Inter-American Rights Watch

ICJ Issues Provisional Measures to Protect Guyana Territorial Rights Pending Court Decision on Validity of 1899 Border Agreement

By: Megan Mary Qualters

Impunity Watch Staff Writer

THE HAGUE, The Netherlands – The International Court of Justice (hereinafter ICJ) ordered provisional measures to protect Guyana’s rights in highly contentious territory dispute with Venezuela.

 
Photo image of Venezuelan government revealing a map indicating the “Guayana’s Esequiba” as Venezuelan territory | Photo Courtesy of the New York Times, see Gaby Oraa/Getty Images.
  

Procedural History

In March 2018, the Co-operative Republic of Guyana’s government (hereinafter “Guyana”) filed proceedings against the Bolivarian Republic of Venezuela (hereinafter “Venezuela”). The legal issue is whether the Arbitral Agreement of 1899, which establishes the border line between Guyana and Venezuela, in a region called the “Guayana Esequiba,” is legally valid. Guyana claims it is valid and thus grants the Esequiba to Guyana, but Venezuela claims it is void and argues that the Esequiba is Venezuelan territory.

On October 23, 2023, Venezuela published a list of five questions it planned to use in a “Consultative Referendum,” to be held on December 3, 2023. The questions asked for support in rejecting the validity of the 1899 Award, the ICJ’s jurisdiction, and advocated for an accelerated plan to incorporate the Esequiba into Venezuela.

On October 30, 2023, in response to Venezuela’s questions and referendum plans, Guyana requested the ICJ issue provisional measures to prevent Venezuela from publishing its questions, ultimately asking the ICJ to protect its rights to the Esequiba region while the validity of the 1899 Award is pending.

On November 14 and 15, 2023, the ICJ heard oral arguments from both parties regarding the issue of provisional measures. Guyana asked the Court to order the following provisional measures, while Venezuela asked the court to reject the request.

  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 . . .
  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.”

Required Elements of an ICJ Provisional Measure

The ICJ, after affirming its 2020 Judgement that it has the necessary jurisdiction to adjudicate the claims of Guyana, turned to Article 41 of the ICJ Statute, which focuses on the preservation of rights claimed by parties in a case. To issue provisional measures the Court must find (1) the rights claimed by a party is plausible, (2) there is a link between the right claimed and the provisional measure requested, and (3) without the provisional measure “there is a real and imminent risk that” (4) “irreparable prejudice will be caused to the rights claimed before the Court gives its final decision.”

Here, the Court found that Guyana’s right to “preservation and protection of its right to the territory” is plausible. The Court notes that a right’s existence need not be proven, it only need be asserted plausible. Therefore, the Court need not determine which country has a right to the territory, but only that Guyana could have a plausible right to the Esequiba. The Court held that the existence of the 1899 Award and the dispute itself are sufficient to give Guyana a plausible right to the Esequiba.

Moreover, the Court found there is a link between the plausible right and the provisional measure sought. Guyana “seeks to ensure” that Venezuela does not prepare to, or exercise control of, the territory awarded to Guyana in the 1899 Award, which the ICJ considers a measure “aimed at protecting Guyana’s right which the Court has found plausible.”

Lastly, the Court turned to “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” as sufficient evidence to find that Guyana is at serious risk of irreparable prejudice, and that the risk of this is urgent in a real and imminent sense.

ICJ’s December 1 Order

Due to the reasons above, the Court found it necessary to issue a provisional measure to protect Guyana’s right to the Esequiba.  However, the Court found the measures provided need not match exactly what Guyana requested. Its resulting provisional measure consisted simply of ordering Venezuela to refrain from taking any action “which would modify the situation that currently prevails in the territory in dispute” and that both Parties “shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.” The ICJ has yet to determine the validity of the 1899 Award.

For further information, please see:

ICJ – Order of 1 December 2023 – 1 Dec. 2023

ICJ – Arbitral Award of 3 October 1899 (Guyana v. Venezuela) Latest Developments

New York Times – Venezuela Renews Claims to Part of Guyana, the Oil-Rich ‘Second Qatar’ – 21 Dec. 2023

Family Requests IACHR Recognition of Columbian Human Rights Violations

By: Paola Andrea Suárez Luján

Impunity Watch Staff Writer

BOGOTÁ, Columbia – It has been 39 years since the imprisonment and murder of Luis Fernando Lalinde, a young college student from Colombia and member of the Communist Party. He was detained without due process on October 3rd, 1984, tortured, and executed by members of the Colombian military. In November 2023, his family petitioned the Inter-American Commission on Human Rights to recognize the human rights violations committed by the Columbian state.

