Guyana vs. Venezuela: how the past prevents us from living in the present: instead of a foreword

Available in Russian

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Authors: Elizaveta Rachkova, Iliya Rachkov

Keywords: arbitral award; Fyodor Fyodorovich Martens; Guyana; independence and impartiality of arbitrators; international arbitration; territorial disputes; The Hague Peace Conference of 1899; United Kingdom; Venezuela

Abstract

For the first time, we publish an excerpt from the diaries of Fyodor Fyodorovich Martens (15 August 1845 – 9 June 1909), an outstanding Russian international lawyer, whose memory is still honored by many states and international organizations. The excerpt contains Martens’ memoirs of the arbitration of a dispute between Great Britain and Venezuela in 1899. The dispute concerned the territorial delimitation between Venezuela and British Guiana (now Guyana). Although in 1899 this dispute was decided by a unanimous award of five arbitrators, its consequences still have repercussions, as Venezuela did not accept the results of the arbitration. One of the main reasons for this dissatisfaction of Venezuela with the award was that allegedly F. F. Martens was not completely impartial and independent when the panel of arbitrators was resolving the dispute. This opinion was expressed before his death in 1944 by Severo Mallet-Prevost, a member of the legal team representing Venezuela. He dictated a memorandum to his colleague in a New York law firm. In 1949, after Mallet-Prevost’s death, this colleague of his, Otto Schoenrich, published a memorandum in the “American Journal of International Law”. Venezuela considered that what was stated in the memorandum gave it the right not to obey by the award of 1899. Due to this, in 2018, Guyana felt itself compelled to apply to the International Court of Justice, the main judicial body of the United Nations. Guyana demanded that the ICJ rule that the 1899 award was valid and binding on Guyana and Venezuela, and that the boundary established by that award and the 1905 Agreement was also valid. On 18 December 2020, the ICJ ruled that this aspect of the dispute falls within its jurisdiction (which Venezuela objected to). It follows from the published excerpt that Venezuela’s suspicions of lack of impartiality and independence on F. F. Martens’ side are unfounded. The ICJ is likely to grant Guyana’s claim on the merits. An opposite judgment would mean the repudiation of a number of important principles of international justice, at least such as legal certainty and good faith performance of obligations established by a competent international judicial body.

About the authors: Ilya Rachkov – Candidate of Science (Ph.D.) in Law, Associate Professor of the Department of International Law, MGIMO, Ministry of Foreign Affairs of the Russian Federation, Moscow, Russia; Elizaveta Rachkova – Student of the Master of International Dispute Settlement program, Geneva, Switzerland; Lawyer, Nektorov, Saveliev & Partners, Moscow, Russia.

Citation: Rachkov I., Rachkova E. (2022) Delo Gayana protiv Venesuely: o tom, kak proshloe ne dayot zhit’ v nasto­yashchem: Vmesto predisloviya [Guyana vs. Venezuela: how the past prevents us from living in the present: Instead of a foreword]. Mezhdunarodnoe pravosudie, vol. 12, no. 1, pp. 113–121. (In Russian).

References

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