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It is not over until the court decides

Jun 22, 2018 Features / Columnists, Peeping Tom

A number of Guyanese are confused over the implications of the decision of Venezuela not to participate in the case brought by Guyana and which is concerned with the validity of the 1899 Arbitral Award between United Kingdom, Venezuela and then British Guiana.
Some Guyanese are of the opinion that Venezuela’s decision means that, in boxing terms, Venezuela has “thrown in the towel” and in effect is not defending the action. They are further assuming that it is merely now a formality that the Court will rule in Guyana’s behalf given that Venezuela is not a party to the proceedings.
First, what has taken place is not a trial. It is a mere procedural hearing which has to be followed in all contentious cases before the ICJ. The procedural hearing is tantamount to having a brief by the Court to the parties concerned, explaining to them the procedures to be followed. It is not a commencement of the case.
Second, Venezuela has made it clear that it does not recognize the jurisdiction of the Court and therefore there is nothing to defend. Venezuela made its position, on the jurisdiction on the Court, known by way of a Declaration something which the Court, whenever the case commences would have to note.
Venezuela said that it rejects totally the jurisdiction of the Court over any matter involving it. In further emphasizing its point about the lack of jurisdiction, Venezuela stated that Guyana’s application to the Court is unilateral and does not have its consent. While Venezuela will therefore not be appearing, its Declaration in which it clearly refuses to consent to the jurisdiction of the Court will be noted.
Third, as mentioned above, a great many Guyanese are confused and believe that since Venezuela is not appearing that the absence of its participation means that Guyana’s position will inevitably prevail. This is far from so. Guyana has hurdles to cross.
Despite the fact that Venezuela will not be appearing before the Court, Guyana still has to argue on the question of the Court’s jurisdiction. One newspaper has incorrectly assumed that because the Court had invited Guyana and Venezuela to the procedural hearing that this implied that the Court accepted its jurisdiction to hear the case. This is not so. The Court has made no pronouncement, not even considered as yet, the issue of jurisdiction.
Guyana is no doubt hoping to convince the Court that it has jurisdiction to hear the case by virtue of the Geneva Agreement of 1966, which invests in the Secretary General of the United Nations, the right to choose a peaceful means of settlement to the controversy between Guyana and Venezuela over the Essequibo. But as pointed out before, in this column, the right to choose the ICJ as the means of resolving the issue, does not automatically vest jurisdiction in the ICJ.
Guyana, therefore, is still required to establish jurisdiction, more so since Venezuela has made it clear to the Court that it has not consented to the Court hearing the matter, nor has it ever consented to the jurisdiction of the ICJ hearing any matter involving Venezuela.
If Guyana fails on the jurisdiction issue that effectively ends the case. It is over. The ICJ cannot pronounce on anything once it rules there is no jurisdiction. The situation will return to the status quo ante.
Guyana is hoping that it can convince the Court of the Court’s jurisdiction to hear the case. If Guyana does succeed, then it can begin making its case in front of the ICJ. The fact that Venezuela will not be present does not create a fait accompli. There is no automatic victory for Guyana as some deluded Guyanese believe. Guyana still has to argue the merits of its contention that the 1899 Award is not a nullity.
The ICJ will not, as some Guyanese misguidedly believe, take the position that because Venezuela has opted out, then Guyana has no case to prove. Guyana does have a case to prove, once it overcomes the jurisdictional hurdle.

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