INTERNATIONAL COURT OF JUSTICE
CASE CONCERNING
ARBITRAL AWARD OF 3 OCTOBER 1899
CO-OPERATIVE REPUBLIC OF GUYANA
v.
BOLIVARIAN REPUBLIC OF VENEZUELA
MEMORIAL OF GUYANA
VOLUME I
19 NOVEMBER 2018
Table of Contents
Chapter I Introduction .................................................................................... 1
I. The History of the Controversy ....................................................... 6
II. Structure of the Memorial ............................................................ 15
Chapter II The Facts Related to the Court’s Jurisdiction ............................. 19
I. Negotiation and Conclusion of the Geneva Agreement:
1962-66 ....................................................................................... 21
A. 1963 Joint Communiqué and Tripartite
Examination of Venezuela’s Contention:
1963-65 ..................................................................... 24
B. The London Meeting: 9-10 December 1965 ............ 26
C. The Geneva Meeting: 16-17 February 1966 ............ 29
1. Preamble ....................................................... 31
2. Article I (Mixed Commission) ..................... 32
3. Article IV ...................................................... 33
D. Conclusion of the Geneva Agreement: 1966 ............ 39
II. Implementation of the Geneva Agreement: 1966 – 2018 ............ 44
A. Articles I - III of the Geneva Agreement: the
Mixed Commission: 1966-70 ................................... 44
i
B. Suspension of Article IV of the Geneva
Agreement pursuant to the Protocol of Port of
Spain: 1970-82 .......................................................... 47
C. The Parties’ Failure To Reach Agreement,
Under Article IV(1) of the Geneva Agreement,
“on the Means of Peaceful Settlement Provided
in Article 33 of the Charter”: 1982 ........................... 51
D. Referral of the Choice of Means of Settlement
to the U.N. Secretary-General, in Conformity
with Article IV(2) of the Geneva Agreement:
1983 .......................................................................... 54
E. The Good Offices Process: 1990-2014 ..................... 56
F. Violations of Guyana’s Sovereignty and
Territorial Integrity ................................................... 59
G. Exhaustion of the Good Offices Process and
Decision of the U.N. Secretary-General that the
International Court of Justice Shall Be the
Means of Settlement: 2014-18 .................................. 63
1. The Lack of Progress Toward
Settlement in the Good Offices Process:
2014-15 ......................................................... 63
2. U.N. Secretary-General’s Consultations
with the Parties: 2015-16 .............................. 66
ii
3. U.N. Secretary-General’s Decision to
Continue the Good Offices Process for
One Final Year: 15 December 2016 ............. 68
4. U.N. Secretary General’s Appointment
of Mr. Dag Nylander as Personal
Representative for the Final Year of the
Good Offices Process: 2017 ......................... 73
5. No Significant Progress Made in 2017 ......... 75
6. Decision of U.N. Secretary-General
Antonio Guterres to Choose the Court as
the Next Means of Settlement: 30
January 2018 ................................................. 76
Chapter III The Court Has Jurisdiction Over Guyana’s Claims ................... 81
I. Introduction ................................................................................... 81
II. Object and Purpose of the Geneva Agreement ............................ 86
III. Interpretation of Article IV(2) of the Geneva Agreement .......... 91
A. The Settlement Process in Article IV(2) .................. 94
B. The Renvoi to Article 33 of the U.N. Charter
and Its Effect ........................................................... 102
C. The Referral of the Decision on Means of
Settlement to the U.N. Secretary-General .............. 109
iii
IV. The Court Has Jurisdiction over This Dispute .......................... 120
A. Venezuela’s Consent to Jurisdiction ...................... 121
B. The Distinction between Jurisdiction and Seisin .... 130
C. The Scope of the Court’s Jurisdiction Ratione
Materiae ................................................................. 133
Submissions ................................................................................................ 143
iv
CHAPTER I
INTRODUCTION
1.1 The Cooperative Republic of Guyana (“Guyana”) instituted these
proceedings against the Bolivarian Republic of Venezuela (“Venezuela”) by
filing an Application to the Court on 29 March 2018. In its Application,
Guyana asks the Court to resolve the controversy that has arisen as a result of
Venezuela’s contention, formally asserted for the first time at the United
Nations in 1962, that the 1899 Arbitral Award Regarding the Boundary
between the Colony of British Guiana and the United States of Venezuela
(the “1899 Award” or the “Award) is “null and void”. In regard to
jurisdiction, Guyana invoked the 30 January 2018 decision of the United
Nations Secretary-General, António Guterres, to choose the Court as the
means of settlement for the controversy, pursuant to the authority conferred
upon him by the agreement of the parties reflected in Article IV, paragraph 2,
of the “Agreement to Resolve the Controversy Between Venezuela and the
United Kingdom of Great Britain and Northern Ireland Over the Frontier
Between Venezuela and British Guiana,” signed at Geneva on 17 February
1966 (“Geneva Agreement”).
1
1.2 By an Order dated 19 June 2018, following a meeting with the parties
at which Venezuela indicated that it would not participate in the proceedings,
the Court decided that the question of its jurisdiction would be determined
1
Agreement to Resolve the Controversy Between Venezuela and the United Kingdom of
Great Britain and Northern Ireland Over the Frontier Between Venezuela and British Guiana,
561 U.N.T.S. 323 (17 Feb. 1966) (“Geneva Agreement”). AG, Annex 4.
1
separately prior to any proceedings on the merits. Accordingly, the Court
fixed the time limit for the filing of the Memorial on Jurisdiction by Guyana
as 19 November 2018 and the time limit for the filing of the CounterMemorial on
Jurisdiction
by
Venezuela
as
18
April 2019.
This
Memorial
is
submitted
pursuant
to
that
Order.
1.3 Guyana is a small developing country in the northeast mainland of
South America. It was first colonized by the Netherlands in the seventeenth
century. In 1814, the Netherlands ceded title to the territory (which then
comprised three colonies) to the United Kingdom. In 1831, the colonies were
consolidated in a single colony, British Guiana, which was thereafter
administered as a British colony for the next 135 years. Guyana achieved its
independence on 26 May 1966. It is now the third smallest nation by
geographic area, and the second smallest by population, on the South
American continent. By contrast, its neighbour Venezuela is more than four
times larger by territory and has a population more than forty times greater.
In addition to its superior size and population, Venezuela is endowed with
abundant natural resources (which are reported to include the largest proven
oil reserves of any country globally).
2
1.4 Guyana’s Application arises from Venezuela’s repudiation of a
binding arbitral award, rendered by an international arbitral tribunal of
eminent jurists exercising jurisdiction pursuant to the 1897 “Treaty Between
2
See World Atlas, “The World’s Largest Oil Reserves by County” (23 Oct. 2018) available
at https://www.worldatlas.com/articles/the-world-s-largest-oil-reserves-by… (last
accessed 3 Nov. 2018). MG, Vol. IV, Annex 134.
2
Great Britain and the United States of Venezuela Respecting the Settlement
of the Boundary between the Colony of British Guiana and the United States
of Venezuela” (“Washington Treaty”).
The Washington Treaty, the validity
of which has never been disputed, was concluded for the explicit purpose of
achieving a “full, perfect, and final settlement” of the border between
Venezuela and what was then British Guiana.
3
4
1.5 Venezuela fully embraced the validity and effectiveness of the 1899
Award for more than half a century – including by embarking upon a joint
demarcation of the boundary determined by the Tribunal and repeatedly
insisting on strict adherence to the terms of the 1899 Award.
However, in
1962 Venezuela seized upon the advent of Guyana’s independence to concoct
an unfounded claim that the 1899 Award was null and void. On the footing of
that abrupt reversal of its longstanding recognition of the validity and binding
character of the 1899 Award and the resulting international boundary,
Venezuela laid claim to more than two thirds of British Guiana’s territory.
5
1.6 Shortly before Guyana attained independence in 1966, the United
Kingdom, Venezuela and the Government of British Guiana concluded the
Geneva Agreement. It was intended to establish a binding and effective
mechanism for assuring that there would be a peaceful and permanent
3
Treaty Between Great Britain and the United States of Venezuela Respecting the
Settlement of the Boundary Between the Colony of British Guiana and the United States of
Venezuela, 5 U.K.T.S. 67 (2 Feb. 1897). AG, Annex 1.
4
Ibid., p. 76 (emphasis added).
5
See infra paras. 1.22-1.28.
3
resolution of the controversy arising from Venezuela’s sudden and
unexpected repudiation of the 1899 Award four years earlier.
1.7 Today, more than half a century later, that controversy remains
unresolved. The 52 years following the conclusion of the Geneva Agreement
have seen the parties unsuccessfully attempt to resolve the controversy
through a four-year Mixed Commission (1966-70), a twelve-year moratorium
(1970-82), a seven-year process of consultations on a means of settlement
(1983-90), and a twenty-seven-year Good Offices Process under the authority
of the United Nations Secretary-General (1990-2017).
