court: icj

doctype: beslut

caseName: Arbitral Award of 3 October 1899 (Guyana v. Venezuela)

decisionType: order

procedure: Request for the indication of provisional measures

publisher: International Court of Justice

title: Order of 1 December 2023

text: Convention on the Prevention and Punishment of the Crime of Genocide

text: INTERNATIONAL COURT OF JUSTICE

type: rubrik

text: YEAR 2023 2023 1 December General List 1 December 2023 No. 171

type: stycke

text: ARBITRAL AWARD OF 3 OCTOBER 1899

text: (GUYANA v. VENEZUELA)

text: REQUEST FOR THE INDICATION OF PROVISIONAL MEASURES

text: ORDER

text: Present: President Donoghue; Vice-President Gevorgian; Judges Abraham, Bennouna, Yusuf, Xue, Sebutinde, Bhandari, Robinson, Salam, Iwasawa, Nolte, Brant; Judges ad hoc Wolfrum, Couvreur; Registrar Gautier.

text: The International Court of Justice, Composed as above, After deliberation, Having regard to Articles 41 and 48 of the Statute of the Court and Articles 73, 74 and 75 of the Rules of Court, Makes the following Order:

text: By an Application filed in the Registry of the Court on 29 March 2018, the Government of the Co-operative Republic of Guyana (hereinafter “Guyana”) instituted proceedings against the Bolivarian Republic of Venezuela (hereinafter “Venezuela”) with respect to a dispute concerning “the legal validity and binding effect of the Award regarding the Boundary between the Colony of British Guiana and the United States of Venezuela, of 3 October 1899”.

text: In its Application, Guyana sought to found the jurisdiction of the Court, under Article 36, paragraph 1, of the Statute of the Court, on Article IV, paragraph 2, of the “Agreement to Resolve the Controversy between Venezuela and the United Kingdom of Great Britain and Northern Ireland over the Frontier between Venezuela and British Guiana” signed at Geneva on 17 February 1966 (hereinafter the “Geneva Agreement”).

text: arbitral award of 3 october 1899 (ord. 1 XII 23)

text: On 18 June 2018, Venezuela submitted a letter to the Court asserting that the Court manifestly lacked jurisdiction and stating that it had thus decided not to participate in the proceedings.

text: By an Order dated 19 June 2018, the Court held, pursuant to Article 79, paragraph 2, of the Rules of Court of 14 April 1978 as amended on 1 February 2001, that, in the circumstances of the case, it was necessary first of all to resolve the question of its jurisdiction, and that this question should accordingly be separately determined before any proceedings on the merits.

text: By a Judgment dated 18 December 2020 (hereinafter the “2020 Judgment”), the Court found: “(1) that it has jurisdiction to entertain the Application filed by the Co-operative Republic of Guyana on 29 March 2018 in so far as it concerns the validity of the Arbitral Award of 3 October 1899 and the related question of the definitive settlement of the land boundary dispute between the Co-operative Republic of Guyana and the Bolivarian Republic of Venezuela; [and]

text: (2) that it does not have jurisdiction to entertain the claims of the Cooperative Republic of Guyana arising from events that occurred after the signature of the Geneva Agreement” (Arbitral Award of 3 October 1899 (Guyana v. Venezuela), Jurisdiction of the Court, Judgment, I.C.J. Reports 2020, p. 493, para. 138).

text: On 7 June 2022, within the time-limit prescribed by Article 79bis, paragraph 1, of the Rules of Court, Venezuela raised preliminary objections which it characterized as objections to the admissibility of the Application. By a Judgment dated 6 April 2023 (hereinafter the “2023 Judgment”), the Court, which understood Venezuela to be making in substance only a single preliminary objection, rejected that objection and found that it could adjudicate upon the merits of the claims of Guyana, in so far as they fell within the scope of the first subparagraph of the operative clause of the 2020 Judgment (see paragraph 5 above).

text: On 30 October 2023, Guyana, referring to Article 41 of the Statute and Articles 73 and 74 of the Rules of Court, filed a Request for the indication of provisional measures. In its Request, Guyana states that “[o]n 23 October 2023, the Government of Venezuela, through its National Electoral Council, published a list of five questions that it plans to put before the Venezuelan people in a . . . ‘Consultative Referendum’ on 3 December 2023”. According to the Applicant, the purpose of these questions, which are set out at paragraph 15 below, is

text: “to obtain responses that would support Venezuela’s decision to abandon these proceedings, and to resort instead to unilateral measures to ‘resolve’ the controversy with Guyana by formally annexing and integrating into Venezuela all of the territory at issue in these proceedings, which comprises more than two-thirds of Guyana”.

text: At the end of its Request, Guyana asks the Court to indicate the following provisional measures: “1. Venezuela shall not proceed with the Consultative Referendum planned for 3 December 2023 in its present form; 2. In particular, Venezuela shall not include the First, Third or Fifth questions in the Consultative Referendum; 3. Nor shall Venezuela include within the ‘Consultative Referendum’ planned, or any other public referendum, any question encroaching upon the legal issues to be determined by the Court in its Judgment on the Merits, including (but not limited to):

text: (a) the legal validity and binding effect of the 1899 Award;

text: (b) sovereignty over the territory between the Essequibo River, and the boundary established by the 1899 Award and the 1905 Agreement; and (c) the purported creation of the State of ‘Guayana Esequiba’ and any associated measures, including the granting of Venezuelan citizenship and national identity cards.

text: 4. Venezuela shall not take any actions that are intended to prepare or allow the exercise of sovereignty or de facto control over any territory that was awarded to British Guiana in the 1899 Arbitral Award. 5. Venezuela shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.”

