Venezuela’s preliminary objections to Guyana’s application to the World Court for the validation of the 1899 arbitral award setting the boundaries between the two countries were on Friday dismissed as incoherent, legally misconceived and factually baseless.
This was the conclusion of one of Guyana’s lawyers, Philippe Sands KC, when he and others on this country’s panel rejected Caracas’s arguments delivered the day before at the International Court of Justice (World Court) in the Hague, the Nether-lands.
Sands likened Venezuela’s objections to a football game.
“Venezuela’s Preliminary Objections are the legal equivalent of a deus ex machina or, to use a sporting analogy, an attempt to bring to an end, in the 89th minute, a football match that is being lost, by procuring a pitch invasion so grave that the referee has no option but to suspend the game. But like the most implausible sudden plot twist in a decent novel, the reader can see right through the author’s intentions. And, like every football game, the 90th minute arrives and the match is brought to a normal end — and the game is lost — by the referee’s final whistle”, he told the court.
After decades of futile talks with Venezuela over the controversy that arose over the 1899 arbitral award, Guyana decided in 2018 to approach the ICJ for a validation of the award and its binding nature on Caracas. After initially shunning the process, Caracas is now participating and is contending Guyana’s case is not admissible before the ICJ.
Guyana also argued forcefully yesterday that Caracas’ contention that the United Kingdom (UK) is a proper party in the matter is, among other things, “absurd,” since the UK, Guyana’s former colonial power has no legal right nor interest in the matter or the disputed territory and has itself long stated this.
The ICJ is currently hearing preliminary objections by Venezuela to Guyana’s case seeking a ruling that the 1899 arbitration ruling delineating the boundary between the two countries is valid and binding.
Guyana’s argument is that realizing how woefully out of time it is to challenge the Court’s jurisdiction, which was determined since December 2020, Venezuela is now essentially seeking to do just that at this late stage, but under the pretext of disputing Georgetown’s standing to bring the claim.
The common thread running through the arguments of the four attorneys presenting yesterday as part of Guyana’s cadre of international lawyers has been, however, that the issue of jurisdiction having already been decided upon is res judicata and that Vene-zuela, in no form or fashion can seek to re-litigate that issue.
Guyana’s position is that Venezuela is clinging to the arguments it has sought to advance, as a “derailing” and “delaying tactic” to the Court finally adjudicating on the longstanding controversy between the two nations.
Submitting as being without legal foundation Venezuela’s argument that the United Kingdom is an indispensable party, Professor Pierre d’Argent advanced on behalf of Guyana that in the Geneva Agreement of 1966, the UK as a party thereto had itself consented to that provision which allows the ICJ to be the forum before which the controversy is finally settled.
Omitted
Pointing out that Venezuela in its presentation on Thursday omitted completely to reference that provision, Professor d’Argent said it never once raised the fact that as a party to the agreement, the UK had formally consented to the question of the validity of the 1899 Arbitral Award being ultimately left to be decided by the ICJ “without it (the United Kingdom) participating in the proceedings.”
The Professor said that while Guyana appreciates that there is a distinction between jurisdiction and admissibility, the Court is not bound by the characterization given to a preliminary objection by the party raising it.
On this point he noted that the objection raised by Venezuela does not affect the admissibility of Guyana’s claim, but rather directly touches and concerns the Court’s jurisdiction which has already been decided.
The UK Professor said that Venezuela’s contention that it could not raise these preliminary objections before the Court’s ruling establishing its jurisdiction since it would only have been then that its reasons for objecting would have appeared “simply makes no sense.”
Supporting Professor d’Argent’s submissions, was Christina Beharry, of the Bars of the District of Columbia, New York, England and Wales and the Law Society of Ontario, who sought to point out that what Venezuela had essentially sought to do by way of its preliminary objections, is nothing less than to “ask the court to undo it judgment” which is now res judicata.
Meanwhile, in his presentation on behalf of Guyana, Paul Reichler of the Bars of the United States Supreme Court and the District of Columbia, sought to demonstrate that contrary to Venezuela’s arguments, the UK is not an indispensable party to the proceedings.
No legal interest
On this point he stressed that “the United Kingdom has no legal interest, no legal rights or obligations,” which would be affected by a judgment of the Court on the merits of the case.
