…although Geneva Agreement clearly provides for UN SG to refer case to court

By Svetlana Marshall
NOTWITHSTANIDING, the clear and unambiguous terms of the 1966 Geneva Agreement that the Border Controversy between Guyana and Venezuela can be resolved at the International Court of Justice (ICJ) on the instructions of the United Nations Secretary-General, the Spanish speaking country is contenting that a “special” agreement is needed for the matter to be referred to the world court.

Venezuela, which contends that the 1899 Arbitral Award is null and void, stated its position in a Memorandum filed before the International Court of Justice in November, 2019. The Memorandum, however, was only made public by the Court following the first hearing of the case on June 30, 2020. The virtual hearing dealt primarily with the ICJ’s jurisdiction to adjudicate in matter filed by Guyana in 2018.

In its 56-page Memorandum, Venezuela, who in contending that the 1899 Arbitral Award is null and void, and as such laying claims to almost three-quarters of Guyana, told the ICJ that “the Geneva Agreement requires a settlement be amicably reached through a practical, acceptable, and satisfactory solution for both parties.” Guyana has always maintained that the 1899 Arbitral is valid.

It contends that recourse to adjudication, including the ICJ, is not possible without a specific provision in a “special agreement,” to be concluded, referring the case to the Court. Such an agreement, it said, should indicate that the Court will settle the controversy in alignment with the Geneva Agreement, and not only on the basis of international law.
Further to that, the Spanish speaking country contended that the scope of the controversy to be referred to the Court is not clearly defined even as it iterated the need for a special agreement to clearly state the issue to be addressed by the Court.

“In any event, the Geneva Agreement does not constitute an agreement under Article 36.1 of the Statute of the Court: the effect of the Agreement is to have the UN Secretary-General deciding which means of settlement shall be used; on the other hand, the agreement itself does not grant jurisdiction to the Court. It is not a self-standing or a self-executing agreement as regards jurisdiction of the Court. The UN Secretary-General only designated “the means to be used for the solution of the controversy”; to materialize the choice of the UN Secretary-General, there is a need to comply with the Court’s Statute, i.e. in the present case to conclude, in the absence of any other basis for jurisdiction, a special agreement,” Venezuela submitted.

But Guyana, in its virtual presentation before the panel of judges led by the President of the ICJ, Abdulqawi Yusuf in the case – Arbitral Award of October 1899 (Guyana v. Venezuela), said not only is Venezuela’s current interpretation of the Geneva Agreement illogical and erroneous, but it is in stark contrast to the interpretation the Spanish speaking country had when it signed the very agreement in February, 1966.

The Geneva Agreement was reached in February, 1966 to the resolve the controversy between Venezuela and the United Kingdom of Great Britain and Northern Ireland over the frontier between Venezuela and British Guiana.

In rubbishing Venezuela’s contention on Tuesday, internationally recognized Legal Counsel, Paul Reichler, who formed part of the battery of lawyers that represented in Guyana, invited the ICJ to examine Article IV (2) of the Geneva Agreement.

That Article states: “If, within three months of receiving the final report, the Government of Guyana and the Government of Venezuela should not have reached agreement regarding the choice of one of the means of settlement provided in Article 33 of the Charter of the United Nations, they shall refer the decision as to the means of settlement to an appropriate international organ upon which they both agree or, failing agreement on this point, to the Secretary-General of the United Nations. If the means so chosen do not lead to a solution of the controversy, the said organ or, as the case may be, the Secretary-General of the United Nations shall choose another of the means stipulated in Article 33 of the Charter of the United Nations, and so on until the controversy has been resolved or until all the means of peaceful settlement there contemplated have been exhausted.”
Reichler pointed out that at paragraph 32 of Venezuela’s Memorandum it confirmed that both countries had failed to agree on the choice of a means of settlement and to designate an ‘appropriate international organ’ to proceed to do it, as provided for in the first subparagraph of Article IV (2) of the agreement.

The Legal Counsel said not only that the countries had failed to reach an agreement on an international organ to choose the means of settlement, but in compliance with Article IV (2) they jointly referred the decision as to the means of settlement to the UN Secretary-General.

He noted that it was after 27 years of the Good Offices Process, which was instituted by the UN Secretary-General that a decision was taken to refer the controversy to the ICJ for a final and binding decision, after no progress had been made. The Good Offices Process spanned from 1990-2017.

The Secretary-General’s decision, he further submitted, is binding on both Guyana and Venezuela and ought to be respected. Reichler told the ICJ that Venezuela’s objection to the Secretary-General referring the controversy to the ICJ goes against the position of its Minister of Foreign Affairs Ignacio Iribarren Borges, who had signed the agreement in Geneva in 1966.

The Legal Counsel pointed out that the Venezuelan Foreign Minister in his address to the Venezuela National Conference in March 17, 1966, in his quest to have the Geneva Agreement ratified, said: “Finally, in an attempt to seek a respectable solution to this problem I put forward a third Venezuelan proposal that would lead to the solution for the borderline issue in three consecutive stages, each with their respective timeframe, with the requirement that there had to be an end to the process: a) a Mixed Commission, b) Mediation; c) international arbitration.”

Borges, Reichler said, was keen on pointing out to the Venezuelan National Congress at the time, “that there exists an unequivocal interpretation that [the] only person participating in the selection of the means of solution will be the Secretary General of the United Nations and not the Assembly.”

The Legal Counsel submitted to the ICJ that it was Venezuela who had proposed that Article IV be drafted so as to ensure a definitive resolution of the controversy ultimately, if so decided by the Secretary General by arbitration or recourse to the International Court of Justice.

“There is thus no doubt, Mr President, from the terms of the agreement, the negotiating history or the contemporaries statements by the parties immediately following its conclusion that Article IV (2) was intended to assure that there would be a final resolution of the border controversy; that the Secretary General was empowered to decide on the means of settlement to be employed, choosing among those listed in Article 33 of the Charter and that the parties understood and intended that if the Secretary-General so decided that the controversy would be settled by the ICJ,” Reichler said.

He added: “This was Venezuela’s understanding of the Geneva’s agreement and of Article IV (2) in particular at the time it signed and ratified the agreement in 1966 that he Secretary General was empowered to decide on the means of settlement including recourse to the ICJ and his decision would be final and binding on the parties.”

Contrary to this position, Venezuela in the Memorandum contended that Article IV (2) requires an additional step to materialize the obligation to adjudicate, which is the conclusion of a special agreement. It said that the approach to the court cannot be unilateral.

The UN Secretary-General had referred to the border controversy to ICJ after acknowledging that the Good Offices process bore no fruit. Prior to that there was the Mixed Commission (1966-1970), a 12-year moratorium (1970-1982) and a seven-year process of consultations on a means of settlement (1983-1990). Guyana maintains that resort to the ICJ will result in a final and binding decision from the Court that the 1899 Arbitral Award is valid.