to London declared:
“Greatly indeed did justice shine forth when, in spite of all, in the
determining of the frontier the exclusive dominion of the Orinoco
was granted to us, which is the principal aim which we set ourselves
to obtain through arbitration. I consider well spent the humble
efforts which I devoted personally to this end during the last six
years of my public life.”323
6.23 As described in Chapter 4, in the years that followed, Venezuela repeatedly
reaffirmed that the 1899 Award was valid and binding, including, inter alia: in the
1905 Agreement which made clear that the demarcation carried out by the Joint
Boundary Commission was “a clear specification of the Boundary line according
with the Arbitral Award of Paris” (the 1899 Award);324 the assertion by the chief
Venezuelan Commissioner that “the delimitation between our Republic and the
323 Letter from the Venezuelan Ambassador to the United Kingdom to the Venezuelan Minister of
Foreign Affairs (7 Oct. 1899), p. 2. MG, Vol. II, Annex 3.
324 Agreement Between the British and Venezuelan Boundary Commissioners with Regard to the
Map of the Boundary (10 Jan. 1905) reprinted in Government of the Republic of Venezuela,
Ministry of External Affairs, Public Treaties and International Agreements of Venezuela, Vol. 3
(1920-25) (1927). AG, Annex 3.
158
Colony of British Guiana [is] an accomplished fact”;325 the confirmation in 1907
that “[t]he ratification of the Federal Executive is thus limited to the work done by
the Mixed Delimitation Commissions in accordance with the Paris Award”;326 the
assertion in 1931 that “the tri-junction point where the boundaries of Brazil, British
Guiana, and Venezuela meet, [was] based on the southern terminal point of the
boundary established by the 1899 Award and the 1905 Agreement”;327 and the
declaration in 1941 by Venezuela’s Minister of Foreign Affairs that the location of
the boundary between Venezuela and the British Guiana was “chose jugée” and
that there was no reason to fear that Venezuela would ever seek to revise it.328
C. THE AWARD CONTINUED TO BE FINAL AND BINDING FOLLOWING THE
GENEVA AGREEMENT
6.24 The Geneva Agreement of 17 February 1966 states in Article I that it was
concluded for the purpose of settling the:
325 Letter from F. M. Hodgson to A. Lyttelton, CO. 111/546 (12 Oct. 1905) enclosing Report of the
Minister for Foreign Affairs (Venezuela) to the National Congress, in constitutional session, 1905
(20 Mar. 1905). MMG, Vol. III, Annex 42.
326 Letter from Señor Paúl to Mr. O’Reilly (4 Sept. 1907) (Inclosure in Letter from Mr. O’Reilly to
Sir Edward Grey (5 Sept. 1907)). MMG, Vol. III, Annex 48.
327 Exchange of Notes between the United Kingdom and Brazil approving the General Report of
the Special Commissioners Appointed to Demarcate the Boundary-Line between British Guiana
and Brazil, 51 U.K.T.S. 1946 (15 Mar. 1940), para. 12. MMG, Vol. IV, Annex 87; see also MG,
Vol. I, para. 1.28. The Venezuelan Government subsequently published the formal Exchange of
Notes recording the demarcation of the tripoint in its official treaty series. Republic of Venezuela,
Ministry of Foreign Affairs, Public Treaties and International Agreements, Vol. V (1933-1936)
(1945), p. 548. MG, Vol. II, Annex 12.
328 MG, Vol. I, para. 1.28; Government of United Kingdom, Foreign Office, Minute by C.N.
Brading, No. FO 371/38814 (3 Oct. 1944). MG, Vol. II, Annex 10; Letter from the Ambassador of
the United Kingdom to Venezuela, to J.V.T.W.T. Perowne, U.K. Foreign Office (3 Nov. 1944), pp.
1-2. MG, Vol. II, Annex 11.
159
“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.”329
6.25 The terms of the Agreement make clear that Venezuela’s nullity claim was
not accepted by Great Britain or British Guiana. The Agreement recorded the
factual existence of Venezuela’s claim, and set out the agreed procedures to settle
the controversy that arose from it. It did not alter the legal effect or the validity of
the Award as a juridical act.330
6.26 The circumstances of the Agreement’s conclusion confirm this. The Court
has already recognised that in “the discussions … [that] preceded the conclusion
of the Geneva Agreement… the United Kingdom and British Guiana rejected the
Venezuelan proposal [that the only solution was the return of territory] on the basis
that it implied that the 1899 was null and void…”.331 “British Guiana reiterated …
that it ‘could not accept the Venezuelan contention that the 1899 Award was
invalid’”.332 Indeed, as noted by the Court, the “contention by Venezuela [that the
1899 Award is null and void] was consistently opposed by the United Kingdom in
the period from 1962 until the adoption of the Geneva Agreement on 17 February
329 Geneva Agreement, Art. I. AG, Annex 4.
330 On the distinction between the non-existence of jurisdictional acts and the invalidity of such acts,
see L. Trigeaud, LA NULLITÉ DE L’ACTE JURISDICTIONNEL EN DROIT INTERNATIONAL PUBLIC
(Anthémis, 2011), pp. 205 et seq.
331 Jurisdiction Judgment, para. 132.
332 Ibid.
160
1966, and subsequently by Guyana after it became a party to the Geneva
Agreement upon its independence, in accordance with Article VIII thereof”.333
6.27 In its jurisprudence, the Court has confirmed that an agreement to settle a
dispute resulting from a State’s contention of nullity of an arbitral award that
established a boundary has no bearing on the award’s final and binding character.
In the Award Made by the King of Spain case, for example, Nicaragua sought to
annul an arbitral award rendered by the King of Spain in 1906, which established
a territorial boundary with Honduras. In July 1957, with the aim to settle the dispute
arising from Nicaragua’s claim, both States concluded the “Washington
Agreement”, with the support of the Organization of the American States. They
agreed to submit “to the International Court of Justice … the disagreement existing
between them with respect to the Arbitral Award handed down by His Majesty the
King of Spain on 23 December 1906”.334 The Court drew no inference regarding
the finality of 1906 Award from the fact that the parties had agreed on procedures
to settle Nicaragua’s nullity claim. The Court found that “Nicaragua, by express
declaration and by conduct, recognized the Award as valid” for years, and it was
thus “no longer open to Nicaragua to go back upon that recognition and to
challenge the validity of the Award”.335 It also found that, in any event, the grounds
for nullity of the award and the obstacles to the award’s execution, both raised by
333 Ibid., para. 64.
334 Case concerning the Arbitral Award made by the King of Spain on 23 December 1906 (Honduras
v, Nicaragua), Judgment, I.C.J. Reports 1960 (hereinafter “Arbitral Award made by the King of
Spain Case”), para. 4; See also ibid., pp. 192, 194 (“The Application relies on the Washington
Agreement of 21 July 1957 between the Parties with regard to the procedure to be followed in
submitting the dispute to the Court; the Application states, furthermore, that the Parties have
recognized the compulsory jurisdiction of the Court on the basis of Article 36, paragraph 2, of its
Statute”.).
335 Ibid., p. 213.
161
Nicaragua, had no merits.336 Thus, the Court rejected the nullity claim and
confirmed the validity of the 1906 Award. 337
6.28 Likewise, the fact that the Parties in this case agreed in 1966 to settle the
dispute arising from Venezuela’s nullity claim has no bearing on the 1899 Award’s
finality or binding character. It remains final and binding, as it was in 1899 and at
all times thereafter.
The 1899 Award Enjoys a Presumption of Legal Validity
6.29 As a result of their final and binding character, arbitral awards benefit from
a presumption of validity (A). Claims of alleged invalidity must therefore be
scrutinised in light of such presumption, which entails important consequences
concerning the burden of proof and explains the high standard of proof applicable
to any alleged invalidity (B). Furthermore, the presumption of validity benefiting
arbitral awards, together with basic principles of intertemporal law, limit the
available grounds of invalidity to those existing at the time the award was rendered
(C).
336 Ibid., pp. 214-217.
337 Ibid., pp. 192, 217 (The Court, by fourteen votes to one, “finds that the Award made by the King
of Spain on 23 December 1906 is valid and binding and that Nicaragua is under an obligation to
give effect to it”.).
162
A. ARBITRAL AWARDS BENEFIT FROM A PRESUMPTION OF VALIDITY
6.30 Under international law, arbitral awards enjoy a praesumptio in favorem
validitatis sententiae.338 In prior cases where it was seized of a nullity contention,
the Court acted on the basis of such presumption because it saw its “function” as
being “to decide whether the Award is proved to be a nullity having no effect”,339
rather than determining that it is valid.
6.31 The PCIJ acted on the same basis in the Société Commerciale de Belgique
case, in 1939. Since it assumed that the award in question was valid, it saw its task
to be the confirmation, not the determination, of such validity. 340 Likewise, in the
Award Made by the King of Spain case, Judge Weeramantry stated that “the validity
of ... arbitral award[s] is to be presumed”.341 In support of this view, Judges Aguilar
Mawdsley and Ranjeva separately opined that:
“the irrebuttable presumption of legal truth that attaches to a judicial
decision once it has become final is an institution common to all
systems of law.”342
338 E. Lauterpacht et al., “Klöckner Industrie-Anlagen GmbH and others v. Republic of Cameroon”,
Intl. L. Reports, Vol. 114 (1999).
339 See Case Concerning the Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), I.C.J.
Reports 1991 (hereinafter “Case Concerning the Arbitral Award of 31 July 1989, Judgment”), p.
53, para. 25, quoting Arbitral Award made by the King of Spain Case, p. 214 (“The Court is not
called upon to pronounce on whether the arbitrator’s decision was right or wrong. These and cognate
considerations have no relevance to the function that the Court is called upon to discharge in these
proceedings, which is to decide whether the Award is proved to be a nullity having no effect”.).
340 Société Commerciale de Belgique, p. 174.
341 Case concerning the Arbitral Award of 31 July 1989, Dissenting Opinion Weeramantry, p. 152.
342 Ibid., para. 7.
163
6.32 The presumption of validity of arbitral awards has been confirmed by other
courts and tribunals. In the Beagle Chanel arbitration between Chile and Argentina,
the latter considered the Award rendered by the Court of Arbitration “null and
void”.343 Chile requested the “Court’s views on” Argentina’s nullity argument, to
which the Court of Arbitration responded that it was “not capable of impairing the
validity of the Award, which in consequence remain[ed] fully operative and
obligatory in law”.344
6.33 The international community has long acknowledged this presumption. The
report of the Committee of the League of Nations on a proposal by Finland to
confer the PCIJ with appeal jurisdiction over arbitration awards, concluded that
they enjoy a presumption of validity under international law.345 According to the
Committee, a “State which disputes its validity introduces a new factor into the
case”.346
6.34 Publicists have likewise confirmed that “the validity of arbitral awards is to
be presumed”.347 Hence, there is no question that, under international law, arbitral
awards enjoy a presumption of validity. Like any other arbitral award, the 1899
Award benefits from such a presumption of validity. This presumption entails legal
343 E. Lauterpacht, “Beagle Channel (Argentina v. Chile)”, Intl. L. Reports, Vol. 52 (1979), pp. 281-
282.
344 Ibid., p. 282.
345 League of Nations Official Journal, Special Supplement, Vol. 94 (1931), p. 89.
346 Ibid., p. 89.
347 A. Balasko, CAUSES DE NULLITÉ DE LA SENTENCE ARBITRALE EN DROIT INTERNATIONAL PUBLIC
(1938), p. 201 (« La validité de la sentence se présume ») (Translation of Guyana). See also D.
Guermanoff, L’excès de pouvoir de l’arbitre (1929) (« lorsque l’excès de pouvoir n’est pas évident
la présomption doit etre en faveur de la validite de la sentence ») (Translation of Guyana).
164
and evidentiary consequences for Venezuela’s claims in the present proceeding, as
described below.
B. THE BURDEN AND STANDARD OF PROOF OF ALLEGED INVALIDITY
1. The Burden of Proof
6.35 In the face of the principle of presumed validity, the burden of proof is on
Venezuela to establish the nullity of the 1899 Award; it is not for Guyana to have
to establish that the Award is valid. As the Court has already determined: “[t]he
present case concerns a dispute … that has arisen as a result of [Venezuela’s]
contention that the [1899 Award] is null and void”.348 Hence, the maxim onus
probandi incumbit actori applies to Venezuela.349
6.36 This well-established principle governing the burden of proof applies to
nullity contentions of arbitral awards. In the Award Made by the King of Spain
case, Nicaragua contended that “he who relies upon an arbitral award ... is under
an obligation to prove that the person or body giving the decision ... was invested
with the powers of an arbitrator”.350 It also argued that the lack of proof thereof,
348 Jurisdiction Judgment, para. 23. See also ibid., para. 61 referring to the controversy “arising
from Venezuela’s contention that the 1899 Award is null and void” (emphasis added). See also Ibid.,
para. 65 (“the Geneva Agreement primarily relates to the dispute that has arisen as a result of
Venezuela’s contention that the 1899 Award is null and void and its implications for the boundary
line between Guyana and Venezuela”.). This echoes the language of the Geneva Agreement, which,
as the Court acknowledged establishes that the dispute “has arisen as the result of the Venezuelan
contention that the Arbitral Award of 1899… is null and void” (emphasis added). See Ibid., para.
43.
349 For instance, in the Award Made by the King of Spain Case, the Court did not permit a
distribution of the burden of proof that the person who had given the award was invested with the
powers of an arbitrator. Award Made by the King of Spain Case, p. 183.
350 Award Made by the King of Spain Case, p. 198.
165
provided by Honduras, was a ground for nullity of the 1906 Award. However, the
Court firmly rejected this approach: it did not shift the burden of proof to Honduras,
and it confirmed the validity of the award.351
6.37 In its contention on the invalidity of the 1899 Award, it is therefore for
Venezuela to meet the burden of proof over all the grounds of nullity it may seek
to advance.352
2. The Standard of Proof
6.38 Because arbitral awards are presumed to be valid, any contention about
their nullity is subjected to a high standard of proof.353 The Award in this case can
only be revisited if such standard is met. In this respect, the arbitral tribunal in the
Abyei case ruled that:
“the party impugning [an] award is at all times under the burden of
proving that sufficiently weighty circumstances exist to support its
contention that the award is invalid.”354
351 Ibid., pp. 205-207.
352 See also Case concerning the Arbitral Award of 31 July 1989, Dissenting Opinion Weeramantry,
p. 152 (“the party impugning the award is at al1 times under the burden of proving that sufficiently
weighty circumstances exist to support its contention that the award is invalid”.).
353 See, for instance, Kenneth Smith Carlston, THE PROCESS OF INTERNATIONAL ARBITRATION,
Columbia University Press, 1972, p. 86 (“Claims of nullity should not be captiously raised. Writers
who have given special study to the problem of nullity are agreed that the violation of the compromis
should be so manifest as to be readily established. In order that a tribunal’s decision or a
jurisdictional issue shall be considered null, it must, in general, be arbitrary, not merely doubtful or
arguable.”).
354 See Case concerning the Arbitral Award of 31 July 1989, Dissenting Opinion Weeramantry,
cited in The Government of Sudan v. The Sudan People’s Liberation Movement/Army, RIAA, Vol.
XXXI (PCA), Award, para. 217 (22 July 2009).
166
6.39 Indeed, “[o]nly ‘weighty’ or ‘exceptional circumstances’ will justify a
finding of invalidity” of an award.355 Accordingly, “impugn[ing] an arbitral award
bears a ‘very great’ burden of proof”.356
6.40 The heightened standard of proof for nullity of awards has never been met
in any case before the Court. In the Arbitral Award by the King of Spain case and
the Case Concerning the Arbitral Award of 31 July 1989 — the only previous cases
where the Court dealt with a claim of nullity of an inter-State award — the Court
confirmed the presumed validity of the awards challenged before it and declined to
set them aside.357
6.41 Further, each particular ground of nullity entails a high standard of proof.
For instance, allegations of error by an arbitral tribunal must be “enormous,
355 Ibid., p. 152 (“the party impugning the award is at al1 times under the burden of proving that
sufficiently weighty circumstances exist to support its contention that the award is invalid”).
356 Ibid.
357 See Case Concerning the Arbitral Award of 31 July 1989, Judgment, p. 53; Arbitral Award Made
by the King of Spain Case, p. 192. This standard has also failed to be reached with respect to other
inter-State adjudicative decisions, also before the Court. See inter alia Appeal Relating to the
Jurisdiction of the ICAO Council under Article 84 of the Convention on International Civil Aviation
(Bahrain, Egypt, Saudi Arabia and United Arab Emirates v. Qatar), Judgment, I.C.J. Reports 2020.
167
glaring”,358 “flagrant”,359 and “manifest”.360 Likewise, allegations of corruption of
the tribunal, or of one of its members — a ground for annulment of awards361 which
remains exceptional362 — are submitted to a “high standard of proof”363 requiring
“clear and convincing evidence”.364
6.42 The same rigorous and heightened standard of proof applies to Venezuela’s
contention of nullity. This is all the more so because it was formulated more than
358 Geouffre de Lapradelle, « L’excès de pouvoir de l’arbitre », Rev. de Droit Int’l, Vol. II, No. 14
(1928), p. 14 (« l’erreur sur la compétence n’est pas elle-même une cause de nullité ; il n’en serait
autrement que si la sentence rendue, au fond, par un tribunal incompétent était d’une manière
énorme, fantastique, inadmissible ») (Translation of Guyana).
359 Frede Castberg, « L’excès De Pouvoir dans la Justice Internationale », Recueil des Cours, Vol.
XXXV, p. 443 (1931) (« il faut qu’il y ait eu une usurpation de pouvoir ... au meme resultat que la
doctrine d’après laquelle la nullité de la sentence découle d’un excès de pouvoir flagrant »)
(Translation of Guyana).
360 Alfred Verdross, « L’excès de pouvoir du juge arbitral dans le droit international public », Rev.
de Droit Int’l & Legis. Comp., Vol. IX, No. 3 p. 229 (« les motifs de nullité de l’excès de pouvoir
et de l’erreur essentielle se confondent. Ils existent lorsque la sentence est ‘absurde’ ou
‘manifestment injuste et déraisonnable’ ») (Translation of Guyana).
361 See, for instance, Draft Regulations for International Arbitral Procedure (28 Aug. 1875)
(hereinafter “Draft Regulations”), Art. 27.
362 See R. Doak Bishop & Silvia M. Marchili, “Part II Grounds for Annulment, 7 Corruption of One
of the Members of the Tribunal” in ANNULMENT UNDER THE ICSID CONVENTION (2012), para.
7.09.
363 See for instance, Ioan Micula, Viorel Micula and others v. Romania (II), ICSID Case No.
ARB/1/29, Award (5 Mar. 2020), para. 378; Oded Besserglik v. Republic of Mozambique, ICSID
Case No. ARB (AF)/14/2, Award (28 Oct. 2019), para. 362; South American Silver Limited v.
Bolivia, PCA Case No. 2013-15, Award, (22 Nov. 2018), para. 673; UAB E energija (Lithuania) v.
Republic of Latvia, ICSID Case No. ARB/12/33, Award of the Tribunal (22 Dec. 2017), para. 541.
364 Karkey Karadeniz Elektrik Uretim A.S. v. Islamic Republic of Pakistan, ICSID Case No.
ARB/13/1, Award (22 Aug. 2017), para. 492; Fraport AG Frankfurt Airport Services Worldwide v.
Republic of the Philippines (II), ICSID Case No. ARB/11/12, Award (10 Dec. 2014), para. 479.
168
six decades after the 1899 Award was delivered and duly implemented, with the
full support of Venezuela.
C. THE APPLICABLE LAW ON THE INVALIDITY OF AWARDS AND THE EXISTING
GROUNDS OF INVALIDITY IN 1899
6.43 Venezuela argues that the 1899 Award is invalid in light of the law in force
today or “at least as of the date on which such invalidity is invoked”.365 This is
plainly wrong, and Venezuela cannot move the goalposts in this case.
6.44 It is axiomatic that “a juridical fact must be appreciated in the light of the
law contemporary with it, and not of the law in force at the time when the dispute
in regard to it arises or falls to be settled”.366 This principle of intertemporal law
applies to the appraisal of the legality of the behaviour of States367 and to the
365 See Hermann González Oropeza, S.J. & Pablo Ojer, [Informe que los expertos venezolanos para
la cuestión de límites con Guayana Británica presentan al Gobierno Nacional] Report submitted
by the Venezuelan Experts to the National Government on the Issue of the Boundaries with British
Guiana (18 Mar. 1965), para. 17. MMG, Vol. IV, Annex 74. See also Memorandum of the
Bolivarian Republic of Venezuela on the Application filed before the International Court of Justice
by the Co-operative Republic of Guyana (29 Mar. 2019), para. 17.
366 Island of Palmas Case (Netherlands, USA), RIAA, Vol. II (PCA), Award, p. 829, 845 (4 Apr.
1928) (“a juridical fact must be appreciated in the light of the law contemporary with it, and not of
the law in force at the time when the dispute in regard to it arises or falls to be settled”); see also
Grisbådarna Case (Norway v Sweden), Award, PCA Case No 1908-01, RIAA, Vol. XI, p. 147 (23
Oct. 1909), para. 26 (“in order to ascertain what may have automatically been the line of division
of 1658, it is necessary to have recourse to the principles of law in operation at that time”); North
Atlantic Coast Fisheries Case (Great Britain v. United States), PCA Case No 1909-01, Award (7
Sept. 1910), p. 196.
367 International Law Commission, Draft Articles on Responsibility of States for Internationally
Wrongful Acts, with commentaries (2001), Art. 13; see recently Legal Consequences of the
Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, I.C.J. Reports
2019, p. 95, para. 161.
169
validity of legal acts,368 including judicial acts. The only exception to this
elementary principle concerns jus cogens superveniens in the context of
international treaties as regulated under Article 64 of VCLT. That has not been
argued in this case and is of no relevance.
6.45 As a result, it is in light of the grounds of nullity of arbitral awards available
in 1899 that Venezuela must rebut the presumption of validity and meet its burden
of proof that the Award was null and void at the time it was issued: nullity operates
ex tunc.
6.46 As set out in Chapter 8,369 the Draft Regulations adopted in 1875 by the
Institut du Droit International recognised only four limited grounds of nullity of
international awards under its Article 27: (i) the invalidity of the compromis; (ii)
the excess of authority of the Tribunal; (iii) the corruption of one of the Arbitrators;
or (iv) an essential error.370
6.47 During the 1899 Hague Conference, Russia suggested replicating Article
27 of the Draft Regulations and confirming the possibility of nullifying arbitral
awards “in case of a void compromis or exceeding of powers, or of corruption
proved against one of the arbitrators”.371 The existence of any of these grounds of
368 See, for instance, The Institute of International Law, “The Intertemporal Problem in Public
International Law”, Institut de Droit International, Art. 2.f) (“any rule which relates to the licit or
illicit nature of a legal act, or to the conditions of its validity, shall apply to acts performed while
the rule is in force”.).
369 See infra para. 247.
370 Draft Regulations, Art. 27: “The arbitral award is null in case of an invalid compromis, or in case
of excess of authority, or of proved corruption of one of the arbitrators, or of essential error”.
371 Hague 1899, p. 151.
170
nullity was thought to depend on the establishment of a body that would actually
rule upon them.372 Such a body — the PCA — was established by the 1899 Hague
Convention.373 However, no grounds for nullity of awards were approved at that
time, nor even the possibility to seek the nullification of an award. This stands in
contrast to the possibility for revision of arbitral awards contemplated under Article
55 of the 1899 Convention, “[if] reserve[d] in the compromis”.374
6.48 The 1907 Hague Convention also did not specify any ground of nullity of
awards. This was despite the fact that “the US representatives in the Hague Peace
Conference of 1907 supported the establishment of a body that can verify the
validity of awards”.375 However, “no agreement could be reached ... on challenging
the validity of an arbitral award”.376 Instead, the 1907 Hague Convention simply
reiterated that the parties can reserve in the compromis the “right to demand the
revision of the Award”.377 It must be concluded, therefore, that at the time the 1899
Award was issued, international law provided that it could be revised only if a right
of revision was included in the compromis, which was not the case.
6.49 Assuming, quod non, that an inter-State arbitral award issued in 1899 could
be revised or nullified under international law, notwithstanding the absence of such
372 Ibid., p. 743 (“The President does not think it possible to provide for cases of nullity, without
knowing at the same time who will be the judge to pass upon these cases”.).
373 See Hague Convention of 1899, Art. 20.
374 See Hague Convention of 1899, Art. 55.
375 See Karin Oellers-Frahm, “Judicial and Arbitral Decisions, Validity and Nullity”, MAX PLANCK
ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW (Jan. 2019), para. 5.
376 See ibid.
377 See Hague Convention of 1907, Art. 83.
171
a provision in the compromis, the grounds for revising or nullifying it could not
extend beyond those recognised at the time under international law (as for example
proposed by the Institut). That is, even if a challenge to an award were possible,
the State seeking its nullification would have to prove, by clear and convincing
evidence, that (i) the compromis was invalid; (ii) the arbitral tribunal exceeded its
authority; (iii) one or more of the Arbitrators were corrupt; or (iv) the tribunal
committed an essential error.
6.50 As shown in the following Chapters, the 1899 Award has none of these
defects, and Venezuela cannot hope to meet its burden of proving the existence of
any of them, let alone by the clear and convincing evidence that is required to rebut
the Award’s presumption of validity. Its contention of nullity, therefore, fails
entirely. The validity of the compromis is demonstrated in Chapter 7. Chapter 8
establishes that the Arbitral Tribunal neither exceeded its authority nor committed
error and that Venezuela’s belated contention, half a century after the Award was
issued, that the Arbitrators corruptly colluded to produce the Award is manifestly
untenable.
172
173
CHAPTER 7
THE COMPROMIS WAS VALIDLY CONCLUDED AND THE
TRIBUNAL WAS PROPERLY CONSTITUTED
7.1 The present Chapter addresses Venezuela’s criticisms of the 1897 Treaty
and the constitution of the Tribunal.
7.2 Venezuela’s attack on the Treaty and the Arbitral Tribunal’s composition
was first formally articulated by its Foreign Minister, on 9 December 1965, at the
Ministerial Conference in London at which Great Britain and Venezuela sought a
means for peaceful settlement of the controversy that arose from Venezuela’s
contention that the 1899 Arbitral Award was null and void. It consisted of the
following allegations:
“a. That the correspondence exchanged between United States and
Great Britain during the decisive period of the negotiation
(September to November 1896) was concealed from Venezuela
until 1899, in other words, two years after the signature of the
Treaty.
b. That whilst assuring Venezuela that the 1850 Agreement
remained in effect and protected it from any British usurpation after
that date, Secretary of State Richard Olney agreed with Great
Britain that both matters would be left to the discretion of the
Tribunal.
c. That the same Secretary of State guaranteed Venezuela that the
title by adverse possession accepted in the Treaty was to be
understood in accordance with international law, i.e. that the
possession on which such title was based must be public, in good
faith, tacitly consented to, etc. At the same time he reached
agreement with Great Britain that it could grant title by adverse
possession subsequent to 1850, by settlers not authorized by the
174
British Government and against constant public protests by
Venezuela.
d. That Secretary of State Richard Olney and Sir Julian Pauncefote
agreed that no Venezuelan would sit on the Tribunal, despite the
fact, as stated by Pauncefote, that this step ‘seemed unfair,’ and in
disregard of what he himself referred to as Venezuelan ‘shrieks.’”378
7.3 While no legal argument was clearly enunciated at that time (or thereafter),
it can be inferred from these statements that Venezuela somehow considers the
conclusion of the Compromis, as well as the composition of the Tribunal, to be
flawed by reason of error, fraud or corruption (Section I) or, possibly, though even
more ambiguously, coercion and duress (Section II). However fanciful these
suggestions may be, in the interest of completeness, Guyana addresses them to
demonstrate their lack of merit.
No Error, No Fraud, No Corruption
7.4 Before showing that Venezuela agreed to the Compromis (B), including the
composition of the Arbitral Tribunal (C), in full knowledge of the facts, it is
appropriate to recall the conditions for error (or fraud or corruption) that must be
present to render a treaty null and void (A).
378 Dr Ignacio Irabarren Borges, [Declaración del Dr Ignacio Iribarren Borges, Ministro de
Relaciones Exteriores de Venezuela, la Conferencia Ministerial de Londres] Statement Made by Dr
Ignacio Iribarren Borges, Venezuelan Foreign Minister, to the Ministerial Conference Held in
London (9 Dec. 1965). MMG, Vol. IV, Annex 76.
175
A. CONDITIONS FOR INVALIDATING A TREATY ON THE GROUNDS OF ERROR,
FRAUD OR CORRUPTION
7.5 Articles 48, 49 and 50 of the 1969 Vienna Convention on the Law of
Treaties are respectively devoted to error, fraud and corruption as defects in the
consent of a State, which may result in the invalidity of a treaty to which the State
is a party. It is appropriate to take those provisions of the VCLT as a starting point,
even if the customary rules pertaining to the invalidity of treaties more than a
century and a half ago were assuredly less developed than today. Moreover,
although these three defects of consent are distinct, they have enough common
features to be considered together. Indeed, it appears that Venezuela draws from
the same set of factual allegations to support these different grounds of invalidity.
1. Error
7.6 The idea that a material error committed at the time of concluding a treaty
is a cause of nullity is long established. It is an extension of what has been
recognised traditionally in contract law and is expressed by the Latin maxim non
videtur qui errat consentire.379 However, it is also well established that not every
error vitiates consent. Contemporaneously to the 1897 Washington Treaty, Pradier-
Fodéré already opined:
379 Pasquale Fiore, NOUVEAU DROIT INTERNATIONAL PUBLIC SUIVANT LES BESOINS DE LA
CIVILISATION MODERNE (1885), pp. 472 et seq. See also concerning the early recognition of error in
international law as a possible ground for nullity, Orinoco Steamship Co. Case, pp. 227-241. Within
the framework of modern international law, application of error as a cause for invalidity goes back
as far as 1798, when the Mixed Commission between Great Britain and the United States recognised
that a gross geographical error in the Treaty of Paris of 1783 made it impossible to determine the
boundary between Canada and the United States (Albert Geouffre de Lapradelle & Nikolaos E.
Politēs, Recueil des arbitrages internationaux, Vol. I (1905), pp. 306 et seq. or R.I.A.A., vol.
XXVIII, pp. 3-4).
