THE HAGUE – The International Court of Justice (ICJ) holds public hearings in the case Guyana v. Venezuela

Rocko! Thank you. Please be seated. The sitting is open. The court meets this afternoon to hear the second round of oral argument of Venezuela on the merits in the case concerning Arbitral Award of the 3rd of October, 1899, Guyana v. Venezuela. I note the presence of Her Excellency, Ms. Delcy Rodriguez, Acting President of the Caribbean Republic of Venezuela in the Great Hall of Justice. I now invite Professor Paolo Parchetti to address the court. You have the floor. Mr. President, members of the court, last Wednesday, Venezuela demonstrated what the real issue in these proceedings is. Not the validity or invalidity of the 1899 Arbitral Award, but the pursuit of a mutually satisfactory solution by Guyana and Venezuela. Venezuela addressed in detail the interpretation and legal effects of the Geneva Agreement, as well as the historical circumstances that led to its conclusion. Venezuela had hoped that during the second round of oral pleadings, Guyana would finally engage with Venezuela's argument concerning the Geneva Agreement. Guyana has not done so. On Friday, Guyana has again largely ignored the Geneva Agreement. What we have is a fragmented response on few selected points. This is unfortunate, as Friday was Guyana's last opportunity to finally reply to Venezuela's extensive arguments on the Geneva Agreement. Unfortunate, but not surprising. From the start, Guyana has sought to divert attention from the only legal instrument that defines the rights and obligations of Guyana and Venezuela by focusing exclusively on the 1899 Arbitral Award. As you heard on Wednesday from Venezuela's agent, Professor Moncada, Venezuela is here to respond to Guyana's erroneous and misleading narrative. As in the first round of oral hearings, in this second round, Venezuela's main focus will be on the interpretation and the effects of the Geneva Agreement. Albeit irrelevant, the issue of the award's invalidity will nevertheless be addressed in order to respond to Guyana's unfounded allegations. Today, I will begin Venezuela's second round of oral pleadings by addressing the issue of the invalidity of the 1897 Arbitration Treaty and that of the invalidity of the 1899 Award for Lack of Reasons. I will be followed by Professor Christian Tams, who will rebut Guyana's argument on excessive power. Professor Jean-Marc Tuvenin will then address the alleged waiver by conduct of Venezuela's right to raise the nullity of the Arbitral Award. This will bring us to the Geneva Agreement. Professor Andreas Zimmerman will rebut the few arguments made by Guyana on its interpretation. Next, Professor Macam Beng will address innovation, decolonization, and the importance of identifying the real issue before you. Her Excellency, Ms. Ariane Seijo-Noguera, will give an overview of the arguments advanced by Venezuela before the Court. The second round of Venezuela's oral pleadings will close with the intervention of the acting President of the Bolivarian Republic of Venezuela, Her Excellency, Ms. Telsi Rodriguez-Gomez. Mr. President, I will now address the invalidity of the 1899 Award. An absence of reasons as a self-standing ground of invalidity, I will make one point only. On Friday, Guyana insisted that the Court's judgment in the King of Spain case is irrelevant for establishing whether, at the end of the 19th century, the Arbitral Tribunals already had an obligation to state reasons in their awards. Let me explain why Guyana is wrong on this. Nicaragua had asked the Court to determine the invalidity of the award rendered by the King of Spain for lack or inadequacy of reasons. The Court addressed the merits of this contention. And in assessing it, the Court did not dismiss Nicaragua's claim on the ground that in 1906, Arbitral Tribunals had no obligation to state reasons. Rather, for the Court, the award was valid because, and I quote, it deals in logical order and in some detail with all relevant considerations, and it contains ample reasoning and explanations in support of the conclusions arrived at by the arbitrators. End of quote. Of this very standard, the award of 1891 falls short. Significantly, both Honduras and Nicaragua admitted the existence at the relevant time of an obligation to state the reasons in the award. This is Professor Roland on behalf of Nicaragua. I quote, It was only at the end of the 19th century that the practice was firmly based on the need to provide reasons in awards. The Court Tribunal between Great Britain and Venezuela was rendered at the end of the 19th century. At a time when, as remarked by Professor Roland, the general practice confirmed the existence of an obligation to state the reason. The Tribunal did not comply with this obligation, and for this reason, the award is null and void. I move now on to the invalidity of the arbitration treaty. Mr. President, members of the Court, Venezuela and Guyana hold opposing views regarding the role played by Venezuela in the negotiation of the arbitration treaty. Guyana pretends that Venezuela was closely involved in the treaty's negotiation. This, according to Guyana, is fully documented and uncontested. The fact that Venezuela played no role in the negotiation is, Guyana adds, simply part of the Venezuelan current mythology, the product of the imagination of counsel who would say n'importe quoi, just to be allowed to the podium. In short, Guyana attributes to Venezuela the very practice of distortion of facts that permeates Guyana's narrative. Venezuela rejects this basis' accusation. Venezuela's historical position is based on a great amount of concordant contemporaneous evidence. This evidence is the result of careful and in-depth research conducted by historians, beginning with a seminal work carried out in the 60s by the Venezuelan experts Herman González Oropesa and Pablo O'Hare Seligeta. The products of this historical research have been confirmed by non-Venezuelan historians who have worked on the Venezuelan crisis. For instance, this is the position of a great British historian, Robert Arthur Humphries. I quote, The United States, with British concurrence, acted on Venezuela's behalf. But Venezuela herself was not consulted. Or rather, she was not consulted until the very end of the negotiations. And then, only perfectorially. Venezuela, said only on one occasion, has got to do exactly what we tell her. He, only, revealed not the slightest wish that she should be represented by one of her own citizens on the Tribunal of Arbitration, which he proposed should be set up. And when a final agreement was reached in Washington, her president, Crespo, was simply given to understand that it was very just and fair, and that he had better expedite its completion, or it would be bad for his country. End of quote. Humphries' position cannot be dismissed as biased. He was the first professor of Latin American Studies in the United Kingdom. This passage comes from a speech delivered at the Royal Historical Society in 1967, when Humphries served as its president. His position coincides with that presented by the Venezuelan experts contemporaneously. Humphries' factual account