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Venezuela refuses to present case on the border issue to World Court

By Ambassador Odeen Ishmael - Posted June 25th. 2018

The government of Venezuela on June 18 declared that it would not participate in the judicial process requested by Guyana of the International Court of Justice (ICJ) to rule as to whether or not the 1899 arbitration territorial award is "null and void," an allegation the Spanish-speaking republic has promoted since 1962. As a result of this allegation, it reopened a pre-1899 claim to an extensive area of Guyanese territory in Essequibo, a claim which has progressively extended to even include Guyanese territorial waters.

In a communique, the Venezuelan government claims that the court lacks jurisdiction and requests Guyana to resume bilateral negotiations on the border issue. While Venezuela never acceded to the general jurisdiction or recognition of the ICJ, Guyana has said that that court's ruling will be binding on both the participant and non-participant.

The decision to stay away came after Vice President Delcy Rodriguez and Foreign Minister Jorge Arreza Montserrat met with the ICJ president, Abdulqawi Ahmed Yusuf who explained procedural matters relating to the upcoming case.

In response to the Venezuelan refusal, Guyana stated on the following day that it would request the court to apply a decision binding on both parties, based on Article 53 of the Court's statutes, which states that if one of the parties fails to appear before the court, or refrains from defending its case, the other party may ask the court to decide in its favor. A statement from the Guyanese foreign ministry hopes that, in due time, Venezuela will reconsider its position and decide to appear before the court and defend its case. Guyana says that it has requested the ICJ to decide that the arbitration award of 1899 is legal.

If the ICJ upholds the legality of the award it will give Guyana unquestionable recognition to the ownership of its territorial space in the eyes of the international community.

The refusal by Venezuela to present its case to the ICJ has prompted opinions on the legal ramifications. In Guyana, the online news site, Demerarawaves, on June 19 reported the views of a "legal and security expert," who requested anonymity, as saying that "Venezuela cannot accept and reject the jurisdiction of the ICJ in settling the border controversy. . . There is an interesting and powerful nuance - because the Geneva Agreement named the ICJ as a means of resolution of the controversy; Venezuela has, for all intents and purposes, recognized and accepted the jurisdiction of the Court for this narrow issue and cannot seek to approbate and reprobate at the same time."

The expert added: "It should be noted that the court is itself already operating as if it has jurisdiction-primarily because of the source or origin of the matter, which is the Secretary General, and not a state party. The UN itself has . . . invoked the jurisdiction of the court and not Guyana and the ICJ is duty bound to respond."

According to the Demerarawaves report, Venezuela's rejection of the ICJ marks that country's move to set the stage to reject the court's decision, thus seeking to reserve its right not to respect the decision of the court, especially if the ruling is not to its liking.

In Caracas, the conservative daily El Universal reported that the diplomat and international analyst, Julio CÚsar Pineda, said the initial premise of the Guyanese Government to Venezuela in relation to the Essequibo is false as "the Article 53 to which they appeal, is not valid in this case because it only applies when both parties accept the jurisdiction of the Court and agree to appear."

Pineda explained that Venezuela is not obliged to appear before the ICJ since the country has preferred to stick to the involvement of the UN Good Office. On the other hand, the university professor also urged President Nicolas Maduro and other competent bodies to gather all specialists in the area of diplomacy, in order to build a solid strategy that "does not let us lose such an important part for Venezuela." He suggested continuing to appeal to Article 33 of the Charter of the United Nations, proposing bilateral agreements and leaving the judicial part as a last and remote instance.

Apparently, Pineda fails to understand that the UN Secretary General himself said that the Good Office has been fruitless and has chosen the judicial method as a means of settlement.

El Universal also reported that the former director of International Treaties of the Ministry of Foreign Affairs, Milagros Betancourt, said that if the decision of the Venezuelan government was not to appear "what is proper is to monitor the process" and "have a strategy to achieve the start of talks with Guyana aimed at resolving the dispute in this way."

The paper added that the former UN ambassador of Venezuela Milos Alcalay felt that in international law "the absence of one of the delegations can be an obstacle to the claims." This is similar to the position taken by the non-governmental organization (NGO), Citizen Control, which in February suggested that Venezuela should gather a team of legal experts to prepare its case to present to the ICJ. As such, opinions regarding participation in the ICJ process are divided in Venezuela. Despite this, one prevailing view is that Venezuela will eventually field a legal team to at least observe the proceedings when they occur.

Ironically, while its allegation of nullity of the arbitration award of 1899 is of a juridical nature, Venezuela, from the time of the Geneva Agreement in 1966, has adamantly rejected the idea of a legal solution to the controversy and has consistently refused to present a legal case to support its position. That opportunity now exists within the ICJ, but a juridical solution certainly does not seem to be in the interest of the Venezuelan government.

June 25, 2018

 

(Dr. Odeen Ishmael, Ambassador Emeritus (retired), historian and author, served as Guyana's ambassador in the USA (1993-2003), Venezuela 2003-2011) and Kuwait and Qatar (2011-2014). He actively participated in meetings of UNASUR from 2003 to 2010 and has written extensively on South American integration issues.)
(The views expressed in this article are solely those of the writer and not necessarily those of the Government of Guyana.)

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