Border controversy case at ICJ: Guyana rejects Venezuela’s position that UK, not Guyana, is proper party to bring claim

…British Govt “has no legal skin in this game”, says Guyana’s counsel, Professor Sands

Venezuela’s argument that the United Kingdom (UK), and not Guyana, is the proper party to approach the International Court of Justice (ICJ) for a final and binding ruling on the October 3, 1899 Arbitral Award settling the land boundary between the two South American countries has been rejected as “incoherent, legally misconceived and factually baseless” by Guyana’s legal team.
Continuing on Friday from arguments that commenced the previous day on the Spanish-speaking nation’s objections to Guyana’s submission of its memorial on the merits of the case, Professor Philippe Sands, a Professor of International Law at University College London, submitted that the UK “has no legal skin in this game” as Guyana is now a self-governing state having gained independence from Britain on May 26, 1966. Venezuela’s Executive Vice President Delcy Rodriguez, who appeared before the ICJ in The Hague, Netherlands on Thursday, had advanced that her country was not disputing the court’s jurisdiction to arbitrate the matter but instead asserted that Guyana is not the proper party to file the claim.
Her position is that because the UK, which she described as a “land grabber” and accused of a “cover-up”, as a party to the Arbitral Award which saw Guyana being “given” territory, and owing to Guyana being a former British colony, it was the UK that ought to have asked the ICJ to resolve the border controversy.
Rodriguez is relying on the Monetary Gold Principle—a procedural legal rule that came with the historical practice of the ICJ—which means that international courts are not competent to settle disputes between states unless those states agree to exercise jurisdiction over this dispute by the court.
Having been decolonised since May 26, 1966, Guyana has rejected this argument.

Power with Guyana via Geneva Agreement
Professor Sands said that when Guyana became independent, the UK gave its consent to the United Nations (UN) and by extension its judicial arm—the ICJ—by way of negotiating, signing, and bringing into effect the Geneva Agreement (1966), with the power to settle the border controversy between the two nations.
That Agreement, signed on February 17, 1966, is a treaty to resolve the conflict between Venezuela and the United Kingdom of Great Britain and Northern Ireland over the border between Venezuela and British Guiana, and at that time was an active treaty between Venezuela and the United Kingdom, along with its colony of British Guiana. When Guyana gained independence three months later, it joined the agreement as an independent nation alongside the United Kingdom and Venezuela, fully taking over the United Kingdom’s former position in talks with Venezuela regarding the border dispute, Professor Sands submitted.

Arguing that the Monetary Gold Principle can be of no avail to Venezuela, the international lawyer said: “In this case, the 1966 Agreement and in particular, the provisions of articles two and four…for the practical settlement of the controversy, make it clear that the United Kingdom recognised that going forward, the only two parties, which were directly interested in the resolution of the controversy, were Guyana and Venezuela. By the agreement, the United Kingdom accepted that it would no longer be an interested party.” This conclusion, he noted, is also supported by the position of Venezuela set out in its exposition of motives for the draft law ratifying the Protocol of Port of Spain on June 22, 1970.
In an article written by the late Guyanese diplomat, historian, and author, Odeen Ishmael, it is stated: “The Protocol provided for a minimum period during which Venezuela undertook not to assert any claim to sovereignty over the Essequibo region of Guyana, and for Guyana to assert no claim to Venezuelan territory. The initial period of the protocol was for twelve years and was automatically renewable. However, it could be terminated by either side at certain stated intervals, but it had a guaranteed minimum life of twelve years. The Protocol did not replace the Geneva Agreement of 1966 but merely suspended it. But if either side, after a minimum period of twelve years should withdraw from the agreement, the Geneva Agreement would be automatically revived and all the procedures provided in that agreement would be available again to both countries.”
Professor Sands said that the Protocol states that the possibility existed, that an issue of such vital importance, as the determination of the means of dispute settlement would be left to the two directly interested parties to be decided by an international institution chosen by them, or failing that by the UN’s Secretary General. “This makes it clear it in 1970, Venezuela considered that it and Guyana alone were the two directly interested parties in this controversy and that the United Kingdom was not a directly interested party. And that continued to be Venezuela’s position for another 50 years,” Guyana’s counsel told the World Court.
In examining the UK’s conduct in the six decades since Guyana attained independence, he added: “At no time, since granting Guyana independence has the United Kingdom ever asserted, claimed or even hinted that it has any possible interest in either the question of the validity of the 1899 Award or the location of the boundary between Venezuela and Guyana or any aspect of any matter that might have to be decided in relation to the resolution of those issues.”
According to him, this is so for a simple reason—the legal instrument through which the UK gave effect to the grant of independence.
Professor Sands said: “It is the Guyana Independence Act of 1966… section one of which was enacted by the British Parliament on the eve of Guyana’s independence.

