Guyana challenges Venezuela’s referendum at the ICJ

Guyana’s challenge to Venezuela’s referendum, fixed for December 3, is to be heard by the International Court of Justice (ICJ) on November 14 in the Hague. The referendum calls on the Venezuelan electorate to answer the following questions: (i) do you agree or reject the 1899 Arbitral Award? (ii) do you support the Geneva Agreement as the only valid legal instrument for reaching a practical solution to the controversy; (iii) do you agree with the position of Venezuela of not recognizing the jurisdiction of the ICJ; (iv) do you agree to oppose Guyana illegally and in violation of international law, making use of the sea pending delimitation? (v) Do you agree with the creation of a ‘Guayana Esequiba’ State, and to grant Venezuelan citizenship and identity cards, in conformity with the Geneva Agreement and international law, consequently incorporating on the map of Venezuelan territory.

The Provisional Measures sought by Guyana include: (i) Venezuela shall not proceed with the referendum in its present form; (ii)Venezuela shall not include the questions at (i), (iii) and (v) in its referendum; (iii) Venezuela shall not include in the referendum any question encroaching on the legal issues to be determined by the ICJ including (a) the legal validity of the 1899 Award; (b) sovereignty over the territory between the Essequibo River and the boundary established by the 1899 Award and the 1905 Agreement; (c) the purported creation of a state of ‘Guayana Esequiba’ and the granting of citizenship and identity cards to its residents; (iv) Venezuela shall not take any actions that are intended or prepare or allow the exercise of sovereignty or de facto control over territory that was awarded to British Guiana in the 1899 arbitral Award; (v) Venezuela shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.

The Guyana Government argues that by the first question, Venezuela intends to secure an overwhelming popular mandate to reject the 1899 Arbitral Award and the boundary with Guyana to which Venezuela agreed in 1899 and in the 1905 demarcation, until 1962. Guyana advances the argument that by the third question, Venezuela hopes for an overwhelming mandate to reject the Court’s jurisdiction, which the Court affirmed in judgments on 18 December 18 and 6 April 2023, and abandon these proceedings. Guyana further proposes that by the fifth question, Venezuela seeks a mandate to proceed unilaterally to formally annex and incorporate Guyana’s territory awarded by the 1899 Award, which Venezuela refers to ‘Guayana Esequiba,’ into Venezuela as a new Venezuelan State, which is contrary to international law and the UN Charter and OAS Charters.

Guyana seeks to persuade the Court that the referendum cannot be seen otherwise than in the context that Venezuela seeks, not only to reject the 1899 Arbitral Award and the jurisdiction of the Court, but also as a threat to resolve to unilateral action to resolve the dispute over the land boundary by unilaterally and unlawfully seizing, annexing and incorporating into itself the territory that is claimed by both parties by which was awarded to Guyana in 1899 with Venezuela’s unconditional acceptance and which the rest of the world recognizes as Guyana’s sovereign territory.

Guyana argues that its rights to the territory awarded to it by the 1899 Award are directly threatened by Venezuela’s planned referendum and anticipated compliance with the “will of the people” in respect of their response to the fifth question calling on Venezuela for the incorporation of the ‘Guayana Esequiba’ (the

Essequibo region) into Venezuela. It is incontrovertible that Guyana has occupied this territory before 1899, was awarded it in 1899 and has lawfully occupied it since that time. Guyana’s right to continued occupation of Essequibo at this procedural stage is plainly lawful and any attempt by Venezuela to prejudice, or to alter the status quo by annexing Essequibo pursuant to the anticipated results of the referendum would prejudice Guyana’s rights and the Court’s determination of the matter. The question of the definitive settlement of the land boundary is before the Court and concerns both Guyana’s and Venezuela’s (alleged) rights to the territory in dispute, sovereignty to which will be determined by the Court. Venezuela’s declared intention of annexing the territory pursuant to referendum to be held before the Court gives its decision, unquestionably prejudices Guyana’s rights.

The referendum comes at a time when Venezuela is about to face general elections next year and is flexing its military muscle. The recent hysterical campaign of intimidation against Guyana, accusing it of being beholden to ExxonMobil, of seeking to collude with the US to establish a military base opposed to Venezuela, of awarding oil blocks in its maritime space, the building of a lighthouse in or near our maritime space and intimidating troop movements, have been flying thick and fast. In all of this, despite statements by Caricom, the OAS, the Commonwealth and the EU, Venezuela’s intention appears to be to decline participation in the case before the ICJ and to subvert its decision, based on the anticipated results in its referendum. Guyana, therefore, has to be on guard for hostile and threatening activities on its western border which will become more intimidating in the coming months.