is the same that you find in Venezuela's written pleading, and that you have heard on Wednesday. The fraudulent attitude. Venezuela's president, Crespo, was simply given to understand that the agreement was very just and fair. The coercion. Venezuela has got to do exactly what we tell her, and president Crespo had better expedite its completion, or it would be bad for his country. The historian's work confirms that the injustices suffered by Venezuela were not a fabricated myth, as Guyana would have you believe, but a fact. Nevertheless, the 1897 Treaty was not simply unjust. It was invalid. The text of the agreement submitted to Venezuela was not the text agreed upon by Great Britain and the United States. Venezuela was not informed of the confidential notes exchanged between Olney and Poncefort. On the confidential notes last Friday, Guyana has made three points. First, Venezuela is hiding their text from the court. Second, Venezuela's two representatives in Washington, Storow and Andrade, were privy to the confidential notes. Third, if Harrison, the U.S. lead counsel for Venezuela, was not aware of the existence of these notes, it is Venezuela's fault. On the first point, Mr. President, there is nothing to hide. The document has long been part of the documentary record of the present case. For the sake of clarity, you can find it again at tab 58A of the judges' folders. It is clear from this note that Olney and Poncefort had agreed that the critical date for calculating the prescription period was the date of the conclusion of the arbitration treaty and could not be 1814, as first argued by Venezuela, based on a reasonable interpretation of the treaty. On the second point, there is nothing in the documents presented by Guyana that proves that the Venezuelan minister in Washington, Andrade, had been informed of this confidential note, except the fact that one day Olney received Andrade and Storow at his home. This proves nothing. It would be hard to understand why Olney expressly characterized this document as strictly personal, if in the end all parties concerned were informed about its content. But there is more. Let me come back to the letter I presented to you last Wednesday, the letter of Olney to Poncefort, dated 24 May 1899. As you will recall, this letter is a reply to a letter in which Poncefort informed Olney of Great Britain's intention to present the confidential note to the arbitral tribunal. In his reply, Olney, after emphasizing that the negotiation was conducted, I quote, mostly by informal personal talks or, so far as the negotiations were in writing, by equally informal and private notes, end of quote, asks Poncefort, and I quote, Do you not think that it would be unfair that one out of many notes so exchanged should be selected for publication while the remainder are suppressed, end of quote? Mr. President, where would be the unfairness if all the parties, the United States, Great Britain and Venezuela, were aware of the content of these confidential notes, as Guyana claims? Unfair to whom? Certainly not to Great Britain or to the United States. They knew about the existence of these documents. If it is a question of unfairness, the reason is clear. Venezuela was never informed of the existence, let alone of the content, of these confidential notes. Concerning Mr. Storow, I think that I do not have much to add to what I already said on Wednesday and what you find in Venezuela's written pleadings. Storow is central to Guyana's strategy. Let's take a look at footnote 14 in Guyana's second round of oral pleadings. Everything revolves around the correspondence between Storow and Olme. Without Storow, Guyana's attempt to prove that Venezuela's participation to the negotiation collapses. There is no evidence that Venezuela was involved in the negotiation because it was not. In fact, the correspondence between Olme and Storow confirms that Venezuela was absent from the negotiation. Reading this correspondence carefully, one can see that there is not a single reference to the position of a Venezuelan government. One would expect to find sentences like, I have instructions from Caracas, or I need to consult the Venezuelan government. Nothing of the sort can be found in the correspondence. Olme and his close associate, Storow, exchange views and impressions as if Venezuela did not exist. Finally, let me come to Harrison and his lack of knowledge of the existence of the confidential documents. Guyana's argument is always the same. If Storow knew of the notes, Venezuela knew too. If Harrison did not know of the notes, it is Venezuela's fault. Guyana wants you to believe that whatever Storow or Harrison said or did, this reflected the position of the Venezuelan government. This is baseless. Last Wednesday, Venezuela presented multiple pieces of evidence showing that neither Storow nor Harrison was loyal to Venezuela. On Friday, Guyana offered us half-hearted defense of Storow. It didn't even try to defend Harrison. In fact, the evidence shows, most simply, that Venezuela was never informed of the confidential notes. But if further proof were needed, let us look again at the letter that Olme sent to Poncefot on 24 May, 1899. Olme candidly recognized that Venezuela could not have been aware of its confidential correspondence because he himself had expressly denied its existence. I quote, Further, Being inquired of last summer on behalf of Venezuela, respecting diplomatic correspondence preceding the treaty, I replied that my letter to you of 13 July, 1896 was the last thing of record. The Council for Venezuela would be both surprised and irritated, and perhaps justly so, if now confronted with a writing they had been led to believe did not exist. End of quote. Mr. President, Mr. President, Venezuela has been victim of fraud, and the evidence before you amply justifies the conclusion that the arbitration treaty is invalid, and as a consequence, the award is invalid. The evidence before you, as well as the work of historians, both Venezuelan and non-Venezuelan, also show the injustices suffered by Venezuela. It is not a myth. It is a fact. I thank the court for its kind attention and ask Mr. President to give the floor to Professor Tams. I thank Professor Parchetti for his statement. I now give the floor to Professor Christian Tams. Sir, you have the floor. Mr. President, members of the court, it is an honour to address you with brief comments on the invalidity of the 1899 arbitral award. Mr. President, on this award, Guyana has tried to build its case. At the start, it placed us on a pedestal. On 3rd October 1899, it said at the opening, and I quote, international law spoke. It spoke, Guyana said, further through the voice, and I quote, of eminent jurists whose fairness and integrity were widely recognised, making 3rd of October, and I quote again, a special day for the rule of law internationally, end of quote. We have come a long way. As these hearings end, the award appears in a very different light. Guyana no longer makes a positive case. It has become defensive, relying on inter-temporality, formalism, and acquiescence. A reasoning was not yet required, it says. Pushing through a deal, that's fine, it