Venezuela’s stance on border issue illogical and erroneous – Lawyers representing Guyana tell ICJ

Jul 01, 2020 News

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By Rehanna Ramsay

The delegation of lawyers who presented arguments on Guyana’s behalf at the International Court of Justice (ICJ) yesterday, held the overarching view that Venezuela’s stance in the border dispute case is illogical and erroneous.

The team of distinguished lawyers representing Guyana included Guyana’s former Attorney General, Sir Shridath Ramphal; International law Professor; Payam Akhavan; experienced International Arbitrator; Paul Reichler; British –French Attorney, Phillipe Sands, and French expert on international law, Allain Pellet.
The parties made a series of presentations via videoconference to the ICJ located at the Peace Palace in Hague Netherlands in relation to Court’s jurisdiction to hear the border dispute case, which has its genesis in an Arbitral Award of 3 October 1899 between Guyana and Venezuela.
A bipartisan delegation of State representatives including former Foreign Affairs Ministers Gail Teixeira, Rashleigh Jackson and Carl Greenidge, Foreign Affairs officials Audrey Waddle, Cedric Joseph, and Elizabeth Harper were also tuned in to the hearing.
Representatives of the Bolivarian Republic had indicated that it will not participate in the proceedings since in their view, the ICJ lacked jurisdiction to adjudicate the border complaint.
Venezuela had written to the ICJ, claiming that the Secretary-General of the United Nations (UN), António Guterres, exceeded his authority under the 1966 Geneva Agreement when he referred the case to the ICJ.
In a bid to defend the case before the Court, Guyana’s legal team addressed the Court on the issues of its jurisdiction and consent.

At several points in their arguments, members of the team reminded the panel of jurists, led by the ICJ’s President Abdulqawi Yusuf, of the exclusive and irrevocable authority in the Secretary General cited under Article IV (2) of the Geneva agreement.
The lawyers held that the Secretary General made a reasonable, sensible choice based on legal advice to refer the case to the ICJ— the principal judicial organ of the UN.
The lawyers stressed too that though Venezuela has chosen not to participate in the ICJ proceedings that does not rule out the fact that the country consented to finding a solution under the 1966 Geneva Agreement – a contract, which remains legally binding to date. Towards the end of the proceedings, the ICJ‘s President told the parties that the court will determine its jurisdiction and inform the parties of its decision in due course.
ANCIENT DISPUTE
During the close to three hours of presentations, Guyana’s Co –Agent in the proceedings, Sir Shridath gave an overview of the series of events that is rooted in the more than a century-old quarrel, between Guyana and its western neighbour.

In his submissions, the lawyer was keen to note the Arbitral Award of 3 October, 1899 was made at the behest of Venezuela but the country later tried to override the provisions of the agreement. He noted Venezuela enjoyed and continues to yield benefits as result of that award.
“Yet, the process that brings us here today is rooted in Venezuela’s repudiation of that very award – a repudiation of more than six decades after it was handed down has the two countries at odds,” he said.
Sir Shridath said nonetheless that in time past both Guyana and Venezuela had shown a willingness to participate in forums towards finding an amicable end to the dispute. “It is however very unfortunate that Venezuela has chosen not to participate in these proceedings,” he said.
Sir Shridath asked the Court to however give careful consideration to the case since it holds grave implications as it relates to Guyana’s sovereignty. He told the court that inter alia, Venezuela’s dispute with Guyana has resulted in threats over the nation’s full sovereignty particularly over the territories in Essequibo.
The lawyer outlined that Guyana has suffered as a consequence of these threats and the use of force by Venezuela against persons engaged in economic or commercial activity in these territories. Sir Shridath told the ICJ that that the nation is hopeful that the Court will use its power to bring an end to the century- old dispute between the neighbours.
ORIGINAL ARGEEMENT
Addressing the Court on the origin of the dispute and the circumstances which led to the 1966 agreement, Professor Akhavan provided an overview of the October 3, 1899 Arbitral Award between Guyana and Venezuela.Professor Akhavan explained that it was following Venezuela’s independence in the mid 1890s and discovery of gold in the region of the Upper Cuyuni River that the Bolivian Republic then under the control of the United States of America proposed that a treaty claiming the Essequibo River as a boundary between British Guiana.

