Latest update June 30th, 2024 12:59 AM
Nov 10, 2023 Features / Columnists, Peeping Tom
Kaieteur News – The International Court of Justice (ICJ) allows for the making of provisional orders. Guyana has asked the court to make provisional orders about the referendum which is slated to be held on 3rd December 2023 in Venezuela.
In that referendum, Venezuela is asking its people five main questions. First, “Do you agree to reject by all means by the law, the line fraudulently interposed by the 1899 Paris Arbitration Award, which seeks to deprive us of our Guayana Esequiba?”
Second, “Do you support the 1966 Geneva Agreement as the only valid legal instrument to reach a practical and satisfactory solution for Venezuela and Guyana regarding the controversy over the territory of Guayana Esequiba?”
Third, “Do you agree with Venezuela’s historical position of not recognizing the jurisdiction of the International Court of Justice to resolve the territorial controversy over Guayana Esequiba?”
Fourth, “Do you agree to oppose, by all legal means, Guyana’s claim to unilaterally dispose of a sea pending delimitation, illegally and in violation of international law?”
Fifth, “Do you agree with the creation of the Guayana Esequiba state and the development of an accelerated plan for comprehensive care for the current and future population of that territory, which includes, among others, the granting of citizenship and identity card? Venezuela, by the Geneva Agreement and International Law, consequently incorporating said state on the map of Venezuelan territory?”
In its Request, Guyana is asking the ICJ to make the following provisional measures:
One, “Venezuela shall not proceed with the Consultative Referendum planned for 3rd December 2023 in its present form;”
Two, “In particular, Venezuela shall not include the First, Third or Fifth questions in the Consultative Referendum;”
Three, “Nor shall Venezuela include within the ‘Consultative Referendum’ planned, or any other public referendum, any question encroaching upon the legal issues to be determined by the Court in its Judgment on the Merits, including (but not limited to): a). the legal validity and binding effect of the 1899 Award; b). sovereignty over the territory between the Essequibo River, and the boundary established by the 1899 Award and the 1905 Agreement; and c). the purported creation of the State of ‘Guayana Esequiba’ and any associated measures, including the granting of Venezuelan citizenship and national identity cards.”
Fourth, “Venezuela shall not take any actions that are intended to prepare or allow the exercise of sovereignty or de facto control over any territory that was awarded to British Guiana in the 1899 Arbitral Award. 5. Venezuela shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.”
In response to this Request, the Vice President of Venezuela, Delcy Rodriguez, in a recent interview asserted that Guyana’s request for provisional measures to halt the consultative referendum in Venezuela represented an act of desperation. She emphasized that the International Court of Justice could not intervene in Venezuela’s internal affairs, including its constitutional order. Rodriguez was attempting to suggest that the ICJ could not prevent a consultative referendum approved unanimously by the Venezuelan Parliament.
The Venezuelan Vice President questioned the legal and juridical basis for the International Court of Justice to intervene in Venezuela’s internal matters, dismissing the notion as devoid of legitimacy.
The ICJ’s decision will be an important one. It is difficult to see how the court can be asked to stop a referendum, an act which would be tantamount to interfering in the internal affairs of a State. The Caribbean Community, in its statement of October 25th, has conceded that the referendum is a domestic matter for Venezuela (CARICOM described it as a domestic construct) but it says that its summary effect is to undermine peace and security. It also said that some of the questions, if passed in the affirmative, constitute an authorization to annex the territory of Guyana.
Despite the ‘domestic’ argument, there is a possibility that the court may claim jurisdiction to issue provisional measures on the basis that some of the questions are prejudicial to the case. But in my humble estimation, this is a very remote possibility. ICJ will, I believe, defer from making the provisional orders.
Whatever the Court decides will not change anything in so far as Venezuela is concerned. That country rejects the jurisdiction of the ICJ. According to Rodriguez, since the establishment of the International Court of Justice, Venezuela has consistently maintained a clear position of not acknowledging the Court’s compulsory jurisdiction. The Venezuelan Vice President argued that Venezuela could not be compelled to adopt a means of resolution without expressing its will to do so.
Guyana may lose the battle to secure the provisional orders. However, it is not likely to lose the main case concerning the validity of the 1899 Arbitral Award. But even if a favorable judgment in the latter comes Guyana’s way, that will not remove Venezuela’s claim.
(The views expressed in this article are those of the author and do not necessarily reflect the opinions and beliefs of this newspaper and its affiliates.)
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