By Saheli Chowdhury – Jan 19, 2024
The Essequibo issue in times of neocolonialism
Since the time of the 1899 Arbitral Award, colonialism has changed its spots. Its latest manifestation, neocolonialism, has blurred many lines that had been well defined in the past. At present, the Empire need not always remain front and center; it can act through proxies—both countries and corporations—to maintain hegemony and earn profits at lower costs, while at the same time creating confusion among potential anti-imperialist forces. It generates even greater confusion by wearing a multicultural face and appropriating language traditionally used by anti-colonial movements in the past, words such as “sovereignty” or “self-determination.” It also utilizes so-called multilateral platforms, such as the United Nations and its various bodies, to maintain colonial domination of finances, resources, and even of apparently sovereign States. All these factors converge in the evolution of the Essequibo dispute in recent years, which is a part of the hybrid war against Venezuela carried out by the US Empire, a worthy descendant of the British Empire.
ExxonMobil: Venezuela’s old enemy threatens in the undelimited waters
The Essequibo issue assumed a new and dangerous dimension with the appearance of Venezuela’s century-old enemy, ExxonMobil Corporation, on the scene. Although the US oil corporation got its new name only in 1999, its predecessor, Standard Oil, and the Venezuelan State have been involved in a protracted conflict since the early years of the twentieth century.
In 1905, Venezuelan President Cipriano Castro enacted a Mining Law aimed at regulating mining concessions, especially in the oil sector. By that time some foreign oil corporations were already enjoying exploration and extraction concessions in Venezuela, such as the New York and Bermúdez Company with US capital that operated with the Venezuelan Compañía Nacional Minera Petrolia del Táchira. The Mining Law granted oil concessions for 50-year periods on the condition that the concessionaires paid substantial taxes to the Venezuelan government. Castro had a mistrust towards companies based in Europe and the US, and he had good reason. Towards the start of his term Venezuela had suffered a humiliation at the hands of European colonial powers, de facto supported by the US. In 1902, Britain, Germany, and Italy unleashed what they dubbed a “peaceful blockade” against Venezuela for nonpayment of debts. In the so-called peaceful blockade, naval vessels of the three European colonial powers seized Venezuelan ships docked in La Guaira and attacked Puerto Cabello, Maracaibo, and other ports. Although Cipriano Castro urged the US to activate the Monroe Doctrine, and the foreign minister of Argentina, Luis María Drago, tried to rally regional support for Venezuela and lobby the US to ensure that European countries could not occupy American nations over debt payment failures, US colonialism chose to side with its European counterpart and forced Venezuela to accept the European demands.
However, Castro’s attempt to regulate foreign oil companies on Venezuelan soil was short-lived, as his government was overthrown in 1908 in a military coup led by Juan Vicente Gómez. According to Venezuelan historian Argenis Agüero, there were US oil interests behind this coup, as indicated by Gómez’s actions. As the historian explained, Gómez disappeared the Compañía Nacional Minera Petrolia del Táchira, the first Venezuelan oil company, and instituted a concessions and shares transfer system that hugely benefited US and European companies, especially the British-Dutch company Royal Dutch Shell, and US-based Standard Oil, property of tycoon John D. Rockefeller. The Venezuelan “subsidiary” of Standard Oil was named Creole Petroleum Corporation, which enjoyed extensive tax benefits and reaped enormous profits while leaving Venezuela with crumbs.
It is interesting to note that Shell and ExxonMobil (descended from Standard Oil) are currently the two largest oil corporations in the world in terms of assets.
The coup against Cipriano Castro would be Standard Oil’s first interventionist act in Venezuela but certainly not the last. In 1943, President Isaías Medina Angarita enacted an oil reform through a Hydrocarbons Law, ensuring that the Venezuelan State received 50% of profits in all oil projects, a law that was nicknamed “fifty-fifty.” The Hydrocarbons Law also made it mandatory for the concessionaires to pay not only the taxes established in the law but also all general taxes that the State may establish at its discretion. The law set the royalties at 16.5% and obligated the concessionaires to pay 30% income tax. This law tried to ensure that the Venezuelan State would receive adequate benefits from the oil industry. Creole Petroleum Corporation lobbied hard to stop the enacting of the law, and the situation reached such a point that President Medina declared the president of the oil company as persona non grata.
All this soured the relationship between Medina and US President Franklin D. Roosevelt, whose government was involved in low-intensity interventionist actions in both West Asia and Latin America to impose US control on oil resources. The US had already lost its grip on Mexico’s oil resources due to the nationalization of the Mexican oil industry by President Lázaro Cárdenas (1934-1940), and therefore Roosevelt was intent on not losing control of Venezuelan oil as well. He set up a dialogue between the US oil corporations and the Venezuelan government, with US State Department’s Max Thornburg as a mediator in the dispute, though this negotiation was only a means for buying time to prepare for a coup at the opportune moment. It came in 1945 when Medina was overthrown in a civic-military coup led by Democratic Action leader Rómulo Betancourt and Divisional General Marcos Pérez Jiménez who would become a dictator and rule Venezuela until 1958. That US oil interests were behind the coup was revealed by the fact that the coup government withdrew Medina’s Hydrocarbons Law and guaranteed Creole Petroleum Corporation’s “property rights” in Venezuela.
The “democratic” governments that followed Pérez Jiménez were no different when it came to foreign oil interests. Although the Venezuelan State received significant royalties from foreign oil activities in Venezuelan territory, the majority of the profits left Venezuela, which is the premise of neocolonialism. Whatever stayed in the country was concentrated in the hands of a few. By the 1970s Venezuela came to be known as Venezuela Saudita (Saudi Venezuela), referring to its oil activities like Saudi Arabia, but almost 70% of the country’s population lived in extreme poverty. It may be noted that the pattern is currently being repeated with ExxonMobil’s predatory relationship with Guyana.
