Anglo-American Diplomacy and the Reopening of the Guyana-Venezuela Boundary Controversy, 1961-1966

By Cedric L Joseph

This book is about Anglo-American involvement in the reopening of the border controversy between Guyana, formerly British Guiana, and Venezuela. The dispute over the border commenced in the mid-nineteenth century when Venezuela asserted a claim to some two-thirds of the territory of the British colony.

Great Britain’s refusal to refer the delimitation of the border to arbitration developed into a major crisis in Anglo-American affairs in 1895. The United States had assessed the issue as a major challenge to the Monroe Doctrine and it would provoke the two English-speaking powers close to military conflict.

In 1899, an arbitral tribunal met in Paris and agreed unanimously on the boundary line between British Guiana and Venezuela. That boundary line has been universally accepted.

In 1962 at the height of the Cold War, Venezuela repudiated the award claiming that it was a “political deal”. Fidel Castro had assumed power in Cuba and there were anxieties about the spread of Communism in the Americas, particularly in British Guiana during the pre-independence premiership of Marxist oriented Cheddi Jagan.

Cedric Joseph examines the primary documents relating to the diplomacy of the administrations of John F Kennedy, Lyndon Johnson and British Prime Minister Harold Macmillan. He explores their special relationships, sympathies and acute predisposition towards Venezuela that permitted the reopening of the boundary issue and ultimately sacrificed the territorial integrity of Guyana.

He also establishes the collusion between Suriname’s claim to territory in Guyana and the Venezuelan claim.

• Language: English
• Publisher: Trafford Publishing
• Release date: Nov 17, 2008
• ISBN: 9781426936487

Cedric L Joseph

Cedric Joseph is a historian and a retired career Foreign Service Officer. He was born in Guyana and was educated at the University of Wales, Aberystwyth and at the London School of Economics and Political Science. He has been a Lecturer in History at the University of the West Indies, Mona, Jamaica. Later he joined the Ministry of External Affairs, Guyana, and has served in the Guyana diplomatic service in the missions in Jamaica, Washington, DC; and as Deputy Permanent Representative in the Permanent Mission of Guyana to the United Nations; as High Commissioner to Zambia with accreditation to a number of states in Southern Africa; and as High Commissioner to the Court of St James’s, accredited to France, the Netherlands and the former Yugoslavia. He was also the Representative of Guyana to UNESCO. During 1983-1986, he was Chairman of the Commonwealth Committee on Southern Africa in London, and in 1985-1986, he also served as Chairman of the Commonwealth Sugar Committee also in London. He was later appointed Head, Presidential Secretariat and Secretary to the Cabinet in February 1986 and retired from the Public Service in August 1991. He returned to the Ministry of Foreign Affairs as Senior Ambassador until December 1994. From 1991-1994, he was a Member of the Board of the Institute of International Relations, University of the West Indies, St Augustine, Trinidad and Tobago. He has written on domestic and regional affairs including the Guyana-Venezuela boundary controversy and on the Caribbean Community

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Copyright 2008, 2010 Cedric L. Joseph.

Cover design by Joanne Collins-Gonsalves.

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I would hurl words into this darkness and wait for an echo, and if an echo sounded, no matter how faintly, I would send other words to tell, to march, to fight, to create a sense of the hunger for life that gnaws in us all, to keep alive in our hearts a sense of the inexpressibly human.

Richard Wright

For Keisha, Rondy

and Keiron

CONTENTS

Abbreviations

Preface

Foreword

1: The Arbitral Award, October 3, 1899

2: The Treaty Of Arbitration, February 1897

3: Decolonization And Reopening

4: At The United Nations

5: Retreat At The United Nations

6: Venezuela’s Colonial Ambitions³⁵⁵

7: The Border With Suriname

8: Examination By The Experts Elevated To Ministerial Meetings

9: The Second Ministerial Meeting, December 9-10, 1965

10: The Geneva Agreement

11: The Aftermath

Appendices

Bibliography

LIST OF ILLUSTRATIONS

1. Dr Cheddi Jagan meeting with Governor Sir Ralph Grey on his appointment as Premier in August 1961.

2. Dr Cheddi Jagan addressing the Fourth Committee of the United Nations General Assembly, December 18, 1961.

3. Dr Cheddi Jagan with President John F. Kennedy, October 25, 1961

4. President J.F. Kennedy with Prime Minister Harold Macmillan in Bermuda, December 1961

5. L. F. S. Burnham with President Lyndon Johnson, October (circa) 28, 1965

6. L.F.S Burnham being received by Prime Minister Harold Wilson at 10 Downing Street on November 19, 1965

MAPS

1. Map of Guyana showing territory claimed by Venezuela and Suriname (Courtesy of the Guyana Lands and Surveys Commission)

2. Map of Venezuela showing territory claimed in Guyana

ABBREVIATIONS

PREFACE

This is a revised and much enlarged edition of my monograph, Anglo-American Diplomacy and the Reopening of the Guyana-Venezuela Boundary Controversy, 1961-1966, published in 1998. The premise is maintained: that the domestic implosion in the colony of British Guiana on the eve of its independence, the new security perceptions in the Caribbean framed in the Cold War as a derivative of the revolution that brought Dr Fidel Castro to power in Cuba, along with the assumptions about the establishment of another communist state in the region deemed strategically vital to the United States, presented a major problem for Anglo-American diplomacy that induced Venezuela to reopen the boundary issue with British Guiana.

The edition benefits considerably from the general availability of the official diplomatic correspondence and other primary documentation on both sides of the Atlantic. Notwithstanding the officially instituted closed periods for the release of these documents for public view, the Government censors on both sides felt constrained to retain some files and papers as classified. Perhaps, these files/documents are still deemed to be too sensitive particularly in regard to the allegations of collusion in the reopening of the issue. In the end, the retention only stimulates the researcher’s imagination and industry. And in spite of this, the broad picture is readily discernible: that is, that the long-term security and the territorial integrity of independent Guyana were compromised on the altar of Cold War exigencies that were manifestly overstated.

