ICJ Case Comment: Guyana v. Venezuela [2020]

Background

On 18th December 2020, the International Court of Justice released its much awaited verdict on the centuries long dispute in Guyana v. Venezuela (Arbitral Award of 03rd October 1899). Located in the North- East region of the South American continent, Guyana is bordered by Venezuela to the West. At the time the present dispute arose, Guyana was still a British colony, known as British Guiana. It gained independence from the United Kingdom on 26th May 1966. The dispute between Guyana and Venezuela dates back to a series of events that took place during the second half of the nineteenth century.

In this case, Guyana brought to the court the issue of confirming the legal validity and the binding effect of the arbitral award regarding the boundary between the Colony of British Guyana and the United States of Venezuela, as decided by an arbitration order of 03rd October 1899. Guyana contended that the award of 1899 was a final settlement on all issues which related to the boundary line established between the British Guiana and the sovereign of Venezuela, and the International Court of Justice was competent to consider the matter, as it derived its jurisdiction from the 1966 Agreement to Resolve the Controversy between Venezuela and the United Kingdom over the Frontier between Venezuela and British Guiana, also known as the Geneva Agreement, as well as the United Nations Secretary General’s decision in 2018 to choose the International Court of Justice as appropriate mechanism to resolve the dispute between the two States (United Nations, 2018).

Jurisdiction

Since Venezuela opposed the International Court’s jurisdiction, the Court decided to separate the question of jurisdiction from the main issues of the case. By rendering a judgment of twelve votes to four, the Court determined that it had absolute jurisdiction to consider the application filed by Guyana that related to the validity of the 1899 arbitration award, and the question of the definitive nature of the settlement of the land boundary dispute.

Majority Opinion

As per Judge Tomka, the two parties assented to the locale of the International Court of Justice by submitting themselves to Article IV, paragraph 2 of the Geneva Agreement. The Court's jurisdiction incorporates the debate over the frontier, including the issue of the legitimacy of the 1899 arbitral award. The issue of the legitimacy of the 1899 arbitral award is a legitimate inquiry second to none and no organ other than a legal one is more fitting to decide it.

As per Judge Abraham, there is no title of jurisdiction to allow the Court to engage the legal contest between Venezuela and Guyana. In his view, the majority opinion is right in holding that the Secretary-General had the authority to choose the International Court of Justice as the appropriate mechanism for settlement within the context of Article IV, section 2, of the Geneva Agreement, and that he was not obliged to follow a specific request in his decision of progressive methods. Nor is there any uncertainty that the Secretary-General's decision is not a mere suggestion without any legal binding, but rather, it makes creates certain obligations upon the parties to the Agreement.

Judge Gaja stood with the majority perspective on the issue that the Parties are bound to submit their dispute to the Court in furtherance of Article IV, paragraph 2, of the 1966 Geneva Agreement and of the Secretary-General's decision of legal settlement as the mechanism to be adopted. Nonetheless, the Secretary-General's choice is not sufficient to confer the Court with jurisdiction for the issue. Article IV, paragraph 2, allows the Secretary-General to choose any of the means for settlement mentioned under Article 33 of the United Nations Charter, but leaves the execution of this decision to the Parties.

Judge Robinson opined that the essence of the Geneva Agreement lies in “sequence and stages”. He expresses that the agreement follows along the stages of various means of settlement and that, in this process, the failure of a specific means of settlement to determine the contention makes way for the work of another methods for settlement for a similar reason.

Dissenting Opinion

Judge Bennouna opined that this provision cannot simply establish the jurisdiction of the Court, since the parties have not explicitly submitted the settlement of their dispute to this Court. Instead, it is a provision for the selection of an appropriate means to resolve the dispute. As per the provision, the Parties have vested in the Secretary-General the ability to choose an appropriate method for the settlement of their dispute from those accommodated under Article 33 of the Charter of the United Nations “until the controversy has been resolved or until all the means of peaceful settlement there contemplated have been exhausted.” Further, it is stated that the Court's understanding of the provision supported the object and the purpose behind the Agreement; of arriving at a final settlement, over the ordinary meaning of the second alternative of this provision, depriving the latter of its effet utile.

Judge Gevorgian disagrees with the Court’s final decision that it has jurisdiction to entertain Guyana’s claims. In his view, the Court’s judgment undermines the fundamental principle of consent of the parties to the Court’s jurisdiction. The Court has made an unprecedented decision to exercise jurisdiction on the basis of a treaty that does not even mention the Court, and mentions no clauses that refer the disputes to itself. This is especially problematic since one of the Parties has consistently refused to submit the present dispute to the Court, and the dispute concerns national interests of the highest order, such as territorial sovereignty. In his view, the object and purpose of the Geneva Agreement is to help the Parties reach an agreed settlement to their dispute. As such, the Secretary-General has a non-binding role similar to that of a conciliator or mediator, entrusted with facilitating the Parties’ attempts to reach an agreed solution, but not empowered to impose a means of settlement on them.

