Public hearings in Guyana/Venezuela border controversy case continues at ICJ

The second round of the preliminary objections in the case concerning the Arbitral Award of October 3, 1899 (Guyana v. Venezuela) continued, on Friday, at the Peace Palace in The Hague, Netherlands, the seat of the Court.

In the hearings, Venezuela’s preliminary objections to Guyana’s submission of its memorials on the merits of the case are addressed.

Venezuela’s claim that the 1899 Arbitrary Award, which established the border between then-British Guiana and Venezuela, is void, is at the centre of the border controversy between Guyana and Venezuela. In response to Venezuela’s 1962 claim, the Geneva Agreement of 1966 set forth the strategies to settle the territorial dispute.

Guyana presented its objections to the preliminary objections raised by Venezuela, on Thursday, in the case.

Presenting his argument, Agent of Guyana in the case concerning the Arbitral Award of October 3, 1899, Carl Greenidge highlighted that Guyana will demonstrate that Venezuela’s preliminary objections are both legally unsupportable, and entirely without foundation, “the preliminary objections appear to be a device intended to derail and delay the court’s determination of the merits of Guyana’s claims.”

He underlined that in June 2020, Guyana had the distinction of being the first state to address the court remotely by video link which afforded both parties an equal opportunity to present their arguments concerning the court’s jurisdiction over Guyana’s claims. The court proceeded to deliver a judgement which inscribed itself, firmly, in its longstanding jurisprudence. Over the course of 138 detailed paragraphs, the court meticulously described, examined, and appraised the arguments and issues and adopted a thorough and impartial assessment of the law and facts.

In its judgement which was binding and dispositive, Greenidge noted that the court reached the unqualified conclusion that it has jurisdiction in respect of Guyana’s claims concerning the validity of the 1899 Arbitral Award and the related question of the definitive settlement of the boundary dispute between Guyana and Venezuela.

“In reaching that decision, the court upheld another careful and independent decision, namely the decision of the Secretary General of the UN in 2018, to entrust the court with responsibility for resolving the dispute between Guyana and Venezuela regarding the validity of the 1899 Award and the settlement of the parties’ land boundaries dispute. As the court will be well aware, this is a long-standing dispute which has thoroughly defined resolution for more than half a century.”

Greenidge highlighted that it has cast a long and menacing shadow over Guyana’s security and developments throughout its existence as a sovereign state. A shadow rooted in Venezuela’s efforts to erase the longstanding land boundary between the two countries and lay claims to nearly three quarters of Guyana’s land territory.

The resolution of this dispute, is therefore, no less than existential for Guyana.

He said that since Guyana emerged as a sovereign state in 1966, Guyana has been steadfast in its commitment to international law as the foundation for its relations with its neighbouring states.

“It is on this basis that Guyana has brought its claims before the court, it is important to be clear that Guyana brings those claims in the spirit of amity, not enmity towards Venezuela. Guyana desires a relationship characterised by mutual respect…and peaceful coexistence with its sister South American state.”

Guyana filed its application in the conviction evidently shared by the Secretary General of the UN that a final judgement by the court on the merits of Guyana’s claims will provide the surest and firmest foundation for such relations to flourish.

Following the Secretary General’s decision to refer the matter to the court in January 2018 and following the filing of Guyana’s claims on March 29, 2018, Greenidge underscored that Guyana hopes that Venezuela would engage constructively in the proceedings to facilitate timely resolution of the dispute by the court. Regrettably, he pointed out that Venezuela chose not to do so. Additionally, Venezuela chose not to file a formal, written pleading, although it did submit a lengthy, written memorandum some seven months after the deadline set by the court for the filing of the counter memorial and chose not to participate in the oral hearing in June 2020.

Two years later, Venezuela has decided to participate formally in the proceedings before the court.

Greenidge emphasised, “Guyana welcomes that decision. It regrets, however, that Venezuela’s formal participation takes the form of belated preliminary objections which seek to prevent and will inevitably delay the determination of the merits of Guyana’s claims. It regrets, too, the recent submission just one week before the hearing of a raft of new documents, the vast majority of which have nothing to do with preliminary objections newly raised.”

Importantly, he added that it is imperative to recognise the extent to which Venezuela has now availed itself of the opportunity to participate formally in the proceedings before the court.

Although Venezuela seeks to challenge the court’s decision over Guyana’s claims by its participation in these proceedings. It is apparent that Venezuela accepts the legitimacy of the court’s role, its power to dispense justice, and the binding effect of the court’s orders and judgements.

