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CHAPTER XV.

This Chapter deals with Chapter XV of the Venezuelan Case, pp. 197-199, entitled

SPANISH AND VENEZUELAN OCCUPATION DURING THE NINETEENTH CENTURY."

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Venezuelan Case, p. 197.

Application of Theory of Actual Possession.

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The first of these propositions has already been 30 dealt with.

The second (assuming it to be intended to apply to territory of which Great Britain was in unchallenged possession fifty years ago, and has maintained the possession since), is, in the view 35 of Her Majesty's Government, in direct opposition to Article IV, Rule (a) of the Treaty of Arbitration.

With regard to the third proposition, if by "actual possession" is meant such possession as 40 is requisite under the rules of international law

to constitute a title to territory theretofore vacant, Her Majesty's Government agree that the limits of British Guiana depend, subject to the operation of Article IV, Rule (a), on the extent of 5 such possession. Her Majesty's Government

further contend that the limits of Venezuela also depend on similar possession on her side. But if it is intended to suggest that in the case of the Dutch "actual possession" was necessary 10 in order to found their title, whereas such pos

session is not necessary in the case of Spain or Venezuela, and that any particular spot not occupied by Spain or Great Britain ipso facto belongs to Spain or Venezuela, this principle is 15 submitted to be incorrect. There is no rule of international law by which it can be maintained that whatever part of Guiana was not at any time in Dutch or British possession was therefore necessarily territory of Spain or Venezuela. The 20 Venezuelan Case goes on to suggest that to be effective British or Dutch occupation must have been "lawful." It is not easy to see what is meant by this suggestion. The lawfulness or unlawfulness of any occupation of territory 25 is, in the present dispute and by virtue of Article IV, Rule (a), only material where it has been maintained for less than fifty years.

The Venezuelan Case contends that, as regards actual Spanish and Venezuelan occupation during 30 the present century, Venezuela may rely upɔn the Spanish title as it existed at the commencement of this century, and decline

The Alleged Possession and Control by
Venezuela.

Venezuelan Case,
Pp. 197, 198.

Venezuelan Case,

"in the absence of any evidence of British title to the same territory, and until such evidence shall be forth- p. 197. 35 coming, to present proof of continued possession or

control by Venezuela of that region."

The passage continues as follows:

As a matter of fact, Spain first, and then Venezuela, did continue in exclusive possession and control 40 of the disputed territory until 1850, when, under an Agreement (hereafter to be more fully explained) with Great Britain, Venezuela withdrew for a time."

For the present, however, for the reasons above set forth, Venezuela considers that she is not called upon 45 to support this allegation by proof. The burden is upon Great Britain to establish how far encroachments upon territory originally Spanish can, under the stipulation of the Treaty of Münster, and under the rules adopted by the present Treaty, confer title upon herself."

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Venezuelan Case,

P. 198.

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The first is that in 1802 the Spanish Government were maintaining a regular pilot station at what is called "the Barima, mouth of the Orinoco." The report of Major McCreagh, which is referred to as the authority for this statement, 15 shows that the pilot station was then at Pagayos, an island in the Orinoco far above the Amakuru. The island is marked on Schomburgk's Map. In view of its situation, the circumstances that that station "has continued to be maintained to 20 the present day," and that "its existence has been repeatedly recognized by the British Government," as alleged in the Venezuelan Case, is immaterial.

The second fact mentioned as showing Vene- 25 zuelan control in the present century is that in 1836 the British Minister at Carácas made, on behalf of his Government, a formal request of Venezuela to erect a lighthouse at Barima Point. The request referred to was made by Sir 30 Robert Ker Porter, the British Chargé d'Affaires at Carácas, on the suggestion of the Vice-Consul at Angostura. It was made without the authority and without the knowledge of Her Majesty's Government. It was not acted on by the Vene- 35 zuelan Government, nor was the fact of its having been made communicated to the British Foreign Office. It only came to light in 1842, when Mr. O'Leary, the then Chargé d'Affaires at Carácas, mentioned it in writing to the Foreign 40 Office. That Department at once replied that there was no copy of any such note among the papers in its possession; and Mr. O'Leary then forwarded a copy. It is submitted that as there is no evidence that Venezuela controlled Barima 45 Point at that or any other time, the incident has no bearing upon the question of right.

