ICJ throws out Venezuela objection to border controversy case

Apr 07, 2023 Court Stories, Features / Columnists, News

… President Ali welcomes the ruling

By Rehanna Ramsay

Kaieteur News – The International Court of Justice (ICJ), on Thursday dismissed Venezuela’s preliminary objection in the Guyana/Venezuela border controversy case.

Venezuela in its preliminary objection submitted that the United Kingdom (UK) is an indispensable third party to the proceedings and that the Court cannot decide the question of the validity of the 1899 Arbitral Award in the United Kingdom’s absence.

Venezuela argued that a judgment of the Court on the merits in this case would involve, as a prerequisite, an evaluation of the lawfulness of certain “fraudulent conduct” allegedly attributable to the United Kingdom in respect of the 1899 Award.

The Peace Palace, which houses the ICJ in The Hague, Netherlands.

However, Guyana argued that Venezuela’s preliminary objection concerns the exercise of the Court’s jurisdiction and should be rejected as inadmissible, because it is jurisdictional in nature and not an objection to admissibility.

Guyana submitted that the Court’s Order of 19 June 2018, in which the Court decided that the written pleadings were first to be addressed to the question of its jurisdiction, required the Parties to plead “all of the legal and factual grounds on which the Parties rely in the matter of its jurisdiction”.

Thursday’s decision paves the way for the ICJ to move forward with hearing Guyana’s substantive case. Guyana has asked the International Court to rule on the validity of the Arbitral Award and its determination of the boundary between Guyana and Venezuela.

Guyana has also prayed for the Court to determine whether the boundary established by that Award and the 1905 Agreement demarcating it, is the lawful boundary between the two countries.

In delivering the ruling, President of the Court, Joan E. Donoghue, said that the court made a majority decision in favour of Guyana.

President Donoghue disclosed that out of the panel of 15 judges that adjudicated the matter; 14 ruled in favour of Guyana while one judge ruled against.

President of the International Court of Justice, Joan E. Donoghue (Reuters)

Venezuela had sought to have the case thrown out on the basis of its objection. But the ICJ did not agree with that contention and ruled that Venezuela participated in discussions with Guyana during the Mixed Commission and the Good Offices process and never requested the involvement of the United Kingdom.

“The court concludes that the Geneva agreement specifies particular roles for Guyana and Venezuela, and that its provisions including Article eight, do not provide a role for the United Kingdom in choosing or in participating in the means of settlement of the dispute pursuant to Article four,” the ICJ found.

Further, President Donoghue said that the court considers that the Scheme established by Articles Two and Four of the Geneva Agreement reflects a common understanding of all parties to that agreement, that the controversy which existed between the United Kingdom and Venezuela on 17 February 1966 would be settled by Guyana and Venezuela through one of the Dispute Settlement Procedures envisaged in the Agreement.

The Judge also said that both parties were in agreement that Great Britain had no role to play in the settlement of the controversy.

“The Court concludes that by virtue of being a party to the Geneva Agreement, the United Kingdom accepted that the dispute between Guyana and Venezuela could be settled by one of the means set out by the UN Charter. If the court on the judgment of its merits were called to pronounce on certain conduct attributed to the United Kingdom, which cannot be determined at present, this would not preclude the court from exercising its jurisdiction which is based on the application of the Geneva Agreement. The Preliminary objections raised by Venezuela must therefore be rejected,” she said.

Attorney General and Minsiter of Legal Affairs, Anil Nandlall (center) with Agent Carl Greenidge (left) and Co-Agent Elisabeth Harper (Right) with other members of Guyana’s team at the International Court of Justice, Hague, Netherlands. (Photo taken from Anil Nandlall’s Facebook page)

This is the second time the International Court has rejected jurisdictional objections raised by Venezuela. In December 2020, the Court overruled Venezuela’s objections by a vote of 12-4. On that occasion, Venezuela argued that the ICJ did not have jurisdiction to hear the case. In June 2022, Venezuela raised a new objection. Oral hearings were held in November 2022, during which both parties appeared and presented their arguments before the Court.

Thursday’s ruling rejected that objection, and will now require Venezuela to submit its written pleadings on the merits of the case –the validity of the Arbitral Award.

Meanwhile, President Irfaan Ali welcomed the Court’s ruling. In a video statement, the Guyanese leader said the ruling paves the way for the Court to proceed to decide on the controversy between Guyana and Venezuela on merit and “ultimately issue a final and binding determination on the validity of the 1899 Arbitral Award that fixed the land boundary between Venezuela and then-British Guiana.”

“Venezuela and the United Kingdom recognised the validity of that Arbitral Award and the resulting international boundary for more than 60 years. Upon its independence in 1966, Guyana also recognised the Award and the boundary, but Venezuela had changed its position and begun claiming more than two-thirds of Guyana’s territory west of the Essequibo River,” the Head-of-State said.

President Ali said too that “Guyana remains confident that its longstanding international boundary with Venezuela will be confirmed by the Court.”

He reminded that Guyana has always been “fully committed to the peaceful resolution of the dispute with its neighbour and sister Republic in accordance with international law.”

Similarly, the Opposition A Partnership for National Unity (APNU) and the Alliance For Change (AFC) welcomed the ICJ decision.

In a statement, the parties said that the Court’s rejection of Venezuela’s preliminary objections has cleared the way for the ICJ to adjudicate on the merits of the case, in pursuit of a final and binding judgment on the matter.

“Today’s [yesterday’s] decision is further proof of the validity and rightness of our position. We join with all Guyanese in praising the excellent work of our legal team and representatives. Guyanese will continue to stand united on the issue of defending its territorial integrity and sovereignty,” the statement said.

Guyana is being represented by Carl B. Greenidge, as Agent; Ms. Elisabeth Harper, as Co-Agent; Mr. Paul S. Reichler, Attorney at Law, Mr. Philippe Sands, KC, Mr. Pierre d’Argent, Christina L. Beharry, Foley Hoag LLP, as Advocates; Mr. Edward Craven, Matrix Chambers, Mr. Juan Pablo Hugues Arthur, Foley Hoag LLP, member of the Bar of the State of New York, Isabella F. Uría, as Counsel; Attorney General and Minister of Legal Affairs, Anil Nandlall, Gail Teixeira, Minister of Parliamentary Affairs and Governance; Ronald Austin, Ambassador, Adviser to the Leader of the Opposition on Frontier Matters, Donnette Streete, Mr. Lloyd Gunraj, First Secretary, chargé d’affaires, Embassy of the Co-operative Republic of Guyana to the Kingdom of Belgium and the European Union, and as Advisers; Nancy Lopeza and Foley Hoag LLP.