text: By letters dated 10 November 2023, the Registrar informed the Parties that the Court had identified certain issues on which, pursuant to Article 62, paragraph 1, of its Rules, it wished to obtain further information from each Party during its respective single round of oral argument. The following list of questions was attached to the Registrar’s letter:

text: 1. The resolution of the National Electoral Council of Venezuela that is annexed to Guyana’s Request (Annex 1) is, by its own terms, remitted to the Constitutional Chamber of the Supreme Tribunal of Justice so that the latter may pronounce on the constitutionality of the five questions to be asked in the Consultative Referendum. Has the Constitutional Chamber of the Supreme Tribunal of Justice pronounced on this matter and, if so, what was its pronouncement and when was it issued? 2. Will the Consultative Referendum be held on 3 December 2023, as envisaged in the Resolution of the National Electoral Council? If not, has another date been set? 3. What is the legal effect, under Venezuelan law, of the Consultative Referendum? In particular, are the answers to the questions binding on the executive and legislative authorities of Venezuela?

text: At the public hearings held on 14 and 15 November 2023, oral observations on the Request for the indication of provisional measures filed by Guyana were presented by: On behalf of Guyana: Hon. Carl B. Greenidge, Mr Paul S. Reichler, Mr Alain Pellet. On behalf of Venezuela: HE Ms Delcy Rodríguez, Mr Makane Moïse Mbengue, HE Mr Samuel Reinaldo Moncada Acosta.

text: At the end of its oral observations, Guyana asked the Court to indicate the following provisional measures: “Having regard to the facts and law set out in its Request for Provisional Measures and its argument during the oral proceedings, the Co-operative Republic of Guyana respectfully submits that the Court should indicate the following provisional measures, which would remain in effect until the issuance of the Court’s Judgment on the Merits: 1. Venezuela shall not proceed with the Consultative Referendum planned for 3 December 2023 in its present form; 2. In particular, Venezuela shall not include the First, Third or Fifth questions in the Consultative Referendum; 3. Nor shall Venezuela include within the ‘Consultative Referendum’ planned, or any other public referendum, any question encroaching upon the legal issues to be determined by the Court in its Judgment on the Merits, including (but not limited to):

text: At the end of its oral observations, Venezuela made the following request: “For the reasons explained during these hearings, the Bolivarian Republic of Venezuela asks the Court to reject the request for provisional measures filed by the Co-operative Republic of Guyana.”

text: I. Introduction

text: The Court has set out, in its two Judgments in the present case, the general background and context of the dispute (see Arbitral Award of 3 October 1899 (Guyana v. Venezuela), Jurisdiction of the Court, Judgment, I.C.J. Reports 2020, pp. 464-471, paras. 29-60; Arbitral Award of 3 October 1899 (Guyana v. Venezuela), Preliminary Objection, Judgment, I.C.J. Reports 2023 (I), pp. 274-279, paras. 28-52). The dispute between Guyana and Venezuela dates back to a series of events that took place during the second half of the nineteenth century, when Guyana was still a British colony, known as British Guiana. At that time, the United Kingdom and Venezuela both claimed the territory located between the mouth of the Essequibo River in the east and the Orinoco River in the west. In 1897, an arbitral tribunal was established to settle the boundary between British Guiana and Venezuela. In its Award rendered on 3 October 1899 (hereinafter the “1899 Award”), the arbitral tribunal granted the entire mouth of the Orinoco River and the land on either side to Venezuela; it granted to the United Kingdom (in respect of British Guiana) the land to the east extending to the Essequibo River. Between November 1900 and June 1904, a joint Anglo-Venezuelan commission demarcated the boundary established by the 1899 Award. On 10 January 1905, after the boundary had been demarcated, the British and Venezuelan commissioners produced an official boundary map and signed an agreement accepting, inter alia, that the co-ordinates of the points listed were correct.

text: On 14 February 1962, Venezuela informed the Secretary-General of the United Nations that it considered there to be a dispute between itself and the United Kingdom “concerning the demarcation of the frontier between Venezuela and British Guiana”. The Government of the United Kingdom, for its part, asserted on 13 November 1962 that “the Western boundary of British Guiana with Venezuela [had been] finally settled by the award which the arbitral tribunal [had] announced on 3 October 1899”, and that it did not “agree that there [could] be any dispute over the question settled by the award”. After various attempts to resolve the matter failed, the representatives of the United Kingdom, Venezuela and British Guiana signed the Geneva Agreement on 17 February 1966. On 26 May 1966, Guyana, having attained independence, became a party to the Geneva Agreement. Attempts were made in the ensuing decades to resolve the dispute through different means of settlement envisaged in the Geneva Agreement, all of which failed, leading the Secretary-General of the United Nations, in January 2018, under the Geneva Agreement, to choose the Court as the means to resolve the dispute. Guyana filed its Application in the Registry of the Court on 29 March 2018 (see paragraph 1 above).

text: On 20 October 2023, the National Electoral Council of Venezuela published a list of five questions to be put before the Venezuelan people in a consultative referendum on 3 December 2023. The relevant resolution of the National Electoral Council reads as follows: “[T]he National Electoral Council . . . RESOLVES: FIRSTLY: To announce to the Venezuelan people, whose sovereignty is inalienable, in accordance with Article 5 of the Constitution of the Bolivarian Republic of Venezuela, the questions to be asked in the Consultative Referendum in defence of Guayana Esequiba, so that the will of the people may be expressed on the third (3rd) day of December 2023; those questions being as follows: FIRST: Do you agree to reject by all means, in accordance with the Law, the line fraudulently imposed by the 1899 Paris Arbitral Award, that seeks to dispossess us of our Guayana Esequiba?

text: SECOND: Do you support the 1966 Geneva Agreement as the only valid legal instrument to reach a practical and satisfactory solution for Venezuela and Guyana to their dispute over the Guayana Esequiba territory?

text: THIRD: Do you agree with Venezuela’s historic position of not recognizing the Jurisdiction of the International Court of Justice to resolve the territorial dispute over Guayana Esequiba?

text: FOURTH: Do you agree to oppose, by all means, in accordance with the Law, Guyana’s claim to unilaterally have at its disposal a sea yet to be delimited, illegally and in violation of international law?