176
“Quant à l’erreur de fait, comment admettre que des erreurs
matérielles puissent égarer facilement l’intelligence des
négociateurs, tromper la volonté des gouvernements, déjouer
l’attention de l’opinion, les légitimes susceptibilités de la presse
politique et la vigilance patriotique des parlements?”380
7.7 In the interwar period, the Harvard Draft Convention on the Law of Treaties
likewise limited the possibility to claim a defect of consent on the basis of a factual
error:
“A treaty entered into upon an assumption as to the existence of a
state of facts, the assumed existence of which was envisaged by the
parties as a determining factor moving them to undertake the
obligations stipulated, may be declared by a competent
international tribunal or authority not to be binding on the parties,
when it is discovered that the state of facts did not exist at the time
the treaty was entered into”.381
7.8 During the discussions leading to the 1969 Vienna Convention, Special
Rapporteur Hersch Lauterpacht recalled:
380 Paul Pradier-Fodéré, TRAITÉ DE DROIT INTERNATIONAL PUBLIC EUROPÉEN ET AMÉRICAIN,
SUIVANT LES PROGRÈS DE LA SCIENCE ET DE LA PRATIQUE CONTEMPORAINE (1885), p. 743, para.
1076. “As for the error of fact, how can we admit that material errors can easily mislead the
intelligence of negotiators, deceive the will of governments, thwart the attention of public opinion,
the legitimate susceptibilities of the political press and the patriotic vigilance of parliaments?”
(Translation of Guyana). See also Alfred Chrétien, PRINCIPES DE DROIT INTERNATIONAL PUBLIC
(1893), p. 327, para. 331; see also Frantz Despagnet, COURS DE DROIT INTERNATIONAL PUBLIC
(1894), p. 479; Arrigo Cavaglieri, « Règles Générales du Droit de la Paix », Recueil des Cours, Vol.
XXVI (1926), p. 510; Paul Fauchille, TRAITÉ DE DROIT INTERNATIONAL PUBLIC, Vol. I, Part III
(Rousseau & Cie, 8th ed., 1926), p. 299.
381 Draft Convention on the Law of Treaties in AJIL, Vol. XXIV (1935), Art. 29, p. 1126, para. (a)
(emphasis added).
177
“[T]he principle that not every error involves the voidability of the
treaty. Such effect attaches only to an essential error which goes to
the roots of the treaty.”382
7.9 The Permanent Court as well as the present Court have also maintained that
the error invoked must be of such a nature as to vitiate the treaty.383 As the Court
explained in the leading case concerning this matter, “the principal juridical
relevance of error, where it exists, is that it may affect the reality of the consent
supposed to have been given”.384 In the second phase of the same case, during the
examination of the merits of the dispute, the Court repeated this principle and, at
the same time, identified three cases where, by way of exception, an essential error
would not affect the validity of consent:
“It is an established rule of law that the plea of error cannot be
allowed as an element vitiating consent if the party advancing it
contributed by its own conduct to the error, or could have avoided
it, or if the circumstances were such as to put that party on notice of
a possible error.”385
382 Report on the Law of Treaties by Mr. H. Lauterpacht, Special Rapporteur, U.N. Doc. A/CN.4/63
(24 Mar. 1953), reprinted in U.N., YBILC 1953/II, U.N. Doc.A/CN.4/SER.A/1953/Add.1 (1953),
p. 154, para. 1.
383 Case Concerning Sovereignty over Certain Frontier Land (Belgium v. Netherlands), Judgment,
I.C.J. Reports 1962 (hereinafter “Case Concerning Sovereignty over Certain Frontier Land”), p.
222; See also Readaptation of the Mavrommatis Jerusalem Concessions (Greece v. U.K.),
Jurisdiction, Judgment, 1925, P.C.I.J. Series A, No. 11 (hereinafter “Mavrommatis Jerusalem
Concessions”), p. 31; or Award Made by the King of Spain Case, pp. 215-216.
384 Temple of Preah Vihear (Cambodia v. Thailand), Judgment of 26 May 1961, I.C.J. Reports 1961
p. 17 (hereinafter “Temple of Preah Vihear, 1961 Judgment”), p. 30.
385 Temple of Preah Vihear (Cambodia v. Thailand), Judgment of 15 June 1962, I.C.J. Reports 1962
p. 6 (hereinafter “Temple of Preah Vihear, 1962 Judgment”), p. 26-27. See also, Korea - Measures
affecting Government Procurement, Report of the Panel, WT/DS163/R (1 May 2000), paras. 7.120-
7.126; Legal Status of Eastern Greenland, Judgment, 1933, P.C.I.J. Series A/B, No. 53, p. 71 and
Legal Status of Eastern Greenland, Judgment, Dissenting Opinion of Judge Anzilotti, 1933, P.C.I.J.
178
7.10 The first and third exceptions have been retained nearly in the same terms
in paragraph 2 of Article 48 of the 1969 Vienna Convention:
“1. A State may invoke an error in a treaty as invalidating its
consent to be bound by the treaty if the error relates to a fact or
situation which was assumed by that State to exist at the time when
the treaty was concluded and formed an essential basis of its consent
to be bound by the treaty.
2. Paragraph 1 shall not apply if the State in question
contributed by its own conduct to the error or if the circumstances
were such as to put that State on notice of a possible error.
3. An error relating only to the wording of the text of a treaty
does not affect its validity; article 79 then applies.”
7.11 In other words, the strict conditions that must be fulfilled are:
(i) the alleged error must relate to an act or situation which the State
invoking it believed to exist when it concluded the treaty;
(ii) it must have formed, at the time, an essential basis of its consent to
be bound;
(iii) it does not vitiate the treaty if the State contributed to it or if the
circumstances were such that it should have been alerted to the
possibility of its occurrence; and
(iv) an error merely on the wording of the provisions can only result in
correcting the text of the treaty, in accordance with Article 79
VCLT, not a declaration of nullity.
Series A/B, No. 53 (hereinafter “Legal Status of Eastern Greenland, Dissenting Opinion of
Anzilotti”), pp. 92-93.
179
7.12 Moreover, an alleged mistake must be “established by convincing
evidence”:386 it cannot simply be asserted, or “based upon hypotheses which are
not plausible or accompanied by adequate proof”.387 As the ILC noted, “treaty
making processes are such as to reduce to a minimum the risk of errors on material
points of substance. In consequence, the instances in which errors of substance
have been invoked as affecting the essential validity of a treaty have not been
frequent”.388 Finally, it is for the State invoking the error to establish its existence
and essential character.389
2. Fraud
7.13 Article 49 of the Vienna Convention contemplates the invalidity of a treaty
on grounds of fraud:
“If a State has been induced to conclude a treaty by the fraudulent
conduct of another negotiating State, the State may invoke the fraud
as invalidating its consent to be bound by the treaty.”
386 Case Concerning Sovereignty over Certain Frontier Land, p. 222.
387 Ibid., p. 226; see also Frede Castberg, “L’excès de pouvoir dans la justice internationale”,
Recueil des Cours, Vol. XXXV, No. 443 (1931).
388 Draft Articles on the Law of Treaties with commentaries, reprinted in U.N., YBILC 1966/II,
U.N. Doc. A/CN.4/SER.A/1966/Add.1 (1966) (hereinafter “Draft Articles on the Law of Treaties
with commentaries”), Art. 45, p. 243, para. 1.
389 Mavrommatis Jerusalem Concessions, p. 30; Arbitral Award Made by the King of Spain Case,
p. 215; Temple of Preah Vihear, 1961 Judgment, p. 26.
180
7.14 The drafting history of that provision indicates that fraud amounts to “deceit
or wilful misrepresentation”.390
7.15 As the ILC noted, “any fraudulent misrepresentation of a material fact
inducing an essential error would be caught by the provisions of the ... article
dealing with error”, now Article 48 of the Convention.391 However, the difference
between error and fraud is intention. For fraud to exist in the negotiation of a treaty,
one State must have had the deliberate intention to deceive another. This fraudulent
behaviour must go beyond the mere misrepresentation of a fact.392 Therefore, “the
Commission considered that it was advisable to keep fraud and error distinct in
separate articles. Fraud, when it occurs, strikes at the root of an agreement in a
somewhat different way from innocent misrepresentation and error. It does not
merely affect the consent of the other party to the terms of the agreement; it
destroys the whole basis of mutual confidence between the parties”.393
7.16 As was abundantly emphasised by authors at the time the Treaty of
Washington was concluded, the risk of fraud in the negotiation of a treaty was
assumed to be extremely low.394 History proves them right in view of the
390 U.N., United Nations Conference on the Law of Treaties, First session, U.N. Doc. A/CONF.39/1/
(26 Mar.-24 May 1968), p. 258, para. 64. See also Draft Convention on the Law of Treaties in AJIL,
Vol. XXIV (1935), p. 1144, Art. 31 – “Fraud. (a) A State which claims that it has been induced to
enter into a treaty with another State by the fraud of the latter State, may seek from a competent
international tribunal or authority a declaration that the treaty is void” (emphasis added).
391 See supra para. 7.10.
392 Remarks by Mr Roberto Ago (13 May 1963), reprinted in U.N., YBILC 1963/I, U.N. Doc.
A/CN.4/SER.A/1963 (1963), p. 31, para. 47.
393 Draft Articles on the Law of Treaties with commentaries, Article 46, p. 244, para. 1.
394 See supra para. 7.12.
181
exceptional occurrence of fraud as underlined by Roberto Ago during the
discussion of what was to become Article 49 of the Vienna Convention on the Law
of Treaties.395 As stated by the ILC in its commentaries on the Draft Articles on the
Law of Treaties with commentaries, “[c]learly, cases in which Governments resort
to deliberate fraud in order to procure the conclusion of a treaty are likely to be
rare”.396 Here again, the burden of proof lies with the State claiming invalidity
based on fraud.397
3. Corruption
7.17 While the Harvard Draft Convention on the Law of Treaties does not cite
corruption of the negotiators as a ground for annulment of a treaty, it was
sometimes mentioned in the legal literature contemporaneous with the Treaty of
Washington,398 and the principle was accepted in Article 50 of the 1969 Vienna
Convention:
“If the expression of a State’s consent to be bound by a treaty has
been procured through the corruption of its representative directly
or indirectly by another negotiating State, the State may invoke such
corruption as invalidating its consent to be bound by the treaty.”
395 Remarks by Mr Roberto Ago (13 May 1963), reprinted in U.N., YBILC 1963/I, U.N. Doc.
A/CN.4/SER.A/1963 (1963), p. 31, para. 47.
396 Draft Articles on the Law of Treaties with commentaries, Article 46, p. 244, para. 1.
397 Remarks by Sir Humphrey Waldock, reprinted in U.N., YBILC 1963/I, U.N. Doc.
A/CN.4/SER.A/1963 (1963), p. 195, para. 76 (“[T]he burden lay on the party wishing to contest the
validity of a treaty.”); Mark E. Villiger, COMMENTARY ON THE 1969 VIENNA CONVENTION ON THE
LAW OF TREATIE, (Brill, 2009), p. 616, para. 3.
398 See infra note 400; see also supra para. 6.47.
182
7.18 Absent any precedent, Sir Ian Sinclair saw in this provision a “striking
example of progressive development” of international law.399
7.19 While some members of the ILC were of the view that corruption, if it
occurred, would be a case of fraudulent conduct,400 the majority “considered that
the corruption of a representative by another negotiating State undermines the
consent which the representative purports to express on behalf of his State in a quite
special manner which differentiates the case from one of fraud”.401 And the
Commission commented:
“The strong term ‘corruption’ is used in the article expressly in
order to indicate that only acts calculated to exercise a substantial
influence on the disposition of the representative to conclude the
treaty may be invoked as invalidating the expression of consent
which he has purported to give on behalf of his State.”402
7.20 As in the case of error or fraud, these remarks are telling: corruption vitiates
the consent to be bound if it exercised “a substantial influence” on the conclusion
of the treaty. And, of course, it must be proven by the State which invokes it.
399 Ian McTaggart Sinclair, THE VIENNA CONVENTION ON THE LAW OF TREATIES (MUP, 2nd ed.
1984), p. 16.
400 Draft Articles on the Law of Treaties with commentaries, Article 47, p. 245, para. 2.
401 Ibid., para. 3.
402 Ibid., para. 4.
183
B. THE SPECIAL AGREEMENT WAS CONCLUDED BY VENEZUELA WITH FULL
KNOWLEDGE OF ALL THE RELEVANT FACTS
7.21 In very general terms, Venezuela has complained that it “played a very
small role in the groundwork for the Treaty”;403 that it had no access to the
negotiations during the critical period;404 that it was told an 1850 treaty between
the United States and Great Britain would protect Venezuelan interests against any
subsequent appropriation of territory by Great Britain;405 and that “the title by
prescription accepted in the Treaty had to be interpreted according to international
law, that is to say, that the occupation, the basis of that title, had to be public, in
good will and with tacit consent, etc.”406 Moreover, its Foreign Minister declared
in 1965 that “[t]he Secretary of State, Richard Olney, and Sir Julian Pauncefote
agreed that no Venezuelan would be part of the Tribunal”.407 These allegations are
all unfounded.
403 U.N. General Assembly, 17th Session, Statement of Dr. Marcos Falcón Briceño, Minister for
External Relations of Venezuela, U.N. Doc A/SPC/71 (12 Nov. 1962), p. 10.
404 ICJ, White Paper of the Venezuelan Council on Foreign Relations (COVRI) regarding the
Pending Case Arbitral Award of 3 October 1899 (Guyana v Venezuela) (9 Dec. 2020), p. 29,
available at https://covri.com.ve/index.php/2020/12/10/white-paper-of-the-venezuelan…-
foreign-relations-covri-regarding-the-pending-case-arbitral-award-of-3-october-1899-guyanav-
venezuela/.
405 Ibid., p. 29, para. 49.
406 Statement by Dr. I. Iribarren Borges, Minister of Foreign Affairs of Venezuela, to the National
Congress of Venezuela (17 Mar. 1966), reprinted in Republic of Venezuela, Ministry of Foreign
Affairs, Claim of Guyana Esequiba: Documents 1962-1981 (1981). MG, Vol. II, Annex 33.
407 Ibid.
184
1. Alleged Denial of Access to the Negotiations
7.22 Regarding Venezuela’s access to the negotiation of 1897 Treaty, the facts
are clear:
 Venezuela deliberately entrusted the United States to represent it in the
negotiations with Great Britain;
 As has already been pointed out, the United States was given broad
discretion in this respect, but made its views and actions known to its
principal;
 Despite the wide margin of discretion left to the United States, Venezuela
was informed of and consulted during the negotiations that led to the
Treaty; and
 Venezuela not only ratified the Compromis but expressed its heartfelt
gratitude to the United States for faithfully and effectively representing it.
7.23 Each of these points is confirmed by the evidence before the Court.
(a) Venezuela deliberately entrusted the United States to represent it in the
negotiations with Great Britain.
7.24 During the negotiations, Venezuela was effectively represented by the
United States. From the outset, it had asked the United States “to intervene in a
direct and effective way” (“interposición eficaz y directa”) in the dispute with
Great Britain in order to avoid any interaction by Venezuela with Great Britain.408
Venezuela, in particular, welcomed U.S. intervention to represent it in the
408 Letter from Mr. Andrade to Mr. Gresham (19 Dec. 1894), reprinted in Venezuela & Great
Britain, [HISTORIA OFICIAL DE LA DISCUSIÓN ENTRE VENEZUELA Y LA GRAN BRETAÑA SOBRE SUS
LÍMITES EN LA GUAYANA] OFFICIAL HISTORY OF THE DISPUTE BETWEEN VENEZUELA AND GREAT
BRITAIN OVER THEIR BOUNDARIES IN GUAYANA (1896), pp. 282-284. See also G.B. Young,
“Intervention Under the Monroe Doctrine: The Olney Corollary”, Political Science Quarterly, Vol.
57, No. 2 (June 1942), p. 261, note 43; Charles C. Tansill, THE FOREIGN POLICY OF THOMAS F.
BAYARD, 1885-1897 (FUP, 1940), p. 748).
185
negotiations aimed at obtaining Great Britain’s agreement to arbitrate the territorial
dispute.409
7.25 As early as 1895, the President of the United States, Grover Cleveland,
insisted in a special message to the Congress on the necessity of Venezuela’s free
will to submit its territorial dispute with Great Britain to impartial arbitration then
resisted by Great Britain.410
7.26 During the negotiations, Venezuela, which had sought the United States’
involvement, insisted on the active part taken by the United States “with the
consent of the two interested governments”.411
(b) The United States was given broad discretion in its role of representation
of Venezuela, but Venezuela freely made its views known to the U.S.
7.27 The claim that Venezuela had been prevented from expressing its views is
not supported by the evidence.
409 Venezuela Ministry of Foreign Affairs, Memorandum by The Ministry of Foreign Affairs of
Venezuela relative to the Note of Lord Salisbury to Mr Richard Olney, dated November 26, 1895,
on the question of boundary between Venezuela and British Guayana (1896). MMG, Vol. IV,
Annex 64. See also, ibid., pp. 3-4 (Letter from P. Ezequiel Rojas to Richard Olney (28 Mar. 1896))
(providing to the Commission a Memorandum containing the Government of Venezuela’s
assessment of the history of the territorial claims).
410 Speech of Grover Cleveland: Message Regarding Venezuelan-British Dispute (17 Dec. 1895),
available at https://millercenter.org/the-presidency/presidential-speeches/december-…-
message-regarding-venezuelan-british-dispute (last accessed 22 Feb. 2022): “any adjustment of the
boundary which [Venezuela] may deem for her advantage and may enter into of her own free will
cannot of course be objected to by the United States” (emphasis added).
411 Venezuela-British Guiana Boundary Arbitration, The Case of the United States of Venezuela
(1898), Vol. I, p. 220. MMG, Vol. IV, Annex 127.
186
7.28 From the outset, two demands were made by Venezuela: “[Venezuela]
explicitly required that any arbitration agreement reached should be based on the
following two premises: 1) that the entire disputed territory was subject to
arbitration; 2) that the matter would be decided by a court of law.”412 Both of these
objectives were achieved. Articles I and III of the Treaty state that the Arbitral
Tribunal shall “determine [the whole] boundary-line between the Colony of British
Guiana and the United States of Venezuela” while Article IV sets out in broad
detail the “Rules to be taken as applicable to the case” together with “such
principles of international law not inconsistent therewith”. As noted by the
Venezuelan Foreign Minister in his speech before the U.N. General Assembly in
October 1962: “The rules by which the case was to be studied and decided were
laid down, as is customary, in the arbitration agreement”.413
7.29 In order to achieve Venezuela’s objectives, the United States was given
broad discretion to negotiate with Great Britain. Its mandate cannot, by any means,
be linked to any of the defects of consent that may lead to the nullity of a treaty.
This is all the more so in the present case, since negotiating through a third-party
representative was not unusual at the time. For example, Liechtenstein had given
412 Hermann González Oropeza, S.J. & Pablo Ojer, [Informe que los expertos venezolanos para la
cuestión de límites con Guayana Británica presentan al Gobierno Nacional] Report submitted by
the venezuelan experts to the National Government on the issue of the boundaries with British
Guiana (18 Mar. 1965), p. 32, para. 12. MMG, Vol. IV, Annex 74.
413 Statement made by the Permanent Representative of the United Kingdom at the 1138th Plenary
Meeting, reprinted in U.N. General Assembly, 17th Session, Agenda item 9, U.N. Doc. A_PV-
1138-EN (1 Oct. 1962), p. 244, para. 66.
187
Switzerland the right to represent it and to conclude a number of treaties on its
behalf.414
7.30 The evidence makes clear that, contrary to Venezuela’s post-1962
assertions, it determined the objectives that the United States was to achieve in the
negotiations. The United States faithfully — and successfully — represented
Venezuela’s interests. Moreover, in November 1962 Venezuela’s Foreign Minister
stated before the U.N. General Assembly:
“[I]n February 1897, an arbitral Treaty was signed. ... We have
always maintained that we observed this arbitral Treaty, in spite of
the fact that Venezuela played a very small role in the groundwork
for the Treaty and its actual drafting.”415
7.31 In other words, even if it were admitted, quod non — in contradiction of
the historical evidence — that the role of Venezuela in the negotiations was limited,
this did not form “an essential basis of its consent to be bound by the treaty”.416
(c) Despite the wide margin of discretion left to the United States, Venezuela
was informed of and consulted during the negotiations that led to the
Compromis and made its views known to its principal.
7.32 In this respect also, Venezuela’s post hoc allegations are contradicted by
the evidence — most notably by the message delivered on 20 February 1897 by the
414 See Traité entre la Suisse et la Principauté de Liechtenstein concernant la réunion de la
Principauté de Liechtenstein au territoire douanier suisse (1923), entered into force 1 Jan. 1924,
available at https://www.fedlex.admin.ch/eli/cc/39/551_565_576/fr (last accessed 22 Feb. 2022),
Art. 8.
415 U.N. General Assembly, 17th Session, Statement of Dr. Marcos Falcón Briceño, Minister for
External Relations of Venezuela, U.N. Doc A/SPC/71 (12 Nov. 1962), p. 120, para. 20.
416 Under Article 48 of the 1969 Vienna Convention. See supra paras. 7.10-7.12.
188
Venezuelan President, Joaquín Sinforiano De Jesús Crespo, to the Venezuelan
Congress:
“While the Venezuelan Government, through the patriotic and
earnest efforts of its Foreign Office, was presenting and urging its
rights before the Boundary Commission, the State Department at
Washington, with laudable efforts, was endeavoring to secure
arbitration from the British Ministry, in order to adjust with greater
facility and success this unpleasant dispute of almost a century. The
first official knowledge the Executive power had of the means
employed to induce our powerful adversary to accept arbitration
unreservedly and unconditionally, for which Venezuela had always
contended, was derived from the publication of the correspondence
between the Governments at Washington and London from
February to June of the past year, and which, being so favorable to
this republic, was sent here to be translated into Spanish and printed.
Latterly this Government, through its Legation at Washington, was
consulted as to a point in relation to those negotiations for
arbitration. The reply of the Venezuelan Minister of Foreign Affairs,
with an opinion contrary to that which was seemingly suggested on
this point, arrived in Washington at the time when the answers from
Great Britain were expected as to the determinate points of the
arbitration.
At this juncture the Government was informed that on the 12th of
November there had been signed in Washington by his Excellency
Mr Olney, Secretary of State of the United States, and Sir Julian
Pauncefote, Ambassador of Her Britannic Majesty in Washington,
a protocol with the essential bases for a treaty between Venezuela
and Great Britain, which, by means of arbitration, would put an end
to the old dispute between the two nations. The bases were then
submitted by the Washington Government for the consideration of
this Government by means of a letter to me from his Excellency Mr
Cleveland, in which he manifested the noble desire to see accepted
a compact which, in his opinion, was just and advantageous.”417
417 Message from President Joaquín Sinforiano De Jesús Crespo to Congress (20 Feb. 1897),
reprinted in Odeen Ishmael, “Chapter 13 - The Arbitral Tribunal and the Award” in TRAIL OF
189
7.33 The italicised passages in this message — emanating from the highest
Venezuelan authority — bear witness to the close association of Venezuela to the
negotiations, even though the latter were led by the United States on behalf of
Venezuela.
7.34 Among others, a Memorandum by Venezuela’s Ministry of Foreign Affairs
confirms its effective participation in this process.418 This impressive document of
67 pages, dated 26 November 1895, relates to a note from Lord Salisbury, the
British Prime Minister (who also served as Minister of Foreign Affairs), to Mr
Olney, the U.S. Secretary of State — the chief negotiators of the Compromis — on
the question of the boundary between Venezuela and British Guiana, and expounds
with great care the Venezuelan position.
7.35 On 13 December 1896, Ambassador José Andrade, who had been appointed
Envoy Extraordinary and Minister Plenipotentiary of Venezuela to the United
States, stated publicly that, “There was not a word in the treaty which was not
previously known to the Venezuelan Government, and which had not been
approved in advance”.419
DIPLOMACY (GNI Publications, 1998), available at
http://www.guyana.org/features/trail_diplomacy_pt3.html#chap13 (last accessed 31 Jan. 2022), pp.
351-352 (emphasis added).
418 Venezuela Ministry of Foreign Affairs, Memorandum by The Ministry of Foreign Affairs of
Venezuela relative to the Note of Lord Salisbury to Mr Richard Olney, dated November 26, 1895,
on the question of boundary between Venezuela and British Guayana (1896), p. 67. MMG, Vol. IV,
Annex 64.
419 “Venezuelan Treaty Safe: Its Details Were Known to President Crespo Long Ago”, The New
York Times (13 Dec. 1896). Ambassador Andrade was citing the Protocol (“Agreement between
Great Britain and the United States of America on heads of proposed treaty between Great Britain
and Venezuela for settlement of the Venezuela boundary question”) which had been signed on 12
190
(d) Venezuela ratified the Treaty and expressed heartfelt thanks to the United
States for faithfully and effectively representing it.
7.36 Official Venezuelan reactions, welcoming the successful conclusion of the
negotiations and thanking the United States for its role in them, confirm the falsity
of Venezuela’s belated allegations that it was denied access to them.
7.37 The ratification of the Treaty by Venezuela’s National Congress was
contemporaneously described as follows:
“The World published the following cable dispatch from Caracas
Venezuela: ‘The Congress of Venezuela has unanimously and
enthusiastically ratified the Guiana boundary arbitration treaty with
Great Britain, which was negotiated by the United States. The
measure was first read in the House of Representatives by Seno
Aranguren, who spoke eloquently in its favor. The second reading
was without incident. It came up on third reading to-day, and after
a speech by Senor Briceno, the House voted for the treaty
unanimously amid great cheering and enthusiastic demonstrations
of gratitude to ‘Uncle Sam’. The Treaty was unanimously ratified
by the Senate to-day’.”420
7.38 The evidence shows clearly that none of the defects of consent suggested
by Venezuela — be it error, fraud or corruption of the negotiations, is present in
this case:
 The outcome of the negotiations was in conformity with the wishes of
Venezuela, which was kept informed of the process and expressed its views
when it deemed it useful;
November 1896 and comprised all the main features which were ultimately included in the
Compromis.
420 “Ratified by Venezuela: The Boundary Arbitration Treaty Enthusiastically Indorsed”, The
Indianapolis News (6 Apr. 1897).
191
 The United States faithfully represented the views of Venezuela, which
were reflected in the text of the Compromis;
 The latter was welcomed by Venezuela, which cannot deny its positive
appreciation sixty years later;
 No signs of corruption of the U.S. negotiators or of their Venezuelan
counterparts can be detected; and indeed none has been officially uttered
by Venezuela.
7.39 Venezuela has not offered any evidence in support of its Foreign Minister’s
December 1965 allegation that it had been assured by the U.S. Secretary of State,
Richard Olney that, under the Treaty, Venezuela would be protected against any
misappropriation of territory by Great Britain after 1850. Nor is there any evidence
to support the claim that it was told that title by prescription would only be based
on international law.
7.40 Nowhere in the historical record has Guyana found any assurances of the
kind allegedly given to Venezuela by Secretary of State Olney. Had they been
given, it is difficult to see how the Venezuelan President and Congress would have
been so appreciative of the Compromis and the role played by the United States in
its negotiation. The commitments set forth in Article IV of the 1897 Treaty very
explicitly contain provisions that are contrary to the alleged assurances given by
Mr Olney. As aptly noted by Judge Anzilotti in his dissent in the case concerning
the Legal Status of Eastern Greenland: “If a mistake is pleaded it must be of an
excusable character; and one can scarcely believe that a government could be
ignorant of the legitimate consequences following upon an extension of
sovereignty”.421 The record confirms that Venezuela was fully aware of the
seriousness of the issues resolved by the Treaty. This is evident, for example, in
421 Legal Status of Eastern Greenland, Dissenting Opinion of Anzilotti, p. 92.
192
the message of President Crespo to the Congress on 20 February 1897, calling for
a prompt ratification of the Treaty:
“The responsibilities of those who are intrusted with the
administration of public affairs by the suffrage of the people
increase and become graver when the preservation of interests
closely linked with the National life is the subject to be dealt with.
There is in the breast of the Chief Magistrate who has the good of
the Republic at heart a struggle between the ideas of the moment
and those born of a concern for the future. To study well the former
and the latter, to weight the advantages and risks of the one and the
other without silencing the dictates of conscience and reason, such
are the duties, truly arduous, of the ruler during whose term of office
has chanced to fall the settlement of an affair which, like that of the
Guiana boundary question, has been growing graver — a struggle
without a truce and full of lamentable incidents to the party weak to
material defenses. Public opinion, to which the governing power
must always listen, especially when the territorial integrity is the
subject of discussion, manifested itself so divided as to the bases
proposed to Venezuela that it would have been in vain for the most
expert observer to have deduced from such adversity of opinions
any expression of the public sentiment. ...
And as this is an affair of such importance involving as it does such
sacred interests, I beg you that from the moment it is presented for
your consideration you will postpone all other business until you
shall decide upon it.”422
7.41 Finally, to the extent that Venezuela complains of a misinterpretation by
the Arbitral Tribunal of the provisions of the Compromis relating to title by
prescription, this would not be a matter of error or fraud, but an appeal against the
422 Message from President Joaquín Sinforiano De Jesús Crespo to Congress (20 Feb. 1897),
reprinted in Odeen Ishmael, “Chapter 13 - The Arbitral Tribunal and the Award” in TRAIL OF
DIPLOMACY (GNI Publications, 1998), available at
http://www.guyana.org/features/trail_diplomacy_pt3.html#chap13 (last accessed 22 Feb. 2022),
pp. 351-352.
193
Award, on its merits. Such appeal is explicitly excluded by Article XIII, which
provides: “The High Contracting Parties engage to consider the result of the
proceeds of the Tribunal of Arbitration as a full, perfect, and final settlement of all
the questions referred to the Arbitrators”.
C. VENEZUELA’S KNOWLEDGE AND APPROVAL OF THE COMPOSITION OF THE
TRIBUNAL
7.42 One of Venezuela’s complaints against the validity of the Compromis
seems to concern the composition of the Tribunal, as provided for in Article II of
the 1897 Treaty. Its main criticism is directed at the absence of a national from
Venezuela.423
7.43 In any event, there is no doubt that the Arbitral Tribunal was constituted in
accordance with the terms of the Treaty. Article I of the Treaty provided that, “An
Arbitral Tribunal shall be immediately appointed to determine the boundary-line
between the Colony of British Guiana and the United States of Venezuela”. Article
II addressed the composition of that Tribunal, in some detail.424
423 See e.g., U.S. Department of State, Memorandum of Conversation, No. 741D.00/1-1562 (15 Jan.
1962), p. 2. MG, Vol. II, Annex 16; Letter from the Permanent Representative of Venezuela to the
Secretary-General of the United Nations (14 Feb. 1962), reprinted in U.N. General Assembly,
Fourth Committee, 16th Session, Information from Non-Self-Governing Territories transmitted
under Article 73 of the Charter, U.N. Doc A/C.4/536 (15 Feb. 1962), p. 3, para. 10. MG, Vol. II,
Annex 17; U.N. General Assembly, 17th Session, Statement of Dr. Marcos Falcón Briceño,
Minister for External Relations of Venezuela, U.N. Doc A/SPC/71 (12 Nov. 1962), p. 120, para. 26.
