Dear Editor,
I have no doubt that under international law, Guyana has sovereignty over the Essequibo. But I am not fully confident in the way that the Government of Guyana and its legal team are conducting Guyana’s case before the International Court of Justice (ICJ). In 1962, Venezuela suddenly asserted that the Arbitral Award of 1899 was null and void. Under international law Venezuela’s assertion did not create a dispute over the 1899 Arbitral Award or the boundary. Venezuela had expressly accepted the 1899 Arbitral Award and the boundary and done so for decades. The ICJ itself had previously held that a country that has accepted a border for decades is legally ‘estopped’ from challenging it several decades later. Put simply, Venezuela had accepted the Arbitral Award, had left it for too long and was legally unable to challenge it.
Stabroek News has always and rightly carried a strong line that there is no border dispute with Venezuela. There was a controversy as a result of Venezuela’s contention that the Arbitral Award was null and void. For more than fifty years that was Guyana’s position. The ICJ does not deal with controversy. It decides legal disputes. What legal dispute should Guyana have submitted to the ICJ? The legal question should have been whether Venezuela was legally ‘estopped’ and had lost the substantive right to challenge the 1899 Arbitral Award. Guyana’s Memorial mentions this in chapter 9 and concludes that Venezuela had lost the substantive legal right to dispute the validity of the Arbitral Award. But unfortunately, Guyana’s legal team chose to raise unnecessary additional issues that in fact have given Venezuela openings to challenge both the 1899 Arbitral Award and the boundary line.
For 119 years, Venezuela was unable to create a legal dispute over the Arbitral Award. But following Guyana’s Application to the ICJ, the court has ruled that it has jurisdiction over two legal disputes – the validity of the Arbitral Award and the boundary between Guyana and Venezuela. Why did Guyana’s legal team create two legal disputes where none existed? Why did they not confine themselves to the well-known international law doctrine of ‘Estoppel’, as expressly recognized and applied by the ICJ? Paul Reichler and Philippe Sands claimed publicly in 2020 that they had secured an utterly favourable decision when the ICJ accepted jurisdiction. But, in fact, Guyana’s actual complaints will not be heard. The ICJ declined jurisdiction in relation to Venezuela’s occupation of Ankoko Island, Venezuela’s threats to use force and Venezuela’s violation of Guyana’s sovereignty.
Meanwhile Guyana’s Memorial to the ICJ is 317 pages long as the legal team adduce evidence to prove that the 1899 Arbitral Award is valid and binding and that Guyana’s established boundary is Guyana’s established boundary. In framing the legal question the way they did, Guyana’s legal team gave Venezuela openings to challenge the 1899 Arbitral Award and our recognized border, instead of restricting legal issue to Estoppel, which would have been fatal to Venezuela’s challenge. In response, Venezuela proposes to hold a referendum to gain a popular mandate to claim Essequibo. Yesterday (14 November 2023) Paul Reichler told the ICJ that the rights to Essequibo will finally be determined by the ICJ in its judgment on the merits. Yet, Guyana’s sovereignty over the Essequibo was legally unquestionable until Reichler and team were retained. Guyana has gone from a position of strength to a position of weakness requiring preliminary measures to preserve the border while the ICJ determines the validity of the ‘final and perfect settlement’ of the 1899 Arbitral Award and of the long established boundary line. How is it possible for the Government of Guyana, including two Attorneys-General, to permit this?
Sincerely,
Melinda Janki LL.B, BCL
(Oxon), LL.M