text: FIFTH: Do you agree with the creation of the Guayana Esequiba State and that an accelerated and comprehensive plan be developed for the present and future population of that territory, including, inter alia, the granting of Venezuelan citizenship and identity cards, in accordance with the Geneva Agreement and International Law, consequently incorporating that State into the map of Venezuelan territory? SECONDLY: To refer this Resolution to the Constitutional Chamber of the Supreme Tribunal of Justice, so that it may rule on the constitutionality of the five (5) questions to be asked in the Consultative Referendum.” [Translation by the Court.]

text: On 30 October 2023, Guyana filed the present Request for the indication of provisional measures.

text: II. Jurisdiction

text: The Court may indicate provisional measures only if the provisions relied on by the applicant appear, at least prima facie, to afford a basis on which its jurisdiction could be founded (see, for example, Allegations of Genocide under the

text: (Ukraine v. Russian Federation), Provisional Measures, Order of 16 March 2022, I.C.J. Reports 2022 (I), pp. 217-218, para. 24).

text: In the present case, the Court has already found, in its 2020 Judgment, that it has jurisdiction to entertain the Application filed by Guyana on 29 March 2018 in so far as it concerns the validity of the 1899 Award and the related question of the definitive settlement of the land boundary dispute between Guyana and Venezuela (see paragraph 5 above). The Court further recalls that, in its 2023 Judgment (see paragraph 6 above), it found that it could adjudicate upon the merits of the claims of Guyana, in so far as they fell within the scope of the first subparagraph of the operative clause of the 2020 Judgment. The Court will now proceed to consider the other requirements for the indication of provisional measures.

text: III. The Rights Whose Protection Is Sought and the Link between Such Rights and the Measures Requested

text: The power of the Court to indicate provisional measures under Article 41 of the Statute has as its object the preservation of the respective rights claimed by the parties in a case, pending its decision on the merits thereof. It follows that the Court must be concerned to preserve by such measures the rights which may subsequently be adjudged by it to belong to either party. Therefore, the Court may exercise this power only if it is satisfied that the rights asserted by the party requesting provisional measures are at least plausible (see, for example,

text: Allegations of Genocide under the Convention

text: on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), Provisional Measures, Order of 16 March 2022, I.C.J. Reports 2022 (I), p. 223, para. 50).

text: At this stage of the proceedings, however, the Court is not called upon to determine definitively whether the rights which Guyana wishes to see protected exist; it need only decide whether the rights claimed by Guyana on the merits, and for which it is seeking protection, are plausible. Moreover, a link must exist between the rights whose protection is sought and the provisional measures being requested (Allegations of Genocide under the

text: (Ukraine v. Russian Federation), Provisional Measures, Order of 16 March 2022, I.C.J. Reports 2022 (I), p. 224, para. 51).

text: Guyana contends that it seeks the preservation and protection of its right to the territory awarded to it by the 1899 Award, pending the Court’s determination of the validity of that Award, and to the integrity of its territory, or, alternatively, its right to the settlement by the Court of the land boundary between Guyana and Venezuela. It submits that its rights are directly threatened by Venezuela’s planned referendum and anticipated incorporation of Guyana’s Essequibo region into Venezuela in accordance with the Venezuelan people’s “inevitable” response to the question regarding “the creation of the Guayana Esequiba State” (see paragraph 15 above). It further submits that its rights as identified above are plausible at the current stage of the proceedings and that any other conclusion would prejudge the outcome of this case on the merits.

text: Venezuela, for its part, states that the rights asserted by Guyana are not plausible.

text: The Court recalls its finding in the 2020 Judgment that a land boundary dispute exists between the Parties. It further observes that the territory which forms the object of that dispute was awarded to British Guiana in the 1899 Award (see paragraph 13 above). For these reasons, the Court considers that Guyana’s right to sovereignty over the territory in question is plausible.

text: The Court now turns to the requirement of a link between the right claimed by Guyana that the Court has found to be plausible and the provisional measures requested. It notes that neither Party has directly addressed this question.

text: The Court observes that one of the provisional measures requested by Guyana seeks to ensure that Venezuela does not “take any actions that are intended to prepare or allow the exercise of sovereignty or de facto control over any territory that was awarded to British Guiana in the 1899 Arbitral Award” (see paragraph 11 above). The Court considers that this measure is aimed at protecting Guyana’s right which the Court has found plausible (see paragraph 23 above).

text: The Court concludes, therefore, that a link exists between the right claimed by Guyana that the Court has found to be plausible and the abovementioned requested provisional measure.

text: IV. Risk of Irreparable Prejudice and Urgency

text: The Court, pursuant to Article 41 of its Statute, has the power to indicate provisional measures when irreparable prejudice could be caused to rights which are the subject of judicial proceedings or when the alleged disregard of such rights may entail irreparable consequences (see Allegations of Genocide under the

text: (Ukraine v. Russian Federation), Provisional Measures, Order of 16 March 2022, I.C.J. Reports 2022 (I), p. 226, para. 65).

text: However, the power of the Court to indicate provisional measures will be exercised only if there is urgency, in the sense that there is a real and imminent risk that irreparable prejudice will be caused to the rights claimed before the Court gives its final decision. The condition of urgency is met when the acts susceptible of causing irreparable prejudice can “occur at any moment” before the Court makes a final decision on the case (see Allegations of Genocide under the

text: (Ukraine v. Russian Federation), Provisional Measures, Order of 16 March 2022, I.C.J. Reports 2022 (I), p. 227, para. 66). The Court must therefore consider whether such a risk exists at this stage of the proceedings.

text: The Court is not called upon, for the purposes of its decision on the request for the indication of provisional measures, to reach a decision on either Party’s position on the merits, but to determine whether the circumstances require the indication of provisional measures for the protection of the right found to be plausible. It cannot at this stage make definitive findings of fact, and the right of each Party to submit arguments in respect of the merits remains unaffected by the Court’s decision on the request for the indication of provisional measures. * *

text: Guyana submits that, if Venezuela proceeds with its scheduled referendum, the “inevitable” affirmative response to the fifth question (see paragraph 15 above) would lead Venezuela to annex the Essequibo region and to grant Venezuelan citizenship to its inhabitants, causing irreparable harm to Guyana’s rights. In Guyana’s view, even a judgment of the Court on the merits upholding the validity of the 1899 Award or settling the boundary dispute in a manner that leaves all or part of the Essequibo region under Guyana’s sovereignty might not be sufficient to protect Guyana’s rights if Venezuela has already annexed that territory. For Guyana, this is a “particularly exemplary” situation in which the rights of the party requesting provisional measures are “irremediably threatened” and must be preserved pursuant to Article 41, paragraph 1, of the Statute.