says. Venezuela accepted it, after all, never mind the fact that it faced civil war and military threats. And of course, challenging this award, you have heard, would open floodgates. Mr. President, members of the court, if the 1899 award were a PhD, a doctorate, and Guyana its examiner, then it seems we have moved from summa cum laude to rite, from highest honours to barely enough to pass. Now, of course, Venezuela does not accept that this award passes any test. But we believe that Guyana's new approach reflects clarifications that these proceedings have brought about, and I will highlight three of them. I begin briefly with the question of titles to territory. These titles under Article 3, the tribunal had to investigate and ascertain, separately from any boundary determination, and it failed to do so. Guyana on Friday argued that the tribunal had decided on titles, by implication, when it drew its boundary line. But this construction, a decision by implication, undermines Article 3 and the party's position. The parties addressed titles as an autonomous matter. And as one example, you see on the slide excerpts from Venezuela's counter case. It is the final section entitled, Judgment Invoked. And in this final section, Venezuela asked the tribunal to render judgment on, amongst other things, Spain's discovery of America and its legal relevance. On, and I quote, its original title to the entire region. And it insisted that, and I quote again, the present occupation by Great Britain cannot be made the basis of title. End of quote. Explicit submissions on title. Mr. President, the tribunal could not fail to respond to these explicit submissions, and to do so was for it a dereliction of its duty. My second point, equally brief. The navigation regime for the rivers Amakuru and Barima. The parties agree now that the tribunal had no explicit mandate to impose such a navigation regime. Guyana's reference to Article 4, Paragraph C of the treaty ignores the clear and strict narrow wording of the provision, which is, as I suggested on Wednesday about, and I quote, the determination of the boundary line, not about anything else. On Friday, Guyana referred you to a passage of the pleadings where Venezuela, according to Guyana, had accepted that Article 4C gave the tribunal a right to decide on aspects relating to the legal relations between the parties. But, Mr. President, this passage does not help Guyana. In it, Venezuela did not discuss navigation. The parties never did. But it discussed the impact of the eventual boundary decision on existing land grants and concessions. Land grants and concessions. This is the context for which Article 4C may have been intended. Navigation is not, not by any stretch, whether of imagination or of legal reasoning. By pronouncing on navigation, the tribunal showed the same cavalier approach that marked its failure to not decide on legal titles. It plainly acted ultra-virus. Mr. President, my third point. The process by which the decision was reached. Was the award the result of a deal, as Mr. Malley-Prevost had pointed out in his memorandum? On Monday last, Guyana accused Venezuela of having, and I quote, opened before us a world of theatre and fiction, not law, not fact, end of quote. It explicitly claimed, and I still quote, that claims about Mr. Malley-Prevost's conversations are demonstrably untrue or wholly uncorroborated, end of quote. Firm words, no slip of the tongue. But what a difference a week makes. On Friday, Guyana sounded very different. The private conversations, recounted by Malley-Prevost, but also by Lord Russell and Martens, to which I had taken you, were not the only ones, Guyana now seems to say. The tribunal also held regular sessions. And initially, Guyana now seems to say, the arbitrators did advance legal views. And as for President Martens' insistence on pushing through a deal, Guyana now says that the President was moved by a perfectly decent quest for unanimity. Mr. President, I will respond to these points shortly. But before I do so, let me state one thing very clearly. On the core issue, Guyana now has nothing to say. Are Malley-Prevost's claims on how the deal was struck uncorroborated? Are they, as Guyana said exactly one week ago in this room, demonstrably untrue? Of course not. Quite the opposite. These oral hearings have corroborated that conversations described by Mr. Malley-Prevost, confirmed by Lord Russell and President Martens, did take place. They have demonstrated that during these conversations, the tribunal determined the boundary line. This was a political deal. Guyana no longer disputes, and we welcome its change of position on this, the core issue. What about Guyana's attempts to explain away this now undisputed fact? Well, Guyana cannot ignore what happened in the six days of deliberations. What Guyana asserted on Friday was that the arbitrators initially formulated legal arguments. But when the decision was reached, when the deal was struck, the law was silent. But, Mr. President, members of the court, the Paris tribunal was not tasked to try out a bit of law, and when that fails, strike a political deal. Its mandate was clear. It had to decide based on principles of international law. Yet after Guyana's pleadings on Friday, it is clear that this was a political deal. A political deal pushed through by President Martens, whose line, as Professor Tuvenan will show shortly, was neither based on titles nor on occupation. A line of convenience based on a mishmash of British lines without any basis in law. Now, Guyana says that this deal was all part of a laudable quest for unanimity, for which President Martens cannot be faulted. But the response to this can be brief. It can be brief because the mandate addresses the issue. The tribunal had to render a legal decision, and as Article 5 made clear, it had to do so, and I quote, by a majority. The quest for unanimity did not justify the deal. If anything, it shows that the tribunal operated in its own universe, a universe in which the personal predilections of a president trumped the terms of the mandate. Mr. President, discussing the tribunal's deal on Friday, Guyana referred you to former President Bajawi's writing on the manufacture, or fabrication, of ICJ judgments, suggesting that it could help us assess the 1899 award. And we agree. We agree that, as Guyana suggested, this manufacture will involve a give and take. Though I cannot help but add that President Bajawi reflected on the give and take that was inevitably involved in the drafting of a judgment's reasons. For our purposes, another passage of President Bajawi's piece is more opposite, it seems to us. In this other passage, President Bajawi formulated a clear red line, and we suggest this is key to appreciating the 1899 award. This is what he said, and I quote, It must never be forgotten that it is the absolute duty of a judge to reject any compromise incompatible with his innermost sense of justice and of the limits of the reasoning that may lead to it. End of quote. This absolute duty, the tribunal members ignored in reaching their deal, as these oral hearings have shown. It is as simple as that. Mr. President, members of the