Since the complete story of the reopening has never been told, as if it can be, the unfolding has oftentimes fallen prey to some myths, both outside of and, particularly, within Guyana. In Guyana, the course of the febrile political and ethnic rivalry between the two major political parties has led to some calculated misrepresentation and sheer propaganda on this highly sensitive issue. Indeed, on occasions the differences have veered so sharply off course as to impair the national response to the external threats to the territorial integrity. It is also indisputable that the external claimants have exploited these cleavages in Guyanese society to their own strategic advantage.

This edition seeks to tell the story as clearly, factually and as fully as the available sources permit. It deals essentially with the formulation and pursuit of policy in Washington and Whitehall, the diplomatic exchanges primarily between the two English-speaking powers and the corresponding, though not subordinate, events as they evolved in the other theatres, at the United Nations, in Caracas, or in Georgetown. It will not be immersed into the maelstrom that is Guyanese domestic politics, so much has already been written, and continues to be written on all aspects. Hence, when a Guyanese background is necessary to illustrate an Anglo-American reaction, that is provided. So too, there will be no essay on the revolution in Cuba and Dr Castro’s assumption to office, an issue with a long life of its own.

The matter of the reopening, which is examined within the brief period of a decade, flows chronologically and is rearranged into identifiable chapters moving as necessary to the other theatres as issues develop simultaneously. There is also an introduction into the developments during the nineteenth century that led to the Arbitral award of 1899; this is the only portion of the edition that has relied on earlier researches. Almost the entire edition is the product of recent research as the official documents became available and being in retirement afforded the time and facility to update the story.

There is also an extensive chapter on the unresolved border with neighbouring Suriname treating that subject as an integral one in a comprehensive management of the borders. It is hoped that readers and students will find this approach valuable. It was imperative to trace the developments in the attempts to negotiate the border with Suriname to bring to the surface the coincidences, if not collaboration, and to establish where the reopening by Venezuela had a direct impact on Suriname’s reaction. When the major powers were stoical and either by calculated action or feigned inaction countenanced Venezuela’s challenge of the Arbitral award of 1899, that they had intimately promoted, they could hardly have contemplated the adverse long-term effects their policy would have had on the territorial compactness of Guyana.

The obligation to undertake this research is therefore well grounded in the past. The task was no less than to study, really to inquire into, in the Greek sense of the historian’s duty, the forces that caused an arbitral award that was unanimously reached and the product of some of the most exhaustive and complex expositions to be reopened after six decades of international endorsement. And this when the major parties recognized at the time that there was no legal basis for a cross-examination. The understanding of all the parties, enshrined in a treaty, that the award would be a full, perfect, and final settlement of all the questions referred to the arbitrators would be challenged by one party, resisted stoutly by another while the third and major party affected neutrality between friends.

My earliest interest in this matter of the controversy over the frontier began to mature during my post-graduate years, 1962-1965, at the London School of Economics and Political Science (LSE). As a participant in the seminar convened by Professor W.N.Medlicott, Professor Emeritus of International History, I was exposed to the groundwork of the diplomacy of the European States in the period between the two Great Wars. My tutor, Donald C. (later Professor) Watt, directed my attention to this issue of the British Guiana/Venezuela frontier. In their different ways, these renowned scholars set in motion this search for knowledge and I pay tribute to them for their early guidance.

Those years at LSE were also significant for two other reasons. First, they coincided with the brief administration of President John F Kennedy whose own rather fleeting tenure at the LSE had stimulated a number of young Americans to participate in Prof Medlicott’s seminar. And second, the years were simultaneous with the reopening of the controversy over the border, the ramifications of which would hardly have been perceptible to outsiders at the time

Yet the task could not have been initiated outside an environment of scholarship, enlightened discourse, and the supportive resources. For this endeavour, I should like to record my deep gratitude to the late Professor Emeritus Douglas Hall and Professor Emeritus Sir Roy Augier, both of the Department of History, University of the West Indies, Mona, Kingston, Jamaica, for the initial and valuable support to commence this undertaking. My colleague and friend of over four decades, Professor Emeritus Arthur Drayton, formerly of the Department of English of the University of the West Indies, Kingston, Jamaica, and latterly of the University of Kansas has been a source of strength and encouragement during many years.

I also wish to convey my appreciation to the members of staff of the following archives and libraries for their assistance, generously and professionally given: The National Archives (Public Record Office), Kew, United Kingdom; the Library of Congress, Washington, DC.; the National Archives and Records Administration, College Park, Maryland; the John Fitzgerald Kennedy Library, Boston, Mass.; the British Library, St Pancras, London; Ken Gibbons, Assistant Librarian at the Library, London School of Economics and Political Science, London; and the New York Public Library.

In Guyana, a special appreciation to the gallant staff at the National Archives, including the Newspaper section, for their remarkable efforts in an unpromising, though changing, situation; the Caribbean Research Section at the University of Guyana; and the Documentation Centre, Caribbean Community Secretariat, Turkeyen, East Coast Demerara where Ms Sandra Woolford was especially helpful. I am also grateful to the staff of the University of the West Indies/CARICOM Project for their invaluable and thorough contribution to preparing the manuscript for publication.

The People’s National Congress/Reform and The Cheddi Jagan Research Centre were quite supportive and generous in their provision of photographs of the leading statesmen of this work and other material and maps.

Finally, this task could not have been undertaken and completed without the unfailing encouragement, understanding and support of my resourceful family. To my wife, Dona, whose geniality and moral support during the twists and turns of its voyage were absolutely vital, I am deeply indebted.

Cedric L Joseph

June 2007.

FOREWORD

Guyana’s diplomatic history is largely the history of its relations with Venezuela and Suriname, its neighbours which resurrected their territorial claims in the early 1960s.

A former colony of the United Kingdom, Guyana fell within the sphere of influence of the United States owing to its location in the western hemisphere and became the target of territorial claims by the Netherlands and Venezuela. Georgetown could embark on few diplomatic initiatives in its international relations without cautious calculation of the anticipated consequences not only in Caracas and Paramaribo, but also in Washington, London and The Hague. No other Caribbean Commonwealth country embarked on statehood with such impediments.

