ICJ has jurisdiction to hear Guyana-Venezuela border controversy

…removal of Venezuelan threat finally in sight

The International Court of Justice (ICJ) has ruled, by a 12-4 majority, that it has jurisdiction to entertain the 2018 application filed by Guyana concerning the validity of the Arbitral Award of 1899 and the definitive settlement as it relates to the border controversy between Guyana and Venezuela.
This now paves the way for the World Court to hear the substantive case filed by Guyana, in which it is seeking a final and binding judgment to reinforce that the 1899 Arbitral Award remains valid and binding on all parties, and legal affirmation that Guyana’s Essequibo region, which contains much of Guyana’s natural resources, belongs to Guyana and not Venezuela.
The majority ruling was handed down by President of the ICJ, Judge Abdulqawi Ahmed Yusuf on Friday morning in the Peace Palace at The Hague, Netherlands.
Justice Yusuf said the Court concluded that it has jurisdiction to entertain Guyana’s claims concerning the validity of the 1899 Award about the frontier between the two countries.
“The Court, by 12 votes to four, finds that it has jurisdiction to entertain the Application filed by the Co-operative Republic of Guyana on 29 March 2018 in so far as it concerns the validity of the Arbitral Award of 3 October 1899 and the related question of the definitive settlement of the land boundary dispute between the Co-operative Republic of Guyana and the Bolivarian Republic of Venezuela,” the President of the World Court stated in the majority decision.

Claims after 1966 Geneva Agreement
However, the World Court also ruled unanimously that it does not have jurisdiction to entertain Guyana’s claims arising from events that occurred after the signature of the 1966 Geneva Agreement between the two neighbouring countries.
The ICJ had held its first public hearing of the border controversy case via video conference on June 30, 2020, to hear arguments on whether it has jurisdiction to adjudicate the case on the long-standing border controversy between Guyana and Venezuela.

Venezuela has laid claim to more than two-thirds of Guyana’s landmass in the Essequibo region and a portion of its exclusive economic zone (EEZ) in which more than eight billion barrels of oil have been discovered.
After the failed Good Offices process to resolve the border controversy between the two neighbouring countries, Secretary General of the United Nations, António Guterres, in January 2018 had “chosen the International Court of Justice as the means that is now to be used for its solution”.
Two months later, Guyana filed its application to the ICJ in March 2018, asking for a final pronouncement on the validity of the Arbitral Award of October 3, 1899.
However, the Government of Venezuela has claimed, in a letter dated June 2018 to the World Court, that the UN SG exceeded his authority under the 1966 Geneva Agreement when he referred the case to the ICJ, and therefore the court lacks jurisdiction to adjudicate the matter.
On this basis, Venezuela has indicated that it will not participate in the proceedings.
But the ICJ President in his ruling declared that while Venezuela is not participating in the proceedings, the court’s decision is binding on both parties and that it can join the proceedings in the substantive case.

Guyana, Venezuela consented
In addressing the Venezuelan Government’s contention of the court’s jurisdiction, Judge Yusuf further explained in the ruling that both Guyana and Venezuela consented to judicial settling when they signed the Geneva Agreement since the judicial process via the ICJ is one of the “means” available to the Secretary General in determining the controversy.
To determine this, he said the Court examined whether the two countries gave their consent to the judicial settlement of the controversy.
“…the Geneva Agreement refers to a decision by a third party with regard to the choice of the means of settlement. The Court, therefore, begins by ascertaining whether the parties conferred on that third party, in this instance the Secretary General, the authority to choose, by a decision which is binding on them, the means of settlement of their controversy.”
The ICJ further considered whether the decision of the UN SG is binding. This, according to the ICJ President, was asserted in the wording of Article IV, paragraph 2, of the Geneva Agreement which states that the parties “shall refer the decision… to the Secretary General”.
“The Court considers that this wording indicates that the parties made a legal commitment to comply with the decision of the third party on whom they conferred such authority, in this instance the Secretary General of the United Nations. It then notes that the object and purpose of the Geneva Agreement is to ensure a definitive resolution of the controversy between the parties. In view of the foregoing, the Court considers that the parties conferred on the Secretary General the authority to choose, by a decision which is binding on them, the means to be used for the settlement of their controversy.”

SG’s choice/authority
Another point that was examined by the World Court is whether the parties consented to the Secretary General’s choice of judicial settlement of the controversy. Given that the Geneva Agreement refers to Article 33 of the Charter of the United Nations, which includes judicial settlement as a means of dispute resolution, the Court found that the parties accepted the possibility of the controversy being settled by that means.
It noted that had they wanted to exclude such a possibility, then the parties could have done so during their negotiations or set out specific means of settlement so as to omit judicial settlement.
“In light of the above, the Court concludes that the parties consented to the judicial settlement of their controversy,” Justice Yusuf ruled.
Moreover, the 16-Judge panel also considered whether the consent given by the two countries to use judicial settlement is subjected to the condition that the Secretary General must follow the order in which the means of settlement are listed in Article 33 of the United Nations Charter.
On this point, the ICJ President said the Court found that the ordinary meaning of this provision indicates that the Secretary General is called upon to choose any of the means listed in Article 33 of the Charter but is not required to follow a particular order in doing so.
Additionally, the Court concluded that by conferring on the Secretary General the authority to choose the appropriate means of settlement of their controversy, including the possibility of recourse to judicial settlement by the International Court of Justice, Guyana and Venezuela consented to its jurisdiction.
“The text, the object and purpose of the Geneva Agreement, as well as the circumstances surrounding its conclusion, support this finding. It follows that the consent of the parties to the jurisdiction of the Court is established in the circumstances of this case,” Judge Yusuf contended in Friday’s ruling.
Guyana’s legal team for the border controversy case is headed by Sir Shridath Ramphal and includes several local and international professionals.
Guyana will now have to await the ICJ to set a date for case management to hear its substantive application. According to Guyana’s agent on the case, former Foreign Affairs Minister Carl Greenidge, the team has already begun strategising and is in a state of readiness for whenever the matter is called up. (G8)