text: Guyana argues that the need for provisional measures could not be more urgent since Venezuela’s referendum is scheduled to take place on 3 December 2023. Guyana asserts that urgency is further demonstrated by the public statements of Venezuela’s highest civilian and military leaders indicating that Venezuela’s armed forces are ready and determined to “recover our Guayana Esequiba”. *

text: Venezuela asserts that holding a consultative referendum is an exercise of sovereignty and that “[n]one of the outcomes of the referendum will have any adverse impact on Guyana’s alleged title over the disputed territory and even less create a risk of irreparable harm to Guyana”. It adds that its decision to call a consultative referendum was made known to Guyana over two years ago.

text: Having previously determined that Guyana’s right to sovereignty over the territory awarded to British Guiana by the 1899 Award is plausible, and that there is a link between this right and one of the provisional measures requested (see paragraphs 23 and 26 above), the Court now turns to the questions of whether irreparable prejudice could be caused to this right and whether there is urgency, in the sense that there is a real and imminent risk that irreparable prejudice will be caused to this right before the Court gives its final decision.

text: The Court recalls that the fifth question of the referendum refers explicitly to the “creation of the Guayana Esequiba State”, as well as “an accelerated and comprehensive plan [to] be developed” for “the granting of Venezuelan citizenship and identity cards” to the population of that territory, consequently incorporating the “[Guayana Esequiba] State into the map of Venezuelan territory” (see paragraph 15 above).

text: The Court further observes that Venezuela’s Supreme Tribunal of Justice has confirmed the constitutionality of the questions to be posed in the referendum.

text: The Court notes that Venezuela stated during the oral proceedings that it “will not turn its back on what the people decide in the referendum” of 3 December 2023. On 24 October 2023, the President of Venezuela, Mr Nicolás Maduro Moros, publicly stated that the referendum “is the first time that all arguments — political, diplomatic, legal, historic, territorial — are given to our people so that we take a collective decision as a country” [translation by the Court]. Other official statements suggest that Venezuela is taking steps with a view towards acquiring control over and administering the territory in dispute. For instance, on 6 November 2023, the Minister of Defence of Venezuela, General Vladimir Padrino López, made an appeal to “go to combat” with reference to the territory in question. Furthermore, Venezuelan military officials announced that Venezuela is taking concrete measures to build an airstrip to serve as “a logistical support point for the integral development of the Essequibo”.

text: The Court considers that, in light of the strong tension that currently characterizes the relations between the Parties, the circumstances described above present a serious risk of Venezuela acquiring and exercising control and administration of the territory in dispute in the present case. It therefore concludes that there is a risk of irreparable prejudice to the right claimed by Guyana in the present proceedings that the Court has found plausible (see paragraph 23 above). The Court further considers that Venezuela’s expressed readiness to take action with regard to the territory in dispute in these proceedings at any moment following the referendum scheduled for 3 December 2023 demonstrates that there is urgency, in the sense that there is a real and imminent risk of irreparable prejudice to Guyana’s plausible right before the Court gives its final decision.

text: V. Conclusion and Measures to Be Adopted

text: The Court concludes from all of the above considerations that the conditions for the indication of provisional measures are met. It is therefore necessary, pending its final decision, for the Court to indicate certain measures in order to protect the plausible right claimed by Guyana, as identified above (see paragraph 23).

text: The Court recalls that it has the power, under its Statute, when a request for provisional measures has been made, to indicate measures that are, in whole or in part, other than those requested. Article 75, paragraph 2, of the Rules of Court specifically refers to this power of the Court. The Court has already exercised this power on several occasions in the past (see Allegations of Genocide under the

text: (Ukraine v. Russian Federation), Provisional Measures, Order of 16 March 2022, I.C.J. Reports 2022 (I), p. 229, para. 79).

text: In the present case, having considered the terms of the provisional measures requested by Guyana and the circumstances of the case, the Court finds that the measures to be indicated need not be identical to those requested.

text: The Court observes that the situation that currently prevails in the territory in dispute is that Guyana administers and exercises control over that area. The Court considers that, pending the final decision in the case, Venezuela must refrain from taking any action which would modify that situation.

text: The Court emphasizes that the question of the validity of the 1899 Award and the related question of the definitive settlement of the land boundary dispute between Guyana and Venezuela are matters for the Court to decide at the merits stage.

text: The Court recalls that Guyana has requested it to indicate measures aimed at ensuring the non-aggravation of the dispute with Venezuela. When indicating provisional measures for the purpose of preserving specific rights, the Court may also indicate provisional measures with a view to preventing the aggravation or extension of a dispute whenever it considers that the circumstances so require (see Allegations of Genocide under the

text: (Ukraine v. Russian Federation), Provisional Measures, Order of 16 March 2022, I.C.J. Reports 2022 (I), pp. 229-230, para. 82). In the current case, having considered all the circumstances, in addition to the specific measure it has decided to take, the Court deems it necessary to indicate an additional measure directed to both Parties and aimed at ensuring the non-aggravation of the dispute between them.

text: The Court recalls that its orders indicating provisional measures under Article 41 of the Statute have binding effect and thus create international legal obligations for any party to whom the provisional measures are addressed (Allegations of Genocide under the

text: (Ukraine v. Russian Federation), Provisional Measures, Order of 16 March 2022, I.C.J. Reports 2022 (I), p. 230, para. 84).

text: For these reasons, The Court, Indicates the following provisional measures:

text: (1) Unanimously,

text: Pending a final decision in the case, the Bolivarian Republic of Venezuela shall refrain from taking any action which would modify the situation that currently prevails in the territory in dispute, whereby the Co-operative Republic of Guyana administers and exercises control over that area; (2) Unanimously, Both Parties shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.

