By Dr Bertrand Ramcharan
“It is a great victory to the people of Guyana”, President Irfaan Ali declared on Friday 18 December as he welcomed the decision of the International Court of Justice on the border case. It was, he added, also “a great victory for the rule of law internationally and for the United Nations”, which had referred the controversy to the ICJ. Guyanese and their lawyers are understandably pleased with the decision. They would, however, do well to approach the Court’s decision with great caution.
On closer look, there are perplexing features of the decision that warrant serious scrutiny. With great respect, the decision of the Court is a reckless one. The first issue is how the Court framed the issue that must now be addressed in the final stage of the case. By twelve votes to four, the Court, in paragraph 138 of the Decision “Finds that it has jurisdiction to entertain the Application filed by the Co-operative Republic of Guyana on 29 March 2018 in so far as it concerns the validity of the Arbitral Award of 3 October 1899 and the related question of the definitive settlement of the land boundary dispute between the Co-operative Republic of Guyana and the Bolivarian Republic of Venezuela.”
By this wording, the World Court has, on its own volition, invented a “land boundary dispute” between the two countries. Guyana’s position has hitherto been that the land boundary was firmly and finally settled in 1899. What it has been seeking is a confirmation of the validity of the 1899 decision.
Paragraph 137 of the ICJ’s decision is even more baffling. There, the Court concluded that “it has jurisdiction to entertain Guyana’s claims concerning the validity of the 1899 Award about the frontier between British Guyana and Venezuela and the related question of the definitive settlement of the land boundary dispute between the territories of the Parties.” It is, to say the least, infelicitous of the Court to refer to a “land boundary dispute between the territories of the Parties.” Territories don’t have disputes. Countries or people do.
To understand the implications of the Court’s language, one has to look at paragraph 126 of the decision. There the Court summarizes Venezuela’s position in the following terms: “Venezuela considers that the ‘subject matter of the Geneva Agreement is the territorial dispute, not the validity of the 1899 Award.” By its wording, the World Court has in effect given Venezuela a gift in holding that there is a ‘territorial dispute’.
There was no basis for the Court to find that there is a ‘territorial dispute’. The case that Guyana filed before the Court, as recorded in paragraph 1 of the decision, concerned “the legal validity and binding effect of the Award regarding the Boundary between the Colony of British Guiana and the United States of Venezuela, of 3 October, 1899.” At no stage did Guyana invite the Court to hold that there was a ‘territorial dispute.” This decision of the Court is, with the greatest respect, an irresponsible and reckless one.
In paragraph 64 of its decision, the Court acknowledges that the Geneva Agreement uses the term ‘controversy’. But the Court then recklessly volunteers that the Geneva Agreement uses the term ‘controversy’ as a synonym for the word ‘dispute’. According to the case law of the Court, “a dispute is a disagreement on a point of law or fact, a conflict of legal views or of interests” between two parties. The Court is just wrong here in holding that there is a territorial dispute. Guyana has consistently maintained that there was a controversy following Venezuela’s invented claim of the invalidity of the 1899 Award, not a territorial dispute. How could the Court blithely join the issue of a territorial dispute to that of the validity of the 1899 Award?
In the discussions between the United Kingdom and Venezuela leading up to the Geneva Agreement, the UK had taken great care in pointing out that there was no territorial dispute, only Venezuela’s spurious challenge to the validity of the 1899 Award. In a Note dated 25 January 1966, which the ICJ recites in paragraph 133 of its decision, the UK Foreign Secretary informed the British Ambassador to Venezuela that the Venezuelans had tried hard to get the preamble to the Geneva Agreement to reflect their fundamental position: “first, that we were discussing the substantive issue of the frontier and not merely the validity of the 1899 Award and secondly, that this had been the basis for our talks both in London and in Geneva. With some difficulty I persuaded the Venezuelan Foreign Minister to accept a compromise wording which reflected the known position of the two sides.” In other words, the UK insisted that there was no territorial dispute, only a controversy following Venezuela’s spurious claim about the alleged invalidity of the 1899 Award.
How then, in all justice, could the ICJ arrive at a finding that there are now two issues to be decided: “the validity of the Arbitral Award of 3 October 1899 and the related question of the definitive settlement of the land boundary dispute” between the two countries. This finding could turn out to be a disservice to Guyana and its people.
There are two other perplexing features of the World Court’s decision. It held that it did not have jurisdiction to entertain Guyana’s claims “arising from the events that occurred after the signature of the Geneva Agreement.” Is this, to use President Ali’s words, “a great victory for the rule of law internationally and for the United Nations”? How could the Court, supposedly with a mission to uphold the international rule of law, ignore Venezuela’s illegal occupation of Ankoko island and other illegal territorial incursions? The Court here lost an opportunity to uphold the principles of legality and justice for a small state at the mercy of a much larger bully.
Finally, in a case involving Mauritius’ Chagos islands, decided a very short time ago, the Court held that a country inscribed on the UN register for decolonization is entitled to achieve independence in respect of its full territory at the time it was so inscribed. When, in 1962, Venezuela first raised its spurious issue about the alleged invalidity of the 1899 Award, the then British Guiana was already inscribed on the UN register for decolonization in the entirety of its territory as settled in 1899. It is, perplexing, to say the least, that nowhere in its decision does the Court refer to its own jurisprudence on this issue.
Returning to the Court’s main finding that it would now proceed to consider “the validity of the Arbitral Award of 3 October 1899 and the related question of the definitive settlement of the land boundary dispute between the Co-operative Republic of Guyana and the Bolivarian Republic of Venezuela”, Guyana’s lawyers would need to seriously consider whether to make an application for the rectification of the decision of the Court or face the risk of Venezuela opportunistically exploiting the gift that the World Court has recklessly handed them.
Dr Bertrand Ramcharan, a barrister of Lincoln’s Inn with a Doctorate in international law from the London School of Economics and Political Science, is a former acting United Nations High Commissioner for Human Rights, a former Commissioner of the International Commission of Jurists and former a member of the Permanent Court of Arbitration in The Hague, Netherlands. He has also previously served as Chancellor of the University of Guyana.