It is not diplomacy, it is international law: on elections in the Esequibo territory

The judicial and doctrinal basis by which the International Court of Justice (CIJ) can order Venezuela not to carry out elections or exercise administrative acts in the Esequibo territory is based on principles firmly settled in public international law, particularly in terms of territorial disputes. Esequibo is a territory in dispute between Guyana and Venezuela, under the competition of the ICJ, which means that until there is a definitive resolution, neither party can exercise acts of sovereignty over that territory. This is central: it is not only that Venezuela cannot administer the Esequibo, but also Guyana can perform acts that unilaterally consolidate its position. International law establishes that, during a pending judicial process on the ownership of a territory, the parties are obliged to refrain from acting that may aggravate or extend the dispute. This principle has been developed and affirmed multiple by the ICJ and international doctrine. The basis of this rule is to prevent the part in the best position in fact (generally the one that already has administrative control) consolidates its position, or that the claimant party tries to alter the status quo creating consummated facts.

The provisional measures, provided for in article 41 of the CIJ Statute, have as its main objective to preserve the rights of the parties while the Court is pronounced on the substance of the matter. These measures are binding, and this point was clearly affirmed by the ICJ in the case World (Germany c. United States, 2001). In that matter, Germany claimed that the United States had violated its international obligations by not notifying two German citizens sentenced to death about their right to consular assistance under the Vienna Convention. Germany requested provisional measures to stop the execution while the bottom of the litigation was resolved, and although the United States argued that these measures were only recommendations, the CIJ categorically established that the provisional measures are binding. This conclusion is crucial to understand that, if the Court orders Venezuela to refrain from making elections in the Esequibo, it is not a diplomatic council, but a legal obligation that must be fulfilled so as not to incur international responsibility.

The reason for being of these measures is to avoid irreparable damage and ensure that the final decision can be applied effectively. In the specific case of the Esequibo, if Venezuela organizes elections, census acts, deployment of forces, granting of licenses, among others, would be exercising sovereign acts on a territory whose sovereignty has not yet been determined, which contravenes the principle of non -aggravation of the litigation (non-aggravation). This principle seeks that the parties do not unilaterally change the situation while the court resolves. None of the parties have the right to administer the territory as if it were his. Make it violate procedural equality and good faith (bona fides), since it would alter the conditions under which the court must decide. Even if Guyana, who currently manages the Esequibo, performs acts that exceed a neutral administration and become acts of sovereignty not allowed, would also be violating these principles.

From the point of view of international law of state responsibility, any unilateral action that violates an international obligation (such as the provisional measures of the ICJ or the obligations of abstention in disputed territories) constitutes an internationally illicit act. According to the articles on the responsibility of the State for internationally illicit facts, prepared by the International Law Commission (CDI), this type of conduct results in responsibility, without the need for material damage: the violation of the obligation is enough. The international illicit act has certain common elements that resemble an illicit act in domestic law. For example, if in a litigation about the ownership of a private property one of the parties decides to settle in the house or rent it to third parties while the judge does not yet decide, it is violating the principle of respect for the judicial process and affecting the potential rights of the counterpart. In terms of international law, it is the equivalent of altering the status quo, which is inadmissible while the Delibera Cij.

While a territory is in dispute, none of the parties can exercise acts of full sovereignty. This does not mean that all administrative acts of routine are automatically suspended (for example, acts necessary for the daily life of the inhabitants under the practical administration of the moment), but it does mean that acts that imply statement of sovereignty or unilateral consolidation of rights can be carried out. The ICJ and the doctrine recognize the difference between merely administrative acts (for the daily management of the territory) and sovereign acts (such as making elections, passing specific laws for the region, displaying armed forces, building government facilities, etc.). The first can be tolerated under the principle of neutral administration (neutral administration), while the second is strictly prohibited because it changes the conditions of the dispute.

Another aspect that reinforces the prohibition of performing sovereign acts in the Esequibo is the protection of the jurisdictional function of the ICJ. According to the doctrine, the provisional measures not only protect the rights of the parties, but also the integrity of the judicial process itself. If during the Venezuela (or Guyana) process performs acts that do ineffective or irrelevant the final sentence, the value of the judicial decision would be undermined. The Court has affirmed that it has jurisdiction not only to resolve the dispute, but to ensure that its sentence has a practical effect. The principle of effectiveness of international judicial decisions is an essential component of the international legal system, since without it the decisions of the international courts would be merely symbolic and would lack binding force.

To better illustrate this situation, it can be compared to internal law, where there is the principle of Litigios depending on nothing (Do not innovate while there is pending litigation). If two people dispute a land before a judge, none of the parties can perform acts that involve in fact appropriate, alter it, sell it, lease it, or make decisions that harm the position of the other party. In domestic law, these acts are usually considered as violations of the duty of procedural loyalty and can derive in precautionary measures, penalties for contempt, or even criminal actions for usurpation. The objective is to ensure that the judicial process makes sense and that the sentence can be executed effectively. Similarly, in international law, parties must refrain from performing acts that can frustrate the object of the litigation. If Venezuela makes elections in the Esequibo, it would be generating a change in the situation of the territory that, although it may seem administrative, has clear implications of sovereignty. This would constitute an illicit act because it violates specific international obligations: to respect the provisional measures of the ICJ and to refrain from aggravating the dispute.

The judicial and doctrinal basis behind the prohibition of Venezuela to make elections in the Esequibo territory is based on several central principles of public international law: the preservation of the status quo during the international judicial processes, the principle of good faith in the behavior of the states, the prohibition of creating consummate facts that harm the judicial solution of the conflict, the binding nature of the provisional measures issued by the CIJ, as it was affirmed in the case. Worldand the protection of the effectiveness of the final decision of the court. This approach prevents a part from taking advantage of the procedural situation to unilaterally consolidate rights over the territory in dispute. The Esequibo territory, being low controversy, cannot be politically administered by Venezuela or by Guyana in terms of sovereign acts, even if Guyana continues to manage everyday aspects under the principle of administrative neutrality. Thus, from a perspective of international law, any act of Venezuela that implies an affirmation of sovereignty about the Esequibo – including elections – constitutes an internationally illicit act and violates the obligations assumed by Venezuela within the framework of the judicial process.

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