On December 3, Venezuelans will vote in a referendum on the annexation of Esequibo to the territory of the Bolivarian Republic of Venezuela. This blog post argues that the referendum has implications for both domestic constitutional law and international law. Since the referendum cannot have any practical effect under international law, it also violates the voters’ constitutional right to participate freely in public affairs. By prioritizing solely the interests of Venezuela over the sovereignty of Guyana, the referendum might be contrary to the principles of peaceful dispute settlement and the prohibition of force, as stipulated in the United Nations Charter. It could also challenge the established legal doctrine of state consent and infringe upon the principle of prioritizing international obligations over national law.
Again, Venezuela v. Guyana, but wasn’t the dispute on Esequibo settled already?
Venezuela and Guyana have a long-standing unsolved territorial dispute over Guyana’s Esequibo, a region rich in natural resource deposits. Two international agreements, the former concluded during British Guyana’s colonial period and the latter after its independence, provide an overview of the territorial dispute. In 1897, aware of the importance of Esequibo, the United Kingdom, on behalf of Guyana and Venezuela, signed a treaty of arbitration to delimit their borders. In 1899, the Paris Award determined that Esequibo belonged to British Guyana. These territories were officially demarcated in the following years, and peace prevailed, making it seem like the matter was settled. However, in 1962, right before Guyana’s independence from the United Kingdom, Venezuela unilaterally declared the award null and void, alleging that it resulted from a secretive, under-the-table agreement.
Once again, Venezuela and the United Kingdom agreed to enter negotiations. As a result, the Geneva Agreement was signed in 1966. This agreement had a schedule with three phases. In the first phase, the use of the mixed commission with representatives of both countries to determine the borders was unsuccessfully exhausted. In the second phase, the mechanisms for friendly settlement of disputes provided in Article 33 of the United Nations Charter were employed unsuccessfully. In the third, the dispute was referred to the Secretary-General of the United Nations. The Secretary-General’s entitlement was to select a dispute settlement mechanism. The first measure chosen was to employ good offices in resolving the controversy. However, given the failure of this mechanism after several extensions, Secretary-General António Guterres decided to resort the territorial dispute to the International Court of Justice (“ICJ”).
In 2018, Guyana filed an application requesting the ICJ to confirm the legal validity and binding effect of the 1899 Award. The ICJ issued a procedural judgment declaring that it had jurisdiction for the final resolution of the territorial conflict over Esequibo. On the other hand, in response to Guyana’s submission, Venezuela contended on the grounds of lack of consent to resort to the ICJ; however, the Court also dismissed this preliminary objection. Thus, the next step is for the Court to issue a judgment on the merits, determining the boundaries of each country.
In response to the rejection of its preliminary objection, Venezuela called for a consultative referendum in which its citizens could express their stance on annexing Esequibo to Venezuela and delegitimizing any actions taken by the ICJ, which will take place on December 3rd.
Venezuela’s Unilateral Response to the Esequibo Dispute
In its traditional design, a consultative referendum is the most sacred mechanism of direct democracy, as it is the citizens who retain power over public interest decisions. Article 71 of the Venezuelan Constitution allows for consultative referendums to be initiated either by the various branches of government or by the citizenry in “matters of special national significance.” The referendum process includes a stage of judicial review to ensure that the matter to be consulted is in compliance with the Venezuelan Constitution. Following judicial review, it is the responsibility of the National Electoral Council to organize the elections and announce the results.
The National Assembly proposed the referendum, and once it passed judicial review by the Constitutional Chamber of the Supreme Tribunal of Justice (“STJ”), it was convened by the National Electoral Council to be held on December 3rd.