Court, let me conclude with one final remark. It concerns the point of connection between the three excesses of power I have now discussed. These point to one inescapable conclusion. This tribunal showed no respect for the terms by which the parties had defined its task. It operated according to its own logic, deciding what was not asked of it, ignoring what it had to decide, and violating its absolute duty to decide on the basis of law. We might say, as we have in the written pleadings, that in rendering this award, this tribunal went rogue. Now, despite Guyana's strange claims to the country, the result of this rogue award was a disaster for Venezuela. President Martin's compromise line gave Britain over 90% of the disputed territory, and what Venezuela retained, control of the mouth of the Orinoco, was not seriously in contention. As Lord Russell had noted, during the proceedings, and I quote, Britain had explicitly admitted that the Orinoco was Venezuelan. End of quote. Now, Punch magazine, as often, knew what to make of the award. It understood the central message that Guyana tries to obscure. The Punch cartoon of 11th October 1899 is on the slide. It is entitled Peace and Plenty. It shows Prime Minister Lord Salisbury chuckling, as it is said in the caption, barely capable of holding on to everything that this arbitration delivered for Britain. Territory, gold mines, wrapped up nicely in the Union Jack. The caption says, I like arbitration in the proper place. Mr. President, members of the Court, this arbitration may have brought plenty for Britain, but it did not bring peace. Amidst a civil war faced with regular threats of military invasion, from the British ultimatum of 1895 to the crushing blockade European powers imposed on it soon thereafter, Venezuela was not in a position to react meaningfully. As many other nations in colonial or quasi-colonial situations, Venezuela had to put on a brave face. It had to accept the 1899 award, which enacted coercion through the civility of the legal form. If I can return to the language of PhD exams, this award deserves neither a summa cum laude nor even a rite. It is a fail. This concludes, Mr. President, my remarks today. I thank you for your attention and would ask you to please call to the podium Professor Jean-Marc Thouvener. I thank Professor Thames. I would now like to invite Professor Jean-Marc Thouvener to address the Court. You have the floor, sir. Thank you, Mr. President. Mr. President, members of the Court, before I start talking of the theme that I have been asked to dwell on, I would just like to make two series of observations. First of all, pertaining to the maps and the lines, let us look at the map that Mr. Reichler authoritatively showed you on Friday to justify, as everyone will recall, that the Spanish occupation between the Orinoco and Esequibo rivers up to 1799 had existed only in the western half of the area and that, I quote, none of the settlements were in the territory awarded to Great Britain. End of quote. In short, the award would have assigned to Venezuela the entire part that the Spanish missions had historically occupied. But on closer inspection, we can see that in the southeastern part of the area, very close to the Esequibo River, there is a Spanish fortification called Castillo el Burgo. And a little further north, on the top right side, on the coast immediately west of the mouth of the Esequibo River, between Cidadelo de Pomorón and the Cidadelos de Morocco, lies the Mission de Santa Rosa de Morocco. This is a Capuchin mission of exactly the same nature as those in the western part of the area, which Guyana has apparently recognized as being under Spanish occupation, and they lie squarely within the territory, ceded to the British crown by the 1899 arbitration. But let's look at some other maps now. This is how the Spanish viewed the border with Dutch Guyana in 1778 at the Morocco River, slightly west of the Esequibo. And here is how the British viewed the border with Dutch Guyana in 1806 on the Esequibo. Now, here's the same view from London in 1822. Here is how the British on the ground viewed the boundary. More specifically, Hatfield, who was the official cartographer of the British Empire, and he was specifically tasked by the governor of the British colony of Guyana with marking its boundaries on a map. This is the official Hatfield map of 1838. We can see the western boundary of the British colony on the Pomerang River, very close to the Morocco River. We can also see inland, the note, the Cuyuni and a considerable portion of the Masruni are yet unexplored. In short, whilst you were assured in Friday that, I quote, evidence shows continuous occupation of the territory by the Dutch and then the British, unquote, the British themselves on the ground were saying exactly the opposite. But London had other ambitions and had commissioned Schomburg to draw a line that was purely imaginary. This is the official line of the British claim from 1840, as explained by Sir Edward Herzlitt in the memorandum of September 1886 that I quoted on Wednesday and which you will find in your files under tab 61. How can such a discrepancy with the line on the Hatfield map be legally justified? It simply cannot. In 1844, clearly giving no credence to the Schomburg line, which had been strongly rejected by Venezuela, here is the Aberdeen line. It is the Green line, which runs, as you can see, from Cape Nassau at the mouth of the Morocco. Whilst the starting point on the coast makes sense, and, as we recall, had convinced the American arbitrators, it is difficult to see why it extends into territories which the British themselves acknowledged that they had not even explored. There is, obviously, no legal justification for this. Sorry. My apologies, Mr. President. I'm unable to get the right page out. Here we go. Schomburg died in 1865, yet a new Schomburg line suddenly appeared in 1875, and that is the yellow line that you can see here. Is there a legal basis? None. Then came the Granville line in 1881. That's the blue line. May I remind you that all territorial expansion had been frozen since 1850, and yet here it is, encroaching even further west. Why? Because that's what took the Empire's fancy. This is 1886 now. Here is the Rosebury line in pink, simplifying the 1875 Schomburg line with straight lines, and it is just as fanciful as the previous ones, and nevertheless retreats slightly eastwards compared to the Granville line. Sacrilege! But in 1887, here is a new Schomburg line in red. Schomburg had been dead for 22 years, but miraculously, his new line largely follows the Granville line of 1881, which, rather annoyingly, found no support in the Schomburg line of 1875, unfortunately adopted by Rosebury. Then came a second Rosebury line from 1893 in black. He had finally learnt the game of lines, and this was followed by the extreme British claim of 1896, which is another red herring, as an Englishman might say. The 1899 ruling largely follows the 1887 Schomburg line, which largely corresponds to the 1881 Granville line, but with a small section of the 1886 Rosebury line added to the north. Perhaps so as not to offend any of the Lords. It is a