…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.