1.8 Finally, on 30 January 2018 Secretary-General António Guterres
decided, pursuant to the authority vested in him by the parties in Article
IV(2) of the Geneva Agreement, that the Good Offices Process had failed to
achieve “significant progress … toward arriving at a full agreement for the
solution of the controversy”, and that, consequently, he had “chosen the
International Court of Justice as the means that is now to be used for its
solution.”
6
Guyana’s Application was made pursuant to the binding decision
of the Secretary-General.
1.9 Throughout its existence as an independent State, Guyana has lived in
the shadow of a claim to more than two thirds of its territory by its
significantly larger, richer and more powerful neighbour. In recent years, the
tenor of Venezuela’s claims has become increasingly bellicose, imperilling
6
Letter from Secretary-General of the United Nations to the President of the Cooperative
Republic of Guyana (30 Jan. 2018), pp. 1-2. AG, Annex 7.
4
regional peace and security and blighting Guyana’s development.
Venezuela’s territorial aspirations have also led to incursions into and
occupation of Guyana’s sovereign territory. Against this backdrop, there is an
urgent need for an authoritative affirmation of the parties’ international rights
and obligations arising from the 1899 Award.
1.10 Since it emerged as a sovereign State after many decades of colonial
rule, Guyana has consistently regarded the international rule of law as the
bedrock of its relations with its neighbours. In accordance with its enduring
respect for international law, Guyana therefore seeks an impartial and
binding determination by the Court of the legal issues raised by Venezuela’s
repudiation of the 1899 Award, and an adjudication of its claims resulting
from Venezuela’s violations of its territorial integrity.
1.11 Guyana has brought its Application with the firm conviction that
adherence to international agreements, respect for international judicial and
arbitral awards, and respect for the inviolability of established territorial
boundaries are crucial to maintaining amity between sovereign States.
1.12 Consistent with that conviction, Guyana’s Application is founded on
the mutual consent of the parties to the Court’s exercise of jurisdiction, as
enshrined in Article IV of the Geneva Agreement. It is made pursuant to a
carefully considered decision by the United Nations Secretary-General to
refer the controversy to the principal judicial organ of the United Nations. In
so deciding, the Secretary-General has acted in accordance with the express
terms of the procedures for the peaceful settlement of disputes agreed upon
by the parties in Article IV(2). The jurisdiction of the Court – and its
5
preeminent suitability as a means of resolving this longstanding controversy
– is clear and indisputable.
1.13 By denying the jurisdiction of the Court under the Geneva
Agreement, Venezuela seeks to disregard its obligations under that treaty in
order to repudiate its obligations arising from a binding arbitral award issued
under another treaty. Guyana is confident that the Court, as the guardian of
the international legal order, will not acquiesce in Venezuela’s attempt to
evade its international obligations in this way. As this Memorial will proceed
to explain, there is nothing in the text of the 1966 Geneva Agreement or in
the parties’ subsequent conduct that calls into question the SecretaryGeneral’s
authority
to
refer
the
controversy
to
the
Court,
or
the
Court’s
jurisdiction
to
determine
Guyana’s
Application.
Accordingly,
Guyana
requests
that
the
Court
accept
the
responsibility
that
has
been
solemnly
entrusted
to
it
by
the
parties
and
the
Secretary-General
under
the
binding
framework
of
the
Geneva
Agreement.
I. The History of the Controversy
1.14 The discovery of gold in the area of the Upper Cuyuni River in the
century led to diplomatic exchanges between the United Kingdom and
Venezuela concerning the delimitation of a boundary line in the area. The
United Kingdom and Venezuela both claimed the entire territory between the
mouth of the Essequibo River in the east, and the Orinoco River in the west.
By the latter part of the century, the conflicting territorial claims and
differences over an agreed framework to determine the boundary raised the
risk of armed conflict.
6
1.15 The United States encouraged both parties to resolve the conflict
peacefully, and facilitated their agreement to submit their competing
territorial claims to binding arbitration or judicial settlement. That agreement
was enshrined in the Washington Treaty, signed by the United Kingdom and
Venezuela. On 2 February 1897 the United Kingdom and Venezuela signed
the Washington Treaty.
As the Preamble explained, the object and purpose
of the Washington Treaty was:
7
“… to provide for an amicable settlement of the question
which has arisen between their respective Governments
concerning the boundary between the Colony of British
Guiana and the United States of Venezuela, hav[ing] resolved
to submit to arbitration the question involved….”
1.16 To this end, Article I provided that:
“An Arbitral Tribunal shall be immediately appointed to
determine the boundary-line between the Colony of British
Guiana and the United States of Venezuela.”
1.17 Article II established the composition of the Arbitral Tribunal, which
was made up of five eminent jurists. They included two senior British judges
nominated by the Judicial Committee of Her Majesty’s Privy Council, and
two Justices of the United States Supreme Court (one nominated by the
President of Venezuela and the other nominated by the Justices of the US
Supreme Court). The fifth arbitrator and President of the Arbitral Tribunal,
7
Treaty Between Great Britain and the United States of Venezuela Respecting the
Settlement of the Boundary Between the Colony of British Guiana and the United States of
Venezuela, 5 U.K.T.S. 67 (2 Feb. 1897). AG, Annex 1. The instruments of ratification were
subsequently exchanged on 14 June 1897.
7
the distinguished professor of international law Fyodor de Martens, was
chosen by the four other arbitrators.
1.18 Article III of the Washington Treaty defined the jurisdiction of the
Arbitral Tribunal in the following terms:
“The Tribunal shall investigate and ascertain the extent of the
territories belonging to, or that might lawfully be claimed by,
the United Netherlands or by the Kingdom of Spain
respectively at the time of the acquisition by Great Britain of
the Colony of British Guiana, and shall determine the
boundary-line between the Colony of British Guiana and the
United States of Venezuela.”
1.19 Article XIII made express provision for the binding force of the
Award to be rendered by the Arbitral Tribunal:
“The High Contracting Parties engage to consider the result of
the proceeds of the Tribunal of Arbitration as a full, perfect,
and final settlement of all the questions referred to the
Arbitrators.”
1.20 Following the establishment of the Arbitral Tribunal, the United
Kingdom and Venezuela each submitted extensive written pleadings
(including a detailed case and a detailed counter-case) together with several
thousand pages of exhibits. Thereafter, between 15 June and 27 September
1899, the Arbitral Tribunal held a total of 54 oral hearings in Paris, at which
the parties’ respective factual and legal submissions were exhaustively
articulated and explored.
8
Following a period of deliberations, the Arbitral
8
A comprehensive record of the proceedings was published by Her Majesty’s Stationery
Office in 1899.
8
Tribunal delivered a unanimous Award on 3 October 1899. In light of the
publication of voluminous records of the arguments of the parties and the
copious evidence presented to the Arbitral Tribunal, and in line with practice
at the time,
9
the Award itself was succinct.
1.21 The Award gave Venezuela the entire mouth of the Orinoco River,
and the land on both sides. It gave the United Kingdom the land to the east
extending to the Essequibo River – territory then considered less valuable
than that awarded to Venezuela.
1.22 The outcome was acclaimed as a triumph by Venezuela. Typical was
the comment of the Venezuelan Minister in London (the brother of the
President) who had followed closely the proceedings in Paris and reported to
his Government on 7 October 1899:
“Greatly indeed did justice shine forth when in the
determination of the frontier we were given the exclusive
dominion over the Orinoco which was the principal aim which
we sought to achieve through arbitration.”
10
9
For example, see Award of the President of the United States under the Protocol concluded
the eighteenth day of August, in the year one thousand eight hundred and ninety-four,
between the Government of the Kingdom of Italy and the Government of the Republic of
Colombia, UNRIAA, Vol. XI, p. 394 (2 Mar. 1897). MG, Vol. II, Annex 2; Award by His
Majesty King Edward VII in the Argentine-Chile Boundary Case, UNRIAA, Vol. IX, p. 37
(20 Nov. 1902). MG, Vol. II, Annex 5; His Majesty Victor Emmanuel’s slightly longer twoand-a-quarter
page,
Award
of
His
Majesty
The
King
of
Italy
with
Regard
to
the
Boundary
Between
the
Colony
of
British
Guiana
and
the
United
States
of
Brazil,
UNRIAA,
Vol.
XI,
p.
21
(6
June
1904).
MG,
Vol.
II,
Annex
6.
10
Letter from the Venezuelan Ambassador to the United Kingdom to the Venezuelan
Minister of Foreign Affairs (7 Oct. 1899). MG, Vol. II, Annex 3.
