Understanding the Context: Background
At present, the world is already suffering from the ongoing war(s) ranging from Russia-Ukraine to Israel-Hamas. In recent weeks, the world has witnessed a brewing tension in South American Continent because an oil war was bubbling between two hostile neighbours, Venezuela and Guyana. Tensions are on rise due to a colonial era disputed territory called Essequibo which is an oil abundant area. Venezuela’s President has called for a national referendum to ascertain the status of territory in order to control and grab the oil rich area of Guyana. Through this action, Venezuela violates the ICJ ruling, notably Venezuela doesn’t recognise ICJ’s jurisdiction over the dispute and justify its action by the said logic.
Essequibo & the dispute
Essequibo is an oil rich region and its status as asserted by Guyana is that current borders were established in 1899 by the Paris Arbitral Award. Per contra, Venezuela contends that the Essequibo river demarcates the border, dismissing the verdict by the tribunal. The 1903 Venezuelan blockade was a historical turning point that prompted peace negotiations among European countries managed by the United States, which once again recognised the current borders. In 1966, the Geneva Agreement was signed, and Article IV of the Agreement provided the UNSC the power to choose the dispute settlement mechanism for the territorial dispute. Thus, to resolve the dispute in 2018, the UN Secretary General opted for a judicial settlement mechanism by ICJ.
Recent steps: Referendum and Meeting
Recently, Venezuela had a referendum over the Essequibo region despite the pending case at ICJ regarding the disputed territory. On December 01, ICJ ordered a provisional measure against the referendum that “Both Parties shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.’ However, ignoring the ruling, Venezuela’s President took certain steps to implement the results of the referendum like creation of a high commission for the defence of Essequibo, establishment of a military zone, grant of license to oil companies to operate, and issuance of identity cards to local population. These steps were highly criticised by Guyana’s President by raising concerns over the sovereignty of Guyana.
The steps taken by the Venezuelan President are strategic, political and calculated moves to exert control over the Essequibo region due to upcoming elections in the country amongst other reasons. Recently, after the escalation of tensions and as the International community started taking sides (USA supported Guyana’s stand) the leaders of both the nations met on December 14, 2023, in Saint Vincent and the Grenadines. They pledged not to use force or threats, but they were unable to come to a consensus on how to settle the disagreement.
The Threat of Force: In Context
The prohibition on the threat of force (“ToF”) occupies a pivotal place in the present due to various territorial disputes going on around the world, such territorial disputes affects vis-à-vis threaten the peace and stability in the world. Rooted in the principles enshrined in the United Nations Charter, in Article 2(4), the prohibition against the threat or use of force is a part of customary law, guiding state conduct and interactions on the global stage. Unfortunately, Article 2(4) itself doesn’t provide much clarity on what constitutes a violation of the prohibition of the threat of force. A ToF includes diverse aspects like military threats, economic sanctions, coercive intent and declarations that if certain demand won’t be met, then force will be used. At present context, Venezuela’s actions starting from referendum to subsequent measures fall under the same facet of threat of force to Guyana for taking control over the Essequibo region.
Notably, an interpretation as to what constitutes as ToF can be nuanced, context-dependent and subjective in nature as it can be implicit as well as explicit. Furthermore, the use of force does not have to be certain or imminent to constitute as a threat pertaining to use of force. The consideration is given to the intention of using force by one party which creates reasonable anticipation to the other side that such force will be used. Lastly, for a threat of force to be unlawful, such anticipated use of force should be unlawful and it should not be used in context of self-defence under Article (“Art.”) 51 of the UN Charter which is an exception to Art.2(4).
Decoding the current fiasco: A Legal Lens
The actions opted by Venezuela constitute a clearly unlawful ToF to Guyana for annexing the Essequibo region. It depicts Venezuela’s intention to capture or annex the region if in case its claim over the region is not met. Such an intention is evidently clear from the steps taken by Venezuela starting from holding referendum to subsequent steps like mobilising the army, presenting an new official map of Venezuela portraying Essequibo as its part, raising of flag on small hill in Essequibo amongst other steps opted by Venezuelan President Maduro.
