Dear Editor,
In their letter of 23rd December 2020, two lawyers (Messrs Reichler and Sands) representing Guyana before the International Court of Justice (ICJ) solemnly assured the Guyanese people that the decision of the International Court of Justice (18th December 2020) was “entirely favourable” to Guyana. Between them Messrs Reichler and Sands have practised before the ICJ for more than six decades. So, I note with surprise that their assurance does not appear to be supported by the language or effect of the ICJ decision.
Guyana asked the ICJ to adjudge and declare that, “Venezuela shall immediately withdraw from and cease its occupation of the eastern half of the Island of Ankoko, and each and every other territory which is recognized as Guyana’s sovereign territory in accordance with the 1899 Award and 1905 Agreement.” The ICJ declined jurisdiction.
Guyana asked the ICJ to adjudge and declare that, “Venezuela shall refrain from threatening or using force against any person and/or company licensed by Guyana to engage in economic or commercial activity in Guyanese territory as determined by the 1899 Award and 1905 Agreement, or in any maritime areas appurtenant to such territory over which Guyana has sovereignty or exercises sovereign rights, and shall not interfere with any Guyanese or Guyanese-authorised activities in those areas.” The ICJ declined jurisdiction.
Guyana asked the ICJ to adjudge and declare that, “Venezuela is internationally responsible for violations of Guyana’s sovereignty and sovereign rights, and for all injuries suffered by Guyana as a consequence.” The ICJ declined jurisdiction.
Guyana asked the ICJ to adjudge and declare that, “The 1899 Award is valid and binding upon Guyana and Venezuela, and the boundary established by that Award and the 1905 Agreement is valid and binding upon Guyana and Venezuela.” The boundary is already valid and binding. It was settled by the arbitral award on 3rd October 1899. By treaty – the Washington Agreement – Venezuela and Great Britain, the two disputing parties, agreed that the 1899 Award was a “full, perfect and final settlement.” Venezuela’s contention 63 years later that the 1899 Award is null and void has no effect whatsoever on the validity of the 1899 Award or the boundary.
Or, rather the 1899 Award was final until Guyana, presumably acting on legal advice, raised the question of its validity before the ICJ. For the first time there is a possibility that the 1899 Award could legally be declared null and void. The Award covers two-thirds of Guyana’s territory.
Messrs Reichler and Sands assert that for over 50 years, since the signing of the 1966 Geneva Agreement, Guyana has been hoping to obtain a final and binding judgment from the ICJ on the 1899 award and resulting land boundary. Not so. For 121 years the people of this land have known that the border was legally settled. For decades we have said, “Nat ah blade ah grass.” That has also been Guyana’s official position.
This assertion by Messrs Reichler and Sands appears inconsistent with the ordinary meaning of the 1966 Geneva Agreement, especially in light of its object and purpose. The Geneva Agreement seeks to settle the controversy that has arisen as a result of the Venezuelan contention that the 1899 arbitral award is null and void. Reporting to Parliament in February 1966, the British Foreign Secretary stated unequivocally that after the talks in Geneva one could hardly fail to be very well aware that the British Guiana Venezuela boundary was settled in 1899. Successive Secretaries-General of the UN have been careful to refer to the controversy over Venezuela’s contention not to a dispute over the boundary.
In this ICJ decision, Venezuela’s illegal activities are exempt from judicial scrutiny while Guyana’s legally settled boundary is, after 121 years, open to legal question. Such a legal outcome cannot by any stretch of the imagination be described as ‘entirely favourable’ to Guyana.
The Government of Guyana appears to have structured this case unwisely. It should now urgently rethink its legal strategy. This is a national issue that requires appropriate national involvement and scrutiny.
Yours sincerely,
Melinda Janki