9
1.23 The United States also hailed the Award for fulfilling the promise of
the Washington Treaty to achieve a full, perfect and final determination of
the disputed border. In his State of the Union Message to the United States
Congress in December 1899, President William McKinley celebrated the
Award and its acceptance by both parties. He observed that the Tribunal’s
decision had “end[ed] a controversy which had existed for the greater part of
the century” and “while not meeting the extreme contention of either party …
appears to be equally satisfactory to both parties.”
11
1.24 The following year, the United Kingdom and Venezuela embarked
upon an extensive joint programme to achieve the physical demarcation of
the border conclusively established by the Arbitral Award. A joint UKVenezuelan
Commission
(the
“Joint
Commission”)
was
established
to
carry
out
that
task.
Both
States
participated
fully
and
without
any
reservation.
1.25 By 1905 the demarcation was completed. The Joint Commission
produced an Official Boundary Map
and issued a Joint Declaration which
recorded in relevant part:
12
“… That they regard this Agreement as having a perfectly
official character with respect to the acts and rights of both
Governments in the territory demarcated; that they accept the
11
Government of the United States, State of the Union Message to the United States
Congress of President William McKinley (5 Dec. 1899) (emphasis added). MG, Vol. II,
Annex 4.
12
Agreement Between the British and Venezuelan Boundary Commissioners with Regard to
the Map of the Boundary (10 Jan. 1905) reprinted in Government of the Republic of
Venezuela, Ministry of External Affairs, Public Treaties and International Agreements of
Venezuela, Vol. 3 (1920-25) (1927). AG, Annex 3.
10
points mentioned below as correct, the result of the mean of
the observations and calculations made by both
Commissioners together or separately, as follows….
That the two maps mentioned in this Agreement, signed by
both Commissioners, are exactly the same … containing all
the enumerated details related to the demarcation, with the
clear specification of the Boundary line according with the
Arbitral Award of Paris.”
13
1.26 In the Joint Declaration, the Commissioners recommended a
modification of the section of the direct line set in the award (from the source
of the Wenamu River to Mount Roraima) to a more practical line that would
follow the watershed of the rivers rather than cut them. Venezuela, however,
refused to agree, insisting on strict adherence to the terms of the 1899
Award.
14
1.27 The official acts of the Joint Commission were subsequently
published in the official series as “The Acts of the Mixed Boundary
Commission that constitute an international agreement” (“the 1905
Agreement”) and filed under “Public Treaties and international agreements”
of Venezuela.
15
Thereafter, both States worked together to maintain the
border established by the Award.
13
Ibid.
14
Letter from the Minister of Foreign Affairs of the Republic of Venezuela, to the U.K.
Ambassador to Venezuela, No. CO 111/564 (12 Mar. 1908). MG, Vol. II, Annex 7.
15
The 1905 Agreement was recorded in the official record of the Ministry of Foreign Affairs
of Venezuela under “treaties and international agreements in force”: Republic of Venezuela,
Ministry of Foreign Affairs, Public Treaties and International Agreements, Vol. III (19201925)
(1927),
p.
604.
MG,
Vol.
II,
Annex
8.
11
1.28 In the 1930s and 1940s, Venezuela again affirmed the conclusive
character of the border established by the Award and demarcated by the 1905
Agreement. In 1932, it insisted that any tri-point identifying the common
terminal point of the Venezuela, Brazil and British Guiana boundaries must
be in line with the strict legal obligations that arose from the Award.
In
1944, Venezuela’s Minister of Foreign Affairs, Esteban Gil Borges, declared
that the location of the boundary between Venezuela and British Guiana was
“chose jugée” (i.e. res judicata) and that there was no reason to fear that
Venezuela would ever seek to revise it.
16
Around the same time, the
Venezuelan Ambassador to the United States explained how in the decades
since the Award was delivered, Venezuela had “accepted the verdict of the
arbitration for which we have so persistently asked”.
17
18
1.29 It was not until February 1962 – some 62 years after the Award was
delivered but just three months after the Premier of British Guiana, Cheddi
Jagan, pressed for a prompt grant of independence – that Venezuela first
formally contended that the 1899 Award suffered from legal defects and was
null and void. Contemporaneous diplomatic correspondence from the United
States Ambassador to Venezuela explained the true reason for Venezuela’s
16
The Venezuelan Government subsequently published the formal Exchange of Notes
recording the demarcation of the tripoint in its official treaty series. Republic of Venezuela,
Ministry of Foreign Affairs, Public Treaties and International Agreements, Vol. V (19331936)
(1945),
p.
548.
MG,
Vol.
II,
Annex
12.
17
Government of United Kingdom, Foreign Office, Minute by C.N. Brading, No. FO
371/38814 (3 Oct. 1944). MG, Vol. II, Annex 10; Letter from the Ambassador of the United
Kingdom to Venezuela, to J.V.T.W.T. Perowne, U.K. Foreign Office (3 Nov. 1944), pp. 1-2.
MG, Vol. II, Annex 11.
18
Speech by the Venezuelan Ambassador to the United States to the Pan-American Society
of the United States (1944), p. 1. MG, Vol. II, Annex 9.
12
abrupt reversal of position. In light of its concerns about the possible rise of a
politically unfriendly, leftist government in a newly independent Guyana,
Venezuela wished to establish a “cordon sanitaire” between the two
countries by procuring a situation whereby a major “slice of British Guiana
would pass to Venezuela”.
19
1.30 In pursuit of that objective, Venezuela set about seeking to impugn
the validity of the Award that it had hitherto respected, affirmed and upheld
for more than six decades. To this end, Venezuela invoked a secret
memorandum, purportedly authored in 1944 by Severo Mallet-Provost, a
junior member of Venezuela’s legal team at the 1899 arbitration, with alleged
instructions that it not be published until after his death (which occurred in
1949). The memorandum was said to be drafted more than 45 years after the
events it allegedly described, and in the same year that Venezuela presented
Mr. Mallet-Provost with the Order of the Liberator “in testimony of the high
estimation in which the Venezuelan people hold and will always hold him.”
20
1.31 The memorandum claimed that the Award was the product of a deal
between the two British arbitrators and the President of the Tribunal. It did
not claim the existence of – still less actually identify – any evidence to
support such an assertion. Tellingly, Venezuela placed no reliance on the
19
Foreign Service Despatch from C. Allan Stewart, U.S. Ambassador to Venezuela, to the
U.S. Department of State (15 May 1962), pp. 1-2 (emphasis added). MG, Vol. II, Annex 21.
20
Speech by the Venezuelan Ambassador to the United States to the Pan-American Society
of the United States (1944), p. 2. MG, Vol. II, Annex 9.
13
document until the advent of Guyana’s independence, thirteen years after its
alleged existence was first reported.
1.32 Venezuela’s sudden and unjustifiable rejection of the Award (despite
both parties’ previous conduct, which was premised upon the Award’s
validity) threatened to interfere with Guyana’s emergence as an independent
State. Urgent talks were convened between Venezuela and the United
Kingdom, with the participation of British Guiana. Venezuela stubbornly
persisted in its new claim that the Award was null and void, while the United
Kingdom and British Guiana maintained it was valid. Unable to reach
agreement on this underlying issue, the parties focused on agreeing to a
means of settlement that would assure a definitive resolution of the
controversy.
1.33 This ultimately led to the conclusion of the Geneva Agreement, which
established a legally binding mechanism for assuring a peaceful resolution of
the controversy. The process, in its final stage, authorised the SecretaryGeneral
of
the
United
Nations
to
decide
which
of
“the
means
stipulated
in
Article 33
of
the
Charter
of
the
United
Nations”
shall
be
used
to
resolve
the
controversy.
1.34 Notwithstanding the existence of the Geneva Agreement and its
commitments thereunder, Venezuela has committed numerous violations of
Guyana’s sovereignty on the footing of its unfounded repudiation of the
boundary established by the 1899 Award and delimited by the 1905
Agreement. Those violations are referred to in Chapter 2 and include (but are
not limited to) the seizure and continued occupation of the eastern half of
14
Ankoko Island in the Cuyuni River, from 1966 to the present; numerous
military incursions into Guyana’s sovereign land, maritime and air space; the
issuing of executive decrees proclaiming sovereignty over large swathes of
Guyana’s territory and maritime areas; and repeatedly seeking to discourage
or obstruct Guyanese and foreign investors from undertaking investment
projects in Guyana’s territory and maritime space.
1.35 Against the backdrop of Venezuela’s incessant and increasingly
aggressive claims that the 1899 Award is void and that Venezuela is entitled
to more than two thirds of Guyana’s territory – and following the binding
decision of the Secretary-General in accordance with Article IV(2) of the
Geneva Agreement on 30 January 2018 – Guyana looks to the Court as the
avenue for defending the validity and binding character of the 1899 Award,
including its territorial integrity and sovereignty within the borders
established thereby. In this regard, Guyana is confident that the Court will
give effect to the consent of the parties, as expressed in Article IV(2), and to
carry out its primary function of contributing to the maintenance of
international peace and security through the fair and impartial application of
international law.