text: Done in French and in English, the French text being authoritative, at the Peace Palace, The Hague, this first day of December, two thousand and twenty-three, in three copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of the Co-operative Republic of Guyana and the Government of the Bolivarian Republic of Venezuela, respectively.

text: Judge Sebutinde appends a declaration to the Order of the Court; Judge Robinson appends a separate opinion to the Order of the Court; Judge ad hoc Couvreur appends a separate opinion to the Order of the Court.

text: (Initialled) J.E.D. (Initialled) Ph.G.

title: Arbitral Award of 3 October 1899 (Guyana v. Venezuela)

type: avgorande


procedure: Request for the modification of the Order of 1 December 2023 indication provisional measures

reportsCitation: I.C.J. Reports 2025, p. 13

title: Order of 1 May 2025

text: Convention on the Prevention and Punishment of the Crime of Genocide

text: International Convention on the Elimination of All Forms of Racial Discrimination

text: INTERNATIONAL COURT OF JUSTICE

text: YEAR 2025 2025 1 May General List 1 May 2025 No. 171

text: ARBITRAL AWARD OF 3 OCTOBER 1899

text: (GUYANA v. VENEZUELA)

text: REQUEST FOR THE MODIFICATION OF THE ORDER INDICATING PROVISIONAL MEASURES OF 1 DECEMBER 2023

text: ORDER

text: Present: President Iwasawa; Vice-President Sebutinde; Judges Tomka, Abraham, Yusuf, Xue, Bhandari, Nolte, Brant, Gómez Rob ledo, Cleveland, Aurescu, Tladi; Judges ad hoc Wolfrum, Couvreur; Registrar Gautier.

text: The International Court of Justice, Composed as above, After deliberation, Having regard to Article 41 of the Statute of the Court and Article 76 of the Rules of Court, Makes the following Order:

text: By an Application filed in the Registry of the Court on 29 March 2018, the Co-operative Republic of Guyana (hereinafter “Guyana”) instituted proceedings against the Bolivarian Republic of Venezuela (hereinafter “Venezuela”) with respect to a dispute concerning “the legal validity and binding effect of the Award regarding the Boundary between the Colony of British Guiana and the United States of Venezuela, of 3 October 1899”.

text: In its Application, Guyana sought to found the jurisdiction of the Court, under Article 36, paragraph 1, of the Statute of the Court, on Article IV, paragraph 2, of the Agreement to Resolve the Controversy between Venezuela and the United Kingdom of Great Britain and Northern Ireland over the Frontier between Venezuela and British Guiana signed at Geneva on 17 February 1966 (hereinafter the “Geneva Agreement”).

text: On 18 June 2018, Venezuela submitted a letter to the Court asserting arbitral award of 3 october 1899 (ord. 1 V 25) that the Court manifestly lacked jurisdiction and stating that it had thus decided not to participate in the proceedings.

text: By an Order dated 19 June 2018, the Court held, pursuant to Article 79, paragraph 2, of the Rules of Court of 14 April 1978 as amended on 1 February 2001, that, in the circumstances of the case, it was necessary first of all to resolve the question of its jurisdiction, and that this question should accordingly be separately determined before any proceedings on the merits.

text: By a Judgment dated 18 December 2020 (hereinafter the “2020 Judgment”), the Court found: “(1) that it has jurisdiction to entertain the Application filed by the Co-operative Republic of Guyana on 29 March 2018 in so far as it concerns the validity of the Arbitral Award of 3 October 1899 and the related question of the definitive settlement of the land boundary dispute between the Co-operative Republic of Guyana and the Bolivarian Republic of Venezuela; [and] (2) that it does not have jurisdiction to entertain the claims of the Co-operative Republic of Guyana arising from events that occurred after the signature of the Geneva Agreement.” (Arbitral Award of 3 October 1899 (Guyana v. Venezuela), Jurisdiction of the Court, Judgment, I.C.J. Reports 2020, p. 493, para. 138.)

text: By an Order dated 8 March 2021, the Court fixed 8 March 2022 and 8 March 2023 as the respective time-limits for the filing of a Memorial by Guyana and a Counter-Memorial by Venezuela on the merits. Guyana filed its Memorial within the time-limit thus fixed.

text: On 7 June 2022, within the time-limit prescribed by Article 79bis, paragraph 1, of the Rules of Court, Venezuela raised preliminary objections which it characterized as objections to the admissibility of the Application. By a Judgment dated 6 April 2023 (hereinafter the “2023 Judgment”), the Court, which understood Venezuela to be making in substance only a single preliminary objection, rejected that objection and found that it could adjudicate upon the merits of the claims of Guyana, in so far as they fell within the scope of the first subparagraph of the operative clause of the 2020 Judgment (see paragraph 5 above).

text: By an Order also dated 6 April 2023, the Court fixed 8 April 2024 as the new time-limit for the filing of the Counter-Memorial of Venezuela. Venezuela filed its Counter-Memorial within the time-limit thus fixed.

text: On 30 October 2023, Guyana, referring to Article 41 of the Statute and Articles 73 and 74 of the Rules of Court, filed a Request for the indication of provisional measures, with reference to the organization by the Government of Venezuela of a “Consultative Referendum” planned for 3 December 2023. According to the Applicant, the purpose of the questions asked in the context of this referendum was

text: “to obtain responses that would support Venezuela’s decision to abandon these proceedings, and to resort instead to unilateral measures to ‘resolve’ the controversy with Guyana by formally annexing and integrating into Venezuela all of the territory at issue in these proceedings, which comprises more than two-thirds of Guyana”.

text: After hearing the Parties, the Court, by an Order of 1 December 2023, indicated the following provisional measures: “(1) Pending a final decision in the case, the Bolivarian Republic of Venezuela shall refrain from taking any action which would modify the situation that currently prevails in the territory in dispute, whereby the Co-operative Republic of Guyana administers and exercises control over that area; [and] (2) Both Parties shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.” (Arbitral Award of 3 October 1899 (Guyana v. Venezuela), Provisional Measures, Order of 1 December 2023, I.C.J. Reports 2023 (II), p. 668, para. 45.)

