“It’s a big win for the people of Guyana”, President Irfaan Ali announced on Friday 18 December as he welcomed the decision of the International Court of Justice on the border case. He added, it was also a “major victory for the rule of law internationally and for the United Nations”, which had referred the debate to the ICJ. Guyanese and their lawyers are understandably pleased with the decision. However, they would do well to proceed with caution to the Court’s decision.
On closer look, there are the confusing features of the decision that deserve serious scrutiny. With great respect, the Court’s decision is reckless. The first issue is how the Court came up with the issue that now has to be addressed in the final stage of the case. By twelve votes to four, the Court, in paragraph 138 of the Decision “Discovers that it has jurisdiction to entertain the Application filed by the Cooperative Republic of Guyana on 29 March 2018 insofar as it concerns the validity of the Arbitration Award on 3 October 1899 and the related question concerning the definitive settlement of the land border dispute between the Cooperative Republic of Guyana and the Bolivian Republic of Venezuela. ”
By this wording, the World Court, on its own initiative, has devised a “land border dispute” between the two countries. Guyana’s position so far was that the land boundary was settled firmly and finally in 1899. What he has been seeking is confirmation of the validity of the 1899 resolution.
Paragraph 137 of the ICJ decision is even more baffling. There, the Court concluded that “it has jurisdiction to entertain Guyana’s claims about the validity of the 1899 Award concerning the border between British Guyana and Venezuela and the related question concerning the definitive settlement of the land border dispute between the territories of the Parties.” It is, to say the least, infallible from the Court to refer to “land boundary disputes between the territories of the Parties.” Territories do not have disputes. Countries or people do.
To understand the implications of the Court’s language, it is necessary to look at paragraph 126 of the decision. There, the Court summarizes Venezuela’s position in the following terms: “Venezuela believes that the territorial dispute is ‘the subject of the Geneva Agreement, not the validity of the 18.99 Award.’ By its wording, the World Court purpose has given Venezuela a gift to hold that there is a ‘territorial dispute’.
There was no basis for the Court to find that there was a ‘territorial dispute’. The case filed by Guyana before the Court, as recorded in paragraph 1 of the decision, concerned “the legal validity and binding effect of the Judgment on the Border between the British Guiana Colony and the United States of Venezuela, on October 3, 1899. ”Guyana never invited the Court to hold that there was a ‘territorial dispute. “This decision of the Court, with the utmost respect, is irresponsible and reckless.
In paragraph 64 of its decision, the Court acknowledges that the Geneva Agreement uses the term ‘argument’. But the Court then voluntarily volunteers that the Geneva Agreement uses the term ‘argument’ as a synonym for the word ‘dispute’. According to the Court’s case law, “a dispute is a disagreement on a point of law or fact, a conflict of legal opinion or interests” between two parties. The Court is absolutely wrong here in holding that there is a territorial dispute. Guyana has consistently claimed that Venezuela’s ingenious assertion of the invalidity of the 1899 Prize was followed by a debate, not a territorial dispute. How could the Court foolishly engage in the issue of territorial dispute with the validity of the 1899 Prize?
In the negotiations between the United Kingdom and Venezuela leading up to the Geneva Treaty, the UK had taken great care in pointing out that there was no territorial dispute, only Venezuela’s spectacular challenge to the validity of the 1899 Prize. In a Note dated 25 January 1966, it In the ICJ reporting in paragraph 133 of his decision, the UK Foreign Secretary informed the British Ambassador to Venezuela that the Venezuelans had made great efforts to get the preamble to the Geneva Treaty to reflect their fundamental position: “first, that we discusses the significant issue of the border and not just the validity of the 1899 Prize and secondly, that it was the basis of our conversations in London and Geneva. With some difficulty, I persuaded the Venezuelan Foreign Minister to accept the wording of a compromise that reflected the known position of both sides. ”In other words, the UK insisted there was no territorial dispute, only a debate following Venezuela’s blatant claim about the alleged invalidity of the 1899 Prize.
How, then, in all justice, could the ICJ conclude that there are now two matters to be decided: “the validity of the Arbitration Award of 3 October 1899 and the related question concerning the definitive settlement of the land border dispute” between the two countries . This perception could turn out to be out of favor with Guyana and its people.
There are two other troublesome features of the World Court decision. It ruled that it had no jurisdiction to entertain Guyana’s allegations “arising from the events that occurred after the signing of the Geneva Agreement.” Is this, to use the words of President Ali, “a major victory for the rule of law internationally and for the United Nations”? How could the Court, with a mission to uphold the rule of international law, apparently ignore Venezuela’s illegal occupation of the island of Ankoko and other illegal territorial invasions? The Court here missed an opportunity to uphold the principles of legality and justice for a small state at the mercy of a much larger bully.
Finally, in a case involving the Chaitos Mauritius islands, which was decided a short time ago, the Court ruled that a country inscribed on the United Nations register for disempowerment was entitled to independence in relation to its territory at the time it was so inscribed. When Venezuela, in 1962, first raised its spectacular issue about the alleged invalidity of the 1899 Prize, the British Guiana at the time was already inscribed on the United Nations register for disempowerment in all its territory as settled in 1899. , troublesome, to say the least, that the Court does not refer to its own jurisprudence on this issue anywhere in its decision.
Returning to the Court’s main finding that it would now go on to consider “the validity of the Arbitration Award of 3 October 1899 and the related question concerning the definitive settlement of the land border dispute between the Cooperative Republic of Guyana and the Bolivian Republic of Venezuela”, lawyers Guyana seriously considered whether to apply to remedy the Court’s decision or face the risk that Venezuela would recklessly take advantage of the gift that the World Court has given them.
Dr Bertrand Ramcharan, a barrister at Lincoln’s Inn with a PhD in international law from the London School of Economics and Political Science, is a former United Nations High Commissioner for Human Rights, a former Commissioner of the International Jurisdiction Commission and a former member. the Court of Permanent Arbitration in The Hague, Netherlands. In the past he has also served as Chancellor of the University of Guyana.