Crisis on the Essequibo: The Implications of Venezuelan Aggression Towards Guyana as Non-Compliance with ICJ Provisional Measures

Ryan Shaw December, 2024

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A Long-Dormant Territorial Dispute Erupts

In 2015, Exxon Mobil Corporation made a significant oil discovery off the coast of Guyana’s Essequibo region.[1] This and subsequent findings would quickly transform Guyana, with a population just over 800,000, into the country with the largest per-capita oil reserves[2] and the fastest growing economy in the world.[3] The oil, however, also helped reignite a centuries-old dispute over the territory’s true owner.

Venezuela has claimed title to Essequibo since the 19th century, arguing that it originally belonged to the Spanish during the colonial era.[4] Arbitration in 1899 between Venezuela and then-British Guiana held for British control of the region, which was officially demarcated in 1905.[5] After Venezuela raised objections in 1962, anticipating Guyana’s independence from Britain, the parties agreed to negotiate, resulting in a 1966 agreement that allows the UN Secretary-General to select a means of dispute resolution under Article 33 of the UN Charter.[6] In 2015, after decades-long discussions through a UN-mediated “good offices process” failed to yield an agreement,[7] then-Secretary-General Ban Ki-Moon announced his intention to refer the dispute to the International Court of Justice if “significant progress” was not made by the end of his tenure.[8] After Moon stepped down, his successor, Antonio Guterres ordered referral to the Court for final judgment in 2018.[9]

Closely following Guterres’ decision, Guyana filed a complaint with the ICJ, alleging repeated violations of its sovereignty by Venezuela.[10] Guyana asked the court to: (1) Confirm the validity of the 1899 Arbitral Award, (2) affirm its sovereignty over the Essequibo region, (3) order Venezuela to withdraw from the region, (4) refrain from further threats of incursion, and (5) hold Venezuela internationally accountable for violations of its sovereignty and injuries suffered as a result.[11] A final judgment is expected in 2025.[12]

Venezuela’s Annexation Threats

Meanwhile, Venezuelan President Nicolás Maduro announced a five-question referendum in late 2023 regarding Venezuela’s territorial claim to the Essequibo.[13] Each question was worded to induce support for annexation and a rejection of the ICJ’s jurisdiction over the pending case.[14] Guyana quickly filed a request with the ICJ, seeking provisional measures that would prohibit Venezuela from proceeding with the referendum.[15] On December 1st, 2023, the ICJ issued an Order, finding that Guyana’s claim met the requirements for the issuance of such measures under Article 41 of the ICJ Statute.[16] Specifically, Guyana asserted a “plausible right” to sovereignty over the Essequibo region, there existed a link between this right and the measures requested, and there was a “real and imminent risk that irreparable prejudice will be caused to the rights claimed before the Court gives its final decision.”[17] As such, the Court ordered Venezuela to “refrain from taking any action which would modify the situation that currently prevails in the territory in dispute” and required both parties to “refrain from any action which might aggravate or extend the dispute…or make it more difficult to resolve.”[18]

Nevertheless, Venezuela went through with the referendum in December 2023, and reported that the ballot measure overwhelmingly passed with more that 95% support.[19] In March 2024, the Venezuelan Parliament approved the creation of a state in the Essequibo region, further defying the ICJ’s provisional measures.[20] Guyana has vigorously opposed the new law, which President Maduro signed and has used to further military buildup in the region.[21] Guyana (and the ICJ) are thus faced with an existential legal question: how should a party react to its adversary’s non-compliance with an international court’s provisional measures?

Remedies to State Non-compliance With ICJ Provisional Measures

The Court relies on Article 41(1) of the ICJ statute to issue provisional measures, which it affirmed to have binding effect in the 1999 LaGrand case.[22] The ICJ has used this mechanism more frequently over the past decade, especially as conflicts have arisen in places like Ukraine, Gaza, and Nagorno-Karabakh, though compliance has occurred in just about 50% of cases.[23] Non-compliance is more common in cases involving threats of or actual violence, whereas procedural or lower-stakes disputes can be more successfully enforced by court order.[24] The Guyana-Venezuela dispute lies somewhere in between. Though there has been no active armed conflict to date, Venezuelan military buildup on the border makes the situation more serious than a run-of-the-mill diplomatic controversy.[25]

Non-compliance with an ICJ order might seem to trigger Article 94(2) of the U.N. Charter, which states that the non-breaching party may have recourse to the Security Council for relief.[26] However, scholars disagree about whether this clause applies to provisional measures, with some understanding “judgment” as restricting referral to the Court’s final disposition in a case, and others arguing that the binding nature of provisional measures militates in favor of its inclusion for 94(2) referral purposes.[27]

