Deadline looms: Venezuela yet to submit counter-memorial in border controversy case
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– AG Nandlall informs Commonwealth Caribbean Bar Associations
By Feona Morrison
VENEZUELA has not yet filed its counter-memorial as the International Court of Justice (ICJ) gets ready to hear the merits of Guyana’s case, which seeks a final and binding ruling that the October 3, 1899 Arbitral Award settled the land boundary between the two South American neighbours.
Attorney General and Minister of Legal Affairs Anil Nandlall, SC, made this revelation on Saturday during his virtual speech at the Organization of the Commonwealth Caribbean Bar Associations (OCCBA) 2024 Award Ceremony.
He spoke on the topic: Border Disputes and Sovereign Rights: Issues Facing Guyana as well as the Caribbean Community (CARICOM).
The ICJ has set April 8, 2024, as the deadline for Venezuela’s counter-memorial to be filed and has reserved the subsequent procedure for further consideration through an order dated April 6, 2023. According to Nandlall, a date has been set aside for the oral arguments to resume, but this is contingent upon Venezuela submitting its memorial.
Therefore, Nandlall indicated that he is unsure and that anyone can speculate whether Venezuela would take part in the proceedings at the “last moment”.
He stated, “Venezuela, though, they have repeatedly refused to engage, at every occasion, at the last moment, they actually engage,” pointing to Venezuela’s refusal to participate and eventual participation at the last minute.
He said the country initially informed the court that it would not be participating in the jurisdictional issue and then it submitted its arguments requesting a postponement of the hearing. He added that Venezuela then refashioned the same arguments, repackaged them differently, and filed a second objection to the court proceedings with the substantive hearing after that decision went against them. The World Court also dismissed that objection.
Nandlall stated Venezuela had initially declined to participate in the hearing when Guyana moved to the ICJ last year, asking for provisional measures to ensure that the Spanish-speaking nation does not “take any actions that are intended to prepare or allow for the exercise of sovereignty or de facto control over any territory that was awarded to British Guiana in the 1899 Award.”
The Attorney General said: “They [Venezuela] said that they will not participate but they went there with a large contingent of 28 lawyers. They had more lawyers than us [Guyana], including their Vice President, Madame [Delcy] Rodríguez and she addressed the court.”
Guyana had asked the World Court for provisional measures after Venezuela’s National Assembly, on September 21, 2023, passed a resolution for a referendum on the territory awarded to British Guiana in 1899, now part of Guyana since its independence in 1966.
Five questions were released by Venezuela’s National Electoral Council for the referendum that was held on December 3, 2023. Particularly troubling are questions three and five, which seek to validate Venezuela’s illegitimate claim to Guyana’s oil-rich Essequibo region.
Question five asks for permission from Venezuelans to establish a new state in Guyana’s Essequibo region, incorporate it into Venezuela, and grant its residents citizenship.
Question three asks for approval for Venezuela’s reluctance to acknowledge the ICJ’s jurisdiction over the matter. Approximately 125,000 of Guyana’s 800,000 residents live in the Essequibo area, which makes up nearly two thirds of Guyana’s landmass.
The 1899 Arbitral Award, a significant ruling that established the border between what was then British Guiana (now Guyana) and Venezuela, is where the controversy first began.
Venezuela had agreed to and signed the Arbitral Award.
On February 14, 1962, however, Venezuela notified the United Nations (UN) Secretary-General that it believed there was a “dispute” pertaining to “the demarcation of the frontier between Venezuela and British Guiana” between the UK and itself. Venezuela maintains that that the border with Guyana, a former colony of the UK, was fraudulently imposed by the British.
On November 13, 1962, the UK Government said that it did not agree that there could be any dispute over the question settled by the Award and that the western boundary of British Guiana with Venezuela had been finally settled by the Award.
On February 17, 1966, the representatives of the UK, Venezuela, and British Guiana signed the Geneva Agreement following several unsuccessful attempts to resolve the issue.
Shortly before gaining independence, on February 17, 1966, Guyana signed the Geneva Agreement. In the decades that followed, attempts were made to settle the controversy using the various methods specified in the Geneva Agreement.
Ultimately, in January 2018, Guyana handed the case over to the UN Secretary-General, who would select a dispute resolution process in accordance with Article 33 of the UN Charter, since no agreement could be achieved in accordance with the process specified in the Agreement.
He chose the ICJ—the UN’s principal judicial organ—to bring resolution to the controversy.
As a result, in 2018, Guyana asked the ICJ to “confirm the legal validity and binding effect of the Award regarding the Boundary between the Colony of British Guiana and the United States of Venezuela, of October 3, 1899,” in an application to institute proceedings against Venezuela.
However, a final decision in this significant case might take several years.
Further on in his presentation, Nandlall informed a group of attorneys that the World Court’s decisions are enforceable by the UN Security Council, expressing the government’s confidence that the court will find in Guyana’s favour and pointing out that Venezuela is bound by the court’s ruling.
He explained that the ICJ orders include an enforcement component, adding that regarding international law and rulings from any of the UN bodies, including the ICJ, the United Nations Security Council serves as the organisation’s enforcement arm.
The UN has been able to enforce its directives through the Security Council, he added, and he named numerous examples of this.
According to Nandlall, the United Nations Security Council exercises this authority through resolutions that summon the military might of the UN, as well as the armed forces of each of its members. However, that is extreme, he noted.
The Attorney General explained that the UN Security Council has a number of tools with which to force compliance, such as requiring all members to apply trade sanctions and travel restrictions.
The international community has backed Guyana in its efforts to draw attention to Venezuela’s activities, which are wholly outside the bounds of the rule of law and pose a threat to the security and peace of the Latin American and Caribbean Region.
Through the recently signed Argyle Declaration, Guyana, and Venezuela, among other things, reiterated their commitment to the Region remaining a Zone of Peace and agreed to continue dialogue on any other pending matters of mutual importance to the two countries.
Additionally, both countries decided they will not, directly or indirectly, threaten or use force against one another in any circumstances, including those consequential to any existing controversies between the two states.