The territorial controversy which still plagues present-day Guyana has been one of the most intractable post-Independence problems. It not only set the stage for the new state’s inauspicious entry into the international community but it also signalled a troubled start to the task of nation-building. As a result, the diplomatic and defence efforts needed to safeguard the country’s integrity have diverted a disproportionate share of the resources intended for economic development.

Venezuela’s territorial claim was not new. Settled since 1899 by the Tribunal of Arbitration in Paris, it was revived largely through the spurious memorandum of a junior counsel for Venezuela at that tribunal which was published posthumously fifty years later. Fitting nicely with its internal political conditions and external geopolitical ambitions, Venezuela used this memorandum as a pretext for re-opening the boundary issue six decades after it had been settled.

The coincidence of British Guiana’s approach to independence, the influence of the revolution that brought Fidel Castro to power in Cuba and the prevalence of anti-communism in this hemisphere during the Cold War imparted a political façade to the territorial question which obscured its factual, historical and juridical bases. The friendship between British Guiana’s premier, Dr Cheddi Jagan, and Cuba’s prime minister, Dr Fidel Castro, and the aggravation of Venezuelan anxieties of being sandwiched between the two came to count for more than the validity of the arbitral award.

The Netherlands, taking advantage of Venezuela’s apparent success in resurrecting the settled territorial matter, reopened its own all but closed chapter of British Guiana’s border with its colony, Suriname. Although the frontier between British Guiana and Suriname had never been formally determined by treaty, there was tacit agreement between the United Kingdom and the Netherlands based on an Anglo-Brazilian-Dutch agreement on the tri-junction point which defined the spot where the frontiers of British Guiana, Brazil and Suriname met. A draft treaty on the frontier was actually under consideration when the war in Europe forced its abandonment.

In pursuit of its economic interests, especially the prospect of petroleum in the vicinity of the mouth of the Corentyne River, the Netherlands, like Venezuela, used the opportunity of the approach of British Guiana’s independence to reinvent its frontier strategy. From that time, Dutch diplomatic initiatives would advance pari passu with Venezuela’s.

The United Kingdom, for which Venezuela had become one of its largest markets in Latin America and for which the Venezuelan armed forces were already a significant customer, always seemed more interested in protecting its economic interests than in safeguarding British Guiana’s territorial integrity. The United Kingdom and its ally the United States of America, particularly during those heady cold war years of the John F Kennedy Administration, also shared concerns over the prospect that British Guiana could become a communist state after independence. US national security interests were the important consideration in Anglo-American relations as far as British Guiana was concerned.

During the 1960s, however, while the UK and USA were busily befriending Venezuela, British Guiana was becoming something of a pariah, confounded by conflict, alienated from the hemispheric trend of anti-communism and isolated from the mainstream Anglophone Caribbean integration and independence movements.

Poor British Guiana! By the 1960s this pre-nation was in ferment. It had wandered into a quagmire of civil unrest, political conflict and ethnic strife which not only damaged the economy but poisoned inter-communal relations. This made it difficult for the territorial controversy to be seen as a ‘national’ concern and it was ever stigmatised as a ‘partisan’ political problem. British Guiana was weakest at a time when it most needed a sustained level of social solidarity, statesmanship and sincerity of purpose from its leaders to confront external challenges.

The story of the failure to settle the territorial problem definitively prior to Guyana’s independence is the story of the United Kingdom’s strategic alliance with the United States as well as its strategic avoidance of an open breach with Venezuela which could have impaired its economic interests and jeopardised British exports.

Hence, the United Kingdom’s serial blunders starting with stumbling into talks, and continuing with slipping into negotiations, sliding into the reopening of the controversy and, ended with dragging British Guiana into the Geneva agreement with Venezuela.

The road to Geneva was paved with the United Kingdom intentions to appease Venezuela by agreeing first to the re-examination of documents and later to ministerial talks although at the outset such an outcome might not have been anticipated. From that time, Guyana could do little more than try to manage a damaged process and prevent slippage in the concept of the validity of the arbitral award of 1899.

Here was the origin of the predicament in which Guyana found itself in the post-Independence years as it came under physical attack by the claimants to its territory. Once United Kingdom’s armed forces departed, Venezuela seized the Guyanese portion of the small island of Ankoko. Suriname attempted to imitate Venezuela’s success by seizing the New River Triangle but was expelled by the Guyana Defence Force. Suriname returned the favour in 2000 by expelling the charted Canadian petroleum from Guyana’s waters.

Cedric Joseph blends the judicious analysis of a complex historical and geopolitical issue with prodigious research into primary documents in this excellent examination of the territorial question. An enlarged version of his preliminary study, Anglo-American Diplomacy and the Reopening of the Guyana-Venezuela Boundary Controversy, 1961-1966, this new book covers new ground by including a chapter on the claims by The Netherlands and extending the study to events occurring in the new millennium. It is easily the most current, comprehensive and authoritative text on the territorial controversy.

Brigadier (retd) David A Granger

Chapter One

THE ARBITRAL AWARD,

OCTOBER 3, 1899

At five minutes after noon on October 3, 1899, the Tribunal of Arbitration, assembled at the Quai d’Orsay in Paris to determine the boundary line between British Guiana and Venezuela, tendered its award.

The tribunal was established by the Treaty of Arbitration signed in Washington on February 2, 1897, between Great Britain and the United States of Venezuela. The Treaty had been negotiated for the most part between Great Britain and the United States acting on behalf of Venezuela and had been signed by these two parties on November 12, 1896.¹

The tribunal consisted of five jurists, two of whom were nominated on behalf of Great Britain: they were, initially, the Right Honourable Baron Herschell and the Honourable Sir Richard Henn Collins, Knight, Justice of the Supreme Court of Judicature. Baron Herschell died shortly after his nomination and was replaced by the Right Honourable Charles Baron Russell of Killowen, Lord Chief Justice of England. Two members were nominated on behalf of Venezuela: the United States nominating Justice of the United States Supreme Court, David J Brewer, who had been Chairman of the Commission established by President Grover Cleveland to determine the boundary, and President Joaquin Crespo of the United States of Venezuela nominating Chief Justice Melville Weston Fuller of the United States Supreme Court. The four jurists unanimously and expeditiously chose the fifth member, Professor Fyodor de Martens, Privy Councillor and Permanent Member of the Council of the Ministry of Foreign Affairs in Russia, as President of the Tribunal.

