Dear Editor,
Respectfully, the reference in your Sunday editorial that ‘[I]n 2016 the ICJ ruled China’s claims in contravention of the International Convention on the Law of the Sea’, and the repeated reference that China ‘can dismiss a decision by the World Court’, which is the forum from which all Guyana currently awaits a decision in our territorial controversy, is erroneous. The 2016 ruling in the dispute between the Philippines and the People’s Republic of China in fact emanated from the Permanent Court of Arbitration (PCA), also headquartered in The Hague, in keeping with an arbitration procedure set out in Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS). Importantly, China did not at any point participate in those proceedings.
Jurisdictionally, the PCA is a very different forum from the ICJ, the principal judicial arm of the UN, in so far as ‘[A]ll Members of the United Nations are ipso facto parties to the Statute of the International Court of Justice’, per Article 93 of the UN Charter.
All the permanent members of the United Nations Security Council are parties to UNCLOS, with the notable exception of the United States.
Neither is Venezuela: archival and anecdotal evidence will explain the reasons why our neighbour to the West is not, although they signed the Final Act at the conclusion of negotiations in 1982. It should be recalled that as a result of a coordinated effort in 1993 among the late Acting UN Ambassador Mrs. Janet Jagan, her late husband President Cheddi Jagan, and your humble servant as Guyana’s representative in the Sixth Committee of the UN, this country was able to deposit the 60th Instrument of Ratification to this watershed Convention – please allow me the pun – thereby triggering its entry into force a year later.
Editor, I make a small but not insignificant clarification, in so far as there is an overwhelming preponderance of legal and diplomatic authority attached to rulings of the ICJ, where Guyana’s matter with Venezuela is currently being deliberated upon. That process is proceeding under the authority of an arrangement in the 1966 Geneva Agreement, to which both Guyana and Venezuela, as signatories to this Agreement, had previously consented. After initially staying away from the proceedings and claiming that the Court lacked jurisdiction, Venezuela filed a “preliminary objection”, well into the proceedings. A decision of the ICJ stands in contradistinction to an Award from the PCA, where the Philippines-China dispute was heard under Arbitration procedures set out under UNCLOS. All the Permanent Members of the UNSC, as parties to the Statute of the UN, would prima facie be obligated to respect a decision of the ICJ, whenever that decision is handed down.
In this regard, the jurisdictional distinction between these two fora and the fact that the issues under consideration in these two separate legal disputes are, in my opinion, not “on all fours”, would cumulatively operate to set aside any precedential considerations, thereby affording to any Member of the UN the diplomatic space to reject the outcome in one and accept the other, should their foreign policy interests so require.
Yours faithfully,
Neville Bissember