Secretary of State Richard Olney, who sent a ten thousand word "note" to Lord Salisbury
Lord Salisbury, who was eventually forced to agree to arbitration
President Crespo of Venezuela
But how did such a claim arise? Guyana s boundary with Venezuela was finally settled in 1899 by an arbitral tribunal which met in Paris. How is it, therefore, that 63 years later the Venezuelans came to assert that they had been despoiled of land whose soils they had never tilled, whose waters they had never fished, and whose terrain they had never peopled?
In 1949 Judge Otto Schoenrich of the U.S. law firm of Curtis, Mallet-Prevost, Colte and Mosle published a memorandum in the American Journal of International Law. The memorandum had been dictated to him by his law partner, Severo Mallet-Prevost five years earlier, with instructions that it was not to be published until after the latter s death, and even then, only at Judge Schoenrich s discretion. Mallet-Prevost, who had acted as a junior counsel for the Venezuelans at the Paris tribunal, died on December 10, 1948, and his memorandum appeared in print some six months or so later.
Perhaps this document would have remained little more than a historical footnote, had it not been for one thing. In 1962 at the United Nations, Venezuela questioned (among other things) the validity of the Arbitral Award of 1899, which had established the boundary with the then British Guiana.
She claimed in front of the seventeenth session of the UN General Assembly that Venezuelan rights to territory had been ignored by the tribunal which had settled the frontier, and that the whole award had been the result, not of a judicial process, but of a political deal.
It was no trivial allegation. The men who had sat in Paris weighing the conflicting territorial claims of the two sides over 55 gruelling sessions, had consisted of the Chief Justice of the United States Supreme Court plus another Justice of that court, two British judges and a Russian jurist of international repute. These were the men who Venezuela accused - and still accuses - of chicanery.
And what was the evidential basis of her accusations? The answer is, the Mallet-Prevost memorandum.
But was there any foundation to Mallet-Prevost's allegations, and was Venezuela really deprived in 1899 of territory which was rightfully hers? To answer these questions we shall start the story five centuries ago.
The story begins with the European occupation of the American continent. It was the Spaniards led by Alonso de Ojeda who arrived first in this portion of the planet at the very end of the fifteenth century, but they only came to inspect; they did not linger. They set up their first permanent, and for 129 years their only sustained settlement in the Guiana region (that swathe of land lying between the Orinoco and the Amazon), on the lower Orinoco river.
This was their little post of Santo Thome, founded most likely in 1595. It was at the best of times an impoverished, under-populated, ill-provisioned base, more like an outpost than a township. Under attack from the Dutch, among others, in the seventeenth century, it shifted location on the Orinoco river no less than four times. All of Santo Thome's various sites today lie well within Venezuelan boundaries.
While they had one or two abortive attempts at colonization, (including briefly in the Essequibo in the early seventeenth century), the Spaniards never succeeded in laying down durable settlements anywhere else in the Guianas until 1724, when they established a Capuchin mission station close to the Orinoco river.
Other missions were to follow, many of which were either destroyed in Carib attacks, or were abandoned owing to epidemics among their inhabitants. Those which still remained at the turn of the nineteenth century, were finally annihilated during the Venezuelan War of Independence from Spain.
The closest that any of these missions came to our Guyana was that sited on the Curumo river, a tributary of the upper Cuyuni. today, all of these early mission sites lie within Venezuelan territory.
It was the Dutch, not the Spaniards who were to establish themselves permanently in the Essequibo region, and they did this at a time when they were technically at war with Spain.
In the sixteenth century the Netherlands had come under Spanish dominion, and in 1568, the northern part of the country embarked on a war of independence against the Spanish overlord. The war was to last eighty years, during the course of which the Dutch hammered the Spaniards in the colonial theatre as well as at home, and attempted to set up colonies in the Americas.
The settlement of Kykoveral, sited on a rocky islet in the mouth of the Mazaruni river was probably founded by the Dutch in 1616, although the date is not absolutely certain. Kykoveral was more than a trading post; it was the base from which plantations were laid out on the banks of the three rivers.
In 1637, the Dutch had a settlement on the Amakura too, while by 1658 they were established in the Pomeroon at Nova Zeelandia. this latter colony was destroyed twice in the seventeenth century, but the Dutch continued to maintain military posts either here or on the Moruka throughout their period of occupation. They had military posts at one period or another at various other points in the colony as well, including the upper Cuyuni river and the upper Essequibo.
For two centuries, too, the Dutch maintained a close alliance with the Caribs, who helped defend the perimeters of their colony against Spanish attacks. The Dutch invested the captains of the Amerindian nations with insignia of office, and both civil and criminal cases involving members of these nations were heard in the Dutch Court of Justice.