The tribunal met in Paris during June 15 and September 27, 1899, for fifty-four spirited and contentious sessions in addition to a preparatory session in January 1899, and six sessions of consideration by the arbitrators prior to the announcement of the award. The tribunal was convened simultaneously with the Peace Conference, called by Czar Nicolas II at The Hague from July 1899 to codify the law regarding arbitration, that would eventually lay the foundations of the Permanent Court of Arbitration. Indeed, the tribunal was viewed by some contemporaries as a practical working example of arbitration in progress.

In his closing statement, the President of the tribunal, de Martens, addressed this matter of arbitration as a mechanism for the peaceful settlement of disputes operating within certain agreed rules.² He said that the tribunal was of exceptional importance since it was also the first of its kind in which certain rules of procedure were laid down and communicated to counsel on both sides as obligatory rules to be adhered to during the proceedings. These rules were proposed essentially by de Martens, who was also Russia’s representative at The Hague Peace Conference, and who, through his personal engagement there, delayed from time to time the deliberations of the tribunal. Since these rules were laid down by the arbitration tribunal at its first session in January 1899, they had a special merit in their application prior to their embodiment into the Convention subsequently reached at The Hague.

The award was unanimous and was handed down without explanations. Since 1873, awards were decided by majority vote and this was the first occasion of a unanimous decision. Further, in accord with the prevailing practice, there was no requirement by Treaty, or by convention, to explain the award. de Martens, too, may not have been disposed to giving reasons for the award after his explanations in the Costa Rica Packet award of 1897 were criticized as being a compromise. Notwithstanding, de Martens addressed the tribunal stating that, despite the great interests involved and the extent of the territory at stake, the boundary laid down was a line based upon justice and the law and that the judges were actuated by a desire to establish a compromise in a very complicated question.³ It was this element of ‘compromise’ that would attract immediate criticism and, years later, would be vitiated as a ‘deal’.

Before the tribunal each party had submitted a case, a counter case, and an argument in addition to its oral argument and together some 2,650 documents. It was known that even the archives of the Capuchins in Rome had been rummaged in the search for supportive documentation. The arguments explored the differing submissions of eminent international lawyers on the issue of discovery and occupation and on political control and influence over the indigenous peoples whose rights of proprietorship were not recognized.

The award closely followed the line drawn by Robert Schomburgk during his surveys of 1841-1842 of the north-west frontier of British Guiana with Venezuela departing at two points: on the coast the line began slightly to the east of the Schomburgk line at Point Playa and then connected up with the Barima until it reached the Amakuru, thus awarding to Venezuela the full control of the Orinoco. In the interior, the line proceeded mid-stream of the Acarabisi to the Cuyuni and along the northern bank of the Cuyuni westward to its junction with the Wenamu following its mid-stream to its source and then in a direct line to Mt. Roraima, thus giving Venezuela the fiercely contested upper reaches of the Cuyuni.

No portion of territory actually settled or controlled by Spain or Venezuela came within the territory awarded to Britain in the area beginning from Point Playa to the junction of the Acaribisi with the Cuyuni. Accordingly, Venezuela’s claim for a boundary on the Essequibo was totally rejected. Judged by the strictest judicial standard this part of the line is unassailable. In the remainder, the arbitrators evidently faced the same uncertainty and difficulty that the Dutch had experienced during the seventeenth and especially the eighteenth centuries in determining precisely the limits of their occupation and control in the interior. In the intervening areas between the established occupation and control, the germ of compromise is discernible in this part of the line.⁴

The award was well received by the leading media in Britain and in the United States. The London Times of October 4, 1899, noting that the award had followed closely the Schomburgk line with a few exceptions that were trifling, observed that the territory awarded to Venezuela abandoned the more preposterous portion of its claim. Apart from the summary observation of de Martens, Justice David Brewer was the only other member of the tribunal to comment publicly on the award. He said at the time that each judge would have made an award differing in extent and character. Only at the last moment, he added, was agreement possible and it was only by the greatest conciliation and mutual concession that a compromise was reached.⁵ Hence, there were possibly four, or even five, demarcations which would have persuaded de Martens to apply as much pressure as possible to achieve a line, let alone a unanimous decision.

Andrew White, a member of the Grover Cleveland Commission that had abandoned its task in February 1897 after Britain had agreed to arbitration, later observed that the award agreed substantially with the line worked out by the Commission after much trouble.⁶ Having been disbanded, the Commission naturally refrained from announcing a line. However, it is apt to note that Professor G.L.Burr, who was not a member of the Commission but had done valuable work in collecting historical evidence for that body, has stated that the Commission never found a line.⁷

Indeed, The New York Times, in its editorial of October 5, 1899, noted that the ‘compromise’ arrived at compelled the conclusion that Chief Justice Fuller and Associate Justice Brewer were convinced that the claims of Venezuela for a boundary at the Essequibo could not properly be approved. The New York Times further observed that Justice Brewer was perhaps the American present who was best prepared through his earlier involvement in the Cleveland Commission to justify any stand for Venezuela that he thought should be asserted and recognized.⁸

Counsel for Venezuela, perhaps predictably, disparaged the award. Replying to the closing statement of de Martens about the unanimity of the decision, former President Benjamin Harrison, the leading counsel for Venezuela, and Severo Mallet Prevost, the junior counsel, remarked that it did not require much intelligence to penetrate behind the superficial argument to see that the line drawn was a line of compromise and not a line of right. Counsel argued that if the British contention were right, the line should have been drawn further west; if it were wrong, the line should have been further east. Nothing could explain where the line had been drawn. Arbitration, they declared, should result in the admission of legal rights and not in compromises really diplomatic in character. Thus, they concluded that if the arbitrators were unanimous, it must have been because their failure to agree would have confirmed Britain in the possession of even more territory.⁹

Harrison was quite perturbed over the tribunal’s award and wrote to his associates bitterly about it. Immediately after its announcement, in a letter to W.H.H. Miller, his former Attorney-General, he denounced the decision as not judicial but the result of a compromise. He claimed that it seemed that the law was nothing to a British judge when it became a matter of extending British dominion and the seizure and expropriation of territories of weak nations.¹⁰ Indeed, an entry in his wife’s, Mrs Mary Harrison’s, diary reflects an identical condemnation.¹¹ Interestingly, Harrison had forgotten, or overlooked, that the United States was at that very time in impassioned pursuit of its manifest destiny, gobbling up territories in Asia and the Americas or occasioning wars like the Spanish American war of 1898 and liberating the Philippines.