Greenidge continued by saying that if, as Guyana expects, the court rejects Venezuela’s preliminary objections, Guyana looks forward to Venezuela’s continued act of engagement at the resumed merit phase of these proceedings, “as the court has seen, the essence of Venezuela’s objection is that the court should not exercise the jurisdiction to entertain Guyana’s claims.”

Notwithstanding, Greenidge said that Guyana expressed its gratitude to the court for the speed and efficiency with which it has arranged the hearing on Venezuela’s preliminary objections and for setting a timetable which accommodates Guyana and its counsel. 

“Guyana and its people continue to have every confidence that the court will determine Venezuela’s preliminary objections fairly, impartially, and expeditiously, and will vindicate the Secretary General’s decision to entrust the parties longstanding dispute to the court,” he added.

Christina Beharry demonstrated that Venezuela’s preliminary objections conflict with the judgement of December 18, 2020, which is Res Judicata (a matter that has been adjudicated by a competent court and therefore may not be pursued further by the same parties).  

The Res Judicata principle applies to all judgments of the court. It is enshrined in the statute under Articles 59 and 60 and in the court’s jurisprudence which has long recognised judgments as final and without appeal. 

Tellingly, Beharry noted that Venezuela’s written submissions only makes passing reference to this principle, stating that the court’s judgement under jurisdiction suffers from legitimation problems which cannot be covered under the cloak of Res Judicata.

Member of the Bars of the United States Supreme Court and the District of Columbia, Paul S. Reichler addressed the legal standing of the Monetary Gold line of cases and demonstrated that the United Kingdom is not an indispensable third party to the proceedings.

Reichler highlighted that Venezuela seeks to prevent the court from reaching the merits of this case and from confirming the validity of the argument of the Arbitral Award of October 1899.

“In Guyana’s submission, Venezuela’s objections to the exercise of the court’s jurisdiction, in respect of these issues is completely unfounded, and the court should and must proceed to resolve them.”

Reichler reiterated that Guyana’s legal team has given sufficient reasons to dispose of Venezuela’s preliminary objections on procedural grounds. 

Moreover, Reichler pointed out that the UK has given its consent in Article 4 of the 1966 Geneva Agreement for the court to dissolve the dispute between Guyana and Venezuela.

Importantly, he underscored that in the circumstance of the court, in considering Venezuela’s preliminary objections under the monetary gold standard is to determine whether the UK has no legal interest that would not only be affected by, but would form the very subject matter of a judgment of the court on the validity of the 1899 Arbitral Award and the definitive settlement of the land boundary between the two countries.

He emphasised that the United Kingdom has no purported, legal interests, no legal rights or legal obligations that would be affected by a judgment of a court, on the merits of the case. He underlined that Venezuela intends to argue at the merit stage, that the award is invalid due to fraudulent conduct by the UK prior to and during the hearings before the arbitral tribunal in 1899. 

“As a matter of decolonisation law, the United Kingdom did not have and could not have any legal interest, any legal rights or obligations in Guyana’s sovereign territory or in the international boundaries that defined it.”

Concluding his presentation, Reichler underlined that the monetary gold principle cannot be applied to the present case and Venezuela’s preliminary objections must be rejected by the court. 

Meanwhile, Professor ordinaire, Université Catholique de Louvain and member of the Institut de Droit International, Foley Hoag LLP and the Bar of Brussels, Pierre d’Argent explained that Venezuela’s belated preliminary objections are precedingly improper, which is inadmissible in light of the court’s order of June 19, 2018.

Guyana is represented by Attorney General and Minister of Legal Affairs, Anil Nandlall, S.C.; Minister of Parliamentary Affairs and Governance, Gail Teixeira; Agent of Guyana in the case concerning the Arbitral Award of October 3, 1899, Carl Greenidge; Co-Agent and Permanent Secretary of the Ministry of Foreign Affairs and International Cooperation, Ambassador Elisabeth Harper; Director of the Frontiers Department of the Ministry of Foreign Affairs and International Cooperation, Donnette Streete; and Advisor to the Leader of the Opposition on Frontier matters, Ambassador Ronald Austin.

Co-Agent and Counsel, Sir Shridath Ramphal; member of the Bars of the United States Supreme Court and the District of Columbia, Paul S. Reichler; member of the Bars of the District of Columbia, the State of New York, England and Wales, and the Law Society of Ontario, Christina L. Beharry; among others are a part of Guyana’s legal team.

Judge Joan E. Donoghue, the Court’s President, is presiding over the proceedings for the case’s preliminary objections.

The public hearings commenced on November 17, 2022 and will run until November 22, 2022.