The Shape of Guyana - Part III

Part III – The Paris Tibunal

In Part II it was related how Britain was eventually forced to the arbitration table under pressure from the United States Government. The tribunal which met to arbitrate on the dispute was set up under the terms of the Treaty of Washington, 1897 signed between Brtain and Venezuela.

Britan's arbitrators were a former Lord Chancellor, Lord Herschell, and the Irish born Lord Justice Henn Collins. Before the tribunal met, however, Herschell died, and he was replaced by another Irish law lord, Lord Russell of Killowen.

The United States Justices selected Justice Brewer, the former President of the US Boundary Commission. The Venezuelans were not given the opportunity to appoint a Venezuelan judge; the idea was vetoed by the British ambassador in Washington, Sir Julian Pauncefote, without it even being put to his government for consideration. As it was, the Venezuelans nominated the Chief Justice of the Supreme Court, Melville Fuller.

There was some delay before the President of the tribunal was appointed. The Americans, ever efficient, submitted their list early, which included the name of Professor Frederic de Martens.

They heard nothing from the other two nations, however, until just before the time for the appointment had expired, when they were told that Britain had submitted a list to the Venezuelans.

The latter selected Professor de Martens from it.

"He is considered a person of independent mind," wrote the Venezuelan minister, "and his writings show judgement and practical good sense." The minister was also to write that he (de Martens) stood, it appeared, "very high as a writer and as a man." Sixty odd years later, a different generation of Venezuelan ministers was to take a less flattering view of de Marten's character.

Assembling the evidence for presentation, and preparing the cases took much longer than anticipated, and it was not until December 1898 that the last arguments were filed. In all, the documents presented to the tribunal encompassed 23 printed volumes.

Overwhelmed by the mass of evidence which he had to plough through (particularly that assembled by the British), Chief Justice Fuller wrote to US President McKinley that when he had agreed to accept the position of arbitrator, it seemed best that he should do so, "but I have become satisfied since that I was mistaken."

Counsel

While the Venezuelans could not select a Venezuelan judge, they did, of course, have a free hand where their choice of counsel was concerned. In the exercise of that choice they did not elect to appoint Venezuelans; all their counsel were Americans.

They had wanted ex-President Cleveland to lead their team, but he declined, and they settled on ex-President Benjamin Harrison instead. He brought with him two members of his former administration, General Benjamin Tracy and James Soley. As mentioned earlier, the junior member of the team was Severo Mallet-Prevost, who had served as Secretary to the US Boundary Commission.

Leading the British team was the Attorney-General Richard Webster, assisted by the former Attorney-General of the previous administration, Sir Robert Reid. Their other two counsel were George Askwith and Rowlatt.

The Paris Tribunal

The tribunal hearings which were supposed to begin fairly early in 1899, had to be put back, and opened in Paris on June 15, 1899. In the days before air conditioning, both arbitrators and counsel sweltered in the heat of an unusually oppressive Parisian summer.

Over 55 gruelling sessions, the arbitrators listened to arguments from both sides, and took six days to come to their decision.

Contrary to popular supposition, the Venezuelan case was not based on the Papal donation of 1493, although the latter did receive some mention in the counter case.

Without going into the details of the case, one of its more important elements related to prior territorial right – i.e. the right of the discoverer, in this case, Spain. (Venezuela had inherited Spain's rights, as Britain had inherited those of the Dutch.)

At the time of the arbitration it had long been accepted in international law that while a discoverer did have an initial claim to title, it had to be perfected by occupation.

Venezuela maintained that this had been done by Spain too. The latter nation, said the Veneuelan counsel, had explored what is known as the 'island of Guiana' by sailing along the Amazon, the Rio Negro and the Orinoco, and had taken formal possession of all the land bounded by these rivers, which includes our Guyana.

In addition, Spain, it was claimed, had settled various parts of this territory, such as at Santo Thome on the Orinoco, mentioned in the first instalment. As the owner of the land, having acquired good title by acts of possession and occupation, she had granted territory to the Netherlands at the time of the Treaty of Munster in 1648 (see Part 1). This grant had only covered the actual settlement of Kykoveral itself, nothing else, as well as the right of access to that settlement via the Essequibo river. Venezuela maintained that the Dutch had no right of expansion under the Treaty into the territory lying between the Essequibo and Orinoco rivers, which was in any case Spanish.

