Guyana-Venezuela and International Law. A response to Sir Ronald Sanders – By Dr. Kenneth Ramírez & Prof. Mirna Yonis (*)
Regional and indeed global attention has focused on Guyana’s general election of today 2 March 2020, because it represents the latest stage in its domestic political crisis and also in the historic controversy over land and maritine frontiers with Venezuela, that have been unfolding ever since the US oil giant ExxonMobil discovered significant oil resources in disputed waters with Venezuela.
When the coalition between A Partnership for National Unity and Alliance for Change (APNU-AFC) won the general election in May 2015, there was a degree of general optimism that Guyana had finally leaving behind decades of ethnic division and political polarisation in favour of one multi-ethnic power-sharing. President David Granger promised to tackle the country’s high crime rate, unemployment, and corruption, as well as drug and human trafficking. However, this policy agenda was swiftly eclipsed by oil ambitions, with ExxonMobil also announcing in 2015 that it had discovered high-quality oil about 200 km off the Essequibo coastline. Total discoveries since then, have been estimated in over 8 billions barrels of oil equivalent and Guyana could see its GDP triple in the next decade. Unfortunately, new political battle lines have been drawn over who will managed the oil wealth.
Critics and opponents, not least the People’s Progresive Party (PPP), have questioned the Granger Administration handling and negotiation of contracts. Under the production sharing agreement (PSA) between ExxonMobil and Guyana, 75 per cent of oil revenue will initially go to the company by way of cost recovery. The remaining 25 per cent will be split 50/50 with the Government. The contract includes an effective royalty rate of 2 per cent on gross earnings, meaning the Government will receive a total of 14.5 per cent of initial oil revenues, rising gradually over time. The deal also exempts ExxonMobil from corporation, excise, and value-added taxes on its earnings. These conditions are hard-wired into the PSA by its own Article 32, which prevents the Government from modifying the contract or increasing fiscal obligations. Similar terms have been reached in PSAs with other oil concessions. A clearly unfair type of contracts that rememeber the “neo-colonial oil concesions” that signed the Venezuelan dictators a century ago. Even the International Monetary Fund (IMF) and the NGO Global Witness have suggested that these contracts only favour the investors, not the Guyanese people.
In December 2018, tensions over the PSAs culminated with a “motion of no confidence” won by the leader of the political opposition and former President Bharrat Jagdeo. A general election should take place within three months according with Guyana’s Constitution, but President Granger instead contested the result with very weaks arguments –like the case of Mr. Charandas Persaud, a member of the coalition APNU-AFC elected in 2015 to the Parliament, who was the deciding vote in the motion of no confident, and Presidente Granger said in 2018 he has no right to hold the office because is a dual citizen Guyanese-Canadian; a change for convenience that pretend to ignore a very common human situation in Guyana and our the Caribbean region. On 18 June 2019, the Caribbean Court of Justice (CCJ) ruled that the “motion of no confidence” was valid. It should have started a new election cycle very fast, but it didn’t. It was not until 25 September 2019 that President Granger announced the general election that be held today. There is a widespread perception that he has been deliberately playing with the times to prevent any new Government making changes to the existing PSAs.
In December 2019, ExxonMobil announced “first oil” production, making it much harder for any incoming Government to renegotiate terms. This has also coincided with a number of announcements about infrastructure investments that President Granger has been using in his favor during the electoral campaign. Having engineered an election on his own terms, what kind of precedent President Granger has set for Guyanese politics? Certainly, a dangerous game that we know perfectly well because has been usual in Venezuelan politics in the last decades, eroding our instititutions and destroyed our democracy. With that path Guyana will be suffer in the future as Venezuela do in the present: the resource curse.
At the international level, President Granger not only focused on promoting the new oil discoveries and the potential future of his country, but he made a series of provocative unilateral acts such as the incursion into Venezuelan jurisdictional waters of two seismic exploration vessels on 22 December 2018: Ramfor of the Bahamas flag and Delta Monarch of the Trinidad and Tobago flag (Latitude 09°17‘4“ N Longitude 058°15’7” W and Latitude 09°15‘0 “Longitude 058°17’3” W, in the maritime projection of Orinoco Delta, indubitably under sovereignty of Venezuela), both hired by ExxonMobil and whose crew claimed to have a permit from the Guyanese Government. President Granger sought –with that risky gamble– to take advantage of the bad reputation well-earned by the regime of Nicolás Maduro and the weakening of PetroCaribe, in order to victimize its Government and gain sympathies in the Caribbean and the World, making look the legitimate protection of our maritime spaces as a Venezuelan aggression and trying to put aside decades of solidarity with our Caribbean region. With that imposture, and the collaboration of a few cynical Caribbean diplomats that support the regime of Nicolás Maduro in the Organization of American States (OAS) in the name of the principle of Non-Intervention and speak up at the same time about the dangerous of this regime for the security and territorial integrity of Guyana in CARICOM, President Granger sadly has obtained some diplomatic support to its unilateral application for instituting proceedings against Venezuela filed at the International Court of Justice (ICJ) on 29 March 2018; in opposition to the spirit and letter of the Agreement to Resolve the Controversy over the Frontier between Venezuela and British Guiana (commonly known as the “Geneva Agreement”, signed on 17 February 1966 by representatives of United Kingdom and Venezuela, as well as the former Prime Minister of British Guiana, Mr. Forbes Burnham).
The crude objective of President Granger has been a quickly close of pending controversy over Essequibo with Venezuela and obtain certain legal security for its oil concessions. It is well known that Venezuela indicated, under Article V of the Geneva Agreement, that the oil concessions have no effect on the titles and rights of Venezuela over the Essequibo and its marine and submarine areas. It has also expressed concern about the presence of transnational oil companies, which adds foreign elements to the controversy. In fact, ExxonMobil is helping Guyana Government to cover the legal fees of its unilateral application against Venezuela.