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CHAPTER XVI.

This Chapter deals with Chapter XVI of the Venezuelan Case, pp. 201-220,

entitled

"DIPLOMATIC CORRESPONDENCE."

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AS the diplomatic incidents of the discussion of the boundary have no immediate bearing on the question before the Tribunal, it is un necessary to consider this Chapter of the Venezuelan Case except for the purpose of pointing 10 out a few errors and misstatements which occur in it.

The incident of the removal of the posts which Sir Robert Schomburgk had set up at Barima is thus referred to on p. 207 of the Venezuelan 15 Case:

"The Venezuelan Government, however, determined to remove every semblance of British authority within Venezuelan territory; and, in a note of the 10th January, 1842, repeated its demand for the removal 20 of the posts. In reply to this, Lord Aberdeen, on the 31st January, 1842, wrote stating that the British Government would order the removal of the posts."

It should be remembered that Lord Aberdeen consented to order the removal of the posts 25 purely as an act of international comity, and he

distinctly stated at the same time that, in so doing, "Her Majesty's Government must not be understood to abandon any portion of the rights of Great Britain over the territory which was 30 formerly held by the Dutch in Guiana."

On p. 208 of the Venezuelan Case it is stated in the margin that Lord Aberdeen's proposals in 1844 were "rejected by Venezuela.” This was not the case. No reply to Lord Aber35 deen's proposals was ever received by Her Majesty's Government, and after a certain time Lord Palmerston decided that they should be considered as withdrawn.

On p. 212 of the Venezuelan Case the 40 negotiations initiated in 1884 by General Guzman Blanco are dealt with as follows:

"General Guzman Blanco, in a Memorandum communicated to Sir Julian Pauncefote on the 13th December, 1884, proposed that these questions be 45 settled simultaneously. Negotiations were conducted on this basis, and, on the 6th April, 1885, a Project of

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British App. VII, pp. 107-114.

British Case, p. 130.

Venezuelan Case, p. 213.

British App. VII, p. 109.

Venezuelan Case. P. 217.

Blue Book Venezuela (No.1), 1896, p. 413.

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It is incorrect to suggest that the negotiations respecting the boundary question were connected with the "Project of Treaty." This Treaty was a Commercial Treaty, the negotiations for which were independent of those for 10 the boundary, which were proceeding concurrently. It is true that General Guzman Blanco introduced an arbitration Article into the Treaty, but, as has been pointed out in the British Case this Article referred only to differences 15 which might in the future arise between the two countries, and no statement was made in the correspondence to suggest that it should apply to any pending question, or to indicate that Her Majesty's Government had in any way modified 20 their previous decision-that some settlement in regard to the boundary question was a preliminary condition to the conclusion of the negotiations on the other matters in dispute.

On p. 213 the following passage occurs :- 25 General Guzman Blanco's reply to Lord Salisbury, dated the 5th August, 1885, was in the nature of a protest against the refusal of the British Government to respect the engagements of the previous Government, which had already given formal assent to the 30 arbitration Article."

The previous Government did not formally assent to the Treaty in which the arbitration Article was included. Lord Granville accepted it provisionally, "subject to reference to the 35 Departments of Her Majesty's Government concerned."

On p. 217 the Venezuelan Case states that:In 1890 the Venezuelan Government received an intimation from Sir Andrew Clarke and Captain Lowther 40 that Great Britain was disposed to evacuate the invaded territory, and to submit the case to the arbitration of a friendly Power, provided Venezuela would declare diplomatic relations to be re-established between the two countries.""

This intimation was unauthorized, and the Venezuelan Government were SO informed directly they made any reference to the subject.

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