II. Structure of the Memorial
1.36 Guyana’s Memorial consists of four volumes. Volume I contains the
main text of the Memorial. Volumes II-IV contain supporting documents.
1.37 Volume I consists of three chapters followed by Guyana’s
Submissions.
15
1.38 After this Introduction, Chapter 2 addresses the facts relevant to the
Court’s jurisdiction, specifically the facts concerning the negotiation,
conclusion and implementation of the Geneva Agreement. It begins in
Section I by describing the events between 1962 and 1966 that led to the
conclusion of the Geneva Agreement on 17 February 1966, approximately
three months before Guyana became independent. Section II then sets out
how the Geneva Agreement was implemented in the 52-year period between
its conclusion in 1966 and the Secretary-General’s decision on 30 January
2018 that the Court shall be the means of settlement of the controversy.
1.39 After that detailed exposition of the relevant facts, Chapter 3
addresses the legal basis of the Court’s jurisdiction in respect of Guyana’s
Application. After introducing the basis for the Court’s jurisdiction, Section
II explains the object and purpose of the Geneva Agreement, namely to
establish a binding mechanism for ensuring a full, final and definitive
resolution of the controversy resulting from Venezuela’s challenge to the
validity of the 1899 Award. The chapter then proceeds in Section III to
address the interpretation of Article IV(2) of the Geneva Agreement, which
established a three-stage settlement process that ultimately empowered the
Secretary-General to make a binding decision that the Court shall be the next
means of settlement of the controversy. Finally, Section IV addresses the
basis of the Court’s jurisdiction over Guyana’s Application. It explains how,
by virtue of the clear terms of Article IV(2) of the Geneva Agreement and the
Secretary-General’s decision dated 30 January 2018, the parties have
unambiguously consented to the jurisdiction of the Court. It addresses
Venezuela’s erroneous conflation of the distinct concepts of jurisdiction and
16
seisin, before concluding by addressing the scope of the Court’s jurisdiction
ratione materiae.
1.40 The Memorial concludes with Guyana’s Submissions.
17
18
CHAPTER II
THE FACTS RELATED TO THE COURT’S JURISDICTION
2.1 This Chapter sets out the facts pertaining to the negotiation,
conclusion and implementation of the 1966 Geneva Agreement.
2.2 The Agreement came into being as a result of Venezuela’s contention,
in 1962, that the Arbitral Award of 3 October 1899, which fixed the
boundary between Venezuela and British Guiana, was null and void. As
discussed in Section I below, following Venezuela’s contention, in February
1966, in particular, between 1962 and 1965, there were various exchanges
and meetings between the parties to establish a procedure for resolving the
issues raised by Venezuela’s new position. The procedure was ultimately
agreed, at Geneva. There, the parties agreed upon a three-stage settlement
process to ensure the final settlement of the controversy if they failed to
arrive at a full agreement through bilateral means.
•
First, Article I of the Geneva Agreement established a Mixed
Commission during a four-year period between 1966-70 with
the task of seeking satisfactory solutions for the practical
settlement of the controversy.
•
Second, Article IV(1) provided that if the Mixed Commission
failed to arrive at a full agreement, the parties shall choose one
of the means of peaceful settlement under Article 33 of the
U.N. Charter.
19
• Third, Article IV(2) provided that if the parties failed to agree,
the decision as to the means of settlement shall be referred to
an international organ upon which they agreed, or failing
agreement, to the U.N. Secretary-General, whose decision
shall be binding upon them.
In exchanges both before and after the conclusion of the Geneva Agreement,
the parties confirmed their understanding that, under Article IV(2), the means
of settlement chosen by the Secretary-General included judicial settlement by
the Court.
2.3 As discussed in Section II below, the parties implemented the
settlement procedures under the Geneva Agreement over a fifty-one-year
period between 1966 and 2017. First, between 1966 and 1970, the Mixed
Commission established under Article I attempted, but failed, to arrive at a
satisfactory solution to the controversy. Second, following a twelve-year
suspension of the Article IV(1) procedure, from 1970 to 1982,
the parties
negotiated but failed to agree on one of the means of settlement under Article
33 of the U.N. Charter. Third, in 1983, failing agreement on an international
organ to choose the means of settlement, the parties referred the decision to
the U.N. Secretary-General, pursuant to Article IV(2). Following
consultations with the parties, in 1990 Secretary-General Pérez de Cuellar
chose a Good Offices Process as the means of settlement. In 2016, twentysix
years
after
that
Process
was
initiated,
and
in
the
absence
of
any
progress,
Secretary-General
Ban
Ki-moon
decided
that
unless
there
was
significant
21
21
This was pursuant to the Protocol of Port of Spain, see infra Section II(B).
20
progress on a full agreement to the controversy by the end of 2017, the
Secretary-General would choose the International Court of Justice as the next
means of settlement. In view of the continued failure of the Good Offices
Process to make any progress, in January 2018 Secretary-General António
Guterres exercised his authority under Article IV(2) and decided that the
Court shall be the next means of settlement.
I. Negotiation and Conclusion of the Geneva Agreement: 1962-66
2.4 The Geneva Agreement emerged in the context of the debate at the
United Nations General Assembly on the decolonization process in 1961-62.
On 18 December 1961, the Premier of British Guiana, Dr. Cheddi Jagan,
addressed the U.N. General Assembly Special Political and Decolonization
(Fourth) Committee, calling for the prompt independence of the colony.
By
16 January 1962, the Permanent Representative of the United Kingdom had
informed the U.N. Secretary-General of the United Kingdom’s willingness
“to discuss the date and the arrangements to be made for the achievement of
independence by British Guiana.”
22
23
22
U.N. General Assembly, Fourth Committee, 16th Session, 1252nd Meeting, Agenda item
39: Information from Non-Self-Governing Territories transmitted under Article 73 of the
Charter, U.N. Doc A/C.4/SR.1252 (18 Dec. 1961), p. 611. MG, Vol. II, Annex 14.
23
Letter from the Permanent Representative of the United Kingdom to the United Nations to
the Secretary-General of the United Nations (15 Jan. 1962), reprinted in U.N. General
Assembly, Fourth Committee, 16th Session, Information from Non-Self-Governing
Territories transmitted under Article 73 of the Charter, U.N. Doc A/C.4/520 (16 Jan. 1962).
MG, Vol. II, Annex 15.
21
2.5 That same month, Venezuela asserted that the 1899 Award was
“inequitable and questionable from a moral point of view”, although it fell
short of raising legal concerns.
This position would soon be transformed
into a contention that the Award was, as a matter of international law, “null
and void”.
24
2.6 On 14 February 1962, Venezuela’s Permanent Representative, Carlos
Sosa Rodriguez, wrote to the U.N. Secretary-General. He asserted on behalf
of Venezuela that: “there is a dispute between my country and the United
Kingdom concerning the demarcation of the frontier between Venezuela and
British Guiana”.
25
He followed this with a statement in the Fourth Committee
on 22 February 1962.
26
In a reversal of the position it had adopted for more
than six decades, Venezuela now claimed that:
“The award was the result of a political transaction carried out
behind Venezuela’s back and sacrificing its legitimate rights.
The frontier was demarcated arbitrarily, and no account was
taken of the specific rules of the arbitral agreement or of the
relevant principles of international law.
24
U.S. Department of State, Memorandum of Conversation, No. 741D.00/1-1562 (15 Jan.
1962). MG, Vol. II, Annex 16.
25
Letter from the Permanent Representative of Venezuela to the Secretary-General of the
United Nations (14 Feb. 1962), reprinted in U.N. General Assembly, Fourth Committee,
16th Session, Information from Non-Self-Governing Territories transmitted under Article 73
of the Charter, U.N. Doc A/C.4/536 (15 Feb. 1962), para. 2. MG, Vol. II, Annex 17.
26
Statement made by the Representative of Venezuela at the 1302nd meeting of the Fourth
Committee on 22 February 1962, reprinted in U.N. General Assembly, Fourth Committee,
16th Session, Information from Non-Self-Governing Territories transmitted under Article 73
of the Charter, U.N. Doc A/C.4/540 (22 Feb. 1962), para. 49. MG, Vol. II, Annex 19.
22
Venezuela cannot recognize an award made in such
circumstances”.
2.7 Contemporaneous diplomatic dispatches indicate that Venezuela was
concerned that, because of the suspected political leanings of Premier Jagan,
an independent British Guiana would lead to a “Cuba on the South American
Continent.” The Venezuelan plan was to create a “cordon sanitaire” by
persuading the United Kingdom to cede part of British Guiana’s territory
prior to the colony’s independence.
