Governance and Transparency

The Argyle Declaration and the Price of Peace with Venezuela: Guyana’s Saving Grace may be the International Value of a Declaration and Article 2 of Guyana’s Constitution

By

Dr. Gary Best

For sixty years and counting, Venezuela has occupied Guyana’s sovereign half of Ankoko island along the Guyana -Venezuela border. This should be kept in mind as we navigate the Argyle Declaration.

Importantly, the Argyle Declaration recently forged between Guyana and Venezuela leaves much to be desired, except the saving grace of weak international recognition for declarations and the power of Article 2 of the Guyana Constitution, which protects the borders of Guyana from changes except by a national referendum.

Nowhere in the Geneva Agreement (GA) of 1966 – the international instrument that provides the steps towards solving a claim by Venezuela that the 1899 Arbitral Award is not valid – is there any mention of a territorial dispute between Guyana and Venezuela. What is mentioned in the GA is a border controversy between Guyana and Venezuela. And there is a distinct difference between these two terms which, unfortunately, are being used interchangeably by many.

The GA refers to the claim by Venezuela as a border controversy because the 1899 Arbitral Award delimiting the border between British Guiana and Venezuela is a full, final and perfect settlement. Similar to the sanctity of titles in law, a disputant would have to prove fraud to dispossess the holder of such title. That was, and still is the situation that Venezuela finds itself in. The border controversy is therefore linked to an allegation by Venezuela of fraud/collusion by and among some of the arbitrators. Of course, the doctrine that he who alleges must prove applies to Venezuela.

Importantly also, for sixty years and counting, Venezuela has not been able to provide any evidence of fraud/collusion under the various non-judicious mechanisms within the GA. Consequently, and in keeping with the GA, this matter is now before the International Court of Justice (ICJ) for final determination. And the only issue before the ICJ is the ‘validity’ of the 1899 Arbitral Award, and not any territorial dispute. Venezuela, on the other hand, for the past sixty years and counting has pressed Guyana to discuss, within the framework of the GA, a ‘territorial dispute’, which Guyana continuously rejected and never discussed. In fact, the GA does not permit any such discussions. Hence, Venezuela’s actions within its own body politic to frame this issue as a territorial dispute. Consequently, the territorial dispute, as alleged by Venezuela, is linked to its spurious claim to Guyana’s territory. This essential difference between these two terms is key to understanding any significance of the Argyle Declaration where Guyana travels on a border controversy track within the GA, while Venezuela travels on a territorial dispute track outside of the GA.

So, what did the Argyle Declaration achieve for Guyana? What did Guyana gain? The main argument, by some, seems to be ‘peace’ with Venezuela, but at what cost? Notably, President Ali went into the discussions with President Maduro after Guyana had secured key provisional measures against Venezuela from the ICJ, to wit, “… the Bolivarian Republic of Venezuela shall refrain from taking any action which would modify the situation that currently prevails in the territory in dispute, whereby the Co-operative Republic of Guyana administers and exercises control over that area”; and “Both Parties shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.”

Against this backdrop, the ICJ Provisional Measure 1 recognized Guyana’s sovereignty over the Essequibo territory, and the ICJ Provisional Measure 2 recognized, indirectly, Venezuela as the aggressor having regard to its actions to annex Essequibo, post its consultative referendum. Further, the ICJ Provisional Measure 2 is repeated in the Argyle Declaration as points 1, 3 & 6. And, as pointed out at the beginning of this article, Venezuela has been an aggressor state to Guyana since 1966 when it occupied the entire Ankoko island. Significantly, Provisional Measure 1 has not been repeated in the Argyle Declaration. This is a major loss for Guyana in that nowhere in the Argyle Declaration has President Maduro committed to walking back his actions that threaten to annex sovereign Essequibo.

It is also clear that President Ali did not discuss the border controversy, as promised, since nothing was presented by Venezuela during the Argyle discussions to support its claim of collusion/fraud in the Arbitral Award of 1899. However, President Ali discussed with Maduro its territorial dispute with Guyana. This is quite exceptional and contrary to all previous actions by Guyana in that it is the first time any Guyanese Head of State has held any official talks about a ‘territorial dispute’ with Venezuela, as per Point 9 of the AD. A Venezuelan position that had never received any acknowledgment from Guyana, sixty years and counting. The discussion of a ‘territorial dispute’ between Venezuela represents what Venezuela has always wanted – bilateral discussions on a territorial dispute with Guyana, outside of the GA.

So far, Guyana has gained nothing new. But it gets worse with Point 4 of the Argyle Declaration. Here, Guyana and Venezuela declared that only Guyana is committed to resolving the border controversy via the ICJ. This is not a gain for Guyana, since the controversy is already at the ICJ. However, under the second limb of Point 4 of the Argyle Declaration, Guyana and Venezuela noted Venezuela’s non recognition of the ICJ’s jurisdiction in the border controversy. Here, Venezuela is clearly saying that it will not accept the findings of the ICJ. Of course, Venezuela is quite aware that no territorial dispute with Guyana is before the ICJ. Importantly, this non recognition of the ICJ is one of the key outcomes in the recent Venezuelan referendum. Another adverse result for Guyana. Points 7&9 of the Argyle Declaration where Guyana and Venezuela declared agreement in establishing a joint commission to discuss mutually agreed matters and “implications for the territory in dispute” is averse to Guyana’s interests, since it accords with Venezuela’s pursuit of bilateral discussions over a territorial dispute with Guyana, outside of the GA.

The declaration at Point 1 of the Argyle Declaration about not using force re matters “consequential to any existing controversies” is a moot one. Firstly, only one controversy exists, and that is a border controversy. Secondly, it is before the ICJ for final outcome. Thirdly, there can be nothing consequential to this matter since it has not yet been finalized. Therefore, its inclusion is averse to Guyana and beneficial to Caricom. Cumulatively, I am of the view that Venezuela is attempting, with the help of Guyana and Caricom, to restart the non-judicious procedures of the Geneva process, which have expired due to the controversy being finalized by the ICJ.

The only possible outcome for Guyana, after a careful examination of the Argyle Declaration is a declaration by Venezuela to be ‘peaceful’ towards Guyana. But this too can be contentious. So weak is a declaration in international law that it is worth a brief examination. In that regard, it is trite law that declarations are not cited as sources of international law. Additionally, they are of no, or limited legal effect and non-binding, except for a deliberate intention by the parties for them to be so, under the doctrine of aequo et bono. So, who else benefited from the Argyle Declaration, besides Venezuela? The answer is Caricom. From all appearances, it appears that Caricom set the ground rules and brokered an agreement to remain in the good books of President Maduro at the expense of Guyana. Debt cancellation, promises of debt restructuring and joint economic ventures ruled the roost. A legitimate question that arises is whether the government of Guyana left the door open or was it opened it before?

Another legitimate question that arises is whether President Ali had a national mandate to go so far as to discuss and include ‘territorial dispute’ in the Argyle Declaration? Put differently, did President Ali in accordance with Guyana parliamentary approval to only discuss a border controversy, needed to check back with the citizens of Guyana before committing to a declaration that includes the words ‘territorial dispute’? Did he therefore exceed his authority?

The Argyle Declaration, for the above reasons, falls outside the Geneva Agreement which has led to the ICJ, and before it which stands Guyana and Venezuela. This declaration is a standalone and of much lesser value in international law. Though Guyana may have placed itself on a slippery slope, its saving grace may well be the low international law value given to declarations and the power of Article 2 of the Guyana Constitution to preserve the boundaries of Guyana.