text: By an Order dated 14 June 2024, the Court fixed 9 December 2024 and 11 August 2025 as the respective time-limits for the filing of a Reply by Guyana and a Rejoinder by Venezuela. The Reply was filed within the timelimit thus prescribed.

text: On 6 March 2025, Guyana, referring to Article 41 of the Statute of the Court and Articles 73, 74 and 76 of the Rules of Court, filed a Request for the indication of provisional measures.

text: In its Request, Guyana asks the Court to indicate the following provisional measures: “1. Venezuela shall not conduct any election in, or in respect of, any part of the territory on Guyana’s side of the boundary line as established by the 1899 Arbitral Award, including by doing any of the following acts: (a) purporting to extend the right to vote in any Venezuelan elections to any individuals living within that territory; (b) distributing ballot papers, poll cards, electoral materials or any other physical or electronic electoral documents to individuals within that territory;

text: (c) presenting or naming or otherwise supporting candidates for any Venezuelan elections within that territory; (d) establishing polling stations, counting stations or electoral offices within that territory; (e) purporting to establish, elect or appoint any office of governor, legislative council, deputies or any other legislative or governmental official in respect of any part of that territory; and

text: (f) communicating directly or indirectly with any residents in that territory in regard to any elections planned by Venezuela.

text: 2. Venezuela shall refrain from taking any action which purports to annex de jure or de facto any territory on Guyana’s side of the boundary line established by the 1899 Arbitral Award, including by incorporating ‘Guayana Esequiba’ as part of Venezuela.

text: 3. Venezuela shall refrain from taking any action which would seek to modify the situation that currently prevails in the territory in dispute, whereby Guyana administers and exercises control over that area.”

text: The Registrar immediately communicated a copy of Guyana’s Request to the Government of Venezuela, in accordance with Article 73, paragraph 2, of the Rules of Court. By letters dated 7 March 2025, the Registrar informed the Parties that the Court would hear them on Guyana’s Request by means of a written procedure and that, to that end, the Court had fixed 17 March 2025 as the time-limit for Venezuela to present written observations on Guyana’s Request and 24 March 2025 as the time-limit for Guyana to submit any comments it might wish to make on Venezuela’s written observations.

text: By a letter dated 10 March 2025, the Agent of Venezuela stated that Venezuela does not recognize the jurisdiction of the Court to entertain Guyana’s Request and made some observations on the Request. He further conveyed his Government’s concern that the written procedure envisaged by the Court provided Guyana with two opportunities to present arguments in writing, as, in addition to submitting its Request, it was open to the Applicant to present written comments on Venezuela’s written observations.

text: By letters dated 14 March 2025, the Registrar informed the Parties that the Court had decided to grant Venezuela a further possibility to present arguments in writing, by giving it the opportunity to submit, by 31 March 2025, any written comments it might wish to make on Guyana’s comments on Venezuela’s written observations.

text: Within the time-limit thus fixed, namely 17 March 2025 (see paragraph 14 above), no further written observations were received from Venezuela on Guyana’s Request. By a letter dated 20 March 2025, the Registrar informed Guyana accordingly.

text: By a letter dated 24 March 2025, the Agent of Guyana informed the Court that, since Venezuela had not filed written observations within the time-limit fixed by the Court, and in view of the urgency of the situation, Guyana did not intend to make a further written submission, and asked that the Court proceed to make its decision on the Request for the indication of provisional measures based on the documents already before it.

text: By a letter dated 28 March 2025, Venezuela reiterated its position as set out in its letter of 10 March 2025, according to which the Court lacked jurisdiction to rule on the territorial dispute between Guyana and Venezuela and thus to entertain Guyana’s Request for the indication of provisional measures.

text: I. General Observations

text: The Court considers that Guyana’s Request of 6 March 2025 is a request for the modification of the Court’s Order of 1 December 2023. For this reason, the Court must determine whether the conditions set forth in Article 76, paragraph 1, of the Rules of Court have been fulfilled. That paragraph reads as follows: “At the request of a party or proprio motu, the Court may, at any time before the final judgment in the case, revoke or modify any decision concerning provisional measures if, in its opinion, some change in the situation justifies such revocation or modification.”

text: The Court must ascertain whether, taking account of the information that the Parties have provided with respect to the current situation, there is reason to conclude that the situation that warranted the decision set out in its Order of 1 December 2023 has changed since that time. If so, it will consider whether such a change justifies a modification of its earlier decision concerning provisional measures. Any such modification would be appropriate only if the general conditions laid down in Article 41 of the Statute of the Court were also met in this instance (see Application of the

text: (Armenia v. Azerbaijan), Request for the Modification of the Order of 22 February 2023 Indicating a Provisional Measure, Order of 6 July 2023, I.C.J. Reports 2023 (II), p. 406, para. 16).

text: Guyana contends that its Request of 6 March 2025 is prompted “by Venezuela’s announcement that it will soon hold elections in Guyana’s sovereign territory, which Venezuela has purported to annex in violation of the Court’s Order of 1 December 2023 and fundamental norms of international law”. In particular, Guyana notes that the President of Venezuela’s National Electoral Council announced 25 May 2025 as the date for elections of a governor of “Guayana Esequiba”, along with its legislative council and deputies. Guyana points out that the conduct of elections requires certain preparatory acts, all of which would take place in the disputed territory before the date announced for the election. According to Guyana, all such acts in the disputed territory would “amount to a blatant exercise of purported sovereignty by Venezuela in violation of Guyana’s sovereignty, territorial integrity and political independence, as well as the Court’s Order of 1 December 2023”.

