Guyana demonstrates Venezuela explicitly agreed to judicial settlement
…as such the ICJ has jurisdiction to settle Venezuela’s border controversy
By Jarryl Bryan
The hearing on jurisdiction in the Guyana v Venezuela territorial case before the International Court of Justice (ICJ) began on Tuesday with Guyana urging the Court to reject Venezuela’s “meritless and illogical” arguments that the Court has no jurisdiction to hear the case.
Making this call was international border dispute lawyer Paul Reichler, one of several lawyers on Guyana’s legal team. Reichler cited a number of documents which show that Venezuela itself agreed to terms in the 1966 Geneva Agreement that allows the United Nations Secretary General the sole responsibility to refer the case to the ICJ.
As such, this is just what UN Secretary General Antonio Guterres did in January 2018, after the good offices process failed to resolve the border controversy. At the time, the good offices process was going nowhere. In fact, Guyana had made known its intention to opt out of the process and seek a final binding solution since 2014.
In presenting his arguments to the ICJ, Reichler cited Venezuela’s Foreign Affairs Minister at the time the Geneva Agreement was signed, Ignacio Iribarren Borges. Reichler presented the Court with a statement Iribarren made to the National Congress on March 17, 1966, in which he proclaimed that “due to the Venezuelan objections accepted by Great Britain, there exists an unequivocal interpretation that the only person participating in the selection of the means of solution will be the Secretary General of the United Nations and not the assembly.”
In his address to the National Congress, Iribarren had gone on to say “in compliance with Article 4, if no satisfactory solution for Venezuela is reached, the award of 1899 should be revised through arbitration or a judicial recourse.”
The ICJ had previously allocated the day for Venezuela to present its arguments against jurisdiction. However, the Spanish-speaking nation, through its current Foreign Affairs Minister, Jorge Arreaza, recently declared that it would boycott the hearing.
Nevertheless, it had submitted a memorandum last year, in which its reasons for not recognising the ICJ’s role were outlined. Reichler used this memorandum to reject Venezuela’s claims and point out how Venezuela had flip-flopped on its own positions of 1966.
“The Foreign Minister left no doubt what Venezuela intended and that parties understood, by his insistence that judicial recourse be authorised under the 1966 agreement. There is no doubt, Mr President, for either the terms of the agreement, the negotiating history or the contemporaneous statements by the parties immediately following its conclusion, that Article 4.2 was intended to ensure there would be a final resolution of the controversy, that the Secretary General was empowered to decide on the means of the settlement to be employed and the parties understood and intended that if the Secretary General so decided, the controversy would be settled by the ICJ. This was Venezuela’s understanding of the Geneva agreement,” Reichler told the Court.
The Attorney pointed out that Venezuela has failed to provide any logical arguments against the jurisdiction of the Court. Venezuelan President Nicolás Maduro had written the ICJ back in 2018, insisting that the Geneva Agreement binds Guyana and Venezuela to a resolution through negotiations rather than the Court. According to Reichler, this is a patently false statement.
“Venezuela’s current reading of the agreement is completely at odds with the interpretation given by its Foreign Minister, who negotiated and agreed to its terms and explained their meanings to the National Congress upon ratification. This current reading is set out in three documents Venezuela submitted to the Court. A letter from Maduro, a memorandum, and an annex that accompanied that memorandum.
“Notably, Venezuela has not submitted any contemporaneous documents to the Court. And although its pleadings occasionally quote from purported archival documents, none are provided and no full or formal citations are given. In sum, Venezuela offers no evidence to support its assertions. There are only arguments. And they are all demonstratable wrong.”
Sir Shridath Ramphal, the Attorney General when the Geneva Agreement was reached, is Guyana’s co-agent in the case. Ramphal, who like everyone else participated by video link, closed the arguments by making an appeal for the ICJ to rule that it had jurisdiction to decide the substantive case.
“Guyana, respectfully, requests the Court, 1) to find that it has jurisdiction to hear the claims presented by Guyana and that these claims are admissible; and 2), to proceed with the merits of the case… history will commend the International Court of Justice of 2020, for your resolution in discharge of your high functions as the principal judicial organ (of the UN),” Ramphal said, thanking the Court for hearing the case under the current COVID-19 circumstances.
Guyana is also being represented at the ICJ by its agent, former Foreign Affairs Minister Carl Greenidge. Also, part of the Guyana delegation is Opposition representative and former Chief Whip Gail Teixeira.
Former Foreign Affairs Minister Rashleigh Jackson and former Director Generals of the Foreign Affairs Ministry Elisabeth Harper and Audrey Waddell are also listed as members of the Guyana delegation. The ICJ has, meanwhile, communicated that it will begin deliberations on Guyana’s presentations, with a decision imminent.
The Geneva Agreement was signed over 50 years ago, shortly before Guyana’s independence in 1966, with the aim of amicably resolving the controversy. The controversy is rooted in the Venezuelan contention that the Arbitral Award of 1899 on the frontier between Venezuela and what is now Guyana is null and void.
The 1966 Geneva Agreement conferred on the Secretary General of the United Nations the power to choose the means of settlement of the controversy from among those contemplated in Article 33 of the United Nations Charter.
But in 2015, the year in which Guyana found oil in the Stabroek Block, Maduro issued a decree purporting to lay claim to the majority of Guyana’s waters off the Essequibo coast.
The decree was, and still is, seen as a flagrant violation of international law and was inconsistent with the principle that all States should respect the sovereignty and territorial integrity of other States.