Venezuela says move to ICJ on bor­der con­tro­versy un­en­force­able

-pro­poses restart of diplo­matic con­tacts for res­o­lu­tion

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While re­it­er­at­ing its re­jec­tion of the re­fer­ral of its bor­der con­tro­versy with Guyana to the In­ter­na­tional Court of Jus­tice (ICJ) for ad­ju­di­ca­tion, which it has dubbed “un­en­force­able,” Venezuela has pro­posed that the two coun­tries restart diplo­matic con­tacts to reach a res­o­lu­tion.

Last Thurs­day, Guyana filed an ap­pli­ca­tion with the ICJ to con­firm the va­lid­ity and bind­ing ef­fect of the Ar­bi­tral Award of 1899 on bound­ary be­tween the two coun­tries, fol­low­ing the de­ci­sion by the UN Sec­re­taryGen­eral An­to­nio Guter­res to choose the ICJ as the next means of re­solv­ing the con­tro­versy, which stems from Venezuela’s con­tention that the award was null and void.

But in a state­ment is­sued on Fri­day, Venezuela’s Min­istry of Peo­ple’s Power for For­eign Af­fairs stated that Guyana’s re­sort to a ju­di­cial set­tle­ment is both “un­ac­cept­able” and “un­en­force­able” and it noted that it does not recog­nise the ju­ris­dic­tion of the court as bind­ing.

It said it had sent a Diplo­matic Note to Guyana’s Min­istry of For­eign Af­fairs on March 28th, 2018, mak­ing it aware that Venezuela does not ac­knowl­edge the UN Sec­re­tary-General’s rec­om­men­da­tion that a ju­di­cial set­tle­ment be used to peace­fully set­tle the bor­der con­tro­versy be­tween the two coun­tries.

Venezuela has ar­gued that in mak­ing the rec­om­men­da­tion, the Sec­re­tary-General ex­ceeded the pow­ers granted by the fig­ure of Good Of­fices–mu­tu­ally agreed upon by the par­ties–and con­tra­venes the spirit, in­tent and pur­pose of the Geneva Agree­ment of Fe­bru­ary 17th, 1966.

It has also noted that it ex­pressly ob­jects to ju­di­cial set­tle­ment as a means for peace­ful res­o­lu­tion of the con­tro­versy since it claims that it vi­o­lates the pre­am­ble of the 1966 Geneva Agree­ment, which strictly es­tab­lishes that the is­sue must be “am­i­ca­bly set­tled in a mu­tu­ally ac­cept­able man­ner.”

“The afore­men­tioned mech­a­nism also vi­o­lates Ar­ti­cle 1, given that it does not lead to “sat­is­fac­tory so­lu­tions for the prac­ti­cal set­tle­ment of the dis­pute,”” it fur­ther says, be­fore adding that it has in­formed Guyana that “re­sort­ing to a ju­di­cial set­tle­ment to set­tle the dis­pute is un­ac­cept­able, un­fruit­ful and un­en­force­able, given that the Bo­li­var­ian Repub­lic of Venezuela does not recog­nise the ju­ris­dic­tion of the In­ter­na­tional Court of Jus­tice as bind­ing, and in this sense, it has al­ways been con­sis­tent with its his­tor­i­cal po­si­tion of ex­pressly re­serv­ing or not sign­ing any in­ter­na­tional le­gal in­stru­ment con­tain­ing ar­bi­tra­tion clauses that may grant com­pul­sory ju­ris­dic­tion to such Court.”

As a re­sult, Venezuela said it pro­posed to re­sume diplo­matic con­tacts to al­low for a joint assess­ment of the pos­si­bil­ity of con­tin­u­ing with the Good Of­fices process.

“…In or­der to make progress in the choice of the peace­ful dis­pute set­tle­ment mech­a­nism, by mu­tual con­sent, un­der the Geneva Agree­ment of 1966, the Gov­ern­ment of the Bo­li­var­ian Repub­lic of Venezuela has pro­posed to the Gov­ern­ment of the Co­op­er­a­tive Repub­lic of Guyana to re­sume diplo­matic con­tacts, al­low­ing to reach a prac­ti­cal and sat­is­fac­tory so­lu­tion of the ter­ri­to­rial dis­pute. Such con­tacts will also al­low to jointly as­sess the pos­si­bil­ity of con­tin­u­ing with the Good Of­fices fig­ure, un­der the aus­pices of the UN Sec­re­taryGen­eral, all this within an en­vi­ron­ment of cor­dial­ity and con­struc­tive and peace­ful di­a­logue,” the state­ment con­cluded.

Ac­cord­ing to a state­ment is­sued by Guyana’s Min­istry of For­eign Af­fairs af­ter the fil­ing of the award, the UN Sec­re­taryGen­eral’s author­ity to choose the ICJ – based in The Hague – as a means of re­solv­ing the con­tro­versy is based on the Geneva Agree­ment of 1966, which was ne­go­ti­ated just be­fore Guyana gained in­de­pen­dence.

Venezuela’s in­ter­pre­ta­tion of the Agree­ment ig­nores the fact that un­der Ar­ti­cle 33 of the UN Char­ter, the UN Sec­re­tary General is em­pow­ered to se­lect “ju­di­cial set­tle­ment” as a means of set­tle­ment un­der Ar­ti­cle IV(2) of the Geneva Agree­ment.

Min­is­ter of For­eign Af­fairs Carl Greenidge, in fil­ing the ap­pli­ca­tion, said Guyana has re­spected the Sec­re­taryGen­eral’s de­ci­sion and placed its

faith in the ICJ to “re­solve the con­tro­versy in ac­cor­dance with its Statute and ju­rispru­dence, based on the fun­da­men­tal prin­ci­ples of in­ter­na­tional law, in­clud­ing the sanc­tity of treaties, the main­te­nance of set­tled bound­aries and re­spect for the sovereignty and ter­ri­to­rial in­tegrity of States.”

The state­ment said that in its ap­pli­ca­tion to the Hol­land-based court, Guyana high­lighted that Venezuela had for more than 60 years “con­sis­tently recog­nised and re­spected the va­lid­ity and bind­ing force of the 1899 Award and the 1905 Map agreed by both sides in fur­ther­ance of the Award.”

The state­ment added that Venezuela had only al­tered its po­si­tion for­mally in 1962 as the United King­dom was mak­ing fi­nal prepa­ra­tions for the in­de­pen­dence of Bri­tish Guiana and “had threat­ened not to recog­nise the new State, or its bound­aries, un­less the United King­dom agreed to set aside the 1899 Award and cede to Venezuela all of the ter­ri­tory west of the Esse­quibo River, amount­ing to some two-thirds of Guyana’s ter­ri­tory.”

Ac­cord­ing to the state­ment, Guyana’s ap­pli­ca­tion notes that while Venezuela has never pro­duced any ev­i­dence to sub­stan­ti­ate its be­lated re­pu­di­a­tion of the 1899 Award, “it has used it as an ex­cuse to oc­cupy ter­ri­tory awarded to Guyana in 1899, to in­hibit Guyana’s eco­nomic de­vel­op­ment and to vi­o­late Guyana’s sovereignty and sovereign rights.”

On Jan­uary 30th, 2018, Guter­res con­cluded that the Good Of­fices process, which the two coun­tries had en­gaged in for al­most 30 years, had failed to achieve a so­lu­tion to the con­tro­versy and there­fore chose the ICJ as the next means of set­tle­ment.

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