Avoid `enforcement’ pessimism over Guyana’s case at the ICJ

Dear Editor,

In its editorial of Wednesday October 20 last, SN provided a snapshot of the issues that led to the ICJ and its 12th October 2021 decision, largely favourable to Somalia, demarcating the maritime space offshore of Kenya and Somalia. The editorial sought to alert readers to the parallels with the Guyana-Venezuela case and the need for us to ‘make copious notes’ as part of our preparation for phase two, the hearing on the merit, of our case before the Court.

It is commendable that the paper picked up the judgment and was able to offer views on it with such alacrity and clarity. I especially appreciated the report of the issues raised, such as the weakness of the Government of Kenya’s preparation for, and approach to, the ICJ hearings, raised by the Kenya TV panellists during their follow-up debate. It is difficult to disagree with the general line taken by the editorial.

The process leading to the KenyaSomalia Case

In spite of a MOU they signed in 2009, Kenya and Somalia had been unable to resolve their maritime dispute so Somalia sought refuge in the Court. Kenya did not agree to take that route. One of Kenya’s reasons for objecting to the competence of the Court was the presence of a Somali among the panel of judges. But judges do not represent their states and Judge Abdulqawi Ahmed Yusuf was only one out of 14 judges drawn from each of the main regions of the world. As it happens, Judge Yusuf presided over the Hearings on jurisdiction in the case brought by Guyana against Venezuela. Since Kenya had no national on the panel it was entitled and did nominate a judge for that specific case. The suggestion by the members of the Kenya TV panel that another forum would have been better suited or would have yielded a result more favourable to Kenya is not persuasive. It is not unlike the call to Guyana by the former President of Argentina, Christina Fernandez de Kirchner in 2015 in Brasilia. The regional resolution spawned by Trinidadian Prime Minister, Dr Eric Williams, the 1970 Protocol of Port of Spain merely froze the conflict in time until Venezuela found a more favourable opportunity to resurrect the matter. The technique of “freezing” claims at a particular juncture generates contradictory effects. This protocol creatively calmed the roiled waters in 1970, but …. it advertised and scheduled a crisis a dozen years later. The conflict flared up when the protocol expired… The problem therefore was not the forum but the strength of Kenya’s case and it state of preparation. If these were strong how bad would the lawyers have had to be in order to lose the case to a nearly ‘failed state’. That should have alerted the panellists to the likelihood that a favourable ICJ outcome was dependent on more than the relative capacities of the state apparatus.

The relevance of the forum for resolution The international community has agreed rules for demarcating disputed territorial and maritime spaces. Those rules limit the options available to parties. The rules for resolving disagreements over maritime spaces are overseen by ITLOS (UNCLOS) and allow flexibility to take account of geographical peculiarities of the coast. The Court acknowledges the need for such flexibility and indeed appears to have done so in this case. It is true that the case could have been put to some of the regional bodies mentioned. But they could be managed by the ICJ, which has a primary function to deal with disputes between states. It is a more authoritative body. There is only so much one can do by turning to different venues and fora.

Some differences between the Kenya-Somalia and GuyanaVenezuela Cases

The case facing Guyana is, in some ways similar, but otherwise radically different. First, in the words of one analyst, “The territorial disputes between Venezuela and Guyana and between Guatemala and Belize are novel to some extent, too. They were activated as a by-product of decolonization. Venezuela and Guatemala had been unable to challenge the United Kingdom’s dominion successfully, but they did not let independence go forward, in Guyana in 1966 and Belize in 1981, without pressing their claims. Venezuela and Guatemala had portrayed themselves as agents against colonialism. Independence for Guyana and Belize suddenly cast Venezuela and

Guatemala as villains, seeking to prevent the self-determination of English-speaking Afro-American peoples in small countries.” (Domínguez, Jet al 2001).

Secondly, Guyana is before the Court in relation to its land boundary in the first instance. Although it should be easier to agree on maritime boundaries if the land boundaries are agreed, Venezuela is not a member of UNCLOS so Guyana does not have the option (that was available in the Suriname dispute) of automatically taking advantage of the UNCLOS resolution mechanism. An ICJ decision is therefore still likely to be followed by a search for maritime demarcation. The role of diplomacy will remain and politics will be central to resolution of the overall controversy.

Some similarities between the (K-S and G-V) Cases But back to the territorial dispute over land. If there cannot be agreement over simple facts there can be little hope of a mutually agreeable resolution. Kenya, like Venezuela, after years (2009-2014) of trying to come to an amicable resolution, was calling for further negotiations and more importantly, argued that there had been a bilateral agreement to which the two parties were bound. They were not able to find common ground with the Somalis on this. Neither, is it clear if they were able to persuade the Court of the binding nature of that MOU or of the appropriateness of a Court resolution.