In 1999 Venezuela opened a new chapter in its history with the election of Hugo Chávez as the president of the country. That same year Standard Oil got its new name, ExxonMobil, though it remained the same predatory corporation as ever. In 2001, President Chávez enacted a Hydrocarbons Law intending to ensure greater participation and profits of the Venezuelan State corporation Petróleos de Venezuela (PDVSA) in the oil industry, the principal source of income for the State. Foreign oil multinationals, considering their interests harmed by the new law, conspired with the Venezuelan extreme right and some big business associations as well as the US government and overthrew Hugo Chávez on April 11, 2002. Although the Venezuelan people defeated the coup within 48 hours, the coup attempts did not stop. At the close of 2002, there came the “Oil Strike,” a large-scale sabotage operation against the country’s principal industry, organized by the national extreme right and the private sector associations including the Chamber of Commerce (Fedecámaras), but with the oil multinationals and the US government in the background, as emphasized by President Chávez. Nevertheless, although the paralyzation of the oil industry caused huge losses for Venezuela, it could not achieve its goal of deposing Chávez.
In 2007, President Chávez started a new phase of nationalization of the oil industry and the oilfields, in most of which foreign corporations, including ExxonMobil, had majority participation. In order to implement public control of the country’s oil resources, Chávez created the joint venture modality—a system of concessions and consortiums by which the Venezuelan State would become the majority shareholder in the joint ventures while private corporations would remain as minority shareholders.
The Chávez administration invited all foreign oil companies operating in Venezuela to participate in the process. However, ExxonMobil and another US company, ConocoPhillips, refused to participate, so the Venezuelan government expropriated their assets in the country and paid them compensations within the framework of Venezuelan legislation and settlement mechanisms. But both companies sued the Venezuelan State in multiple courts in the United States claiming billions of dollars in alleged damages and even filed cases against Venezuela before the World Trade Organization (WTO) in 2008. Due to the US and EU sanctions against Venezuela, including targeted sanctions against individuals associated with the Venezuelan State and broader sanctions against Venezuelan State institutions as well as public and private sectors—some of these sanctions dating back to 2008, the Venezuelan government has been barred from defending its interests before foreign judicial instances. Additionally, by creating and propping up the parallel fake “interim government” of Juan Guaidó since February 2019, the US government has illegally taken possession of Venezuelan State assets in US territory and has sought to give them away to ExxonMobil and ConocoPhillips to “compensate” them. An infamous example of this is the conspiracy to rob Venezuela of the CITGO refineries and give away a part of its assets to ConocoPhillips, assisted by the Guaidó gang. ExxonMobil has also tried to steal PDVSA assets in Bonaire, an overseas territory of the Kingdom of Netherlands (occupied Venezuelan territory since 1634).
Given this history, the Venezuelan government was rightly concerned when ExxonMobil appeared in the undelimited waters contiguous with the Zone Under Reclamation. The multinational corporation set its sights on Guyana in 2008, just after losing its assets in Venezuela. In early 2015, the company announced the discovery of high-quality light oil in one of the off-shore wells it was exploring, Liza-1, containing an estimated 500 million barrels of crude. The issue is that the reserve lies in the undelimited sea between Venezuela and Guyana, contiguous with the Essequibo coast (the sections of the territorial waters between Venezuela and Guyana was discussed in the previous installment of this series). The undelimited waters are technically not part of the Essequibo dispute, although if and when the time for new border delimitation comes, the two countries would have to negotiate the maritime border also. Even in that case, the whole of the undelimited sea cannot belong to Guyana under any circumstances. Yet, in 2015, just after the discovery of the off-shore petroleum reserve, Guyana unilaterally changed its maritime borders, intruding into the recognized Venezuelan territorial sea and reaching up to the coast of the Venezuelan state of Delta Amacuro, intersecting its arbitrary line with the Trinidadian maritime border and thus cutting off Venezuela’s access to the Atlantic.
As displayed in the map, ExxonMobil divided the undelimited waters and even the illegally occupied part of the Venezuelan territorial sea into a number of oil blocks. Between 2015 and 2023, ExxonMobil found 46 oil reserves in this region, the majority of which are in the Stabroek Block that is already in production.
In response to this violation of Venezuela’s maritime borders, President Nicolás Maduro issued Decree 1,787 on May 26, 2015 (published in the Official Gazette of the Bolivarian Republic of Venezuela on May 27, 2015) through which the Venezuelan government created the Maritime and Insular Integral Defense Zones (Zodimain) to safeguard Venezuela’s insular regions and territorial waters. The decree added the maritime projection of the Essequibo (undelimited waters) to the recognized Venezuelan access to the Atlantic, defining it as the Atlantic Zodimain (Venezuelan Atlantic Façade). The southern boundary of the Atlantic Zodimain intersects with the maritime border of Suriname, which leaves Guyana without any access to the Atlantic. This flare-up of the dispute over the binational territorial waters is reminiscent of the incidents of 1968 which happened due to the same reason—Guyanese concessions for oil exploration in the contiguous waters of the Essequibo.
The transnationalization—or rather Exxonization—of the Essequibo and its contiguous waters is not a blow to Venezuelan sovereignty only, but to Guyana’s sovereignty as well. According to an investigation by The Intercept, ExxonMobil has inserted itself into all aspects of the political and institutional system of Guyana and is forcing the Guyanese government to promote institutional and legal reforms and weaken environmental protective legislation to institute an oil exploration and production concession regime beneficial to the multinational. “Where the company ends and the government begins is increasingly unclear,” the report commented.
