…as Venezuela refuses to file Counter-Memorial

ALTHOUGH the International Court of Justice (ICJ) fixed April 18, 2019 as the date for Venezuela to submit a Counter-Memorial on jurisdiction, the Spanish-speaking country, wracked by economic and social turmoil, has failed to do so.

Guyana has therefore asked the ICJ to proceed with the holding of oral hearings, at the earliest possible date, to determine its jurisdiction over the case brought against Venezuela. Last year, the Court thought it necessary to determine whether it has jurisdiction over the case before considering its merits. Pursuant to its order, Guyana submitted its written Memorial on jurisdiction in November 2018 – demonstrating that the Court has jurisdiction to decide on the validity of the Arbitral Award and the resulting boundary.

In a statement on Thursday, the Government of Guyana, through the Foreign Affairs Ministry, disclosed that Venezuela failed to submit its Counter-Memorial on the jurisdiction of the Court to hear the case brought against Venezuela, and intended to confirm the validity of the Arbitral Award of October 3, 1899, which fixed the land boundary between the two States.

“Although the ICJ fixed 18 April 2019 as the date for Venezuela to submit a Counter-Memorial on Jurisdiction – in response to Guyana’s Memorial – Venezuela failed to make a submission on that date, and indicated in a letter from its Foreign Minister that it had chosen not to do so,” the Foreign Affairs Ministry indicated.

The Foreign Affairs Ministry said that, as a consequence, Guyana has asked the Court to proceed with oral hearings, at the earliest possible date.

“Guyana is confident that the Court will agree that it has jurisdiction, and then proceed to decide on the merits of Guyana’s suit,” the Foreign Affairs Ministry stated.

“Guyana submitted the case to the Court after the Secretary General of the United Nations Antonio Gutteres determined, pursuant to his authority under the Geneva Agreement of 1966 – to which Guyana, Venezuela and the United Kingdom are Parties – that the dispute over the validity of the Arbitral Award, and the resulting boundary, must be decided by the Court. That constitutes a sufficient jurisdictional basis for the Court to proceed,” the Ministry explained.

It said Guyana regrets that Venezuela, notwithstanding its obligations under the Geneva Agreement and the Secretary General’s decision to refer the matter to the Court, has chosen not to participate in the case.

Nonetheless, the Foreign Affairs Ministry said, as indicated by the Court, the door remains open to Venezuela to join in the proceedings, which will continue to a final and legally-binding judgment, pursuant to the Court’s rules, whether Venezuela participates or not.
“Guyana takes note of the Venezuelan Foreign Minister’s recent tweet that, at some point in the future, it will supply the Court with “information” about the case to assist it in the exercise of its judicial functions,” the Foreign Affairs Ministry said.

“If this is a first step toward Venezuela’s full participation in the case, Guyana welcomes it. At the same time, Guyana has reserved its right to object to any submission by Venezuela that violates the Court’s rules or is otherwise prejudicial,” it added.

With the deadline for the Counter-Memorial passed, the Foreign Affairs Ministry said the next step will be for the Court to schedule the dates for the oral hearing on jurisdiction. The Guyanese Government has committed to inform the public as soon as these dates are set.
When it submitted its Memorial on Jurisdiction last November, the Government argued that Venezuela’s contention that the means of settlement outlined in Article 33 of the UN Charter must be exhausted before recourse to the Court can be chosen is baseless.

“Guyana’s Memorial shows there is no foundation to Venezuela’s contention that the means of settlement listed in Article 33 of the UN Charter must be selected by the Secretary-General successively, such that the means listed ahead of judicial settlement have to be exhausted before recourse to the Court can be chosen,” the Foreign Affairs Ministry had said.

It maintained that nothing in the text of Article IV of the Geneva Agreement, which provides a menu of options, supports Venezuela’s interpretation.

The Foreign Affairs Ministry added: “Nor is Venezuela correct in arguing that, as it has recently asserted, the controversy must be resolved exclusively by friendly negotiations, a claim that is belied by the express terms of the Geneva Agreement and contemporaneous statements by the parties during its negotiation and ratification.”

In its submission, Guyana pointed out that the boundary with Venezuela was established by an arbitral tribunal constituted pursuant to a treaty concluded by Venezuela and Great Britain in 1897.

It said the record would show that Venezuela accepted the unanimous award rendered by five eminent jurists on October 3, 1899. The Spanish-speaking country had also participated in a joint commission to demarcate the boundary on the ground, and insisted on the award’s strict implementation.

“Only decades later did Venezuela, in anticipation of Guyana’s independence, cease recognizing the award’s validity and binding nature, using that pretext to lay claim to more than two-thirds of Guyana’s territory,” the country noted.

In an effort to ensure a final resolution to the controversy through peaceful means, the Government of British Guiana, Venezuela and the United Kingdom concluded that the Geneva Agreement on February 17, 1966. Article IV of that treaty authorizes the Secretary-General of the United Nations to decide which of the means listed in Article 33 of the United Nations Charter shall be used to resolve the controversy. Notably, it includes binding adjudication by the ICJ. In agreeing to Article IV, Venezuela consented to the Court’s jurisdiction in the event the Secretary-General decides that the controversy should be resolved by the Court, Guyana stated.

“Efforts over more than half-a-century, including a four-year Mixed Commission (1966-1970), a twelve-year moratorium (1970-1982), a seven-year process of consultations on a means of settlement (1983-1990), and a twenty-seven-year Good Offices Process under the UN Secretary-General’s authority (1990-2017), all failed to end the controversy.

On 30 January 2018, United Nations Secretary-General António Guterres, acting under the authority bestowed upon him by the Geneva Agreement, chose adjudication by the Court as the means for resolving the controversy with finality,” the Government outlined.

Guyana’s representation before the Court is led by its agent Vice President and Minister of Foreign Affairs, Carl Greenidge; and by its co-agents, Sir Shridath Ramphal and Ambassador Audrey Waddell.