A fraudulent referendum
The referendum, however, is unlawful from multiple perspectives. Let’s begin with the domestic perspective: The referendum directly affects the citizenry as it infringes upon their right to “freely” participate in public affairs as outlined in Article 62 of the Constitution of Venezuela. In other Latin American jurisdictions, Constitutional Courts have a rigorous approach to reviewing referendums, often striking down such referendums due to unclear questions, unenforceable outcomes, or conflicts with constitutional rights. For instance, the Constitutional Court of Ecuador struck down a consultation where the citizenry of the mining canton of Ponce Enriquez was consulted about their agreement with metallic mining. The Court argued that such consultation had the defect of being “an illusory mechanism of citizen participation, as it does not offer the citizenry the material possibility of choice, nor does it have the potential to generate effects independently of the result obtained.” Accordingly, the Constitutional Court of Colombia has established a line of jurisprudential precedents in which it has restricted referendums aimed at prohibiting mining activities in certain territories. This is because such consultations are seen as contrary to the principle of a unitary state and territorial autonomy. In a controversial outcome, the Supreme Court of Justice of Mexico modified the content of a popular consultation aimed at judging former presidents. The Court conditioned the constitutionality of the consultation on the condition that, if approved, it would not lead to a direct trial and that the appropriate actions be taken while respecting the human rights of the former presidents. What is similar in these three jurisdictions is a strict judicial review that aims to ensure the free participation of its citizens.
The STJ upheld the questions of the Esequibo referendum on the grounds that these are in accordance with the Venezuelan Constitution. However, I argue that the STJ should have declared the referendum unconstitutional because, being contrary to several principles of international law, it does not allow Venezuelans to decide freely in the dispute over the Esequibo.
A referendum as an excuse to circumvent international law
To begin with, if the referendum were to be in favor of the annex of Esequibo, the questions would have no practical implications due to their infringement of international law principles. Firstly, because it involves a conflict between two states that requires a solution agreed upon by both parties under the legal doctrine of State consent, which specifies that governments are bound to adhere to rules if they have already consented to adopt them. In this case, Venezuela and Guyana, by signing the Geneva Agreement, established a dispute settlement mechanism and, therefore, cannot backtrack. Accordingly, if the referendum were to be approved in favor of the annex of Esequibo, there would be no practical effect because the Venezuelan sovereign power decides on an issue unilaterally without the consent of Guyana as directly affected.
Secondly, the execution of the referendum would result in a clear violation of the principle set out in Article 27 of the Vienna Convention on the Law of Treaties, which states, “[a] party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.” In this regard, although Venezuela challenged the 1898 award and the outcome of the application of the Geneva Agreement regarding the resolution of the dispute before the ICJ, it is clearly obligated to comply with the award and respect the execution of the Geneva Agreement. The result of the referendum does not triumph or prevail over international legal obligations.
Thirdly, as the issue extends beyond Venezuela’s interests and directly involves Guyana’s territorial sovereignty, the referendum threatens to undermine the principle of peacefully settling international disputes, as recognized in Article 2(4) of the United Nations Charter. Under the jurisdiction of the ICJ, there is a pending case specifically aimed at determining the boundaries of the disputed territory. Therefore, it would be appropriate for Venezuela to present its arguments before the ICJ to contend that under international law, this territory belongs to Venezuela and not Guyana. The act of turning to its citizens to decide an international dispute is a cynical departure from the rules that Venezuela previously consented to by signing the Geneva Agreement. There is no way the referendum could have legal effects because, in due course and even without Venezuela’s cooperation, the ICJ will render a judgment and put an end to the dispute.
Finally, any attempt to execute the referendum that involves annexing part of the territory that currently belongs to Guyana would lead Venezuela to violate the prohibition of the threat or use of force against the territorial integrity or political independence of any state as outlined in Article 2 (4) the United Nations Charter. Thus, the referendum is a fraud to the citizens of Venezuela because it goes against international law for the armed forces of Venezuela to occupy a territory.
One of the aspects that the ICJ must clarify is whether the consultative referendum constitutes a violation of the principles already described. One thing that is underway is Guyana’s request for provisional measures to the ICJ to order the suspension of the referendum, which could serve as a preventive measure against various violations by Venezuela. All in all, if the ICJ decides to award the Essequibo to Guyana, Venezuela will have no choice but to abide by the decision.