This situation is extremely dangerous for Venezuela because ExxonMobil is not just any multinational corporation. Apart from the fact that ExxonMobil considers itself the owner of resources that do not belong to it (even without getting into the dispute about whether the oil resources of the undelimited waters belong to Venezuela or to Guyana), the company’s transnational power has a military aspect also. Blackwater (now Academi), the largest mercenary supplier organization in the world, with connections to the Zionist entity, is Exxon’s paramilitary arm. This is in addition to the US imperial power that would protect Exxon’s interests everywhere in the world. Hence, the presence of Exxon in the land and water of the Essequibo implies militarization and possible mercerization of the disputed zone, and the formation of beachheads of the US military power to attack Venezuela. Therefore, starting in 2015, the Essequibo issue grew beyond its character of territorial dispute and became a national security issue for Venezuela. The actions of the Venezuelan government in response to this very real threat are not a product of paranoia nor expansionism, unlike what has been alleged by many.
Intrigue and corruption in United Nations and International Court of Justice
International law has been weaponized against Venezuela in this dispute, with indications of lobbying and bribery by ExxonMobil at the highest levels of relevant UN bodies.
The Exxonization of the Guyanese State and its militaristic turn regarding the Essequibo dispute began with the arrival of David Arthur Granger to the presidency of Guyana. Granger is a retired general of the Guyanese army, leader of the right-wing party Partnership for National Unity, educated in the US and the UK, and received military training in the UK and special courses in the US, including at the National Defense University in Washington DC and the University of Florida. He became the president of Guyana in the same year when ExxonMobil found oil in the undelimited waters.
These conditions provided ExxonMobil a fertile ground to start “Exxon diplomacy.” Exxon lobbies sold dreams of incredible oil wealth to President Granger and the government of Guyana if only they could get rid of the pesky Essequibo problem, and incited them to abandon the UN secretary general’s good offices procedure which Venezuela and Guyana had been maintaining since 1988. In 2014 the then Good Officer Norman Girvan passed away before the end of his mandate, and by mid-2015 UN Secretary General Ban Ki-Moon was yet to designate a new good officer. ExxonMobil started lobbying at the highest levels of the United Nations, including the Office of the Secretary General, to ensure that the case would be transferred to the International Court of Justice irrespective of whether Venezuela agreed to it or not. These backdoor deals were exposed in an investigation by Venezuelan political scientist Ricardo Salvador de Toma-García, coordinator in Brazil of the collective Mi Mapa de Venezuela Incluye Nuestro Esequibo (My Map of Venezuela Includes Our Essequibo). According to his findings, ExxonMobil made financial contributions for Guyana to pay its ICJ lawyers’ honorariums three months before UN Secretary General Ban Ki-Moon would announce his decision to refer the case to the ICJ in case the good offices procedure failed. De Toma-García referred to a letter from the Ministry of Finance of Guyana, dated September 20, 2016, addressed to the head of the Bank of Guyana, and signed by the finance secretary of the Guyanese government. The letter requested the Bank of Guyana chief to open a foreign currency account (USD) to receive a “signing bonus granted by ExxonMobil.” De Toma-García explained:
The publication of this letter demonstrates that the secret pact between ExxonMobil and the government of Guyana was made three months before UN Secretary General Ban Ki-Moon notified the parties [Venezuela and Guyana] about the definition and extension of the enhanced good offices mandate for one year, which only in the hypothetical case of its failure would lead to the referral of the case to the ICJ by his successor António Guterres.
According to the Guyanese authorities themselves, this was the reason behind the transfer of the bonus by ExxonMobil. It can be assumed, therefore, that before the corporation’s senior executives sent the letter of September 20, 2016, they had already anticipated the decision that Ban Ki-Moon would announce on December 16, 2016, to the point of anticipating the facts and coordinating with the government of Guyana its financial contribution for the payment of the lawyers who would represent the country at the ICJ. All this occurred 15 months before António Guterres referred the case to the ICJ.
In other words, ExxonMobil made every effort to ensure that the case ended up with the ICJ without Venezuela’s consent.
That ExxonMobil pays Guyana’s legal expenses at the ICJ has been admitted by Guyanese government officials themselves. Raphael Trotman, former minister of Natural Resources, openly admitted to Guyanese media that the Guyanese government had received “advanced payments from ExxonMobil to safeguard the territorial integrity of the country.” It is strange to see “ExxonMobil” and “territorial integrity” in the same sentence, given ExxonMobil’s disregard for matters like territorial integrity in countries around the world. But the more important words were “advanced payments,” which referred to the “signing bonus” that ExxonMobil had ostensibly paid for an oil exploration contract.
Another Guyanese ex-official, former Foreign Affairs Minister Carl Greenridge, explained to the Guyanese parliament in December 2017 that the government had used $15 million of the $18 million received as “signing bonus” from ExxonMobil to cover Guyana’s legal fees at the ICJ. This was before Guyana had filed its case against Venezuela; instead, this was the time when UN Secretary General Guterres had just referred the Essequibo issue to the ICJ, that is, this was before the formal initiation of the legal proceedings by Guyana. One wonders what matters the government of Guyana could be spending Exxon money at that time. Another matter of investigation would be how much ExxonMobil has “invested” until now to cover Guyana’s legal expenses at the ICJ.
The majority of the lawyers contracted by Guyana for its ICJ case are members of two law firms, namely, Matrix Chambers based in London, Brussels, and Geneva, and Foley Hoag LLP headquartered in New York. Foley Hoag’s claim to fame is being a multimillion-dollar lobby of Big Pharma and Green Capitalism, that has arm-twisted the US Food and Drug Administration (FDA) in favor of multinational pharmaceutical corporations and tried to steal the livelihoods of a million people dependent on fishing in the US East Coast to favor a private wind energy program. On the other hand, Matrix Chambers represented ExxonMobil and ConocoPhillips in their 2008 case against the Venezuelan State at the WTO. In 2014, James Crawford, the founder of Matrix Chambers, was elected a judge of the ICJ, and he remained at that post until his passing in 2021. It was under his watch that the ICJ expanded its mandate and declared itself competent to hear Guyana’s case against Venezuela. This should fall under conflicts of interest, but it appears that the ICJ has no issue with conflicts of interest.