 
Photo of Luis Fernando Lalinde Lalinde | Photo courtesy of Comisión Intereclesial de Justicia y Paz.
  

The truth of the circumstances of his death was the life search of his mother Fabiola Lalinde, who spearheaded Operation Siriri, a search campaign for the truth of his disappearance that lasted more than 30 years. Fabiola Lalinde’s efforts come to life in the hundreds of handwritten notebooks, family photos, and more than 1200 documents recording all information regarding the disappearance of his son. Almost four decades after his death, Luis Fernando Lalinde’s family continues their search for the truth. 

In 1988, the Inter-American Commission on Human Rights adopted Resolution 24/87, declaring the Colombian State responsible for the detention, torture, and extra-judicial murder of Luis Fernando Lalinde. They urged Colombian authorities to investigate and find the people responsible for his murder. However, it was not until 1992 that Lalinde’s family was presented with his remains, and it was in 1996, exactly 4,428 days after his disappearance, when American scientists confirmed with 99.999% certainty that those remains belonged to Luis Fernando Lalinde. The identity of the perpetrators of his detention and extra-judicial execution, however, remains unknown to the Lalinde family.

For the lack of action from the Colombian government, in 1999 the Colombian Commission of Jurists requested the Inter-American Commission on Human Rights to declare the State responsible for the harm to the psychological and moral integrity of Lalinde’s family members. They alleged that the State deliberately obstructed Lalinde’s family’s access to adequate remedies for the investigation and punishment of those responsible for his detention and execution, depriving them of their right to obtain justice.

Lalinde’s case investigation was performed mainly under military criminal jurisdiction. The Commission stated in its Merits Report No. 292/21 that, by leaving the investigation to military jurisdiction, the Colombian State violated judicial guarantees and protections. There was no independent and impartial authority in the case that could allow for a fair investigation and adequate sanction of the people responsible for the acts committed against Luis Fernando Lalinde.

Following that petition, the Colombian Commission of Jurists, representing Luis Fernando Lalinde’s family members and following his mother’s lifelong mission, has requested the Inter-American Court on Human Rights on November 6th of this year, on behalf of the Commission, to declare the Colombian State responsible for the violation of the right to personal integrity, judicial guarantees and judicial protection in detriment to Fabiola Lalinde, Jorge Iván Lalinde, Mauricio Lalinde, and Adriana Lalinde.

Lalinde’s family is requesting that the Court order the Colombian State to fully redress the human rights violations committed against them and that measures be adopted so they can receive comprehensive medical care. Following a 40-year-long plea, they also ask that the Colombian government conduct and conclude an impartial and effective judicial investigation to establish the circumstances of the disappearance and death of Luis Fernando Lalinde, as well as identify and sanction all individuals involved in the events.

The ongoing fight for truth by the Lalinde family is accompanied by the families of more than 60,000 disappeared individuals in Colombia in the last 45 years. The request to the Court calls for an analysis of the impact of the prolonged impunity of serious human rights violations on the personal integrity of the victim’s families.

For further information, please see:

IACHR – Petition Before the Inter-American Court Of Human Rights Case 12,362 – 6 Nov. 2023

CCJ – Luis Fernando Lalinde was Disappeared 37 Years Ago by Military Forces – 3 Oct. 2021

El Colombiano – The Long Flight of the Ciriri, the History of Fabiola Lalinde – 13 May 2022

Hacemos Memoria – “The Archive of a Ciriri Has to be Uncomfortable for a Country as Unjust and Violent as Ours”: Fabiola Lalinde – 17 Apr. 2018

Cero Setenta – Operation Siriri or How to Find a Missing Child – 30 Apr. 2018

Centro Nacional de Memoria Histórica – Until We Find Them. The Drama of Forced Disappearance in Colombia – 2016

UNAL – Data base: The Fabiola Lalinde and Family Fund – 20 Apr. 2022

Chile to Vote on Whether to Adopt New Constitution with Right to Life Provision

By: Carlos Dominguez Scheid

Impunity Watch Staff Writer

SANTIAGO, Chile – On November 7, 2023, the Chilean Constitutional Council presented President Gabriel Boric with a proposal of a new constitution that includes a right to life provision and outlaws the death penalty.

