A unanimously agreed decision has probably never been so controversial.
He October 3, 1899an arbitration court established in Paris issued a ruling in which it decided the fate of the Essequiboa territory of about 159,500 square kilometers in area in the northeast of South America and which currently constitutes two thirds of the Cooperative Republic of Guyanabut is claimed by Venezuela as your own.
After decades of fruitless negotiations, the case is before the International Court of Justice and in the last week has raised tensions between both countries to unprecedented levels.
But let’s not get ahead of ourselves.
At that time, Guyana did not exist as an independent nation but as British colony and that, according to numerous historians, is a key element to understand this decision known internationally as the Paris arbitration award of 1899.
What did it consist of?
The United Kingdom takes (almost) everything
Consisting of two English judges, two American judges (in charge of representing the interests of Venezuela) and presided over by a Russian judge, Federik de Martens, the court granted the United Kingdom 90% of the disputed territorybut awarded to Venezuela a small piece which included the main mouth of the Orinoco River, one of the largest in the world.
Although the court had 90 days to issue its ruling, it came in just 6 days and was approved unanimously.
The sentence caused immediate unrest in Venezuela. In fact, the day after it was known, the lawyer José María Rojas – the only Venezuelan included in the team of Venezuelan defenders who was present in the process – sent a confidential note to Caracas in which he expressed his questions about the validity of the sentence that – in his opinion – did not honor the law.
Venezuela claimed that it was responsible for exercising sovereignty over all the territories that had belonged in the colonial era to the Captaincy General of Venezuela and that it had inherited in 1811 at the time of independence, among which was Essequibo.
The United Kingdom, for its part, had acquired in 1814 through a treaty with the Netherlands some 51,700 square kilometers of territory, where British Guyana would be established.
The western borders of that territory were not defined, so the British authorities commissioned explorer Robert Schomburgk to carry out this task in 1840.
That’s when the call came “Schomburgk Line”whose layout gave the British an additional 80,000 square kilometers.
In 1841, Venezuela protested the British incursion into its territory, despite which the Schomburgk line “gained weight” again during an update published in 1886.
Under the protection of Monroe doctrinethe United States intervened in 1895 to denounce the “mysterious” expansion of the territory of British Guyana and recommended resorting to international arbitration.
This is how the path to the Paris arbitration award was taken, a decision that the president of Guyana, Irfaan Ali, said this week, set finally and definitively the borders between both countries.
And certainly, despite Venezuela’s discomfort, for some decades the issue seemed settled.
In 1962, Venezuela denounced the arbitration award, declaring it “null and void” and reactivated his claim for Essequibo before the UN.
This led to the signing of the Geneva Agreement in 1966, through which Venezuela and Guyana were committed to seeking a practical and satisfactory solution to the dispute.
What change to reopen the controversy?
A favorable court without Venezuelans
Over the years, a series of elements and documents related to the arbitration award have come to light that have led Venezuela to question the validity of that procedure.
Although in his confidential note of October 4, 1899, José María Rojas expressed his perplexity at the way of acting of the president of the court, Federik de Martens, whose motives seemed incomprehensible to him, historians have found some explanations in this regard.
As Mercedes Alicia Carrillo Zamora highlights in a study on the arbitration award published by the University of Cádiz, the British government was very concerned about guaranteeing that the arbitral tribunal was constituted in a “convenient” manner and to avoid at all costs any “Anglophobic” members.
From that perspective, the choice of Martens could not be more appropriate, since as historian Claudio Alberto Briceño Monzón has pointed out: “Currently, it is known that the Russian De Martens was a pro-British by conviction, a supporter of understanding between Russia and England. He believed that Public International Law was a matter for civilized nations, and natural law should be reserved for the treatment of semi-civilized or primitive nations, as he considered Venezuela.
Martens had also just published a book in which he advocated a policy of cooperation between Russia and England in Central Asia that could benefit Moscow’s interests in places like Persia and Afghanistan, in exchange for favoring England’s interests elsewhere. of the world.
The British, furthermore, They flatly refused to allow any of the members of the tribunal to be Venezuelan. because “they were not willing to sit next to a mestizo jurist, with a smell of the tropics.”
Carrillo Zamora considers that, beyond any racist consideration, “the main justification for the exclusion of Venezuela in the Arbitration Court was due to the interest of safeguarding the achievement of the fraudulent purposes that the English had previously proposed to carry out during the arbitration. which obviously could not be negotiated with Venezuelan representatives.”