Guyana formally filed its case before the ICJ on March 29, 2018, requesting the body to:
- declare the validity and binding effect of the 1899 Award and respect for the boundary established in the 1905 Agreement;
- that Venezuela withdraw its occupation of the eastern part of Anacoco Island and other territories recognized by the Paris Award and the 1905 Agreement;
- that Venezuela refrain from threatening or using force to prevent the development of Guyana’s economic activities in its territory;
- declare Venezuela responsible for the violation of Guyana’s sovereignty and, consequently, for any violation of Guyana’s rights.
Although both Guterres’ referral of the Essequibo dispute to the ICJ and Guyana’s initiation of proceedings at the ICJ were unilateral, that is, without consulting Venezuela, and hence invalid under the Geneva Agreement of 1966, both tried to justify their actions by referring to the agreement. In its memorial on the jurisdiction of the ICJ to hear the case, filed before the ICJ on November 19, 2018, Guyana argued that the ICJ has jurisdiction, citing Article 4.2 of the Geneva Agreement which contains a cross-reference to Article 33 of the United Nations Charter, that mentions the UN Secretary General and the International Court of Justice as the final instances for seeking a solution. According to Guyana, consent for the ICJ’s jurisdiction does not have to be expressly stated by both parties to the dispute. Instead, Article 4.2 of the Geneva Agreement, in conjunction with Article 33 of the United Nations Charter, is equivalent to the consent of the parties required to establish the jurisdiction of the ICJ.
To back up its arguments on the ICJ’s jurisdiction, Guyana also cited Article 36.1 of the Statute of the ICJ, which states that the Court’s jurisdiction ratione materiae or jurisdiction based on “the merits of the case and the substance of the matter” is mandatory for all disputes brought before the Court. Yet, on inspection, this argument does not hold up. By virtue of Article 36 of the Statute, a State party to the ICJ may express its recognition of the jurisdiction of the ICJ as compulsory with no need for any special agreement. But this requires the same expression of will on the part of the other State involved in the dispute. In the Essequibo case, the “expression of will” does not exist on the part of Venezuela. Similarly, Article 36.3 of the Statute, the optional clause, allows a State party to make its declaration of recognizing the jurisdiction of the ICJ, subject to a condition of reciprocity or a condition of time. The condition of reciprocity implies that a party declares that it accepts the jurisdiction of the ICJ subject to the condition that the other party also accepts the jurisdiction of the ICJ, while the condition of time implies that a party declares to accept the ICJ’s jurisdiction only if the other party accepts it within a certain period. Considering the Geneva Agreement in conjunction with Article 36.3, the condition of reciprocity is mandatory, which does not exist in this case either, as Venezuela, since 1982, has consistently refused to involve the ICJ in the dispute.
In response to Guyana’s memorial filing, Venezuela did not file a counter-memorial, but the Foreign Affairs Ministry of Venezuela sent a memorandum and two letters, dated November 29, 2019, and July 24, 2020, addressed to the president of the ICJ, expressing that Venezuela does not recognize the jurisdiction of the ICJ to hear Guyana’s case and therefore would not formally participate in the proceedings. Addressing the jurisdiction issue, the memorandum emphasized that, according to Article 4.2 of the Geneva Agreement, the choice of means of settlement by the UN Secretary General must be done successively, gradually, and progressively, so that a new means is only chosen when the previous one has failed. Such choice must be previously agreed by both parties. This did not happen when Secretary General António Guterres unilaterally referred the case to the ICJ, after which Guyana unilaterally filed a case against Venezuela before the ICJ, “invoking as the sole basis an election made by the Secretary General of the United Nations which does not correspond to his powers under Article 4.2 of the Geneva Agreement and which, in any case, is in itself insufficient to justify a unilateral action.”
The memorandum also highlighted the inconsistency between the subject matter of the dispute under the Geneva Agreement and the subject matter of the claim brought by Guyana before the ICJ. The Geneva Agreement is not intended to determine the validity or invalidity of the Arbitral Award, as opposed to Guyana’s claim before the ICJ. Such a discussion would have made it impossible to adopt the Geneva Agreement because of the antagonistic views of the parties. On the contrary, the purpose of the Geneva Agreement is to resolve in a practical and peaceful manner the controversy over the sovereignty of the disputed territory, without involving the Award.
Further, the memorandum reminded the Court that in the negotiations that led to the Geneva Agreement, both the United Kingdom and Guyana “vigorously resisted the legal means of settlement, including recourse to the International Court of Justice, proposed as a last resort by Mr. Iribarren Borges, who was then Minister of Foreign Relations of Venezuela.” Therefore, resorting to the ICJ now is a contradictory action on the part of Guyana.
Given Venezuela’s non-recognition of the jurisdiction of the ICJ, the Court held an ancillary proceeding on its jurisdiction, in a public and virtual hearing (because of the pandemic) held on June 30, 2020, at the Peace Palace in The Hague, Netherlands, presided over by then ICJ President Abdulqawi Ahmed Yusuf. In this case, the ICJ acted following Article 36.6 of its Statute, which provides that in the event of a dispute regarding the jurisdiction of the ICJ, the ICJ itself will decide the matter. By judgment dated December 18, 2020, the ICJ declared itself competent to hear the claim brought by Guyana against Venezuela.
