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In handing down its decision in the Venezuela Referendum Case, another legal victory was scored for Guyana on the judicial battlefield, and it may have been Venezuela’s action, bombast, and rhetoric that became its undoing. The International Court of Justice (ICJ), after two prior cases, had already clothed itself in jurisdiction to hear the matter of provisional measures, which it dealt with with quick dispatch, yet a day before the petrostate of Venezuela is set to cast ballots in what Shiv Chanderpaul Dive in Georgetown viewed as annexation of its county of Essequibo.
In its 2020 judgment, the ICJ declared its jurisdiction to entertain the application filed by Guyana on 29 March. 2018, insofar as it concerns the validity of the 1899 Award and the related question of the definitive settlement of the land boundary dispute between Guyana and Venezuela. Additionally, in its 2023 judgment, the ICJ “found that it could adjudicate upon the merits of the claims of Guyana insofar as they fell within the scope of the operative clause of the 2020 judgment.” With two wins now under its belt, the hat trick would be for the ICJ to determine the “requirements for the indication of provisional measures” that Guyana now requested.
“The court must be concerned to preserve by such measures the rights which may subsequently be adjudged by it to belong to either party. Therefore, the court may ascertain this power only if it is satisfied that the rights ascertained by a party requesting provisional measures are at least plausible,” was the Court’s rationalization in the delivery of its decision on the Venezuelan Referendum Case recently. This link, the ICJ located, in Guyana’s desire that “Venezuela does not “take any actions that are intended to prepare or allow for the exercise of sovereignty or de facto control over any territory that was awarded to British Guyana in the 1899 award.”
The final hurdle to surmount would be satisfying the need for “urgency.” “The condition of urgency is met when the acts susceptible of causing irreparable prejudice can occur at any moment before the court makes a final decision in the case,” the ICJ stated. The court recalled that the fifth question of the referendum refers explicitly to the creation of the Guyana Essequibo State as well as an ‘accelerated and comprehensive plan to be developed for the granting of Venezuelan citizenship and identity cards to the population of that territory, consequently incorporating the Guyana Essequiba State into the map of Venezuelan territory.”
Additionally, the ICJ said it “observes that Venezuela’s Supreme Tribunal of Justice has confirmed the constitutionality of the questions to be posed in the referendum,” noting that “Venezuela stated during the oral proceedings that it will not turn its back on what the people decide in the referendum of 3 December 2023.”
Additionally, the ICJ considered that “On 24 October 2023, the President of Venezuela, Mr. Nicolás Maduro Moros, publicly stated that the referendum would give Venezuelans, for the first time, the means to take a collective decision as a country. Other official statements suggest that Venezuela is taking steps with a view towards acquiring control over and administering the territory in dispute. For instance, on 6th November 2023, the Minister of Defense of Venezuela, General Vladimir Padrino López, made an appeal to go to combat with reference to the territory in question.”
The ICJ said, “Furthermore, Venezuelan military officials announced that Venezuela is taking concrete measures to build an airstrip to serve as, “The court considers that in light of the strong tension that currently characterizes the relations between the parties, the aforementioned circumstances present a serious risk of Venezuela acquiring and exercising control and administration of the territory in dispute in the present case. It therefore concludes that there is a risk of irreparable prejudice to the rights claimed by Guyana in the present proceedings that the court has found plausible.”
The ICJ added, “Venezuela’s expressed readiness to take action with regard to the territory in dispute in these proceedings at any moment following the referendum scheduled for 3 December 2023 demonstrates that there is urgency. In the sense that there is a real and imminent risk of irreparable prejudice to Guyana’s plausible right before the court gives its final decision.” With such considerations in mind, the Court reasoned that the conditions for the indication of provisional measures were met.
In a third win for Guyana in its border controversy case with Venezuela, the ICJ’s binding decision reads thus: For these reasons, the court indicates the following provisional measures: One, unanimously, pending a final decision in the case, 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 Cooperative Republic of Guyana administers and exercises control over that area. Two, unanimously, both parties shall refrain from any action which might aggravate or extend the dispute before the court or make it more difficult to resolve.”