Secondly, he reminded that the UK had given its consent in Article 4 of the Geneva Agreement for the Court to resolve the dispute between Guyana and Venezuela.
Referencing locus classics on the issue, Reichler said that the Court need only to be moved to withhold its jurisdiction, if the interest of a third party (that being the UK as perceived by Venezuela), has not only an interest which stands to be affected in the matter warranting it be heard, but that that interest has to also form the subject-matter of the judgment to be rendered on the merits of the litigation which would also affect its rights.
With Guyana having relinquished ties to its colonial power Great Britain more than 50 years ago, and with Britain itself saying it has no interest in the matter or its outcome which it commended to the ICJ for final determination, the lawyer then went on to question, what legal or other interest of the UK is being affected, that causes Venezuela to push for it to be a party to the proceedings.
He said that Venezuela has been unable to identify any British interest which would be affected by the Court’s judgment on the validity of the 1899 Award, noting that any interest it would have had regarding the boundary dispute, ceased after its former colony—Guyana—would have gained independence in 1966.
He stressed that thereafter, the United Kingdom “did not have and could not have” any legal interest, any legal rights or obligations in Guyana’s sovereign territory or in the international boundaries that define it.
Meanwhile, for his part, Professor of International Law of the University College London, Sands also argued that Venezue-la’s own behaviour underlined that it never believed that the UK had legal interests in this matter.
“… in the period of more than half a century between the signing of the Geneva Agreement in 1966 and the decision of the Secretary-General in 2018 to refer the dispute over the validity of the 1899 Award to the Court. In that period, the record shows that Venezuela consistently engaged with only one country: Guyana. It had no engagement with the United Kingdom in respect of any aspect of the 1966 Agreement and its relationship to the 1899 Award. Venezuela did not engage — and did not seek to engage — with the U.K in relation to that issue. This was the case at every stage of the process established under Articles I to IV of the Geneva Agreement. Venezuela engaged with Guyana alone in relation to the Mixed Commission. Venezuela engaged with Guyana alone in the protracted Good Offices process. And Venezuela engaged with Guyana alone in the enhanced mediation by the Secretary-General. The fact that neither Venezuela nor Guyana sought to engage with the U.K. at any stage of a multi-phased process over a period of fifty years, must mean something. What it means is that Venezuela’s argument that the U.K. is an indispensable party to the current, final, phase of that process is utterly and totally hopeless”, the King’s Counsel argued.
Outrageous
Sands also chronicled Venezuela historical acceptance of the award before it openly alleged fraud in 1962.
He said that the claims of fraud are “outrageous,” noting that it was not until 63 years after, in 1962 that Venezuela started questioning the award and now all of a sudden is “miraculously” arguing that the UK is a necessary party for the proceedings.
Sands told the court that the allegation was purportedly based on the infamous “Mallet-Prevost Memorandum”.
“As the Court knows, this is a document which was allegedly produced by one of Venezuela’s counsel from the 1899 arbitration. It was supposedly written in February 1944 — almost half a century after the events which it purports to describe, but just one month after the 83-year old Mr. Mallet-Prevost received Venezuela’s highest national award, the Order of the Liberator, bestowed in recognition of his service as a loyal and “long-standing” “friend and adviser” to Venezuela. The text of the memorandum was made public in 1949 — five years after it was allegedly written and one month after the death of its author. Importantly — and tellingly — the document was published 13 years before Venezuela first sought to invoke it as a basis for repudiating the 1899 Award, or indeed made any public reference to it”, Sands argued.
He asked the Court to reject the claims for what he said is its baseless and unfounded nature.
Sands said that as explained in Chapter 8 of Guyana’s Memorial on the Merits, the memorandum is a “strange, unreliable and error-ridden document. Despite the weight that Venezuela has sought to place on it over the years since 1962, the original version of the memorandum has never been located or published and there is no independent evidence of its authenticity. The document is replete with obvious, significant and demonstrable factual errors. Its alleged author, Mr. Mallet-Prevost, was a passionate and lifelong supporter of Venezuela who had dedicated many years of his professional life, both before and during the 1899 arbitration, to promoting Venezuela’s expansive claims to territory which was ultimately awarded to British Guiana. On any view, neither the memorandum nor its putative author may be said to be objective or reliable”.
