What part of "full, perfect, and final" do you find difficult to understand?

The thing Venezuelans fail to grasp about the Essequibo.

The idea that El Esequibo es nuestro may be the one political proposition to command effective unanimity in Venezuela. After last Sunday’s referendum when the Maduro regime announced 95% of voters had backed his aggressive claim on the territory, I was left to ponder the bitter reality that this is the one regime figure I don’t instinctively distrust. Esequibo revanchism has proven to be a hardy perennial in Venezuelan political culture: a reliable go-to for politicians hoping to rally a bit of nationalist fervor. Narratives of victimization will do that, it turns out.

I’ve long been in the uncomfortable position of disagreeing vehemently with this consensus view. As of 2023, Venezuela’s legal claim to the territory is extremely weak. Though a series of diplomatic cludges have been agreed since 1961 to give some semblance of verisimilitude to Venezuela’s “claim to have a claim” over the territory, the underlying dispute is settled, and the evidence Venezuela brings forward to question it is not even evidence, it’s a conjecture by one of its own lawyers.

The phantom memo

Very, very long story short, the Venezuelan claim the amazon hangs almost entirely on a single document known as the Mallet-Provost Memorandum. The document was written by a junior member of the Venezuelan delegation to the 1899 arbitral panel that awarded the territory to Britain: a young, later very successful American jurist by the gloriously 19th century name of Severo Mallet-Prevost. In his memo, Mallet-Provost, explains the reasons why he came to believe Britain and Russia had cooked up a diplomatic deal between them to award the bulk of the territory to Britain, making the arbitral procedures a bit of a sham.

Now, a few things. The Mallet-Prevost Memo is sometimes treated as though it was a sort of contemporaneous Note-for-File of the 1899 arbitral panel. Not at all. Mallet-Prevost wrote his Memorandom a full 45 years after the events, in 1944. The young lawyer of 39 who had been at the panel had become an 83 year old eminence grise of Boston’s legal aristocracy. Perhaps he had carried this dark secret with him all those years. But memories are fickle. At any rate, Mallet-Prevost could not be cross-examined on his intentions in writing the memorandum, because he left strict instructions that it be published only after his death.

Given the 50 year lag between the events and the publication, investigating the truth of Mallet-Prevost’s allegations has proven much harder: by the time it was discovered that there could be a dispute, all the principals were dead. Perhaps some enterprising British diplomatic historian can dig up evidence that has eluded his predecessors, but this now seems unlikely.

In his memo Mallet-Prevost, very much the lawyer, never goes so far as to claim to have actual evidence for his suspicions. As Guyana has rightly noted, Mallet-Prevost bases his hypothesis solely on a single conversation with the American Arbitrators as recalled five decades later, and on his claim that one of the British Arbitrators, Lord Justice Collins, had exhibited what he described as a noticeable “change” in his demeanour following a recess mid-way through the arbitral proceedings. What we have is a hot-shot young American lawyer reading the tea leaves, not evidence.'

Tsarist Russia is a player here because the “impartial” head of the 1899 arbitration panel had been a Russian diplomat, Friederich Martens. This at a time when Queen Victoria still sat on her Imperial throne and Russia’s Tsar Nicholas II was very much actively married to the queen’s grand-daughter.

Now, Russian-British relations in this period were, um, complicated as the two powers tussled for control of Central Asia. British and Russian interests were variously aligned or at odds with each others’ all around the world, but both realized with growing urgency they wouldd be forced to cooperate to contain a rising Germany. Some jungle border on the edge of a forgotten river in a bit of the old Dutch-empire the British had won almost by accident was not high on the list of priorities for either major power.

In this context, Mallet-Prevost’s supposition that there had been a deal seems not just likely but a virtual certainty. The Essequibo Dispute would have been a gimme in negotiations between these two powers, a favor Russia could do for Britain at little cost to itself beyond annoying the Americans.

It would have been almost institutional malpractice, diplomatically speaking, for Britain not to ask for this kind of favor, and for Russia not to accept such a deal. What concession Mother Russia might have extracted from Her Britannic Majesty’s government in return for Russia’s help on this file I’m sure we’ll never know.

I tend to believe that the contention Britain and Russia had cooked up a side deal before the legal proceeding is, on balance of probability, more likely true than not. It was the 19th century. That’s how the world worked then, as every party to the negotiations surely understood.

Yet the wording of article 18 of the treaty that created the 1899 award had been absolutely unambiguous: “The High Contracting Parties engage to consider the result of the proceeds of the Tribunal of Arbitration as a full, perfect, and final settlement of all the questions referred to the Arbitrators.” Consequently, the treaty does not propose any mechanism for later revision of the arbitral decisions.

As the basis for an attempt to replay the 1897 arbitration, the Mallet-Prevost Memorandum is just ludicrously weak evidence. I think you’ll find that in most courts of law, you’re not able to overturn a decision you had pre-committed to treat as "full, perfect, and final" on the basis of a single memo outlining an unproven hypothesis penned by one of the parties to the dispute 45 years after the fact.

The weakness of the Venezuelan position is made worse by close analysis of the memorandum conducted after its publications found a series of basic errors of fact and chronology in Mallet-Prevost’s recollection of events, including some details material to his claim. Which is perhaps natural: it had been half a century, after all.

The basic irony in all this is that while Venezuela has long portrayed itself as having been “cheated” through a process that was not strictly legal, the only evidence it can produce to support this claim is a paper as flimsy as the Mallet-Prevost Memorandum.

If that’s the evidentiary basis needed to put a border in question, then almost no border anywhere around the world is safe. Because this, I’m sorry to say, is the map of countries engaged in some form of territorial dispute somewhere around the world:

A world where “evidence” like the Mallet-Prevost memo can serve as the pretext to move to annex another country’s land is a world where no border is settled. A world where evidence like the Mallet-Prevost memo can be used to question a border is a world where we’re going to have to question 500 years of territorial chicanery by one power or another.

And this is the part of this conversation that I think is most difficult for Venezuelans to hear: by the standards of the 1890s, even Mallet-Prevost’s worst suspicions would have been on the mildest part of the spectrum of great power skullduggery. I mean, have you glanced at a map of Asia or Africa recently? All those borders were drawn by gentlemen in top hats sitting in splendid halls in Europe 180 years ago.

Which is why the Venezuelan claim to the Essequibo has always seemed to me so parocchial, and just plain dumb. Because Venezuelans do not, of course, want all the world’s border disputes reopened, just their own. They’d suffer from the chaos this would bring about as much as anyone.

Venezuelans could not will that the maxim for their claim to the Essequibo become a universal maxim, because that way lies chaos and everyone knows it.

Lines on a Map

Listen, borders are legal fictions. But we need legal fictions to be protected from chaos. The words "full, perfect, and final" have the force of law because Venezuela formally agreed that they would. We all have a stake in safeguarding every country’s territorial integrity: without such guarantees we cannot live in peace.

It’s interesting to note how the politics of the Essequibo are the only question in Venezuelan politics that gets treated the same way in 2023 as it was in 1985. Virtually everything about the country has changed since then, except for this one thing: the consensus was almost complete then, with dissident voices apologizing in advance.

I’m not going to apologize. I’m going to say it.

Venezuela should respect its neighbour’s borders. All countries should.