text: Guyana notes that, since the adoption of the Court’s Order of 1 December 2023, and despite the provisional measures indicated, the Government of Venezuela held a “Consultative Referendum” on 3 December 2023 and subsequently published various announcements relating to “the Protection and Defense of the Guayana Esequiba”. Guyana observes that on 8 December 2023, the President of Venezuela signed six decrees implementing the announced measures. Guyana further submits that on 21 March 2024, the National Assembly of Venezuela approved an “Organic Law” which, inter alia, purported to convert the territory in dispute into a new State of Venezuela.

text: According to Guyana, the elections planned for 25 May 2025 are intended to build upon and entrench the various measures which Venezuela has taken since the Court’s Order of 1 December 2023 and would constitute “a further stage in the purported annexation of more than two-thirds of Guyana’s territory, this time entailing Venezuela’s direct interference with the administration and control of the territory”. *

text: In its communications (see paragraphs 15 and 19 above), Venezuela submits that Guyana’s Request constitutes an abuse of process, which “intends to instrumentalize the Court, exposing a mere collection of grievances that form part of a long-standing media campaign to discredit and tarnish the reputation of Venezuela”. It alleges that the matters referred to by Guyana, in particular the holding of periodic regional elections in Vene zuela to elect public officials in all of its States, “fall within the domaine réservé (reserved domain) of the Bolivarian Republic of Venezuela and are duly regulated in its Constitution and domestic legislation”. Consequently, Venezuela contends that the Court lacks jurisdiction to entertain this Request and asks the Court “to reject Guyana’s request for the indication of provisional measures or, failing that, invite Guyana to withdraw it”.

text: The Court observes that, in its Order of 1 December 2023, it described the context of the dispute between the Parties and the situation which warranted the indication of provisional measures at the time. In particular, it noted that the strong tension that characterized the relations between the Parties, the referendum planned for 3 December 2023 and various official statements made in that context presented a serious risk of Venezuela acquiring and exercising control and administration over the territory in dispute (Arbitral Award of 3 October 1899 (Guyana v. Venezuela), Provisional Measures, Order of 1 December 2023, I.C.J. Reports 2023 (II), pp. 660-662, paras. 13-15; pp. 665-666, paras. 34-37).

text: Following the Court’s Order of 1 December 2023, Venezuela held a “Consultative Referendum” on 3 December 2023 concerning the territory in dispute and its population. The Court understands that, after the referendum, on 8 December 2023, the President of Venezuela signed six decrees aimed at acquiring and exercising control and administration over the territory in dispute. In particular, the President: (i) decided to create a “Comprehensive Defense Zone” in the territory in dispute; (ii) designated a Venezuelan official as the “Sole Authority of the Guayana Esequiba”; (iii) authorized two State-owned companies to grant concessions for the exploitation of oil and minerals in disputed areas; (iv) ordered the incorporation of the territory in dispute in Venezuela’s official maps; (v) declared environmentally protected areas and natural parks in the territory in dispute; and (vi) established the “High Commission for the Defense and Recovery of the Guayana Esequiba”.

text: The Court further notes that on 21 March 2024, the National Assembly of Venezuela adopted an “Organic Law for the Defense of Guayana Esequiba”, which entered into force on 3 April 2024. That law, inter alia, creates the State of “Guayana Esequiba” within the territorial and political organization of Venezuela; vests Venezuela with executive, legislative and judicial prerogatives over “Guayana Esequiba”; orders that every map of Venezuela include the territory of the State of “Guayana Esequiba” as an integral part of its national territory; authorizes the President of Venezuela to prohibit the conclusion of contracts with legal entities that operate, or collaborate in operations, in the territory of “Guayana Esequiba” based on concessions or authorizations unilaterally granted by Guyana in violation of the Geneva Agreement and international law; and authorizes the President of Venezuela to adopt the necessary reciprocal measures, in accordance with international law, to guarantee the rights of Venezuela over the territory of “Guayana Esequiba”.

text: The Court observes that on 7 January 2025, the President of Venezuela announced that elections would be organized in which “the people of Guayana Esequiba” would elect the “Governor of Guayana Esequiba State”. On 19 February 2025, the President of the National Electoral Council of Venezuela announced that the elections for a governor, along with the legisrunning head content lative council and deputies for “Guayana Esequiba”, initially planned for 27 April 2025, would be held on 25 May 2025.

text: In light of the foregoing, the Court observes that, since the delivery of its Order of 1 December 2023, the serious risk of Venezuela acquiring and exercising control and administration over the territory in dispute has significantly increased as a result of its adoption of measures that are intended to secure control over that territory. The Court considers that the presidential decrees of 8 December 2023, the adoption of the “Organic Law for the Defense of Guayana Esequiba” and the announcement of the preparation for and conduct of elections in the territory in dispute, which Guyana currently administers and over which it exercises control, represent grave developments which constitute a change in the situation within the meaning of Article 76 of the Rules of Court.

text: The Court is also of the view that the change in the situation described above justifies modifying the decision concerning the provisional measures set out in its Order of 1 December 2023, by further specifying its scope. However, in order to modify its earlier decision concerning provisional measures, the Court must still satisfy itself that the general conditions laid down in Article 41 of the Statute of the Court are met in the current situation.

text: II. Conditions for the Indication of Provisional Measures

text: The Court recalls that, in the present case, it has already found, in its 2020 Judgment, that it has jurisdiction to entertain the Application filed by Guyana on 29 March 2018 in so far as it concerns the validity of the 1899 Award and the related question of the definitive settlement of the land boundary dispute between Guyana and Venezuela (see paragraph 5 above). The Court cannot revisit that conclusion for the purpose of deciding on the present Request and will now proceed to consider the other requirements for the indication of provisional measures.

text: The Court further recalls that, in its 2023 Judgment, it found that it can adjudicate upon the merits of Guyana’s claims, in so far as they fall within the scope of the first subparagraph of the operative clause of the 2020 Judgment (see paragraph 7 above).

text: In its Order of 1 December 2023, the Court found that Guyana’s right to sovereignty over the territory in question was plausible (Arbitral Award of 3 October 1899 (Guyana v. Venezuela), Provisional Measures, Order of 1 December 2023, I.C.J. Reports 2023 (II), p. 663, para. 23). The Court sees no reason to depart from this finding for the purpose of deciding on the present Request. It further considers that, by their very nature, at least some of the provisional measures sought in the present Request (see paragraph 13 above) are aimed at preserving the right claimed by the Applicant that the Court has found to be plausible.