27
28
2.8
In response to this novel claim, the United Kingdom asserted that
“there is no case to answer, because the matter was settled for all time over
sixty years ago by international arbitration”.
29
Venezuela, however,
continued to agitate for territorial cession, threatening British Guiana’s
independence. On 4 April 1962, Venezuela’s Chamber of Deputies
condemned “the territorial theft to which [they] were subjected”, and asserted
27
Letter from the Permanent Representative of Venezuela to the Secretary-General of the
United Nations (14 Feb. 1962), reprinted in U.N. General Assembly, Fourth Committee,
16th Session, Information from Non-Self-Governing Territories transmitted under Article 73
of the Charter, U.N. Doc A/C.4/536 (15 Feb. 1962), paras. 16-17. MG, Vol. II, Annex 17.
28
Foreign Service Despatch from C. Allan Stewart, U.S. Ambassador to Venezuela, to the
U.S. Department of State (15 May 1962), para. 2. MG, Vol. II, Annex 21 (“President
Betancourt [of Venezuela] professes to be greatly concerned about an independent British
Guiana with Cheddi Jagan as Prime Minister. He suspects that Jagan is already too
committed to communism and that his American wife exercises considerable influence over
him.... This ‘alarm’ may be slightly simulated since Betancourt’s solution of the border
dispute presupposes a hostile Jagan. His plan: Through a series of conferences with the
British before Guiana is awarded independence a cordon sanitaire would be set up between
the present boundary line and one mutually agreed upon by [Venezuela and Britain].
Sovereignty of this slice of British Guiana would pass to Venezuela....”) (emphasis in
original).
29
Letter from J. Cheetham, U.K. Foreign Office, to D. Busk, U.K. Ambassador to
Venezuela, No. AV 1081/38 (21 Feb. 1962), para. 4. MG, Vol. II, Annex 18.
23
“an unwaiverable right over the territory taken through the arbitration award
in 1899”.
30
In these circumstances, the parties commenced discussions on a
procedure to resolve the controversy arising from Venezuela’s contention of
nullity of the 1899 Award.
A. 1963 JOINT COMMUNIQUÉ AND TRIPARTITE EXAMINATION OF
VENEZUELA’S CONTENTION: 1963-65
2.9
In November 1962, during deliberations before the Fourth Committee
to the United Nations General Assembly, the United Kingdom Ambassador,
Sir Colin Crowe, proposed to resolve the controversy through an examination
of documentary material relating to the 1899 Award. He made clear,
however, that this was “in no sense an offer to engage in substantive talks
about [the] revision of the frontier. That we cannot do, for we consider that
there is no justification for it”.
31
The offer was intended only “to dispel any
doubts which the Venezuelan Government may still have about the validity
or propriety of the arbitral award”.
32
2.10 On 16 November 1962, the President of the Fourth Committee
declared that the three governments (i.e. Venezuela, the United Kingdom and
30
Republic of Venezuela, Chamber of Deputies, Agreement of 4 April 1962 (4 Apr. 1962).
MG, Vol. II, Annex 20.
31
Statement made by the Representative of the United Kingdom at the 349th meeting of the
Special Political Committee on 13 November 1962, reprinted in U.N. General Assembly,
Special Political Committee, 17th Session, Question of Boundaries between Venezuela and
the Territory of British Guiana, U.N. Doc A/SPC/72 (13 Nov. 1962), p. 17. MG, Vol. II,
Annex 24.
32
Ibid.
24
British Guiana) would examine the documentary materials relating to the
1899 Award (the “Tripartite Examination”).
The three parties each
appointed experts for this purpose. The United Kingdom’s expert, Sir
Geoffrey Meade, also acted on behalf of British Guiana, at its request.
33
The
Venezuelan experts examined the United Kingdom archives in London from
30 July to 11 September 1963.
34
2.11 On 5-7 November 1963, the Minister of Foreign Affairs of Venezuela
and the Foreign Secretary of the United Kingdom met to review progress in
the examination of the documentary material. A Joint Communiqué of 7
November 1963 noted that Venezuelan experts had examined documents in
London, and that Meade would similarly travel to Caracas to examine
materials in the Venezuelan archives.
35
2.12 In February 1964, following Meade’s trip to Caracas, the experts met
in London, where Meade stated that “the Venezuelan authorities have been
unable to supply a single shred of evidence” to support their contention of
nullity.
36
33
U.N. General Assembly, Special Political Committee, 17th Session, 350th Meeting,
Agenda item 88: Question of boundaries between Venezuela and the territory of British
Guiana, U.N. Doc A/SPC/SR.350 (16 Nov. 1962). MG, Vol. II, Annex 25.
34
United Kingdom, Department of External Affairs, Memorandum: Venezuelan Claim to
British Guiana Territory, No. CP(64)82 (25 Feb. 1964), para. 3. MG, Vol. II, Annex 26.
35
Ibid., p. 1.
36
Ibid., para. 9.
25
2.13 In February 1965, while the Tripartite Examination was still
underway, Venezuela issued a new official map that labelled the territory
west of the Essequibo River, comprising more than two-thirds of British
Guiana’s territory, as “Zona en Reclamacion”.
On 4 March 1965, the
United Kingdom responded that “Her Majesty’s Government has no doubts
over its sovereignty over this territory”.
37
38
2.14 The Tripartite Examination concluded on 3 August 1965, with the
official exchange of the experts’ reports at the Foreign Office in London.
The reports were diametrically opposed to one another. Venezuela’s experts
claimed that the 1899 Award was “void”. Meade and his colleagues
concluded that there was no evidence whatsoever to support such a
contention. In correspondence that followed, it was agreed that a further
meeting would be held at the ministerial level in December 1965.
B. THE LONDON MEETING: 9-10 DECEMBER 1965
2.15 Prior to that meeting, in November 1965, it was decided at the British
Guiana Constitutional Conference that British Guiana should proceed to
independence on 26 May 1966. The need to resolve the controversy arising
37
Republic of Venezuela, Official Map: Claim of Essequibo Territory (1965). MG, Vol. II,
Annex 27.
38
Statement by Dr. I. Iribarren Borges, Minister of Foreign Affairs of Venezuela, to the
National Congress of Venezuela (17 Mar. 1966), reprinted in Republic of Venezuela,
Ministry of Foreign Affairs, Claim of Guyana Esequiba: Documents 1962-1981 (1981)
(“Statement by Dr. Borges, Minister of Foreign Affairs of Venezuela (17 Mar. 1966)”), p. 5
(“El Gobierno de Su Majestad no duda de su soberanía sobre ese territorio…”). MG, Vol.
II, Annex 33.
26
from Venezuela’s position on the validity of the Arbitral Award thus became
more urgent. As an interim measure, it was decided that British troops should
remain in place for some time after independence to protect the new State’s
territorial integrity.
39
2.16 On 9-10 December 1965, the Ministers of Foreign Affairs of the
United Kingdom (Michael Stewart) and Venezuela (Dr. Ignacio Iribarren
Borges) and the new Prime Minister of British Guiana (Mr. L. Forbes
Burnham) met in London to discuss “an end to the controversy that threatens
to damage the traditionally cordial relations between Venezuela on the one
hand and the United Kingdom and British Guiana on the other.”
A Joint
Communiqué of 10 December 1965 recorded that “[i]deas and proposals for
a practical settlement of the controversy were exchanged”.
40
41
2.17 At the London meeting, the Venezuelan Minister of Foreign Affairs,
Dr. Iribarren, made three proposals for resolution of the controversy:
42
a. First, he proposed the return of “the territory which belonged to
Venezuela by right”. This was rejected by the United Kingdom
39
United Kingdom, Research Department, Venezuela-Guyana Frontier Dispute, Nos.
DS(L)692, RRN 040/360/1 (10 May 1976), para. 23. MG, Vol. II, Annex 48.
40
Government of the United Kingdom, Record of Discussions between the Foreign
Secretary, the Venezuelan Minister for Foreign Affairs and the Premier of British Guiana at
the Foreign Office on 9 December, 1965, No. AV 1081/326 (9 Dec. 1965), p. 7. MG, Vol. II,
Annex 28.
41
Ibid.
42
Ibid., pp. 3-4.
27
and British Guiana Ministers, who pointed out that any
consideration of the substantive question of the frontier was “out
of the question” and “wholly unacceptable”.
43
b. Second, he suggested joint administration of the Essequibo
territory for ten years. This too was rejected, as British Guiana
noted that it would involve a “surrender of sovereignty”.
44
c. Third, he proposed the establishment of a Mixed Commission to
resolve the controversy by formulating plans for joint
development, noting that: “If the commission could not reach
agreement, they were to refer within three months to one or more
mediators and if they failed to reach a satisfactory solution,
within a prescribed time limit, they were to have recourse to
international arbitration. The Treaty setting up the basis for this
arbitration would have to be concluded within 18 months from 1
January, 1966”.