It provided that on and after the 26th of May 1966, Her Majesty’s Government in the UK shall have no responsibility for the government of the territory.”

Rejecting Venezuela’s objection
From that date going forward, he pointed out that the UK unequivocally and explicitly gave up any claim to any rights in respect of the territory, which immediately before independence, had been the territory of the British colony.
“Neither the Geneva Agreement nor the Port of Spain Protocol provides for any further action on the part of the United Kingdom after Guyanese independence. In the circumstances, it would not seem either appropriate or helpful for His Majesty’s Government now to play an active role in the controversy,” he noted.
Rejecting Venezuela’s preliminary objection that the process of decolonisation is somehow incomplete, encoded, or imperfect, he stressed that Guyana has been liberated from the shackles of colonialism, and therefore it is for the governments of Guyana and Venezuela to settle this matter between themselves.
Professor Sands said that this preliminary objection is totally offensive against the law of state succession and the law of decolonisation. Venezuela simply alleging fraud or some other horrendous act against the former colonial power, and relying on the Monetary Gold Principle, he contended, “is not so much of a case”.
Professor Philippe Sands, a King’s Counsel, stressed that Venezuela’s preliminary objections have ignored the fundamental precepts of state succession, equalisation, and self-determination. He deemed the country’s case “totally hopeless”. In conclusion, he declared that the “United Kingdom has no legal skin in this game. Venezuela’s preliminary objections are incoherent legally misconceived and factually baseless. The preliminary objections ignore the realities of the 1966 Agreement and the Court’s jurisprudence on the indispensable third party.”
The second round of oral arguments on Venezuela’s preliminary objection will continue next Monday with that country’s lawyers addressing the court. Guyana’s legal team is scheduled to make submissions the following day.
Guyana’s legal team is being headed by Co-Agent and Counsel, Sir Shridath Ramphal, and includes member of the Bars of the United States Supreme Court and the District of Columbia, Paul S Reichler; Professor Emeritus of the University Paris Nanterre, former Chairman of the International Law Commission and member of the Institut de Droit International, Alain Pellet; Professor of International Law at University College, London, Philippe Sands; Professor of International Law and Senior Fellow at Massey College, University of Toronto, and member of the Bar of New York, the Law Society of Ontario and the Permanent Court of Arbitration, Payam Akhavan; Professor Ordinaire, Université Catholique de Louvain and member of the Institut de Droit International, Foley Hoag, LLP and the Bar of Brussels, Pierre d’Argent; member of the Bars of the District of Columbia, the State of New York, England and Wales, and the Law Society of Ontario, Christina L. Beharry; Barrister from Matrix Chambers, London, Edward Craven; member of the Bar of the State of New York, Juan Pablo Hugues Arthur; and member of the Bar of the District of Columbia, Isabella F Uria.
Then United Nations Secretary General António Guterres, in January 2018, decided that the case should be settled by the ICJ after exercising the powers vested in him to decide how the controversy should be settled by the 1966 Geneva Agreement between Guyana, Venezuela, and the United Kingdom.
He resorted to judicial settlement after the good offices process between Guyana and Venezuela failed. Within the framework of the 1966 Geneva Agreement between the two countries, the Secretary General conducted good offices from 1990 to 2017 to find a solution to their border controversy.
The Spanish-speaking nation is laying claim to more than two-thirds of Guyana’s landmass in Essequibo and a portion of its exclusive economic zone (EEZ) in which more than nine billion barrels of oil have been discovered over the past six years.
Guyana, among other things, is asking the ICJ to adjudge and declare that the 1899 Award is valid and binding upon Guyana and Venezuela and that Venezuela is internationally responsible for violations of Guyana’s sovereignty and sovereign rights, and for all injuries suffered by Guyana as a consequence. (G1)