Dear Editor,
Vice-President Delcy Rodriguez is a shrewd, skillful and experienced diplomat, a star who has previously risen through the ministerial ranks to Minister of Foreign Affairs and then President of the Constituent Assembly. As such, she is unswervingly committed to the Venezuelan national cause of the “reclamation” of the Essequibo region, never mind that question five of the planned referendum refers to the “creation” of the Guayana Essequiba: how can Venezuela purport to be reclaiming something that it only now wishes to create, and for which it is seeking a dubious popular mandate, which has no extra-territorial effect!? As Venezuelan Ambassador H.E. Carlos Perez says in a DemWaves interview, the December 3 referendum is an ‘internal activity’.
Given Madam Vice-President’s level of commitment to the national cause, her articulate and intense defence of Venezuela’s position on a recent Telesur interview is understandable. Equally understandable is the fact that as the law, the history and her country’s own state practice lead one ineluctably to the conclusion that Essequibo does not form part of the land territory of Vene-zuela, she had a need to be economical with the truth. This convenient reordering of the facts was amply exemplified in the distinguished Vice-President’s response to the question about Venezuela’s position regarding the jurisdiction of the International Court of Justice. She first explained Venezuela’s “historical” position on the Court by saying it has never recognized the compulsory (or automatic) jurisdiction of the Court.
Fact check: no one, least of all Guyana or the UN Secretary General, has opted for the case to be heard under the compulsory jurisdiction of the ICJ. As the dear lady said, only 70-odd countries have accepted the compulsory jurisdiction clause. What Ms. Rodriguez omitted to say is that the compulsory jurisdiction clause in Article 36(2) of the Court’s Statute is reciprocal in its application: it only applies ‘…in relation to any other State accepting the same obligation….’ As Guyana has not accepted the compulsory jurisdiction clause it is, respectfully, a bit of a non sequitur to argue Venezuela’s rejection of the jurisdiction in the matter before the court on the basis that it has “historically” never accepted the compulsory jurisdiction clause, when neither has Guyana accepted it.
Continuing, the Vice President contended in the interview that the only way for Venezuela to attend the Court is for it to manifest its
willingness so to do, and that under the Geneva Agreement both parties must agree on the means of settlement (she is correct). News flash: the Court in its judgment of 18 December 2020 on the issue of jurisdiction established the acceptance of the parties to its jurisdiction through the application of the consent regime in Article 36(1), not the compulsory jurisdiction clause in Article 36(2), thusly: ‘an interpretation of Article IV, paragraph 2 [of the Geneva Agreement] that would subject the implementation of a decision of the Secretary-General to further consent by the Parties would be contrary to this provision and to the object and purpose of the Geneva Agreement, which is to ensure a definitive resolution of the controversy, since it would give either Party the power to delay indefinitely the resolution of the controversy by withholding consent…[T]he Court concludes that, by conferring on the Secretary General the authority to choose the appropriate means of settlement of their controversy, including the possibility of recourse to the International Court of Justice, Guyana and Venezuela consented to its jurisdiction. The text, the object and purpose of the Geneva Agreement, as well as the circumstances surrounding its conclusion, support this finding…It follows that the consent of the Parties to the jurisdiction of the Court is established in the circumstances of the case’.
Neither is it still available to Venezuela to argue that it is not a party to the proceedings before the ICJ. By filing and then appearing in person to present preliminary objections to the case in 2022, that country would be deemed to have submitted to the Court’s jurisdiction. Venezuela was in fact represented by a delegation that included none other than the esteemed Vice-President. Similarly, by attending the hearing this week in The Hague on Guyana’s request for provisional measures consequent to Venezuela’s plans to hold a curious referendum on December 3 next, it would thereby be estopped from successfully continuing to argue that it is not a party. Hence compliance with any urgent provisional measures, in the event that they may be granted by the Court before December 3, is to be anticipated.
It would seem to be the case that a natural corollary of Venezuela’s “historical” position on not accepting the Court’s jurisdiction is that whenever a final decision of the ICJ is rendered, Venezuela would not consider itself bound by it. However, Article 94(1) of the UN Charter contains an undertaking for parties to a case before the ICJ to comply with its decision, while Article 94(2) reposes in the Security Council the authority to ‘make recommendations or decide upon measures’ against a recalcitrant party. And yet I wonder, if our neighbour to the west is so convinced as to the righteousness of its case, whether in the unlikely event of the Court ruling in its favour, it would similarly consider itself not bound by such a ruling?
Finally, it would be helpful if Venezuela could explain the conundrum that arises from the fact that notwithstanding its purported disregard for the jurisdiction of the Court, or any eventual decision for that matter, it has “historically” on not one, but two occasions, successfully put forward its nationals to be candidates as judges on the ICJ, through the personage of Mr. Andres Aguilar-Mawdsley from 1991-1995 and Mr. Gonzalo Parra-Aranguren, from 1996-2009. This would otherwise seem to amount to a colossal waste of time and effort on the part of these two esteemed jurists, as any decisions that they would have rendered during their respective tenures, might quite possibly have been similarly disregarded and confined to the dustbin of international law by their government!
Sincerely,
Neville J. Bissember