424 See supra para. 3.31.
194
7.44 As described in Chapter 3,425 the four Arbitrators named in Article II were
all eminent jurists whose legal ability, fairness and integrity were widely
recognised. The same was true of the Right. Hon. Lord Russell of Killowen
GCMG, the then-Lord Chief Justice of England and Wales, who was selected to
replace Lord Herschell after the latter’s passing.
7.45 The absence of Venezuelan arbitrators on the Tribunal was not exceptional
at the time. In other arbitration cases, such as The Pious Fund of the Californias,
Mexico appointed two arbitrators from Holland, Mr T.M.C. Asser and Jonkheer
A.F. de Savorin Lohman.426 Two arbitrators were American but none were
Mexican.427
7.46 Likewise, there is no evidence that the issue of the appointment of
arbitrators was a decisive element for Venezuela in the negotiation of the
Compromis. Venezuela did not include this among its demands of points to be
included in the Treaty.428 On the contrary, Venezuela considered the appointment
425 See supra paras. 3.31-3.37.
426 The Pious Fund of the Californias (The United States of America v. The United Mexican States),
PCA Case. No. 1902-01, Award (14 Oct. 1902); Report of the US Agent and Counsel on the Pious
Fund Case, Part. I; Letter from Mr. Olney to Mr. Bayard (20 July 1895), reprinted in U.S.
Department of State, Foreign Relations of the United States, 1902, United States vs. Mexico, in the
Matter of the Case of the Pious Fund of the Californias, App. I (1902), p. 11, available at
https://history.state.gov/historicaldocuments/frus1902app2/comp1 (last accessed 22 Feb. 2022).
See also The Deutsche Amerikanische Petroleum Gesellschaft Oil Tankers (USA v. Reparation
Commission), RIAA, Vol. II, p. 778 (1926), pp. 777-795.
427 Ibid.
428 See Hermann González Oropeza, S.J. & Pablo Ojer, [Informe que los expertos venezolanos para
la cuestión de límites con Guayana Británica presentan al Gobierno Nacional] Report submitted
by the venezuelan experts to the National Government on the issue of the boundaries with British
Guiana (18 Mar. 1965), p. 32. MMG, Vol. IV, Annex 74. See supra para. 7.28.
195
of U.S. Arbitrators, especially the Chief Justice and an Associate Justice of the U.S.
Supreme Court, as an incentive for the U.S. to guarantee the effective
implementation of the future Award. As stated by President Crespo:
“the definite acceptance of the bases will always involve for them
[i.e., the United States] a sort of friendly responsibility which will
be in every case a guarantee of future harmony between the two
nations represented by the arbitral tribunal”.429
7.47 At the time of their appointment, and for the next 60 years, Venezuela never
complained about the American jurists appointed in its name. The Chief Justice of
the United States Supreme Court, Melvin Weston Fuller, was a judge of
exceptional ability and probity. At the time of his appointment to the Tribunal, it
was said that “the feeling is wide, and steadily widening, that the great office [of
Chief Justice] was never in abler, cleaner, safer hands”.430 Justice David J. Brewer
had been a Justice of the United States Supreme Court since 1890 and was
renowned for his independence and integrity.431 Moreover, he was well known to
Venezuela for having served as the Chairman of the United States Commission on
the Boundary between Venezuela and British Guiana (“the Cleveland
Commission”), whose work Venezuela thoroughly endorsed.
429 Message from President Joaquín Sinforiano De Jesús Crespo to Congress (20 Feb. 1897),
reprinted in Odeen Ishmael, “Chapter 13 - The Arbitral Tribunal and the Award” in TRAIL OF
DIPLOMACY (GNI Publications, 1998), available at
http://www.guyana.org/features/trail_diplomacy_pt3.html#chap13 (last accessed 22 Feb. 2022).
430 G.C. Worth & G. H. Knott, “The Venezuela Boundary Arbitration”, Am. L. Rev. Vol. 31 No.
481 (1897), p. 501.
431 Ibid., p. 498 (“in all the long and bright array of men who have adorned that position, none ever
came to it with cleaner hands than those of David J. Brewer”).
196
7.48 The fifth Arbitrator and President of the Tribunal, Prof F. de Martens, a
preeminent international jurist, was selected by the other four, as stipulated in the
1897 Treaty. According to a contemporaneous account:
“Great Britain and Venezuela each submitted a list of distinguished
jurists who would be acceptable as umpire. These embraced some
of the most noted men of Europe, but M. Maertens’s [sic] name was
the only one on the list of both countries.”432
7.49 The Tribunal was thus properly constituted in accordance with the terms of
the Treaty. It cannot plausibly be argued that the Arbitrators were unqualified or
incapable of fairly and effectively discharging the responsibilities conferred upon
them by the Treaty. On the contrary, both Great Britain and Venezuela repeatedly
emphasised the exceptional calibre and integrity of the Arbitrators. On the first day
of the proceedings before the Tribunal, for example, counsel for Venezuela, Mr
Mallet-Prevost, praised the “Arbitrators whose distinguished records and whose
high reputation give us the assurance that the questions involved will be decided in
justice and equity”.433 Similar sentiments were expressed by counsel for Great
Britain, Sir Richard Webster.434 In his closing argument on behalf of Venezuela,
432 See “British-Venezuela Boundary, M. Maertens, the Russian Jurist, Chosen as Umpire and
President of the Arbitration Court”, The New York Times (13 Oct. 1897), reprinted in Odeen
Ishmael, The British Guiana-Venezuela Border Dispute (GNI, 2010), available at
http://www.guyana.org/Western/NYT_Compiled-reports-web.pdf (last accessed 22 Feb. 2022), p.
565.
433 Boundary between the Colony of British Guiana and the United States of Venezuela, First Day’s
Proceedings (25 Jan. 1899), p. 4. MMG, Vol. IV, Annex 96.
434 Ibid., p. 3. During his opening speech at the start of the substantive hearing, Sir Richard Webster
hailed Prof Martens’ “reputation as a jurist, as a lawyer, as a diplomatist is not confined to the
boundaries of his own country, but extends to every civilized nation”. Boundary between the Colony
of British Guiana and the United States of Venezuela, Second Day’s Proceedings (15 June 1899),
p. 9. MMG, Vol. IV, Annex 97.
197
General Benjamin Harrison likewise emphasised that the composition of the
Tribunal rendered it “absolutely impartial”.435
7.50 It was not until 1965 that Venezuela began to assert grounds for challenging
the validity of the 1897 Treaty and the composition of the Tribunal. By itself, such
a delay clearly renders the claim of invalidity dubious. Article 45 of the VCLT, on
the “Loss of a right to invoke a ground for invalidating, terminating, withdrawing
from or suspending the operation of a treaty”, provides:
“A State may no longer invoke a ground for invalidating,
terminating, withdrawing from or suspending the operation of a
treaty under articles 46 to 50 or articles 60 and 62 if, after becoming
aware of the facts: (a) it shall have expressly agreed that the treaty
is valid or remains in force or continues in operation, as the case
may be; or (b) it must by reason of its conduct be considered as
having acquiesced in the validity of the treaty or in its maintenance
in force or in operation, as the case may be.”
7.51 In this respect, the circumstances of the present case are comparable to
those of the Arbitral Award Made by the King of Spain on 23 December 1906, in
which Nicaragua had challenged the appointment of the arbitrator to decide its
dispute with Honduras:
“No question was at any time raised in the arbitral proceedings
before the King with regard either to the validity of his designation
as arbitrator or his jurisdiction as such. Before him, the Parties
followed the procedure that had been agreed upon for submitting
435 Boundary between the Colony of British Guiana and the United States of Venezuela, Fiftieth
Day’s Proceedings (19 Sept. 1899), p. 2982. MMG, Vol. IV, Annex 111 (“It seems to me that, if
this process of settling international difficulties is to commend itself to the nations, it can only be
by setting up for the trial of such questions an absolutely impartial, judicial Tribunal. ... It seems to
me, Mr President, that anticipating what seemed to be so prominent in this discussion at the Hague,
these nations have adopted that basis in the constitution of this Tribunal”.).
198
their respective cases. Indeed, the very first occasion when the
validity of the designation of the King of Spain as arbitrator was
challenged was in the Note of the Foreign Minister of Nicaragua of
19 March 1912.
In these circumstances the Court is unable to hold that the
designation of the King of Spain as arbitrator to decide the boundary
dispute between the two Parties was invalid.”436
7.52 In that case, the Court also found:
“That, having regard to the fact that the designation of the King of
Spain as arbitrator was freely agreed to by Nicaragua, that no
objection was taken by Nicaragua to the jurisdiction of the King of
Spain as arbitrator either on the ground of irregularity in his
designation as arbitrator or on the ground that the Gámez-Bonilla
Treaty had lapsed even before the King of Spain had signified his
acceptance of the office of arbitrator, and that Nicaragua fully
participated in the arbitral proceedings before the King, it is no
longer open to Nicaragua to rely on either of these contentions as
furnishing a ground for the nullity of the Award.”437
7.53 The same principle must apply in the present case:
 the designation of the five Arbitrators was freely agreed to by Venezuela;
 no objection was taken by Venezuela to the jurisdiction of the Tribunal thus
composed on the ground of irregularity in its mode of composition; and
 Venezuela fully participated in the arbitral proceedings before that
Tribunal.
436 Arbitral Award Made by the King of Spain Case, p. 207. See also Temple of Preah Vihear
(Cambodia v. Thailand), Preliminary Objections, Judgment of 26 May 1961, I.C.J. Reports 1961,
p. 30.
437 Arbitral Award Made by the King of Spain Case, p. 207.
199
7.54 It is therefore not open to Venezuela, six decades after the Award was
issued, to belatedly challenge it based on the Compromis or the composition of the
Arbitral Tribunal.
No Coercion or Duress
7.55 In an Aide-Mémoire of 5 November 1963, Venezuela’s Minister of Foreign
Affairs, Marcos Falcón Briceño, contended that his country signed the Treaty of
Washington “under moral duress” and “was coerced into adhering to the Treaty”.438
More specifically, in their Report of 18 March 1965, Venezuela’s “experts” on the
boundary issue with British Guiana wrote:
“Venezuela signed the Arbitration Treaty on February 2, 1897,
coerced by Secretary of State Richard Olney and his threats of
abandoning it to the mercy of Great Britain. Only ‘the dangerous
consequences of the abandonment in which the refusal would place
Venezuela’ — as the Venezuelan Foreign Minister stated in 1896
— could force him to accept the terms of that Treaty.”439
7.56 As a ground of nullity, coercion has undergone major changes following
the establishment of the principle of the prohibition of the use of armed force in
438 [Aide-Memoire presentado por el Dr. Marcos Falcón Briceño al Hon. R. A. Butler] Aide-
Memoire presented by Marcos Falcón Briceño to the Hon. R.A. Butler (5 Nov. 1963), p. 24. MMG,
Vol. IV, Annex 73.
439 Hermann González Oropeza, S.J. & Pablo Ojer, [Informe que los expertos venezolanos para la
cuestión de límites con Guayana Británica presentan al Gobierno Nacional] Report submitted by
the venezuelan experts to the National Government on the issue of the boundaries with British
Guiana (18 Mar. 1965), p. 32, para. 12. MMG, Vol. IV, Annex 74. See also, ICJ, White Paper of
the Venezuelan Council on Foreign Relations (COVRI) regarding the Pending Case Arbitral Award
of 3 October 1899 (Guyana v Venezuela) (9 Dec. 2020), p. 38, para. 68, available at
https://covri.com.ve/index.php/2020/12/10/white-paper-of-the-venezuelan…-
covri-regarding-the-pending-case-arbitral-award-of-3-october-1899-guyana-vvenezuela/.
200
international relations (A). In reality, Venezuela’s charges relate more to alleged
pressures on Great Britain than on Venezuela (B) and, in any event, they are not
such as to invalidate the Treaty (C).
A. THE NOTION OF COERCION IN AN INTERTEMPORAL PERSPECTIVE AND IN ITS
RELATIONSHIP WITH TREATY LAW
7.57 Article 52 of the 1969 Vienna Convention on the Law of Treaties (Coercion
of a State by the threat or use of force) provides:
“A treaty is void if its conclusion has been procured by the threat or
use of force in violation of the principles of international law
embodied in the Charter of the United Nations.”
7.58 The plain meaning of this provision makes clear that the rule cannot be
applied retrospectively. It is conditioned by the prohibition of the threat and use of
force as embodied in the Charter of the United Nations, and, in particular in its
Article 2, paragraph 4, a principle which was not established in international law
at the end of the nineteenth century.440 Moreover, as is well-known, the expression
440 Draft Articles on the Law of Treaties with commentaries, Art. 49, p. 247, para. 7: “The question
of the time element in the application of the article was raised in the comments of Governments
from two points of view: (a) the undesirability of allowing the rule contained in the article to operate
retroactively upon treaties concluded prior to the establishment of the modern law regarding
recourse to the threat or use of force; and (b) the date from which that law should be considered as
having been in operation. The Commission considered that there is no question of the article having
retroactive effects on the validity of treaties concluded prior to the establishment of the modern
law.[440] ‘A juridical fact must be appreciated in the light of the law contemporary with it.’[440] The
present article concerns the conditions for the valid conclusion of a treaty – the conditions, that is,
for the creation of a legal relation by treaty. An evolution of the law governing the conditions for
the carrying out of a legal act does not operate to deprive of validity a legal act already accomplished
in conformity with the law previously in force. The rule codified in the present article cannot
therefore be properly understood as depriving of validity ab initio a peace treaty or other treaty
procured by coercion prior to the establishment of the modern law regarding the threat or use of
force”.
201
“threat or use of force” is not a catch-all phrase applicable to any kind of pressure
but concerns physical force.441
7.59 Plainly, there can be no doubt that the existing rule prohibiting the use of
force in international relations cannot be transposed and implemented in the case
of treaties concluded when the threat or use of force was considered acceptable in
relations between States. The Treaty of Washington, which was concluded in 1897,
predates not only the U.N. Charter, but also the Covenant of the League of Nations
and the Drago-Porter Convention of 18 October 1907.442 As Despagnet observed
in 1894:
“[C]e serait détruire l’efficacité de presque tous les traités, bases
du Droit international, que de permettre à un Etat de s’en dégager
en invoquant la violence exercée contre lui. Tous les auteurs se
See also, Fifth Report on the Law of Treaties by Sir Humphrey Waldock, Special Rapporteur, U.N.
Doc. A/CN.4/183 and Add. 1-4, reprinted in U.N., YBILC 1966/II, U.N. Doc.
A/CN.4/SER.A/1966/Add.1 (1966), pp. 19-20, para. 6 (“Consequently, a peace treaty or other treaty
procured by coercion prior to the emergence of the rule codified in the present article would not,
under the inter-temporal law, be deprived of its validity by the operation of that rule”); Draft Articles
on the Law of Treaties with commentaries, Art. 49, p. 246, para. 1: “The traditional doctrine prior
to the Covenant of the League of Nations was that the validity of a treaty was not affected by the
fact that it had been brought about by the threat or use of force. However, this doctrine was simply
a reflection of the general attitude of international law during that era towards the legality of the use
of force for the settlement of international disputes. With the Covenant and the Pact of Paris there
began to develop a strong body of opinion which held that such treaties should no longer be
recognized as legally valid”.
441 See Third Report by G.G. Fitzmaurice, Special Rapporteur, U.N. doc. A/CN.4.115* (18 Mar.
1958), reprinted in U.N., YBILC 1958/II, U.N. Doc. A/CN.4/SER.A/1958/Add.1 (1958), p. 38 and
39, para. 62.
442 See e.g., Patrick Daillier, Mathias Forteau & Alain Pellet, DROIT INTERNATIONAL PUBLIC (8th
ed., LGDJ, 2009), pp. 370-371, para. 561; Wolfgang Benedek, “Drago-Porter Convention, in
Rüdiger Wolfrum” (1907), Max Planck Encyclopedia of Public International Law, available at
https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199…-
e733?rskey=RvqdZQ&result=1&prd=EPIL (last accessed 22 Feb. 2022).
202
contentent à peu près de cette raison et écartent ainsi la nullité tirée
de la violence.”443
7.60 Similarly, in 1910, in the first edition of his treatise, Oppenheim wrote:
“As a Treaty will lack binding force without real consent, absolute
freedom of action on the part of the contracting parties is required.
It must, however, be understood that circumstances of urgent
distress, such as either defeat in war or the menace of a strong State
to a weak State, are, according to the rules of International Law, not
regarded as excluding the freedom of action of a party consenting
to the terms of a treaty. The phrase ‘freedom of action’ applies only
to the representatives of the contracting States.”444
7.61 And, according to Fauchille, writing in 1926:
“La violence morale, exercée par un Etat puissant sur un Etat petit
et faible ne peut qu'être blâmée, mais elle ne saurait être une cause
de nullité du traité ... Quant à la violence matérielle exercée d’Etat
à Etat, elle ne saurait être davantage une cause de nullité d’un
traité.”445
443 “It would destroy the effectiveness of almost all treaties, the basis of international law, to allow
a State to escape from them by invoking violence against it. All authors are satisfied with this reason
and thus rule out the invalidity of treaties based on violence”. Frantz Despagnet, COURS DE DROIT
INTERNATIONAL PUBLIC (1894), p. 480 (Translation of Guyana); see also John Westlake,
INTERNATIONAL LAW (CUP, 1910), p. 290; or Alexandre Mérignhac, TRAITÉ DE DROIT PUBLIC
INTERNATIONAL (1907), pp. 638-639.
444 Lassa Oppenheim & Ronald Roxburgh, INTERNATIONAL LAW: A TREATISE, Vol. I (1905), p.
525, para. 499.
445 “Moral violence, exercised by a powerful State on a small and weak State, can only be blamed,
but it cannot be a cause of invalidity of the treaty. ... As for material violence exercised from State
to State, it cannot be a cause of invalidity of a treaty either” (Paul Fauchille, TRAITE DE DROIT
INTERNATIONAL PUBLIC, Vol. I, Part III (Rousseau & Cie, 8th ed., 1926), p. 298) (Translation of
Guyana).
203
7.62 In 1935, the commentary of the Harvard Draft Convention on the Law of
Treaties acknowledged that there was a doctrinal trend among writers to distinguish
between the legitimate and illegitimate use of force, but nevertheless indicated that:
“The term ‘duress’ as used in this Convention does not include the
employment of force or coercion by one State against another State
for the purpose of compelling the acceptance of a treaty. The treatymaking
representatives of the latter State may as a result of its defeat
in war or the use of force against it, or as a result of other
circumstances such as a condition of bankruptcy or financial
distress, find themselves under the necessity of giving their consent
to a treaty when they would not otherwise do so. Such indirect
compulsion is not, however, ‘duress’ as the term is used in this
Convention.”446
7.63 It can be safely concluded from the above that today’s rule that coercion,
properly understood, may be a cause for the nullity of a treaty, did not exist in 1897,
when the Treaty of Washington was signed.
B. TO THE EXTENT THAT PRESSURE CAN BE SAID TO HAVE EXISTED, IT WAS
EXERTED ON GREAT BRITAIN
7.64 Whatever the state of the law at the relevant time, an important feature of
the present case is that, to the extent that pressure was exercised, it was brought to
bear not on Venezuela but on Great Britain, and at Venezuela’s request.
446 Draft Convention on the Law of Treaties in AJIL, Vol. XXIV (1935), p. 1152. According to
Article 32, para. (a) of that draft: “Article 32 (a) As the term is used in this Convention, duress
involves the employment of coercion directed against the persons signing a treaty on behalf of a
State or against the persons engaged in ratifying or acceding to a treaty on behalf of a State; provided
that, if the coercion has been directed against a person signing a treaty on behalf of a State and if
with knowledge of this fact the treaty signed has later been ratified by that State without coercion,
the treaty is not to be considered as having been entered into by that State in consequence of duress”.
204
7.65 This was expressly acknowledged by the Venezuelan Council on Foreign
Relations in its so-called “White Paper” of 9 December 2020: “Relying on the
Monroe Doctrine, Venezuela called on the United States of America for its good
offices”.447
7.66 As recalled in Chapter 3, as early as 1888, the Venezuelan chargé d’affaires
in the United States expressed his country’s interest in U.S. intercession with Great
Britain in opposition to the latter’s “unwarranted acts of encroachment” on
Venezuela’s territory. 448
447 ICJ, White Paper of the Venezuelan Council on Foreign Relations (COVRI) regarding the
Pending Case Arbitral Award of 3 October 1899 (Guyana v Venezuela) (9 Dec. 2020), p. 30, para.
52, available at https://covri.com.ve/index.php/2020/12/10/white-paper-of-the-venezuelan…-
on-foreign-relations-covri-regarding-the-pending-case-arbitral-award-of-3-october-1899-
guyana-v-venezuela/.
448 Letter from Venezuelan Chargé d’Affaires in the United States of America, Fr. Antonio Silva,
to Col. George Gibbons, Diplomatic Agent of Venezuela in New York, Doc. 870 (18 Sept. 1888)
available at http://www.guyana.org/Western/1888-1891.html (last accessed 22 Feb. 2022). See
also, subsequent entreaties from Venezuelan government authorities to the United States: Letter
from Mr. Peraza to Mr. Blaine (17 Feb. 1890), reprinted in U.S. Department of State, Papers
Relating to the Foreign Relations of the United States, with the Annual Address of the President
(Transmitted to Congress 1 Dec. 1890) (1891), Doc. 496, available at
https://history.state.gov/historicaldocuments/frus1890/d496 (last accessed 22 Feb. 2022); Letter
from Mr. Scruggs to Mr. Blaine (6 Mar. 1890), reprinted in U.S. Department of State, Papers
Relating to the Foreign Relations of the United States, with the Annual Address of the President
(Transmitted to Congress 1 Dec. 1890) (1891), Doc. 488, available at
https://history.state.gov/historicaldocuments/frus1890/d488 (last accessed 22 Feb. 2022); Letter
from Mr. Peraza to Mr. Blaine (24 Apr. 1890), reprinted in U.S. Department of State, Papers
Relating to the Foreign Relations of the United States, with the Annual Address of the President
(Transmitted to Congress 1 Dec. 1890) (1891), Doc. 497, available at
https://history.state.gov/historicaldocuments/frus1890/d497 (last accessed 22 Feb. 2022); Letter
from Mr. Andrade to Mr. Gresham (31 Mar. 1894), reprinted in U.S. Department of State, Papers
Relating to the Foreign Relations of the United States, with the Annual Address of the President
(Transmitted to Congress 3 Dec. 1894) (1895), Doc. 820, available at
https://history.state.gov/historicaldocuments/frus1894/d820 (last accessed 22 Feb. 2022); Hermann
González Oropeza, S.J. & Pablo Ojer, [Informe que los expertos venezolanos para la cuestión de
límites con Guayana Británica presentan al Gobierno Nacional] Report submitted by the
205
7.67 Two years later, in 1890, N. Bolet Peraza, Venezuelan Minister in the
United States, wrote to James G. Blaine, the then-U.S. Secretary of State, in respect
of Venezuela’s request for “some assurance with regard to the generous steps of
the United States Government designed to put a stop to the conflict in which the
territorial rights of Venezuela are involved by reason of the possession which has
been forcibly taken of a part of Venezuelan Guiana by the Government of Great
Britain.” In that letter, the Venezuelan Ambassador “once more” requested “the
United States Government to use its good offices (which will be strengthened by
its powerful influence) in order to bring about a settlement of the dispute between
Venezuela and Great Britain by the means which international law and the spirit of
modern civilization have provided for such cases”.449 And he concluded:
venezuelan experts to the National Government on the issue of the boundaries with British Guiana
(18 Mar. 1965), p. 32, para. 12. MMG, Vol. IV, Annex 74; Speech of Grover Cleveland: Message
Regarding Venezuelan-British Dispute (17 Dec. 1895), available at https://millercenter.org/thepresidency/
presidential-speeches/december-17-1895-message-regarding-venezuelan-britishdispute
(last accessed 22 Feb. 2022); Nelson M. Blake, “Background of Cleveland’s Venezuelan
Policy”, The American Historical Review, Vol. 47, No. 2 (Jan. 1942), p. 272; R. A. Humphreys,
“Presidential Address: Anglo-American Rivalries and the Venezuela Crisis of 1895”, Transactions
of the Royal Historical Society, Vol. 17 (1967), p. 155; ICJ, White Paper of the Venezuelan Council
on Foreign Relations (COVRI) regarding the Pending Case Arbitral Award of 3 October 1899
(Guyana v Venezuela) (9 Dec. 2020), para. 60, available at
https://covri.com.ve/index.php/2020/12/10/white-paper-of-the-venezuelan…-
covri-regarding-the-pending-case-arbitral-award-of-3-october-1899-guyana-vvenezuela/.
449 Letter from Mr. Peraza to Mr. Blaine (17 Feb. 1890), reprinted in U.S. Department of State,
Papers Relating to the Foreign Relations of the United States, with the Annual Address of the
President (Transmitted to Congress 1 Dec. 1890) (1891), Doc. 496, available at
https://history.state.gov/historicaldocuments/frus1890/d496 (last accessed 22 Feb. 2022) (emphasis
added). See also, reiterating the same request: Letter from Mr. Peraza to Mr. Blaine (24 Apr. 1890),
reprinted in U.S. Department of State, Papers Relating to the Foreign Relations of the United
States, with the Annual Address of the President (Transmitted to Congress 1 Dec. 1890) (1891),
Doc. 497, available at https://history.state.gov/historicaldocuments/frus1890/d497 (last accessed
22 Feb. 2022).
206
“The undersigned therefore feels confident that when Your
Excellency shall have taken into consideration the critical state of
this question, the imminence of a conflict, and the reasons which
the undersigned has had the honor to set forth in the present note,
you will deign to act in compliance with this request, and that you
will inform the Cabinet of St. James that the Washington Cabinet
sincerely desires that the present controversy between Great Britain
and Venezuela may be settled by the means that are now recognized
and made use of by civilized nations for the decision of questions
of this kind in accordance with reason and justice.
The same sentiments and desires were expressed by the President
of the United States in his message of December 3, 1889, and the
undersigned believes that if the idea which they involve were
directly manifested by Your Excellency to the Government of Great
Britain, it would be sufficient to induce that nation to assent to a
peaceful settlement whereby all just rights would be guaranteed; for
the voice of the United States has always been listened to with
deference by the European powers, especially when this nation has
spoken in behalf of the legitimate interests of America, which it has
defined in a doctrine that now forms part of its common law.”450
7.68 In 1894, José Andrade, Head of the Venezuelan Legation to the United
States, wrote to W.Q. Gresham, U.S. Secretary of State, and Seneca Haselton, U.S.
representative in Venezuela, to insist with the Government of the United States on
the latter’s effective and direct interposition in view of Great Britain’s
encroachments on Venezuela’s territorial sovereignty, after having exhausted all
legal means to reach an amicable settlement.451
450 Ibid.
451 Letter from Mr. Andrade to Mr. Gresham (19 Dec. 1894), pp. 282-284. MMG, Vol. III, Annex
29.
207
7.69 The United States responded positively to Venezuela’s request. In
particular, as recalled in Chapter 3, President Cleveland underscored in his message
of 3 December 1894 that he intended to “renew the efforts heretofore made to bring
about a restoration of diplomatic relations between the disputants and to induce a
reference to arbitration”.452 Such intention was endorsed by the Congress which
resolved “[t]hat the President’s suggestion ... namely, that Great Britain and
Venezuela refer their dispute as to boundary limits in Guiana to friendly arbitration
— be most earnestly recommended to the favorable consideration at both parties
in interest”.453
7.70 If there was any pressure or bias on the part of the United States, it is quite
clear that it was in favour of Venezuela and against Great Britain. In 1895, the U.S.
Secretary of State Richard Olney conveyed the President’s views on the boundary
dispute to the U.S. Ambassador to Great Britain:
“[T]he United States is practically sovereign on this continent, and
its fiat is law upon the subjects to which it confines its interposition.
... It is because, in addition to other grounds, its infinite resources,
combined with its isolated position, render it master of the situation
and practically invulnerable as against any or all other powers. ...
Being entitled to resent and resist any sequestration of Venezuelan
soil by Great Britain, it is necessarily entitled to know whether such
sequestration has occurred or is now going on. ... [Unless the British
Government should consent to submit the entire matter to
arbitration] the transaction will be regarded as injurious to the
interests of the people of the United States as well as oppressive in
452 Speech of Grover Cleveland: Message Regarding Venezuelan-British Dispute (3 Dec. 1894),
available at https://millercenter.org/the-presidency/presidential-speeches/december-…-
second-annual-message-second-term (last accessed 7 Feb. 2022). See supra para. 3.16.
453 U.S. Congress, 53rd Session, Joint Resolution, H. Res. 252 (10 Jan. 1895). MMG, Vol. IV,
Annex 81.
208
itself ... the honour and welfare of this country are closely identified
[with the Monroe Doctrine].”454
7.71 Later that year, President Cleveland’s words to the U.S. Congress were
even stronger:
“[T]he dispute has reached such a stage as to make it now incumbent
upon the United States to take measures to determine with sufficient
certainty for its justification what is the true divisional line between
the Republic of Venezuela and British Guiana. The inquiry to that
end should of course be conducted carefully and judicially, and due
weight should be given to all available evidence, records, and facts
in support of the claims of both parties.
In order that such an examination should be prosecuted in a
thorough and satisfactory manner, I suggest that the Congress make
an adequate appropriation for the expenses of a commission, to be
appointed by the Executive, who shall make the necessary
investigation and report upon the matter with the least possible
delay. When such report is made and accepted it will, in my opinion,
be the duty of the United States to resist by every means in its power,
as a wilful aggression upon its rights and interests, the appropriation
by Great Britain of any lands or the exercise of governmental
jurisdiction over any territory which after investigation we have
determined of right belongs to Venezuela.
In making these recommendations I am fully alive to the
responsibility incurred and keenly realize all the consequences that
may follow.
I am, nevertheless, firm in my conviction that while it is a grievous
thing to contemplate the two great English-speaking peoples of the
world as being otherwise than friendly competitors in the onward
454 Letter from Mr. Olney to Mr. Bayard (20 July 1895), reprinted in U.S. Department of State,
Papers Relating to the Foreign Relations of the United States, with the Annual Address of the
President, Part I (Transmitted to Congress 2 Dec. 1895) (1896), p. 550, available at
https://history.state.gov/historicaldocuments/frus1895p1/d527 (last accessed 22 Feb. 2022).