 
President Gabriel Boric is presented with the proposal of the New Constitution by Beatriz Hevia, President of the Constitutional Council | Photo courtesy of the Associated Press
  

The current Chilean Constitution, in effect since 1981 and approved by referendum in 1980 during Augusto Pinochet’s dictatorship, has been a point of contention due to its undemocratic origins despite undergoing significant reforms in 1989 and 2005. In response to major social unrest in October 2019, political parties agreed to initiate the process of drafting a new constitution, seeking to address the popular demands for improvements in the quality of life. In a 2020 referendum, with a 50.95% turnout, 78.28% of voters supported the creation of a new constitution and endorsed the establishment of a new, independent body, distinct from Congress, tasked with drafting it. The election for the 155 members of the Constitutional Convention was held in May 2021, and the results yielded a supermajority for the left and far left. In the September 2022 referendum, the people rejected their drafted Constitution, with 62% voting against it. The referendum had a historic 85.86% turnout.

Subsequently, a new political agreement led to a different process, involving a Commission of Constitutional Experts appointed by Congress to prepare a draft constitution. This was to be reviewed and voted on by the Constitutional Council, a 50-member body elected in May 2023. With a supermajority held by the right and center-right, the Council is poised to introduce changes to the proposed constitution.

Article 4.1 of American Convention of Human Rights (About the Right to Life), from 1969, states that:

“Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.”

In Chile, the current Constitution states that:

“The Constitution ensures to all persons the right to life and to the physical and mental integrity of the person. The law protects the life of the one about to be born. The death penalty may only be instituted for a crime established in a law approved by a qualified quorum.” (Article 19 N° 1)

The Commission of Constitutional Experts proposed the following change:

“The Constitution ensures to all people the right to life. The death penalty is prohibited.”

The Constitutional Council’s final proposal, which will be voted on in the December 17th Referendum, states:

“The Constitution ensures to all people the right to life. The law protects the life of the one who is to be born. The death penalty is prohibited.” (Article 16 N° 1)

This constitution is the first in Chile’s history to prohibit the death penalty. If approved, it would close the debate on this issue. Although the death penalty was abolished in the Penal Code in 2001, it remains in effect for military crimes during wartime. This has allowed for legislative proposals to reintroduce it in the Penal Code, arguing that Chile has not fully abolished it and therefore is not bound by Article 4.3 of the American Convention on Human Rights.

The issue about the protection of the right to life of the unborn was subject to a strong debate. In Chile, abortion is governed by the Penal Code and the Sanitary Code. A total ban on abortion was implemented in 1989, during the last year of the dictatorship, through an amendment to the Sanitary Code. It was only in 2017 that abortion was legalized again, but strictly under three distinct situations: if the woman’s life is at risk, if the fetus is diagnosed with a condition that renders it nonviable outside the uterus, or in cases where the pregnancy has occurred due to rape, with the gestation period capped at twelve weeks (fourteen weeks for those under 14 years of age). This legislative change, stemming from a constitutional mandate ​to protect ‘the life of​ the one about to be born,’ was hotly debated. Ultimately, the Constitutional Court upheld the legality of this limited decriminalization of abortion in a 6-4 decision.

The right and center-right dominated Council proposed a key change to the current constitution and to the draft of the Commission of Constitutional Experts, focusing on enhancing the protection of the unborn. In the debate, ​Article 4.1 of the American​ ​Convention on Human Rights​ was referenced. The distinction between ‘the law protects the life of the one about to be born’ and ‘the law protects the life of the one ​who is about to be born​’, while subtle, underscores crucial legal and ethical interpretations regarding the protection of the nasciturus. The use of ‘who’ suggests personhood, advocating for the recognition of the unborn as individuals with rights from conception. This implies a broader scope of protection, viewing the fetus as an individual entity, rather than an extension of the pregnant woman.