Harrison had also ignored that, in the preparation of the case for the tribunal, he had acknowledged in a private letter to former secretary J.W. Foster, that Venezuela’s claims were not gilt edged. If the argument for the original Spanish title premised upon discovery were countered by an argument for non-occupation on the part of Spain, he conceded that Venezuela’s case would be insecure.¹² Mallet-Prevost had also written to Harrison on March 6, 1898 conveying some doubts about the legal basis in the draft prepared by the Government of Venezuela. Replying, Harrison observed; I agree with you that we cannot hope to have the tribunal accept the Essequibo line.¹³

Writing in retirement, former President Grover Cleveland, under whose administration the dispute had developed into a major crisis in Anglo-American affairs in 1895, observed on this aspect of Venezuela’s first claim to the Essequibo line as a proper boundary in January 31, 1844. He said that this was a proposition of such extreme pretension that Venezuela knew, or ought to have known, that it would not be considered for a moment by Britain.¹⁴

In the aforementioned letter to Miller, written in Berlin on October 7, Harrison had confided that the case turned upon the question of discovery and prior rights which rule it was hard to make the tribunal apply.¹⁵ The contention by counsel for Venezuela that the Treaty of Munster of 1648 had the quality of an estoppel making illegal all occupation in the disputed area west of the Essequibo was untenable. As will be seen presently, it was this recognition of the Pomeroon establishment that really took the bottom out of the Venezuelan claims about discovery and superior rights.

The case for Venezuela was insubstantial. After three centuries of non-recognition by international jurists and by the English and French monarchs, it was infeasible to claim a title to an exceedingly large area of territory solely on an assertion of a superior title and on a peripheral and partial occupation. The invalidity of this claim did not escape Harrison’s attention as had been reflected in his letter to J.W. Foster.

Compelling, too, was Harrison’s other admission in the said letter to Miller written in Berlin on October 7 immediately after the award. Harrison confided that counsel for Venezuela might have misconceived the bearing of the facts and might have misjudged the application of the rules of law to the facts. This was quite a damning evaluation from the leading counsel that could only have been made in the strictest confidence to a close colleague. Notwithstanding, Harrison went on, whatever else was won or lost, they could at least claim the favourable judgment of the tribunal that they bore themselves with frankness and fairness towards the tribunal.¹⁶

The British argument was best expressed by one of its counsel, Sir Robert Reid. He submitted that to make the delimitation, it was necessary to determine what was the amount of possession, occupation, control, influence; to show the predominance of one nation in a savage or comparatively savage country. What was the extent to which that influence or power pervaded this country, to what extent it became, as against the other, the belonging of the nation, whose influence or whose authority or whose control it affected? The same rule for both nations.

He added, however, that the Venezuelan contention expressed a different standpoint; it claimed "a certain predominance, overlordship, superiority, which places them in the happy position that although they are not possidentes they are still beati. They need not offer anything.¹⁷ European jurists at the time tended to give some significance to this line of argument. For, an admission that Spain was beati would have been tantamount to recognizing Spanish overlordship over both North and South America.

From Caracas, the British Minister, diplomatic relations being conducted at the level of Minister, reported on October 7, 1899, that the Venezuelan public received the award with indifference. Private comment by Venezuelans of education, he observed, regretted that Barima Point had been awarded to Venezuela who could never hope for a prosperous Orinoco region had it remained with Britain.¹⁸ A fortnight later, an article on the award in the leading newspaper El Tiempo asked, as translated who would vote for Great Britain to preserve for civilization this new Empire, or to let it go back to the condition in which it has been since the discovery of America? Forthwith, the article proceeded to vote for Britain.¹⁹

The implementation of the award by the two parties, Britain and Venezuela, followed without any undue delay. From late 1900 to early 1905, an Anglo-Venezuelan Boundary Commission marked on the ground the boundary defined by the arbitral award. The joint Commission identified the geographical positions of twenty-five boundary markers.

Four reports with accompanying maps and five sets of Joint Acts were signed by the British and Venezuelan Commissioners and forwarded to their respective governments. In the joint report, the Commissioners recommended a modification of the section of the direct line set in the award, from the source of the Wenamu to Mount Roraima which cut the watershed of the Cuyuni on the Venezuelan side and the Mazaruni on the British side, to a more practical line which would follow the watershed of the two rivers. This recommendation would have resulted in the loss of some 222.6 square miles of territory to Venezuela. Britain supported the proposal and privately was prepared to offer compensation to Venezuela for any loss of territory.²⁰

However, in Venezuela the Federal Executive, having examined the proposal of the joint report, ratified only the work of the commissioners restricted to that part of the line which confirmed with the award without extending to the deviation of the line recommended by the Commissioners.²¹

The Venezuelan Congress, concurring with the opinion of the Federal Executive and approving the report of the Permanent Committee of both houses on Foreign Affairs, declared the proposed modification unacceptable since it resulted in a session of territory. Accordingly, the Federal Executive ratified only the work of the Commission which accorded with the award and recorded in a report and maps prepared by the last commissioners at Georgetown dated January 10, 1905.²² The direct line in that portion of the boundary has remained.