209
march of civilization and strenuous and worthy rivals in all the arts
of peace, there is no calamity which a great nation can invite which
equals that which follows a supine submission to wrong and
injustice and the consequent loss of national self-respect and honor,
beneath which are shielded and defended a people’s safety and
greatness.”455
7.72 The President could hardly have been clearer: either Great Britain would
accept his Commission’s conclusions, or the United States was prepared to use
force. As noted in the Transactions of the Royal Historical Society:
“On the face of it, Cleveland’s message was virtually an ultimatum.
It sounded the ‘note of war’. ‘Nothing is heard’, wrote Pauncefote
to Salisbury, three days later, ‘but the voice of the Jingo bellowing
out defiance to England’. Only a few observers, ex-Governor Long
of Massachusetts, for example, and Pauncefote himself, noted the
velvet glove beneath the gauntlet of mail. The proposed
Commission, thought Long, provided a way out, ‘through which the
whole bubble can fizzle and effervesce’, and Pauncefote, in similar
terms, thought it a ‘fine safety valve’.”456
7.73 In this respect, the analysis made in the 2020 “White Paper” prepared by
the Venezuelan Council on Foreign Relations correctly reflects the situation of
Great Britain:
“The United States Congress unanimously acceded to the request of
President Cleveland and voted 100,000 dollars for the United States
Commission on Boundary between Venezuela and British Guiana,
which was established on 1 January 1896. It was evident that the
455 Speech of Grover Cleveland: Message Regarding Venezuelan-British Dispute (17 Dec. 1895),
available at https://millercenter.org/the-presidency/presidential-speeches/december-…-
message-regarding-venezuelan-british-dispute (last accessed 22 Feb. 2022).
456 R. A. Humphreys, “Presidential Address: Anglo-American Rivalries and the Venezuela Crisis
of 1895”, Transactions of the Royal Historical Society, Vol. 17 (1967), p. 155.
210
report to be made by the Commission might be very embarrassing
for United Kingdom. The British Foreign Office was reluctantly,
but due to the prospect of war with United States that could lead to
the loss of Canada, at the same time when was under the pressure in
South Africa with the Boers, and its relationship with Imperial
Government of Germany was eroding because the Kruger Telegram
(the beginning of the so-called Weltpolitik, the imperialist foreign
policy of the Kaiser Wilhelm II); Lord Salisbury finally agreed to
enter in negotiations for concluding an arbitration treaty on 5 March
1896. The United States Boundary Commission thereupon
disbanded, but presented a report to the President Cleveland on 27
February 1896, which examined the geography of the area and
history of Dutch settlements, and an atlas containing seventy-six
maps. This material was subsequently made available to Venezuela
in order to prepare its case before the future Arbitral Tribunal.”457
7.74 The U.S. pressure was decisive,458 and Venezuela welcomed its efforts. As
President Crespo explained in a message to the Venezuelan Congress on 29 March
1895:
“The American Congress in February last, as a consequence of the
wise advice contained in President Cleveland’s annual message,
passed a resolution to this effect ... The terms of this resolution
disclose the noblest interest in having this long controversy settled
457 ICJ, White Paper of the Venezuelan Council on Foreign Relations (COVRI) regarding the
Pending Case Arbitral Award of 3 October 1899 (Guyana v Venezuela) (9 Dec. 2020), pp. 33-34,
para. 60, available at https://covri.com.ve/index.php/2020/12/10/white-paper-of-the-venezuelan…-
on-foreign-relations-covri-regarding-the-pending-case-arbitral-award-of-3-october-1899-
guyana-v-venezuela/. See also Nelson M. Blake, “Background of Cleveland’s Venezuelan Policy”,
The American Historical Review, Vol. 47, No. 2 (Jan. 1942), p. 272.
458 See Hermann González Oropeza, S.J. & Pablo Ojer, [Informe que los expertos venezolanos para
la cuestión de límites con Guayana Británica presentan al Gobierno Nacional] Report submitted
to the venezuelan experts to the National Government on the issue of the boundaries with British
Guiana (18 Mar. 1965), p. 32, para. 12. MMG, Vol. IV, Annex 74. “Despite successive requests to
the British Government by numerous entities and States asking it to agree to submit the matter to
arbitration, Great Britain resisted until, once again, and decisively, the United States intervened in
1895.”
211
in conformity with the principles of justice and reason. Therein it is
earnestly recommended that the two contending parties adopt the
course indicated by the President of the United States in order
peacefully to settle the dispute, as has been suggested by Venezuela.
The legislative act referred to was approved by both the branches of
the American Congress, and his Excellency President Cleveland
affixed his seal thereto February 21. Such tokens of the spirit of
justice with which the overshadowing question at the Guiana
boundary is studied and considered by the Chief Magistrate and
legislators of the great Republic of the north requires from
Venezuela a significant act of special gratitude which only you can
sanction so as to interpret the thought of the whole republic. I am
sure that this idea will have the most enthusiastic acceptance in the
hearts of the worthy legislators of my country.”459
7.75 The Venezuelan Congress gave its blessing on 5 April 1897.460
7.76 On 12 November 1962, Venezuela’s Foreign Minister speaking before the
U.N. General Assembly, confirmed that the territorial dispute between his country
and Great Britain “gave rise to an extremely grave situation and that the United
States was on the verge of going to war with Great Britain”.461
459 Message from President Joaquín Sinforiano De Jesús Crespo to Congress (29 Mar. 1895),
reprinted in Odeen Ishmael, “Chapter 9 - The Intervention of the United States” in TRAIL OF
DIPLOMACY (GNI Publications, 1998), available at
http://www.guyana.org/features/trail_diplomacy_pt2.html (last accessed 22 Feb. 2022), pp. 133-
134.
460 “Ratified by Venezuela: The Boundary Arbitration Treaty Enthusiastically Indorsed”, The
Indianapolis News (6 Apr. 1897).
461 U.N. General Assembly, 17th Session, Statement of Dr. Marcos Falcón Briceño, Minister for
External Relations of Venezuela, U.N. Doc A/SPC/71 (12 Nov. 1962), p. 9.
212
7.77 Plainly, Venezuela has no standing to complain about the high degree of
pressure exerted by the United States against Great Britain to induce it to submit to
arbitration, in conformity with Venezuela’s wishes. First, as explained above, the
principle of intertemporal law precludes the application of the current rules on the
prohibition of the threat of force to situations that arose at the end of the nineteenth
century. Second, in the present case, Venezuela is precluded from raising such an
argument since the coercion it would complain of was exerted at its own request
and for its own benefit. Nemo auditur propriam turpitudinem allegans or, in the
words of Judge Alfaro’s individual opinion in the Temple of Preah Vihear case:
“the party which by its recognition, its representation, its declaration, its conduct
or its silence has maintained an attitude manifestly contrary to the right it is
claiming before an international tribunal is precluded from claiming that right
(venire contra factum proprium non valet)”.462 Third, while the alleged coercion
potentially affected only Great Britain’s consent, Venezuela is not entitled to make
a claim that Great Britain itself has not made.
C. THE ALLEGED PRESSURES ON VENEZUELA ARE NOT SUCH AS TO
INVALIDATE THE TREATY
7.78 There is no evidence of coercion of Venezuela. The Treaty of Washington
gave it full satisfaction on the essential point which opposed it to Great Britain: the
submission to arbitration of the dispute on the determination of the boundary
between itself and the Colony of British Guiana. As lead counsel for Venezuela,
462 Temple of Preah Vihear (Cambodia v. Thailand), Judgment of 15 June 1962, Separate Opinion
of Vice-President Alfaro, I.C.J. Reports 1962 (hereinafter “Temple of Preah Vihear, Opinion of
Alfaro”), p. 40. See also Vienna Convention on the Law of Treaties, 1151 U.N.T.S. 331 (1969),
entered into force 27 Jan. 1980, Art. 69, para. 3, and, for the case law: Factory at Chorzów,
Jurisdiction, Judgment, 1927, P.C.I.J. Series A, No. 9, p. 31 or Owners of the Tattler (United States)
v. Great Britain, RIAA, Vol. VI, p. 48, 50 (18 Dec. 1920).
213
General Harrison, stated on the 51st day of the hearings: “Venezuela is too glad to
be here with this controversy before this great Tribunal, and it is removed entirely
beyond any consideration of mutual strength”.463
7.79 To be sure, there were diplomatic exchanges between the United States and
Venezuela during which the United States sought to convince Venezuela to accept
certain details of the Compromis. But they by no means went beyond the normal
and usual practice in international relations. This was clearly explained by
Venezuelan President Crespo in his above-quoted Message to the Venezuelan
Congress of 20 February 1897:464
“The Government, in forming its opinion, should naturally take into
consideration the conditions under which the protocol was signed
and presented. One of the signers was the Secretary of State of the
Nation which, fully alive to the grave consequences of its action,
generously interposed in this dispute, seeking an arrangement which
would at once preserve the laws of the National decorum and the
continental integrity. The recourse to arbitration offered itself, and,
although by no means in the manner wished for by Venezuela, was
more consonant than any other with the desires manifested. The
Government deemed it proper to insert in the treaty a provision that
Venezuela should have a voice in the naming of the arbitral tribunal.
As soon as this change was proposed its acceptance was procured.
The action of the United States had produced a result the after
effects or which were, from a moral point of view, indispensably
subject to the effective and powerful prestige of said Nation.
The plan of settlement was presented for the consideration of
Venezuela, with no proposition for co-operative participation,
contrary to the sovereignty and independence of the republic;
463 Boundary between the Colony of British Guiana and the United States of Venezuela, Fifty-First
Day’s Proceedings (20 Sept. 1899) (Harrison), p. 3014. MMG, Vol. IV, Annex 112.
464 See supra paras. 7.32, 7.40.
214
further, as the United States had conducted the negotiations
according to their judgment alone, the definite acceptance of the
bases will always involve for them a sort of friendly responsibility
which will be in every case a guarantee of future harmony between
the two nations represented by the arbitral tribunal. It is eminently
just to recognize the fact that the great Republic has strenuously
endeavored to conduct this matter in the most favorable way, and
the result obtained represents an effort of intelligence and good will
worthy of praise and thanks from us who are so intimately
acquainted with the conditions of this most complicated question.
It is your duty, according to the constitutional law of the republic,
to examine the treaty which the Venezuelan Minister
Plenipotentiary signed in accordance with the bases referred to and
the change proposed by the executive power in regard to the
formation of the arbitral tribunal.”465
7.80 This speech is highly significant. It shows that the Treaty was signed (and
then ratified) by Venezuela with full knowledge of the facts — including the
influence exerted by the United States on the modalities of the constitution of the
Tribunal — and that, on balance, it had more advantages than disadvantages, and
was more advantageous to Venezuela than any other potential outcome. Indeed, as
the President’s speech shows, U.S. influence was not of a kind to inhibit
Venezuela’s freedom of choice.466 To sum up: the 1897 Treaty was the result of a
compromise which was generally favourable to Venezuela — a point the
Venezuelan leadership understood perfectly well. Venezuela also understood that
the Treaty enabled it to achieve its objectives of bringing Great Britain into a
465 Message from President Joaquín Sinforiano De Jesús Crespo to Congress (20 Feb. 1897),
reprinted in Odeen Ishmael, “Chapter 13 - The Arbitral Tribunal and the Award” in TRAIL OF
DIPLOMACY (GNI Publications, 1998), available at
http://www.guyana.org/features/trail_diplomacy_pt3.html#chap13 (last accessed 31 Jan. 2022), pp.
133-134.
466 See supra paras. 7.32, 7.40, 7.79.
215
binding arbitration procedure to determine the land boundary between Venezuela
and British Guiana according to the applicable legal principles, and that the Treaty
owed its existence to the pressure exerted on Great Britain by the United States at
Venezuela’s request. In these circumstances, a claim by Venezuela of treaty nullity
on the basis of coercion can have no merit whatsoever.
216
217
CHAPTER 8
THE ARBITRAL TRIBUNAL PROPERLY EXERCISED ITS
FUNCTIONS AND PRODUCED A LEGALLY VALID AWARD
8.1 As explained in Chapter 3, the Arbitral Tribunal was comprised of five
eminent and distinguished jurists and was properly constituted in accordance with
the terms of the Treaty. In this Chapter, Guyana explains how the Arbitral Tribunal
faithfully exercised — and did not in any respect contravene or exceed — the
powers and responsibilities conferred upon it by the Treaty of Washington. It then
explains why the allegations of collusion, coercion and other alleged grounds of
nullity, which Venezuela advanced for the first time many decades after the 1899
Award was delivered, are entirely without foundation.
I. The Arbitral Tribunal Fulfilled the Functions Conferred upon It under
the Treaty and Neither Exceeded its Authority nor Committed Error
A. THE WRITTEN AND ORAL PROCEEDINGS BEFORE THE ARBITRAL TRIBUNAL
WERE CONDUCTED IN CONFORMITY WITH THE TREATY
1. The Written Proceedings
8.2 Article VI of the Treaty provided that, “within a period not exceeding eight
months from the date of the exchange of the ratifications of this Treaty”, each party
must deliver copies of their printed Case “accompanied by the documents, the
official correspondence, and other evidence on which each side relies” to the
Arbitrators and the Agent of the opposing party. Article IX empowered the
Arbitrators to extend that time limit by up to 30 days. In accordance with those
provisions, on 15 March 1898, Great Britain and Venezuela each submitted their
Cases to the Tribunal. Great Britain’s Case comprised 164 pages of written
submissions plus seven volumes of annexes (running to a total of more than 1,600
218
pages).467 Venezuela’s Case comprised 236 pages of written submissions plus two
volumes of annexes (running to more than 900 pages).468
8.3 Article VII of the Treaty gave each party the right to file “a Counter-Case,
and additional documents, correspondence, and evidence, in reply” within four
months of the submission of the Cases. In accordance with that provision, four
months after they submitted their Cases, on 15 July 1898, the parties submitted
their respective Counter-Cases. Venezuela’s Counter-Case comprised three
volumes (containing nearly 800 pages) and an atlas.469 Great Britain’s Counter-
Case comprised two volumes (of more than 550 pages), together with several
maps.470
8.4 Four months later, on 15 November 1898, the parties filed their final printed
Arguments in accordance with Articles VII and IX of the Treaty. Great Britain’s
Argument comprised a single volume of 55 pages.471 Venezuela’s Argument
comprised two volumes running to a total of 765 pages, with an additional 80 pages
467 Boundary between the Colony of British Guiana and the United States of Venezuela, The Case
of the Government of Her Britannic Majesty (1898) and Boundary between the Colony of British
Guiana and the United States of Venezuela, The Case of the Government of Her Britannic Majesty
(1898), Apps. I-VII.
468 Boundary between the Colony of British Guiana and the United States of Venezuela, The Case
of the United States of Venezuela (1898), Vols. I-III.
469 Boundary between the Colony of British Guiana and the United States of Venezuela, The
Counter-Case of the United States of Venezuela, Vols. I-III.
470 Boundary between the Colony of British Guiana and the United States of Venezuela, The
Counter-Case of the Government of Her Britannic Majesty (1898), Apps. I-VII.
471 Boundary between the Colony of British Guiana and the United States of Venezuela, The
Argument on behalf of Her Britannic Majesty (1898).
219
of supplementary materials.472 On 25 January 1899, at a “preliminary meeting”, the
Tribunal’s President, Prof Martens, confirmed that, “in accordance with the Treaty
the preliminary course of the Arbitration, that is, the exchange of cases, countercases,
and printed arguments, is closed. The Arbitrators are of opinion that the two
Governments have worked in accordance with the Treaty of Washington”.473
2. The Oral Proceedings
8.5 On 15 June 1899, the substantive hearings before the Tribunal began.474
Between 15 June and 27 September 1899, the Tribunal held 54 four-hour sessions
at which Great Britain and Venezuela presented their respective arguments and
evidence. They did so at great length and in meticulous detail. Both sides were
represented by capable and distinguished legal counsel, as identified in Chapter
3.475
8.6 In accordance with Article XI of the Treaty — which required the
Arbitrators to “keep an accurate record of their proceedings” — a verbatim record
of the oral proceedings was produced by a team of shorthand writers and published
contemporaneously. The published record of the entire oral proceedings comprises
more than 3,200 pages. The record reflects the diligence, industry and proficiency
of the parties’ respective counsel. It also demonstrates the Arbitrators’ firm grasp
472 Boundary between the Colony of British Guiana and the United States of Venezuela, The Printed
Argument on behalf of the United States of Venezuela (1898), Vols. I-II.
473 Boundary between the Colony of British Guiana and the United States of Venezuela, First Day’s
Proceedings (25 Jan. 1899), p. 2. MMG, Vol. IV, Annex 96.
474 As explained at paragraph 3.35, on 1 March 1899, Lord Herschell died unexpectedly. He was
duly replaced by Lord Russell of Killowen GCMG.
475 See supra para. 3.40.
220
of the factual and legal issues that were addressed in the parties’ written
submissions, as reflected in their active engagement with — and extensive
questioning of — the oral submissions advanced by counsel for Great Britain and
Venezuela.
8.7 The proceedings before the Tribunal were thorough, exhaustive and fair.
There was no restriction on the length or scope of the parties’ written submissions
or on the evidence they were able to adduce in support of those submissions. The
oral proceedings were divided equally between Great Britain and Venezuela and
each side’s representatives had ample opportunity to respond to all points, evidence
and arguments advanced by the opposing side. In addition to the many hundreds of
pages of written submissions and approximately 200 hours of oral arguments, more
than 2,600 documents were placed before the Tribunal.476 As Sir Richard Webster,
Great Britain’s head counsel, observed, there was a “very vast mass of matter ...
discussed and ... presented to the Tribunal”.477
8.8 There can be no doubt that all of the relevant factual and legal issues were
addressed in copious detail during the written and oral phases of the arbitral
proceedings. Nor can there be any doubt that the equality of arms was preserved.
In his closing address to the Tribunal, former U.S. President Benjamin Harrison,
Venezuela’s head counsel, explained that Venezuela had “present[ed] a full and
476 See Boundary between the Colony of British Guiana and the United States of Venezuela, Fifty-
Sixth Day’s Proceedings (3 Oct. 1899), p. 3238 (Martens). MMG, Vol. IV, Annex 116 (Prof
Martens: “Our special thanks we owe to the Counsel of both Powers, who in their most eloquent
speeches with great wisdom and ability have put before the Tribunal all the arguments, all the facts,
all the documents, which are more than 2650 in number, and thanks to that oral argument the
Tribunal has been able to have a clear view of whole case put before them”.).
477 Boundary between the Colony of British Guiana and the United States of Venezuela, Second
Day’s Proceedings (15 June 1899), p. 9 (Sir Richard Webster). MMG, Vol. IV, Annex 97.
221
complete discussion of every question of law and fact that we thought was in the
case”.478 He also commented on the state of exhaustion of both counsel and
Arbitrators as a result of the length and intensity of the proceedings.479 As one
contemporary news report put it: “No case ever submitted to arbitration has been
more thoroughly and fairly examined than this.”480
B. THE AWARD COMPLIED WITH THE FORMAL REQUIREMENTS CONTAINED IN
THE TREATY
8.9 Following the conclusion of the oral proceedings on 27 September 1899,
the Arbitral Tribunal retired to consider its decision. A period of intensive
deliberations ensued, the content of which is discussed further at paragraphs 8.62
to 8.76, below. A week later, on 3 October 1899, the Tribunal delivered its Award.
As required by Article X of the Treaty, the Award was “made in writing and dated”
and “signed by the Arbitrators who may assent to it”. Although Article V of the
Treaty provided that all questions considered by the Tribunal “shall be determined
by a majority of all the Arbitrators”, the Award was unanimous. It was therefore
signed by all five of the Arbitrators. As required by Article X of the Treaty, the
Award was produced in duplicate, with one copy delivered to the Agent of Great
Britain and one copy delivered to the Agent of Venezuela.
478 Boundary between the Colony of British Guiana and the United States of Venezuela, Fiftieth
Day’s Proceedings (19 Sept. 1899), pp. 2984-2985 (General Harrison). MMG, Vol. IV, Annex 111.
479 See ibid., p. 2981 (General Harrison: “The Counsel who addresses the Tribunal comes to his
work in a frame of weariness of mind and body and he addresses judges who are weary. And not
only so, Mr President, but he has to deal with propositions of law and of fact that have been tossed
from side to side by the Counsel for many weeks.”).
480 “The Venezuela Boundary Award”, The Advocate of Peace (1894-1920), Vol. LXI, No. 10 (Nov.
1899), p. 227.
222
8.10 Accordingly, the form and delivery of the Award fully complied with the
applicable stipulations in the Treaty. Indeed, Venezuela has never disputed that the
Award fully conformed to these requirements.
C. THE AWARD DEMONSTRATES THAT THE ARBITRAL TRIBUNAL FULFILLED
ITS FUNCTIONS AND DID NOT EXCEED ITS POWERS
8.11 As noted above, Article I of the Treaty provided that the function of the
Tribunal was “to determine the boundary-line between the Colony of British
Guiana and the United States of Venezuela”. To this end, Article III of the Treaty
provided that:
“The Tribunal shall investigate and ascertain the extent of the
territories belonging to, or that might lawfully be claimed by, the
United Netherlands or by the Kingdom of Spain respectively at the
time of the acquisition by Great Britain of the Colony of British
Guiana, and shall determine the boundary-line between the Colony
of British Guiana and the United States of Venezuela.”
8.12 The Tribunal’s Award expressly confirms that the Arbitrators did exactly
that. After setting out in full the terms of the Treaty and summarising the process
by which the Arbitrators were appointed, the Award stated:
“And whereas the said Arbitrators have duly entered upon the said
Arbitration, and have duly heard and considered the oral and written
arguments of the Counsel representing respectively Her Majesty the
Queen and the United States of Venezuela, and have impartially
and carefully examined the questions laid before them, and have
investigated and ascertained the extent of the territories belonging
to or that might lawfully be claimed by the United Netherlands or
223
by the Kingdom of Spain respectively at the time of the acquisition
by Great Britain of the Colony of British Guiana.”481
8.13 Thus, all five members of the Tribunal expressly affirmed in the Award that
they had “impartially and carefully” examined the matters which they were
required by the Treaty to examine. Having confirmed this, the Award then
proceeded to set out the Tribunal’s determination of the boundary line between
British Guiana and Venezuela:
“Now we, the undersigned Arbitrators, do hereby make and publish
our decision, determination, and award of, upon, and concerning the
questions submitted to us by the said Treaty of Arbitration, finally
decide, award, and determine that the boundary-line between the
Colony of British Guiana and the United States of Venezuela is as
follows: —
Starting from the coast at Point Playa, the line of boundary shall run
in a straight line to the River Barima at its junction with the River
Mururuma, and thence along the mid-stream of the latter river to its
source, and from that point to the junction of the River Haiowa with
the Amakuru, and thence along the mid-stream of the Amakuru to
its source in the Imataka Ridge, and thence in a south-westerly
direction along the highest ridge of the spur of the Imataka
Mountains to the highest point of the main range of such Imataka
Mountains opposite to the source of the Barima, and thence along
the summit of the main ridge in a south-easterly direction of the
Imataka Mountains to the source of the Acarabisi, and thence along
the mid-stream of the Acarabisi to the Cuyuni, and thence along the
northern bank of the River Cuyuni westward to its junction with the
Wenamu, and thence following the mid-stream of the Wenamu to
its westernmost source, and thence in a direct line to the summit of
Mount Roraima, and from Mount Roraima to the source of the
Cotinga, and along the mid-stream of that river to its junction with
the Takutu, and thence along the mid-stream of the Takutu to its
481 1899 Award, p. 338 (emphasis added).
224
source, thence in a straight line to the westernmost point of the
Akarai Mountains, and thence along the ridge of the Akarai
Mountains to the source of the Corentin called the Cutari River:
Provided always that the line of delimitation fixed by this Award
shall be subject and without prejudice to any questions now
existing, or which may arise, to be determined between the
Government of Her Britannic Majesty and the Republic of Brazil,
or between the latter Republic and the United States of
Venezuela.”482
8.14 Accordingly, it is clear from the face of the Award that the Tribunal fulfilled
the functions and obligations imposed by Article III of the Treaty in addressing the
factual evidence and the legal submissions: first by investigating and ascertaining
the extent of the territories belonging to or that might lawfully be claimed by the
Netherlands or by Spain, respectively, at the time of Great Britain’s acquisition of
British Guiana; and then proceeding to decide, in light of the outcome of that
investigation, the location of the boundary between British Guiana and Venezuela.
It is equally clear from the lengthy verbatim record of the proceedings and other
contemporaneous evidence that, in determining the matters submitted to the
Tribunal, the Arbitrators “ascertain[ed] all facts which they deem[ed] necessary to
a decision of the controversy” and applied the “Rules” set out in Article IV of the
Treaty.483 In so doing, they neither exceeded their authority nor committed any
error. Venezuela has adduced no evidence whatsoever of the presence of either
vice, let alone the kind of clear and convincing evidence that would be required to
invalidate the 1899 Award.
482 1899 Award, p. 338.
483 See supra para. 3.29.
225
II. Venezuela’s Allegations of Corruption, Collusion and Nullity
8.15 As explained in Chapter 4, following the delivery of the Award on 3
October 1899, both Great Britain and Venezuela immediately accepted the validity
of the Award and, for many decades thereafter, embraced it as the “full, perfect,
and final settlement” of the boundary between Venezuela and British Guiana
(including by appointing a Joint Boundary Commission to demarcate the boundary
along the line established by the Award, by entering an express agreement to that
boundary, and by subsequently fixing the tri-junction point with Brazil).484 The
legal consequences of that prolonged acceptance are discussed in Chapter 9. Before
discussing Venezuela’s prolonged acceptance of the Award, however, Guyana
addresses in the remainder of this Chapter the various allegations of corruption,
collusion and other purported grounds of nullity that Venezuela advanced in the
years that followed six decades of acceptance. As Guyana will demonstrate, those
allegations are incoherent and unsupported by any evidence. They are entirely
without substance.
A. THE MALLET-PREVOST MEMORANDUM
8.16 In July 1949 — half a century after the Award was delivered — an
American lawyer, Otto Schoenrich, published an article in the American Journal of
International Law (“the 1949 Article”).485 The 1949 Article contained what was
484 Treaty Between Great Britain and the United States of Venezuela Respecting the Settlement of
the Boundary Between the Colony of British Guiana and the United States of Venezuela, 5 U.K.T.S.
67 (2 Feb. 1897), pp. 9-10, Art. XIII. AG, Annex 1. Article XIII of the Treaty provided: “The High
Contracting Parties engage to consider the result of the proceedings of the Tribunal of Arbitration
as a full, perfect, and final settlement of all the questions referred to the Arbitrators.”
485 Otto Schoenrich, “The Venezuela-British Guiana Boundary Dispute”, The American Journal of
International Law, Vol. 43, No. 3 (July 1949). MMG, Vol. III, Annex 1.
226
claimed to be a reference to the text of a short Memorandum produced by Mr
Mallet-Prevost in February 1944, which had allegedly been “found among his
papers” following his death at the age of 88 on 10 December 1948. The Mallet-
Prevost Memorandum purported to describe certain events that had allegedly taken
place during the course of the Arbitration in 1899 — some forty-five years before
the date when the Memorandum was purportedly dictated by Mr Mallet-Prevost
and half a century before it was posthumously published.
8.17 In particular, as described in Chapter 5, the Mallet-Prevost Memorandum
alleged that, during the Tribunal’s deliberations, Mr Mallet-Prevost had been
summoned to meet with the American Arbitrators, who informed him that the
Tribunal’s President, Prof Martens, had told them that the British Arbitrators were
ready to hold that the boundary followed the Schomburgk Line, but that the
President “is anxious to have a unanimous decision; and if we agree to accept the
line which he proposes he will secure the acquiescence of Lord Russell and Lord
[Justice] Collins and so make the decision unanimous”.486 The American
Arbitrators allegedly sought Mr Mallet-Prevost’s views on whether they should
concur in Prof Martens’ proposed line or file dissenting opinions. After consulting
with his co-counsel, former U.S. President Harrison, Mr Mallet-Prevost “advised
Chief Justice Fuller and Justice Brewer”487 that Venezuela’s position was that they
should concur in the proposal put forward by the President of the Tribunal.
8.18 The Mallet-Prevost Memorandum went on to state that Mr Mallet-Prevost
“became convinced” that during the course of a visit by Prof Martens to England
486 Ibid., p. 529.
487 Ibid., p. 530.
227
during a recess in the arbitral proceedings “a deal had been concluded between
Russia and Great Britain to decide the case along the lines suggested by
Martens”.488 Mr Mallet-Prevost’s purported belief in the existence of a secret
Anglo-Russian “deal” was based solely on the alleged conversation with the
American Arbitrators described above and on a claim that one of the British
Arbitrators, Lord Justice Collins, had exhibited a noticeable “change” in his
demeanour following a recess mid-way through the arbitral proceedings. The
Mallet-Prevost Memorandum did not refer to any actual evidence of a “deal”
between Russia and Great Britain in relation to the outcome of the Arbitration.
8.19 As far as Guyana is aware, the original version of the Mallet-Prevost
Memorandum has never been located or published, and there are no indications
that any other person has seen or read the alleged document. Apart from the 1949
article published by Mr Schoenrich after Mr Mallet-Prevost’s death, there is no
evidence to confirm the existence or authenticity of the Memorandum.
8.20 Quite apart from its questionable provenance, the content of the Mallet-
Prevost Memorandum (as reported in the 1949 Article) contains a number of
obvious and significant errors, which demonstrate that it cannot be relied upon as
an accurate and reliable account of the events which it purports to describe. To give
one illustrative example, the Mallet-Prevost Memorandum describes how, in
January 1899, Mr Mallet-Prevost attended a dinner in London at which he spoke
with Lord Russell about international arbitration. According to the Memorandum,
“From that moment I knew that we could not count upon Lord Russell to decide
488 Ibid., p. 530.
228
the boundary question on the basis of strict rights.”489 However, at the date of that
alleged conversation in January 1899, Lord Russell had no involvement
whatsoever in the Arbitration, as he had not yet been appointed (as noted in Chapter
3, he was only approached and appointed after the sudden and untimely death of
Lord Herschell, which occurred on 1 March 1899). As of January 1899, no one
could have had any reason to expect that Lord Russell might have any involvement
in the Arbitration at any time in the future. Moreover, if there had been any such
conversation between Mr Mallet-Prevost and Lord Russell, it could be expected
that Mr Mallet-Prevost or Venezuela would have objected to the appointment, but
there is no evidence that this occurred. Accordingly, the claim that in January 1899
Mr Mallet-Prevost had formed the view that Lord Russell would not fairly
adjudicate the boundary dispute appears to be as implausible as it is
unsubstantiated.
