Dear Editor,
Please permit me to bring to the attention of the public what appears to be a grave shifting of the legal status of the border claim against Guyana over time. I am avoiding the word “dispute” for reasons you will see shortly.
I was listening to South African minister Naledi Pandor explain how that country had managed to identify the basis of its case against Israel before the International Court of Justice (ICJ). She said that Israel had rejected South Africa’s claim that SA had locus standi in the matter as Israel had no dispute with Israel. She said her lawyers then checked and found a letter in which Israel had put that in writing. If I understand her words correctly, what she said was that, yes, the contents of that letter, ipso facto, reflected a dispute. One side felt that SA did not have a basis and the other did = dispute.
I then recalled that there had been a lot of column inches dedicated to how to characterize the Venezuelan claim and decided to check the net to see what came up. Conversation Tree of 10th December last came up. The article said ‘It is only if the Arbitral Award is vitiated, a “dispute” once again emerges because the boundary that currently exists would no longer be lawful.’
Now, it seems to me that since both situations fall under the domain of international law, the definition of “dispute” should be the same – whether for Venezuela and Guyana or South Africa and Israel. Clearly, CT’s reference to “only if” needs to be reconciled with the meaning of the word in this ICJ acceptance of the SA case against Israel.
But let me now address a more serious problem. CT said ‘A new boundary would have to be determined, presumably by a new arbitration process. Guyana would then be in a position in this “dispute” created by a vitiation to reclaim the territories that it had claimed at the arbitration in 1899, including the mouth of the Orinoco, that it lost to Venezuela in 1899. The nomenclature is important because much of the foreign reporting on Venezuela’s referendum and its aftermath, referred incorrectly to the “dispute,” not about the Arbitral Award of 1899, which is the real issue between Guyana and Venezuela, but about which country is entitled to Essequibo.’
CT correctly, in my view, identifies the remedy for the worst case scenario but rests it upon a legal technicality or verbal gymnastics.
Can someone explain to me how, regardless of the meaning of the word “dispute” or “controversy”, a claim that there was a stitch-up (according to Mallet-Prevost) can mutate into a country owning another country’s land and putting troops on its border?
Everyone knows that if a case, in whichever kind of law, in whichever country, is found to be null and void, the remedy is a retrial. In the Guyana and Venezuela case, the entire land that was up for grabs in 1899 is up for grabs again.
Like CT, I ask how it came to be that, a case that should at worst, that is, even if Venezuela managed to convince the ICJ that there was a stitch-up, mean that there should be a retrial, come to focus only on a) Essequibo and b) ignore the entire area that was subject of the arbitration in the first place.
Has it been a result of effective Venezuelan propaganda or our own laxity in focusing our own attention on words, what to call the claim, rather than ensuring that everybody understands that if Venezuela wants to treat the award as annulled then the only consequence of that has to be that it stands to lose what was awarded it also and Guyana could come out with an increased size?
Of course, this raises another question. Why did Guyana maintain a defensive posture over all these decades? Why did our legal minds not ensure that it was clear that if Venezuela wanted to challenge the validity of a settled arbitration after 60 years, two could play the same game? And that it would be quite interesting to have a re-arbitration every 60 years or so?
Yours faithfully,
Frederick Collins