In general one can state that at some periods the sphere of Dutch economic activity, and by extension, political control, covered far wider areas than that which constitutes modern-day Guyana, while at no time from the 1620s onwards did the Spaniards exercise control of any kind within the Essequibo region which the Venezuelans now claim as their own.
In 1648 peace was made between the Dutch and the Spaniards at Munster, in Germany, whereby the two sides recognized each other s possessions in the Americas, among other places.
It is an important treaty from the point of view of the boundary story, but what it did not do was delimit the precise boundaries of the Spanish and Dutch possessions.
Furthermore, one of its clauses (Article V) was to become the subject of contention in 1899, the British claiming that it allowed the Dutch the right of expansion into unoccupied territory, and the Venezuelan counsel maintaining that under the terms of the article, the Dutch were not allowed to expand into other areas.
Suffice it to say here that when ten years after the Treaty of Munster had been ratified, the Dutch set up the colony of Pomeroon, the Spaniards never raised a murmur, although they complained of Dutch breaches of the treaty in other parts of the world.
During the course of the eighteenth century the Dutch in the form of two Remonstrances did state their territorial claim, the most comprehensive being presented to the Spanish court in 1769. They claimed up to the Barima, but Spain never replied. The wheels of the Spanish bureaucracy ground slowly, and some sixteen years were to pass before finally Spain s Attorney-General was to recommend to his government that no action should be taken in the matter of the boundary until "future events should show what ought to be decided on."
His recommendation, i.e. to do nothing, was accepted by the Council of the Indies which had responsibility for Spanish possessions in the Americas, and a resolution to the effect was passed.
In 1803 the British assumed control of the three Dutch colonies of Essequibo, Demerara and Berbice, a control which was given international sanction under the terms of the Treaty of Pare and Convention of London in 1814. As with the Dutch, British jurisdiction was exercised as far west as the Barima, although there was still uncertainty about the precise course of the boundary.
Like the Dutch, the British appointed Amerindian captains in the Barima, Barama and Waini, among other places, and unlike the Dutch they also began establishing mission stations in the interior. Up until 1850, the nearest Venezuelan post to Essequibo was thirty to forty miles west of the Amakura.
In 1840 the British Government decided to take the matter of the border in hand, and employed Robert Schomburgk to make a provisional survey of the frontiers of the then British Guiana. The results of his surveys were intended as a statement of the British claim.
Schomburgk, a Prussian (German) by birth, was retained by the British on account of his familiarity with the colony. Between 1834 and 1839 he had been employed by the Royal Geographical Society to explore Guiana, in the pursuit of which goal he had made three separate journeys into the interior.
In 1839 Schomburgk produced a map, showing a boundary line dividing British Guiana and Venezuela, which had its origins in an eighteenth century map drawn by French cartographer. This line had been copied by subsequent map-makers, among them Arrowsmith, whom Schomburgk had used as the source for the line on his map. What these cartographers had done, in fact, was to divide the two territories by selecting a geographical line which more-or-less followed the watershed between the Orinoco and Essequibo river.
At this point, of course Schomburgk had undertaken no boundary surveys as yet and was in the employ of the Royal Geographical Society, and not the British Government. After he had completed some surveying for the latter, he produced a completely different line from the 1839 one, which he submitted to Henry Light, the Governor of the time.
As a consequence of bureaucratic torpor, this official line was not published for very many years, and in the meantime, Schomburgk s 1839 line erroneously appeared on colony maps. In 1885, the Colonial Office awoke from its slumber, and requested the publisher of official maps to correct the mistake. The Schomburgk line representing the British statement of claim, therefore, was not shown on maps until 1887.
This apparent alteration in the Schomburgk line was to be seized upon later by the Venezuelans, who were to maintain that the 1839 line was the true statement of the British claim which had been submitted by Schomburgk. They were eventually to refer to the "capricious" or "elastic" Schomburgk line.
Schomburgk did more than just survey the frontier; he also placed markers. This was to produce an immediate response from the Venezuelans, who had won their independence from Spain some years earlier. The British Government quickly disassociated itself from Schomburgk s actions, and subsequently removed the markers.
The markers aside, Schomburgk s boundary surveys on their own account provoked a reaction from the neighbouring state. In 1844 they made their first official statement of claim to the Essequibo - that is, to all the land west of the Essequibo river. Its preposterous nature was not lost on the British Government - the Spaniards had never made such a claim and they immediately rejected it, offering an alternative line which began at the Moruka. This in turn was rejected by the Venezuelan Government.
In 1850, in the absence of an agreement about the boundary, the two sides acknowledged the status quo, and called for the non-violation of the disputed zone by either of them.