8.21 Shortly after the 1949 Article was published, a researcher and British
official, Clifton J. Child, produced a forensic critique and rebuttal of the claims
contained in the Mallet-Prevost Memorandum. In an article published in the
American Journal of International Law in 1950, Child drew attention to a number
of demonstrable “major errors” contained in the Memorandum.490 As he observed:
“The fact is, however, that, in January 1899, when Mr. Mallet-
Prevost dined with him, the Lord Chief Justice was in no way
connected with the boundary dispute and had no prospect of being
involved in the arbitration. At that time the arbitrators were M. de
Martens, Chief Justice Fuller, Justice Brewer, Lord Justice Collins
and Lord Herschell — as provided for in Article II of the Anglo-
Venezuelan Treaty of February 2, 1897. As the first British
489 Ibid., p. 529.
490 Clifton J. Child, “The Venezuela-British Guiana Boundary Arbitration of 1899”, American
Journal of International Law, Vol. 44, No. 4 (1950), pp. 682-683. MMG, Vol. III, Annex 3.
229
arbitrator nominated by the Judicial Committee of the British Privy
Council, again in accordance with Article II of the Treaty, Lord
Herschell was, in January, 1899, actively concerned with the
preliminaries of the arbitration, although he was prevented by other
business (as was Chief Justice Fuller) from attending the brief and
formal first meeting of the Tribunal on January 25. And it was only
with his sudden death, after a fall in the street in Washington, D. C.
on March 1, 1899 (i.e., two months after Mr. Mallet-Prevost’s
conversation with Lord Russell), that it became necessary to bring
in another arbitrator to replace him. It was then, and only then, that
Lord Russell became involved in the arbitration, and it is
consequently sheer nonsense for Mr. Mallet-Prevost to suggest that,
from the moment when he dined with the Lord Chief Justice in
January, he knew that he could not count upon the latter to be fair,
and for Judge Schoenrich to adduce this ‘circumstance’ as having
led Mr Mallet-Prevost to the opinion that a ‘deal’ was concluded
behind the scenes between Great Britain and Russia.”491
8.22 Additionally, Child observed that:
“Apart from these errors in regard to the roles of Lord Russell and
Lord Justice Collins, there are minor misstatements of fact in Mr.
Mallet-Prevost’s narrative which also show how badly his memory
must have served him. For instance, he states that after he and Sir
Richard Webster had concluded their speeches ‘the Tribunal
adjourned for a short two weeks holiday.’ Now had he deemed it
worth his while to refresh his recollection by reference to the printed
record, Mr. Mallet-Prevost would have been reminded that the
Tribunal did not adjourn after hearing Sir Richard Webster and
himself, but went straight on to hear the ‘argument’ of Mr. Soley. It
was then, in the very middle of Mr. Soley’s ‘argument,’ that the
Tribunal did adjourn, but only for nine days (August 16-25), and not
for ‘two weeks,’ as stated by Mr. Mallet-Prevost. (This was only
one of the Tribunal’s ten adjournments, but as it was the longest,
491 Ibid., p. 684.
230
although not by very much, we must assume that it was the one
which Mr. Mallet-Prevost had in mind.)”492
8.23 In addition to being replete with factual errors, more of which are discussed
below at paragraphs 8.77 to 8.92, it is equally clear that the alleged author of the
Memorandum, Mr Mallet-Prevost, was not an independent and impartial source.
On the contrary, he was a loyal and impassioned supporter of Venezuela who had
spent many years of his professional life seeking to promote Venezuela’s expansive
claims to the territory held by the Award to belong to British Guiana. In addition
to being one of Venezuela’s four counsel at the 1899 Arbitration, Mr Mallet-
Prevost had also served as Secretary to President Cleveland’s Venezuela Boundary
Commission. In January 1944 (one month before he allegedly authored the Mallet-
Prevost Memorandum), Venezuela conferred upon Mr Mallet-Prevost the Order of
the Liberator — Venezuela’s highest national award. This honour was bestowed
upon Venezuela’s “friend and adviser” in recognition of “the high estimation in
which the Venezuelan people hold and will always hold him” and “to whom
Venezuela owes a long-standing debt”.493 Accordingly, even if the error-filled
Mallet-Prevost Memorandum was authentic — of which there is no independent
documentary or other supporting evidence — it was certainly not reliable or
objective.
492 Ibid., pp. 685-686.
493 Speech by the Venezuelan Ambassador to the United States to the Pan-American Society of the
United States (1944). MG, Vol. II, Annex 9.
231
B. REPORT BY VENEZUELAN EXPERTS TO THE NATIONAL GOVERNMENT OF
VENEZUELA (1965)
8.24 In March 1965, two Venezuelan experts presented a “Report” to the
National Government of Venezuela (“the 1965 Report”).494 In addition to
contending that the Treaty of Washington was void (an argument which Guyana
has already rebutted in Chapter 7), the 1965 Report also contended that the Award
was a nullity on various grounds. The content of the 1965 Report is confused and
repetitive. The clearest summary of the various grounds on which Venezuela
contends that the Award is a nullity can be found in the “Summary of Conclusions”
at the end of the Report.495 In short, the 1965 Report claims that the Award is a
nullity because:
(i) The Award did not contain reasons;
(ii) The Arbitrators “did not take into account the applicable rules of
law, and in, particular, the principle uti possidetis juris; nor did they
make any effort to research as far as the territories which belonged
to either the Netherlands or the Kingdom of Spain at the time of the
acquisition”;
(iii) The Arbitrators “did not decide on how the 50-year prescription
deadline would be calculated, nor did they apply it in accordance
with the Treaty of Arbitration”;
(iv) “Even though the arbitrators were not authorised to do so by the
arbitral agreement, they set and regulated in their award the free
494 Hermann González Oropeza, S.J. & Pablo Ojer, [Informe que los expertos venezolanos para la
cuestión de límites con Guayana Británica presentan al Gobierno Nacional] Report submitted to
the venezuelan experts to the National Government on the issue of the boundaries with British
Guiana (18 Mar. 1965). MMG, Vol. IV, Annex 74.
495 Ibid., p. 12, para. 4.
232
navigation of two bordering rivers, and in particular against
Venezuela”; and
(v) The Award “was the result of a diplomatic compromise”, which
“shows the arbitrators did not take into account the rules of law
contained in the Arbitral Treaty”.496
8.25 The 1965 Report further alleged that “representatives of Great Britain
submitted altered maps (modified in the Colonial Office) to the arbitral Tribunal
which were given decisive importance”.497 It also alleged that the boundary
established by the Award “had been prepared in the Colonial Office in July 1899”
and was “imposed on the American arbitrators by the President of the Tribunal, the
Russian Professor Martens, through coercion”.498 Although not expressly
presented as reasons for nullity, it appears that Venezuela contends that the Award
was null on these grounds too.
8.26 As Guyana explains below, the allegations and criticisms of the Tribunal
and the Award contained in the 1965 Report are entirely meritless.
III. Response to Venezuela’s Allegations of Nullity
A. THE ABSENCE OF REASONS IN THE AWARD DOES NOT RENDER THE AWARD
A NULLITY
8.27 Although the Award did not contain written reasons for the Arbitral
Tribunal’s decision, this feature of the Award was neither unexpected, uncommon
496 Ibid., p. 13, paras. 4(a)-4(e).
497 Ibid., p. 12, para. 5.
498 Ibid., p. 13, para. 6.
233
nor irregular, having regard to the form adopted by other awards of that period.499
The absence of written reasons certainly did not vitiate the validity of the Award.
8.28 First, the Treaty did not contain any requirement for reasons to be provided
in the Award. Nor did the terms of the Treaty provide any basis for inferring such
an obligation. On the contrary, the terms of the Treaty tell against any such
requirement. In particular, it is notable that whereas the Treaty contained detailed
and prescriptive requirements concerning the Tribunal’s responsibilities and the
performance of those responsibilities — including various specific requirements
regarding the form and content of the Award — it said nothing about the
articulation or publication of reasons. In particular:
(i) Article III provided that the Tribunal must investigate and ascertain
the extent of the territories that belonged to, or might lawfully be
claimed by, the Netherlands and Spain at the time when Great
Britain acquired the Colony of British Guiana and must then
determine the boundary-line between British Guiana and Venezuela.
Article III did not require the Tribunal to summarise the course of
that investigation or to describe its outcome in the Award.
(ii) Article IV stipulated that in determining those matters (i.e. the
extent of the territories that belonged to, or might lawfully be
claimed by, the Netherlands and Spain at the date when Great
Britain acquired British Guiana), the Arbitrators must ascertain all
facts which they deem necessary to a decision on the controversy
and must be governed by the particular rules which the parties had
agreed were applicable to the case. Those rules were then expressly
set out. Article IV did not require the Tribunal to state in the Award
which facts the Arbitrators considered necessary to their decision,
nor to explain how they had interpreted and applied the three rules
set out in Article IV.
499 See infra para. 8.31.
234
(iii) Article X contained specific provisions concerning the timing,
content and format of the Tribunal’s Award, but said nothing about
any requirement to provide reasons.
(iv) Article XIII of the Treaty stated that Great Britain and Venezuela
“engage to consider the result of the proceeds of the Tribunal of
Arbitration as a full, perfect, and final settlement of all the
questions referred to the Arbitrators”. The duty to treat “the result”
of the proceedings “as a full, perfect, and final settlement” of the
issues referred to the Tribunal was not in any way made contingent
upon the provision of reasons for that “result”.
(v) The Treaty contained detailed provisions regarding the procedure
and practical arrangements for the Arbitration. These provisions
made no express or implicit reference to the provision of reasons
for the Tribunal’s decision. For example:
a. Article V specified the location where the Arbitrators shall
meet (Paris) and the period within which they must do so
(within 60 days of the submission of the final Arguments
under Article VIII). Article V also specified that, “[a]ll
questions considered by the Tribunal, including the final
decision, shall be determined by a majority of all the
Arbitrators”.
b. Articles VI to VIII contained detailed provisions
concerning the timetable and manner of the filing of the
parties’ respective printed Cases, Counter-Cases and final
Arguments and all accompanying documents, evidence and
correspondence.
c. Article XI required the Arbitrators to “keep an accurate
record of their proceedings” and empowered them to
appoint and employ the necessary officers to assist them.
d. Article XII made provisions for the remuneration of the
Arbitrators, the parties’ Agents and Counsel and for the
payment of expenses connected with the Arbitration.
8.29 The drafters of the Treaty evidently took great care to set out the matters
that were considered to be significant, including in relation to form. Had the
235
drafters intended to require the Tribunal to give reasons for its “final decision”,
then it would have been straightforward to expressly stipulate that the “final
decision” was to be supported by reasons. The absence of any such stipulation,
coupled with the detailed and prescriptive provisions concerning various other
matters regarding the Tribunal’s functions and the form and content of its Award,
necessarily implies that the Treaty did not intend to require the Tribunal to give
reasons for its decision.
8.30 Second, the conclusion that the Tribunal was not required by the Treaty to
provide reasons in the Award is reinforced by the absence of: (a) any evidence of
any contemporaneous expectation that the Tribunal would provide reasons for its
decision; and (b) any contemporaneous criticism concerning the absence of reasons
in the Award. Indeed, following the delivery of the Award, Venezuela expressly
acknowledged that the absence of reasons did not in any way call into question the
validity of the Award. For example, the former Venezuelan foreign minister, Dr
Rafael Seijas, wrote in a report on the Award dated 7 May 1900 that: “As the treaty
which set up the arbitral tribunal did not stipulate any requirement to give reasons
for its decision, omission of the grounds for it does not permit any complaint on
this score.”500
8.31 Third, at the time of the proceedings before the Tribunal it was not
uncommon for international arbitral awards to be produced without reasons. By
way of example:
500 Report of Counsellor Dr Rafael Seijas (4 May 1900), p. 189 (emphasis added). MMG, Vol. IV,
Annex 66.
236
 In 1893, an arbitral tribunal comprising seven distinguished jurists from the
United States, United Kingdom, Canada, France, Italy and Norway
delivered an unreasoned award in the Bering Sea Fisheries Case.501
 In 1897, U.S. President Grover Cleveland delivered an unreasoned award
in the Cerruti Case.502
 In 1902, King Edward VII delivered an unreasoned award in the Argentine-
Chile Boundary Case.503
 In 1904, an arbitral tribunal comprising three arbitrators appointed by the
Presidents of the United States and the Dominican Republic delivered an
unreasoned award in the San Domingo Improvement Company Claims
Case.504
8.32 Nor was there anything unusual about the length of the 1899 Award, which
was entirely consistent with the brevity of many other arbitral awards rendered
during this period. For example:
501 Award between the United States and the United Kingdom relating to the
rights of jurisdiction of United States in the Bering’s sea and the preservation of fur seals, Decision
of 15 August 1893, UNRIAA, Vol. XXVIII, p. 263 (15 Aug. 1893).
502 Award of the President of the United States under the Protocol concluded the eighteenth day of
August, in the year one thousand eight hundred and ninety-four, between the Government of the
Kingdom of Italy and the Government of the Republic of Colombia, UNRIAA, Vol. XI, p. 394 (2
Mar. 1897). MG, Vol. II, Annex 2.
503 Award by His Majesty King Edward VII in the Argentine-Chile Boundary Case, UNRIAA, Vol.
IX, p. 37 (20 Nov. 1902). MG, Vol. II, Annex 5.
504 Award of the Commission of Arbitration Under the Provisions of the Protocol of January 31,
1903, Between the United States of America and the Dominican Republic, for the Settlement of the
Claims of the San Domingo Improvement Company of New York and its Allied Companies,
UNRIAA, Vol. XI, p. 35 (14 July 1904).
237
 The award of Victor-Emmanuel III, the King of Italy, in the Guiana
boundary case between Brazil and Great Britain in 1904 was two and onehalf
pages long.505
 The award in the Barotselend boundary case between Great Britain and
Portugal in 1905 was also two and one-half pages long.506
 The Mixed Commission in the Spadafora case between Italy and Colombia
in 1904 produced an award of just one and one-half pages.507
8.33 The absence of any general obligation to provide reasons for an
international arbitral award in 1899 is also reflected in the discussions that took
place at the 1899 Hague Peace Conference. During the course of the conference,
there were extensive discussions on whether the draft convention that was under
consideration in relation to future arbitral practise should include a duty for reasons
to be provided. The Russian draft arbitral code did not contain any such duty. Such
a duty was in fact proposed by the German delegation, only to be opposed by the
delegations of both Russia and the United States.508 The existence of these
conflicting stances amongst the various delegations at the Hague Peace Conference
505 The Guiana Boundary Case (Brazil v. Great Britain), UNRIAA, Vol. XI, p. 11 (6 June 1904).
506 The Barotseland Boundary Case (Great Britain v. Portugal), UNRIAA, Vol. XI, pp. 67-69 (30
May 1905).
507 Sentence de la Commission Mixte Italo-Colombienne dans l’Affaire de M. Vicente Spadafora
(Italy v. Colombia), UNRIAA, Vol. XI, pp. 9-10 (9 April 1904).
508 See J.B. Scott & Carnegie Endowment for International Peace, THE PROCEEDINGS OF THE HAGUE
PEACE CONFERENCES: TRANSLATION OF THE OFFICIAL TEXTS, Vol. I, The Conference of 1899
(Oxford University Press, 1920), pp. 740-741.
238
demonstrates that there was no clear and settled rule of international law in 1899
requiring reasons to be provided in an arbitral award.509
8.34 It is also notable that, as explained in Chapter 6,510 although the draft
arbitral code produced by the Institut de Droit International in 1875 referred to a
duty to give reasons (see Article 23), a failure to give reasons was not included
among the list of potential grounds of invalidity in Article 27.
8.35 Accordingly, it follows that there was nothing unusual — and certainly
nothing irregular or invalid — about the absence of written reasons for the
Tribunal’s decision in the 1899 Award.
B. THE ARBITRATORS DID NOT FAIL TO TAKE INTO ACCOUNT APPLICABLE
PRINCIPLES OF LAW OR FAIL TO INVESTIGATE AND ASCERTAIN THE EXTENT OF THE
TERRITORIES BELONGING TO THE NETHERLANDS AND SPAIN AT THE DATE OF
GREAT BRITAIN’S “ACQUISITION”
1. Venezuela’s Claim that the Arbitral Tribunal Disregarded the Principle of
“Uti Possidetis Juris”
8.36 Venezuela contends that the Tribunal erred in law by failing to take account
of the principle of “uti possidetis juris”. Venezuela has not explained, however, the
nature of this alleged failure. It is notable that the Treaty of Washington contains
509 It is also notable that in its draft rules of procedure for international arbitration in 1875, the
Institut de Droit International did not include the absence of reasons as a ground for nullity. By
contrast, the International Law Commission’s draft rules of arbitral procedure presented to the UN
General Assembly in 1953 did include the absence of reasons as a possible (but not automatic)
ground for nullity (this proposal was subsequently adopted in the International Law Commission’s
Model Rules on Arbitral Procedure 1958). This development reflects the fact that international law
did not recognise the existence of a duty to give reasons until well after the date of the 1899 Award.
510 See supra para. 6.46.
239
no reference to uti possidetis juris, as part of the applicable law or otherwise. An
alleged “failure” to have regard to such a principle therefore does not violate any
of the terms of the Treaty.
8.37 Although Venezuela has not explained the basis for its complaint regarding
uti possidetis juris, it appears that it may be referring to the special rule adopted by
Spanish colonies when they became independent in the early nineteenth century.
This was the principle that, “the boundaries of the newly established republics
should be the frontiers of the Spanish provinces which they were succeeding”.511
The rule only applied between the former Spanish colonies of Central and South
America and could not confer title unless the territories were already part of
“former Spanish America”,512 which British Guiana plainly was not.
8.38 It is self-evident that the principle could not operate against either the
Netherlands or Great Britain in the absence of agreement to this effect. The Treaty
contains no such agreement. On the contrary, the principle is inconsistent with the
“Rules” expressly set out in Article IV of the Treaty. Venezuela’s contention would
mean, in effect, that the Tribunal was automatically bound to find that the boundary
between British Guiana and Venezuela was whatever the boundary might have
been at the time Venezuela became independent from Spain many decades before
the Treaty.513 However, this would be inconsistent both with Rule (a) (which
511 Arbitral Award Made by the King of Spain on 23 December 1906 (Honduras v. Nicaragua),
Judgment, Dissenting Opinion of Judge Urrutia Holguin, I.C.J. Reports 1960, p. 38.
512 See ibid., p. 38.
513 As Venezuela explained in its Case: “Venezuela on July 5, 1811, declared its independence from
Spain. In 1819 it became merged with New Granada, under the name of ‘Republic of Colombia’.
In 1830 it assumed a separate existence under the name of ‘Republic of Venezuela;’ and finally, on
March 30, 1845, its independence was formally recognized by Spain”. (See Boundary between the
240
provided that, “[a]dverse holding or prescription during a period of fifty years shall
make a good title”) and with Rule (c) (which provided that, “[i]n determining the
boundary-line, if territory of one party may be found by the Tribunal to have been
at the date of this Treaty in the occupation of the subjects or citizens of the other
Party, such effect shall be given to such occupation as reason, justice, the principles
of international law, and the equities of the case shall, in the opinion of the
Tribunal, require”).514
8.39 Venezuela’s argument appears to boil down to a contention that, despite the
absence of any reference to uti possidetis juris in the Treaty, the omission of a
reference to the principle in the 1899 Award rendered the Award a nullity. This
argument is manifestly untenable.
2. Venezuela’s Claim that the Arbitrators Did Not Make any Effort to
Investigate and Ascertain the Extent of the Territories Belonging to the
Netherlands and Spain at the Date of the “Acquisition” of British Guiana by
Great Britain
8.40 Venezuela alleges that the Arbitrators failed to comply with the requirement
in Article III of the Treaty to investigate and ascertain the extent of the territories
belonging to the Netherlands and Spain at the date of Great Britain’s acquisition of
the Colony of British Guiana in 1814. This allegation is unsupported by evidence
and is entirely unsustainable.
Colony of British Guiana and the United States of Venezuela, The Case of the United States of
Venezuela (1898), Vol. I, p. 163. MMG, Vol. IV, Annex 125.
514 Treaty Between Great Britain and the United States of Venezuela Respecting the Settlement of
the Boundary Between the Colony of British Guiana and the United States of Venezuela, 5 U.K.T.S.
67 (2 Feb. 1897). AG, Annex 1.
241
8.41 First, the allegation is categorically disproved by the Award itself, which
was signed by all five Arbitrators and which states in clear and unequivocal terms
that:
“the Said Arbitrators ... have investigated and ascertained the extent
of the territories belonging to or that might lawfully be claimed by
the United Netherlands or by the Kingdom of Spain respectively at
the time of the acquisition by Great Britain of the Colony of British
Guiana”.515
8.42 Venezuela cannot possibly suggest that this clear and unequivocal
statement in the Award is false. The terms of the Award itself are therefore fatal to
its argument.
8.43 Second, the fact that the Tribunal investigated and ascertained this issue is
borne out by an examination of the parties’ written submissions and the verbatim
record of the oral proceedings, which demonstrates that this issue was addressed in
painstaking detail before the Tribunal. As Venezuela’s lead counsel observed, the
Tribunal “had laboriously gone through this long historical inquiry and had traced
the title of the Netherlands and had traced the title of Spain down to 1814”.516 He
added that the parties’ counsel “have searched the records at the Hague and at
Seville and at Madrid in order to set before this Tribunal as fully as they might, the
story of Spanish discovery, of the Dutch war, of the Dutch settlement in Guiana, of
the Treaty of Münster, and all the long story between the years 1648 and 1814”.517
The verbatim record of the oral proceedings shows that Arbitrators paid extremely
515 1899 Award, p. 338.
516 Boundary between the Colony of British Guiana and the United States of Venezuela, Fifty-
Second Day’s Proceedings (21 Sept. 1899), p. 3087 (General Harrison). MMG, Vol. IV, Annex
114.
517 Ibid., p. 3087 (General Harrison).
242
close attention to the parties’ extensive submissions regarding this question and
actively probed and tested the cogency and evidential support for those
submissions.
8.44 Third, contemporaneous documents demonstrate that the Arbitrators’
deliberations focused intensively on this issue. For example, in a letter written just
four days after the Tribunal delivered its Award, Lord Russell explained that during
their deliberations there had been much debate amongst the Arbitrators about “the
fundamental question” of whether “Spain acquired the right to Guiana by discovery
followed by possession of such a kind and extent as to give her a complete title”.518
While Lord Russell considered that there were “plausible grounds” in support of
that argument, he and Lord Justice Collins ultimately considered that this was
“untenable” “in view especially of the Treaties of 1648 (Münster) and of 1714
(Utrecht) and of the conduct of both the Powers subsequent to those Treaties”. On
the other hand, Chief Justice Fuller had “adhered to the Venezuelan contention”,
while Justice Brewer “refus[ed] assent to the Spanish view”, but ultimately
“worked out a line of delimitation in the first instance, which ... could only have
been justified by the substantial adoption of that view”. According to Lord Russell,
Prof Martens ultimately endorsed the view of his British colleagues concerning this
“fundamental question”, but only did so “[a]fter long debate” among the
Arbitrators.519
8.45 Accordingly, Venezuela’s claim that the Tribunal made no effort to
investigate and ascertain the extent of the territories belonging to Spain and the
518 Letter from Lord Russell to Lord Salisbury (7 Oct. 1899), in Papers of 3rd Marquess of Salisbury,
Vol. A/94, Doc. No. 2, p. 126. MMG, Vol. III, Annex 36.
519 Ibid., p. 126.
243
Netherlands at the time of Great Britain’s acquisition of British Guiana is
contradicted directly by the express terms of the unanimous Award. Further, it is
refuted by the contemporaneous record of the written and oral proceedings and the
first-hand accounts of the Arbitrators’ deliberations.
C. THE ARBITRATORS DID NOT FAIL TO COMPLY WITH THE REQUIREMENTS IN
THE TREATY CONCERNING THE CALCULATION AND APPLICATION OF THE 50-YEAR
PRESCRIPTION RULE
8.46 Venezuela alleges that the Arbitrators failed to fulfil the obligation under
Article IV(a) of the 1897 Treaty regarding the application of the rule that adverse
holding or prescription during a period of fifty years shall make a good title. Once
again, Venezuela cites no evidence to support this claim.
8.47 The record of the proceedings before the Tribunal shows that the question
of the interpretation and application of the fifty-year period under Article IV(a) was
fully debated and considered in both the written520 and oral521 phases of the
520 See, for example, Venezuela-British Guiana Boundary Arbitration, The Case of the United States
of Venezuela (1898), Vol. I, pp. 179. MMG, Vol. IV, Annex 126; Venezuela-British Guiana
Boundary Arbitration, The Case of the United States of Venezuela (1898), Vol. I, p. 229. MMG,
Vol. IV, Annex 128; Boundary between the Colony of British Guiana and the United States of
Venezuela, The Printed Argument on behalf of the United States of Venezuela (1898), Vol. I, pp.
21-22. MMG, Vol. IV, Annex 133; Boundary between the Colony of British Guiana and the United
States of Venezuela, The Printed Argument on behalf of the United States of Venezuela (1898),
Vol. I, pp. 32-54. MMG, Vol. IV, Annex 134; Boundary between the Colony of British Guiana and
the United States of Venezuela, The Printed Argument on behalf of the United States of Venezuela
(1898), Vol. II, pp. xvii-xix. MMG, Vol. IV, Annex 136; Report of Counsellor Dr Rafael Seijas (4
May 1900). MMG, Vol. IV, Annex 66; Boundary between the Colony of British Guiana and the
United States of Venezuela, The Argument on behalf of Her Britannic Majesty (1898), pp. 2-3.
MMG, Vol. IV, Annex 132.
521 See, for example, Boundary between the Colony of British Guiana and the United States of
Venezuela, Second Day’s Proceedings (15 June 1899), pp. 17-19, 23-25 (Sir Richard Webster).
MMG, Vol. IV, Annex 98; Boundary between the Colony of British Guiana and the United States
244
proceedings. During the course of the hearings, the Arbitrators posed a significant
number of questions to the parties’ representatives about the meaning and effect of
Rule (a).522 There is no evidence to support Venezuela’s claim that,
notwithstanding the detailed submissions by both sides in relation to the application
and effect of this Rule, the Arbitrators did not consider how the terms of
prescription were to be calculated or otherwise failed to apply the “Rule”.
8.48 Furthermore, while there was a difference of opinion between the British
and Venezuelan counsel regarding the period of years covered by the fifty-year
prescription rule, it was common ground that the interpretation of the Rule was a
matter for the Tribunal. In a letter to Sir Richard Webster dated 22 April 1899, for
example, Mr Mallet-Prevost stated: “As to which may be the correct view, yours
or ours, seems to us to be a proper matter for the Tribunal itself to decide. Such a
decision Venezuela will accept.”523 Once again, Venezuela’s claim that the Award
is a nullity because the Tribunal failed properly to interpret and apply this Rule is
groundless.
of Venezuela, Fifty-Second Day’s Proceedings (21 Sept. 1899), pp. 3092-3097 (General Harrison).
MMG, Vol. IV, Annex 114.
522 See, for example, the questions posed by Chief Justice Fuller and Lord Russell on the second
day of the proceedings: Boundary between the Colony of British Guiana and the United States of
Venezuela, Second Day’s Proceedings, Vol. I (15 June 1899), p. 21 (Chief Justice Fuller), p. 22
(Lord Russell). MMG, Vol. IV, Annex 98.
523 Letter from S. Mallet-Prevost to Sir Richard Webster (22 Apr. 1899), p. 313. MMG, Vol. III,
Annex 32.
245
D. THE ARBITRAL TRIBUNAL DID NOT EXCEED ITS POWERS BY DETERMINING
THE FREE NAVIGATION OF THE BARIMA AND AMAKURA RIVERS
8.49 Venezuela alleges that the Tribunal exceeded its powers by determining in
the Award that “in times of peace the Rivers Amakuru and Barima shall be open
to navigation by the merchant ships of all nations”. This complaint represents a
departure from Venezuela’s contemporaneous approval of this aspect of the
Award. For example, in a diplomatic despatch dated 7 October 1899, Venezuela’s
Ambassador to Great Britain, José Andrade (who had signed the Treaty on behalf
of Venezuela and also happened to be the brother of the then-President of
Venezuela) stated:
“I will say nothing concerning the final clause which declares open
to free navigation by merchant ships of all nations, the rivers Barima
and Amacuro in their English section as in the Venezuelan. Therein
is seen an application of a theory of international law which
wherever it has been put in practice has greatly contributed to the
prosperity of States. Venezuela herself has at times applied it to the
navigation on the Orinoco.”524
8.50 It is true that the Treaty did not expressly require the Tribunal to determine
the question of freedom of navigation in respect of the rivers which traverse the
parties’ territories or which form part of their common boundary. However, the
Tribunal’s determination of this issue in the Award was directly related to the
delimitation of that boundary. This is apparent from the opening words of the ninth
recital in the Award:
524 Letter from the Venezuelan Ambassador to the United Kingdom to the Venezuelan Minister of
Foreign Affairs (7 Oct. 1899), p. 2. MG, Vol. II, Annex 3.
246
“In fixing the above delimitation the Arbitrators considered and
decided that in times of peace”.525
8.51 It is therefore clear that, in interpreting and applying the Treaty, the
Arbitrators considered that the issue of freedom of navigation on the Rivers
Amakura and Barima was a necessary and integral aspect of the boundary
delimitation. This view was in no way unreasonable and cannot plausibly be
characterised as an excess of jurisdiction by the Tribunal. In this regard, it is
relevant to note that the International Court of Justice not infrequently includes
decisions of an ancillary character in judgments determining disputes brought
before it.526
8.52 Furthermore, in its submissions before the Arbitral Tribunal, Venezuela
emphasised the Tribunal’s latitude under the Treaty to use its “judgment and
discretion” to make “adjustments” to “the relations between the two [States]” in
order to “settle the relations of both parties”. For example, Venezuela’s Argument
submitted that the “Rule” enshrined in Article IV(c) of the Treaty:
“recognizes the fact that when the territories of each party shall have
been ascertained by the defining of the true boundary line, it might
be found that the subjects or citizens of one party were at the date
of the treaty actually settled upon territory thus ascertained to
belong to the other. The question would then arise how, with the
greatest fairness both to the State in whose territory such settlers
were found and to the settlers themselves, an adjustment should be
made of the relations between the two; and it was accordingly
provided in the Treaty that the Tribunal should itself finally adjust
525 1899 Award, p. 338.
526 See, for example, Construction of a Road in Costa Rica along the San Juan River (Nicaragua v.
Costa Rica), Judgment, I.C.J. Reports 2015, p. 665.