This judgment, as already mentioned in the previous part of this series, was not unanimous but a majority decision, with 12 judges of the ICJ voting in favor of the declaration of jurisdiction while four voted against it. The majority opinion was based on Article 4.2 of the Geneva Agreement—notably an agreement violated by the ICJ itself when it accepted Guyana’s unilateral case—which states that:
If, within three months after the receipt of the Final Report, the Government of Venezuela and the Government of Guyana have not reached an agreement with respect to the choice of one of the means of settlement provided for in Article 33 of the United Nations Charter, they shall refer the decision on the means of settlement to an appropriate international body to be agreed upon between the two Governments, or, if no agreement is reached on this point, to the Secretary-General of the United Nations. If the means thus chosen does not lead to a settlement of the dispute, that organ, or, as the case may be, the Secretary-General of the United Nations, shall choose another of the means provided for in Article 33 of the United Nations Charter, and so on, until the dispute has been settled, or until all the means of peaceful settlement contemplated in the said Article have been exhausted.
It is important to consider this paragraph very carefully. The majority opinion judges interpreted that this paragraph empowered the UN secretary general to choose the means outlined in Article 33 of the UN Charter and, consequently, allowed him to select judicial settlement as a means for solution. However, this interpretation violated the spirit of the Geneva Agreement as well as Article 33 of the United Nations Charter, as pointed out by the dissenting judges. Firstly, they argued that the issue of consent should have been considered with utmost importance, because one of the parties, Venezuela, decided not to go to the ICJ, and its consent had not been sought before referring the matter to the ICJ. In the opinion of Kirill Gevorgian, one of the dissenting judges, consent must be “certain, unequivocal, and indisputable” according to ICJ jurisprudence. Referring to the same Article 4 of the Geneva Agreement, Judge Gevorgian expressed that in order for the parties to express their willingness to settle the territorial dispute at the ICJ, it was necessary to sign a special agreement.
Similarly, the dissenting judges considered that the spirit of Article 33 of the UN Charter had also been violated in this judgment because all means of bilateral negotiations for a peaceful and mutually acceptable solution had not been exhausted before referring the issue to the ICJ. In fact, Article 33 does state that:
The parties to a dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resorting to regional agencies or arrangements, or other peaceful means of their own choice.
Given that the Geneva Agreement, which calls for direct negotiation between the parties to the dispute to reach a diplomatic solution, remains in force, and other means of resolving disputes between States mentioned in Article 33, such as mediation, have not been probed at all, the UN secretary general’s selection of the ICJ did not constitute a sufficiently solid basis to justify the ICJ’s jurisdiction ratione materiae.
Moreover, the dissenting judges emphasized that the ICJ’s unilateral declaration of jurisdiction hinders the solution as it violates fundamental principles of international law, such as the principle of pacta sunt servanda, that is, the respect of agreements made by the parties through their respective expressions of will, which must be complied with in good faith. In this particular judgment, the Geneva Agreement, which is a mutually recognized agreement between the parties involved, finalized and accepted through their expressions of will, was not respected.
Finally, the dissenting judges highlighted that, from the view of objective law, the ICJ’s declaration of jurisdiction contravenes provisions of Article 2 of the United Nations Charter, especially the provision that mandates that “[t]he Members of the Organization shall settle their international disputes by peaceful means in such a manner that international peace and security and justice are not endangered.” According to the opinions of the dissenting judges, the ICJ’s declaration of jurisdiction threatens to endanger not only international peace and security, but it also endangers justice because jurisdiction cannot be imposed.
This last point must be highlighted because neither Venezuela nor Guyana has ratified the Statute of the International Court of Justice. Therefore, it is surprising that the UN secretary general directly referred to the ICJ a dispute involving two States that have not ratified the ICJ Statute.
The problems and contradictions within the ICJ are not limited to possible misinterpretation of laws and treaties. There are glaring conflicts of interests and disregard for foundational principles of the UN, such as the sovereignty of States or non-intervention, on the part of the ICJ judges that call into question the impartiality of the ICJ to rule on the contention. These issues have been revealed by the Venezuelan media outlet Misión Verdad.
The current president of the ICJ, Joan E. Donoghue of the United States, served as a legal advisor to the US State Department in 2009, when she advised then US Secretary of State Hillary Clinton and President Barack Obama on the application of international law in “humanitarian interventions.” The military interventions of the US and the North Atlantic Treaty Organization (NATO) during the Obama terms were guided by Donoghue on legal matters. She was instrumental in the implementation of Obama’s infamous executive orders on Guantánamo, leading to illegal “extraordinary rendition” and torture of citizens of various countries—including European countries—in the US naval base prison located in occupied Cuban territory. As a lawyer, Donoghue defended “Kosovo” in the Unilateral Declaration of Independence of the Provisional Institutions of the Self-Government of Kosovo before the ICJ. She was also involved in arbitration tribunals of the North American Free Trade Agreement and the Iran-United States Claims Tribunals that were judicial instruments to undermine the sovereignty of Mexico and Iran respectively. How can such a person be expected to rule impartially on the sovereignty of a territory in a case that involves a target of US “regime change” policy?
The resumes of the other judges are not very inspiring either. French Judge Ronny Abraham represented France before the ICJ to defend NATO’s use of force against the erstwhile Yugoslavia in 1999 and advised former French President Jacques Chirac on legal matters regarding the construction of the apartheid wall by “Israel” in occupied Palestine. Moroccan Judge Mohamed Bennouna is an old hand at territorial dispossession, who, as the permanent representative of Morocco to the UN, rejected all decolonization proposals for the Sahrawi people whose homeland remains occupied by Morocco.