45
2.18 The Mixed Commission proposal was rejected by the AttorneyGeneral
of
British
Guiana,
Mr.
Shridath
Ramphal,
because
it
would
“concern
itself
with
the
substantive
issues
which
had
been
specifically
excluded
from
the
scope
of
the
present
discussions
arising
from
the 1962
offer
to
examine
documents”.
46
43
Ibid.
44
Ibid.
45
Ibid.
46
Ibid., p. 5.
28
2.19 For his part, Dr. Iribarren asserted that any proposal “which did not
recognise that Venezuela extended to the River Essequibo would be
unacceptable”.
47
He revived his version of the Mixed Commission as one
“for finding solutions by a series of conciliatory stages, and if necessary by
recourse to arbitration by an impartial international body.”
He observed that
“Venezuela’s willingness to submit to an arbitration tribunal represented a
great concession on her part”.
48
He further emphasized that: “the United
Nations were not a court, and they had no power of decision. The dispute had
49
already gone beyond that stage”.
50
2.20 The participants agreed that discussions would be continued in
Geneva in February 1966.
51
C. THE GENEVA MEETING: 16-17 FEBRUARY 1966
2.21 The Geneva meeting was held over two days, with discussions on 16
and 17 February 1966. The parties signed the Agreement shortly before
midnight on 17 February.
2.22 The United Kingdom and British Guiana delegations were, as in
London, composed of high level officials, including the United Kingdom
47
Ibid., p. 6.
48
Ibid.
49
Ibid.
50
Ibid.
51
Ibid.
29
Foreign Secretary, Michael Stewart, and Premier L. Forbes Burnham of
British Guiana.
52
The Venezuelan delegates included the Minister of Foreign
Affairs, Dr. Iribarren, as well as “members of all parties represented in the
Venezuelan Congress.”
Mr. Stewart observed that “it became clear at an
early stage that the Foreign Minister had instructions to work for an
agreement of some kind.”
53
54
2.23 A detailed record of the negotiations is reflected in:
a. A note dated 25 February 1966 from the United Kingdom
Foreign Secretary, Michael Stewart, to Sir Anthony Lincoln, the
United Kingdom Ambassador in Venezuela.
55
b. A statement of 17 March 1966 from the Venezuelan Minister of
Foreign Affairs, Dr. Iribarren to the Venezuelan Congress, on the
occasion of presenting the bill ratifying the Geneva Agreement.
56
2.24 These records demonstrate the clear and unambiguous intention of the
parties to agree on a procedure for the full and final resolution of the
controversy. The relevant provisions of the final text of the agreement that
they reached include, in particular, the Preamble, Article I regarding the
52
Note Verbale from the Foreign Secretary of the United Kingdom to the U.K. Ambassador
to Venezuela, No. AV 1081/116 (25 Feb. 1966). MG, Vol. II, Annex 32.
53
Ibid., para. 2.
54
Ibid.
55
Ibid.
56
Statement by Dr. Borges, Minister of Foreign Affairs of Venezuela (17 Mar. 1966). MG,
Vol. II, Annex 33.
30
Mixed Commission, and Article IV regarding the procedures to be followed
for arriving at a final settlement.
1. Preamble
2.25 The preamble of the Geneva Agreement provides:
“The Government of the United Kingdom of Great Britain and
Northern Ireland, in consultation with the Government of
British Guiana, and the Government of Venezuela;
Taking into account the forthcoming independence of British
Guiana;
Recognising that closer cooperation between British Guiana
and Venezuela could bring benefit to both countries;
Convinced that any outstanding controversy between the
United Kingdom and British Guiana on the one hand and
Venezuela on the other would prejudice the furtherance of
such cooperation and should therefore be amicably resolved in
a manner acceptable to both parties;
In conformity with the agenda that was agreed for the
governmental conversations concerning the controversy
between Venezuela and the United Kingdom over the frontier
with British Guiana, in accordance with the joint communiqué
of 7 November, 1963, have reached the following agreement
to resolve the present controversy.”
2.26 It will be recalled that in the 1963 Joint Communiqué that is referred
to in the preamble’s final paragraph, the United Kingdom made clear that the
forthcoming Tripartite Examination was for the purpose of examining
documentary materials related to the validity of the 1899 Arbitral Award, and
57
57
Geneva Agreement, p. 1. AG, Annex 4.
31
not for determining (or re-determining) the frontier between Venezuela and
British Guiana.
2.27 The United Kingdom Foreign Secretary, Michael Stewart, explained
that Venezuela:
“tried hard to get the preamble to the Agreement to reflect
their fundamental position: first, that we were discussing the
substantive issue of the frontier and not merely the validity of
the 1899 Award, and secondly, that this had been the basis for
our talks both in London and in Geneva. With some difficulty
I persuaded the Venezuelan Foreign Minister to accept a
compromise wording which reflected the known positions of
both sides”.
58
2. Article I (Mixed Commission)
2.28 At the Geneva meeting, Venezuela again proposed the establishment
of a Mixed Commission as the initial means of settlement. This time, in
contrast to the London meeting, the proposal found favour and was agreed
upon. Article I provides that:
“A Mixed Commission shall be established with the task of
seeking satisfactory solutions for the practical settlement of
the controversy between Venezuela and the United Kingdom
which has arisen as the result of the Venezuelan contention
that the Arbitral Award of 1899 about the frontier between
British Guiana and Venezuela is null and void.”
59
58
Note Verbale from the Foreign Secretary of the United Kingdom to the U.K. Ambassador
to Venezuela, No. AV 1081/116 (25 Feb. 1966), para. 6. MG, Vol. II, Annex 32.
59
Geneva Agreement, Art. I. AG, Annex 4. The Foreign Office Draft of 14 January 1966 had
stated “A Mixed Commission shall be appointed at an early date to examine relations
between British Guiana and Venezuela in accordance with Article III of this Agreement.”
32
2.29 Article II sets out the procedure for establishment of the Mixed
Commission and Article III provides that the Commission shall submit
reports at six-month intervals. As indicated below in regard to Article IV(1),
the Commission’s mandate was limited to a four-year period. The United
Kingdom wanted the Mixed Commission to have ten years to reach a
full agreement on the solution to the controversy before triggering the “fallback”
position
but
Venezuela
wanted
a
shorter
period.
Ultimately, it
was
“reduced
by
bargaining”
to
four
years.
60
3. Article IV
2.30 Article IV provides the means for resolving the controversy should
the Mixed Commission fail to arrive at a full agreement. It manifests the
intention of the parties to ensure that, unless other means of settlement were
agreed, there would be a binding procedure for a final resolution of the
controversy in the event the Mixed Commission did not agree upon a
settlement.
2.31 The final text of Article IV provides:
“(1) If, within a period of four years from the date of this
Agreement, the Mixed Commission should not have arrived at
a full agreement for the solution of the controversy it shall, in
its final report, refer to the Government of Guyana and the
Government of Venezuela any outstanding questions. Those
Government of the United Kingdom, Draft Agreement for the Establishment of a Mixed
Commission (14 Jan. 1966), Art. I. MG, Vol. II, Annex 29.
60
Note Verbale from the Foreign Secretary of the United Kingdom to the U.K. Ambassador
to Venezuela, No. AV 1081/116 (25 Feb. 1966), para. 6. MG, Vol. II, Annex 32.
33
Governments shall without delay choose one of the means of
peaceful settlement provided in Article 33 of the Charter of
the United Nations.
(2) If, within three months of receiving the final report, the
Government of Guyana and the Government of Venezuela
should not have reached agreement regarding the choice of
one of the means of settlement provided in Article 33 of the
Charter of the United Nations, they shall refer the decision as
to the means of settlement to an appropriate international
organ upon which they both agree or, failing agreement on
this point, to the Secretary-General of the United Nations. If
the means so chosen do not lead to a solution of the
controversy, the said organ or, as the case may be, the
Secretary-General of the United Nations shall choose another
of the means stipulated in Article 33 of the Charter of the
United Nations, and so on until the controversy has been
resolved or until all the means of peaceful settlement there
contemplated have been exhausted.”
2.32 Contemporaneous internal communications reveal that the United
Kingdom and British Guiana recognised “the value of having in reserve a
fall-back position to meet a Venezuelan contention that the [M]ixed
[C]ommission does not provide machinery for continuing the search for
solutions to the ‘political controversy’”.
