Guyana v Venezuela: Legal elements
The Argylle Initiative led by Prime Minister Ralph Gonsalves has temporarily lowered the temperature in the Guyana/Venezuela controversy concerning sovereignty over the Essequibo region.
In bringing together President Irfaan Ali of Guyana and Venezuela’s Nicolas Maduro, PM Gonsalves has underscored the value of diplomacy and the rule of law in the conduct of international relations. This is an obvious point, but it still needs to be made, for, in the days immediately preceding and following its December 3 Referendum, Venezuela certainly seemed inclined to adopt certain unilateral measures with a view to seizing at least some areas within Essequibo held by Guyana since at least 1899.
So, on one view, the Argylle Initiative opened the way for Venezuela to suggest that it was not prepared to disregard entirely community views on the route to an amicable solution. The community in this particular context is the Community of Latin American and Caribbean States (CELAC), but it is fair to say that the USA and Caricom may have, in different ways, prompted a change in the unilateralist inclinations in Caracas. On the other side, the Argylle Initiative provided a public, international forum for Guyana to reiterate its position in favour of the status quo; at very least, this should have shored up the view from Georgetown in world opinion. In a world where small shadings of emphasis counts, St Vincent and the Grenadines has made a positive difference in bringing the protagonists peacefully together.
That said, it must be acknowledged that the Argylle Initiative provides no long-term solution to the territorial dispute over Essequibo region. For this conflict to be properly resolved, both countries will need to agree upon a mutually acceptable dispute-settlement mechanism. From the Guyanese standpoint, this mechanism exists in the form of the International Court of Justice (ICJ), the principal judicial organ of the United Nations. This approach has also recommended itself to UN Secretary General Guterres.
In contrast, Venezuela has refused to accept the jurisdiction of the court: as is stated in Paragraph 4 of the Joint Declaration of Argylle, Venezuela has asserted its “lack of consent and lack of recognition of the International Court of Justice and its jurisdiction in the border controversy”.
The Venezuelan position on the court requires elaboration. Why has Venezuela sought to reject the court’s jurisdiction and has it been successful in this effort? Generally speaking, the ICJ obtains jurisdiction in cases on the basis of consent from the disputant states.
This consent may be given in one of four ways, namely, (1) through a special agreement (called a “Compromis”) between the disputants about the particular case; (2) through a provision in a treaty stipulating that certain matters under the treaty are to be resolved by the court (with both States being party to the treaty); (3) through the voluntary acceptance by both disputants of the automatic compulsory jurisdiction of the court (called the “Optional Clause”); and (4) through the application by one state to the court for a case to be heard and the implied acceptance of the application by the other state (called the “forum prorogatum” approach).
Venezuela’s rejection of the court’s jurisdiction thus needs to be founded on the argument that none of these four bases of jurisdiction is applicable in this case. On the facts, it is clear that options (1), (3) and (4) above were inapplicable. Crucially, however, the court found in its judgment of 18 December 2020 in the case concerning the Arbitral Award of October 3, 1899 (Guyana v Venezuela) Jurisdiction of the Court, ICJ Reports 2020, p 455, that it did indeed have jurisdiction over both states.
The court grounded its jurisdiction on the Geneva Agreement of 1966, a treaty concerning the territorial dispute which gave the UN secretary general the binding decision-making power to have the controversy addressed by various means, including judicial settlement. Thus, when the secretary general selected the court as the means of settlement, Venezuela was duty bound to follow, for it had accepted this in the Geneva Agreement, along with the United Kingdom and Guyana. The court reached this conclusion by 12 votes to four.
It should also be noted that Venezuela, by virtue of its membership of the United Nations, is a party to the statute of the court. And the statute gives the court the power to decide whether it has jurisdiction in a given case (the “competence de la competence”). The court has spoken on the jurisdiction question firmly in Guyana’s favour. Supporters of the rule of law should repeatedly remind Venezuela of this.
Since the time of the court’s judgement on jurisdiction, Venezuela has raised another objection to the court’s hearing of the case. In brief, Venezuela has argued that the case ought not to proceed for the United Kingdom, the colonial power, and a critical party to the issues from before 1899, is not taking part in the case. If the final decision of the court could have a material impact on the United Kingdom, then this would be a valid point for serious consideration, for Britain is a party to the Geneva Agreement. In its order, dated April 6, 2023, the court rejected the Venezuelan objection by 14 votes to one: for the court, Britain has accepted that the matter should be addressed by the court and that it shall take no part in the proceedings.
The next steps in this dispute are broadly identifiable. The court is seised of the matter and will proceed to the merits of the case. Guyana will be present, and the case will go on with or without Venezuela’s presence. The central issue in the merits phase of the case will be whether the Arbitral Award of 1899, which drew the current boundary by virtue of a unanimous decision among five arbitrators, is valid in law. If it is valid, Guyana will prevail and “not a blade of grass” shall pass. If it is invalid – as Venezuela has contended – then the court will need to address the consequences of this invalidity.
In all likelihood, Venezuela will continue to resist having the matter resolved by the court. But if it maintains this course of action it will need to convince various states that the court — a third party body with 15 permanent, independent judges drawn from 15 different countries — is inherently biased against Venezuela and this bias will manifest itself in a case against neighbouring Guyana. That is a tall political order, indeed. Caricom, for one, will not be convinced.
Ambassador Stephen Vasciannie is a professor of international law at The University of the West Indies, Mona Campus.