A flawed interpretation of international law

Feb 20, 2025 Features / Columnists, Peeping Tom

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Peeping Tom…

Kaieteur News – The assertion that “under international law, Venezuela is responsible for any harm caused to Guyana or its nationals by persons acting from Venezuelan territory, including private individuals unaffiliated with the Venezuelan Government or Armed Forces” is a deeply flawed interpretation of state responsibility.

While international law does impose obligations on states to prevent transboundary harm, the claim that Venezuela is automatically liable for criminal acts carried out by private actors operating from its territory oversimplifies and misrepresents well-established legal principles of international law. The reality is that liability under international law depends on state involvement, negligence, or failure to act—not merely on the location from which an attack originates.

Under customary international law and treaty obligations, a state can only be held responsible for wrongful acts if those acts can be attributed to the state itself. The International Law Commission’s (ILC) Articles on State Responsibility provide a framework for determining state liability. Specifically, Article 8 states that acts committed by private individuals can only be attributed to the state if those individuals are acting “on the instructions of, or under the direction or control of, that State.”

Applying this standard, for Venezuela to be held liable for the attack on Guyanese soldiers, there must be evidence that the criminal gang in question was acting under the orders or effective control of Venezuelan authorities. If these individuals were not directed, armed, financed, or otherwise supported by the Venezuelan state, then their actions remain those of private actors, and Venezuela cannot be held directly responsible under international law.

However, even if direct state responsibility does not apply, international law does recognize a due diligence obligation for states to prevent transboundary harm. International law requires states to take reasonable steps to prevent their territory from being used as a base for hostile acts against another state. However, this obligation is one of conduct, not of result. In other words, a state is not automatically responsible for every criminal act committed from its territory; rather, it is required to take reasonable measures to prevent and suppress such activities.

For Guyana to hold Venezuela accountable under this principle, it would need to demonstrate that Venezuela either actively harboured these criminals, failed to exercise reasonable efforts to suppress them, or deliberately turned a blind eye to their actions. Given Venezuela’s internal turmoil—marked by economic collapse, political instability, and armed groups beyond state control—it is entirely plausible that the Venezuelan government lacks the capacity, rather than the will, to prevent such attacks. Capacity limitations, while not an absolute defense, significantly complicate any argument for direct liability.

Guyana’s broad and unqualified claim that Venezuela is liable for all harm caused by private individuals from its territory is not only legally incorrect but also carries dangerous implications for international relations and state sovereignty. If this principle were universally applied, countless states would be held responsible for cross-border criminal acts beyond their effective control.

Consider the case of Mexico and the United States: Mexican cartels frequently engage in violent acts that spill across the U.S. border, including drug trafficking and kidnappings. Under the logic of the claim in question, Mexico would be automatically responsible for these actions, regardless of its efforts to combat cartels. Similarly, the United States would be liable for criminal enterprises operating from its territory into Canada, despite significant law enforcement efforts to curb such activities. Such an approach would upend the established principles of state responsibility and due diligence in international law.

Instead of advancing an untenable legal argument, Guyana should focus on diplomatic engagement and strengthening domestic security measures to address the threat posed by cross-border criminal elements. President David Granger had enunciated an insightful policy aimed at protecting civilians against the threats posed by Venezuelan criminal gangs that were harassing and robbing locals in communities bordering Venezuela. When the PPPC came in they abandoned this policy.

A pragmatic approach would involve calling on Venezuela to prevent its territory from being used by criminal groups to launch attacks on persons from Guyana. If Venezuela refuses to cooperate or deliberately obstructs efforts to curtail such activities, then there may be grounds to argue that it has failed its due diligence obligations. However, this does not equate to automatic liability for every act committed by non-state actors.

Therefore, the contention that Venezuela is per se responsible under international law for every harm inflicted by private actors emanating from its territory is an oversimplification that ignores the fundamental principles of state responsibility. While Venezuela does have a duty to take reasonable measures to prevent cross-border criminal activities, liability arises only when the state is either complicit or grossly negligent in addressing such threats.

(A flawed interpretation of international law)

(The views expressed in this article are those of the author and do not necessarily reflect the opinions of this newspaper.)

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• Armed Forces, flawed interpretation, Venezuelan Government, Venezuelan territory, wrongful acts

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