In November 2023, the ICJ elected five new judges, as the terms of five judges of the earlier panel would end on February 5, 2024. Starting from February 6, there will be no Russian in the ICJ for the first time in the history of the organization. As part of the US-led “de-Russification” campaign, Romanian Bogdan-Lucian Aurescu defeated Russian Kirill Gevorgian in the election for the Eastern European region. Notably, Gevorgian was one of the four judges who dissented on the ICJ’s expansion of jurisdiction in the Essequibo dispute. In 2019 Aurescu, as foreign affairs minister of Romania, sent a letter to the fugitive Venezuelan politician Julio Borges, recognizing the fake government of Juan Guaidó. Aurescu has supported all the applications of unilateral coercive measures against Venezuela by the European Union. The most prominent warning sign is that he does not consider the sovereignty of States to be absolute.
The election gave the ICJ panel another US representative (in addition to the president), Judge Sarah Cleveland, who also served the US State Department and was a colleague of Hillary Clinton when the latter was the US secretary of state. Cleveland is a defender of the imposition of unilateral coercive measures against Venezuela and has participated in UN Human Rights Council events with promoters of “regime change” in Venezuela.
The most egregious situation is probably that of Australian Judge Hilary Charlesworth. She served as an ICJ judge since the death of Richard Crawford (another anti-Venezuela legal expert) in 2021 and was reelected in November. She has known conflicts of interest, because until November 2021 she had served as an ad hoc judge appointed by Guyana in the Essequibo case, and before that, she had served as a legal advisor to the government of Guyana in the same case. This signifies that she does not meet the requirement of impartiality to rule on the Essequibo issue, but the ICJ seems to have no problem with that.
Even if all these serious issues with the judges did not exist, the ICJ’s own history is not very inspiring of confidence for anti-imperialist forces either. While the ICJ is so eager to impose its jurisdiction in the Essequibo dispute because the empire wanted it, in 1966 it refused to hear a case brought by a number of African countries to hold apartheid South Africa accountable for crimes against humanity in Namibia (then an occupied part of South African Union), claiming that it did not have jurisdiction. This led to the boycott of the ICJ by almost all the newly independent countries of Africa and Asia until the early 1980s.
The ICJ also provided a posteriori legal justification for NATO’s 1999 bombing and destruction of Yugoslavia. However, apart from the abuse of the “world court” by the US empire, the powerlessness of the court was also demonstrated by the US itself. The only time the United States lost at the ICJ was in 1986, in an emblematic case brought by Nicaragua in 1984 accusing Washington of “recruiting, training, equipping, financing, and directing military and paramilitary actions that violated Nicaragua’s sovereignty; violations of air and maritime space; coercion and intimidation of the legitimate government; infringing on the freedom of the seas and disrupting peaceful commerce by murdering, wounding and kidnapping Nicaraguan citizens.” The US refused to recognize the ICJ’s jurisdiction in the case, but participated in the hearings on behalf of El Salvador, Honduras, and Costa Rica, accusing Nicaragua of carrying out a “revolution without borders” and building a “Totalitarian Communist Dictatorship.” However, in that case, the ICJ did uphold the principles of sovereignty of States and non-intervention in the internal affairs of States and found the US guilty of arming the Contra terrorists to attack Nicaragua and mining the country’s ports to harm its maritime and commercial activities. The ruling ordered the US to pay $17 billion in reparations to Nicaragua, but the US refused to abide by the order, claiming that the ICJ had no jurisdiction.
Despite the disregard of an ICJ ruling by the US, it has never been held in contempt of court, and now a US representative, who oversaw torture and invasions, presides over the court.
Defaming Venezuela, robbing Guyana, invisibilizing indigenous peoples
While the Exxon-US-Guyana nexus is working to close the judicial noose against Venezuela, the US media empire, complete with its non-US counterparts, is working on building the narrative. Unfortunately, some alternative media have also jumped on the bandwagon.
Since the Venezuelan National Assembly’s announcement of the consultative referendum on the Essequibo (that took place on December 3, 2023), the words most used to describe Venezuela’s actions—both in traditional media and social media—were “annex” and “annexation.” There is fear-mongering about an impending invasion of Guyana by Venezuela, without considering Venezuela’s history of having never invaded any country during the over 200 years it has existed as a republic. Venezuela has been described as “proto-imperialist” even by self-identified leftists and anti-imperialists, without taking into consideration the real definition of imperialism. There is also a subtle attempt to paint Venezuela as anti-black or anti-African, again without taking into consideration Venezuela’s significant African-origin population or the real empowerment of African people in Venezuela. Some even suggested that Venezuela’s reclamation of the Essequibo territory is “affirming Spanish colonialism,” thus attempting to tarnish Venezuela’s anti-colonial legacy.
In this regard, although twentieth-century Venezuela is largely portrayed as “US-aligned” in Western progressive circles these days, the relationship was neither that straightforward nor that simple. While it is true that there existed a series of Venezuelan governments servile to the US empire, there also existed sovereign tendencies at the same time. Most importantly, Venezuela has never attacked a neighbor under US tutelage, nor joined any US-led “coalition” to do the empire’s bidding against other sovereign states, which cannot be said of most countries in South America.
On the other hand, Guyana, since independence, has morphed into a “happy colony,” in the words of Venezuelan historian Vladimir Acosta. The Cooperative Republic of Guyana started with a center-left political tendency, with a socialist party at the helm of the first government. However, within a few years of independence, the State and the party structures were infiltrated by the United States, and since then Guyana has increasingly distanced itself from progressive regional processes. The Guyanese State continues to maintain the historical vestiges of British colonialism through the British Commonwealth of Nations (a problem not only of Guyana but also of all British ex-colonies in the Caribbean). Despite being part of UNASUR, Guyana always turned its back on Venezuela whenever it received “orders from above.” “Being independent,” says Acosta, “it is even more of a colony than before, a favorite colony of the United States, a friend of Guterres… and a friend of that corrupt and unworthy organization called the International Court of Justice.”
