Recourse to the ICJ is on the basis of a consent regime

Recourse to the ICJ is on the basis of a consent regime –

Feb 06, 2018 News

By Analyst

There must have been an adrenalin fueled spate of euphoria that took hold of Guyanese, the world over on Tuesday last, when the announcement came that UN Secretary General Antonio Gutterez had “chosen the International Court of Justice as the means to be used for the solution of the controversy” between Guyana and Venezuela.
That euphoria, which must have been heightened when President Granger addressed the nation later that evening, would also have been tempered somewhat when it was disclosed less than 24 hours after, that Venezuela issued a statement declaring its intention to maintain political negotiation based on the 1966 Geneva Accord.
The Spanish-speaking republic saw this as the only way to reach a peaceful, practical and satisfactory solution for both parties and “in favour of our Peoples”. However, a number of statements have since been made in the press and in public, suggesting that the fact that Venezuela is not supportive of the choice of the ICJ would not be fatal, as Guyana can “go it alone”.
Reality check: Recourse to the ICJ is based on a regime of consent. Article 36 of the Statute of the ICJ states, “The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties or conventions in force.”
As the territorial controversy is obviously not provided for in the UN Charter, it having been concluded in 1945, and as the 1966 Geneva Agreement is not included in the list of treaties in the UN archives which provides for recourse to the ICJ, then the only logical route for recourse to be had in the territorial controversy is if ‘the parties refer…it’ to the Court.
Indeed the reference in the 1966 Geneva Agreement is to Article 33 of the UN Charter, not the ICJ. Again, Article 33 refers to ‘judicial settlement’, not the ICJ. It could be argued that Article 36 of the Charter implies that ‘judicial settlement’ in Article 33 could be construed to mean the ICJ, as ‘legal disputes should as a general rule be referred by the parties to the International Court of Justice’.
However, that Article concerns disputes which the Security Council is seized of, and which are ‘likely to endanger the maintenance of international peace and security’ if they continue. Furthermore, such referral to the ICJ has to be ‘in accordance with the provisions of the Statute of the Court’. Hence by a process of circumlocution, we are back with Statute, that is to say, the consent regime under Article 36.
Of particular interest is the following question posed in the Venezuelan statement, following last week’s announcement by the UN Secretary General: ‘It is worth asking why the International Court of Justice was recommended to two States that do not recognise its jurisdiction’.
While Article 93 of the UN Charter states that ‘[A]ll Members of the United Nations are ipso facto parties to the Statute of the International court of Justice’, the fact remains that consent to the jurisdiction of the Court in contentious cases still has to be express, and the parties to a dispute would normally refer it to the Court jointly.
Legal scholars, including Brownlie, Akehurst – even the much referred to, and much maligned Wikipedia – are ad idem on this. Hence “the word ‘parties’ is in the plural, and implies that all the parties to the dispute must agree that the case should be referred to the Court”.
Again, “[T]he Court has often referred to the fact that the jurisdiction of the Court to hear and decide a case on its merits depends on the will of the parties. This principle, reflected in Article 36 of the Statute, rests on international practice in the settlement of disputes and is a corollary of the sovereign equality of states”.
But, as in so many things legal, to the rule there are instances which approximate to exceptions. There are examples of cases heard by the ICJ where one party initiated proceedings and the other joined subsequently; international law refers to this as forum prorogatum.
Conversely, the ICJ website lists eight cases where “the Court found that it could take no further steps upon an Application in which it was admitted that the opposing party did not accept its jurisdiction.
”In the case of Nicaragua v. USA, which concerned the mining of the former’s harbour by the latter, the US, which had accepted the compulsory jurisdiction of the Court in advance through Article 36(2) of the Statute, chose to withdraw such ante hoc acceptance, arguably because things were not going its way!
Furthermore, it is at best unhelpful, or at worst misleading, to plead the case of the Philippines v. China as an example of a unilateral application for a case to be heard. This is so because that case was heard by the Permanent Court of Arbitration, not the ICJ, through proceedings initiated at the UN Law of the Sea Tribunal.
The rules under which the Law of the Sea Tribunal operate are fundamentally different from those governing proceedings at the ICJ. Thus, at paragraph 12 of that Arbitral award, it is stated as follows: ‘The possibility of a party refraining from participating in dispute resolution proceedings is expressly addressed by the Convention, which provides in Article 9 of its Annex VII that the “[a]bsence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings.”
The Tribunal has thus held that China’s non-participation does not prevent the arbitration from continuing.’ Respectfully, no such rule applies to proceedings at the ICJ, neither would such a ruling emanate from that forum.
This case is of little or no precedential value as regards unilateral requests to the ICJ, notwithstanding the screaming headlines in some sections of the media.
However even in these examples earlier cited of instances before the ICJ which could be termed exceptions, the consent of the other party was still required, albeit subsequently. It is submitted that as regards the Guyana Venezuela controversy the optimal solution would be for the parties to express consent jointly.
Moreover, it should be noted that submitting to the jurisdiction of the court is one aspect, but this is coupled with the co-related obligation of the consenting parties to accept the judgment rendered by the ICJ as final. At bottom, it is this dual commitment which would best serve Guyana’s interests.
It has also been argued by another “expert” commentator that what transpired last week was that the UN Secretary General referred the matter to the ICJ, and that this referral would be regarded as a request for an Advisory Opinion on the matter.
Notwithstanding that President Granger in his address to the nation stated that the UN Secretary General ‘has decided to refer the controversy’to the ICJ, what Mr. Gutteres in fact did was to choose ‘the International Court of Justice as the means to be used for the solution of the controversy’, as he is required to do under the 1966 Geneva Agreement.

However, to be clear: albeit a request for an Advisory Opinion is often transmitted to the Court by the Secretary General, the office holder himself is not clothed with the authority to make such a request, and in reality does so on behalf of the General Assembly of the Security Council. But such a request comes in cases where either Organ of the UN is already seized of the matter, which is not the case with the territorial controversy.
This then, does not meet the procedural test of a request for an Advisory Opinion. Besides, Advisory Opinions are non-binding, and would not go as far as to provide Guyana with the solution which it is seeking.
So, in the words of V.I. Lenin, “What is to be done?” As was reiterated by Major Gen (Ret’d) Joe Singh at last week’s U.G. forum, diplomacy has always been Guyana’s first line of defence. He of all people should know, likewise Brig. (Ret’d) David Granger.
We were no match seventeen years ago for Suriname’s gunboats off the Corentyne, so how could we now confront Venezuela with its naval warships and air force fighter jets? This however is in no way to deny the capability of the GDF in close quarter combat and jungle warfare skills, but this fight – heaven forbid – would be in various and sophisticated theatres.
In the premises, this task falls to Guyana’s mainly geriatric diplomatic corps. The current cohort includes retirees, persons with minimal prior diplomatic exposure and skills, and a holdover from the PPP/C political appointees – the notable exceptions being our Ambassadors in Washington and Suriname.
For starters, they and the other retirees who currently hold the reins of our foreign policy should familiarise themselves more with the principles of international law and begin specifically to orbit within the rarified air of the law pertaining to international boundaries and dispute settlement.
The Guyana Foreign Service needs to be returned to those halcyon days of the 1970’s and 80’s. Nothing short of the calculus which produced the diplomatic coup achieved by Guyana’s dethronement of Brasil on the ICJ in 1987, when Dr. Mohamed Shahabuddeen replaced Jose Sette Camara, would suffice in the current circumstances.
Friends, Guyanese, Countrymen, Lend me your ears! All is not lost, but diplomacy, international law and the mutual respect for the sovereignty of states will hopefully prevail at the end of the day.