By Sir Ronald Sanders
Guyana has won a second judgement in an ongoing case against Venezuela, at the International Court of Justice (ICJ) at the Hague, “to confirm the legal validity and binding effect” of an 1899 arbitration that determined the boundary between Guyana and Venezuela as “a full, perfect and final settlement”.
The Court made the latest judgement with 14 Judges in favour and one against. The Judge, casting the single dissenting vote was Phillipe Couvreur who was chosen by the Venezuelan Government to sit as an ad hoc judge in the case.
At stake in the case was the acceptability or rejection by the Court of a preliminary objection from the Venezuelan government, which argued that the United Kingdom (UK) is an indispensable third party without whose consent the Court cannot adjudicate upon the dispute.
The UK is the former colonial power in Guyana (formerly British Guiana) which became an independent, sovereign state on 26 May 1966. The UK was party to the 1899 arbitral award, but by an agreement, signed on 17 February 1966 in Geneva (to which Guyana became a party at its independence) the settlement of the dispute, which Venezuela resurrected in 1962, was left to Guyana and Venezuela in accordance with procedures set out in the agreement.
The Judges of ICJ, having considered the legal arguments made by Guyana and Venezuela, and after examination of the historical facts of the case, decided to reject the Venezuelan preliminary objection, saying that the exercise of the Court’s jurisdiction “is based on the application of the Geneva Agreement” and that the UK was not involved in the dispute settlement arrangements between Guyana and Venezuela, nor did either of them “request the United Kingdom’s participation”.
An important aspect of the 1966 Geneva Agreement was that, as the Court put it, “Guyana and Venezuela could submit the dispute to one of the means of settlement set out in Article 33 of the Charter of the United Nations, without the involvement of the United Kingdom.” Article 33 allows for the parties to a dispute “to seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.” One of the solutions is that if the parties fail to reach agreement regarding the means of settlement, the secretary-general of the United Nations shall choose another of the means stipulated in Article 33 of the Charter of the United Nations.
Guyana and Venezuela failed to find a settlement after 52 years of direct discussion, mixed commissions and mediation. Therefore, on 30 January 2018, the UN secretary-general, António Guterres, chose the ICJ “as the means that is now to be used for its solution”. Subsequently, Guyana instituted proceedings against Venezuela at the ICJ to establish “the legal validity and binding effect” of the 1899 boundary settlement. At that time, two generations of Guyanese had lived in uncertainty and fear of Venezuela’s aggression and incursions into their territory.
Venezuela was unhappy about the involvement of the ICJ from the outset, even though it is the instrument of a legal and peaceful process that the UN Charter provides for the settlement of disputes and is one that has been used from its inception by nations across the world. Consequently, on 18 June 2018, Venezuela launched its first objection to the case brought by Guyana, stating that the ICJ had no jurisdiction to hear the case.
In all fairness to Venezuela, the ICJ decided to postpone hearing the merits of the Guyana case until it had considered the Venezuelan arguments regarding the Court’s jurisdiction. On 18 December 2020, the Court found that it did have jurisdiction to hear Guyana’s case on the validity of the 1899 arbitral award. That was the first legal blow to Venezuela.
On 7 June 2022, Venezuela responded by filing the preliminary objection which the Court agreed was admissible for consideration. However, having examined the argument for the preliminary objection, for five months since 17 November 2022, the Court rejected it on 6 April 2023, confirming that it can adjudicate upon the merits of the case brought by Guyana for judicial settlement. But it will be another year before that happens; Venezuela has been given a year to respond to Guyana.
It is clear that, in these judicial proceedings, Venezuela has been given every opportunity to present its objections, and lengthy consideration has been given by the ICJ to its arguments before rejecting them. The international judicial system is working in a fair and objective manner, about which Venezuela can have no reason for complaint.
The more fundamental problem is that since 1962, sixty-three years after its parliament accepted and praised the 1899 arbitration, which gave Venezuela more territory than it had, successive Venezuelan governments have tried to distract attention from their deep internal divisions by trying to build unity around a false claim to the Essequibo region.
That claim was developed on an unsubstantiated note from a dead man, Severo Mallet-Prevost, a member of Venezuela’s legal team during the 1899 proceeding, that he knew of a “political deal” in the arbitration’s findings. Similar unsubstantiated allegations were made in Venezuela’s preliminary objection submitted to the ICJ in 2022. They are a flimsy basis on which to build an entire national belief system, but it has been reinforced in Venezuelan schools and enhanced by false maps of the country. This disinformation has also promoted hostility toward Guyana from Venezuelan citizens.
The ICJ process may eventually settle the legal basis for the Guyana-Venezuela boundary. It is in both countries’ interest to continue to participate fully in the Court’s proceedings, and, once finalized, to accept its decision, as many other countries have done since 1946.
It is good that Guyana did not take a triumphalist stance toward Venezuela after its two legal victories at the ICJ. Instead, its President, Irfaan Ali, took the mature position of simply stating Guyana’s confidence “that its longstanding international boundary with Venezuela will be confirmed by the Court.”