Under the threat of war, the British had agreed to arbitration —that arbitration took the form of the October 3, 1899 award. He said that that award led to the production of maps in 1905, which depict the clear demarcation of boundaries between Guyana and its western neighbour. He stressed the issue had been settled and wholly accepted by both nations particularly Venezuela that noted its satisfaction in securing the territories it sought for in arbitration.
He submitted that the 1905 map demarcating Guyana’s boundary was exceptionally accurate. The lawyer explained, however, that all of this changed in the 1960s when Venezuela claimed that the 1899 award was null and void.“This formed the basis of Venezuelan repudiation of the boundary established by the award and a claim to more than 3/4 of Guyana’s territory,” Akhavan noted.
The lawyer said that in the face of another controversy, a now newly independent Guyana sought help from its international partners towards a solution. According to Akhavan, solution to resolve the dispute took the form of the 1966 Geneva agreement.
LEGALLY BINDING

Reichler submitted that the 1966 agreement and the decision of the UN Secretary General which establishes the Court’s jurisdiction to resolve the dispute over the frontier.
The lawyer gave an overview of the event, which led to the parties to signing an agreement for a peaceful resolution in Geneva. In an explanation of the treaties, Reichler explained that Guyana and Venezuela have two different understanding of the terms of the agreement.
He noted that while Guyana has remained steadfast and abiding towards finding a peaceable solution towards the dispute, Venezuela has now taken a completely erroneous, illogical stance to ending the quarrel.
Reichler pointed out that Venezuela had noted that understood the text of 1966 and consented to treaties.
The international arbitration expert noted that under Article IV (2) of the Geneva Agreement of 1966 to resolve the controversy over the Frontier between Venezuela and British Guiana, the UN Secretary General is empowered to inter alia decide on the settlement to be employed should there be any issues arising from that Agreement.
The lawyer argued that, “None of these facts are disputed by Venezuela in its written submissions to the ICJ.” As such, he noted that UN Secretary General’s decision to seek the Court’s intervention towards having the controversy resolved was in keeping with the still valid and legally binding treaty. Reichler noted too that though Venezuela has not participated in the oral submissions, it has submitted in writing its views on the matter in essence that it agreed that the court had jurisdiction.STILL VALID
In a continuation of the arguments presented by Reichler, Professor Sands expounded on subscription of legal validity and binding effect of the Award. He noted even after centuries, the award is still a full, perfect, and final settlement of all questions relating to determining the boundary line between the colony of British Guiana and Venezuela.
Further, the lawyer pointed out that that award made the way for the 1966 Geneva Convention which introduced the involvement of the United Nations.
“Article IV (2) stipulates that if, within three months of receiving the final report, the Government of Guyana and the Government of Venezuela should not have reached agreement regarding the choice of one of the means of settlement provided in Article 33 of the Charter of the United Nations, they shall refer the decision as to the means of settlement to an appropriate international organ upon which they both agree or, failing agreement on this point, to the Secretary General of the United Nations.

If the means so chosen do not lead to a solution of the controversy, the said organ or, as the case may be, the Secretary General of the United Nations shall choose another of the means stipulated in Article 33 of the Charter of the United Nations, and so on until the controversy has been resolved or until all the means of peaceful settlement there contemplated have been exhausted,” the lawyer said.

He noted however, in recent years, Venezuela had raised contentions about the agreement and decision to take the matter to Court.
Further, the lawyer submitted that on January 30, 2018, the Secretary General was acting on this still very valid agreement when he determined that the good offices process had failed to achieve a peaceful settlement of the controversy.
JURISDICTION
In conclusion of the arguments on jurisdiction, French lawyer and Professor Pellet said that the court must differentiate the issues of consent and jurisdiction. He noted that though Venezuela has chosen not to participate in the proceeding that does not rule out the fact that it consented to finding a solution under the 1966 Geneva agreement.
He stressed too that the Court should not at this point, trouble itself without the issue of Venezuela’s consent since it is separate issue from that of the Court’s jurisdiction.
Pellet clarified that the Jurisdiction of the ICJ was foisted in the decision made by the UN Secretary General. He urged the bench of 15 judges of the ICJ to move forward with hearing and determining the merits of the case in accordance with international law.

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