Further, official recognition of the award was evident during the years 1915 to 1917. At this time Venezuela tried unsuccessfully to persuade Britain to share the work and expense of clearing and refurbishing the markers in the coastal sector of the boundary and demarcating more satisfactorily a mountainous sector.²³

Notwithstanding, Venezuela would describe in later years its participation in the joint demarcation exercise as of a purely technical character. The line delineated by the Commissioners was subsequently shown on British, Guyanese and Venezuelan maps and recognized by the international community as the boundary, final and settled.

In addition, as a result of the continuing influx of Brazilians into the areas of the Rupununi since the mid 1890’s, and the attendant problems of an uncertain boundary, Britain and Brazil agreed in November 1901 to submit the question of that section of the boundary to arbitration by the King of Italy, Victor Emmanuel III. Following the arbitration that was based entirely on the written case and argument, a boundary was awarded in June 1904. Territory bounded by the Cotinga River in the west, the Takutu in the south, and the Ireng in the east and north was awarded to Brazil. In the late 1930’s, a joint Anglo-Brazilian team of surveyors demarcated the boundary on the basis of the award. The joint report was signed in the Ministry of Foreign Affairs of Brazil on January 19, 1939.

The Brazilian commissioners later visited London to sign the general map of the boundary in July 1939. That piece of territory awarded to Brazil had been granted to British Guiana in the 1899 award although it had been claimed by Venezuela. In the circumstance, it is more than significant that when Venezuela later reopened its claim to the Essequibo, it did not make a corresponding claim against Brazil to that portion of territory which Brazil obtained in 1904.²⁴ And it has not done so to the present time. Indeed, Brazil is the only one of the neighbouring states against whom Venezuela has not advanced a territorial claim.

Again, in 1932, in an exchange of notes Britain and Venezuela would agree to the precise tri-point location of the boundary with Brazil in Mount Roraima.²⁵ Taken together, the statement by the Venezuelan Foreign Minister, Esteban Gil Borges, in 1941 that the boundary with British Guiana was a chose jugée and that the writer of the articles in the local media questioning the award had obviously never had access to the archives of his Ministry, afforded additional evidence of Venezuela’s official acceptance and recognition of the award.²⁶

In the circumstance, Venezuela’s public acts of acquiescence in the award over a long period, and without any duress, precluded it from contesting the award at a later time. By the 1960’s, the International Court of Justice would rule that a state was precluded from challenging previously established boundaries, even though defined irregularly and defective legally, if that State had recognized or acquiesced in those lines or failed to protest against them particularly when the contiguous state had relied in good faith upon such acquiescence and had considered the matter finally settled. (See Chapter Nine, the Case between Honduras/Nicaragua, 1960)

There, at the Paris arbitration, the case of the boundary between British Guiana and Venezuela should have been set at rest, fully, perfectly and finally. But the signals were not of good omen. Much acrimony flowed through the proceedings. The leading counsel for Venezuela, Benjamin Harrison, and the junior counsel, Severo Mallet Prevost, also a distinguished international lawyer, nursed such acute indignation against the two British arbitrators and the leading counsel for Britain, Sir Richard Webster.

Mallet-Prevost, would assume, when all the leading involved personalities had departed this life, the principal role in the renewal of the controversy. In his concluding statement at Paris, Harrison stated that he had never since his irresponsible childhood been so scolded and lectured as he had been by Sir Richard Webster. In his private correspondence, Harrison maintained the inflexible position that the British judges were, as always, aggressive advocates, rather than judges and almost as distinctly partisan as the British counsel.²⁷ The private correspondence of other American statesmen also reveals these pervasive resentments against the British, whom, in one instance, Cleveland described to Richard Olney as mean and hoggish.²⁸

Certainly menacing for the future was the Parthian shot left by Harrison in that closing statement that in international law there was the principle of the absolute equality of nations. No weight, he said, could be attached to the fact that one nation was stronger, more enterprising or endowed with a better government than the other and consequently more capable of developing territory which it might appropriate.²⁹ How ironic that, as mentioned earlier, Harrison could feign to be oblivious of the fact, that at the very time he was speaking and writing, the United States was enlarging its manifest destiny into a fully-fledged imperial policy; some of the acquisitions are still possessions of the United States today. Never mind, it was this perceived image of injustice, tyranny and inferiority that would be transmitted to later years in no less harassing dimension.

Europe at the fin de siècle flaunted a club of monarchs, though France after 1870, with the institution of the Third Republic, had no monarchy, and incestuous noblesse, of which Czarist Russia was a full member. Indeed, the last Czars were peculiarly more German and, culturally, more French than Russian. The post-industrial rivalries among them and the colonial ambitions had spread to Africa and Asia, particularly China. Germany would soon sever whatever bonhomie existed; Russia’s internal disintegration would end in revolution and communism and the outsider, republican United States, would march to rescue the ancien regime.

South America, as Eric Hobsbawm would wryly comment, was virtually an informal part of the British Empire. Venezuela in the 1890’s was in the throes of perennial revolution. El Tiempo, which had accepted the 1899 award, had observed that ever since its foundation in 1811 the republic had experienced an average of one armed intervention a year. Constitutional guarantees had been suspended; the administration of justice did not exist; and judicial and legislative functions were usurped by the military.³⁰ During the said 1899, in the midst of another revolution, three factions disputed power. So unstable was the situation that the Venezuelan Agent at the Paris tribunal, anticipating the overthrow of the administration of Ignacio Andrade, initiated a discussion with his British counterpart on September 8 about an early payment of the moiety due by Venezuela for the expenses incurred by de Martens.³¹ Andrade, however, survived for some years.

In the same vein that the repressed resentment and anglophobia in the United States had exploded in the dispatches of President Grover Cleveland and Secretary of State, Richard Olney in the mid 1890’s, when Britain resisted arbitration, in like manner impulses about imperial brigandage of a past age would be released at an opportune time when the scales of power, authority, wealth and respectability were tilted in Venezuela’s favour. Severo Mallet-Prevost would provide the occasion, though not the case; for there was never any case. Until then, Venezuela would seek every opportunity to keep before international attention its disdain for the award. First, however, is the Mallet-Prevost tale that has informed the challenge to the arbitral award.

