The Guyana-Venezuela controversy presents the UN with a rare opportunity to appear relevant and meaningful

Dear Editor,

I read with considerable interest, not to mention a similar measure of satisfaction, the approach volunteered by M Maxwell (SN, October 7) for the protection of Guyana from Venezuela’s “sabre-rattling.”

Although Mr Maxwell’s analysis was informed and eminently plausible, it appeared to have been based on some assumptions which I do not share.

For one thing, it subserves to accommodate the Machiavellian bullyism and rantings of rogue states thereby creating, gratuitously, instability in the international community at the expense of small, peaceful, vulnerable states.

It is difficult to endorse the view that reliance on the provisions of Article 99 of the Charter is unrealistic. At worst, it may be described as overly optimistic in as much as it poses a formidable challenge to Guyana by reference to relevant material and diplomatic capabilities. Needless to mention, however, it exemplifies the respect of small states for international legality, the grundnorm of the United Nations Charter. Unqualified reliance on international legality must be vigorously espoused if the multiplicity of small states in the international community are to be assured plausible expectations of political survival.

I endorse with some qualification the implied diagnostic evaluation by Mr Maxwell of the United States geopolitical philosophy driven by strategic ambiguity and the recognition that, in the ultimate analysis, the national interests of the United States will be preferred and protected. Consistently with this evaluation, it is difficult to ignore the realities on the ground defined by Venezuela’s geographical location on the world’s allegedly largest proven reserves of petroleum and the insatiable propensity of the United States for consumption of this resource.

Indeed, the juxtaposition of these realities operates to establish, potentially, an understandable symbiotic political relationship between these two states which underscores the cogency, timeliness and relevance of Mr Maxwell’s analysis. But, perhaps, what must also be taken into account assisted by the clairvoyance of hindsight is that an approach via the Article 99 route is not as intractable and replete with political implications as the situations mentioned by Mr Maxwell and which the United Nations Security Council had been called on to address in this context, a concession which Mr Maxwell may graciously wish to make.

The Guyana-Venezuela controversy began and may reasonably be expected to terminate with the Arbitral Award (1899) in which the region’s aspiring geopolitical superpower at the material time was prominently and politically involved thereby operating to compromise its “strategic ambiguity” and alleged historical tendency to neutrality where the Article 99 procedure had been invoked. More importantly in the present context, however, the United States has consistently advocated until very recently through Ambassador Holloway that the controversy must be settled in accordance with international law. And the applicable rules of international law are pellucidly clear in respect of this controversy.

The Washington Treaty of 1897 concluded between Britain and Venezuela on the coercion of the United States established the Arbitral Tribunal and agreed that its determinations would constitute a full, perfect and final settlement of the relevant territorial dispute. Article 26 of the Vienna Convention on the Law of Treaties (VCLT) which was ratified by both parties requires treaties to be observed in good faith (pacta sunt servanda). And even though Article 62 (2) (a)

of the said convention anticipates the termination of treaties due to a fundamental change of circumstances (rebus sic stantibus), which would clearly envisage various acts of fraud, it entered a caveat exempting this principle from application to boundary disputes.

Incidentally, a fact that is little known, the Guyana team to the two sessions of the Vienna Conference on the Law of Treaties 1968-69 comprised the late Sir Lionel Luckhoo and Sir John Carter, Sir Shridath Ramphal and Mr Duke Pollard, who, collectively played a critical role in the adoption of the exception to the rebus sic stantibus principle set out in Article 62 (2) (a). Securing general recognition of an exception to the rebus sic stantibus rule constituted an important aspect of Guyana’s global strategy to neutralise Venezuela’s despicable acts of brigandry. And this exception was made for extremely good reasons. In the language of the International Law Commission “treaties establishing a boundary should be recognised to be an exception to the rule, because otherwise the rule, instead of being an instrument of peaceful change, might become a source of dangerous frictions.”

Consider, for example, the institutionalised chaos and instability that would characterise inter-state relations in the international community if states were free to employ this principle arbitrarily to adjust national borders at the whim and fancy of competent decision-makers like the Presidents of Venezuela and Suriname in pursuit of territorial cupidity. Quite apart from the fact that Venezuela would be estopped (or precluded in international law) from contesting the validity of the Award, given its earlier agreement thereto and its unqualified acquiescence for 63 years thereafter, Venezuela, despite claims to the contrary, has been unable to validate the allegation that the Award was the outcome of a deal among some arbitrators.

Consequently, the Guyana-Venezuela controversy, in the present submission, appears to present the United Nations with a rare opportunity to appear relevant and meaningful in addressing the present controversy on the basis of generally accepted legal norms and consistently with international practice.

Yours faithfully,
Professor Justice Duke Pollard