Guyana yesterday pilloried Venezuela’s preliminary objections to a case seeking validation of the 1899 arbitral tribunal award fixing the boundaries between the two countries and the International Court of Justice (ICJ) is to notify the agents of both sides when it is ready to rule.
Professor Philippe Sands KC, one of the battery of international lawyers representing Guyana at the seat of the Court in the Hague, the Nether-lands, said that while Venezuela recognised the need to establish wrongful conduct on the part of the arbitral tribunal, it has been unable to do so.
Confronted by this failure, Sands said Venezuela instead shifted its argument to say that the wrongful conduct which it ascribes to the United Kingdom (UK) in those negotiations, invalidates the 1899 award to Guyana.
But Sands vehemently argued on behalf of Guyana that it was not enough for Venezuela to prove wrongful conduct by the United Kingdom stating, “It will be insufficient to argue that a British lawyer expressed a desire to communicate with an arbitrator, or actually sought such communication.”
Venezuela’s burden, he said, is to “prove that one or more arbitrators engaged in inappropriate contact with counsel or agent, and that this influenced the Award,” while asserting, “It (Venezuela) has offered no evidence to support such an argument.”
Venezuela’s problem, Sands said, lies in its attempt at assessing the validity of the award by looking at the conduct of the United Kingdom; when in fact what has to be examined is the conduct of the arbitrators.
“On that question, Venezuela was silent, its evidentiary cupboard totally bare,” Sands said, adding that Venezuela offers no authority for the proposition that the conduct of a party in arbitral proceedings can, of itself, taint an arbitral award.
He said that while misconduct by an Agent or counsel is totally inappropriate, and may incur professional or other consequences, the absence of evidence of misconduct by an arbitrator “will not of itself taint the outcome.”
Sands said that counsel for Venezuela is quite aware that allegations of fraud are not to be made without evidence and that that was “presumably…why Venezuela said nothing, nothing” to Guyana’s arguments countering the allegations.
The evidence shows “that Professor Martens and his fellow arbitrators acted with impeccable integrity, independence and impartiality. Venezuela’s silence means that such evidence is unchallenged,” Sands then went on to assert.
Noise
He told the Court that the only conduct it has to address in the context of the Award, is that of the arbitrators, while he dismissed the rest of Venezuela’s advancements as “noise.”
Venezuela’s position has been that the award was the product of fraud perpetuated by the United Kingdom—Guyana’s former imperial power—and that Guyana has “benefitted from this injustice,” of which Venezuela is the “victim.”
Against this background it contends that the 1899 award of the then disputed territory to Guyana, is invalid.
The other issue raised in the preliminary objections which Guyana rebutted, was Caracas’ position that the UK is an indispensable party to the proceedings and not Guyana, which it argued has no standing to have brought the application before the Court in the first place.
To this, Sands said that though they have pressed Venezuela to explain, specifically, what legal rights and obligations the UK has in the matter; the best that Professor Paolo Palchetti could have come up with on behalf of Caracas was that the Arbitral Award would be invalidated, and that Article 69 of the Vienna Convention would return the legal situation to the status quo ante, so that the boundary would be undetermined and the territory remain disputed.
Regarding the “consequences” of any of that for the legal interests of the UK, however, Sands said that Palchetti was unable to advance any as there simple is none, “because it has no interests in the validity of the Arbitral Award, the land boundary or the disputed territory.”
The other alleged consequence Sands said Palchetti “struggled” to come up with was that if the Award was set aside, Venezuela would be able to claim reparations from the UK for exploiting its territory.
Sands said, however, that that advancement by Venezuela was a “desperate attempt to manufacture some sort of legal interest.” He said rather, that the Court would not remotely have to consider the UK’s post-award conduct, or to rule on Venezuela’s supposed entitlement to reparations.
Artfully
Professor Sands said that counsel for Venezuela artfully avoided any discussion of the consequences for the legal rights and obligations of the UK, “which says a lot.”
He said that on this issue, Professor Christian Tams for Venezuela “hovered above the surface, like a dragonfly, avoiding all contact with murky waters,” on the question of whether the Court’s judgment would affect the legal rights and obligations of an absent State.
“The UK has no interest in any point along the boundary between Guyana and Venezuela,” Professor Sands stressed.
Guyana in its presentation to the Court during the first round of arguments last week, dismissed Venezuela’s preliminary objections as incoherent, legally misconceived and factually baseless; arguing 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.
