The meeting in St Vincent and the Grenadines that produced the Argyle declaration was a good faith effort by the organizers and attendees to help maintain the Caribbean and Latin America as a Zone of Peace and we owe a debt of gratitude to all who made this possible. This is without prejudice to a dispassionate assessment of the Declaration.
Such an assessment must commence with the legal situation, as determined up to now by the International Court of Justice (ICJ). A careful reading of the three decisions of the ICJ up to now will reveal the following points, using the language of the Court itself: First, the ICJ, determined that a legal dispute exists between Guyana and Venezuela, notwithstanding Guyana’s submission that a controversy existed as a result of Venezuela’s reversal of its acceptance of the 1899 Arbitration after six decades.
Second, the Court took jurisdiction in relation to two issues: “the validity of the 1899 Award and the related question of the definitive settlement of the land boundary dispute between Guyana and Venezuela”. Everyone now agrees that the Court took jurisdiction over two issues.
Third, this is evident in the fact that the ICJ has said, expressly, that should its deliberations lead it to such a conclusion, it would itself determine the land boundary between the two countries. The Court reiterated this in its latest decision granting provisional measures.
Fourth, the ICJ unanimously held on 1 December that “pending a final decision in the case, … Venezuela shall refrain from taking any action which would modify the situation that currently prevails in the territory in dispute, whereby … Guyana administers and exercises control over that area [Essequibo].” Fifth, the Court also unanimously ordered that both Parties “shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.”
Two other points may be mentioned. Sixth, although Venezuela formally takes the position that it does not recognize the jurisdiction of the ICJ in this case, it has in practice been submitting written ‘information’ to the Court intended to influence its consideration of the case and it may well do so again as the Court approaches its deliberations in the merits stage of the case.
Seventh, it should also be mentioned that in pronouncing on territorial disputes in the past, the ICJ has been known to call upon parties to settle their dispute through negotiation towards ‘an equitable solution’. The Court did this famously in the North-Sea Continental Shelf Cases of 1969, where it decided that the parties should engage in negotiations for an equitable outcome.
In thinking about possible outcomes in the Guyana-Venezuela case before the ICJ , one should therefore keep in mind the possibilities of: outright victory for Guyana; outright defeat for Venezuela; the Court determining the land boundary; or the Court calling on the parties to negotiate towards an equitable outcome.
Against this background, one might proceed to an analysis of the Argyle Joint Declaration.
The opening preambular paragraph sets out the goals of dialogue and peace and refers to “the territory in dispute”. Given the determination of the ICJ that a legal dispute exists, there is nothing untoward here in the reference to “the territory in dispute”.
The second preambular paragraph characterized the Argyle process as one of ‘facilitation’, with three named interlocutors and others ‘present’, as well with an ‘observer’. It is important to register that what has commenced is a process of ‘facilitation’. This word has legal content, as we have had occasion to point out recently.
The third preambular paragraph refers to the presence of ‘observers’, notably the two representatives of the UN Secretary-General. This is of some importance, since it was the UN Secretary-General who, applying the 1966 Geneva Agreement, determined that the controversy between Guyana and Venezuela should be settled by the ICJ.
In the fourth preambular paragraph, all parties reiterated their commitment to Latin America and the Caribbean as a Zone of Peace. This gives a stake in the process to Caribbean as well as Latin American nations.
In the first operative paragraph, Guyana and Venezuela agreed that they will not threaten or use force against one another in any circumstances. This is an important political statement by the leaders of the two countries, and we must hope that it will be honoured, especially by the numerically larger country.
In the second operative paragraph, Guyana and Venezuela agreed that any controversies between them will be resolved in accordance with international law, including the Geneva Agreement of 1966. The reference to international law is an important one. And since the Geneva Agreement of 1966 was an agreed treaty, it is indeed a part of international law that has led to the case being submitted to the ICJ. The governing principle here is reference to international law.
The third operative paragraph expresses the commitment of Guyana and Venezuela to good neighbourliness, peaceful co-existence and the unity of Latin America and the Caribbean. This can only be to the good.
The fourth operative paragraph registers Guyana’s and Venezuela’s respective positions on the case currently before the ICJ. Guyana maintains its commitment to the process and procedures of the ICJ for the resolution of the border controversy, while Venezuela maintained its assertion of its lack of consent and lack of recognition of the ICJ and its jurisdiction in the border controversy. What is important to note here is that the legal proceedings before the ICJ will continue to a decision of the Court on the two items on which it has taken jurisdiction, namely the validity of the 1899 Award and the final settlement of the land boundary between the two countries.
In the fifth operative paragraph, the two countries agreed to continue dialogue on any other pending matters of mutual importance to the two countries. As a statement of principle this can only be to the good, if implemented.
In the sixth operative paragraph, Guyana and Venezuela agreed “that both states will refrain, whether by words or deeds, from escalating any conflict or disagreement arising from any controversy between them. The two States will cooperate to avoid incidents on the ground conducive to tension between them. In the event of such an incident the two States will immediately communicate with one another, the Caribbean Community (CARICOM), the Community of Latin America and the Caribbean (CELAC), and the President of Brazil to contain, reverse and prevent its recurrence.” One can only be grateful for this paragraph, which places the emphasis on cooperation, dialogue and conflict prevention. If implemented in good faith, it would be a good political development.
In the seventh operative paragraph, Guyana and Venezuela agreed to establish immediately a joint commission of the Foreign Ministers and technical persons from the two States to address matters as mutually agreed. One should note the stipulation that the purpose of the joint commission would be to “address matters as mutually agreed”. This effectively gives a veto to each side as to what could be discussed in the joint commission. The paragraph adds that an update from this joint commission will be submitted to the Presidents of Guyana and Venezuela within three months.
The eighth operative paragraph refers to the continuing roles of Prime Minister Ralph E. Gonsalves, Prime Minister Roosevelt Skerrit, and President Luiz Inacio da Silva, who will remain seized of the matter “as interlocutors” and the UN Secretary-General Antonio Guterres as Observer. This will be “with the ongoing concurrence of the Presidents of Guyana and Venezuela”. What this means is that either President could terminate the continued roles of these three named interlocutors and the observer.
In the ninth operative paragraph, Guyana and Venezuela agreed to meet again in Brazil, within the next three months, or at another agreed time, to consider “any matter with implications for the territory in dispute, including the abovementioned update of the joint commission.” This is a provision with good intentions. We have to await the results.
The tenth and eleventh operative paragraphs are statements of appreciation and we do not need to dwell upon them here.
From the foregoing textual, legal, and political analysis of the Argyle Joint Declaration, one cannot see any harm ensuing from the meeting and the Joint Declaration. Rather, some good could come out of them. We have to watch this closely and see how things turn out.
As Guyanese, we should express our gratitude to President, Dr. Irfaan Ali for his willingness to participate in the meeting and to agree to the Joint Declaration. It was an act of statesmanship.
