ICJ’s decision on Border Controversy for Guyana

Today the International Court of Justice (ICJ) – also called the World Court – will be taking oral arguments on the controversy Venezuela raised over our common boundary that had been settled by the 1899 Arbitral Award that described its decision as a “full, perfect and final settlement”. Both sides will be offering legal reasons why they should prevail. It is quite important to understand that Venezuela is contending the Award is not “final”: it is the threshold issue they will have to overcome. Overall, it is very unlikely they can prevail because the proof demanded for such legal decision based on the ICJ’s precedents is simply not there.
The usual threshold issue of Courts – here the ICJ – having the necessary jurisdiction to adjudicate the Controversy has already been addressed by the court after Venezuela had insisted that the Geneva Agreement – reached in 1966 by Venezuela, the then British Guiana and the colonial power Britain – did not confer such jurisdiction. In its decision announced on Dec 18, 2020, the Court painstakingly adumbrated the rationale for its decision and, inter alia, demolished the Venezuelan arguments insisting there be a “negotiated settlement” rather than a judicial one.
Our argument on the 1966 Geneva Agreement is careful and legally disciplined by stating that while it acknowledges Venezuela’s claim exists, it does not declare the 1899 Award invalid. All it did was create a mechanism to resolve the controversy, not a reset of the boundary. The ICJ agreed with us that all of the stipulations on the Geneva Agreement had been complied with and they ineluctably and conclusively led to it assuming jurisdiction. This neutralized Venezuela’s best procedural argument and their repetition of this argument at this stage will not lead to a reversal of that decision and may even weaken their credibility if overemphasized.
Our case for holding the 1899 Arbitral Award to be valid and binding is ironclad for several reasons – all based on the Court’s own precedents. Firstly, the award was a formal international arbitration, accepted at the time by Venezuela and for the subsequent five decades: their formal legal challenge was not made until the 1960s. Based on the ICJ’s precedents, states are expected to protest early and consistently if they reject a boundary and silence or cooperation over time can amount to acquiescence.
Our core argument that 1899 Arbitral Award is valid and binding is very powerful since it explicitly declared the boundary to be a “full, perfect, and final settlement” and international law strongly protects the finality of arbitral decisions. For Venezuela to defeat this, it must prove either serious fraud or a fundamental procedural breakdown. While it has made these claims, it is an exceptionally high bar, and historically the ICJ almost never overturns old awards on that basis since the stability and finality of borders aligns with its historical precedents. For stability in global relations there is a need for legal certainty leading to the Court’s avoidance of reopening settled boundaries if old awards are undone. So we are not just arguing facts but aligning ourselves with a system-wide interest of international law. On this ground, our case is about as strong as a territorial claim gets in international law.
Another argument we have made that adds to the strength our case is what ICJ’s doctrine call our effectivités, exercised by us for over a hundred years over Essequibo. “The term describes the fact of the intentional exercise of jurisdiction or State functions in a given territory independently of the right to do so, namely of the question of the holder of the title. Thus, the effectivités are not per se “title” but an element of fact that may be confirmatory of “title”, or which even in certain circumstances and in accordance with certain conditions provided for by international law, may be conducive to the acquisition of “title” administration of the case.
In summary, unlike Venezuela, we have made a clean and narrow legal request to confirm the validity of the 1899 award and the existing boundary. This is strategically strong and plays directly into the ICJ’s strengths to apply law to a defined instrument and avoiding open-ended political balancing.