The ICJ has no jurisdiction to hear Guyana’s petition

Apr 22, 2018 Features / Columnists, Peeping Tom

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A great many Guyanese believe that Guyana is going to win its case before the International Court of Justice (ICJ). They have not adequately addressed their minds to the fundamental question as to whether the ICJ has jurisdiction to hear the case, in the absence of consent by Venezuela.
The Guyanese public is accepting what the lawyers are presumably telling the Guyana Government, and that is that the Geneva Agreement of 1966 creates jurisdiction for the International Court of Justice (ICJ) to hear the case. It is this column’s belief that without Venezuela’s consent the ICJ has no jurisdiction to hear the case
Guyana has set aside US$15M to pay lawyers prosecuting Guyana’s case before the ICJ. That is three billion dollars in legal fees. With so much money at stake, Guyana should have sought an independent opinion on the issue of jurisdiction before it went ahead and filed its petition. If it is established that the ICJ has no jurisdiction to hear the case, then all the monies paid to our lawyers would have been in vain.
It is a fundamental rule of the ICJ that consent by parties to a dispute must be had, and had voluntarily, before ICJ jurisdiction is triggered.
The ICJ Handbook states:
“A fundamental principle governing the settlement of international disputes is that the jurisdiction of an international tribunal depends in the last resort on the consent of the States concerned to accept that jurisdiction. Accordingly, no sovereign state can be made a party to proceedings before a court unless it has in some manner or other consented thereto. It must have agreed that the dispute or the class of disputes thereto should be dealt with by the Court.”
The United Nations Conference which established the ICJ had agreed that the Court’s jurisdiction should be voluntary and not compulsory. Mutual consent of the parties to a case, therefore, underpins the jurisdiction of the court.
There are reasons why the consent of states is needed. The ICJ’s jurisdiction is grounded in the idea of sovereign states. States are sovereign entities. In the new international political order which emerged with the establishment of the United Nations, no supranational body could be allowed to impose compulsion on a state in a legal matter without its consent.
The ICJ has no enforcement arm and therefore depends on the state’s willingness to accept the rule of international law. Since the ICJ’s ruling is binding on parties to a dispute, it would be easier for adherence to these decisions if the parties voluntarily accept the jurisdiction of the court.
According to the statutes of the ICJ, consent is expressed in three ways. The first is through states accepting the compulsory jurisdiction of the ICJ to hear disputes between them. Guyana and Venezuela have not granted compulsory jurisdiction to the ICJ.
The second method of expressing consent is through special agreements signed between parties to a dispute. These special agreements allow for the parties to invoke the jurisdiction of the ICJ, but equally, to specify on just what they require the court to adjudicate. There is no Special Agreement between Guyana and Venezuela referring the dispute to the ICJ.
The third method by which ICJ jurisdiction can be invoked is through treaties and convention. The Peeper rather suspects that Guyana believes, or it has been advised, that the Geneva Agreement of 1966 creates jurisdiction for the ICJ to hear the case. The Peeper disagrees.
The Geneva Agreement is not listed in the archives of the United Nations as one of the agreements which grants jurisdiction to the ICJ to entertain disputes between Guyana and Venezuela. The Geneva Agreement merely allows for the Secretary General to choose one of the pacific means of settlement of the dispute which has arisen between Guyana and Venezuela. But the Geneva Agreement does not expressly grant jurisdiction to the ICJ.
In this regard, the Geneva Agreement contrasts with the Pact of Bogotá, which was invoked at the ICJ by Bolivia in relation to its dispute with Chile. The Pact of Bogotá expressly, not implicitly, grants jurisdiction to the ICJ to hear disputes between parties to the Pact. Article XXXI of the Pact recognizes the jurisdiction of the ICJ as compulsory ipso facto, without the necessity of any special agreement so long as a Treaty is in force.
I reiterate that the Geneva Agreement is not an agreement in which both Guyana and Venezuela expressly recognize the jurisdiction of the ICJ. It recognizes the right of the Secretary General to choose a pacific means of settlement of the dispute. The Secretary General can choose the ICJ, but this is not the same as granting jurisdiction to the ICJ to hear the dispute. Had it been so, it would have collided with that fundamental principle of the ICJ which states that the jurisdiction of the court requires the voluntary consent of all parties.
If Venezuela objects to the jurisdiction of the Court, Guyana’s petition will die a natural death. What will happen then to the monies set aside for the legal fees?

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