– another victory for Guyana
Guyana is now one step closer to settling the border controversy with its western neighbour, Venezuela, as the International Court of Justice (ICJ) has dismissed the Spanish-speaking nation’s preliminary objection that Guyana is not the proper party to bring the claim, and as such request a final and binding ruling on the October 3, 1899 Arbitral Award.
Guyana maintains that this Arbitral Award settled the land boundary between the two countries.
View of the ICJ courtroom ,Thursday 6 April 2023 Photograph: UN Photo/ICJ-CIJ/Wiebe Kiestra. Courtesy of the ICJ. All rights reserved.
By 14 votes to one, the ICJ on Thursday rejected the Spanish-speaking nation’s argument that because Guyana is a former colony of the United Kingdom (UK), it is the UK that should have approached The Netherlands-headquartered tribunal to bring finality to the issue.
The ruling on Thursday clears the way for the substantive case to be heard by the international body.
Venezuela’s Executive Vice President Delcy Rodriguez, during oral arguments last November, had advanced that her country was not disputing the ICJ’s jurisdiction to arbitrate the matter, but instead asserted that Guyana is not the proper party to file the claim.
Her position was that because the UK, which she had described as a “land grabber” and had accused of a “cover-up”, was 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.
But this was refuted by a member of Guyana’s legal team, Professor Philippe Sands, KC, who had argued 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 February 17, 1966 Geneva Agreement with the power to settle the border controversy between the two nations.
When Guyana gained independence three months later, it joined the agreement as an independent nation alongside the UK and Venezuela, fully taking over the former position of the British in talks with Venezuela regarding the border dispute, he had argued.
Delivering the court’s judgement was ICJ President, Judge Joan Donoghue, who said most of the Judges had upheld Guyana’s position that the Articles of the Geneva Agreement expressly state that the controversy shall be settled between Venezuela and Guyana.
“In light of the foregoing, the Court concludes that by virtue of being a party to the Geneva Agreement, the United Kingdom accepted that the dispute between Guyana and Venezuela could be settled by one of the means set out in Article 33 of the Charter of the United Nations, and that it would have no role in that procedure,” Justice Donoghue underscored.
In fact, she explained the court observed that the UK did not seek to participate in the procedure set out in the Agreement to resolve the dispute; nor did the parties, Guyana and Venezuela request such participation. As such, the ICJ noted, “Venezuela’s exclusive engagement with the Government of Guyana during the Good Offices Process indicates that there was agreement among the parties that the United Kingdom had no role in the dispute settlement process.”
To amplify her case, Venezuela’s representative had relied 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.
However, given the circumstances of this case, the ICJ held that the Monetary Gold principle does not come into play in this case. Having regard to its finding, the World Court concluded that “even if the court, in its judgement on the merits, were called to pronounce on certain conduct attributable to the UK, which cannot be determined at present, this would not preclude the court from exercising its jurisdiction, which is based on the application of the Geneva Agreement.”
Further, it unanimously held that the preliminary objection raised by Venezuela is admissible, but by 14 votes to one, rejected it and said that it will go ahead and adjudicate upon the merits of Guyana’s claim. In light of this ruling, the ICJ made it clear that Venezuela can no longer raise any more preliminary objections. This was that country’s second preliminary objection.
The 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 Geneva Agreement between Guyana, Venezuela and the UK.
He resorted to judicial settlement after the Good Office Process between Guyana and Venezuela failed. Within the framework of that agreement between the two countries, the Secretary-General conducted Good Offices from 1990 to 2017 to find a solution to their border controversy. Guyana filed the case against Venezuela in March 2018.
Venezuela had subsequently questioned the ICJ’s jurisdiction to hear the matter; however, in December 2020, the court found that it indeed had the authority to preside over the case.
The Spanish-speaking nation is laying claim to more than two-thirds of Guyana’s landmass, 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 declare that the 1899 Arbitral Award is valid and binding upon Guyana and Venezuela, and that the latter is internationally responsible for violations of Guyana’s sovereign rights, and for all injuries suffered by Guyana as a consequence. (Feona Morrison)