A referendum was announced for December 17, 2023, where Chileans will vote on whether to adopt the new constitution.

For further information, please see:

Reuters – Chile voters sour on right-wing constitution as abortion clause stirs debate – 6 Oct. 2023

Bloomberg – Chile’s Right Takes Aim at Abortion, Gender in Amendments to Constitution Draft – 18 Jul 2023

Le Monde – Chile’s draft constitution calls into question right to abortion – 24 Sept 2023

The Guardian – Chile’s right wing presents draft conservative constitution – 7 Nov 2023

AP News – Chile president calls for referendum on new constitution proposal drafted by conservative councilors – 7 Nov 2023

Inter-American Commission of Human Rights – The Death Penalty in the Inter‐American Human Rights System: From Restrictions To Abolition – 31 Dec 2011

Rodrigo Delaveau Swett – Constitution of Chile – 2021

 

IACHR Releases Resolution Finding Displaced Triqui Families at Risk of Damage to Their Rights, Requests Action from Mexican Government

By: Alexa Connaughton

Journal of Global Rights and Organizations Associate Articles Editor

SAN JOSE, Costa Rica – The IAHCR has recently released a resolution finding that Triqui families who were displaced from their villages are at “risk of irreparable damage to their rights” and requesting that the state of Mexico take precautionary measures to protect the displaced Triqui families.

 
Venustiana, a teacher, in front of one of the protest banners commemorating one year since the forced displacement. | Photo Courtesy of Pie de Página and Isabel Briseño.
  

In December of 2020 a group of about 100 people, all part of a paramilitary group called MULTI (Triqui Struggle Unification Movement), attacked two Triqui villages, Tierra Blanca and Copala in Oaxaca, a state in southern Mexico. The attack started the morning of December 26th, when the paramilitary group began shooting into houses, killing, injuring, and kidnapping residents. Families were forced to flee in secret, resulting in the displacement of a total of 144 Triqui families. Some families were told to return to their homes, but no protection or preventative measures were offered by the government. Another attack occurred less than a month later. Following the December attack, there have been several instances of violence with little to no intervention by the government.

In 2020, it was estimated that approximately 4,077 indigenous people had been forcibly displaced from their home territories in Mexico. In Oaxaca alone, an estimated five indigenous communities were displaced, comprising 33 percent of the 4,077 total indigenous people. Meanwhile, 35 percent of the Triqui population has been displaced by violence.

Many of the Triqui families who were displaced went to the capital city of Oaxaca, Mexico City, and a nearby village of Yosoyuxi, where they have been living on the streets while they wait to be heard by authorities. Since the displacement in December of 2020, groups such as the MULTI have formed and conducted demonstrations and protests to seek help from the Mexican government for the Triqui families to return to their homes. These efforts have been met with more violence. During one sit in in Mexico City, people were forcibly removed and taken to shelters where they were met with deplorable conditions and no path to return to their homes.

In the course of their investigation, the IACHR heard arguments from the state of Mexico regarding their actions in response to these violent events. Mexico argues that they have given attention to the Triqui conflict as well as provided food, and health and economic support.  After investigating the issue, the IACHR found that there was a serious threat the Triqui families rights. The IACHR requested that Mexico adopt the measures necessary to safeguard the life and integrity of Triqui families, as well as take the security measures necessary to guarantee that the families can return to their communities. Finally, the IACHR requested that Mexico report on investigation of the events in an effort to prevent future attacks.

For further information, please see:

Inter-American Commission on Human Rights – Resolución 62/2023 – 27 Oct. 2023

Inter-American Commission on Human Rights, OAS – CIDH Otorga Medidas Cautelares a Familias Indígenas Triquis Desplazadas en México – 1 Nov. 2023

Latin America Reports – Mexico City Police Break Up Encampment of Displaced Triqui People Near National Palace – 29 April 2022

Pie de Página – Displaced Triquis in Mexico City Demand Safe Return to Their Land – 7 Feb. 2022

Pulse News Mexico – Massive Displacement of Oaxaca’s Triqui Disregarded by Government – 19 April 2022

 

 

 

 

 

                                                           

ICJ Hears Oral Arguments on Whether to Issue Provisional Measures Against Venezuela’s Consultative Referendum Questions

By: Megan Mary Qualters

Impunity Watch Staff Writer

THE HAGUE, Netherlands – The Co-Republic of Guyana (Guyana) is asking the International Court of Justice (ICJ) to issue provisional measures against the Bolivian Republic of Venezuela (Venezuela) regarding their border conflict and the Agreement that governs it. The ICJ, after establishing its jurisdictional authority in this situation, heard initial oral arguments from each country on Tuesday, November 14th and Wednesday, November 15th, 2023.

