Border controversy: Venezuela’s claim that UK, not Guyana, should be party to court case dismantled
Deeming Venezuela’s arguments as “incoherent, legally misconceived and factually baseless,” the legal team representing Guyana before the World Court on Friday dismantled the argument that the United Kingdom (UK), not Guyana, should be party to the ongoing border controversy case.
Guyana’s lawyers participated in the first round of oral arguments at the International Court of Justice (ICJ) in Hague, Netherlands.
Their submissions came one day after Venezuela’s legal team presented that country’s arguments on why the world court should throw out the case filed by Guyana to settle the border controversy between the two countries.
The Spanish-speaking country argued that the UK should be a party to the border case given that the British government was party to the 1899 Arbitral Award that determined the land boundary between Venezuela and then British Guiana.
Guyana, independent from British rule since 1966, does not agree with this.
“Venezuela’s preliminary objections are incoherent, legally misconceived and factually baseless,” Professor Philippe Sands, a Professor of International Law at University College London and member of Guyana’s legal team, told the Court on Friday.
But what exactly makes Venezuela’s position so?
Professor Sands reminded the Court of the February 1966 Geneva Agreement which intended to resolve the controversy over the frontier between Guyana and British Guiana.
When Guyana became independent in May 1966, the UK no longer had a role in the settlement of the controversy. Based on Article IV of that Agreement, the UK gave its consent for the United Nations, and by extension the ICJ, to resolve the controversy.
“… if Venezuela is right, then it would seem to follow that any former colonial power, anywhere in the world, would retain a continuing legal interest in respect of any potential judicial determination for example of the boundaries of any of its former colonies were such determination turned in some someone on some impugned act of the former colonial power,” Professor Sands said.
But he believes that Venezuela is not right and that country’s argument offends the laws of succession and decolonisation given that Guyana is a sovereign state now.
He added, ““… Venezuela doesn’t truly regard the UK as an indispensable third party to these proceedings.
“(This is) a late attempt to derail the process, to delay this Court from delivering the impartial and authoritative ruling which will finally bring this controversy to a legal end.”
Attorney Paul Reichler, a member of the Bars of the United States Supreme Court and the District of Columbia and another member of Guyana’s legal team, also argued against Venezuela.
He said that the UK has no legal interest or obligation in the case that a ruling from the Court could possibly effect. Venezuela too did not provide specific examples of any potential British interest or obligation.
As such, the Guyana representative believes that there is no need for the Court to decline its jurisdiction in the case because of the absence of the UK. Therefore, the ‘Monetary Gold’ principle wherein the Court refuses to decide cases because parties are absent should not be invoked.
Adding further credence to his argument, Reichler reminded the Court of several Communiques issued by blocs that include the UK which back the Court’s jurisdiction in presiding over the matter.
The most recent example of this was the Communique issued at the end of the Commonwealth Heads of Government Summit in Kigali, Rwanda in June 2022. The 54-nation Commonwealth, which includes the UK, backed the legal route at the ICJ to bring a “peaceful and definitive” end to the Guyana/Venezuela border controversy.
These statements, he said, disavows any British legal interest in the validity of the arbitral award and the definitive land boundary established.
‘RES JUDICATA’ APPLIES
The other members of Guyana’s legal team who presented on Friday, Professor Pierre d’Argent and Christina L. Beharry, argued that the res judicata principle should apply to Venezuela’s belated preliminary objections that the World Court should not preside over the matter.
As per this principle, a matter that has been adjudicated before may not be pursued further by the same parties. Given that the World Court, in December 2020, ruled that it has jurisdiction over the case, it was argued that Venezuela cannot object now.
“… Venezuela asks for the exact opposite of what the Court decided in its judgement. It is therefore impossible to grant Venezuela’s request without violating the res judicata effect of your judgement.
“Guyana, therefore, respectfully submits that Venezuela’s objections are precluded and should be rejected by the court on this basis,” Beharry said.
After the Court determined that it has jurisdiction to hear the case in 2020, it ordered that Guyana file its Memorial on the merits of its case against Venezuela. Guyana did so on March 8, 2022.
When Guyana filed its Memorial, Venezuela filed preliminary objections to the admissibility of Guyana’s Application to the Court to determine the validity of the 1899 Arbitral Award on June 7, 2022.
In accordance with its rules, the Court suspended the proceedings on the merits until the determination by the ICJ as it relates to Venezuela’s preliminary objections.
Venezuela refused to participate in the legal proceedings before this and Guyanese stakeholders believe that these preliminary objections are meant to delay the Court’s ruling on the substantive matter: the border controversy.
Guyana is seeking to obtain a final and binding judgement that the 1899 Arbitral Award, which established the location of the land boundary between then British Guiana and Venezuela, remains valid and that the Essequibo region belongs to Guyana and not Venezuela.
Venezuela Clinging at Legal Straws to Delay the ICJ Arbitration with Guyana
The Editor:
Guyana, by the internationally accepted law and principle of state succession today and as an independent state member of the UN/OAS has total authority, sovereignty and exclusive jurisdiction and control above (air space), beyond (maritime) and below (subsoil) the current state of Guyana formerly British Guiana by an Independence Agreement concluded by GB/UK and British Guiana effective from the date of the latter’s independence.
That was the legal practice adopted consistently by Great Britain when it granted independence to its former colonies beginning with India in 1947.
It did so with T&T on 31 August 1962.
This makes Guyana the succeeding and replacing party to GB in all colonial/pre-independence agreements and international treaties concluded by GB applicable in, related and extending to the new state of Guyana’s jurisdiction that was recognized by Venezuela itself.
Venezuela did not raise any objection to this agreement nor reserved its position.
This Venezuelan argument of bringing GB as a third party into the ICJ Arbitration when it has no current locus standi in the proceedings is another cheap, misleading and uninformed legal nullity being invoked by Venezuela to bring GB into the bilateral international arbitration taking place in the Hague.
It is another unconvincing red herring to delay the current resumed ICJ proceedings as it has done previously.
Venezuela concluded a 1942 Gulf of Paria Treaty with Great Britain establishing its partial maritime submarine boundary with T&T as part of the British Empire.
In 1990 it negotiated with T&T- not Great Britain to extend the boundary eastwards and indeed conclude two new maritime agreements based on the 1942 Gulf of Paria as the point of origin.
In 1990 it also agreed with T&T to change the location of the original 1942 maritime submarine boundary without any involvement whatsoever or participation of the UK/GB..
Venezuela cannot pick and choose selectively to promote its delaying agenda.
Venezuela recognized T&T as the succeeding party to this 1942 agreement that it had with GB and the boundaries that were established in 1942.
Venezuela, taking into consideration its legal relations with T&T is estopped from invoking this – GB ruse and position at the International Court of Justice’s Arbitration to bring in GB as a third party.
It has accepted by its previous conduct and practice that States like Guyana and T&T, its nearest neighbours are indeed legitimate successors of the British.
They are currently the only legal parties to previous bilateral agreements concluded with Venezuela that are applicable in these respective former colonies of the UK.
Stephen Kangal
Caroni.
Guyana must stand up against the continued bullying of Venezuela’s claim to Guyana rightful sovereign land. like has been deemed by International agreement in Canada concerning the border dispute, this matter was and is settled. Venezuela needs to understand this and back off, once and for all. NOT A BLADE OF GRASS. IT’S ALL OUR!