247
these relations, upon considerations of reason, justice, the principles
of international law and the equities of the particular case. It is not
stated by the Treaty what form of adjustment, if any, is to be adopted
by the Arbitrators in carrying out the provisions of Rule (c). The
whole matter is left to their judgment and discretion. It is clearly
contemplated by the Rule that some provision shall be made to settle
the relations of both parties”.527
8.53 Under the terms of the Award, the Upper Amakura formed part of the
boundary line, while the mouths of both rivers were awarded to Venezuela. In these
circumstances, it was plainly open to the Tribunal, as an ancillary matter and in the
exercise of the “judgment and discretion” which Venezuela recognised it to enjoy,
to determine that there should be free navigation of the two rivers. The fact that
Venezuela made no attempt to impugn the validity of the Award on this basis for
more than 60 years after it was delivered and that the parties consistently respected
the right of free navigation throughout that period shows that the decision was
perceived and accepted, upon its being handed down and for many decades
thereafter, as a reasonable, fair and lawful determination by the Tribunal, in
exercise of the powers granted to it.
E. VENEZUELA’S ALLEGATION THAT GREAT BRITAIN SUBMITTED DOCTORED
MAPS TO THE ARBITRAL TRIBUNAL AND THAT THESE MAPS WERE OF “DECISIVE
IMPORTANCE”
8.54 The 1965 Report asserts that Venezuela has “evidence” that lines marked
in maps dated 1841 and 1842, which were presented to the Tribunal, had been
tampered with by the Colonial Office. Venezuela also alleges that Great Britain
527 Boundary between the Colony of British Guiana and the United States of Venezuela, The Printed
Argument on behalf of the United States of Venezuela (1898), Vol. I, pp. 56-57 (emphasis added).
MMG, Vol. IV, Annex 134.
248
falsely represented that a map of the Schomburgk Line presented to the Tribunal
was a map that had been produced by Schomburgk in 1844. Venezuela has not
provided, however, any particulars in support of its allegations that maps were
tampered with; nor has it explained how and why those maps were supposedly of
“decisive importance” to the Tribunal’s determination regarding the location of the
boundary. Venezuela’s claim that Great Britain deliberately tampered with the
maps, and that it thereby succeeded in deceiving the Tribunal as to the location of
the boundary, is entirely meritless and fails to support any claim of nullity of the
1899 Award.
8.55 First, the authors of the 1965 Report neither adduced nor identified any
actual evidence to support the claims that Great Britain had doctored maps in order
to advance or support its case before the Arbitral Tribunal. Nor has Venezuela
adduced or identified any evidence to this effect in the 57 years since that report
was produced. Venezuela’s claim of “tampering” is founded on nothing more than
bald and unsubstantiated allegations.
8.56 Second, the 1965 Report implies that questions regarding the authenticity
and accuracy of particular maps only emerged sometime after the proceedings
before the Tribunal had concluded. This was not the case. In 1896 — three years
before the arbitral proceedings commenced — Venezuela’s written brief to the
Venezuela Boundary Commission alleged that in 1886 the Colonial Office had
compelled its cartographer to withhold his existing maps of the boundary and
249
directed him to amend retrospectively the depiction of the boundary on certain
other maps while concealing the fact of these changes.528
8.57 Venezuela had therefore already raised the allegation of “tampering”
several years before the 1899 Arbitration. Despite this, Venezuela did not seek to
impugn the validity of the 1899 Award by reference to alleged “tampering” for
more than six decades after it was delivered.
8.58 Third, by the time of the 1899 arbitral proceedings, it was widely
recognised and acknowledged that the maps of the boundary produced in the midto-
late-nineteenth century were frequently inaccurate. During the proceedings
before the Venezuela Boundary Commission, for example, Mr Mallet-Prevost
(who was the Secretary to that Commission) had emphasised that: “All maps of the
region in dispute between British Guiana and Venezuela have been made with an
imperfect and generally very defective knowledge of the country and are therefore
replete with errors”.529 The Report of the Venezuela Boundary Commission
likewise stated that, “It was apparent not merely from the information thus
obtained, but also from an examination of the maps themselves, that there was great
confusion in respect to the lines shown on the several maps. ... The confusion
528 “THE VENEZUELAN BRIEF – Strong Paper Submitted to the Commission by Mr. Storrow –
ANSWER TO THE BRITISH CLAIMS – Based, It Is Said, on a True Divisional Line According
to the Undisputed Evidence – REFUTATION OF POLLOCK’S ARGUMENT – Exposure of the
Inconsistencies of the English Contentions with Respect to the Famous Schomburgk Map”, New
York Times (20 July 1896), p. 494.
529 Sir Geoffrey Meade, Report on the Exposition presented by the Venezuelan Experts (3 Aug.
1965), para. 28 (internal quotations omitted). MMG, Vol. IV, Annex 75.
250
apparent on the face of the maps, even of the later ones, suggested a general lack
of geographical knowledge”.530
8.59 Throughout the proceedings before the Arbitral Tribunal, there was much
discussion and debate about the provenance and accuracy of particular maps relied
on by Great Britain. During the oral hearings, Venezuela’s counsel repeatedly
challenged the reliability of Great Britain’s maps, including by asserting that
particular maps on which Great Britain placed great reliance were “misleading”531
and “untrustworthy”532 and by commenting that there was “utter confusion ... on
530 Report of the United States Venezuelan Border Commission to the President of the United States,
Grover Cleveland (27 Feb. 1897), available at
http://www.guyana.org/features/trail_diplomacy_pt2.html (last accessed 22 Feb. 2022).
531 See Boundary between the Colony of British Guiana and the United States of Venezuela, Twenty-
Eighth Day’s Proceedings (12 Aug. 1899), pp. 1761-1762 (Soley). MMG, Vol. IV, Annex 104
(Venezuela’s counsel stated: “Now here I want to call the attention of the Tribunal for a moment to
the map which my learned friends have been making use of during the whole of the oral argument
of the Attorney General. I do not know what that map represents, or what it is intended to represent.
It has on it a large colored area. Now the purpose of a large colored area and the effect of a large
colored area are to indicate some sort of continuity of possession, or some sort of unity — some
political unity — in the various parts of that area. I mention this fact because the map seems to me
to be exceedingly misleading, and I know how strong the impressions are that are produced by the
constant inspection of a misleading map like that. That map does not represent the colony of British
Guiana. That map does not represent the territory in dispute. It does not represent the British claim
unless the British claim today is the claim that was stated by Sir Thomas Sanderson in the year
1890”.). See also Boundary between the Colony of British Guiana and the United States of
Venezuela, Twenty-Eighth Day’s Proceedings (12 Aug. 1899), p. 1737 (Solely). MMG, Vol. IV,
Annex 103 (Venezuela’s counsel argued that a note in the atlas produced by Great Britain
constituted an “extraordinary confession … by those who have the monopoly of the geography in
this controversy. It means that upon that map … the geographers, or the map-makers, finding that
Schomburgk’s positions on the coast were inaccurate as compared with the positions in the
Admiralty chart … instead of Schomburgk’s positions, moved arbitrarily those positions twenty
minutes to the east. … They do not know now whether they are correct in the interior and so say;
and confess in plain terms that possibly the northern part of the map may be twenty minutes too far
to the east as compared with the southern. Now I say that is a most extraordinary confession”.).
532 See Boundary between the Colony of British Guiana and the United States of Venezuela, Thirty-
Second Day’s Proceedings (25 Aug. 1899), p. 1999 (Soley). MMG, Vol. IV, Annex 105. “Now as
to this first Schomburgk map which was published in the Parliamentary Papers with Lord
251
the subject of longitudes”.533 Accordingly, the Tribunal was well aware of
Venezuela’s criticisms and challenges to the accuracy of Great Britain’s
cartographic evidence and the existence of mistakes in some of the maps on which
the British relied.534 Venezuela’s suggestion that the Tribunal was misled into
placing undue weight on the reliability of British maps, and was unaware of doubts
regarding their accuracy, is therefore without foundation.
8.60 Fourth, the evidence shows that far from seeking to deceive Venezuela and
the Tribunal, Great Britain candidly acknowledged the limitations of the various
maps upon which it relied and proactively drew attention to the amendment to its
erroneous map, which Venezuela now seeks to characterise as an improper and
secret amendment that was concealed from the Tribunal. For example:
 Prior to the start of the oral hearings, the British Agent notified the
Venezuelan Agent that an engraver’s error had been detected in one of the
Palmerston’s letter it has been suggested that it was an imaginary map, that it represented imaginary
localities and imaginary boundaries. I submit, Mr President that that is not the case. With reference
to the longitudes I am free to say, as I said about the longitudes on a much later and more carefully
prepared map, namely the map in the British atlas, they are quite untrustworthy, they are obviously
untrustworthy.”
533 See Boundary between the Colony of British Guiana and the United States of Venezuela, Thirty-
Third Day’s Proceedings (26 Aug. 1899), p. 2063 (Soley). MMG, Vol. IV, Annex 107.
534 The Arbitrators themselves observed that some of the maps contained obvious errors. For
example, the President, Prof Martens, referred to his own “observation…that the maps of the 18th
century have very great mistakes”. See Boundary between the Colony of British Guiana and the
United States of Venezuela, Nineteenth Day’s Proceedings (29 July 1899), p. 1170 (Martens).
MMG, Vol. IV, Annex 102.
252
maps relied on by Great Britain. This matter was brought expressly to the
Tribunal’s attention during the oral phase of the proceedings.535
 In its printed Case, Great Britain expressly drew attention to the fact that
the map in question had been amended in 1886 to correct the error in the
depiction of the boundary;536 this specific passage of Great Britain’s Case
535 See Boundary between the Colony of British Guiana and the United States of Venezuela, Thirty-
Fourth Day’s Proceedings (28 Aug. 1899), p. 2120. MMG, Vol. IV, Annex 108. Sir Richard
Webster expressly highlighted that Great Britain had written to Venezuela to notify it of the mistake
and of the correction of that mistake in the version of the map published in 1886. The following
day, Venezuela’s counsel, Mr Soley confirmed that Great Britain had done this: “Mr President, I
ought to begin today by saying in reference to the question or matter, to which I called attention
yesterday, of the existence of an engraved line on a copy of the map of 1876 in the British atlas,
that I find that the Agent of Venezuela received from the Agent of Great Britain, in the month of
May last, a notice to the effect that an error existed in that map. Owing to some accident or
inadvertence, the information of this fact never reached the counsel for Venezuela, and
consequently, when I spoke yesterday, I spoke without any knowledge that the letter had been
written. I mention this injustice to my learned friends on the other side, although I would call
attention to the fact that my mention of the existence of this engraved line was specifically only in
order that the Tribunal might not be misled by the existence of the line upon the map.” See Boundary
between the Colony of British Guiana and the United States of Venezuela, Thirty-Fifth Day’s
Proceedings (29 Aug. 1899), p. 2149 (Soley). MMG, Vol. IV, Annex 109.
See also Boundary between the Colony of British Guiana and the United States of Venezuela,
Thirty-Second Day’s Proceedings (25 Aug. 1899), pp. 2011-2012 (Soley). MMG, Vol. IV, Annex
106. (“In the year 1886 the Schomburgk line was published on the great Colonial map which was a
change from the map of 1875.”).
536 Boundary between the Colony of British Guiana and the United States of Venezuela, The Case
of the Government of Her Britannic Majesty (1898), p. 144. MMG, Vol. IV, Annex 120 (“When
the British Government was about to issue the Proclamation of 21st October, 1886, [which declared
the Schomburgk line to be the British claim line] their attention was called to the boundary-line
upon Mr. Stanford’s Map of 1875 …. As the line so drawn did not correspond with the real
Schomburgk line, the map was altered so as to show the real line traced by Sir Robert Schomburgk,
and the note upon the map was erased”.).
253
was also expressly drawn to the Tribunal’s attention and quoted verbatim
during the oral phase of the proceedings.537
 Venezuela’s counsel expressly acknowledged Great Britain’s candour. In
Venezuela’s closing submissions, former President Harrison observed that
Great Britain’s counsel, Sir Robert Reid, had “very candidly” told that the
Tribunal that, “We do not know how much probative effect” any of the
maps presented by Great Britain to the Tribunal might have.538
8.61 Fifth, there is no evidence whatsoever that the maps which Venezuela
challenged — during the arbitral proceedings or in the 1965 Report — had any
influence on the Tribunal’s deliberations or the outcome of the Award. Venezuela’s
contention that particular maps were of “decisive importance” to the outcome of
the Award is not supported by any evidence whatsoever.
F. VENEZUELA’S ALLEGATION THAT THE AWARD IS A NULLITY BECAUSE IT
WAS THE PRODUCT OF COERCION AND A “POLITICAL COMPROMISE” OR
“POLITICAL DEAL”
8.62 The Arbitral Tribunal’s deliberations were earnest, intensive and wideranging.
Although there is no official written record of the content of those
confidential discussions, the contemporaneous correspondence, diary entries and
other documents produced by the Arbitrators reflect the breadth and intensity of
the exchanges that took place between them in the period between the end of the
oral proceedings and the delivery of the unanimous Award six days later on 3
537 See Boundary between the Colony of British Guiana and the United States of Venezuela, Thirty-
Fourth Day’s Proceedings (28 Aug. 1899), p. 2119 (Soley). MMG, Vol. IV, Annex 108.
538 Boundary between the Colony of British Guiana and the United States of Venezuela, Fifty-First
Day’s Proceedings (20 Sept. 1899), pp. 3024-3025 (General Harrison). MMG, Vol. IV, Annex 113.
254
October 1899. Those contemporaneous documents also demonstrate that the
Arbitrators had differing views as to where the boundary line should be drawn and
that the Tribunal’s ultimate decision was the product of heated debates between the
Arbitrators and a series of mutual concessions and compromises brokered by the
President, Prof Martens. These deliberations eventually resulted in the emergence
of the settled consensus reflected in the Award, one that reflected compromises
made by the various Arbitrators.
8.63 Contrary to what Venezuela now alleges, there was nothing improper —
nor indeed unusual — about the manner in which the panel of five distinguished
jurists discussed and debated the relative merits of their respective views and, as a
result of that process, ultimately modified their positions to reach a unified final
decision regarding the location of the boundary. Nor is there anything improper or
unusual about the fact that the President of the Tribunal, Prof Martens, sought
successfully to facilitate a unanimous outcome. In particular, in circumstances
where all of the Arbitrators held different initial views as to the correct location of
the boundary, it was inevitable that any final decision on this question would
necessarily involve a degree of compromise and adjustment of those divergent
positions. While there was certainly a debate, an effort to reach a harmony of views,
and ultimately a consensus on where the boundary should be drawn, there was
nothing “political” or untoward about this process: any international adjudicator
will be familiar with the processes of give and take reflected in the course of the
deliberations. Moreover, there is not a shred of evidence that the Award was the
product of any duress or coercion exerted over any of Arbitrators, whether
internally or externally.
255
1. The Tribunal’s Deliberations Show that the Arbitrators Each Held
Different Views as to the Location of the Boundary and that the Final Decision
Was the Result of Intense Debate and Mutual Compromise
8.64 It is apparent that by the end of the 54 days of oral hearings, the members
of the Tribunal had different views as to the extent of the territories which belonged
to (or might lawfully be claimed by Spain and the Netherlands) in 1814 and of the
correct location of the boundary line. As explained at paragraph 8.44, above, in a
letter sent four days after the Tribunal delivered its Award, Lord Russell recounted
the heated debate among the Arbitrators in relation to the “fundamental question”
of whether Spain had acquired a complete title to Guiana through a process of
discovery followed by possession. Lord Russell and Lord Justice Collins had
concluded that the Treaties of Münster (1648) and Utrecht (1714), coupled with
the subsequent actions of Spain and the Netherlands, meant that Spain had not
acquired such title. In contrast, Chief Justice Fuller did consider that Spain had
acquired such title, while Justice Brewer had rejected this proposition but “worked
out a line of delimitation in the first instance, which ... could only have been
justified by the substantial adoption of that view”.539 Following “long debate”
between the Arbitrators, Prof Martens eventually came to share the conclusion held
by Lord Russell and Lord Justice Collins.
8.65 After the Tribunal had resolved that “fundamental question”, Lord Russell
“thought that the concession of the Schomburgk line, substantially, would have
followed as a matter of course”. However, this was not the case and once again the
Arbitrators held divergent views:
539 Letter from Lord Russell to Lord Salisbury (7 Oct. 1899), in Papers of 3rd Marquess of Salisbury,
Vol. A/94, Doc. No. 2, p. 127. MMG, Vol. III, Annex 36.
256
“The Venezuelan arbitrators claimed the control of the waterways
of the Amakura and the Barima down to the Waini and including
the Morawheri, in the first instance, and that a line should be drawn
from the latter point to about the Junction of the Essequibo, Cuyuni
and Mazaruni. This view was subsequently materially modified and
after such weary and wearing discussion the Award line was
unanimously agreed to — the Venezuelan Arbitrators coming in
very reluctantly.”540
8.66 Lord Russell’s letter makes it clear that the Tribunal approached their task
in stages, as required by the Treaty: first, by seeking to ascertain the extent of the
territories that could be claimed by Spain and the Netherlands at the date when
Great Britain acquired British Guiana; and then by establishing the boundary line
in light of that determination. Lord Russell’s correspondence is also entirely
inconsistent with any suggestion that there may have been collusion between Prof
Martens and the British Arbitrators. On the contrary, Lord Russell described how
he and Lord Justice Collins were “grievously disappointed” by the fact that
although Prof Martens had demonstrated “a good grasp of the legal questions
involved and of the facts” and “expressed his opinion on the governing principle
in favour of the British contention”, he “seemed to cast about for lines of
compromise and to think that it was his duty, above all else, to secure, if he could,
a unanimous award”.541
8.67 Prof Martens’ contemporaneous entries in his private diary tell exactly the
same story. In particular, they record and reflect the divergence of views amongst
the Arbitrators, and Prof Martens’ efforts to bridge those differences in order to
540 Ibid., p. 127.
541 Ibid. (emphasis in original).
257
facilitate a unanimous decision — an outcome he considered to be of overriding
importance.
8.68 On 2 October 1899, for example — the day before the Tribunal published
its Award — Prof Martens wrote that he had “managed to persuade 4 arbitrators to
make mutual concessions on the borderline between Venezuela and British
Guiana”.542 He described how, following “an exchange of thoughts on general
issues”, there had been “a fierce debate between 4 arbitrators on the drawing of the
borderline”.543 During the course of that debate, Prof Martens had managed to
persuade both the American and the British Arbitrators to modify their positions,
with the result that ultimately a consensus was reached.
8.69 Prof Martens’ diary entries show that, far from colluding with the British
Arbitrators to procure an outcome favourable to Great Britain, he persuaded the
British Arbitrators to modify their positions by making various concessions that
would result in Great Britain receiving less territory than Lord Russell and Lord
Justice Collins considered it should receive, in particular, less territory than would
have fallen to Great Britain under the Schomburgk Line. Prof Martens described
how Lord Russell “waived his line, ceding a significant area to the Venezuelans.
Further to the south, after my question, he again waived what he demanded”. Prof
Martens added: “Eager to recruit the American arbitrators, I demanded another
concession from the British side ... I suggested that the borderline should start from
542 Private Diary Entries of Prof Fyodor Fyodorovich Martens (4 June 1899-3 Oct. 1899), p. 21
(emphasis added). MMG, Vol. III, Annex 33.
543 Ibid., p. 9.
258
the coast of the sea halfway between Cap Mocotomo and Palaya. The British
agreed, but the Americans did not”.544
8.70 Prof Martens continued his efforts to obtain a compromise between the
British and American Arbitrators:
“On Sunday morning there was another session and again in vain.
Then I decided to get down to this issue in a diplomatic manner. I
went to Chief Justice Fuller and urged him to make another small
concession. The old man likes me a lot and promised to talk to his
colleague Brewer. Then I went to Lord Collins and explained that
the British also need to make another concession. But Collins, with
whom I have been on the best terms so far, flatly refused and said
that he would rather have a simple majority (including me on that
side) than unanimity in return for the new concessions. The next
day, early Monday next morning, I went to Brewer again and
proceeded to persuade him. From him I learned that the dearest
Fuller spent two hours at his place the last night, and after long
deliberations they agreed to make a concession. I was very happy
and thought that the base for an agreement is found. I went to Lord
Collins but found him even more unwilling to make concessions
than the day before. But then I explained to him that it was not in
England’s best interest to force me to take the Americans’ side. This
made him reconsider the issue. However, I told Fuller and Brewer
that if they do not make a concession, then I will have to take the
side of the British à contre-coeur, for I cannot let a scandal to
happen, i.e. the situation when the tribunal cannot decide the case,
as 4 arbitrators cannot agree with each other, and the superarbitrator
refuses to vote!”545
544 Ibid., p. 11.
545 Ibid. (emphasis in original).
259
8.71 It is clear from Prof Martens’ diary records that he sought to persuade all
of his fellow Arbitrators to modify their initial positions in order to enable the
Tribunal to fulfil its duty of determining the boundary line. It is equally clear that
he regarded it as highly desirable for the Tribunal’s determination of those issues
to be a unanimous one. He explained that he had regarded it as his “moral duty to
carry out negotiations to ensure full unanimity between the arbitrators and to
achieve the greatest objective — a unanimous arbitral award”.546
8.72 The fact that the Award represented a compromise between the individual
Arbitrators’ differing positions was neither secret nor unexpected. On the contrary,
a compromise was seen as a likely outcome before the Tribunal delivered its
Award. In a letter written on the eve of the Award, Venezuela’s head counsel,
former President Harrison, wrote that, “We have had a long and severe tussle here
and I do not know how we are to come out of it. We will probably have some sort
of a compromise line”.547
8.73 In an interview given on the day the Award was delivered, Prof Martens
candidly acknowledged that the Award was the product of a compromise between
the various members of the Tribunal:
“[T]he boundary line which is laid down by the judges is a line
based on justice and law. The judges have been actuated by a desire
546 Ibid. (emphasis omitted).
547 Letter from Benjamin Harrison to the Hon. Henry White (3 Oct. 1899), p. 2. MMG, Vol. III,
Annex 35.
260
to establish a compromise in a very complicated question, the origin
of which must be looked for at the end of the fifteenth century”.548
8.74 Justice Brewer likewise explained in an interview on the same day that:
“Until the last moment I believed a decision would be quite
impossible, and it was by the greatest conciliation and mutual
concessions that a compromise was arrived at. If any of us had been
asked to give an award, each would have given one differing in
extent and character. The consequence of this was that we had to
adjust our different views, and finally draw a line running between
what each thought right.”549
8.75 Contemporaneous news reports of the Award noted and welcomed the fact
that the Award had the hallmarks of a compromise. For example, in November
1899, the Advocate of Peace observed that:
“The decision of the tribunal is considered a compromise. It was
made unanimously, the British and American members voting
together. Though appearing to bear the marks of compromise, the
judgment rendered is probably much nearer the right than if it had
sustained entirely the contention of either party. Cases have gone to
arbitration in which the right was wholly on one side, but it was
clearly not so in this case. It has been objected to arbitration that its
outcome is so often a compromise. But this, instead of being an
argument against it, is one of the strongest in support. In nearly all
international controversies of importance right lies more or less on
each side. It is the duty of tribunals, as it is their general practice, to
decide how far this is the case and allow each party its dues. If the
Anglo-Venezuelan tribunal had given the case wholly to Great
548 “M. De Marten’s Opinion”, The New York Times (4 Oct. 1899), p. 606 (emphasis added).
549 “Judge Brewer’s Opinion – Venezuela’s Arbitrator Tells How the Verdict Was Reached – Final
Award A Compromise – There Were Differences on Every Point, but No Real Casting of Votes –
Each Conceded Something”, The New York Times (5. Oct. 1899), pp. 612-613 (emphasis added).
261
Britain or to Venezuela, under the evidence examined, arbitration
would have lost immeasurably in public confidence .... The
decision, which both nations will without doubt loyally accept,
commends itself to the world’s sense of fairness. It gives neither
party ground for exultation over the other or for feeling humiliated
because of entire defeat. It is a great triumph of reason and good
sense, and must do much to strengthen public sentiment in favor of
resort to arbitration even in the most difficult and delicate
controversies”.550
8.76 While the unanimous nature of the Award was unusual at the time, the fact
that it was the product of a degree of compromise between the various members of
the Tribunal was not. As Prof William Cullen Dennis wrote in 1950, “the methods
of the President of the Tribunal in securing a unanimous compromise in this case
... are, in principle, typical of much of the international arbitral procedure of the
past”.551
2. The Award Was Not the Product of Coercion or a Secret Anglo-Russian
“Deal”
8.77 The 1965 Report and the Mallet-Prevost Memorandum allege that the
Award was the product of a secret “deal” of some sort between Great Britain and
Russia and that it was procured through the use of coercion against the American
Arbitrators. These claims are entirely without supporting evidence.
8.78 First, there is no documentary evidence whatsoever that is capable of
supporting this claim of a secret Anglo-Russian deal. There is nothing in the
550 “The Venezuela Boundary Award”, The Advocate of Peace (1894-1920), Vol. LXI, No. 10 (Nov.
1899), pp. 227-228.
551 William Cullen Dennis, “The Venezuela-British Guiana Boundary Arbitration of 1899”,
American Journal of International Law, Vol. 44, No. 4 (Oct. 1950), p. 727.
262
Arbitrators’ contemporaneous correspondence or Prof Martens’ private diary
entries or the wealth of diplomatic documents which have been made public in the
years since the Award was delivered that contains even the slightest hint of a “deal”
between Russia and Great Britain regarding the outcome of the Arbitration or the
location of the boundary between British Guiana and Venezuela. As Child
observed in his convincing rebuttal published a few months after the publication of
the Mallet-Prevost Memorandum, “in the fifteen bound volumes of British Foreign
Office papers relating to the arbitration and in the almost equally voluminous
dispatches and telegrams which passed between London and St. Petersburg during
this period there is not one single document which by the widest stretch of the
imagination could be considered to indicate a ‘deal’ between Great Britain and
Russia of the sort suspected by Mr. Mallet-Prevost”.552 There is “no real evidence
of a ‘deal’ — and, indeed, no conceivable basis for one — between Great Britain
and Russia on the Venezuelan Boundary question”.553
8.79 A similar conclusion was reached by the distinguished Russian
international lawyer Vladimir Pustogarov, who explained in his meticulously
researched biography of Prof Martens that:
“in working with the archival materials of the Russian Ministry of
Foreign Affairs connected with Martens’ activity, not the slightest
trace was discovered of a ‘deal’ between England and Russia or that
552 Clifton J. Child, “The Venezuela-British Guiana Boundary Arbitration of 1899”, American
Journal of International Law, Vol. 44, No. 4 (1950), p. 687. MMG, Vol. III, Annex 3.
553 Ibid., p. 689. Child adds at p. 691 that: “It is surely not without significance that the official
Russian Bolshaya Sovetskaya Entsiklopediya (Moscow, 1928), Vol. X, p. 170, also speaks of ‘the
judgment being substantially in favour of Venezuela.’ By the time this article was written an
intensive study of the Imperial Russian archives had been made, so that, had there been any evidence
to suggest that the Tribunal of Arbitration was improperly influenced in favor of Great Britain, the
writer of the article would certainly have drawn attention to it”.
263
Martens, the President of the Tribunal, received instructions
regarding the case from his own Government. On the contrary, the
diary entries of Martens testify that he acted in the arbitral tribunal
autonomously and independently. They contain no indications at all
of the ‘deal’ ascribed to him”.554
8.80 Apart from outlandish speculation, there is no evidence whatsoever that the
British Government ever contemplated, sought or discussed such a “deal” with
Russia or that any person ever discussed the possibility of such a “deal” with Prof
Martens or either of the British Arbitrators. Beyond this, the suggestion that two of
the most senior and respected judges in Great Britain and one of the world’s most
eminent international jurists would have corruptly colluded to impose the terms of
a secret political “deal” on two of the United States’ most senior judges is, in the
absence of any supporting evidence whatsoever, utterly fanciful.
8.81 Second, the contemporaneous records discussed at paragraphs 8.64 to 8.76,
above, belie any suggestion that Prof Martens was seeking to impose the terms of
a “deal” arranged in secret by the Governments of Great Britain and Russia. On the
contrary, it is apparent that the Tribunal’s deliberations were intensive and sincere;
that the Arbitrators each held different views as to the merits of the parties’ cases
and the correct location of the boundary; and that Prof Martens’ overriding aim
was to bridge these differences in order to achieve a unanimous decision. Prof
Martens’ diaries show that it was a desire for unanimity, rather than a desire for the
delimitation of the boundary along a particular predetermined line, that underlay
his successful attempts to broker agreement amongst the Arbitrators.
554 Vladimir Vasilevich Pustogarov & William E. Butler, OUR MARTENS – F.F. MARTENS,
INTERNATIONAL LAWYER AND ARCHITECT OF PEACE (Kluwer Law International, 2000), pp. 210-
211.
264
8.82 Third, the contemporaneous records also show that the British Arbitrators,
Lord Russell and Lord Justice Collins, were persuaded to make substantial
concessions during the course of the Tribunal’s deliberations and that they were
dissatisfied and frustrated about this. Indeed, Prof Martens described how he had
“persistently demanded they had to make concessions to the Americans” and had
successfully persuaded the British Arbitrators to “waive” and modify their
positions during the course of the deliberations.555
8.83 Far from the British Arbitrators colluding with Prof Martens, Lord Russell
and Lord Justice Collins “were apparently angry that 1) under my influence they
had to waive something that as they considered already belonged to them and 2)
that due to the unanimity which I persistently demanded they had to make
concessions to the Americans”.556 Nevertheless, Prof Martens persuaded them to
do so. In his words:
“Chief Justice Fuller took the floor and suggested his line .... The
British protested and strongly refused to waive their line. Having
listened to their debate and wrangling, in the end I offered a
compromise line from Cap Palaya and down. Due to my personal
influence and persuasion, both Americans accepted my suggestion.
Finally, when both British saw that I was on the American side, they
also agreed to my line. I was extremely happy about my triumph of
having a unanimous arbitral award, despite the complete opposition
of interests, views and law systems of both parties.”557
555 Private Diary Entries of Prof Fyodor Fyodorovich Martens (4 June 1899-3 Oct. 1899), p. 10.
MMG, Vol. III, Annex 33.
556 Ibid.
557 Ibid., pp. 11-12.
265
8.84 All of this contemporaneous evidence contradicts the fantastical suggestion
that the British Arbitrators knowingly colluded with Prof Martens to impose the
terms of a secret “deal” agreed between Great Britain and Russia. On the contrary,
it is clear that the British Arbitrators considered that the boundary line should have
given more territory to British Guiana, and they were frustrated that Prof Martens
did not share or support this view and that the Award did not, in this way, reflect
it. It is equally clear that, far from being compelled to accept a pre-ordained
outcome that was prejudicial to Venezuela, the American Arbitrators succeeded in
persuading their colleagues on the Tribunal to accept a boundary line that was
significantly less favourable to Great Britain than the line sought by Great Britain
throughout the Arbitration.