In January 1944, Mallet-Prevost was decorated with the Order of the Liberator by the Venezuelan Government. On February 8, 1944, he dictated a memorandum to Judge Otto Schoenrich, a partner in the law firm Curtis, Mallet-Prevost, Colte and Mosle, New York. He instructed that the memorandum should be published after his death; the document was published posthumously in The American Journal of International Law, Vol.43, number 3, July 1949, Mallet-Prevost having died in New York on December 10, 1948.

Dealing with the arbitral proceedings in Paris forty-five years after their occurrence, the memorandum claimed that during the adjournment which followed the conclusion of the oral arguments and preceding the announcement of the award, Mallet-Prevost was summoned by Justice Brewer to meet with him and Chief Justice Fuller at their hotel. There, he was told by Brewer that the president, de Martens, had informed them that the British judges, Russell and Collins, were in favour of the Schomburgk line which, starting from Point Barima on the coast, would give Britain control of the main mouth of the Orinoco. If counsel for Venezuela insisted on a line on the coast starting at the Moruca River, that is, further to the east, de Martens would support the British judges and approve the Schomburgk line as the true boundary.

The memorandum further stated that de Martens, anxious to have a unanimous decision, suggested that if the Venezuelan counsel were to accept a line which he would propose, then he would secure the acquiescence of Russell and Collins and have a unanimous decision. de Martens then proposed that the line on the coast should commence at some distance south-east of Point Barima so as to give Venezuela control of the mouth of the Orinoco. It should then connect with the Schomburgk line at some distance in the interior giving Venezuela some 5,000 square miles of territory at the mouth of the Orinoco.

According to the memorandum, Brewer stated that he and Fuller were of the opinion that the boundary should start at the Moruca River. The issue to be decided, therefore, was whether to accept de Martens’ proposal or file dissenting opinions. Accordingly, Brewer concluded by saying that both he and Fuller were prepared to accept whichever of the two proposals was agreeable to Mallet-Prevost.

Mallet-Prevost was convinced that this ‘deal’ had been concluded during the recess when Russell and Collins had returned to England and took Mr. Martens with them. The ‘deal’ between Britain and Russia, he advanced, was to decide the case along the lines suggested by de Martens and, to that end, pressure was exerted on Collins to follow that course. This was reflected, Mallet-Prevost offered, in the change in the attitude of Collins as evidenced by the numerous questions he had asked prior to the recess critical of the British contention and giving the impression of leaning toward the side of Venezuela and the few questions he had asked afterwards.

Harrison, upon being consulted, reacted with indignation against the proposal. At first he wanted to file a dissenting opinion. Upon reconsidering the matter, however, and faced with the prospect of failing to save for Venezuela the mouth of the Orinoco, as Mallet-Prevost reported, they were left with no choice but to concur in the ‘iniquitous’ proposal of de Martens. Consequently, a unanimous decision was rendered by the tribunal along the line proposed by de Martens giving Venezuela, as Mallet-Prevost asserted, the most strategic point at issue, but depriving Venezuela of an extensive amount of territory to which it had a legal right and Britain had not the shadow of right.

Considering the allegation when it was made public, the Foreign Office, alerting the British Embassies in Caracas and Washington, deemed the thesis about a ‘deal’ as extraordinarily unconvincing.³² Accepting that the allegations warranted a reply, the Foreign Office also reasoned that there was the possibility that an article consisting of such flimsy guesswork might fail to arouse any controversy and might die a natural death. How misplaced was this caution for, as it turned out, a full response was required. The Foreign Office also deduced that the only evidence advanced to support the theory of a ‘deal’ was that one of the British judges had expressed in conversation an opinion to the effect that judgment on boundary questions should be given with a view to broad considerations of policy and, second, that the other British judge, after a visit to England during a recess, suddenly became taciturn and listless.³³

Mallet-Prevost had claimed in his memorandum that, on his way to the first session of the tribunal in January 1899, he had stopped over in London and in company with Brewer he had met Russell at a dinner hosted by the United States Chargé. At dinner he sat next to Russell and in the course of a conversation on international arbitration, Russell disagreed with his remark that international arbitrations should base their decisions exclusively on legal grounds, suggesting the option of broad considerations of policy. It was this episode which led Mallet-Prevost to conclude that Venezuela could not count on Russell to decide the boundary question on the basis of strict rights.

Internally, the Foreign Office seemed unruffled by the allegation of a ‘deal’ and remained reassured about the soundness of the British case. The Foreign Office, therefore, concluded that there was no evidence that the justice of the Venezuelan case was overwhelmingly demonstrated and, in the contrary, that it appeared that de Martens might well have been convinced of the justice of the British case, but was actuated by a laudable desire that his Court should reach a unanimous decision. Accordingly, the Foreign Office further argued that de Martens explored with the British judges a compromise whereby certain concessions were to be made in favour of Venezuela.³⁴

The public rejoinder to the memorandum came from Clifton Child, a member of staff of the Foreign Office. In essence, he disputed Mallet-Prevost’s recollection of the arbitration proceedings.³⁵ He argued that there was not one single document which by the widest stretch of the imagination could be considered to indicate a ‘deal’ between Great Britain and Russia of the sort suspected by Mallet-Prevost. Moreover, he said that Mallet-Prevost had let his imagination supply a number of details which were not included in the statement he and Harrison had made immediately after the announcement of the award on October 3, 1899.

Child identified a number of inaccuracies, some of fact and others of opinion. Mallet-Prevost was wrong about the timing of the recess. His recollection of the conversation he claimed to have had with Lord Russell at a dinner in January 1899 and his assessment that Russell could not decide the boundary question on the basis of strict rights were flawed. For, it turned out that Russell was not appointed to the tribunal until March 1899 following the death of Lord Herschell, the original appointee.