patchwork, or rather a compromise, or a deal, between, not different British and Venezuelan claims, but between the various British claims of 1881, 1886, and 1887. What, may I ask, is the legal basis of international law? None. I now turn to a second series of observations concerning Iribaran Borghese's declaration. It was made about a month after, after the signing of the Geneva Agreement, and it is the wrong key that was used by Guyana throughout this procedure. I pointed out last Wednesday that this was a political, erroneous, and legally untenable declaration, and rather than calling me Pinocchio, which may have been thought in Pepto in private, I was told that I was cheeky to make such an enormous and outstanding statement. Serrano would reply to his detractor, detractor. Oh no, young blade, that was a trifle short. You might have said at least a hundred things like this by varying the tone like this, suppose. The word lawyer, the word lawyer does not appear in Serrano's speech, but it is indeed a lawyer's tone that must be adopted to assess in legal terms the statement made by Iribaran Borghese. Is this an interpretative statement? Certainly not, and this has never been claimed. Is it a reservation? Probably not. Is it then an act falling within the scope of customary law as codified in Articles 31 and 32 of the Vienna Convention on the Law of Treaties? Not that either. So what legal effect could it possibly have on the interpretation of the Geneva Agreement? None. It is an internal declaration for domestic policy purposes made after the treaty entered into force. Is it a reliable declaration? Iribaran Borghese says the following of Article 7. And I quote, With regard to Article 7, it is clear that when the law approving the agreement is submitted to this sovereign Congress, the agreement will enter into force upon ratification of said law. End of quotation. That is also wrong. Article 7 stipulates that the agreement had entered into force upon its signature. Why did Iribaran Borghese present the Geneva Agreement in such a vague manner? It doesn't matter. However, relying on it is, in any case, more than just a risky enterprise. Moreover, this is what he says about Article 4, and I quote, According to the terms of Article 4, in the event that no satisfactory solution for Venezuela is reached, the so-called 1899 award shall be revised through arbitration or judicial recourse. End of quotation. Therefore, assuming that the work of the mixed commission failed to produce a satisfactory solution for Venezuela, the award would have to be revised through arbitration or judicial recourse, that is to say, rewritten de novo from scratch. If the text were not rewritten, according to Iribaran Borghese, there would be no question of challenging the validity of the award judicially. Mr. President, Guyana cannot just cherry-pick from the Iribaran Borghese declaration whatever suits it, that is to say, the utterly incomprehensible interpretation of Article 5 of the agreement from which has drawn its conclusions whilst ignoring or distorting what it finds inconvenient. Venezuela, for its part, adheres to the Geneva Agreement and nothing but the Geneva Agreement. I'd not like to come to my main topic. What about Venezuela's alleged waiver of its right to rely on the nullity of the award? The argument is both unacceptable and unfounded. Venezuela asserts and maintains that there is no room for this Guyanese argument in the context of the application of the Geneva Agreement. During what I have termed the Geneva Process, the United Kingdom's position regarding the controversy at the heart of the Geneva Agreement never concerned Venezuela's conduct following the 1899 award. the sole point of disagreement between the parties was whether or not there was evidence of the nullity of the award as such. The court noted this in 2020, in fact, observing that the discussions between the parties regarding the nullity of the 1899 award had focused solely on, I quote, the documentation relating to it with a view to assessing the merits of the Venezuelan position regarding its nullity, end of quote, and that this examination, I quote again, was undertaken by the government of the United Kingdom, end of quote, and that it was, I quote, on this basis that the subsequent meetings held in Geneva in February 1966 took place following which the agreement was adopted, end of quote. Throughout this process, the British did not produce the maps published by Venezuela since 1905, nor did they produce the press cuttings unearthed last week by a Guyana busy rehashing its submissions, and during the meetings of the mixed commission established by the Geneva agreement, Guyana did not say a word, not a single word about Venezuela's conduct after 1899, confining itself in its own words to inviting Venezuela, and I quote, to produce evidence and arguments in support of her basic contention that the 1899 arbitral award was null and void, end of quote. It was not until 1981 that Guyana put forward this argument. It was at this point that Guyana began to blow cold or backpedal. It has no right to do so on the grounds of Estoppel. And I explained this last Wednesday. Guyana's response was none. However, let us nonetheless look at the argument based on Venezuela's inaction. In his lecture, given at the Academy on Prescription and International Law, Roger Pinto posited that the inaction of the holder of a right is only enforceable against them when it is unjustified. This is the ratio descendendi that lies at the heart of the case of the award of King of Spain. Nicaragua offered no justification for its delay in asserting the so-called nullity of the award. This raises two questions. Firstly, is it unjustified not to claim the nullity of an arbitral award when one fears reprisals? If one does so, certainly not. Our opponents do not seem to dispute the principle but rather dispute the coercion in this case and challenge Venezuela. Where is the contemporaneous evidence? Challenge accepted. Anyone can see the documentary evidence on which Venezuela relies, for example, by carefully rereading the pleading by my colleague, Professor Azaria, as well as Venezuela's rejoinder. Moreover, one need only refer to the report by Venezuela's Minister of Foreign Affairs, Rafael Sejas, dated the 4th of May 1900, used selectively by Guyana, but so that's fair enough. And here are a few relevant extracts regarding the possibility of repudiating the award as early as 1900. I quote, it is not to be assumed that disavowal of the award by Venezuela would be successful. the shift in the political stance of the US does not permit the hope that the rejection of the judgment will find favour in Washington, still less when one considers that the two American arbitrators concurred in it. We must not rely on this protection in this case. As regards Great Britain, its contempt for the weak being notorious and its persistence in laying hands on the mouth of our great river, a plan on which it has been working since the end of the 18th century, it is considered not only that it would not agree to Venezuela's opinion that the case should be reopened, but that it would take advantage of it with a view