An 1896 cartoon from an American newspaper, following Britain’s agreement to go to arbitration.
President Cleveland’s message On July 20, 1895, following further Venezuelan appeals to the US Government, Secretary of State Richard Olney dispatched a note to Britain, which, on account of its lengthy disquisition on the application of the Monroe Doctrine (among other things) has become known as the Olney Corollary. He asked Britain to submit the dispute to arbitration, and warned that if she intended to disappoint him, President Clevelend would wish to be informed early so he could lay the matter before Congress.
Lord Salisbury did disappoint him, and the US President, in a special message to Congress on December 17, 1895, made one of the more famous appeals to that body. Invoking the Monroe Doctrine he asked first for the power to appoint a Commission to investigate what the true divisional line between the two countries was, and warned that after the report had been submitted it would be the duty of the United States to resist “the appropriation by Great Britain of any lands or the exercise of governmental jurisdiction over any territory which after investigation we have determined of right belongs to Venezuela.”
It was something of a bombshell, because of its implication of a threat of war. It caused great ferment in the United States, and four days later, Congress, in an unusual display of celerity, passed a law setting up a Commission to investigate the “true divisional line” between Venezuela and British Guiana.

The US Commission
Five men were appointed to the Commission and they undertook some important research on the geography, history and cartography relating to the question. Subsequently, their research – although no conclusions about where the boundary was – was published.
Two of the men who sat on the Commission – Justice David Josiah Brewer, and its Secretary, Severo Mallet-Prevost, were to reappear later at the Paris Tribunal, one as an arbitrator and the other as a junior counsel for Venezuela.
Treaty of Washington, 1897
The US Commission never published any findings about the true divisional line for the simple reason that it never completed its work. Before it was able to do so, Britain, burdened with problems elsewhere in the world, and reluctant to face down the United States, acceded to arbitration.
She agreed to sign a treaty with Venezuela, which would contain the terms of reference for an arbitral body, and its rules of procedure.
In brief, the treaty provided for a tribunal of five, two to be selected by the British, one by the United States, one by Venezuela and the fifth by all four, or by the King of Norway and Sweden if they could not agree.
Two dates were taken as relevant to the issue: the boundary at the time when the British acquired the Dutch colonies in 1803, confirmed in 1814, and the date 1847.
This latter date was arrived at as a consequence of the prescription rule, which in effect stated that the settlement of territory or exclusive political control over it for the fifty years prior to the signing of the treaty was sufficient to make good title.
The arbitrators were also required to apply the principles of international law, and their decision was to be determined by a majority. Under the terms of Article XIII the parties to the treaties were committed to regard the award as a “full, perfect and final settlement… “

The Paris Tribunal
The arbitrators, under the terms of the treaty, were to be appointed by Britain’s Judicial Committee of the Privy Council (two), the Justices of the US Supreme Court (one), and the Venezuelan President (one). The President of the tribunal was to be selected by all of them, and if they could not agree on a candidate, the King of Norway and Sweden would act in that capacity.
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 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, who 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 counsels 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 counsels 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. 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.
The memorandum
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 counsels, favoured by the Venezuelans, 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 accusations. 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 1899 award by an arbitral tribunal denying Venezuela the territory she claims justified on the basis of the evidence presented? The answer is an unequivocal, yes.
(Source:  Guyana News and Information.)