Guyana will ask the International Court of Justice (ICJ) to make a ruling on the border controversy with Venezuela in its favour after Caracas announced it would not participate in the case.
According to the Ministry of Foreign Affairs even if Venezuela persists in its refusal to participate, the rules provide for the Court to proceed to a final judgment that is legally binding on both the participating and nonparticipating parties.
In a statement issued last evening the Ministry noted that under Article 53 of the Statute of the Court, “whenever one of the parties does not appear before the Court, or fails to defend its case, the other Party may call upon the Court to decide in favour of its claim”.
Guyana, the statement explains, intends to proceed in accordance with the said Article.
Article 53 has two clauses, the first was quoted in the Ministry’s statement while the second provides a caveat noting that the Court must, before deciding, satisfy itself, not only that it has jurisdiction in accordance with Articles 36 and 37, but also that the claim is well founded in fact and law.
Article 36, specifically provides that the jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.
Additionally Clause 2 states that the states parties to the Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning the interpretation of a treaty.
Guyana has argued in it submission that the Court has jurisdiction over the controversy under Article 36, paragraph 1, of its Statute, pursuant to the mutual consent of Guyana and Venezuela, given by them in Article IV, paragraph 2, of the 1966 Geneva Agreement.
“In that provision of the Agreement, they mutually conferred upon the Secretary-General of the United Nations the authority to choose the means of settlement of the controversy and, on 30 January 2018, the Secretary-General exercised his authority by choosing judicial settlement by the Court,” the submission argues.
Venezuela however contends that the Secretary-General overstepped his authority. It has refused to participate in the case on the basis that it has been unilaterally filed …without Venezuela’s consent”. The country further argues that its decision is consistent with its historical position of not recognizing the jurisdiction of such an international body and particularly as it relates to the border controversy.
Venezuela’s decision was communicated to the court at a meeting convened by President of the ICJ Abdulqawi Abdul Yusuf yesterday to discuss with Guyana and Venezuela the scheduling of written pleadings in the case – the Arbitral Award of 3 October 1899 (Guyana v. Venezuela).
A letter signed by Venezuelan President Nicolas Maduro Moros was delivered to the court by a high-level delegation headed by Executive Vice President, Delcy Rodriguez Gomez and its contents made public via a communique posted on the Venezuelan foreign ministry’s website.
Guyana’s Vice President and Minister of Foreign Affairs Carl Greenidge and Guyana’s Legal Counsel attended the meeting. Guyana’s delegation subsequently learned of Venezuela’s decision and issued its own statement.
According to that statement Guyana is fully committed to the rule of law in international relations, including the peaceful resolution of disputes in conformity with international law, it trusts that the International Court of Justice, the judicial organ of the United Nations, will resolve the controversy with Venezuela in accordance with the law in a manner that is fair and equitable.
Further the government expressed the hope that, in due course, Venezuela will reconsider its position and decide to appear in Court and defend its case as allowed for under the Court’s rules.
At the same time it maintains that if Venezuela persists in its refusal to participate, the court’s rules provide for the Court to proceed, after a full hearing of the case, to a final judgment that is legally binding on both the participating and nonparticipating parties.
“The Ministry of Foreign Affairs wishes to reiterate that Guyana fully respects the decision of the Secretary-General of the United Nations to choose the International Court of Justice as the means of settlement of the controversy and is confident that the Court is fully empowered to decide the case,” the statement concludes.
It is now up to the court in keeping with Article 36 (6) to settle the question of jurisdiction.
On March 29, Guyana filed an application with the ICJ requesting that it confirm the legal validity and binding effect of the 1899 Arbitral Award on the boundary between Guyana and Venezuela.
The application followed the decision by the UN Secretary General Antonio Guterres to choose the ICJ as the next means of resolving the controversy following Venezuela’s contention that the Arbitral Award of 1899 was null and void.
In its application to the Holland-based court, Guyana highlighted that Venezuela had for more than 60 years “consistently recognized and respected the validity and binding force of the 1899 Award and the 1905 Map agreed by both sides in furtherance of the Award”.
Venezuela had only altered its position formally in 1962 as the United Kingdom was making final preparations for the independence of British Guiana and “had threatened not to recognize the new State, or its boundaries, unless the United Kingdom agreed to set aside the 1899 Award and cede to Venezuela all of the territory west of the Essequibo River, amounting to some two-thirds of Guyana’s territory”.
Guyana’s application also notes that while Venezuela has never produced any evidence to substantiate its belated repudiation of the 1899 Award, “it has used it as an excuse to occupy territory awarded to Guyana in 1899, to inhibit Guyana’s economic development and to violate Guyana’s sovereignty and sovereign rights”.
It further asserted that the UN Secretary-General’s authority to choose the ICJ – based in The Hague – as a means of resolving the controversy is based on the Geneva Agreement of February 17, 1966 which was negotiated just before Guyana gained independence.
On January 30th 2018, Guterres concluded that the Good Offices process which the two countries had engaged in for almost 30 years had failed to achieve a solution to the controversy and therefore chose the ICJ as the next means of settlement.
The application was handed over to Registrar of the ICJ, Philippe Couvreur by Vice President and Minister of Foreign Affairs, Carl Greenidge who is functioning as Guyana’s Agent in the proceedings before the court.
One day later on May 30 Venezuela rejected the referral dubbing any decision by the court as “unenforceable.” Instead that country proposed a restart of diplomatic contact to reach a resolution. Guyana has rejected this.