Significantly, he said that the Mallet-Prevost Memorandum does not cite any documentary or other evidence in support of the existence of the purported Anglo-Russian “deal”. Nor does it explain how Mallet Prevost supposedly learned of that purported “deal”. Rather, he said it is premised on a belief that was essentially nothing more than a conjecture, one based upon a supposed change in the demeanour of one of the five Arbitrators.
“Madam President, it is certainly true that counsel in any international proceeding do pay attention to the demeanour of the bench, but I think I can say, after thirty-five years of engagement in international litigation, that to read anything into the demeanour of one or more judges or arbitrators is a hazardous exercise”, Sands told the court.
Contrary to Venezuela’s claim of fraud in the arbitral award, Sands said that the contemporaneous evidence confirms that the members of the tribunal discharged their responsibilities conscientiously and with scrupulous independence.
“This is, of course, exactly as one would expect given the calibre of the Arbitrators, all of whom were eminent independent jurists, from Russia, the United Kingdom and United States, including the Lord Chief Justice of England and Wales and the Chief Justice of the United States Supreme Court”, he said.
Sands also charged that Venezuela’s argument is inconsistent with the established law concerning State succession, decolonization and self-determination of peoples. Notwith-standing the fact that Guyana became fully independent more than half a century ago, Sands said that Venezuela is arguing that the U.K., as its former colonial power, somehow retains an ongoing legal interest in the 1897 Treaty of Washington which submitted the dispute regarding the territory of British Guiana to binding arbitration, the 1899 Arbitral Award, and the 1905 Boundary Agreement which implemented the terms of that Award.
“This case ignores the indisputable fact that whatever interests the U.K. once had in respect of the 1897 Treaty, the 1899 Award or the 1905 Boundary Agreement, those interests passed to Guyana upon its emergence as an independent sovereign State in 1966”, he asserted.
Sands said that according to the logic of Venezuela’s argument, the U.K. has an ongoing legal interest in its former colony’s territorial limits with another State.
“If this were right, then it would follow that any former colonial power across the globe would retain an ongoing `legal interest; in respect of the borders of any of its former colonies, and would do so forever. This is despite the fact that those former colonies having long ago emerged as fully independent sovereign States. Not only would this offend against the law of State succession and decolonization, but it would have seriously problematic practical consequences. It would mean, for example, that judicial determination of many — if not most — land and maritime boundary disputes would be contingent upon the States in question obtaining the consent of their former colonial powers to such a process”, he said.
Sands also argued that the 1966 Geneva Agreement is irrelevant to the merits of Guyana’s claims as it is concerned exclusively with matters of procedure and not substance.
Agent of Guyana in the case Carl Greenidge who opened the presentations for Guyana, said that Guyana has been steadfast in its commitment to international law as the foundation for its relations with its neighbouring states.
He said that it is on this basis that Guyana has brought its claims before the Court, adding “it is important to be clear that Guyana brings those claims in the spirit of amity, not enmity towards Venezuela.”
He said that this longstanding controversy has “stubbornly defied resolution for more than half a century…and cast a long and menacing shadow over Guyana’s security and development throughout its existence as a sovereign state, a shadow rooted in Venezuela’s efforts to raise the longstanding land boundary between our two countries, and lay claim to nearly three quarters of Guyana’s land territory. The resolution of this dispute is therefore, no less than existential for Guyana.”
Presenting her country’s arguments on Thursday, Venezuela’s Executive Vice President Delcy Rodriguez said that Caracas was not disputing the Court’s jurisdiction to adjudicate the matter, but rather with the fact that the claim had been brought by Georgetown which it argued is not the proper party to so do. Rodriguez presented Venezuela as being the “sole indisputable inheritor” of the territory in question.
The hearings will continue on Monday and conclude on Tues-day morning when Venezuela and Guyana respectively will respond and present closing remarks on the objections raised by Caracas.
Though initially signaling its non-participation in the proceedings, owing to its position that the Court lacked jurisdiction to hear the case, Venezuela in a U-turn, moved to challenge the ruling by the Court made in December of 2020 that it did have jurisdiction; stating that Guyana has no locus standi (standing) in the matter before it as its application is not admissible.
Back in March of this year, Guyana submitted its Memorial on the merits of its case. Three months later, Venezuela filed preliminary objections to the admissibility of Guyana’s case before the Court.