In that sense, a parallel can be drawn with the Controversy. The basic facts are questioned by one party but can and have been verified by independent research and third parties. Venezuela attempted to deny the recognition they accorded to the Court under the 1966 Geneva Agreement. The 16 independent judges of the ICJ were not persuaded. That is not surprising because after the Venezuelan Minister announced to the UN in 1962 that their Government did not accept the validity of the Paris Award, a Mixed Commission was established (19661970) which allowed scope for Venezuela to make their case to nullify the agreement. Venezuela did not utilize this opportunity. Under international law, a treaty that is negotiated and signed by parties cannot simply be deemed invalid and cast aside by one party. In any case, there would have to be a treaty/agreement defining new boundaries. No such replacement arrangement exists and no degree of passionate embrace by Venezuela’s Presidents can imbue the Geneva Agreement with the characteristics of a boundary treaty. It is obviously an agreement about resolving a disagreement about validity. Venezuela’s 1962 rejection of the validity of the 1899 Paris Arbitration Award was not accepted at the time by any of the other parties concerned.

To resolve this contention, the parties agreed to a 1970 Moratorium. That moratorium was terminated by Venezuela in the most impolite fashion in 1982. A Good Offices process which ran from 1987 to 2016 was then agreed. Most recently, in a last-ditch effort to conclude that never-ending and fruitless dialogue, a one year ‘final’ round of talks led by the UN SG (2015-2016) was agreed. It was in turn followed by a strengthened last round for yet ‘another year’ termed, ‘Enhanced Mediation’ and led by the UN SG’s Personal Representative, Ambassador Dag Nylander of Norway and ran until early 2017. According to the SG’s reading of the report submitted by his PR, those talks widened the gap separating the two states. He therefore decided, in keeping with the provisions of Art IV of the Geneva Agreement signed by the two states, that the Controversy as to whether or not the Paris Arbitration Award is valid should be resolved by the ICJ. Yet, President Maduro and his allies reject this avenue and continue to call for friendly talks as though all the talks of 1966-2018 were unfriendly, never took place or will now be more fruitful due to as yet unstated radical change/s in circumstances.

As with the Kenya-Somalia MOU, the ICJ rejected Venezuela’s claim that the Court does not have jurisdiction. The same applies to the contention that the Venezuela Government had never agreed to the ICJ’s jurisdiction and also that the SG acted improperly in choosing the ICJ without (again) seeking Venezuela’s permission. If two countries cannot agree after 52 years on the jurisdiction why would they ask the SG to choose from the list and then require the same countries to agree to the choice of jurisdiction.

When Venezuela lost that battle, it argued that the ICJ is an inappropriate forum for arriving at either a friendly or mutually acceptable resolution. However, when two intransigent parties cannot resolve a problem peacefully, other mechanisms devised by, and acceptable to, the international community are used. The Geneva Agreement was never intended by the parties, other than Venezuela, to be a mechanism for converting a disagreement such as the Controversy into a perpetual dispute.

However, this is what has actually occurred. The international community’s tried and tested mechanisms including mediation, arbitration and judicial settlement, set out in Art 33 of the UN Charter, have all been rejected by Venezuela. Even Arbitration, which was supposed to yield a binding result, was rejected by Venezuela after 63 years. The only option left in such circumstances is the consent-based ‘flawed jurisdictional architecture’ of our international bodies and the ICJ in particular. This inadequacy is the sentiment of the Stabroek editorial. In the words of one analyst, “Anything less than a clear indication of consent by the defendant state in a given case is thought to run serious non-compliance risks” (Llamazon, A, 2007).

The ICJ, compliance risks and the role of diplomacy The scepticism of Guyanese arising from their experience with the saga permitted under this architecture is evident every time the referral of the case to the ICJ is raised. With good reason the Stabroek Editorial reflects this. I would respond however, that careful analyses of the Court’s history post the ‘Nicaragua vs USA landmark case’ suggests that, “through complex mechanisms of authority signal and the political inertia induced by those decisions, almost all of the Court’s decisions have achieved substantial, albeit imperfect compliance”. That wording reflects a broad consensus among reviewers who also say that two good guides to likely compliance are (i) the types of cases and (ii) the positions taken by the two parties prior to the judgment. Donoghue, for example, shares that view in her contribution to ‘The Effectiveness of the ICJ” (Donoghue, 2014).

So, Editor, avoid ‘enforcement pessimism’, do not despair simply because these two states are not ‘bound at the hip’ and because the ICJ lacks formal enforcement mechanisms. Guyana will triumph as long as the people and their Government appreciate that diplomacy has always been intended to address those very problems. Neither should we abandon the constant refinement and strengthening of the institutions which underpin the political and diplomatic efforts which have given Guyana such prominence and brought us such success in the international arena until now.

Yours faithfully, Carl B. Greenidge Adviser on Borders