to retaining what it still holds and very probably extending its encroachment. It would require very substantial reasons for this. And their reference is made to the challenge of the award. Whatever our opponents who are at odds with history may say, Venezuela was faced with a gross injustice which it did not welcome at all and without the means of denouncing it without substantial reasons, namely without evidence, facing a lasting situation of coercion which was not merely structural but very real as Venezuela found out shortly after the Paris decision when its protests against European imperialism were brutally suppressed. during the 1902 blockade. Second question, is inaction on grounds of a lack of evidence justified? This has always been Venezuela's position. In the note of the 22nd of February 1962 in which Venezuela formally claimed that the 1899 award was null and void, the representative of Venezuela stated clearly that, and I quote, the strange circumstances in which the Paris decision had been arrived at began to unfold from the very day of the decision. But it was not until several decades later that the truth of what had occurred could be confirmed. End of quote. A few days earlier on, on the 14th of February 1962, in a letter addressed to the Secretary General of the United Nations, Venezuela's representative had also written that, and I quote, when it obtained clear evidence of the defects which invaliditate the 1899 award, the government of Venezuela immediately reserved its rights. End of quote. Guyana adopts the strategy of burying its head in the sand, turns a deaf ear, and mixes up two very different things, having doubts based on confidential information, impressions, or journalistic analyses, which it calls awareness, and having evidence. Venezuela claims that it had no evidence until the publication of the Malay-Provost memorandum. Guyana's refusal to listen on this point is all the more incomprehensible given that the Geneva process was initiated exclusively around the issue of evidence derived from documentary material concerning the 1899 award, an issue that only arose following the first piece of evidence, the Malay-Provost memorandum. And the 2020 judgment echoes that. Let us return to the evidence. It will be recalled that on Monday afternoons on this podium, the integrity of Malay-Provost as well as that of Schönrich were called into question. The exercise, however, was both gratuitous and futile because on Friday, Guyana in fact went so far as to acknowledge that the facts which were described by Malay-Provost, who was a direct witness, and which are described in his memorandum, are reasonably established. At last, it took Guyana 64 years to acknowledge the probative value of the Malay-Provost memorandum. It was indeed evidence, the evidence that Venezuela had been lacking in order to challenge the award. From there, as I said, Venezuela searched in the archives, which had just been made accessible, particularly those of the foreign office and in the American archives, to the extent that it was able to gain access to them. And indeed, that took time. Who could possibly claim that in 1950, that did not require some time to update the archives? Guyana wrongly accuses Venezuela of having kept a guilty silence between 1949 and 1962. Wrongly, while seeking additional evidence after the reading of the Malay-Provost memorandum, Venezuela was immediately keen to preserve its rights. And in March 1951, Venezuela's representative stated during the fourth consultation meeting of the Ministers of Foreign Affairs of the American continent, I quote, In the opinion of the government of Venezuela, no change of status which may occur in British Guyana as a consequence of the international situation of any measures which may be adopted in the future or of the advance of the territory's inhabitants towards self-determination will prevent Venezuela in view of the special circumstances prevailing when the frontier line with the British Guyana was defined from pressing its just demand that the injury suffered by the nation on that occasion should be redressed by an equitable rectification of the frontier. End of quote. In March 1954, in a statement made at the 10th Inter-American Conference, the Venezuelan representative solemnly reiterated that there was no question of Venezuela waiving its right. And in 1962, the Geneva process began at the invitation of the British. the court, without evidence, inaction cannot be invoked. Otherwise, the mechanism for reviewing judgments would be pointless. And in fact, we can in fact establish a comparison of the revision mechanism would not have any point. Venezuela took action when the facts were reasonably established. From that point on, the chronology of the challenge to the 1899 award shows that it asserted its rights in due course. Mr. President, before closing, may I say a few words about the 1905 agreement to which Guyana attaches great importance? And we move straight away to paragraph 54. The 1905 agreement is and is solely an agreement interpreting on the ground the 1899 award, that is to say, in plain English, a demarcation agreement. Guyana relies on the award in the Desert Lagoon case to assert that this is an agreement which was separate from the arbitral award and that it would survive the nullity of the latter. It is indeed separate. No one doubts that. But it cannot survive the nullity of the award because it merely interprets it. If the latter is set aside as invalid, the agreement interpreting it loses its very purpose. And since the circumstance which formed the essential basis of the agreement was the 1899 arbitral award, the nullity of the latter, without any doubt, constitutes a fundamental change in circumstances that inevitably brings the demarcation agreement argument to an end. Mr. President, members of the court, having exhausted, if not your patience, the time allotted to me, I would like to conclude by thanking you for your attention whilst requesting that you call Professor Zimmerman to the podium. I thank Professor to the podium. Mr. President, members of the court, I will now address the arguments finally made by Council for Guyana concerning the Geneva agreement, few as they were, but limiting myself to legal considerations. At the outset, I note the many arguments Council for Guyana deliberately chose not to address in that regard, and I believe that this was not a mere coincidence, but rather an implicit acknowledgement that they had nothing, nothing to say on them. This included the drafting history of the Geneva agreement, the argument based on the very title of the agreement, the Geneva agreement's preamble, the argument based on Article 2, Paragraph 3 of the Geneva agreement, the arguments based on Article 4, Paragraph 1 and 2 Geneva agreement, the argument based on the subsequent practice of the parties, my arguments based on both the Port of Spain protocol, which once again was not even mentioned, and the practice arising thereunder, and finally, 8, the argument based on the understanding by the UN Secretary-General of the Geneva agreement. And that then leaves me with addressing Articles 1 and 5 of the Geneva agreement. Once