VICTORY AT THE WORLD COURT


The International Commission of Jurists (World Court) ruled on Friday last that it has jurisdiction to entertain Guyana’s application with regard to the dispute concerning “the legal validity and binding effect of the award regarding the boundary between the colony of British Guiana and the United States of Venezuela, of 3 October 1899.” This great preliminary success on the issue of jurisdiction was achieved after a monumental degree of work over a long period of time by a large number of Foreign Ministry officials, consultants, experts, advisers and lawyers. Since 1966 many have labored on this matter.

The ICJ’s decision consists of 138 paragraphs which reviewed relevant events since the signing of the Geneva Agreement on 17 February 1966 and the Agreement itself. The most important contention by Venezuela, made by letter, was that Article 4 (2) of the Geneva Agreement did not provide the Secretary General of the UN with the authority to refer the matter to the ICJ without the consent of the parties. The article provides that if the parties do not reach agreement as to the means of settlement provided by article 33 of the UN Charter, the Secretary-General shall choose one of the means provided by the article. The parties not having reached agreement the Secretary-General choose judicial means of settlement and referred the matter to the ICJ.

The decision of the ICJ explored the nature of the “controversy” under the Geneva Agreement and concluded that it “concerns the question of the validity of the 1899 Award, as well as the legal implications for the boundary line between Guyana and Venezuela.” The court examined whether the parties gave their consent to the judicial settlement of the controversy under Article 1V paragraph 2 of the Geneva Agreement. Its determination was that the Parties conferred on the Secretary General the authority to choose, by a decision which is binding on them, the means of settlement of the controversy. Further, after an extensive examination of the Article 33 of the UN Chater, Article 1V of the Geneva Agreement, statements of the parties to the Geneva Agreement and the Venezuelan law ratifying the Geneva Agreement dated 13 April 1966, the ICJ decided that “the Parties consented to the judicial settlement of the controversy.”

Another issue that arose for determination was whether the Secretary General was required to choose a means of settlement according to the order in which they are set out in Article 33 of the UN Charter. The Court found: “….having failed to reach an agreement, the Parties entrusted to the Secretary General, pursuant to Article 1V, paragraph 2, of the Geneva Agreement, the role of choosing any of the means of settlement set out in Article 33 of the Charter. In choosing the means of settlement, the Secretary General is not required, under Article 1V, paragraph 2, to follow a particular order or to consult with the Parties on that choice. Finally, the Parties also agreed to give effect to the decision of the Secretary General.”

The Court analysed in depth the issue as to whether the reference of the controversy to it by the Secretary General by way of letter of 30 January 2018 was in conformity with Article 1V, paragraph 2, of the Geneva Agreement. The Court said that while neither Article 1V, paragraph 2, of the Geneva Agreement or Article 33 of the UN Charter mentions the ICJ, the Court, being the principal organ of the UN (Article 99), it constitutes a means of judicial settlement within the meaning of Article 33. “The Secretary General could therefore choose the Court on the basis of Article 1V, paragraph 2, of the Geneva Agreement, as the judicial means of the settlement of the controversy between the Parties.”

In its Application Guyana argued that the controversy encompasses any territorial or maritime dispute between the Parties including any claims concerning the responsibility of Venezuela for violations of Guyana’s sovereignty. A difference of opinion also arose as to whether the court must first determine the validity of the Award, which was Guyana’s position. Venezuela argued that the subject-matter of the Geneva Agreement was the territorial dispute, not the validity or nullity of the 1899 Award. The Court, after examining the Geneva Agreement, including Article 1, held that “contrary to Venezuela’s argument, the use of the word ‘contention’ points to the opposing views between the parties to the Geneva Agreement regarding the validity of the 1899 Award….Indeed, it would not be possible to resolve definitively the boundary dispute between the Parties without first deciding on the validity of the 1899 Award about the frontier between British Guiana and Venezuela.” Further, the Court ruled that it had no jurisdiction over events that took place after the signing of the Geneva Agreement. The seizure of Ankoko, Venezuela’s violation of Guyana’s sovereignty on land and sea will therefore have to be resolved by other peaceful means.

Of interest is that in paragraph 135 the ICJ appears to be contending that if it rules that the 1899 Award is null and void, it then has jurisdiction over “the related question of the land boundary.”

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