In three weeks after the today general election of Guyana, between March 23 and 27, the ICJ will begin the oral hearings in order to resolve the question of its jurisdiction, that it properly should be determined before any proceeding on merits of the case. Guyana submits that the Article IV of the Geneva Agreement authorized the UN Secretary-General to decide which appropriate mechanism to adopt for the peaceful settlement of the dispute, in accordance with Article 33 of the UN Charter, and cited the arbitrary and eclectic statement of the UN Secretary-General Mr. António Guterres on 30 January 2018, where he said that “chose” the ICJ and also good offices as complementary process. Nevertheless, with that decision UN Secretary-General misunderstood and exceeded his authority under Article IV of the Geneva Agreement, because Article 33 of UN Charter referred in general about “judicial settlement”; while the ICJ has specific norms (Statute and Rules) about how works. All members of the UN are Parties ipso facto to the Statute of the ICJ, but Article 36 of the Statute and jurisprudence of ICJ are very clear: the States must unequivocal consent –in accordance with principle of sovereignty– its compulsory jurisdiction in order to ICJ could pass judgment upon disputes. It is a principle of International Law that lex specialis prima, and UN Secretary General could not replace the will of a sovereingty State.
In other hand, Venezuela has a inveterate doctrine of foreign policy that consist in not submit issues related with its territorial integrity to adjudicative methods that involve the settlement of these disputes by international tribunals; due to its traumatic historical experience with international arbitrations in 19th century like the shady, null and void Arbitral Award of 1899, which was decided behind its backs and enforced under the threat of coercion of the great powers.
For these reasons, Venezuela is not participating in the proceedings. Never has gived its consent the jurisdiction of the ICJ neither by way of any unilateral statement under Article 36 of its Statute, through any multilateral treaties like Bogotá Pact or the UNCLOS, nor signed any special agreement with Guyana conferring competence to the ICJ in the matter of controversy. Moreover, the Geneva Agreement was not notified to the Registry of the ICJ, after being registered by United Nations Secretariat on 5 May 1966 under number 8192, because it did not include any clause relating to the jurisdiction of the ICJ.
Other issues remain open about the admisibility of the Guyana unilateral application: a) Diplomatic methods have not been exhausted; b) The absence of the indispensable Party that generated this controversy in the past, the United Kingdom –also signatory of Geneva Agreement–, which neither recognizes the jurisdiction of the ICJ for historical controversies before 1987; c) Guyana demands the Venezuelan “inmediatly withdraw” of the Island of Anakoko which belong to Venezuela and not even it is mention in Arbitral Award of 1899; d) Guyana asks for sovereign rights on maritime areas, and it is worth to remembering, that according with the International Law, only when the Parties have peaceful resolved its controversy over the land frontier, could be proceed to negotiations in order to delimit marine and submarine areas, because it is another pending controversy.
Consequently, the ICJ following the International Law will determine soon it has not jurisdiction, and the controversy over Essequibo come back again to the hands of UN Secretary General and the Parties in order to agree a diplomatic method that really fits with the Geneva Agreement, which established the purpose of “seeking satisfactory solutions for practical settlement of the controversy” and stated that it “should therefore be amicably resolved in a manner acceptable to both Parties”.
Venezuela has not claimed rights to two-thirds of the territory of Guyana; it reclaim that was traumatically stripped of a fifth part of its territory by the old British imperialism in its first years of independent life; a poisoned fruit which was inherited by the peoples of Guyana and Venezuela. Anyway, the Geneva Agreement has been a new chapter to resolve the controversy over Essequibo, which was the outcome of a great mix of technical investigation and diplomatic work, allowing left behind the painful wound of the null and void Arbitral Award of 1899. However, let’s cited the opinion of a prominent opponent of this agreement, the founder of PPP and former President of Guyana, Cheddi Jagan, in his book The West on Trial: My Fight for Guyana’s Freedom: “Recognition was thus given to the spurious Venezuelan territorial claim, and what was a closed case since 1899 was re-opened”. Therefore, it is a unsustainable contradiction to invoke the Geneva Agreement to unilateral filed an application in order to requests to the ICJ “to confirm the legal validity and binding effect” of the Arbitral Award of 1899.
Some Caribbean diplomats conveniently ignore all these arguments, and affirm that the unilateral judicial road followed by Guyana against Venezuela must be considered an amicably way, that it will be the warranty to permanently resolve the pending controversies over land and maritime frontiers, and it would constitute a positive base to build a stronger cooperation between these two Caribbean “continental islands” and next-door neighbors in the long term. Notwithstanding, this diplomats must intrigue less, and read more to Sir Norman Girvan –a distinguish Caribbean intelectual and the last Special Representative of the UN Secretary-General to advance good offices process to resolve the controversy over Essequibo, that regrettably passed away in 2014–, who appealed for constructing the Greater Caribbean: “We will always be where we are; and the Sea always be with us. We have no choice but to centre our world on this space; to embrace our Sea and make it ours”. For the association and benefit of our peoples, not for oil companies profits and politicians/diplomats short-sighted.
(*) Dr. Kenneth Ramírez & Prof. Mirna Yonis are members of the Board of Directors of the Venezuelan Council on Foreign Relations (for its spanish acronym, COVRI) and professors at the School of International Studies –Universidad Central de Venezuela (UCV).
To read the article of Sir Ronald Sanders click here: http://www.sirronaldsanders.com/viewarticle.aspx?ID=734