8.85 Fourth (and related to the point above), the evidence shows that Prof
Martens’ efforts to broker a unanimous outcome were undertaken entirely
independently and were not in furtherance of a conspiracy with the British
Arbitrators. This is further confirmed by a letter sent by Lord Russell shortly after
the Award was delivered, which reported that:
“I am sorry to be obliged further to say that he intimated to L.J.
Collins, in a private interview, while urging a reduction of the
British claims, that if we did not reduce them he might be obliged
in order to secure the adhesion of the Venezuelan Arbitrators to
agree to a line which might not be just to Great Britain. I have no
doubt he spoke in an opposite sense to the Venezuelan arbitrators,
and fear of possibly a much worse line was the inducement to them
to assent to the Award in its present shape. However this may be I
need not say the revelation of Mr. de Martens state of mind was
most disquieting.”558
558 Letter from Lord Russell to Lord Salisbury (7 Oct. 1899), in Papers of 3rd Marquess of Salisbury,
Vol. A/94, Doc. No. 2, p. 127. MMG, Vol. III, Annex 36.
266
8.86 The suggestion that the British Arbitrators actively colluded with Prof
Martens to foist the outcome of an Anglo-Russian “deal” on the American
Arbitrators is manifestly inconsistent with the content and tenor of this private
correspondence. On the contrary, the contemporaneous documentary evidence
demonstrates that the unanimous nature of the Award was the product of Prof
Martens’ independent and autonomous efforts to procure concessions from all of
his fellow Arbitrators.
8.87 Fifth, the “evidence” cited in the Mallet-Prevost Memorandum in support
of the claim of a secret “deal” does not withstand scrutiny. The Memorandum
alleges that during a recess in August 1899, “the two British arbitrators returned to
England and took Mr Martens with them”, and that “during Martens’ visit ... a deal
had been concluded between Russia and Great Britain”. The allegation that a deal
must have been concluded rests almost entirely on speculation as to the cause of a
supposed “noticeable” change in the demeanour of Lord Justice Collins after the
recess. According to the Mallet-Prevost Memorandum, whereas before the recess
Lord Justice Collins “gave the impression that he was leaning toward the side of
Venezuela”, following the recess he “asked very few questions and his whole
attitude was entirely different from what it had been. It looked to us … as though
something must have happened in London to bring about the change”.559 The
Memorandum speculated that this supposed “change” was the result of the fact that,
“during Martens’ visit to England a deal had been concluded between Russia and
Great Britain to decide the case along the lines suggested by Martens and that
559 Otto Schoenrich, “The Venezuela-British Guiana Boundary Dispute”, The American Journal of
International Law, Vol. 43, No. 3 (July 1949), p. 529. MMG, Vol. III, Annex 1.
267
pressure to that end had in some way been exerted on Collins to follow that
course”.560
8.88 This speculation is not supported by any evidence. Anyone involved in
international legal proceedings understands the need to avoid forming a view as to
the likely dispositions of a judge or arbitrator on the basis of their demeanour or,
even, any questions that may be asked. Moreover:
(i) While the evidence establishes that Lord Russell did return to
England during the recess in question, there is no evidence that
either Lord Justice Collins or Prof Martens went there. Given the
degree of public interest in the 1899 Arbitration, it is most unlikely
that, if they had travelled to England during the recess, this fact
would have gone unreported by the press (which assiduously
reported on the movements and activities of the members of the
Tribunal).561 Moreover, it is notable that during the period when
the “deal” was alleged to have been concluded, both the Prime
Minister, Lord Salisbury, and the British Attorney-General, were
560 Ibid., p. 530.
561 As Child explained: “In the case of Lord Russell … there is confirmation in the London Times
of August 18, 1899, Court Circular (page 4), that ‘the Lord Chief Justice (Lord Russell of Killowen)
returned from Paris yesterday to his country house, Tadworth Court, near Epsom.’ There is,
however, no mention of the movements of Lord Justice Collins. Nor is it recorded that M. de
Martens accompanied Lord Russell. In fact, there is no mention of M. de Martens having visited
Great Britain at all, although M. de Martens was very much in the public eye at the time, not only
as President of the Tribunal, but as a prominent figure at the First Hague Conference; so that it
seems hardly likely that the Times would have ignored him if it had been known that he was
returning with Lord Russell. The absence of any mention of the movements of Lord Justice Collins
is also remarkable because there is a full account of the movements of the others concerned in the
arbitration. For instance, the Times of August 19 (Court Circular, p. 7) reported that Sir Robert Reid,
one of the Counsel for Great Britain, had ‘returned to his country house at Kingsdown, near Walmer,
from Paris’; and the Times of August 18 (Court Circular, p. 4) likewise reported that the Attorney
General, Sir Richard Webster, had ‘left Paris for Switzerland for a short holiday’”. Clifton J. Child,
“The Venezuela-British Guiana Boundary Arbitration of 1899”, American Journal of International
Law, Vol. 44, No. 4 (1950), pp. 687-688 (emphasis in original). MMG, Vol. III, Annex 3.
268
away (the former with his seriously ill wife, the latter on holiday in
Switzerland).562
(ii) The claim that there was a sudden and noticeable “change” in Lord
Justice Collins’ demeanour and attitude is not borne out by the
verbatim record of the oral proceedings. Contrary to the account
given in the Mallet-Prevost Memorandum, Lord Justice Collins did
not give any indication that he was “leaning” in favour of either
party at any stage during the proceedings. Nor was there any
tangible change in the nature or frequency of his interventions
before and after the recess in question, or in the direction that may
be implied in any of those interventions. As Mr. Clifton Child
explains in his convincing response to the 1949 Article:
“1. Taking his recorded remarks as a whole, Lord Justice
Collins gave no tangible indication that he was leaning
toward the side of Venezuela or, indeed, toward the side
of Great Britain, either before or after the crucial recess.
He allowed Lord Russell to do the greater part of the
questioning during Sir Richard Webster's opening
speech for Great Britain (June 15-July 13). He followed
Mr. Mallet-Prevost with a number of critical questions
and observations during the latter’s opening speech for
Venezuela (July 21-August 10), mildly rebuking him on
July 24 for the manner in which he presented his
evidence. He gave the same alert attention to the ensuing
speeches (Mr. Soley, August 12-29; Sir Robert Reid,
August 30-September 4; Mr. G. R. Askwith, September
5-7; General Tracy, September 7-15; Sir Richard
Webster, September 15-19; and General Harrison,
562 As Prof Child observed: “But supposing that M. de Martens was taken to England unnoticed by
the press in order to participate in a ‘deal’ between Great Britain and Russia, is it likely that the
leading British Counsel and the Law Officer of the British Crown most intimately concerned with
the handling of the British case — Her Majesty’s Attorney General — would have chosen this
particular moment to go off in the opposite direction to Switzerland for a holiday? And would Lord
Salisbury, who was following the proceedings with the utmost interest, also have chosen this
particular time to retire to Walmer Castle in order to be with the Marchioness (then recovering from
a serious illness), so that he was right out of the picture until the Queen summoned him to Osborne
on August 24?” Ibid., p. 688.
269
September 19-27). He questioned the British Counsel,
Sir Robert Reid and Mr. Askwith, as frequently as he
questioned General Tracy, with whom he had long
exchanges on September 12 over the latter's
interpretation of the Treaty of Münster. Both he and Lord
Russell continued to put searching questions to Sir
Richard Webster during the latter's summing up. On the
other hand, his interruptions during General Harrison’s
final speech were on the whole not unhelpful to the latter
in rounding off the case for Venezuela.
2. Lord Justice Collins’ questions and interjections
varied in number from 0 to 30 per session before the
recess, except on July 31 and August 3, when they
numbered 36 and 72 respectively (during Mr. Mallet-
Prevost's own speech). They varied from 0 to 29 per
session after the recess, the total reaching 29 during the
first session after the recess, when the change in him
would presumably have been most noticeable had he
suddenly become taciturn and listless (as Judge
Schoenrich puts it).
3. After the recess, as indeed before, Lord Justice Collins
tended to ask as many questions as Chief Justice Fuller
and Justice Brewer”.563
8.89 As explained at paragraphs 8.20 to 8.22, above, the Mallet-Prevost
Memorandum was replete with demonstrable factual errors.
8.90 Sixth, the relationship between Great Britain and Russia at the time of the
Arbitration was such that a “deal” of the type alleged by the Mallet-Prevost
Memorandum would have been diplomatically and politically unlikely. In
563 Clifton J. Child, “The Venezuela-British Guiana Boundary Arbitration of 1899”, American
Journal of International Law, Vol. 44, No. 4 (1950), p. 685 (internal quotations omitted). MMG,
Vol. III, Annex 3.
270
particular, in 1899 tensions were running high between Great Britain and Russia as
a result of the Transvaal crisis. The state of that relationship was reflected in a
report produced by the First Secretary at the German Embassy in St. Petersburg,
who stated that there was no “scope within the framework of Russian policy — or,
as far as I can imagine, within that of English policy — [for the two countries] to
reach agreement and bind themselves in writing on general political questions of
this nature”.564 As Child correctly observed in 1950, “Had Mr. Mallet-Prevost
reflected for a moment upon the state of relations between Great Britain and Russia
in the summer of 1899 he must inevitably have realized how difficult, if not
impossible, from a political point of view, a ‘deal’ between the two countries would
have been”.565
8.91 Seventh, the allegation of a “political deal” is also inconsistent with the
outcome of the Award. Had Great Britain intended to procure a particular outcome
in the Arbitration through a clandestine deal with Russia, then that outcome would
surely not be one which (in the words of the Mallet-Prevost Memorandum) “gave
to Venezuela the most important strategic point at issue”. During the hearing before
the Tribunal, Venezuela’s counsel emphasised that “[t]he importance of the
Orinoco to Venezuela is so great and so universally acknowledged”.566 The
564 Ibid., p. 688.
565 Ibid.
566 Boundary between the Colony of British Guiana and the United States of Venezuela, Forty-Third
Day’s Proceedings, Vol. IX (11 Sept. 1899), p. 2595 (Tracy). MMG, Vol. IV, Annex 110. See also
Mr Mallet-Prevost’s statement that: “so far as Venezuela is concerned, the taking possession by
Great Britain of the mouth of the Orinoco involves her political and her commercial independence,
and if this Tribunal were called upon to decide no other question, that point alone is pregnant with
tremendous meaning to the future of Venezuela” (Boundary between the Colony of British Guiana
and the United States of Venezuela, Fifteenth Day’s Proceedings (21 July 1899), p. 867). MMG,
Vol. IV, Annex 99.
271
strategic importance of control over the mouth of the Orinoco was also highlighted
by members of the Tribunal.567 In an interview on the day the Award was handed
down, former President Harrison and Mr Mallet-Prevost similarly hailed the fact
that “[n]o portion of the entire territory possessed more strategic value … both from
a commercial and a military standpoint” as the mouth of the Orinoco River.568 The
fact that the Award left Venezuela with the mouth of the Orinoco River — a
valuable and prized strategic asset — is incompatible with any suggestion that the
Award was the result of a secret deal designed to further Great Britain’s interests
at the expense of Venezuela’s.
567 See for example Lord Russell’s observations that, “the importance to Venezuela of the command
of the Orinoco is obvious. It does not seem to me to need argument” and that, “As more than one
member of the court has intimated, it is impossible not to see the command of the river is important”.
Boundary between the Colony of British Guiana and the United States of Venezuela, Nineteenth
Day’s Proceedings (29 July 1899), p. 1119. MMG, Vol. IV, Annex 100. Boundary between the
Colony of British Guiana and the United States of Venezuela, Nineteenth Day’s Proceedings (29
July 1899), p. 1124. MMG, Vol. IV, Annex 101.
568 Former President Harrison and Mr Mallet-Prevost were reported to have stated: “Within the
Schomburgk line lay the Amakuru River and Point Barima, the latter forming the southern entrance
to the great mouth of the Orinoco. No portion of the entire territory possessed more strategic value
than this, both from a commercial and a military standpoint, and its possession by Great Britain was
most jealously guarded. This point had been awarded to Venezuela, and along with it a strip of coast
about 50 miles in length, giving to Venezuela the entire control of the Orinoco River. In the interior
another long tract to the east of the Schomburgk line, some 3,000 square miles in extent had also
been awarded to Venezuela, and this, by a decision in which the British arbitrators had themselves
concurred, the position taken up by the British Government until 1895 had been shown to be without
foundation. This in no way expressed the extent of Venezuela’s victory. Great Britain had put
forward a claim to more than 30,000 square miles of territory west of the Schomburgk line, and it
was this territory which in 1890 she was disposed to submit to arbitration. Every foot of this territory
had been awarded to Venezuela”. “Declarations from Mallet-Prevost and General Harrison,
Venezuelan’s Agents before the 1899 Tribunal”, The Times (4 Oct. 1899), p. 612.
272
8.92 For all these reasons, Venezuela’s claim that the outcome of the 1899
Arbitration was the product of a secret “deal” between Great Britain and Russia is
manifestly without foundation.
8.93 Finally, as shown throughout this Chapter, Venezuela’s contention that the
Award is a nullity is founded entirely on a series of allegations, which are
incoherent, unsupported by any evidence and, in many respects, nothing more than
outlandish conspiracy theories. Venezuela’s criticisms are devoid of any merit and
there is no doubt that the Award was, and is, a valid, binding and final
determination of the location of the boundary between Venezuela and Guyana.
Venezuela itself manifested this view for more than 60 years, the legal
consequences of which are discussed in the following Chapter.
273
CHAPTER 9
THE LEGAL CONSEQUENCES OF VENEZUELA’S PROLONGED
ACCEPTANCE OF THE AWARD AND THE BOUNDARY
9.1 The arguments made in the previous Chapters fully establish the validity of
the 1899 Award, which constituted a perfectly valid juridical act at the time it was
delivered and thereafter and, for that reason, continues to be binding on Venezuela
(and Guyana). That alone justifies a finding by the Court that the Award is valid,
final and binding on the parties and that the international boundary fixed by the
Award is equally final and binding on them, as Guyana has requested. However,
there is an additional reason why the boundary fixed by the Award is not subject
to challenge: Venezuela’s express and enduring acceptance of the Award and of
the resulting boundary. Indeed, as Chapter 4 recalled in detail, for more than six
decades, between 1899 and 1962, Venezuela unreservedly and repeatedly accepted
the Arbitral Award and the boundary that was fixed by the Arbitral Tribunal.
Further, Venezuela acted upon and implemented the Award and accepted the
boundary that resulted from it, by taking part in a lengthy and consensual
demarcation process and by ratifying the 1905 Boundary Agreement with Great
Britain.
9.2 Venezuela’s acceptance of the Award emanated from the highest and most
directly concerned authorities in the State. As noted by the ILC in Guiding
Principle n° 4 in its 2006 Report on Guiding Principles Applicable to Unilateral
Declarations of States Capable of Creating Legal Obligations: “By virtue of their
functions, heads of State, heads of Government and ministers for foreign affairs are
274
competent to formulate such declarations.”569 Moreover, Venezuela’s declarations
clearly manifested the State’s intention to be bound — all the more so given that
they were not necessary in view of the self-sufficient and binding character of the
Award itself.570 Finally, Venezuela’s acceptance of the Award was made in full
knowledge of its content and form.
9.3 Therefore, Venezuela’s prolonged acceptance of the Award and of its
outcome in regard to the boundary with British Guiana is itself a sufficient basis
for confirming the validity of the Award and the finality of the resulting boundary.
Because Venezuela’s nullity contention was raised 63 years after the Award — and
some thirteen years after the Mallet-Prevost Memorandum — it can have no legal
569 ILC, U.N. General Assembly, 58th Session, Guiding Principles Applicable to Unilateral
Declarations of States Capable of Creating Legal Obligations, U.N. Doc. A/61/10 (2006), p. 372.
See also Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic
Republic of the Congo v. Rwanda), Jurisdiction of the Court and Admissibility of the Application,
Judgment, I.C.J. Reports 2006, p. 27, para. 46 and the cited case-law. See also Maritime
Delimitation in the Indian Ocean, p. 24, para. 48.
As the Court also recently recalled:
“As the Court stated in the Georgia v. Russian Federation case, ‘in general, in international
law and practice, it is the Executive of the State that represents the State in its international
relations and speaks for it at the international level (Armed Activities on the Territory of the
Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction
and Admissibility, Judgment, I.C.J. Reports 2006, p. 27, paras. 46‑47). Accordingly, primary
attention will be given to statements made or endorsed by the Executives of the two Parties.’
(Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J.
Reports 2011 (I), p. 87, para. 37).”
(Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v.
Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2016, pp. 47-38 para. 96.)
570 See Chapter 6 — The 1899 Award Was Intended to Be Final and Binding, and Is Entitled to a
Presumption of Validity.
275
significance. Under the circumstances, Venezuela’s prolonged acceptance of the
Award and of its outcome are legally determinative for two reasons.
9.4 First, the prolonged acceptance of the Award as such had the effect of
curing any legal defect that might once have afflicted it (Guyana insists, and has
already demonstrated, that there was no such defect), so that, by 1962, Venezuela’s
nullity claim had lost any possible legal basis. To that extent, Venezuela had lost
the substantive right to raise such claim (A). The Court is competent to decide on
that issue because it “has jurisdiction to entertain Guyana’s claims concerning the
validity of the 1899 Award”.571
9.5 Second, the prolonged acceptance of the outcome of the Award, in
particular in the form of the 1905 Agreement, had the effect of grounding the
territorial delimitation effectuated by the Award on a separate legal basis, which
remains unaffected by any defect in the Award that had not been duly redeemed by
1962 (B). The Court is also competent to decide on that alternative issue because,
as recalled in Chapter 1, its jurisdiction extends to “the related question of the
definitive settlement of the dispute regarding the land boundary between the
territories of the Parties”.572
9.6 The Court has thus the power to address the legal significance and
consequences of Venezuela’s prolonged acceptance of the Award and of its
outcome. However, before developing this contention, Guyana wishes to make it
clear that those are subsidiary arguments, which would only need to be addressed
571 Jurisdiction Judgment, para. 137.
572 Ibid.
276
if, by some improbable possibility, the Court were to consider that the Award is
vitiated ab initio by a defect that could raise doubts as to its validity. Thus, the
second prong of the Court’s jurisdiction as determined by the Judgment of 18
December 2020 would not need to be exercised if Venezuela’s nullity contention
is rejected, as it should be.
The Legal Effect of the Prolonged Acceptance of the Award on the Award
Itself and on the Right of Venezuela to Raise a Nullity Claim
9.7 As detailed in Chapter 4, Venezuela explicitly and unquestionably accepted
the Award in 1899573 and officially continued to do so until 1962.574 Such
unwavering and explicit acceptance acts to cure any alleged defect that should have
been apparent to any outside observer already in 1899, in particular the alleged lack
of stated reasons. Likewise, Venezuela’s declarations in support of the Award after
the publication of the Mallet-Prevost Memorandum,575 together with the fact that
Venezuela continued after 1949 to conduct itself as if the Award was perfectly
valid, redeemed any alleged defect supposedly hidden thus far and revealed by Mr
Mallet-Prevost, in addition to consolidating the cure of any alleged defect that was
observable previously.
9.8 These Venezuelan declarations, set out in detail in Chapter 4, included
those made by:
573 See supra Chapter 4, Sec. I.
574 See Chapter 4.
575 See supra Chapter 4, Sec. V.
277
 Venezuela’s President in 1899: “The award was a source of satisfaction for
the country, as international justice had returned a part of its territory that
had been usurped and vindicated its right”.576
 Its Agent before the Arbitral Tribunal: “Sentence of Tribunal: England
gives up Point Barima and the coast until Point Playa from thence the line
goes until Schomburgk’s (line) which it follows until the junction of the
Cuyuni and Wenamu. This gives us five thousand square miles east of the
Schomburgk line. Arbiters and Counsel for Venezuela were brilliant.”577
 Its Ambassador in London (and brother of the President): “Greatly indeed
did justice shine forth when in the determination of the frontier we were
given the exclusive dominion over the Orinoco which was the principal aim
which we sought to achieve through arbitration”.578
 Its counsel (former U.S. President Harrison and Mr Mallet-Prevost): “No
portion of the entire territory possessed more strategic value than this, both
from a commercial and a strategic standpoint and its possession by Great
Britain was most jealously guarded. This point had been awarded to
576 See « Nouvelles de l’Étranger: Venezuela », Le Temps, 11 octobre 1899 quoting from
Venezuelan President Ignacio Andrade : “The award was a source of satisfaction for the country,
as international justice had returned a part of its territory that had been usurped, and vindicated its
right.” (« l’arrêt était un motif de satisfaction pour le pays, car la justice internationale lui avait
restitué une partie de son territoire usurpé et donnait raison à son bon droit ») (Translation of
Guyana). See also “Venezuela is Satisfied – President and the Press Pleased with the Boundary
Awards – the Value of Barima Point – Its Possession Said to be of Great Advantage to the Republic
by the Intelligent Classes”, The New York Times (8 Oct. 1899) (“The award of the Anglo-
Venezuelan Boundary Arbitration Tribunal has been received here with satisfaction. The intelligent
classes consider that the possession of Barima Point will prove of great advantage to Venezuela. …
The result is a cause of rejoicing for this country, because justice and the laws of the civilized world
have restored a portion of usurped territory, and demonstrated the soundness of our claim.”)
577 Letter from the Venezuelan Ambassador to the United Kingdom to the Venezuelan Minister of
Foreign Affairs (7 Oct. 1899). MG, Vol. II, Annex 3.
578 Ibid.
278
Venezuela and along with it a strip of coast about 50 miles in length, both
giving to Venezuela the entire control of the Orinoco River”.579
 Its Foreign Ministry, which reported in 1900 that Venezuela “has up to date
uttered no word in opposition” and that “it would not be expedient to reopen
the case”.580
 Its Foreign Minister, in 1941, who described the 1899 Award as “chose
jugée”.581
 Its Ambassador to the United States in 1944: “We have accepted the verdict
of the arbitration for which we have so persistently asked”.582
 Its Foreign Ministry’s formal communication to the United States in 1962,
that Venezuela “was not questioning the legality of the Arbitral Award”.583
9.9 Beginning in 1944, Venezuela made public statements from time to time
calling for revision of the 1899 Award, but there is no evidence that it ever
contested its legal validity. Typical is the statement by the Ambassador to the
United States in 1944, reaffirming Venezuela’s acceptance of the Award, while
indicating its “undying hope that one day the spirit of equity will prevail in the
579 “Declarations from Mallet-Prevost and General Harrison, Venezuelan’s Agents before the 1899
Tribunal”, The Times (4 Oct. 1899).
580 Report of Counsellor Dr Rafael Seijas (4 May 1900), pp. 189, 192 (emphasis omitted). MMG,
Vol. IV, Annex 66.
581 Letter from the Venezuelan Foreign Minister, E. Gil Borges, to British Ambassador to
Venezuela, D. Gainer (15 Apr. 1941). MMG, Vol. III, Annex 56.
582 Speech by the Venezuelan Ambassador to the United States to the Pan-American Society of the
United States (1944). MG, Vol. II, Annex 9.
583 U.S. Department of State, Memorandum of Conversation, No. 741D.00/1-1562 (15 Jan. 1962),
p. 2. MG, Vol. II, Annex 16.
279
world and that this will bring us the reparation which morally and justly is due to
us”.584
9.10 Similarly aspirational statements were made periodically, including in
Venezuela’s written communication to the United States in January 1962, which
emphasised that “Venezuela considers the Award to have been inequitable and
questionable from a moral point of view”, while confirming, at the same time, that
it “was not questioning the legality of the Arbitral Award”.585
9.11 It is significant that all the statements between 1944 and 1962, when
Venezuela began to question the equitableness of the 1899 Award, avoid
formulation of any legal grounds for a Venezuelan claim; all the statements are
revisionist in character; and all of them avoid formulation of a Venezuelan claim
in positive terms. In sum, the statements merely give notice of an intention to call
for an unspecified “equitable rectification” in the future, while in the meantime
reaffirming Venezuela’s acceptance of the legal validity of the Award.586
9.12 The principle according to which the prior declarations or conduct of a
State have a substantive legal effect on later claims that contradict such declarations
or conduct is well established in international law. It is notably reflected in Article
584 Speech by the Venezuelan Ambassador to the United States to the Pan-American Society of the
United States (1944), p. 1. MG, Vol. II, Annex 9.
585 U.S. Department of State, Memorandum of Conversation, No. 741D.00/1-1562 (15 Jan. 1962).
MG, Vol. II, Annex 16.
586 A “Policy Statement” prepared by the United States Department of State in 1951 characterised
Venezuela’s objective as seeking a “revision” of the boundary with British Guiana. See Policy
Statement Prepared in the Department of State, 611.31/8-1051 (10 Aug. 1951), available at
https://history.state.gov/historicaldocuments/frus1951v02/d888 (last accessed 22 Feb. 2022).
280
45 of the Vienna Convention on the Law of Treaties587 and Article 45 of the ILC
Articles on the International Responsibility of States for Internationally Wrongful
Acts.588
9.13 As noted by Judge Alfaro in his celebrated Separate Opinion in the case
concerning the Temple of Preah Vihear, the principle guiding the Court in that case
was that “a State party to an international litigation is bound by its previous acts or
attitude when they are in contradiction with its claims in the litigation”.589 Judge
Alfaro stressed that “the soundness and justice of the rule is generally accepted”590
587 Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 332 (23 May 1969), Art. 45.
“Loss of a right to invoke a ground for invalidating, terminating, withdrawing from or suspending
the operation of a treaty.
A State may no longer invoke a ground for invalidating, terminating, withdrawing from or
suspending the operation of a treaty under articles 46 to 50 or articles 60 and 62 if, after
becoming aware of the facts:
(a) it shall have expressly agreed that the treaty is valid or remains in force or continues in
operation, as the case may be; or
(b) it must by reason of its conduct be considered as having acquiesced in the validity of the
treaty or in its maintenance in force or in operation, as the case may be.”
588 ILC, Articles on the International Responsibility of States for Internationally Wrongful Acts
(2001), Art. 45.
“The responsibility of a State may not be invoked if:
(a) The injured State has validly waived the claim;
(b) The injured State is to be considered as having, by reason of its conduct, validly acquiesced
in the lapse of the claim.”
589 Temple of Preah Vihear, Opinion of Alfaro, p. 39. See also, e.g. Chagos Marine Protected Area
Arbitration (Mauritius v. United Kingdom), Award, PCA Case No. 2011-03 (18 March 2015), pp.
547-548, para. 446.
590 Ibid., p. 39.
281
and that “[t]he acts or attitude of a State previous to and in relation with rights in
dispute with another State may take the form of an express written agreement,
declaration, representation or recognition, or else that of a conduct which implies
consent to or agreement with a determined factual or juridical situation”.591 Writing
in 1962, the very same year when Venezuela raised for the first time its
misconceived nullity contention, Judge Alfaro continued:
“Whatever term or terms be employed to designate this principle
such as it has been applied in the international sphere, its substance
is always the same: inconsistency between claims or allegations put
forward by a State, and its previous conduct in connection
therewith, is not admissible (allegans contraria non audiendus est).
Its purpose is always the same: a State must not be permitted to
benefit by its own inconsistency to the prejudice of another State
(nemo potest mutare consilium suum in alterius injuriam). A
fortiori, the State must not be allowed to benefit by its inconsistency
when it is through its own wrong or illegal act that the other party
has been deprived of its right or prevented from exercising it.
(Nullus commodum capere de sua injuria propria). Finally, the
legal effect of the principle is always the same: the party which by
its recognition, its representation, its declaration, its conduct or its
silence has maintained an attitude manifestly contrary to the right it
is claiming before an international tribunal is precluded from
claiming that right (venire contra factum proprium non valet).”592
9.14 In the case of the Arbitral Award by the King of Spain, the Court essentially
drew from such principles by stating its key conclusion as follows:
“In the judgment of the Court, Nicaragua, by express declaration
and by conduct, recognized the Award as valid and it is no longer
591 Ibid., p. 40.
592 Ibid. (emphasis in original).
282
open to Nicaragua to go back upon that recognition and to challenge
the validity of the Award. Nicaragua’s failure to raise any question
with regard to the validity of the Award for several years after the
full terms of the Award had become known to it further confirms
the conclusion at which the Court has arrived.”593
9.15 In the King of Spain case, the period of acquiescence by Nicaragua extended
just over five years — a mere one-twelfth of the period of Venezuela’s
acquiescence in the instant case. Moreover, the Court did not draw from
Nicaragua’s declarations and conduct a procedural preclusion, but a substantive
one. Indeed, rather than considering Nicaragua’s contention inadmissible, the
Court found that “the Award made by the King of Spain on 23 December 1906 is
valid and binding and that Nicaragua is under an obligation to give effect to it”.594
9.16 In this case, there is no doubt that the 1966 Geneva Agreement recognised
the existence of the controversy that arose from Venezuela’s nullity contention and
designed procedures to resolve it. Therefore, as in the King of Spain case, the
preclusion of Venezuela’s nullity claim is not procedural but substantive and it
operates to cure any defect that might have otherwise constituted a ground for the
invalidity of the Award.
9.17 As described in Chapter 4, Venezuela’s knowing and prolonged acceptance
of the Award was made manifest not only by its declarations, but by its conduct for
more than 60 years, including:
593 Award Made by the King of Spain Case, p. 213.
594 Ibid., p. 217.
283
 Its demarcation of the boundary with British Guiana in strict conformity
with the terms of the Arbitral Award, and its formal adoption of that
boundary in a 1905 Agreement with Great Britain, subsequently ratified by
Venezuela’s Federal Executive. See supra Chapter 4, Section II.
 Its refusal to accept any modifications to the agreed boundary, rejecting
even the most minor technical or practical adjustments, on grounds that the
1899 Award had to be faithfully followed, without any deviation. See supra
Chapter 4, Section III.
 Its conclusion of a boundary agreement with Brazil, in 1928, which
recognised the boundary between Venezuela and British Guiana as agreed
in 1905. See supra Chapter 4, Section IV.
 Its negotiation and ultimate agreement with Brazil and British Guiana,
between 1931 and 1932, on the tripoint at which the boundaries of all three
States terminate, in conformity with the 1905 Agreement between
Venezuela and British Guiana. See supra Chapter 4, Section IV.
 Its publication of official maps — in 1911, 1928, 1937, 1940, 1947, 1950,
1956, 1960 and 1962 — depicting its boundary with British Guiana as
following the line delimited by the 1899 Award and demarcated in the 1905
Agreement.595 See supra Chapter 4, Sections II-IV.