Lastly, Judge Gevorgian opined that the Court has failed to consider Venezuela’s current and historical position regarding third-party dispute settlement, including the fact that Venezuela had, on several occasions prior to 1966, manifested its unwillingness to have issues related to its territory decided by third parties without its clear consent.

Judgment

The court ruled in furtherance of Article IV, paragraph 2 of the Geneva Agreement, that the controversy which the parties agreed to settle through the mechanism established under the Geneva Agreement concerns the question of the validity of the 1899 award, as well as its legal implications for the boundary line between Guyana and Venezuela. In addition, the International Court of Justice also found that the parties agreed to empower the United Nations Secretary General with the authority to choose the means to settle their dispute by a binding legal decision, and that the parties consented to the Secretary General’s choice of judicial settlement. This implies that the parties have mutually submitted their consent to the jurisdiction of the International Court of Justice. Conversely, the Court deliberated on the issue of its jurisdiction to entertain the claims of the Co-operative Republic of Guyana arising from events that occurred after the signature of the Geneva Agreement, and unanimously determined that it does not have jurisdiction.

Critical Analysis

There is no doubt that Article IV of the Geneva Agreement has been invoked, and the Secretary General’s announcement empowered the International Court of Justice as the appropriate means for the solution of the controversy. Furthermore, Article 33 of the UN Charter lists negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice as options for pacific settlement of disputes.

The eagerness to resolve this dispute comes from a common economic interest of both the parties, as the area in dispute is rich in natural resources. The world’s largest untouched oil reserves lay in the east of Venezuela, around the Orinoco river delta, close to the disputed border with Guyana (Neuman, 2015). Natural resources are also present in the coastal waters, and Guyana’s exploratory activities in the area have been protested by the Venezuelan government.

There is a strong nationalist sentiment on both sides, as sovereignty over the area is seen as a matter of national honour and pride. Moreover, Venezuelans have deemed the Secretary General’s decision to submit the dispute to adjudication by the International Court of Justice as a ‘hostile’ act against the nation. In Guyana, where Venezuela’s conduct is often perceived as a form of bullying by its more powerful neighbour, the Government has taken several measures to target the public sentiment by organising several public awareness campaigns (Staff Writer, 2018), including inciting school children against Venezuela (Staff Writer, 2017).

Since neither Guyana nor Venezuela had accepted the compulsory jurisdiction of the International Court of Justice, there was no independent basis for the determination of jurisdiction. The Geneva Agreement should be read as delegating to the United Nations Secretary General, the power to refer their dispute to judicial settlement. But it is unclear whether this broad delegation includes any and all forms of dispute settlement, or that those settlements would be binding.

References

Agreement to Resolve the Controversy Over the Frontier Between Venezuela and British Guiana. United Nations Treaty No. 8192. [online]. 17 February 1966. [08 January 2021]. Available from: <https://peacemaker.un.org/sites/peacemaker.un.org/files/GB-VE_660217_Agreement%20to%20Resolve%20Controversy%20over%20Frontier%20British%20Guiana.pdf>.

International Court of Justice. "Arbitral Award of 3 October 1899 (Guyana v. Venezuela)". International Court of Justice Reports. [online]. 18 December 2020. [08 January 2021]. Available from: <https://www.icj-cij.org/public/files/case-related/171/171-20201218-JUD-01-00-EN.pdf>.

Neuman, William. "In Guyana, A Land Dispute With Venezuela Escalates Over Oil. The New York Times. [online]. 18 November 2015. [08 January 2021]. Available from: <https://www.nytimes.com/2015/11/19/world/americas/in-guyana-a-land-dispute-with-venezuela-escalates-over-oil.html?ref=nyt-es&mcid=nyt-es&subid=article>.

Staff Writer. "Govt. Undertaking Public Awareness Campaign on Guyana/ Venezuela Territorial Controversy". DPI. [online]. 12 February 2018. [08 January 2021]. Available from: <https://dpi.gov.gy/govt-undertaking-public-awareness-campaign-on-guyana-venezuela-territorial-controversy/>.

Staff Writer. "Guyana- Venezuela Controversy to be Part of Schools' Curriculum". The Guyana Chronicle. [online]. 02 March 2017. [08 January 2021]. Available from: <https://guyanachronicle.com/2017/03/02/guyana-venezuela-controversy-to-be-part-of-schools-curriculum/>.

United Nations. "Award Regarding the Boundary Between the Colony of British Guiana and the United States of Venezuela". Reports of International Arbitral Awards. [online]. 2007. [08 January 2021]. Available from: <https://legal.un.org/riaa/cases/vol_XXVIII/331-340.pdf>.

United Nations. "Charter of the United Nations and Statute of the International Court of Justice". United Nations. [online]. 1945. [08 January 2021]. Available from: <https://upload.wikimedia.org/wikipedia/commons/a/a5/Uncharter-all-lang.pdf>.

United Nations. "Secretary- General Chooses International Court of Justice as Means for Peacefully Settling Long- Standing Guyana- Venezuela Border Controversy". United Nations: Meetings Coverage and Press Releases. [online]. 30 January 2018. [08 January 2021]. Available from: <https://www.un.org/press/en/2018/sgsm18879.doc.htm>.