His assessment of the attitude of Collins before and after the recess was also wholly incorrect. To say that before the recess Collins asked numerous questions and gave the impression that he was leaning toward the side of Venezuela, and became taciturn after the recess, was incorrect both in fact and in opinion. Mallet-Prevost could have refreshed his memory by consulting the verbatim reports of the proceedings where he would have found that, during his speech Collins asked relatively few questions, and during the four days immediately preceding the recess, that is during Soley’s speech, he made merely five interventions.³⁶

Further, to state that the two American judges supported a line commencing from the Moruca River left unanswered other critical aspects of the line. As mentioned earlier, according to Justice Brewer, if the judges were asked individually to delimit a line, each would have given one differing in extent and character.³⁷

No hard evidence was advanced by Mallet-Prevost to support his allegation or conviction of a ‘deal’ between Britain and Russia. Had Mallet-Prevost only reflected on the political and diplomatic issues of the latter half of the nineteenth century following the Crimean war, he would have been alert to the unlikelihood of Britain and Russia completing such a deal. British Prime Minister, Lord Salisbury, in an exchange with Joseph Chamberlain, then Colonial Secretary, in August 1896, in which he detailed his reasons for objecting to arbitration, excluded a number of states, including Russia, whom he felt would be inadmissible as too hostile to England.³⁸ As it happened, Russia was only too pleased with Britain’s embarrassment over the Jameson raid in South Africa and with the congratulatory telegram which Kaiser Wilhelm sent to President Johannes Kruger on January 3, 1896 for resisting the raid.

The editorial Board of The American Journal of International Law had delayed the publication of Child’s reply from the July issue to October’s so as to facilitate an editorial comment from Professor William Cullen Dennis, a member of the Board.

Dennis contended that Child had refuted merely an ‘opinion’ or ‘belief’ of Mallet-Prevost but did not contest the statement of ‘fact’, Mallet-Prevost’s meeting with Brewer and Fuller.

Dennis further substantiated the statement of fact by disclosing that Mallet-Prevost had confided to him at the State Department sometime during the summer of 1910 (before 1st July), an account of what took place in Brewer’s hotel just as he had told it later to Schoenrich and in his memorandum(in 1944). At the time, Dennis was working on the claims of the Orinoco Steamship Company against Venezuela and was later appointed as the Agent of the United States in the Arbitration at The Hague Court in 1910.

However, Dennis also observed that he did not recollect Mallet-Prevost mentioning that the arbitral decision was the result of an Anglo-Russian ‘deal’ and he attempted to explain why this omission might have occurred. First, it might have been due to faulty recollection on his (Dennis’) part, but he rejected this since he had found the story interesting. Second, it was possible that Mallet-Prevost did not think it wise to mention this theory at the time since the meeting itself was quite brief. Or third, and more importantly, Mallet-Prevost had not at that time concluded that the award was the result of a diplomatic ‘deal’. Notwithstanding, Dennis asserted this did not affect the credibility of Mallet-Prevost’s consistent statement of the facts. Thus, even though the opinionated part of the story did not materialize until 1944, Dennis submitted that the factual part displayed consistency; the opinionated part alone grew in time.

Dennis further referred to another conversation, which took place between himself and Sir George Buchanan in 1910 at The Hague. Sir George, as seen earlier, was at that time the British Minister at The Hague, and had been the British Agent before the arbitral tribunal in 1899. Unfortunately Dennis could not recall this conversation with Sir George with the same clarity as he did with Mallet-Prevost’s; both conversations took place in the same year (1910), that with Mallet-Prevost slightly earlier. However, Dennis found no reason to doubt the inside story about the way in which the award was reached was the same as the version rendered by Mallet-Prevost. He also got the impression, as was suggested by Child, that de Martens had put pressure upon the British judges, as well as upon their American colleagues. Consequently, Dennis concluded that de Martens must have threatened the British judges that he would decide with the Americans unless they agreed to his compromise line, in the same way that he threatened the Americans that he would side with the British unless they made the compromise line unanimous.

Dennis therefore submitted that this could not be called an Anglo-Russian ‘deal’; de Martens, as arbitrator, appeared to be less judicious and more, if not strenuously, diplomatic in his tactics. He felt that this was not unusual for arbitrators at the time and de Martens, in particular, was not a lawyer by profession but had received his training in the Russian Foreign Service. Accordingly, Dennis concluded, as Harrison and Mallet-Prevost had done previously, and as Venezuela would do later, that the arbitral decision was a diplomatic compromise and not truly a judicial decision.

Recalling de Martens’ simultaneous involvement with defining the procedures and codifying the law regarding arbitration at the first Hague Peace Conference during 1899, it is highly unlikely that he would have put at risk these tentative approaches at establishing by law arbitration as a mechanism for the peaceful settlement of disputes. And Dennis was not far off the mark when he detected that de Martens blended aspects of the law with aspects of diplomacy in reaching a decision.

Child, reviewing in a departmental minute these observations by Dennis, noted that there was a substantial area of agreement between their positions and that Dennis had gone a long way towards accepting his rebuttal.³⁹ For example, Dennis had made no attempt to defend the suggestion that Britain was not prepared to allow the arbitration to run its course but had secretly entered into a deal. Second, that Russell and Collins were not fair-minded arbitrators. And third, the significant admission by Dennis that he could not recall any mention of a deal by Mallet Prevost when he told him the story in 1910.

Accordingly, Child concluded rather liberally in his minute that he did not think that there was anything to stir up trouble and that unless there were further contributions to the matter, there was no need to attempt to prolong the controversy. There, the Foreign Office would let the matter rest.

Certain features of compromise were present in the construction of the award. These features were recognized at the time, not only by de Martens, but by Justice Brewer, the British Agent Sir George Buchanan, and later by Child and Dennis.

Significantly, as claimed by Mallet-Prevost, though not admitting the import, both he and Harrison in the end consented to the proposed compromise rather than protest against it. When the award was announced, Venezuela, too, did not protest or indicate any objection; it is not clear how much, if anything, the Venezuelan agent, Dr José Maria de Rojas, a former Foreign Minister, knew about this transaction. This would have been the accepted course to take if Venezuela did not wish to be associated with a boundary reached by compromise. Perhaps, contemplating all the alleged components of the decision and the fact that it offered a check on any further British control of the mouth of the Orinoco or advance westward into territory, Venezuela accepted the line delineated in the award that seemed to give stability and certainty. Thus Venezuela can hardly frame