text: The Court must now consider whether the current situation entails a risk of irreparable prejudice to the plausible right claimed by Guyana and whether there is urgency.

text: The Applicant contends that Venezuela’s plan to conduct elections in “Guayana Esequiba” confirms Venezuela’s intention to acquire and exercise control and administration over that territory. Guyana submits that should Venezuela conduct such elections, there is a real risk that Venezuela would refuse to revoke its purported exercise of sovereignty over that territory and would continue to control and administer the territory as though it were its own, even if the Court were to deliver a judgment on the merits finding that the Essequibo region falls under Guyana’s sovereignty, which would cause serious and irremediable prejudice to Guyana’s rights. Guyana further submits that the need for provisional measures is urgent. It notes that the planned elections are due to take place on 25 May 2025 and will inevitably be preceded by extensive preparatory acts, including acts within Guyana’s Essequibo region affecting the Guyanese population. Guyana thus considers it necessary for the provisional measures to be indicated by the Court well before that date.

text: The Court recalls in this regard its previous finding that there was “a serious risk of Venezuela acquiring and exercising control and administration of the territory in dispute in the present case” (see paragraph 26 above), and its conclusion that “Venezuela’s expressed readiness to take action with regard to the territory in dispute in these proceedings at any moment following the referendum scheduled for 3 December 2023 demonstrates that there is urgency, in the sense that there is a real and imminent risk of irreparable prejudice to Guyana’s plausible right before the Court gives its final decision” (Arbitral Award of 3 October 1899 (Guyana v. Venezuela), Prov isional Measures, Order of 1 December 2023, I.C.J. Reports 2023 (II), p. 666, para. 37).

text: The Court notes that by adopting legislative measures and decrees concerning the territory in dispute and by announcing the holding of elections therein, the Respondent has confirmed its intention of acquiring and exercising control and administration over the territory in dispute. The acts taken by Venezuela since 1 December 2023 further confirm that the Respond ent intends to incorporate the territory in dispute into its own territory.

text: The Court observes that the acts taken or planned to be taken by Venezuela after the Court’s Order of 1 December 2023 have given rise to expressions of concern by the Security Council in a statement dated 15 April 2024 “about the possible escalation of tensions between Venezuela and Guyana”.

text: In light of the foregoing, the Court finds that the current situation arising from Venezuela’s planned elections in the territory in dispute entails a risk of irreparable prejudice to the plausible right claimed by Guyana and that there is urgency, in the sense that there is a real and imminent risk that such prejudice will be caused to those rights before the Court gives its final decision on the merits.

text: III. Conclusion and Measures to Be Adopted

text: The Court concludes, on the basis of the above considerations, that the change in the situation justifies modifying the decision set out in its Order of 1 December 2023, by further specifying its scope in light of the situation underlying the present Request.

text: The Court considers that Venezuela must, in conformity with its obligations under paragraph 45 of the Order of 1 December 2023, refrain from conducting elections, or preparing to conduct elections, in the territory in dispute, which Guyana currently administers and over which it exercises control.

text: The Court further considers that in light of the tenuous situation between the Parties, the acts recently taken or planned to be taken by Venezuela concerning the territory in dispute confirm the need for the immediate and effective implementation of the provisional measures indicated in its Order of 1 December 2023. In these circumstances, the Court finds it necessary to reaffirm the measures indicated in that Order.

text: The Court recalls that its orders on provisional measures under Article 41 of the Statute have binding effect and thus create international legal obligations for any party to whom the provisional measures are addressed (Application of the

text: in the Gaza Strip (South Africa v. Israel), Provisional Measures, Order of 26 January 2024, I.C.J. Reports 2024 (I), p. 29, para. 83).

text: The Court underlines that the present Order is without prejudice to any findings concerning the Respondent’s compliance with the Order of 1 December 2023.

text: For these reasons, The Court, (1) Unanimously, Reaffirms the provisional measures indicated in its Order of 1 December 2023, which should be immediately and effectively implemented;

text: (2) By twelve votes to three, Indicates the following provisional measure: Pending a final decision in the case, the Bolivarian Republic of Venezuela shall refrain from conducting elections, or preparing to conduct elections, in the territory in dispute, which the Co-operative Republic of Guyana currently administers and over which it exercises control. in favour: President Iwasawa; Vice-President Sebutinde; Judges Tomka, Abraham, Yusuf, Brant, Gómez Robledo, Cleveland, Aurescu, Tladi; Judges ad hoc Wolfrum, Couvreur; against: Judges Xue, Bhandari, Nolte.

text: Done in French and in English, the French text being authoritative, at the Peace Palace, The Hague, this first day of May, two thousand and twenty-five, in three copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of the Co-operative Republic of Guyana and the Government of the Bolivarian Republic of Venezuela, respectively.

text: (Signed) Iwasawa Yuji, President. (Signed) Philippe Gautier, Registrar.

text: Judges Xue, Bhandari and Nolte append a joint dissenting opinion to the Order of the Court; Judge Brant appends a declaration to the Order of the Court; Judge ad hoc Wolfrum appends a declaration to the Order of the Court; Judge ad hoc Couvreur appends a separate opinion to the Order of the Court. (Initialled) I.Y. (Initialled) Ph.G.

text: CONTENTS OF THE FASCICLE

text: Page Arbitral Award of 3 October 1899 (Guyana v. Venezuela) Order of 1 May 2025 . . . . . . . . . . . . . . . . . . . . . . . . . 13 Joint dissenting opinion of Judges Xue, Bhandari and Nolte . . . . 25

text: Declaration of Judge Brant . . . . . . . . . . . . . . . . . . . . . 28 Declaration of Judge ad hoc Wolfrum . . . . . . . . . . . . . . . 30 Separate opinion of Judge ad hoc Couvreur . . . . . . . . . . . . 34