In general terms, Venezuela presented a negative case, challenging British assertions about Dutch occupation, etc., and she submitted comparatively little positive evidence about Spanish occupation and related matters, because, of course, the Spaniards had never effectively occupied Essequibo.

Britain's case was more straightforward. The most important principle which she applied to the issue was the extent of effective occupation and political control on both sides. She argued that the Dutch were not grantees of the Spanish at the time of the Treaty of Munster; the latter was an agreement between two parties which had given the Dutch rights up to the Orinoco.

As indicated earlier, the British had amassed a vast amount of evidence supporting their contention that the Dutch, not the Spanish, had effectively occupied Essequibo, and had exerted political control outside their area of occupation as a consequence of their jurisdiction over the Indians.

The arguments were long and tedious, and according to one source, it was with relief that the arbitrators retreated for their deliberations. After six days, a unanimous decision was announced.

The Award

Britain did not get the Schomburgk line which had represented the extent of her claim; she lost Barima Point and a strip of adjoining territory, as well as a substantial wedge of land sandwiched between the Cuyuni and the Wenamu. The first-named secured the mouth of the Orinoco for Venezuela, and Britain, who had very much wanted that particular strip, was forced to dismantle her post there and withdraw her officials.

Frederic de Martens

De Martens was born in Livonia in 1845, and was educated in Russia and foreign universities. He entered Russia's Department of Foreign Affairs in 1869, was employed at the University of St Petersburg in 1871 and became a Professor in 1873.

He produced a substantial body of work in the field of international law, and attended many international conferences and conventions. He is particularly remembered for his imput into the conventions of war on land at the First Hague Conference of 1899, and the convention for the peaceful settlement of international disputes. His involvement in so many arbitrations earned him the sobriquet of 'Lord Chancellor of Europe' and later, 'Chief Justice of Christendom'.

The memorandum

As recounted in Part I, Mallet-Prevost dictated his memorandum in 1944, and it was published posthumously five years later. His story was that prior to a decision being given at the Paris Tribunal, he was summoned by Justice Brewer, who told him that de Martens – the President of the Tribunal – had indicated that he and the British judges wanted a unanimous award.

De Martens, according to this account, proposed a line (the present boundary), and told the American judges if they would agree to it, he and the British judges would vote for it. If the American judges did not agree, then he would vote with the Britiish judges for the line claimed by Britain.

According to Mallet-Prevost, the American judges had decided to lay the matter before the American counsel and let them decide. The latter agreed to the line de Martens had proposed, in order not to deprive Venezuela of valuable territory near the mouth of the Orinoco river (Barima Point and adjoining strip).

Mallet-Prevost went on to allege that this line had been the result of a political deal between Britain and Russia, and adduced highly questionable evidence in support of his contention.

Various writers have countered Mallet-Prevost's allegations. Suffice it to say here that there is no evidence of a deal, and in any case, there is no logic in a political arrangement which could not secure for Britain all the territory she wanted. In that situation, it would have made more sense for the British judges to go for a majority decision.

As it is, Mallet-Prevost impugned the characters of two British judges and a Russian jurist, and in effect accused the two US Supreme Court justices at the least of gross impropriety, since they were party to an award which Mallet-Prevost claims they knew was fraudulent.

It has been noted by several commentators that Mallet-Prevost penned his memorandum not long after receiving Venezuela's highest award, and long, long after all the main actors in the drama were dead. He never, therefore, gave them an opportunity to defend themselves against what constitute for judges the most serious of accustions. In addition, he made absolutely certain that before his claims were published, he too was beyond the reach of any earthly interrogation, and if for no other reason (and there are other reasons), it raises doubts about both his veracity and his professional integrity.

It should be noted that Venezuela's objections to the 1899 Award by no means depend on Mallet-Prevost alone. Among other things, they have pointed to the fact that no reasons were given by the arbitrators for the decision, and have also alleged that the latter did not establish how the 50 years cited in the prescription clause of the Treaty of Washington was to be computed, or take into account the applicable rules of right, or investigate the extent of the territories belonging to Spain and the Netherlands. The Foreign Office tampered with the maps, say the Venezuelans, and the Award line was prepared in the Colonial Office in July 1890. They have also directed their attacks towards the Treaty of Washington per se, which they say was forced upon them.

In the end, however, the question is, was the award justified on the basis of the evidence presented. The answer is an unequivocal, yes.