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Dec 10, 2023 Court Journal, Court Stories, Features / Columnists, News, Waterfalls Magazine
Waterfalls Magazine – In a resolute stand, Guyana’s leaders affirm their commitment to resolving the longstanding border controversy with Venezuela before the International Court of Justice (ICJ).
Despite diplomatic pressure, the Government of Guyana (GoG) insists on the ICJ’s role in providing a conclusive judgment on the matter; stating that they have no intention of having direct dialogue with the Nicolas Maduro-regime with regards to the border controversy.
Vice President Bharrat Jagdeo, speaking at a recent press conference, condemned Venezuelan President Maduro’s attempts to annex Essequibo. Jagdeo asserts that Guyana will not be swayed by these actions and remains steadfast in its decision to pursue legal recourse at the ICJ. Jagdeo stated that Maduro has proved that he cannot be trusted, and therefore, any out of court attempt to settle the border controversy will be a waste of time.
In 1899, Guyana (then British Guiana) and Venezuela participated in an Arbitral Award, conclusively settling their border, including the Essequibo territory as part of Guyana. However, prior to Guyana’s independence, Venezuela revived the border controversy.
This led to the establishment of the 1966 Geneva Agreement, a legally binding instrument addressing the controversy over the 1899 Arbitral Award and the land boundary between Guyana and Venezuela. The agreement’s Article IV outlined a procedure for mandatory settlement. If bilateral negotiations failed, both countries agreed to refer the matter to the United Nations Secretary General.
Initially, the Secretary General employed his good offices to facilitate a mutually satisfactory settlement. Despite over 20 years of engagement between Guyana and Venezuela, this process yielded no progress. Consequently, the Secretary General declared the failure of the good offices process. According to Article IV of the Geneva Agreement, the next step was the selection of a new means of dispute resolution. The Secretary General opted for litigation before the International Court of Justice.
In March 2018, Guyana submitted an application to the ICJ, seeking a final and binding judgment on the validity of the 1899 Arbitral Award and the boundary between the two states.
Venezuela twice appeared before the Court to object to its exercise of jurisdiction in the matter, and the Court rejected Venezuela’s objections both times. The Court ruled that the basis of its jurisdiction was precisely Article IV of the Geneva Agreement and the Secretary General’s decision that the controversy should be resolved by the Court.
President Irfaan Ali had underscored the obligatory nature of ICJ orders for all parties, emphasizing the commitment outlined in the UN charter for states to earnestly adhere. Emphasizing the ICJ as the designated platform for a comprehensive resolution, he encouraged Venezuela to engage constructively in the international legal process.
While the substantive case is still ongoing, on December 1, 2023, the ICJ in a unanimous decision ordered Venezuela not to take any action that would alter Guyana’s control over its Essequibo region – acting on the results of its contentious referendum which is aimed at getting the public’s support for Venezuela’s decisions regarding the Essequibo region. The court also ordered both Guyana and Venezuela to refrain from any action which might aggravate or extend the controversy or make it more difficult to resolve.
The ICJ, located in The Hague, in The Netherlands is the principal judicial organ of the UN. Established in 1945, its primary function is to settle, in accordance with international law, legal disputes submitted by States, and to give advisory opinions on legal questions referred to it by authorized UN organs and specialized agencies.
The ICJ’s powers include jurisdiction over contentious cases, where states submit disputes voluntarily, and advisory jurisdiction. The court’s decisions are binding on the parties involved and are considered final.
The ICJ operates based on the principles of international law and strives to promote peaceful resolution of conflicts. It has the authority to interpret treaties, customary international law, and general principles recognized by civilized nations.
While the ICJ plays a crucial role in the international legal framework, its effectiveness is dependent on the cooperation of states and their willingness to abide by its decisions.
The United Nations Security Council (UNSC) has the authority to take measures to enforce compliance with ICJ orders.
The Security Council consists of ten elected members, and five permanent members–China, the United States, France, the United Kingdom, and the Russian Federation.
If a state defies ICJ orders, the matter can be brought to the attention of the Security Council. The UNSC may then decide on appropriate actions under Chapter VII of the UN Charter.
Chapter VII grants the Security Council broad powers to address threats to international peace and security. These measures can include economic sanctions, diplomatic measures, and even the use of force. However, any enforcement action requires the approval of at least nine of the 15 Council members, including the concurring votes of all five permanent members (China, France, Russia, the United Kingdom, and the United States).
It’s important to note that the use of force is considered a last resort and is typically subject to significant diplomatic negotiations. The Security Council’s response depends on the specific circumstances of each case and the political dynamics among its member states.
The creation of the Court represented the culmination of a long process of developing methods for the pacific settlement of international disputes, the origins of which can be traced back to classical times.
Article 33 of the United Nations Charter lists the following methods for the pacific settlement of disputes between States: negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, and resort to regional agencies or arrangements, to which should also be added good offices.
Some of these methods involve the services of third parties. For example, mediation places the parties to a dispute in a position in which they can themselves resolve their dispute thanks to the intervention of a third party. Arbitration goes further, in the sense that the dispute is submitted to the decision or award of an impartial third party, so that a binding settlement can be achieved. The same is true of judicial settlement (the method applied by the International Court of Justice), except that a court is subject to stricter rules than an arbitral tribunal, particularly in procedural matters.
Historically, mediation and arbitration preceded judicial settlement. The former was known in ancient India and the Islamic world, whilst numerous examples of the latter can be found in ancient Greece, in China, among the Arabian tribes, in maritime customary law in medieval Europe, and in Papal practice.
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