61
2.33 The “fall-back” position was first proposed by Dr. Iribarren,
Venezuela’s Foreign Minister. He explained this at the time he presented the
bill ratifying the Geneva Agreement to the National Congress of Venezuela
on 17 March 1966. Referring to the 1965 London meeting, he recalled:
61
Telegram from the Governor of British Guiana to the Secretary of State for the Colonies of
the United Kingdom, No. 93A (3 Feb. 1966), para. 6. MG, Vol. II, Annex 30.
34
“I put forward a third Venezuelan proposal that would
lead to the solution for the borderline issue in three
consecutive stages, each with their respective timeframe,
with the requirement that there had to be an end to
the process: a) a Mixed Commission b) Mediation
c) International Arbitration.”
2.34 According to the United Kingdom’s Foreign Secretary, during the
informal meetings on 16 February 1966 “the Venezuelans wished to use [the
Mixed] Commission as an avenue leading ultimately to settlement of the
controversy either by a fresh arbitration or by mediation.”
62
On 16 February,
the first day of the talks, the parties “seemed to be heading for deadlock”
63
in
regard to identifying specific means of settlement. To break the impasse,
Michael Stewart proposed that:
64
“if the Mixed Commission could not settle the controversy, in
the first instance the two Governments should seek to agree
among themselves which of the means of settling disputes
peacefully under Article 33 of the United Nations Charter
should be applied to this controversy, and, failing agreement,
62
Statement by Dr. Borges, Minister of Foreign Affairs of Venezuela (17 Mar. 1966), p. 9
(“presenté como tercera propuesta venezolana una fórmula que preveía la solución del
problema fronterizo a través de tres etapas consecutivas con sus respectivos plazos, con la
particularidad de que el proceso había de tener un final: a) Comisión Mixta; b) mediación;
c) arbitraje internacional”). MG, Vol. II, Annex 33.
63
Note Verbale from the Foreign Secretary of the United Kingdom to the U.K. Ambassador
to Venezuela, No. AV 1081/116 (25 Feb. 1966). MG, Vol. II, Annex 32. This was in contrast
to the Foreign Office Draft that envisaged a Commission focused on enhancing economic
cooperation as well as cooperation in trade, communication, educational and cultural
exchanges and diplomatic and consular relations: Government of the United Kingdom, Draft
Agreement for the Establishment of a Mixed Commission (14 Jan. 1966). MG, Vol. II, Annex
29.
64
Note Verbale from the Foreign Secretary of the United Kingdom to the U.K. Ambassador
to Venezuela, No. AV 1081/116 (25 Feb. 1966), para. 5. MG, Vol. II, Annex 32.
35
the United Nations should be asked to choose a means for
them”.
65
2.35 Mr. Stewart noted that “[b]y good fortune”, it had been Venezuela
that had introduced the idea of a reference to Article 33 of the U.N. Charter,
in one of the drafts put forward during the afternoon of 16 February.
In
what was considered “the turning point of the meeting”,
66
Dr. Iribarren,
Venezuela’s head of delegation, asked that he be able to consider the matter
overnight so he could seek instructions from his Government.
67
2.36 Dr. Iribarren’s recollection of the negotiations is consistent with Mr.
Stewart’s account. According to Dr. Iribarren, Venezuela had made a
proposal for recourse to the ICJ, similar to the “third formula” it had put
forward at the London meeting in 1965. At Geneva, the United Kingdom and
British Guiana were “receptive to it”, but objected to listing the specific
means of settlement. In Dr. Iribarren’s words:
“The objection was bypassed by replacing that specific
mention by referring to Article 33 of the United Nations
Charter which includes those two procedures, that is
arbitration and recourse to the International Court of Justice,
and the possibility of achieving agreement was again on the
table”.
68
65
Ibid.
66
Ibid.
67
Ibid.
68
Statement by Dr. Borges, Minister of Foreign Affairs of Venezuela (17 Mar. 1966), p. 13
(“Soslayada esta objeción, sustituyendo aquella mención específica por la referencia al
artículo 33 de la Carta de las Naciones Unidas que incluye aquellos dos procedimientos del
arbitraje y del recurso a la Corte Internacional de Justicia, se vio que había una posibilidad
de lograr un acuerdo”). MG, Vol. II, Annex 33.
36
2.37 On 17 February 1966, the two Foreign Ministers discussed formulae
for Article IV(2) in regard to an authority that could choose the means of
settlement if the parties could not agree on the specific means under Article
33 of the Charter.
69
Michael Stewart noted that it was Dr. Iribarren who
proposed that the authority for choosing the means be conferred upon the
U.N. Secretary-General:
“In the formula finally agreed in Article IV of the Agreement
(‘an appropriate international organ’, or, failing that, the
Secretary General of the United Nations) we suggested the
first and the Venezuelans the second alternative”.
2.38 In his statement to the National Congress of Venezuela, Dr. Iribarren
emphasised his success in including the referral to the U.N. SecretaryGeneral.
He
explained
that
Venezuela’s
first
preference
would
have
been
to
name
the
ICJ,
but
that,
in
order
to
reach
agreement,
he
proposed
that
the
Secretary-General
be
granted
the
authority
to
choose
the
means
of
settlement:
70
“I must place it on the record that in the last discussions of the
Geneva Agreement the British suggested entrusting the
General Assembly of the United Nations to choose the means
for a solution comprised in Article 33 of the Charter.
This proposal was discarded by Venezuela due to the
following reasons:
1. Because it was not suitable to submit
the specific role of choosing the means for the
solution to an eminently political and
deliberative body as is the General Assembly
69
Note Verbale from the Foreign Secretary of the United Kingdom to the U.K. Ambassador
to Venezuela, No. AV 1081/116 (25 Feb. 1966), para. 6. MG, Vol. II, Annex 32.
70
Ibid.
37
of the United Nations. This procedure could
lead to disproportionate delays since the
introduction of outside political elements
would be easy in what is a simple function of
choosing the means of settlement;
2. Because the General Assembly of the
United Nations only meets for ordinary
sessions once a year, during a period of roughly
three months, to deal with previously indicated
matters in the Agenda and in extraordinary
sessions by request of the majority of the
members of the United Nations.
These reasons were presented by Venezuela and further
suggested entrusting the International Court of Justice with the
role of choosing the means of solution as a permanent body
and exempt of the inconveniences mentioned above. Since this
proposal was rejected by the British, Venezuela then
suggested giving this role to the Secretary General of the
United Nations.”
71
71
Statement by Dr. Borges, Minister of Foreign Affairs of Venezuela (17 Mar. 1966), p. 17
(“Debo dejar constancia de que en las últimas etapas de discusión del Acuerdo de Ginebra,
los británicos propusieron que la elección de los medios de solución previstos en el artículo
33 de la Carta, se encomendara a la Asamblea General de las Naciones Unidas. Esta
propuesta fue desechada por Venezuela expresando las siguientes razones: 1. Porque no
convenía someter esa función específica de escoger los medios de solución a un órgano
eminentemente político y deliberante como la Asamblea General de las Naciones Unidas.
Este procedimiento podría conducir a desmesuradas dilaciones porque fácilmente se
introducirían elementos políticos extraños a la sencilla función de escoger los medios de
solución; 2. Porque la Asamblea General de las Naciones Unidas sólo se reúne en sesiones
ordinarias una vez por año, por un periodo de unos tres meses, para tratar asuntos
previamente señalados en la Agenda, y en sesiones extraordinarias a solicitud del Consejo
de Seguridad o de la mayoría de los miembros de las Naciones Unidas. Estas razones las
expuso Venezuela, y propuso que se encomendara la función de escoger los medios de
solución a la Corte Internacional de Justicia como órgano permanente y exento de los
inconvenientes antes señalados. No habiendo sido aceptada esta propuesta por los
británicos, Venezuela propuso encomendar aquella función al Secretario General de las
Naciones Unidas”). MG, Vol. II, Annex 33.
38
2.39 Dr. Iribarren further explained that Article IV empowered the U.N.
Secretary-General to decide that the means of settlement shall be arbitration
or judicial settlement, in the event none of the procedures that preceded the
referral of the matter to him resulted in a final resolution of the controversy:
“In conclusion, due to the Venezuelan objections accepted by
Great Britain, there exists an unequivocal interpretation that
the only person participating in the selection of the means of
solution will be the Secretary General of the United Nations
and not the Assembly.
Last, and in compliance with Article 4, if no satisfactory
solution for Venezuela is reached, the Award of 1899 should
be revised through arbitration or a judicial recourse.”
2.40 The words of Dr. Iribarren reflect a clear and unambiguous
understanding that, under Article IV(2) of the Geneva Agreement, the
controversy may be resolved by the ICJ or arbitration, depending upon the
decision of the U.N. Secretary General.
72
D. CONCLUSION OF THE GENEVA AGREEMENT: 1966
2.41 The Geneva Agreement was concluded and signed on 17 February
1966. According to Article VII, “This Agreement shall enter into force on the
date of its signature.” Dr. Iribarren, Michael Stewart and Prime Minister L.