again, however, also with regard to Article 1 Geneva agreement, certain of Venezuela's arguments were not addressed, namely, that the mixed commission, given the wording of Article 1, had not been tasked to settle the controversy between Venezuela and the United Kingdom as to the validity of the award, nor that the mixed commission had been tasked to decide anything, and even less decide the issue of the validity of the award. Instead, the mixed commission, just like the other actors now acting under Article 4, had been tasked to seek a practical settlement of the controversy and search for satisfactory solutions to the controversy. Before moving on, it is also worth noting in passing and indeed telling that unlike the Washington agreement, which had referred to a settlement to Gour, to be reached by an arbitration, the Geneva agreement, in contrast, specifically aimed at a practical settlement, settlement, practical settlement, which an upheld arbitral award obviously could not constitute. Finally, Council for Guyana at least tried to counter my argument based on the use by the parties in Article 1 of the term controversy rather than the term dispute, and the thereby implicit reference to the overall boundary controversy that had already been addressed in the 1897 Washington Treaty. In doing so, Council for Guyana claimed that Article 1 of the Geneva agreement concerns, and I quote Council for Guyana, quote, a controversy over Venezuela's contention that the award is null and void, end quote. That's how Council for Guyana described it. But, as you can see, this is not what Article 1 Geneva agreement says. Article 1 does not refer to a, quote, controversy over Venezuela's contention that the award is null and void, as Council for Guyana claimed. Instead, and to the contrary, it refers to the, quote, controversy that has arisen as a result of Venezuela's contention that it is null and void. Obviously, it was indeed Venezuela's contention as to null and void, but it was a null and void that brought the underlying overall boundary controversy back to the floor, and that had therefore arisen, as Article 1 puts it. And it was accordingly that boundary controversy as such, already addressed in the 1897 Washington Treaty, which had once again arisen due to Venezuela's contention, that was then to be solved by virtue of the Geneva agreement by way of negotiation. And that now brings me to Article 5 Geneva agreement. I'm really grateful that we finally learned what Guyana thinks Article 5 stands for. However, Article 5 does not lead Guyana's arguments anywhere. I make several points. First, and as per its clear wording, Article 5 is intended to preserve the claims of both parties to territorial sovereignty. At the same time, however, there is no hint what whatsoever in the text of Article 5 that it was meant to prevent a future practical settlement of the boundary controversy. And how could it be otherwise, since this is the very object and purpose of the agreement? In other words, Venezuela is not arguing that the Geneva agreement had wanted to set aside any claim of territorial sovereignty by Guyana or by Venezuela, for that matter. And this again confirms that it is the overall boundary dispute and how to solve it that is the subject matter of the controversy. And thus also, as Professor Mbenge will further elaborate on, the real issue before the court. Instead, what Venezuela is arguing is that the Geneva agreement wanted to provide how to reach a practical settlement that would address the territorial claims of both Guyana and Venezuela, and namely by way of negotiations. And this is also suggested by the very introductory line of Article 5, Paragraph 1, which provides that it is meant, quote, to facilitate the greatest possible measure of cooperation and mutual understanding, end quote, between the parties. Article 5 of the Geneva agreement therefore supports, rather than precludes, a practical settlement of the boundary controversy to be reached by way of negotiation, as the only possible way to move forward with such practical settlement, then setting aside any legal effect the 1899 award might have, quote, none. Second, I cannot but also further note that Guyana aims to assert its territorial claim through a judgment of this court, hoping that that it will confirm the validity of the award. In Guyana's own reading of Article 5.2, Guyana's reading, no post-1966 acts or activities whatsoever shall constitute a basis for asserting or supporting a claim to territorial sovereignty. But how can Guyana then now assert its claim that the award is valid by unilaterally bringing in 2018 its case on the basis of the alleged compromissory clause in Article 5 of the Geneva agreement. Thus, in Guyana's own understanding, Article 5 precludes the possibility to rely on Article 4 Geneva agreement to have the claimed validity of the award and Guyana's ensuing territorial sovereignty recognized by the court. And this understanding of Article 5 is confirmed by the court's judgment in the Gulf of Maine case. In that case, Article 3, Paragraph 2 of the compromis provided for a similar without prejudice clause as the one contained in Article 5. It was meant to keep certain claims of the parties outside of the scope of the compromis. The court's chamber found that the parties, and I quote, have chosen to reserve for themselves as the subject of future direct negotiations with a view to an agreement, the determination of the course of the delimitation line between the international boundary terminus and point A, end quote. The court's chamber then reached the conclusion that the parties, quote, intention to have recourse to judicial settlement must be taken within the limits in which it was conceived and expressed, end quote. Accordingly, the court, the court's chamber then continued that in the task conferred upon it, it must, quote, conform to the terms by which the parties have defined this task, end quote. In the Geneva Agreement, Article 5 is a similar without prejudice clause. Its scope is, however, not limited to some positions or claims, as in the Gulf of Maine case, but covers all positions and claims of the parties. The only conclusion to be drawn, therefore, is that indeed, as argued by Venezuela, the parties, to use the words of the court in Gulf of Maine, quote, have chosen to reserve for themselves as the subject of direct negotiation with a view to an agreement, end quote, the solution of the controversy addressed by the Geneva Agreement. And this plainly confirms that they had no intention to have recourse to judicial settlement. Accordingly, the parties cannot have defined in the Geneva Agreement any task for the court. Third, what is more, is that Article 5 does not exclude in any manner whatsoever the search for a practical settlement of the boundary controversy by way of negotiations. The reason for this is the lack of a clause akin to Clause 3 of the Polish Danzig Agreement, which had explicitly, explicitly, provided that the subsequent 1923 Polish Danzig Agreement itself did not and could not set aside the legal effects of the previous decision of the High Commissioner for Danzig. On Wednesday, Council for Guyana