Despite being the “happy colony,” the transnationalization of Essequibo has not benefited Guyana. According to a 2020 report by the London-based organization Global Witness, “ExxonMobil’s aggressive tactics and inexperienced [Guyanese] government officials led to an exploitative deal that will deprive Guyana of up to US$55 billion.” The report also alleged that ExxonMobil had used threats to pressure Guyanese government officials into signing the deal. Within months, ExxonMobil, with support from the Guyanese government, disputed the Global Witness accusation, and in 2021 Global Witness removed the document from its website. Even Bloomberg, a mouthpiece of US capitalism, reported that Guyana is receiving only 52% of the earnings from the oilfields licensed to ExxonMobil, while it should actually receive 65-85%.
The real situation of Guyana’s income from oil exploration is even worse. Considering all the functional oilfields of the country, licensed primarily to ExxonMobil but also to Chevron, Total Energies, Hess, Repsol, Tullow, China National Offshore Oil Corporation, Liberty, etc., 75% of the oil income leaves the country. While Guyana’s GDP increased by 57.8% in 2021 and by 37% in 2022—attributed to royalties received from oil exploration, it remains one of the most unequal countries in the world in terms of wealth concentration. Its human development index is the lowest in South America, lower than even Venezuela immersed in a blockade-generated crisis. Over 35% of the Guyanese population lives in extreme poverty, while 55% of the population resides abroad, among which is 80% of the population with higher education. These are indicators that whatever oil income the country receives is not being distributed with any degree of equity.
In fact, it may be said that ExxonMobil saved itself by robbing Guyana. In 2020, the company suffered such losses that its place in the stock markets was in jeopardy. That same year the Stabroek Block, located in the undelimited waters and unilaterally licensed by Guyana to ExxonMobil, started production. Two years later, ExxonMobil accumulated a profit of $414 billion, unprecedented in the company’s history. Therefore, when Exxon says in its report that “Guyana would become a rich country” due to the company’s oil activities, it actually means that the company would become even richer, and some members of the Guyanese oligarchy will as a result. The numbers clarify why ExxonMobil is fanning the flames to turn the dispute into a hot war, which would draw in the United States.
Amid all this, a legitimate question may be raised: what about the people of the Essequibo? What is the opinion of the inhabitants of the region in this dispute, which is much more than a territorial dispute, which is threatening to become a real conflict? It must be highlighted that it was impossible for the Venezuelan electoral authority to consult the people of the region because Guyana administers the region. Citing this shortcoming, a narrative has been constructed, especially on social media, that Venezuela did not recognize the right to self-determination of indigenous peoples of the Essequibo in its December 3 referendum. Apart from the fact that the referendum was not about self-determination (it did not ask whether Essequibo belongs to Venezuela), what this campaign did not mention is that it is in Guyana where indigenous peoples’ self-determination—and even indigenous peoples’ territorial rights—are not recognized. There are 10 indigenous peoples in Guyana, consisting of some 78,500 people, about 10% of the population of Guyana, who mostly inhabit the mountainous and forested lands of the country. Communities pertaining to all these 10 indigenous nations (although they are not recognized as nations in Guyana) live in Essequibo, according to Venezuelan indigenous leader Noelí Pocaterra. Many of these people consider themselves Venezuelans or dual citizens of Guyana and Venezuela even if they are not so officially.
According to a study published by Cultural Survival magazine in 2010, “independent Guyana’s policy towards indigenous peoples is essentially based upon [British] colonial policy and law” that does not recognize indigenous land titles or demands of autonomy or self-government. Guyana, like its colonial predecessors, the Dutch and the British, considers all lands not held as grants from the State as “crown lands” belonging to the State, thus denying indigenous land rights. Therefore, Guyanese indigenous peoples are not consulted when the Guyanese government grants mining or oil exploration concessions to companies, national and foreign, in the lands inhabited by the indigenous people. Since the early 1990s, indigenous peoples of Guyana have been trying to “redefine prevailing political, legal, economic and cultural relations with the state and thereby to transcend four centuries of colonial domination and institutionalized racism that remain firmly entrenched in Guyanese law, policy, and practice.” Apart from legal reform, they are also engaged in actions to ensure the survival of their ancestral cultures and traditions.
Where is the dispute headed?
The transnationalization of the Essequibo has entailed the transnationalization of the Essequibo dispute as well, because where ExxonMobil is, the US government cannot be far behind. The United Kingdom, responsible for the “original sin,” has also joined in to provoke Venezuela and Guyana into a war. In March 2023, a high-level delegation of the US House Committee on Ways and Means visited Guyana, where the chairman of the committee and the chief of the delegation, Congressman Jason Smith, openly said that the goal of the Biden administration is to “lead the way in developing, extracting, and selling Guyanese oil” in order to “outcompete China around the world.” At the same meeting, the president of Guyana, Irfaan Ali, assured the US delegation that his country was committed to guaranteeing the energy security of the United States. These two statements reveal who is really trying to take the dispute to conflict level and why, in addition to exposing the Guyanese government’s complete surrender of sovereignty and subjugation to US interests.
After years of tolerating such imperialist interference in a dispute that should have stayed between two countries, the government of Venezuela finally decided to demonstrate the strength of people’s power to force Guyana to return to the bilateral mechanism of the Geneva Agreement, which the Guyanese governments since 2015 had abandoned. The consultative referendum of December 3 was this demonstration of people’s power, which was recognized as such by both Guyana and the US, as evident from Guyana’s attempt to get the International Court of Justice to suspend the referendum and the OAS’ statement branding the referendum as “Venezuelan aggression.”
The referendum did demonstrate people’s power, with more than 10 million Venezuelans voting on it (51.01% turnout—the highest in recent years), and on an average 97.07% of them supported the Venezuelan government’s position on the five issues that were raised in the referendum. Apart from reviving historical memory, the referendum also brought the Geneva Agreement back to the table as the only mechanism to resolve the dispute, without interference from imperialist powers.