In any case, the court was presided over by Martenswho held the decisive vote and who, according to other existing testimonies, played a central role in achieving a unanimous and favorable decision for the United Kingdom.
Forging unanimity
After the award was finalized, the process and the role played by Martens was not only questioned by the American representatives, but even by at least one of the British judges.
In January 1900, former US president Benjamin Harrisonwho served as one of Venezuela’s lawyers during the trial, criticized the way the British acted as well as the result of the award.
“In disputes between individuals, the English courts are usually remarkably fair and independent, but when it comes to extending the dominion of Great Britain and, above all, When they are involved in lands where there is gold, it is too much to expect from them“said a written communication addressed to William E. Dodge.
“The decision in the case of Venezuela, as a compromise, gave Venezuela the strategic points, but it stripped it of an immense part of territory that an impartial court would have awarded it, and I have no doubt about that.”
This reference to the existence of a “compromise” in the decision seems to be corroborated by other testimonies.
In a note sent on October 7, 1899 by Lord Russell, one of the two English arbitrators, to Lord Salisbury, who was then the chancellor of the United Kingdom, he notes that both he and the other English arbitrator, LJ Collins, were very disappointed due to the attitude of Martens, who – according to what he claims – despite having shown good knowledge of the law and the facts, seemed to take it as his mission to achieve a unanimous decision.
“I regret to have to say further that, in a private interview, he intimated to JL Collins, while urging a reduction in British claims, that if we did not reduce them he might be forced to agree a line which might not be fair to Britain, in order to ensure the adhesion of the Venezuelan referees [se refiere a los estadounidenses que representaban a Venezuela]. I have no doubt that he spoke in the opposite direction to the Venezuelan referees and that the fear of A possible much worse line was the incentive for them to accept the Award in its present form,” Russell wrote in a note that was not publicly known until 1979.
This deduction by the British magistrate about how Martens behaved is corroborated by a communication sent on October 26, 1899 by Severo Mallet-Prevost, who was one of the American lawyers who defended Venezuela, to the historian George Lincoln Burr.
There, the American jurist assures: “The decision was imposed on our arbitrators and, in strict confidence, I have no hesitation in telling you that the British arbitrators were not brought by any consideration of law or justice and that the Russian arbitrator was probably forced to make the decision he made for reasons totally unrelated to the issue […] The result is, in my opinion, a blow to arbitration”.
It was precisely another document written by Mallet-Prevost and disclosed in 1949, a year after his death, the first to be made public and to clearly open a way for Venezuela to decide to challenge the 1899 arbitration award.
In that text, dated February 8, 1944 and which was disclosed by his partner Otto Shoenrich, Mallet-Prevost recounts a meeting he had with David Josiah Brewer, one of the American referees, who told him that Martens had met with him and with the other American referee, Melville Weston Fuller.
According to Mallet-Prevost, Martens informed them that the two English arbitrators were willing to decide in favor of the Schomburgk line, whose demarcation starting from Punta Barima was going to give England control of the main mouth of the Orinocoand that if the American arbitrators insisted on “beginning the line from the coast at the Moruca River, he would side with the British and the Shomburgk line would be approved as the true border.”
To avoid this scenario, the Russian judge offered them the possibility of setting a line on the coast that “started at a certain distance southeast of Punta Barima, so as to give to Venezuela the domain of the mouth of the Orinoco and that this line would connect with the Shomburgk line at some distance in the interior, leaving Venezuela in control of the mouth of the Orinoco, and about 5,000 square miles of territory around that mouth.
In that circumstance, the American arbitrators had to choose between accepting Martens’ proposal or writing a dissenting vote.
In response to the question they asked him, Mallet-Prevost says that he asked them for authorization to consult with former President Harrison who, he says, was outraged by the situation and was in favor of the Americans making a dissenting vote.
However, upon reflection, Harrison changed his mind.
“When he calmed down and studied the matter from a practical point of view he told me: ‘Mallet-Prevost, if one day it were known that it was in our hands to conserve the mouth of the Orinoco for Venezuela and that we did not do it, we would never be forgiven. What Martens is proposing is iniquitous, but I don’t see how Fuller and Brewer can do anything but agree.’ I agreed with General Harrison and made this known to Justices Fuller and Brewer. The Court’s decision was, accordingly, unanimous,” he wrote.
Thus it was, then, according to Venezuelan historians, that Venezuela lost the Essequibo.
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