 
Photo map of Venezuela and Guyana and the region known as the “Guayana Esequiba.” | Photo courtesy of WLRN Public Radio and Television.
  

Background:

The Arbitral Agreement of 1899 (Agreement) established the boundary line between the “Colony of British Guiana” (Guyana) and the “United States of Venezuela” (Venezuela). However, a strip of land called the “Guayana Esequiba” is highly contested territory between the two countries. The Agreement establishes that the Guayana Esequiba is administered to Guyana, but Venezuela claims that the Guayana Esequiba is its own territory. The dispute originates from the colonial powers; Venezuela declared its independence from Spain in 1811, and Guyana only received independence from the United Kingdom in 1966. Venezuela contends that the Agreement was fraudulently imposed, despite the fact that it did not contest the border upon the Agreement’s inception. The dispute between the countries is before the ICJ upon referral from the Secretary-General acting within the authority of the Geneva Agreement of 1966. The Geneva Agreement established how a peaceful settlement was to be reached between border controversies should countries not reach their own agreement; Venezuela and Guyana are both a party to this agreement.

What’s New:

On October 3rd, 2023, Venezuela’s National Electoral Council published a list of five questions that it plans to use in a public “Consultative Referendum” on December 3rd, 2023. Notably, the first question is “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 strip us of our Guayana Esequiba?” The third question is about ignoring the jurisdiction the ICJ has over this controversy. The fifth question calls for the creation of a Guayana Esequiba State with a plan to present that territory’s citizens with Venezuelan citizenship, and incorporate it into Venezuelan territory. Guyana asserts that these questions reflect Venezuela’s intention to unilaterally and unlawfully seize, annex, and incorporate the Guayana Esequiba. Therefore, Guyana asked the ICJ on October 27th, 2023 to issue provisional measures that would prohibit Venezuela from publishing questions and any other attempt to “seize annex or incorporate” any land that belongs to Guyana. The ICJ agreed to hear oral arguments regarding this issue on November 14th and 15th, 2023.  

What is a Provisional Measure Issued by the ICJ:

A provisional measure is an interim order issued for immediate protection of an individual’s rights under a treaty or convention, if those rights are at “a real imminent risk that irreparable prejudice will be caused to the rights claimed, before the Court gives its final decision, of suffering irreparable prejudice absent enactment measures.”

Guyana’s Call for Urgent Action:

In Guyana’s request for provisional measures from the ICJ, Guyana argues that if Venezuela holds the Referendum on December 3rd, it can anticipate being annexed unlawfully. Guyana argues that if annexation happens, it will be irreparably prejudiced in the ICJ proceedings regarding the validity of the Agreement. Furthermore, the Guyana argues that it will be unable to recover even if the ICJ later holds the Agreement to be valid or settles the dispute in a way which grants Guyana any part of the Guayana Esequiba.  Guyana urges that according to Article 41(1) of the Statute of the ICJ, the ICJ must issue provisional measures.

For further information, please see:

United Nations – Agreement to Resolve the Controversy over the Frontier between Venezuela and British Guiana (Geneva Agreement) – May 6 1966

ICJ – Arbitral Award of 3 October 1899, (Guyana v. Venezuela) – Accessed November 9, 2023

UN: Political and Peacebuilding Affairs – Boarder Controversy between Guyana and Venezuela – ND

ICJ – Case Concerning Arbitral Award of 3 Oct. 1899, (Guyana v. Venezuela)

Lieber Institute – The ICJ’s Provisional Measures Order: Unprecedented – Mar. 17, 2022

ICJ – Press Releases – Nov. 9, 2023

WLRN – Venezuelans Say Most Of Guyana Is Theirs. Guyanese Call That A ‘Jumbie’ Story – Sept. 14, 2021