The power of the United Nations Secretary General (UNSG) to refer the Guyana-Venezuela Border Controversy to the International Court of Justice (ICJ, also known as the World Court) and the jurisdiction of the ICJ to entertain and determine the matter, both provided for by the Geneva Agreement, have been shockingly distorted by Analyst in a February 6 article in Kaieteur News entitled ‘Recourse to the ICJ is on the basis of a consent regime.’ He argues that the ICJ needs Venezuela’s consent before it can exercise jurisdiction.
On November 7 the same analyst, under the moniker of Peeping Tom, said in Kaieteur News that Guyana has “bungled its handling of the territorial controversy” and “will not achieve its objective of having the matter placed before the ICJ.” This prediction ignominiously failed when the UNSG on January 30 chose the ICJ as a means of settlement. No doubt this failure prompted a change of identification from Peeping Tom to Analyst for his February 6 article so as to disguise his authorship of the November 7 failed prediction. His opinions in the February 6 article are as shallow as the prediction made in his November 7 article.
Analyst argued that the “parties” must agree, that is, give their consent, to the matter going to the ICJ and that Venezuela declared its intention to maintain political negotiation based on the 1966 Geneva Accord. This is what Venezuela’s weirdly mystifying statement said: “It is worth wondering what are the reasons that prevailed for recommending the International Court of Justice to two States that do not recognize its jurisdiction, being that the very Geneva Agreement involves the political means for the solution of the territorial controversy.” This statement simply makes no sense because it misinterprets Article IV(2) of the Geneva Agreement which is discussed below.
Analyst’s assertion that the parties must agree for the matter to be referred to the ICJ and Venezuela’s statement that the parties do not recognize the ICJ’s jurisdiction, are essentially two sides of the same coin and defy article IV(2) of the Geneva Agreement. Article IV(2) provides in plain language that if Guyana and Venezuela “should not have reached agreement regarding the choice of one of the means of settlement provided in article 33 of the Charter of the United Nations, they shall refer the decision as to the means of settlement to an appropriate international organ upon which they both agree or, failing agreement on this point, to the Secretary General of the United Nations.” Analyst should know that it was Venezuela that chose the Secretary General under article IV.
Thus, the means of settlement provided by Article 33 applies, Article 33 provides for “judicial settlement,” which Analyst agrees includes the ICJ. Both parties also agreed that if they fail to agree on a means of settlement, the Secretary General shall select one of the means of settlement provided by Article 33. This is what the UNSG did, the parties having informed the UNSG of their failure to agree. So that Analyst/Peeping Tom and Venezuela are both pathetically wrong.
But Analyst’s disjointed meandering did not end there. He argues that a “territorial” controversy is not provided for in the UN Charter and the Geneva Agreement is not a treaty in the archives of the UN. He partially relies on Article 36(1) of the ICJ Statutes which states: “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.”
Guyana and Venezuela do not have a “territorial” controversy. The Geneva Agreement characterises the issue as “the controversy between Venezuela and the United Kingdom which has arisen as a result of the Venezuelan contention that the Arbitral Award of 1899 about the frontier between British Guiana and Venezuela is null and void.” The controversy is about Venezuela’s claim of nullity of the Arbitral Award of 1899 and not about territory. If the Arbitral Award is proved to be null and void, as Venezuela claims, a territorial dispute will then emerge. I do not believe that Guyana anticipates or contemplates such a circumstance, but in the unlikely event that it occurs, the boundary delineated by the Arbitral Award would be set aside and Guyana would have the opportunity to re-litigate the issue of the territories that it lost to Venezuela by virtue of the Arbitral Award.
And section 36(1) of the ICJ Statutes, quoted above, does not specify that the treaty must be in the UN’s archives. This is abjectly false. The Geneva Agreement was transmitted to U Thant, the UNSG at the time, who accepted his responsibility under it. It was registered with the UN on May 5, 1966. In any event the Geneva Agreement is a treaty and that is all that is needed for the ICJ to have jurisdiction to render a decision binding on both Guyana and Venezuela ‒ not an advisory one, which neither Guyana nor the UNSG can seek in the circumstances of this case.
The articles of Analyst/Peeping Tom, and similar articles, based on ignorance or otherwise, mislead the public and hinder Guyana’s cause.