Notably, the referendum itself is a fraudulent attempt to circumvent intentional law as such actions by any State needs to adhere to the legal doctrine of State consent for resolving the dispute over territorial dispute. Further, execution of referendum for intra-nation dispute is violative of Article 27 of Vienna Convention on the Law of Treaties . Any attempt to carry out the referendum that entails annexing a portion of the currently-Guyana territory would result in Venezuela violating Article 2(4) of the UN Charter, which forbids the threat or use of force against the political independence or territorial integrity of any state. Because it is illegal for Venezuela’s armed forces to occupy a territory, the referendum is therefore a fraud on the country’s inhabitants.
It is interesting to note that is there any justification that Venezuela could give for its recent actions and to remove them from falling under the domain of Art.2(4). The answer for same is NO, as argued, elsewhere regarding a possible justification from Venezuela is the doctrine of protection of national abroad. The said justification loose its footing due to aspect that there’s no attack on local population and such population in disputed region are not national of Venezuela. However, at the same time Venezuela is manufacturing nationals there by granting nationality to the local population of the Essequibo region. Here comes an interesting dimension of considerations as can one argue that Venezuela’s ToF is justified to protect its’ nationals and can actions falls under ambit of pre-emptive self-defence. Another justification that Venezuela could give is regarding claiming back its territory that later has been seized by Guyana. However, due to the ongoing dispute at ICJ such contention also fails.
In crux, as ICJ opined in its advisory opinion of Nuclear weapons’ case “it would be illegal for a State to threaten force to secure territory from another State”. Herein, the steps opted by Venezuela amounts to violation of a ToF as provided u/a 2(4) of UN Charter. At same time, Art.2(3) of the UN Charter provides that parties should settle all their disputes peacefully and this condition/obligation is now customary international law. Due to said obligation it is expected that Venezuela should adhere to said obligation and both parties should amicably settle the dispute. The referendum poses a danger to the UN Charter’s norm of peaceful resolution of disputes because it goes beyond Venezuela’s interests and directly affects Guyana’s territorial sovereignty. There is an ongoing lawsuit within the ICJ’s jurisdiction that is specifically focused on identifying the limits of the disputed territory, thus, parties are expected to not aggravate the dispute through any acts.
In sovereignty’s shadow, Venezuela’s threat unveiled,
Article 2(4) breached, peace’s fabric frail.
Hope blossoms in declarations, yet echoes remain.
Let us see where this frail goes again…..
Conclusion
In conclusion, the recent actions taken by Venezuela in the ongoing territorial dispute with Guyana manifest a clear and prohibited ToF, running afoul of the principles enshrined in Art. 2(4) of the UN Charter. Additionally, Venezuela’s disregard for the obligation to settle disputes peacefully, as stipulated in Art.2(3) of the UN Charter, raises concerns about the potential consequences for regional and international peace and security. However, recently with ongoing diplomatic meeting and consensus regarding not to use force in Esequibo dispute between both the nations is a positive ray of hope.
The prohibition on the use of the ToF assumes paramount importance in the realm of territorial disputes, where the issues of sovereignty and the historical propensity for states to resort to force create a delicate international landscape.
As the international community navigates these complexities, it is imperative to address the Venezuela-Guyana dispute with a comprehensive and resolute approach. Fostering adherence to international legal norms and reinforcing already opted mechanisms for resolving disputes is crucial to prevent the normalization of actions that could destabilize not only the affected region but also the broader international order. It would be interesting to observe how future trajectory goes on for instant disputes as once again will international law fail and fall and we may observe a new war or we will be witnessing a peaceful settlement.
In the dance of diplomacy, a tango of dispute,
Venezuela’s threat, a discordant pursuit.
Yet in Esequibo’s echoes, a hopeful refrain,
Diplomacy whispers, let peace and reason reign.
(This post has been authored by Shelal Lodhi Rajput, a Final year student at Symbiosis Law School, Pune.)
CITE AS: Shelal Lodhi Rajput, ‘Unravelling Venezuela’s Actions and Essequibo Referendum: A Socio-Legal Analysis, unlawful threat of force’ (The Contemporary Law Forum, 16 February 2024) <tclf.in/2024/02/16/unravelling-venezuelas-actions-and-essequibo-referendum-a-socio-legal-analysis-unlawful-threat-of-force/>date of access.