The International Court of Justice is the principal judicial organ of the United Nations. As such, the court is responsible for deciding contentious cases submitted to it by states, and considers advisory matters referred to it by United Nations bodies, such as the General Assembly.

The judges of the court are drawn from different geographical regions and main legal systems of the world, and normally serve for nine-year terms of office with the possibility of re-election. These judges are jurists of the highest order, experts in international law in particular.

In applying rules of international law the court has long accepted that some rules are more powerful than others. These rules — sometimes referred to as norms of jus cogens — may trump other rules of law because they are central to the international order. One of these highly powerful rules is the prohibition on the use of force set out in Article 2(4) of the United Nations Charter. In essence, Article 2(4) stipulates that states must not use force against the territorial integrity or political independence of other states.

The UN Charter contemplates two circumstances in which force may be legitimately used in the face of Article 2(4), namely, (a) in self-defence and (b) pursuant to decisions of the UN Security Council. On the basis of the UN Charter rules it is easy to conclude that force may not be used to bring about the annexation of territory held lawfully by another State.

Recent Weeks

The court has been in the news throughout the Caribbean in recent weeks. On October 30, 2023 Guyana, our much-respected Caricom partner, applied to the court for provisional measures to be ordered against Venezuela. The provisional measures order sought by Guyana was for Venezuela to refrain from conducting a referendum concerning the Essequibo region on December 3, 2023. The Essequibo region has been subject to de facto Guyanese sovereignty for more than a century.

In the practice of the court, a provisional measure is equivalent to an injunction ordered in domestic law. In the Guyana-Venezuela case, Guyana’s complaint was that Venezuela, its neighbour, was preparing the ground for the forceful annexation of the Essequibo region, and that Venezuela’s referendum was an essential tool in the annexation plan.

Referendum Response

In response to Guyana, the court did not expressly prohibit the referendum. Rather, the court held unanimously that Venezuela “shall refrain from taking any action which would modify the situation that currently prevails in the territory in dispute, whereby … Guyana administers and exercises control over that area”. It may well be that the court did not bar the referendum because Venezuela has the right, as an internal matter, to consult its people on matters of policy. More importantly, however, the court affirmed that Guyana has interests to be protected and that some of Venezuela’s actions could prejudicially affect those interests. The court also concluded that neither State should do anything to aggravate the situation.

The court, in reaching its conclusions, had regard to the urgency of the situation, and noted that its order for provisional measures did not need to be granted in the express terms sought by Guyana. The court also reiterated — relying on its own jurisprudence — that provisional measures are legally binding. Venezuela is therefore under instructions from the principal judicial organ of the United Nations not to take any measures to modify the current situation in the Essequibo region.

If, therefore, Venezuela seeks to send military forces into the disputed area, this action would violate international law in at least two respects. It would involve the use of force by Venezuela ostensibly in breach of the jus cogens norm in Article 2(4) of the UN Charter, and it would disregard a binding order of the court.

Why Proceed?

Venezuela has proceeded with the referendum, with the Government indicating that 10.5 million voters supported its propositions in favour of Venezuelan control over the Essequibo region. But the court has instructed that nothing be done to change the situation in the region while the court’s decision on the merits of the case is pending. What then was the point of the referendum? Why did the Maduro Administration proceed with the referendum, knowing that it will have no impact on the court?

At least three reasons suggest themselves. First, as asserted in Guyanese pronouncements, the referendum is, in fact, a prelude to annexation: by providing evidence of home support for annexation it could allow the Maduro Government to argue that any military action contemplated is sanctioned by the will of the Venezuelan people. This argument — the people made him do it — does not allow Maduro to violate Article 2(4) or an order of the court. The forceful annexation, even with overwhelming popular support at home, would remain illegal on its face.

Signals

Secondly, the referendum could be viewed as a signalling device. The Venezuelan people have, in recent years, undergone severe economic challenges — some endogenously generated but others prompted by international factors, including American sanctions. Against this background of economic turbulence, and with eyes focused on imminent elections, Maduro may be relying on the patriotic fervour of a longstanding nationalistic claim to Essequibo to bolster his electoral popularity. If this point of analysis is correct, it is reminiscent, for instance, of General Galtieri’s approach leading up to the Falklands/Las Malvinas military conflict in 1982. On this reading the referendum would seek to bring the people together in defence of their territorial claim.

Still with reference to the signalling function, the referendum may represent an attempt to influence the Biden Administration. Here, presumably, the Maduro line of approach would be that, by having a referendum Venezuela has underlined its commitment to democratic principles. Recall that one of the fundamental objections advanced by the USA against the Maduro Government has been its lack of respect for the electoral will. And recall that the Biden Administration has, in recent months, publicly moved towards rapprochement with Venezuela. In this context Maduro may be holding out the hope that the semblance of democracy evident in the referendum could count in Venezuela’s favour with the USA, if Venezuela were to move towards annexation. This, though, would be no more than a vain hope.

No Acquiescence

Another possible reason for the referendum may be related to a particular point of international law. Where a State by its action may be deemed to have acquiesced in a given situation, this acquiescence may create an estoppel against that State. In the current case, assume that Venezuela had called the referendum and Guyana had not protested against it, or had protested mildly or ambiguously. This would have opened the way for a Venezuelan assertion to the effect that Guyana had acquiesced to the referendum and perhaps to its result. So, Venezuela tried its shots, but Guyana firmly rejected it. Guyana cannot be accused of sleeping on its rights.

Finally, the cynic could postulate that international law will not resolve this issue, and point to the realities of power politics as a better guide. Even though the cynic’s case cannot be ignored it should not be overstated. In respect of the order that Venezuela must do nothing to adjust the status quo until the court has reached its final decision on the substance of the case, Guyana has the law on its side.

On the purely political front Guyana would be well-advised to continue pressing its position in corridors of power at the United Nations, in Washington DC, London, and among Caricom countries, armed with the UN Charter, the court’s provisional measures order, and its strong (but yet unresolved) claim to sovereignty over the Essequibo region.

Ambassador Stephen Vasciannie is a Professor of International Law at The University of the West Indies.