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In Part I, a brief overview was given of the occupation of Essequibo by the Dutch who claimed and controlled at least up the the Barima, although the precise course of the boundary was never established.
The British conquered the Dutch Guiana holdings in 1803, and their control of Essequibo, Demerara and Berbice was confirmed by treaty in 1814.
In 1840 Robert Schomburgk was retained by the British Government to survey the boundaries of the then British Guiana. (In the last instalment it was erroneously stated that he was a Prussian; in fact he had been born in Saxony.)
Out of this came the first diplomatic exchanges between the British and the Venezuelans on the matter of the frontier. The Venezuelans claimed all the land west of the Essequibo river, and the British first offered a line beginning on the Moruka river, an offer which did not find favour with the Venezuelans, and which the British withdrew six years later after the Venezuelan Congress had proposed that Barima should be fortified to prevent its seizure by the British.
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Secretary of State Richard Olney, who sent a ten thousand word "note" to Lord Salisbury Lord Salisbury, who was eventually forced to agree to arbitration President Crespo of Venezuela |
The 1850 Agreement which was briefly alluded to last time, was not an agreement in the conventional sense of that term; it was more in the order of two unilateral declarations, whose intents coincided.
It comprised first of all a British diplomatic response arising out of the proposal from the Venezuelan Congress to fortify the Barima. Britain declared that she would not occupy the disputed territory, but she would not "view with indifference aggressions on the territory by Venezuela."
Venezuela then declared in reply that she would not occupy the disputed territory either, and would so instruct the relevant officials.
Both sides treated this exchange as constituting an agreement, although neither side in the end was to adhere to it with any rigour.
The first breach was made by Venezuela and arose out of the discovery of gold in that country. Mining had started there in the 1850s, and in due course gold was also found in the Cuyuni river.
The knowledge that parts of the disputed territory were auriferous was to complicate the boundary question considerably.
It was an attempt to exercise some control over the miners that caused Venezuela to commit her first violation when she established a township on the right bank of the Yuruari river.
This was followed up by the grant of a concession to a New York based company, called the Manoa Company, to cut wood in the Barima, an act which was to have consequences which will be referred to below.
It was Britain, however, who was in breach in 1875 when she sent members of the British Guiana police force to apprehend a murderer in the disputed zone, and when she proposed building a railway into the Cuyuni goldfields, something which she had objected to strongly when Venezuela had declared her intention of doing something similar.
Following the 1850 Agreement there was a hiatus in negotiations on the boundary for many years because Venezuela was in a state of political turmoil.
It was only some twenty-six years later that diplomatic exchanges on the subject resumed, only this time Venezuela also forwarded a memorandum to the United States inviting that country to "take an interest in having justice done in Venezuela". This was the first occasion on which the Venezuelans appealed officially to the United States for assistance.
For the next two decades boundary lines were proposed by Rojas, Granville and Roseberry, among others, but there was no convergence of views between the two sides and no common line could be arrived at.
The first tentative reference to arbitration by the Venezuelans in 1880, was studiously ignored by the British, although the former had made no official proposal along these lines as yet. Disillusioned with the state of negotiations, Venezuela then turned her attention to the United States, with a view to emphasizing to Washington that British actions, particularly in Barima where officials had been sent to erect a telegraph line, were a breach of the Monroe Doctrine. It was an argument which was eventually to bear fruit.
"Do not view with indifference," ran a Venezuelan diplomatic note to Washington at the time, "this trespassing on Venezuelan territory." The Americans indicated themselves not indifferent, and expressed their concern about anything which tended to the encroachment on American territory by an outside power.
They too now suggested arbitration of the dispute, and with this support behind them, the Venezuelans put the proposal officially to the British. It was not a suggestion which was well received by the latter power, which indicated that some mutual accommodation would be preferable instead.
In 1885, however, the situation appeared to change when Venezuela successfully concluded a commercial treaty with Britain which contained an arbitration clause. This clause was intended, it would seem, to apply to situations not simply arising out of the treaty per se, and which therefore theoretically, at least, could be applied to the border issue.
Caracas' initial euphoria about the treaty, however, was soon to evaporate. Lord Granville, the Foreign Secretary who had negotiated it, was succeeded by Lord Salisbury, who quickly repudiated the more generous construction of the arbitration clause which the treaty contained. The incident was to place a great strain on Britain-Venezuela relations.
By 1886, tensions were rising between the two states. As stated above, the Manoa Company had been given a concession by the Venezuelans in the Barima, which the British had declared a violation of the 1850 Agreement. In order to prevent the Company from erecting a sawmill, the British sent policemen into the area, who took it upon themselves to arrest one of its members and bring him to Georgetown for hanging Amerindians by their ankles.