Paul Reichler of the Bars of the United States Supreme Court and the District of Columbia, had said on behalf of Guyana 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.
On this point he then went on to assert that the United Kingdom can therefore not be considered as being an indispensable party to the proceedings before the Court and does not have to be added as is being advanced by Venezuela.
The final point which Professor Sands rebutted on behalf of Guyana, was Venezuela’s position that Article 4 of the 1966 Geneva Agreement on which Guyana relied to illustrate that the UK had consented to the ICJ finally settling the border controversy, was misplaced.
Professor Sands restated Guyana’s position that the UK, in consenting to the jurisdiction of the ICJ, had also more than 50 years ago said it will take no part in the process of a final settlement, having relinquished ties with its former colony—Guyana.
Sands said that Venezuela’s submission is “completely flawed.”
Opposing contentions raised by Venezuela, Sands said the fact that the UK is not expressly mentioned in Article IV is irrelevant to the question of whether or not it consented to the Court exercising jurisdiction over Guyana’s claims.
The existence of that consent he said, is manifested and evidenced through the UK’s signing of the Geneva Agreement; noting that by signing and being a party to the 1966 Agreement, the UK consented to all of the provisions of the Agreement, including Article IV.
“It has consented to all processes for the resolution of the controversy conducted in conformity with those provisions, including those conducted pursuant to the process established under Article IV(2),” he said.
He then went on to submit that the fact that the UK is not mentioned in Article IV is, however, relevant for a different reason, in that it demonstrates that the three parties to the Geneva Agreement intended that only two of them—namely Guyana and Venezuela—would play a role in selecting and participating in the means of settlement of the controversy.
He said that in other words, all three parties to the Geneva Agreement recognised that only two of them— Guyana and Venezuela—had any legal interest in the disputed issue concerning the validity of the 1899 Award.
“The third party, the UK, had no such interest,” Professor Sands concluded.
He then went on to add that the Agreement established a binding procedure for the selection of means of settlement for the controversy; which included, ultimately, conferring power on the Secretary General of the United Nations to choose one of the means of settlement provided in Article 33 of the Charter of the United Nations and, if that means of settlement did not resolve the controversy, to choose another of the means stipulated in Article 33 of the Charter of the United Nations.
Guyana’s position is that the issue of jurisdiction having already been decided upon is res judicata and that Venezuela, in no form or fashion can seek to re-litigate that issue.
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 last week 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.
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.
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 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.
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 is essentially seeking to do by way of its preliminary objections, is nothing less than to “ask the court to undo its judgment” giving itself jurisdiction—a determination which is now res judicata.
In his brief address to conclude Guyana’s arguments, Agent of Guyana in the case, Carl Greenidge issued a call for the Court to “reject Venezuela’s preliminary objections as inadmissible.”
Yesterday marked the conclusion of hearings on Venezuela’s preliminary objections. President of the Court, Justice Joan Donoghue announced that the Court will now take time to consider the arguments and will notify the agents of the parties, when it will deliver its ruling on those objections.
In his address to the Court on Monday, Venezuela’s Agent, Samuel Moncada, extended what he described as a “helpful hand to Guyana,” noting that the two countries would remain “eternal neighbours” and therefore “brotherly relations of friendship and cooperation,” must be maintained. But in the same vein asserted the disputed territory as belonging to Venezuela and called on the Court to dismiss Georgetown’s application for validation of the 1899 Arbitral Award.
For his part, Greenidge had told the Court in his address last week that Guyana has been steadfast in its commitment to international law as the foundation for its relations with its neighbouring states.
He said 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 had 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 controversy is therefore, no less than existential for Guyana, he said.
Meanwhile, stating that “Venezuela has always had a policy based on peace, honour and respect for International law,” Moncada said on Monday “We would never claim, or even aspire to something that does not belong to us.”
He then accused Guyana of “trying to justify” what he said was Britain’s “fraud,” before going on to add, “however, it is never too late for the truth.”
“We were deceived in 1899, but today we know the truth. It is impossible to deceive us once again” he told the Court.
Background
When Guyana gained independence, Venezuela occupied this country’s half of the island of Ankoko and routinely tried to dissuade investors from entering deals in the county of Essequibo. There have also been sporadic incursions by Venezuela’s military into Guyana and violations of this country’s airspace. In addition, vessels operating in Guyana’s waters off of Essequibo have been intercepted and detained by the Venezuelan navy.
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.
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.