Even if Article 94(2) is inapplicable to enforce provisional measures, the Security Council may take action on its own initiative under Chapter VII of the Charter, which is binding on all states.[28] Conceivably, then, if the Council was inclined to act after witnessing blatant non-compliance with provisional measures, it could ask the parties to comply with its own provisional measures under Article 40, and in case of further violations, take action to “maintain or restore international peace and security.”[29]

Next Steps for Guyana and the Security Council

Given conflicting security alliances between members of the Council and the two parties to the Essequibo matter, it is unlikely that Venezuela will face unanimous condemnation for its defiance of ICJ provisional measures. China and Russia have both provided military support to Venezuela,[30] while the U.S. and UK have done the same for Guyana, making consent for any kind of condemnation by one of the former parties unlikely.[31] However, even if there was geopolitical consensus on the matter, the Council might refrain from further action unless actual armed conflict were to occur.

The case of Bosnia v. Serbia (1993) is illustrative of the severity of the violation and consensus on the Council it might take to prompt action. There, after the ICJ issued provisional measures to no avail, Bosnia asked the Council to take immediate action, invoking Article 94(2).[32] The Council, in turn, did not expressly act under Article 94(2), but noted the Court’s provisional measures in a binding resolution that called for the cessation of hostilities.[33] Unlike the stalled Essequibo situation, in 1993 the Security Council was reacting to an active armed conflict that involved the systematic killing of non-Serbs in the newly-independent Bosnian territory.[34]

Current Venezuelan non-compliance with the ICJ’s provisional measures, then, is not likely to result in remedial action under the U.N. Charter unless further escalation occurs. However, even though Venezuela has defied the Court through its referendum and subsequent legislative action, the ongoing ICJ case may be pressuring it into some semblance of diplomacy. Just days after the provisional measure order, President Maduro met with Guyanese President Irfaan Ali in St. Vincent and the Grenadines, where they signed an 11-point agreement, vowing to “refrain, whether by words or deeds, from escalating any conflict.”[35] Albeit cynical, this meeting may have been an attempt by Venezuela to show the Court a halfhearted commitment to refrain from escalation, or at least an attempt at compliance that it could reference in further proceedings. In the meantime, Guyana will surely continue to remind Venezuela of its international commitments, hoping that an eventual ICJ judgment will close down any further avenues for Venezuelan claims to the Essequibo.

  1. ExxonMobil Announces Significant Oil Discovery Offshore Guyana, ExxonMobil (May 20, 2015), https://corporate.exxonmobil.com/locations/guyana/news-releases/exxonmobil-announces-significant-oil-discovery-offshore-guyana.↑

  2. Jose Enrique Arrioja, Can Guyana Beat the Resource Curse?, America’s Quarterly (Jan. 23, 2024), https://www.americasquarterly.org/article/can-guyana-beat-the-resource-curse/.↑

  3. Gideon Long, Guyana Scrambles to Make the Most of Oil Wealth, BBC (Sept. 10, 2023), https://www.bbc.com/news/world-latin-america-66715777.↑

  4. Venezuela Boundary Dispute 1895-1899, U.S. Dep’t. Of State, Office of the Historian, https://history.state.gov/milestones/1866-1898/venezuela.↑

  5. Winston Anderson, Arbitral Award of 3 October 1899 (Guyana v. Venezuela), 116 Am. J. Int’l L. 836, 837 (2022).↑

  6. Id.↑

  7. Arbitral Award of 1899 (Guyana v. Venezuela), Judgment, 2020 I.C.J. Rep. 455, ¶ 54 (Dec. 18), https://www.icj-cij.org/sites/default/files/case-related/171/171_20201218_JUD_01-00-EN.pdf↑

  8. Id. ¶ 56.↑

  9. Press Release, Secretary-General, Secretary-General Chooses International Court of Justice as Means for Peacefully Settling Long-Standing Guyana-Venezuela Border Controversy, U.N. Press Release SG/SM/18879-ICJ/630 (Jan. 30, 2018).↑

  10. Application Instituting Proceedings, Arbitral Award of 3 October 1899 (Guyana v. Venezuela) 2018 I.C.J. Pleadings (Mar. 29), https://www.icj-cij.org/sites/default/files/case-related/171/171-20180329-APP-01-00-EN.pdf.↑