9.18 Whether one looks at the alleged defects of the Award which, if they
existed, should have been apparent to any outside observer in 1899, or at the alleged
defects supposedly revealed in 1949 by the Mallet-Prevost Memorandum, the
595 Venezuela also issued no protests with respect to an official map published in 1939 by the British
War Office nor to a global atlas presented during the 1945 United Nations Conference on the
Organisation of States in San Francisco, both of which depicted the border between Venezuela and
British Guiana in accordance with the boundary established by the 1899 Award and demarcated in
the 1905 Agreement.
284
conclusion must be the same: any defect of the Award (quod non) was cured and
superseded by Venezuela’s prolonged acceptance of the Award. In other words, by
1962, Venezuela’s nullity claim had lost any possible legal basis, and Venezuela
had lost the substantive right to raise such a claim.
The Legal Effect of the Prolonged Acceptance of the Outcome of the
Award on the Delimitation It Effectuated
9.19 It is a truism to state that the 1899 Award and the 1905 Demarcation
Agreement are two legally separate acts: the Award is an arbitral decision — a
distinct juridical act — and the Agreement is a negotiated treaty. To be sure, the
latter would not have existed without the former, which its signatories intended to
faithfully implement on the basis of the decision of the Arbitral Tribunal. However,
the 1905 Agreement is not the result of an adjudicative procedure, but of a
negotiation process, and its authors were duly authorised State representatives, not
arbitrators. The fact that the parties agreed to faithfully incorporate, in the 1905
Agreement, the line decided by the Arbitrators does not imply that the Award and
the Agreement would be one and the same juridical act. In fact, the parties to the
1905 Agreement could have agreed to depart from the delimitation effectuated by
the Award, as was envisaged by the British representatives at one point;596 such
departure would have prevailed over the Award’s line, constituting a perfectly valid
legal title based on the neighbouring States’ agreement concerning their respective
territorial sovereignty. As stated by the international arbitral tribunal instituted
between Argentina and Chile in the “Laguna del Desierto” case: “A decision on a
596 See supra Chapter 4, Sec. III.
285
frontier dispute and its demarcation are two distinct acts, each of which has its own
legal force”.597
9.20 Because the 1899 Award and the 1905 Agreement are two legally distinct
juridical acts, any defect affecting the validity of one of them has no bearing on the
validity of the other. Moreover, because the Award is a judicial decision and the
Agreement a treaty, their respective validity is governed by different conditions, so
that the grounds on which nullity of each can be claimed are also different.
Venezuela has not disputed — and could not dispute — the validity of the 1905
Agreement, which has stood as a valid treaty for more than 115 years. In any event,
by 1962 and pursuant to the principle reflected in Article 45 of the Vienna
Convention on the Law of Treaties,598 Venezuela had lost the right to invoke any
ground for invalidating the 1905 Agreement because of its prolonged acceptance
not only of the Award but also of the Agreement itself.
9.21 Finally, even if, quod non, the 1905 Agreement were to be found invalid or
terminated as a consequence of the invalidity of the Award, the border resulting
from the Award and the Agreement would still delimit the respective territories of
Guyana and Venezuela. It is indeed:
“a principle of international law that a territorial régime established
by treaty ‘achieves a permanence which the treaty itself does not
necessarily enjoy’ and the continued existence of that régime is not
597 Case concerning a boundary dispute between Argentina and Chile concerning the delimitation
of the frontier line between boundary post 62 and Mount Fitzroy (“Laguna del Desierto”), Decision
of 21 October 1994, RIAA, Vol. XXII (21 Oct. 1994), para. 67, p. 24.
598 See supra note 587.
286
dependent upon the continuing life of the treaty under which the
régime is agreed”.599
9.22 This conclusion is even more compelling given that the territorial regime
was accepted and respected for over six decades. For these reasons, Venezuela
cannot lawfully challenge the validity of the boundary fixed by the Arbitral
Tribunal in 1899, as agreed by Venezuela and Great Britain in their 1905 Boundary
Agreement. In any event, as shown in the preceding Chapters, the 1899 Award and
the 1905 Agreement are perfectly valid and, as such, are binding on the parties.
599 Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment - Preliminary Objections,
I.C.J. Reports 2007, p. 861, citing to Territorial Dispute (Libyan Arab Jamahiriya/Chad), p. 37: “A
boundary established by treaty thus achieves a permanence which the treaty itself does not
necessarily enjoy … when a boundary has been the subject of agreement, the continued existence
of that boundary is not dependent upon the continuing life of the treaty under which the boundary
is agreed” and cited also in Costa Rica v. Nicaragua, I.C.J. Reports 2009, para. 68.
287
SUBMISSIONS
For the reasons given in this Memorial, and reserving the right to supplement,
amplify or amend the present Submissions, the Co-operative Republic of Guyana
respectfully requests the International Court of Justice:
8 March 2022
________________________________
Hon. Carl B. Greenidge
Co-operative Republic of Guyana
Agent
To adjudge and declare that:
1. The 1899 Award is valid and binding upon Guyana and Venezuela, and
the boundary established by that Award and the 1905 Agreement is the
boundary between Guyana and Venezuela; and that
2. Guyana enjoys full sovereignty over the territory between the Essequibo
River and the boundary established by the 1899 Award and the 1905
Agreement, and Venezuela is under an obligation to fully respect
Guyana’s sovereignty and territorial integrity in accordance with the
boundary established by the 1899 Award and the 1905 Agreement.
288
289
CERTIFICATION
I certify that the annexes are true copies of the documents reproduced therein and
that the translations into English are accurate translations of the documents
annexed.
8 March 2022
___________________________
Hon. Carl B. Greenidge
Co-operative Republic of Guyana
Agent

VOLUME II
MAPS AND FIGURES
Figure 2.1 Map of Guyana
Figure 2.2 Guyana’s Major Rivers
Figure 2.3 Guyana’s Mountain Ranges
Figure 2.4 Map of Essequibo and Demerary (Demerara) Rivers (ca. 1770),
Highlighting Ft. Kykoveral
Figure 2.5 Map of Guiana by William Blaeuw (1667), Highlighting the
Extent of Dutch Authority and Control
Figure 3.1 Map Depicting the Expeditions of Robert Schomburgk (1835-
1839)
Figure 3.2 Map Depicting the Expeditions of Robert and Richard
Schomburgk (1841-1844)
Figure 3.3 Boundary Lines of British Guiana (1896)
Figure 3.4 Sketch Map of the 1899 Arbitral Award and British Claim
Figure 4.1 Sketch Map Indicating the Location of Punta Playa
Figure 4.2 Photograph of Boundary Marker in the Barima-Waini Region
(2017)
Figure 4.3 Photograph with Close-Up of Boundary Marker (2017)
Figure 4.4 Cover Page of Map Produced by the Joint Boundary
Commission in 1905
Figure 4.5 1905 Map Produced by the Joint Boundary Commission,
Demarcating the Boundary Line between British Guiana and
Venezuela
Figure 4.6 Physical and Political Map of Venezuela, Commissioned by
President J. V. Gomez (1911)
Figure 4.7 Tri-Junction Point Marker between Venezuela, British Guiana
and Brazil
Figure 4.8 Physical and Political Map of Venezuela, Commissioned by
President J. V. Gomez (1928)
Figure 4.9 Physical and Political Map of Venezuela (1937)
Figure 4.10 Atlas of Venezuela (1940)
Figure 4.11 Map of the Boundary between British Guiana and Brazil (1939)
Figure 4.12 Map Presented at the 1945 United Nations Conference in San
Francisco
Figure 4.13 Physical and Political Map of Venezuela (1947)
Figure 4.14 Physical and Political Map of Venezuela (1950)
Figure 4.15 Physical and Political Map of Venezuela (1955)
Figure 4.16 Official Map of Venezuela (1956)
Figure 4.17 Official Map of Venezuela (1960)
Figure 4.18 Official Map of Venezuela (1962)
Figure 5.1 Physical and Political Map of Venezuela (1965)
VOLUME III
ANNEXES
BOOKS AND ARTICLES
Annex 1 Otto Schoenrich, “The Venezuela-British Guiana Boundary
Dispute”, The American Journal of International Law, Vol. 43,
No. 3 (July 1949)
Annex 2 Willard L. King, MELVILLE WESTON FULLER – CHIEF JUSTICE
OF THE UNITED STATES 1888-1910 (Macmillan Company,
1950) (excerpt)
Annex 3 Clifton J. Child, “The Venezuela-British Guiana Boundary
Arbitration of 1899”, American Journal of International Law,
Vol. 44, No. 4 (1950)
Annex 4 S. Garavini Di Turno, “[La traición de Chávez] Chávez’s
treason”, El Imparcial (22 Jan. 2012)
Annex 5 Clare Cushman, “David J. Brewer 1890-1910” in SUPREME
COURT JUSTICES: ILLUSTRATED BIOGRAPHIES (CQ Press, 2013)
(excerpt)
Annex 6 Clare Cushman, “Melville W. Fuller 1888-1910” in SUPREME
COURT JUSTICES: ILLUSTRATED BIOGRAPHIES (CQ Press, 2013)
(excerpt)
Annex 7 Foreign Ministry of Guyana, THE NEW CONQUERORS: THE
VENEZUELAN THREAT TO THE SOVEREIGNTY OF GUYANA
(2016) (excerpt)
LETTERS AND DIPLOMATIC DESPATCHES
Annex 8 Account of a Journey to Guiana and the Island of Trinidad,
performed in the Years 1597 and 1598, submitted to the States-
General by the “Commies-Generaal” by A. Cabeliau (3 Feb.
1599)
Annex 9 Extract from Despatches in reference to Treaty of Truce finally
made in 1609 from the Marquis de Spinola to the King of Spain
(7 Jan. 1607)
Annex 10 Cedula Issued by the King of Spain to the Governor of the City
of Santo Thomé de la Guyana (9 Aug. 1621)
Annex 11 Letter of the Request of the City of Santo Thomé and Island of
Trinidad of the Presidency of Guayana for Help (undated, likely
issued in 1621)
Annex 12 Extract of Letter from the Corporation of the Island of Trinidad
to the King of Spain (11 Apr. 1637)
Annex 13 Letter from Don Diego Lopez de Escobar, Governor of
Guayana and Trinidad, to the King of Spain (28 May 1637)
(Inclosure in Letter from Jacques Ousiel, late Public Advocate
and Secretary of the Tobago, to the West India Company
(1637))
Annex 14 Letter to the King of Spain from the Corporation of Trinidad
Concerning the state of the town of Santo Thomé of Guiana,
taken, plundered, and burnt by the Dutch, and the Indian Caribs,
who also threatened the said island of Trinidad with a powerful
fleet (27 Dec. 1637)
Annex 15 Letter from Captain Edward Thompson, R.N. to Lord Sackville
(22 Apr. 1781)
Annex 16 Letter from Mr. Schomburgk to Governor Light (1 July 1839)
(Inclosure in Letter from the Colonial Office to the Foreign
Office (6 Mar. 1840))
Annex 17 Letter from Lord J. Russell to Governor Light (23 Apr. 1840)
(Inclosure in Letter from Colonial Office to Foreign Office (28
Apr. 1840))
Annex 18 Letter from Viscount Palmerston to Sir R. Ker Porter (28 Nov.
1840), Letter from Mr. O’Leary to Viscount Palmerston (24
Jan. 1841) and Letter from Mr. O’Leary to Viscount Palmerston
(2 Feb. 1841)
Annex 19 Letter from Señor Aranda to Governor Light (31 Aug. 1841)
and Letter from Governor Light to Señor Aranda (20 Oct. 1841)
(Inclosures in Letter from Governor Light to Lord Stanley (21
Oct. 1841))
Annex 20 Letter from Mr Schomburgk to Governor Light (15 Sept. 1841)
Annex 21 Letter of Mr. Schomburgk to Governor Light (30 Nov. 1841)
enclosing Memorandum by Mr. Schomburgk
Annex 22 Letter from Señor Calcaño to the Earl of Derby (14 Nov. 1876)
Annex 23 Letter from Señor de Rojas to the Earl of Derby (13 Feb. 1877)
Annex 24 Letter from The Marquess of Salisbury to Señor de Rojas (10
Jan. 1880)
Annex 25 Letter from Señor Seijas to Colonel Mansfield (15 Nov. 1883)
Annex 26 Letter from Señor Seijas to Colonel Mansfield (9 Apr. 1884)
(Inclosure in Letter from Colonel Mansfield to Earl Granville
(18 Apr. 1884))
Annex 27 Letter from Earl Granville to Colonel Mansfield (29 Feb. 1884)
Annex 28 Letter from Señor Urbaneja to Mr. F. R. St. John (20 Feb. 1887)
Annex 29 Letter from Mr. Andrade to Mr. Gresham (19 Dec. 1894)
Annex 30 Letter from Señor Andrade to Minister Ezequiel Rojas (9 Jan.
1897)
Annex 31 Letter from James J. Storrow to Dr. P. Ezequiel Rojas,
Venezuelan Minister of Foreign Affairs (26 Jan. 1987)
Annex 32 Letter from S. Mallet-Prevost to Sir Richard Webster (22 Apr.
1899)
Annex 33 Private Diary Entries of Prof Fyodor Fyodorovich Martens (4
June 1899 - 3 Oct. 1899)
Annex 34 Letter from Mr Buchanan to Lord Salisbury, No. 52 (24 July
1899)
Annex 35 Letter from Benjamin Harrison to the Hon. Henry White (3 Oct.
1899)
Annex 36 Letter from Lord Russell to Lord Salisbury (7 Oct. 1899), in
Papers of 3rd Marquess of Salisbury, Vol. A/94, Doc. No. 2
Annex 37 Letter from Sir Cavendish Boyle to Michael McTurk, Esquire,
and Captain Arthur Wybrow Baker (24 Sept. 1900)
Annex 38 Letter from Sir M.E. Grant Duff to Lord Salisbury, No. 101 (26
Sept. 1900)
Annex 39 Letter from Michael McTurk (24 Nov. 1900)
Annex 40 Letter from Walter Sendall to J. Chamberlain (10 Apr. 1901)
Annex 41 Letter from Mr. Perkins to Government Secretary (9 Jan. 1905)
Annex 42 Letter from F.M. Hodgson to Alfred Lyttelton enclosing
Abraham Tirado, Minister of Foreign Affairs, Report of the
Frontier towards British Guiana (20 Mar. 1905)
Annex 43 Letter from Alejandro Ybarra to P.C. Wyndham (19 June 1905)
Annex 44 Letter from Mr. Bax-Ironside to General Ybarra (20 Feb. 1906)
(Inclosure in Letter from Mr Bax-Ironside to Sir Edward Grey
(10 Mar. 1906))
Annex 45 Letter from Dr. Paúl to Mr. Bax-Ironside (10 Oct. 1906)
Annex 46 Extract from a Despatch in reference to the founding of a Dutch
West India Company from Don Juan de Mancicidor to
Secretary Prada (7 Jan. 1607)
Annex 47 Letter from Mr. O’Reilly to Sir Edward Grey (July 1907)
(Inclosure in Letter from Foreign Office to Colonial Office (11
July 1907))
Annex 48 Letter from Señor Paúl to Mr. O’Reilly (4 Sept. 1907)
(Inclosure in Letter from Mr. O’Reilly to Sir Edward Grey (5
Sept. 1907))
Annex 49 Letter from Sir Edward Grey to Mr. O’Reilly (18 Oct. 1907)
Annex 50 Letter from Sir V. Corbett to Dr. José de Paúl (25 Feb. 1908)
(Inclosure in Letter from Sir V. Corbett to Sir Edward Grey (25
Feb. 1908))
Annex 51 Letter from J. de J. Paúl to Sir Vincent Corbett (12 Mar. 1908)
(Inclosure in Letter from Sir Vincent Corbett to Sir E. Grey (16
Mar. 1908))
Annex 52 Letter from General Juan Vicente Gomez, President of the U.S.
of Venezuela (1 Feb. 1911)
Annex 53 Letter from the Venezuelan Minister for Foreign Affairs, P.
Itriago Chacín, to W. O’Reilly (31 Oct. 1931)
Annex 54 Telegram from P. Itriago Chacín, to W. O’Reilly (23 Nov.
1931)
Annex 55 Letter from P. Itriago Chacín, No. 1157/2 (3 Nov. 1932)
Annex 56 Letter from the Venezuelan Foreign Minister, E. Gil Borges, to
British Ambassador in Caracas, D. Gainer (15 Apr. 1941)
Annex 57 Proceedings of the West India Company (Zeeland Chamber)
(1626-1628)
VOLUME IV
ANNEXES
MEMORANDA AND REPORTS
Annex 58 Extract from a Report on Trinidad de la Guayana in reference
to the Dutch Settlements on the Coast between the Amazon and
the Orinoco, from Señor Don Antonio de Muxica, Deputy
Governor of Santo Thomé de la Guayana, to His Majesty (25
June 1613)
Annex 59 Report on Conditions for Colonies, adopted by the West India
Company (the Nineteen) (22 Nov. 1628)
Annex 60 Report from the Council of the Indies, to the King of Spain (8
July 1631)
Annex 61 Memorandum by Don Juan Desologuren in Santa Fé, as to the
Powers of the Dutch in the West Indies (19 Nov. 1637)
Annex 62 Report of the Council of War to the King respecting the state of
Guayana (10 May 1662)
Annex 63 Memorandum on the Question of Boundaries between British
Guiana and Venezuela (Inclosure in Letter from Earl Granville
to Señor de Rojas (15 Sep. 1881))
Annex 64 Venezuela Ministry of Foreign Affairs, Memorandum by The
Ministry of Foreign Affairs of Venezuela relative to the Note of
Lord Salisbury to Mr Richard Olney, dated November 26, 1895,
on the question of boundary between Venezuela and British
Guayana (1896)
Annex 65 United States 55th Congress, 1st Session, Report from the
Secretary of State regarding the Work of the Special
Commission Appointed to Reexamine and Report upon the True
Line between Venezuela and British Guiana, Transmitted to the
U.S. Senate Committee on Foreign Relations, Doc. No. 106 (25
May 1897)
Annex 66 Report of Counsellor Dr Rafael Seijas (4 May 1900)
Annex 67 British Guiana, Report of the British Commissioners appointed
to Demarcate the boundary between the colony of British
Guiana and the United States of Venezuela (8 Dec. 1900)
Annex 68 Ministry of Foreign Relations of Venezuela, [Resolución de 8
de junio de 1903, por la cual se reconstituye la Comisión
Venezolana de límites con la Guayana Británica] Resolution of
8 June 1903, creating the Venezuela Boundary Commission (8
June 1903)
Annex 69 British Guiana, Recommendations of the Boundary
Commissioners for the Adoption of the Line of the Watershed
between the Caroni, Cuyuni and Mazaruni River Systems as the
Boundary between the Source of the Wenamu River and Mount
Roraima in place of the Direct Line Mentioned in the Award of
the Arbitral Tribunal of Paris, Dated 3rd October 1899, British
Guiana Combined Court, Annual Session (10 Jan. 1905)
Annex 70 Department of Foreign Affairs of Venezeula, [El Libro
Amarillo: Presentado al congreso Nacional en sus sesiones de
1911] The Yellow Book: Presented to the National Congress in
its 1907 Sessions (1911) (excerpt)
Annex 71 Memorandum from the Venezuelan Ministry of Foreign Affairs,
No. 1638 (16 Dec. 1931) in Caracas despatch No. 51 (25 Dec.
1931)
Annex 72 Memorandum on British Guiana from Secretary of State Dean
Rusk for President John F. Kennedy enclosing Action Program
for British Guiana (12 July 1962) (excerpt)
Annex 73 [Aide-Memoire presentado por el Dr. Marcos Falcón Briceño
al Hon. R. A. Butler] Aide-Memoire presented by Marcos
Falcón Briceño to the Hon. R.A. Butler (5 Nov. 1963)
Annex 74 Hermann González Oropeza, S.J. & Pablo Ojer, [Informe que
los expertos venezolanos para la cuestión de límites con
Guayana Británica presentan al Gobierno Nacional] Report
submitted by the Venezuelan Experts to the National
Government on the Issue of the Boundaries with British Guiana
(18 Mar. 1965)
Annex 75 Sir Geoffrey Meade, Report on the Exposition presented by the
Venezuelan Experts (3 Aug. 1965)
Annex 76 Dr Ignacio Irabarren Borges, [Declaración del Dr Ignacio
Iribarren Borges, Ministro de Relaciones Exteriores de
Venezuela, la Conferencia Ministerial de Londres] Statement
Made by Dr Ignacio Iribarren Borges, Venezuelan Foreign
Minister, to the Ministerial Conference Held in London (9 Dec.
1965)
LAWS, AGREEMENTS AND RESOLUTIONS
Annex 77 Charter Granted by their High Mightiness the Lords the States-
General to the West India Company (3 June 1621)
Annex 78 Articles of the Peace of Münster (30 Jan. 1648)
Annex 79 Articles of Capitulation of Demerara and Essequibo (18-19
Sept. 1803)
Annex 80 British Guiana, Letters Patent constituting the Colony of British
Guiana and appointing Major-General Sir Benjamin D’Urban,
K.C.B., Governor (4 Mar. 1831)
Annex 81 U.S. Congress, 53rd Session, Joint Resolution, H. Res. 252 (10
Jan. 1895)
Annex 82 United States 54th Congress, Act of the United States Congress,
Public Act No. 1 (21 Dec. 1895)
Annex 83 United Kingdom, Brazil, Treaty Series No. 14, Treaty and
Convention for the settlement of the Boundary between British
Guiana and Brazil (22 Apr. 1926) (excerpt)
Annex 84 Republic of Venezuela, Ministry of Foreign Affairs, [Tratados
públicos y acuerdos internacionales de Venezuela: 1920-1925]
Public Treaties and International Agreements 1920-1925, Vol.
III (1927)
Annex 85 [Tratado General de Arbitraje Interamericano] General Treaty
of Inter-American Arbitration, O.E.A. (5 Jan. 1929), entered
into force on 28 Oct. 1929
Annex 86 League of Nations, “Brazil and Venezuela: Exchange of Notes
for the Execution of the Provisions regarding the Frontier
Delimitation between the two Countries, contained in the
Protocol signed at Rio-de-Janeiro, July 24, 1928. Caracas,
November 7, 1929”, Treaty series: Publications of treaties and
international engagements registered with the Secretariat of the
League of Nations (1930)
Annex 87 Exchange of Notes between the United Kingdom and Brazil
approving the General Report of the Special Commissioners
Appointed to Demarcate the Boundary-Line between British
Guiana and Brazil, 51 U.K.T.S. 1946 (15 Mar. 1940)
Annex 88 McQuillen & Brading, Minutes regarding the Venezuelan -
British Guiana Boundary Dispute (10 Mar. 1944) (9 Sept. 1944)
Annex 89 U.S. of Venezuela, [Ley orgánica de los Territorios Federales]
Organic Federal Territories Law (14 Sept. 1948)
Annex 90 Minutes and Documents from the Tenth Inter-American
Conference (1-28 Mar. 1954) (excerpt)
Annex 91 Ministry of Foreign Relations, Mixed Venezuelan-Brazilian
Commission on the Demarcation of Boundaries, [Acta de la
Cuadragesima Primera Conferencia] Minutes of the Forty-
First Conference (1973) (excerpt)
Annex 92 Federative Republic of Brazil, Ministry of Foreign Affairs, “9.4
– BV-0 Mount Roraima Marker”
Annex 93 Ministry of Foreign Affairs of Brazil, First Brazilian
Commission to Establish Borders, “8.1 – Brazil – Guyana –
Venezuela Tri-Border Area (Mount Roraima)”
Annex 94 Petition to the Noble and Mighty Lords the States-General of
these United Provinces concerning the Population of the Coasts
of Guiana situated in America (undated)
Annex 95 Bulletin of the Ministry of Foreign Affairs of Venezeula, [Acta
de Inaguración de dos hitos Venezolano-Brasileros en el Monte
Moraima] Act of Inaguration of two Venezuelan-Brazilian
Boundary Marks on Mount Roraima
ORAL PROCEEDINGS OF THE 1899
ARBITRATION
Annex 96 Boundary between the Colony of British Guiana and the United
States of Venezuela, First Day’s Proceedings (25 Jan. 1899)
Annex 97 Boundary between the Colony of British Guiana and the United
States of Venezuela, Second Day’s Proceedings (15 June 1899),
pp. 6-9
Annex 98 Boundary between the Colony of British Guiana and the United
States of Venezuela, Second Day’s Proceedings (15 June 1899),
pp. 17-25
Annex 99 Boundary between the Colony of British Guiana and the United
States of Venezuela, Fifteenth Day’s Proceedings (21 July
1899), p. 867
Annex 100 Boundary between the Colony of British Guiana and the United
States of Venezuela, Nineteenth Day’s Proceedings (29 July
1899), p. 1119
Annex 101 Boundary between the Colony of British Guiana and the United
States of Venezuela, Nineteenth Day’s Proceedings (29 July
1899), p. 1124
Annex 102 Boundary between the Colony of British Guiana and the United
States of Venezuela, Nineteenth Day’s Proceedings (12 Aug.
1899), p. 1170
Annex 103 Boundary between the Colony of British Guiana and the United
States of Venezuela, Twenty-Eighth Day’s Proceedings (12
Aug. 1899), p. 1737
Annex 104 Boundary between the Colony of British Guiana and the United
States of Venezuela, Twenty-Eighth Day’s Proceedings (29 July
1899), pp. 1761-1762
Annex 105 Boundary between the Colony of British Guiana and the United
States of Venezuela, Thirty-Second Day’s Proceedings (25 Aug.
1899), p. 1999
Annex 106 Boundary between the Colony of British Guiana and the United
States of Venezuela, Thirty-Second Day’s Proceedings (25 Aug.
1899), pp. 2011-2012
Annex 107 Boundary between the Colony of British Guiana and the United
States of Venezuela, Thirty-Third Day’s Proceedings (26 Aug.
1899), p. 2063
Annex 108 Boundary between the Colony of British Guiana and the United
States of Venezuela, Thirty-Fourth Day’s Proceedings (28 Aug.
1899), pp. 2119-2120
Annex 109 Boundary between the Colony of British Guiana and the United
States of Venezuela, Thirty-Fifth Day’s Proceedings (29 Aug.
1899), p. 2149
Annex 110 Boundary between the Colony of British Guiana and the United
States of Venezuela, Forty-Third Day’s Proceedings (8 Sept.
1899), p. 2595
Annex 111 Boundary between the Colony of British Guiana and the United
States of Venezuela, Fiftieth Day’s Proceedings (19 Sept. 1899),
pp. 2981-2985
Annex 112 Boundary between the Colony of British Guiana and the United
States of Venezuela, Fifty-First Day’s Proceedings (20 Sept.
1899), p. 3014
Annex 113 Boundary between the Colony of British Guiana and the United
States of Venezuela, Fifty-First Day’s Proceedings (20 Sept.
1899), pp. 3024-3025
Annex 114 Boundary between the Colony of British Guiana and the United
States of Venezuela, Fifty-Second Day’s Proceedings (22 Sept.
1899), pp. 3087-3097
Annex 115 Boundary between the Colony of British Guiana and the United
States of Venezuela, Fifty-Fifth Day’s Proceedings (27 Sept.
1899), p. 3233
Annex 116 Boundary between the Colony of British Guiana and the United
States of Venezuela, Fifty-Sixth Day’s Proceedings (3 Oct.
1899), p. 3238
WRITTEN PLEADINGS OF THE 1899
ARBITRATION
Annex 117 Boundary between the Colony of British Guiana and the
United States of Venezuela, The Case of the Government of
Her Britannic Majesty (1898), p. 18
Annex 118 Boundary between the Colony of British Guiana and the
United States of Venezuela, The Case of the Government of
Her Britannic Majesty (1898), pp. 54-55
Annex 119 Boundary between the Colony of British Guiana and the
United States of Venezuela, The Case of the Government of
Her Britannic Majesty (1898), p. 66
Annex 120 Boundary between the Colony of British Guiana and the
United States of Venezuela, The Case of the Government of
her Britannic Majesty (1898), p. 144
Annex 121 Boundary between the Colony of British Guiana and the
United States of Venezuela, The Case of the United States of
Venezuela (1898), Vol. I, p. 14
Annex 122 Boundary between the Colony of British Guiana and the
United States of Venezuela, The Case of the United States of
Venezuela (1898), Vol. I, pp. 35-36
Annex 123 Boundary between the Colony of British Guiana and the
United States of Venezuela, The Case of the United States of
Venezuela (1898), Vol. I, pp. 54-55
Annex 124 Boundary between the Colony of British Guiana and the
United States of Venezuela, The Case of the United States of
Venezuela (1898), Vol. I, pp. 71-75
Annex 125 Boundary between the Colony of British Guiana and the
United States of Venezuela, The Case of the United States of
Venezuela (1898), Vol. I, p. 163
Annex 126 Boundary between the Colony of British Guiana and the
United States of Venezuela, The Case of the United States of
Venezuela (1898), Vol. I, p. 179
Annex 127 Boundary between the Colony of British Guiana and the
United States of Venezuela, The Case of the United States of
Venezuela (1898), Vol. I, pp. 220-221
Annex 128 Boundary between the Colony of British Guiana and the
United States of Venezuela, The Case of the United States of
Venezuela (1898), Vol. I, p. 229
Annex 129 Boundary between the Colony of British Guiana and the
United States of Venezuela, The Case of the United States of
Venezuela (1898), Vol. I, p. 231
Annex 130 Boundary between the Colony of British Guiana and the
United States of Venezuela, The Counter-Case on behalf of the
Government of Her Britannic Majesty (1898), pp. 6-7
Annex 131 Boundary between the Colony of British Guiana and the
United States of Venezuela, The Counter-Case on behalf of the
Government of Her Britannic Majesty (1898), p. 130
Annex 132 Boundary between the Colony of British Guiana and the
United States of Venezuela, The Argument on behalf of the
Government of Her Britannic Majesty (1898), pp. 2-3
Annex 133 Boundary between the Colony of British Guiana and the
United States of Venezuela, The Printed Argument on behalf
of the United States of Venezuela (1898), Vol. I, pp. 21-22
Annex 134 Boundary between the Colony of British Guiana and the
United States of Venezuela, The Printed Argument on behalf
of the United States of Venezuela (1898), Vol. I, pp. 32-57
Annex 135 Boundary between the Colony of British Guiana and the
United States of Venezuela, The Printed Argument on behalf
of the United States of Venezuela (1898), Vol. II, p. 719
Annex 136 Boundary between the Colony of British Guiana and the
United States of Venezuela, The Printed Argument on behalf
of the United States of Venezuela (1898), Vol. II, pp. xvii-xix