tried to argue that Article 5 constitutes a similar savings clause, but maybe a closer look at the two cases would have been helpful to discern the fundamental differences between Article 5 Geneva Agreement on the one hand and Clause 3 of the Polish Danzig Agreement on the other. For one, Article 5, Paragraph 2, Geneva Agreement is solely concerned with post-1966 unilateral acts of the two parties. Article 5, Paragraph 1, in turn, provides that during the process of searching for an agreed, mutually acceptable, practical settlement of the oval boundary distributed by the parties, any claim that the award is valid cannot be dispositive of the controversy since this would amount to a diminution of Venezuela's claim to territorial sovereignty over the disputed territory. Had the parties indeed wanted, as Guyana wants you to believe, to foreclose any practical settlement by way of negotiations, they would have specifically said so in Article 5. But unlike Poland and Danzig in Clause 3 of their 1923 agreement, they did not formulate Article 5 in such a manner. At the same time, since Article 5 was meant not to interfere with the parties' territorial claims, its purpose was not and cannot be to safeguard the purported validity of the 1899 award by way of a judgment of the court since this would prevent Venezuela to bring forward its own claim. On the whole, Article 5 of the Geneva Agreement therefore supports rather than precludes a practical settlement of the boundary controversy to be reached by way of negotiation as the only possible way to move forward. This practical settlement would set aside any legal effects the 1899 award might have, quote none, unless, following mutatis mutandis, the Gulf of Maine, precedent, Article 5 forecloses the recourse to judicial settlement in total. Before I conclude, let me draw your attention to the extensive substantive discussions that took place in November 1984 between the parties. During these talks, the parties discussed in significant detail possible alternative boundary lines. While Venezuela put forward the so-called Shahabuddin line, which Guyana dismissed, Guyana alternatively proposed a potential session of a smaller coastal strip. Accordingly, Guyana, in fulfilling then its legal obligations under the Geneva Agreement, was then willing to discuss the territorial controversy as such, regardless of its own position as to the alleged validity of the award. Although these discussions did not result in an agreement, they confirmed the negotiations once more that the parties had moved on from discussions about the invalidity of the award. Why have we heard nothing, and I repeat, nothing, about these Guyanese advances and other advances made by Guyana during their oral submissions? I submit the question is best answered by Guyana's own representatives, Rochley Jackson, who, in 1985, expressly acknowledged his concerns regarding public reaction should the existence of negotiations about the border become public. He observed that, quote, if it surfaces, the public would say, what is this talking about? End quote. That statement is difficult to reconcile with Guyana's present attempt to portray the post-1966 process as involving no meaningful engagement concerning the territorial controversy itself. To the contrary, it reflects an awareness that substantive discussions were in fact taking place albeit in a politically sensitive context. Guyana has thus played both sides of the fence. It is only during these proceedings that Guyana has adopted a markedly different and difficult-to-comprehend position. But Guyana cannot ex post facto undo its own subsequent practice and its own understanding of the Geneva Agreement tasking the parties to reach mutually acceptable practical solutions for their long-standing boundary dispute. Members of the Court, in 1966 the parties committed themselves to an agreed diplomatic process meant to bring about a practical settlement of a long-standing territorial controversy caused buyer, to say the least, as you have seen, fundamentally flawed a word on the validity on which they held completely divergent views. Four years later, with Guyana having gained full independence, Guyana recommitted itself to this process by signing the Port of Spain Protocol. And in fulfilling the obligations arising under the Geneva Agreement, both parties have engaged in negotiations addressing the root causes of their conflict, namely their boundary dispute as such. And the Court must not now second-guess the party's intentions or override their free choice to opt for the path of reaching mutually acceptable solutions leading to a practical settlement of their boundary dispute. Yet, Guyana now claims that if the Court were to follow Venezuela's arguments, it would lead to, quote, eternal negotiations. That warrants two remarks. For one, it is the party's understanding of the Geneva Agreement and the party's understanding alone, as reflected in the Geneva Agreement and their agreed subsequent practice that, as the ILC has confirmed, provides, quote, authentic means of interpretation, end quote, not to be second-guessed by external actors. It is for that reason, I submit that Guyana has not engaged at all ever since it brought the case before you with the practice of the parties ever since 1966 up to the 2023 joint declaration. This practice, as Venezuela has demonstrated, confirms that it has always been the shared view of both Guyana and Venezuela that they wanted to reach a practical settlement on the boundary controversy by way of negotiations, whatever their fundamentally divergent views on the nullity of the award up to today are. And Guyana cannot ex post facto undo this subsequent joint practice. Finally, let us step back for a moment and reflect on the Beagle Channel conflict between Chile and Argentina. It confirms that even a conflict which, just like the case at hand, first, dated back to at least the middle of the 19th century and which, second, concerned the contestation of an orbital award as being, quote, irrevocably null and void, as the claim was made by one party then in the Beagle Channel, may be solved by way of an agreed mediation. As you are aware, Chile and Argentina managed to reach a peaceful settlement of their long-standing controversy and concluded in 1984 a treaty of peace and friendship which, as the parties themselves put it in the treaty, quote, constituted a compromise, end quote, solving the boundary dispute for good. Guyana has provided no answer and was unable to provide an answer anyhow why what was possible for Argentina and Chile in the 1980s cannot be possible for Guyana and Venezuela today. Despite Guyana's commitment to do so in the Geneva Agreement and despite the fundamental flaws inherent in the 1899 award leading to its nullity, Mr. President, members of the Court, I thank you, as always, for your kind attention and would now kindly request you, Mr. President, to call Professor Benguet to the podium. Thank you very much. I thank Professor Zimmerman before I give the sort to the next speaker, the Court will observe a break of 50 minutes. The hearing is suspended. Thank you. Thank you. Thank you. Thank you. It's okay. Thank you.