  11. Id. ¶ 55.↑

  12. ICJ ruling on Guyana-Venezuela border case anticipated by 2025, Guyana Standard (Apr. 14, 2024), https://www.guyanastandard.com/2024/04/13/icj-ruling-on-guyana-venezuela-border-case-anticipated-by-2025-vp-jagdeo.↑

  13. Regina Garcia Cano & Jorge Ruedo, Venezuelans approve a referendum to claim sovereignty over a swathe of neighboring Guyana, Associated Press (Dec. 3, 2023), https://apnews.com/article/venezuela-guyana-essequibo-territory-dispute-maduro-referendum-90a4f0f962a83620903987a68a7d39b0.↑

  14. Guyana’s Request for Provisional Measures, Arbitral Award of 3 October 1899 (Guyana v. Venezuela), 2023 I.C.J. Pleadings, ¶ 3 (Oct. 27), https://www.icj-cij.org/sites/default/files/case-related/171/171-20231030-wri-01-00-en.pdf.↑

  15. Id.↑

  16. Order of 1 December 2023, Arbitral Award of 3 October 1899 (Guyana v. Venezuela), 2023 I.C.J. Provisional Measures, ¶ 38 (Dec. 1), https://www.icj-cij.org/sites/default/files/case-related/171/171-20231201-ord-01-00-en.pdf.↑

  17. Id. ¶ 37.↑

  18. Id. ¶ 45.↑

  19. Genevieve Glatsky, Venezuelan Voters Back Maduro’s Claim to a Neighbor’s Territory, N.Y. Times (Dec. 3, 2023), https://www.nytimes.com/2023/12/03/world/americas/maduro-vote-essequibo-guyana.html.↑

  20. Venezuela’s Parliament Approves Creation of State in Disputed Oil-Rich Essequibo, France 24 (Mar. 23, 2024), https://www.france24.com/en/americas/20240322-venezuela-s-parliament-approves-creation-of-state-in-disputed-oil-rich-essequibo.↑

  21. Bert Wilkinson, Guyana Condemns Venezuela for Signing Into Law a Referendum Approving Annexation of Disputed Region, Associated Press (Apr. 4, 2024), https://apnews.com/article/guyana-venezuela-essequibo-dispute-maduro-law-a72e94ed5417f99d090e1062c68017d7.↑

  22. LaGrand Case (Ger. v. U.S.), Judgment, 2001 I.C.J. 466 ¶ 109 (Jun. 27).↑

  23. Matei Alexianu, Provisional, but Not (Always) Pointless: Compliance with ICJ Provisional Measures, EJIL:Talk (Nov. 3, 2023), https://www.ejiltalk.org/provisional-but-not-always-pointless-compliance-with-icj-provisional-measures/.↑

  24. Id.↑

  25. Ryan C. Berg, et al., The Essequibo Pressure Cooker: Runaway Nationalism and Maduro’s Compellence Strategy, Center for Strategic and International Studies (May 14, 2024), https://www.csis.org/analysis/essequibo-pressure-cooker-runaway-nationalism-and-maduros-compellence-strategy.↑

  26. U.N. Charter art. 94 ¶ (2).↑

  27. Mischa Gureghian Hall, Giving Covenants Swords: The UN Security Council’s Competence to Enforce Provisional Measures of the ICJ, Verfassungsblog (Jul. 10, 2024), https://verfassungsblog.de/giving-covenants-swords/.↑

  28. U.N. Charter, Chapter VII, art. 39.↑

  29. Id. at arts. 39-40.↑

  30. The Red Line Podcast, Episode 123. What the Venezuelan Election Means for Essequibo, The Red Line Podcast, at 1:14:47 (Aug. 1, 2024), https://www.theredlinepodcast.com/post/episode-123-what-the-venezuelan-election-means-for-essequibo.↑

  31. Bert Wilkinson, Guyana asks U.S. to help boost its military as territorial dispute with Venezuela deepens, PBS (Jan. 10, 2024), https://www.pbs.org/newshour/world/guyana-asks-u-s-to-help-boost-its-military-as-territorial-dispute-with-venezuela-deepens.↑

  32. Permanent Rep. of Bosnia and Herzegovina to the U.N., Letter dated 16 April 1993 from the Permanent Representative of Bosnia and Herzegovina to the United Nations addressed to the President of the Security Council, U.N. Doc S/25616 (Apr. 16, 1993).↑

  33. S.C. Res. 819 ¶ 3 (Apr. 16, 1993).↑

  34. The Conflicts, United Nations International Criminal Tribunal for the Former Yugoslavia, https://www.icty.org/en/about/what-former-yugoslavia/conflicts (last visited Nov. 14, 2024).↑

  35. Shortell, supra note 18.↑