Some acrimonious exchanges followed this act, the details of which will not be set forth here; however, it culminated in a threat from the Venezuelan President to break off diplomatic relations with Britain if the latter did not evacuate the Barima and agree to submit the boundary dispute to arbitration by February 20, 1887.
February 20 came and went, and Venezuela issued first a list of complaints againt Britain, and then a statement announcing that she was suspending relations.
In 1890 Venezuela made overtures for the renewal of diplomatic relations. Britain's conditions for resolving any dispute between them, however, were not conciliatory. The first of these was that Britain would only offer for arbitration land which she claimed west of the Schomburgk line, but not territory within it. Not surprisingly, this offer was refused.
Having reached an impasse, Venezuela turned again to the United States, but this time she decided to work indirectly as well as directly, by attempting to influence American public opinion, which she hoped would then in turn influence US Government policy. It was to prove her most successful tactic.
She hired a US lawyer, William Scruggs, to operate primarily as a propagandist, but also as a legal counsel.
Scruggs produced a propaganda pamphlet entitled: British Aggressions in Venezuela, or the Monroe Doctrine on Trial, which was distributed in the United States, and inflamed public opinion. The booklet represented to the American people that Venezuelan territory was being gradually absorbed by the British in defiance of the Monroe Doctrine, an allegation which was then picked up by the press with some animation. An alliance comprising Republicans, some Democrats, the American-Irish and the press combined forces in a crusade on behalf of the Doctrine, accusing the Government of "supineness, dilatorianess and lack of national and patriotic spirit."
The Monroe Doctrine itself, of course, was a product of a different era and different historical circumstances. Enunciated by US President Monroe in 1823, it stated: "... the American continents... are henceforth not to be considered as subjects for future colonization by any European powers."
The propagandists, therefore, treated British activities in areas like the Barima as colonizing new territory, rather than entertaining the proposition that these had in any case been British prior to 1823.
Scruggs managed to persuade a Congressman from his home state of Georgia to introduce a resolution in Congress exhorting Britain and Venezuela to go to arbitration. The resolution was passed on February 22, 1895, and the US Government could no longer ignore either public pressure or Congress.
 An 1896 cartoon from an American newspaper, following Britain's agreement to go to arbitration. |
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.
 Justice Davis Josiah Brewer, President of the US Boundary 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.
 Map showing boundaries as claimed by Britain and Venezuela, and the final Paris Award. |
 Members of the Boundary Commission set up by the United States. In the back row at left, is a young Severo Mallet-Prevost, while Justice Brewer sits in front row, centre. |
The US Commission never published any findings about the true divisional lione 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 presciption 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... "
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In Part II it was related how Britain was eventually forced to the arbitration table under pressure from the United States Government. The tribunal which met to arbitrate on the dispute was set up under the terms of the Treaty of Washington, 1897 signed between Brtain and Venezuela.
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 were not given the opportunity to appoint a Venezuelan judge; the idea was vetoed by the British ambassador in Washington, Sir Julian Pauncefote, without it even being put to his government for consideration. As it was, 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.
 The boundary of Guyana |
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.
The latter 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."
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 counsel 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 counsel were George Askwith and Rowlatt.
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. In the days before air conditioning, both arbitrators and counsel sweltered in the heat of an unusually oppressive Parisian summer.
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.
 The tri-junction marker on Mount Roraima  The members of the Paris Tribunal: (left to right) Justice Brewer, Lord Russell, Prof Martens, Chief Justice Fuller, Lord Justice Collins |
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.
 Severo Mallet-Prevost was born on October 8, 1860. He first trained as a civil engineer before taking up law. He appeared as counsel for several governments, including the United States, Mexico, Spain, Italy, Greece and Venezuela. In addition to the Venezuelans, Spain and Greece also decorated him. A devoted Pan-Americanist, he helped found the Pan-Anerican Society of which he was President from 1921-27. Thereafter, he was honorary President of that Society. He died in 1948.  Justice David Josiah Brewer  Lord Justice Collins |
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.
De Martens was born in Livonia in 1845, and was educated in Russia and foreign universities. He entered Russia's Department of Foreign Affairs in 1869, was employed at the University of St Petersburg in 1871 and became a Professor in 1873.
He produced a substantial body of work in the field of international law, and attended many international conferences and conventions. He is particularly remembered for his imput into the conventions of war on land at the First Hague Conference of 1899, and the convention for the peaceful settlement of international disputes. His involvement in so many arbitrations earned him the sobriquet of 'Lord Chancellor of Europe' and later, 'Chief Justice of Christendom'.
As recounted in Part I, 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 counsel 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 accustions. 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 award justified on the basis of the evidence presented. The answer is an unequivocal, yes.
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