As a direct effect of the referendum, Guyana had to formally recognize, or rather recognize again, the Geneva Agreement as the only mechanism for settling the dispute. In a meeting held at the Argyle International Airport in Kingstown, St. Vincent and the Grenadines, on December 14, 2023, and mediated by CELAC, CARICOM, and President Lula of Brazil, the presidents of Venezuela and Guyana signed an agreement “seeking an effective, satisfactory, and practical solution, as mandated by the 1966 Geneva Agreement.” The agreement was particularly significant as it highlighted that both states “agree to resolve any differences per international treaties, including the Geneva agreement of February 17, 1966.”
The presidents of both Venezuela and Guyana also agreed to continue dialogue on any matter of importance for both states, and agreed to refrain from intensifying any conflict or disagreement. A binational mixed commission was created for addressing matters related to the territorial dispute, and to provide an update to both presidents within three months. According to the Argyle Agreement, the heads of both states are supposed to meet in Brazil after three months.
A peaceful resolution of the conflict, however, is not acceptable for the imperialist powers or their multinational corporations. The United States Southern Command (SOUTHCOM) has installed itself permanently in Guyana, as “Guyana’s trusted security partner” for “promoting regional cooperation and interoperability.” On December 7, 2023, just four days after the Venezuelan referendum on the Essequibo, SOUTHCOM carried out joint military exercises with the Guyana Defence Force (GDF), which was branded as “an unfortunate provocation” by Venezuelan Defense Minister Vladimir Padrino López. In further provocations, Guyana welcomed a British warship, the HMS Trent of the British Royal Navy, to pass through the disputed waters after the meeting in St. Vincent and the Grenadines, thus violating the promise of non-escalation and not threatening the other party with force made in the Argyle Declaration. The British being the original cause of the dispute, as well as being the invader of Venezuela in 1902, the symbolic meaning of a British warship close to the Venezuelan coasts was not lost upon Venezuelans. In response, Venezuelan President Nicolás Maduro, stressing that today’s Venezuela is not the Venezuela of Cipriano Castro, ordered the deployment of the Bolivarian National Armed Force (FANB) in the Venezuelan Atlantic Façade for a joint military exercise, to act as a deterrent against British warmongering.
Amid the diplomatic and military tensions, the Essequibo dispute seems to have entered a new state of turbulence, with no end in sight for an acceptable solution in the short or medium term. It also remains to be seen how the government of Venezuela would implement the fifth point of the December 3 referendum, that of incorporating the Essequibo region as a Venezuelan state, Guayana Esequiba, and conferring Venezuelan citizenship on the residents of the region. The demand for Venezuelan citizenship is a long-standing demand among the indigenous peoples of the Essequibo territory, explicitly expressed in the Rupununi Uprising of 1969. Since the result of the referendum is binding according to the Constitution of the Bolivarian Republic of Venezuela, the Venezuelan government has to find a way to execute the mandate of the referendum in its entirety.
On December 5, 2023, the government of Venezuela unveiled a new map of the country, in which the red lines were removed from the Zone Under Reclamation, and the territory was named the Guayana Esequiba state. The National High Commission for the Defense of Guayana Esequiba was created, tasked with coordinating efforts to defend Venezuela’s territorial claims, promoting international awareness of the dispute, and supporting the development of the new state. In addition, the Guayana Esequiba Comprehensive Defense Zone has been formed, with the provisional appointment of General Alexis Rodríguez Cabello as the Sole Authority of Guayana Esequiba, with provisional administrative and military headquarters in Tumeremo, Bolívar state. For the comprehensive development of the new state, the creation of Essequibo divisions of PDVSA and the national metal conglomerate Corporación Venezolana de Guayana (CVG) was announced. The issuance of Venezuelan identity cards to Venezuelan Esequibans has been launched as well, from an Administrative Service for Identification, Migration, and Immigration (SAIME) center installed in San Martín de Turumbán, close to the de facto border with Guyana.
Nevertheless, the problem remains that the disputed territory is administered by Guyana. Even a part of the undelimited waters, not part of the historical Essequibo dispute, is under the control of foreign oil corporations, especially ExxonMobil. Unless Venezuela can exercise administrative control in the Essequibo, none of the Venezuelan government’s plans for the region can be implemented in earnest. Therefore, we have reached a time for definitions. If we consider the Essequibo region as Venezuelan, then we should consider it as an occupied territory of Venezuela that is under foreign administrative control, and now under the control of a notorious multinational corporation backed by the most powerful military in the world. Venezuela, already in the crosshairs of the US empire and a victim of its hybrid war, has been forced by this situation to rethink its strategy and put the defense of national sovereignty above the interests of regional integration.
Venezuela is not an imperialist country, it never was, and never wants to be. Venezuela has never invaded another country, except when its independence forces, under the leadership of Simón Bolívar, fought wars to liberate the majority of what is today Latin America from Spanish imperialism. Venezuela values diplomacy and dialogue and would try to avoid a fratricidal war at all costs. However, Venezuela is a sovereign country. It will not remain idle while the US empire threatens to steal an integral part of its national territory, be that through a proxy.
“The Essequibo has been ours since the beginning of time and we will exercise our sovereignty,” Hugo Chávez once commented about his Essequibo policy. Venezuela will simply exercise its sovereignty. If by any chance a conflict does break out over the Essequibo, its responsibility will not lie with Venezuela.
Special for Orinoco Tribune by Saheli Chowdhury
Saheli Chowdhury is from West Bengal, India, studying physics for a profession, but with a passion for writing. She is interested in history and popular movements around the world, especially in the Global South. She is a contributor and works for Orinoco Tribune.
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