Although Venezuela’s official position is that it is not participating in the case before the ICJ relating to the controversy arising from the claim that the Arbitral Award of 3 October 1899 is null and void, it seeks every opportunity to intervene. Venezuela now makes a preliminary objection to the effect that the Court lacks jurisdiction to entertain Guyana’s Application on the ground that the United Kingdom is a necessary party to the proceedings.
Guyana’s Agent, former Minister of Foreign Affairs Carl Greenidge, said that “As the Court will be well aware, this is a long-standing dispute which has stubbornly defied resolution for more than half a century. It has cast a long and menacing shadow over Guyana’s security and development throughout its existence as a sovereign State; a shadow rooted in Venezuela’s efforts to erase the long-standing land boundary between our two countries and lay claim to nearly three quarters of Guyana’s land territory. The resolution of this dispute is therefore no less existential for Guyana.” Greenidge welcomed Venezuela’s decision after two years to participate in the proceedings but expressed regret that Venezuela’s formal participation takes the form of belated preliminary objections which seek to prevent, “and will inevitably delay, the determination of the merits of Guyana’s claims.” Professor Pierre d’Argent, Ms. Christina Beharry, Mr. Paul Richler and Professor Phillipe Sands, all representing Guyana, also addressed the Court on Guyana’s behalf.
The language barrier prohibits a full encapsulation of Professor d’Ardent’s presentation but he submitted that Venezuela’s belated preliminary objections are procedurally improper and therefore inadmissible in the light of the Court’s Order of 19 June 2018 and Rule 79bis of the Rules of Court. The Court’s Order was to the effect that the issue of jurisdiction must first be decided and that the Memorial relating to jurisdiction must be filed on 19 November 2018 for Guyana and 18 April 2019 for Venezuela on the issue of the Court’s jurisdiction. Rule 79bis provides that a preliminary objection shall be made no later than three months after the delivery of the Memorial. He argues that the rules of the Court were violated.
Ms. Christina Beharry, who is of Guyanese heritage, addressed the Court on Venezuela’s preliminary objections. One of her main arguments related to the issue of res judicata. Relying on the case of Bosnia Genocide, in which Serbia attempted to reopen the Court’s judgment upholding its jurisdiction, which the Court has already done in this case, the Court said: “In accordance with Article 36, paragraph 6, of the Statute, and once a finding in favour of jurisdiction has been pronounced with the force of res judicata, it is not open to question or re-examination, except by way of revision under Article 61 of the Statute.” Ms. Beharry argued that the judgment of 18 December 2020 in which the Court ruled that it had jurisdiction is res judicata and can only be recalled on the discovery of a new fact, which has not been proved by Venezuela.
Mr. Paul Richler, a noted international lawyer, who has appeared before the court on many occasions, sought to explain the reason why the leading case of Monetary Gold supported Guyana’s arguments. Venezuela relied on and interpreted Monetary Gold to mean that a judgment by the Court on Guyana’s application would imply an evaluation of the lawfulness of the conduct of the United Kingdom or, in other words, would a judgment rule upon the United Kingdom’s conduct without its consent. The issue in the case was whether gold looted by Nazi Germany belonged to Albania. Italy claimed the gold on the basis that Albania had committed international legal wrongs that made it liable to Italy and that Italy was therefore entitled to the gold. The Court held that it would have had to decide in the absence of Albania whether it had committed an international wrong against Italy and since Albania was not a party, it had to decline jurisdiction. Richler argued that the Court will not decline jurisdiction merely because the legal interests of an absent State might be affected, or implicated, or be evaluated, so long as the absent State’s legal interests do not constitute the very subject-matter of the judgment to be rendered.
Professor of International Law, Phillipe Sands, who has also appeared before the Court in the past, dealt with Venezuela’s factual allegations, the terms and effect of the 1966 Geneva Agreement, an explanation of why Venezuela’s contention that the United Kingdom has legal interests in the issue of the validity of the 1899 Award is contradicted by Venezuela’s conduct since Guyana gained Independence in 1966 and the UK’s conduct in the same period and Venezuela’s attempt to introduce colonialism through the side door.
Space does not permit an elaboration of the comprehensive arguments of Professor Sands, but both his arguments and conclusion are masterful. He said that Venezuela’s preliminary objections are incoherent, legally misconceived and factually baseless. They ignore the realities of the Geneva Agreement and the Court’s jurisprudence on indispensable third parties, as well as the conduct of Venezuela and the UK over the decades. They ignore fundamental precepts of State succession, decolonization and self-determination. “They are, in short, totally hopeless.”
This column is reproduced with permission from Ralph Ramkarran’s blog, www.conversationtree.gy