Forbes Burnham issued a Joint Statement noting that:
“The agreement has been welcomed by the Ministers of the
three countries since it provides the means to resolve the
dispute which was harming relations between two neighbours
72
Ibid., p. 19.
39
and contains a basis of good will for future cooperation
between Venezuela and British Guiana.”
2.42 The United Kingdom and British Guiana expressed satisfaction with
the outcome of the Geneva meeting. In the words of Michael Stewart:
73
“Legally, the Geneva Agreement has not prejudiced the
position of either side: we and the Guyanese continue to
regard the 1899 Award as valid, while in Venezuelan eyes it is
2.43 He suggested, perhaps too optimistically, that “Venezuela can now
look forward to definitive settlement of the controversy some time in the
1970s”.
null and void. Politically, it is an honourable compromise.”
74
75
2.44 Venezuela also viewed the Geneva Agreement as a success, not least
because of the adoption of Venezuela’s proposal in Article IV. As Dr.
Iribarren stated before the National Congress of Venezuela:
“Far from this being an imposition, as has been maliciously
said, or a British ploy which surprised the naivety of the
Venezuelan Delegation, it is based on a Venezuelan proposal
which was once rejected in London and has now been
accepted in Geneva.
…
73
Minister of Foreign Affairs of Venezuela, Minister of Foreign Affairs of the United
Kingdom, and Prime Minister of British Guiana, Joint Statement on the Ministerial
Conversations from Geneva on 16 and 17 February 1966 (17 Feb. 1966). MG, Vol. II,
Annex 31.
74
Note Verbale from the Foreign Secretary of the United Kingdom to the U.K. Ambassador
to Venezuela, No. AV 1081/116 (25 Feb. 1966), para. 8. MG, Vol. II, Annex 32.
75
Ibid.
40
As a result of diplomatic dialogue and not from the
monologue of victors, the Geneva Agreement means a new
situation for the extreme positions from those demanding the
return of the stolen territory by virtue of a null Award and
those who harboured no doubts about their sovereignty over
the territory and were not willing to take this matter to any
tribunal”.
76
Following the Foreign Minister’s presentation, the National Congress ratified
the Geneva Agreement without reservation.
2.45 On 4 April 1966, the Secretary-General acknowledged receipt of the
Geneva Agreement, and accepted his authority under Article IV(2):
“I have taken note of the responsibilities which may fall to be
discharged by the Secretary-General of the United Nations
under Article IV (2) of the Agreement, and wish to inform you
that I consider those responsibilities to be of a nature which
may appropriately be discharged by the Secretary-General of
the United Nations.”
2.46 On 21 April 1966, Lord Caradon, the United Kingdom’s Permanent
Representative to the UN, acknowledged the Secretary-General’s letter with
77
76
Statement by Dr. Borges, Minister of Foreign Affairs of Venezuela (17 Mar. 1966), p. 13
(“Lejos de haber sido éste, como se ha dicho maliciosamente, una imposición, o un artilugio
británico que sorprendió la ingenuidad de la Delegación venezolana, está basado en una
propuesta venezolana que rechazada terminantemente en Londres ha venido a ser aceptada
en Ginebra. … Como fruto del dialogo diplomático, y no del monólogo de los vencedores, el
Acuerdo de Ginebra lleva a una nueva situación las posiciones extremas de quien exige la
devolución del territorio usurpado en virtud de un Laudo nulo, y la de quien argüía que no
abrigando duda alguna sobre su soberanía acerca de ese territorio, no estaba dispuesto a
llevar la causa a tribunal alguno”). MG, Vol. II, Annex 33.
77
Letters from Secretary-General U Thant to Dr. Ignacio Iribarren Borges Minster of
Foreign Affairs of the Republic of Venezuela and The Rt. Hon. Lord Caradon Permanent
Representative of the United Kingdom to the United Nations (4 Apr. 1966). AG, Annex 5.
41
gratitude and confirmed that it had been conveyed to the United Kingdom’s
Foreign Secretary and the Prime Minister of British Guiana.
78
2.47 On 2 May 1966, the Permanent Representatives of the United
Kingdom and Venezuela to the United Nations wrote to the SecretaryGeneral
formally
transmitting
the
text
of
the
Geneva
Agreement.
They
noted that it had been approved by the National Congress of Venezuela,
79
80
published in the United Kingdom as a White Paper, and formally approved
by the House of Assembly of British Guiana. The letter also indicated that
Venezuela and British Guiana had already appointed their representatives to
the Mixed Commission. The letter recalled that “Your Excellency was good
enough to state that you considered the responsibilities which might fall to be
discharged by the Secretary-General of the United Nations under article IV
(2) of the Agreement to be of a nature which might appropriately be
discharged by the Secretary-General of the United Nations”.
The
Permanent Representatives asked for the Secretary-General to arrange
81
78
Letter from the Permanent Representative of the United Kingdom to the United Nations to
Secretary-General of the United Nations (21 Apr. 1966). MG, Vol. II, Annex 37.
79
Letter from the Permanent Representatives of the United Kingdom and Venezuela to the
United Nations to the Secretary-General of the United Nations, U.N. Doc A/6325 (3 May
1966). MG, Vol. II, Annex 38.
80
Republic of Venezuela, Law Ratifying the Geneva Agreement (13 Apr. 1966). MG, Vol. II,
Annex 35.
81
Letter from the Permanent Representatives of the United Kingdom and Venezuela to the
United Nations to the Secretary-General of the United Nations, U.N. Doc A/6325 (3 May
1966), p. 1. MG, Vol. II, Annex 38.
42
circulation of the letter and the text of the Geneva Agreement as a document
of the General Assembly.
82
2.48 On 5 May 1966, Venezuela registered the Geneva Agreement with
the U.N. Treaty Section.
It expressed no objection to any part of the
Agreement.
83
2.49 On 26 May 1966, just over three months after the conclusion of the
Geneva Agreement, Guyana became independent, and acceded to the
Agreement as a party in accordance with Article VIII, which provided that:
“Upon the attainment of independence by British Guiana, the
Government of Guyana shall thereafter be a party to this
Agreement, in addition to the Government of the United
Kingdom of Great Britain and Northern Ireland and the
Government of Venezuela.”
84
82
Letter from the Permanent Representatives of the United Kingdom and Venezuela to the
United Nations to the Secretary-General of the United Nations, U.N. Doc A/6325 (3 May
1966). MG, Vol. II, Annex 38.
83
See title page in the Geneva Agreement. AG, Annex 4.
84
Ibid., Art. VIII.
43
II. Implementation of the Geneva Agreement: 1966 – 2018
A. ARTICLES I - III OF THE GENEVA AGREEMENT: THE MIXED
COMMISSION: 1966-70
2.50 Pursuant to Articles I and II of the Agreement,
a Mixed
Commission was established in 1966. Four representatives were appointed,
two each by Guyana and Venezuela. Guyana’s representatives were Sir
Donald Jackson (a former Chief Justice of British Guiana) and Dr. Mohamed
Shahabuddeen (at the time Solicitor General for Guyana, later a Judge of the
ICJ). Venezuela’s representatives were Luis Loreto (later, a Justice of the
Supreme Court of Venezuela) and Gonzalo Garcia Bustillos (later, Minister
of the General Secretariat of the Presidency of Venezuela). The Commission
held numerous meetings during its four-year mandate. The minutes of its
meetings were carefully recorded and signed, with copies attached to the
Final Report and Interim Reports, which were signed by the four
Commissioners and issued to both Governments.
85
86
2.51 The parties disagreed on the mandate of the Commission under
Article I. Guyana considered that its mandate was to find a practical solution
85
Article I provides: “A Mixed Commission shall be established with the task of seeking
satisfactory solutions for the practical settlement of the controversy between Venezuela and
the United Kingdom which has arisen as the result of the Venezuelan contention that the
Arbitral Award of 1899 about the frontier between British Guiana and Venezuela is null and
void”. Article II(1) provides: “Within two months of the entry into force of this Agreement,
two representatives shall be appointed to the Mixed Commission by the Government of
British Guiana and two by the Government of Venezuela”. Ibid., Arts. I, II(1).
86
Article III provides: “The Mixed Commission shall present interim reports at intervals of
six months from the date of its first meeting”. Ibid., Art. III.
44
to the legal question of Venezuela’s contention of nullity. In Venezuela’s
view, instead of addressing the legal question of nullity, a “satisfactory
solution[] for the practical settlement of the controversy” required the Mixed
Commission to consider how much of the Essequibo territory Guyana should
cede to Venezuela or subject to a “joint development” programme.
The
Venezuelan Commissioners expressly recognized, however, that should the
Commission fail to resolve the controversy:
87
“The juridical examination of the question [of nullity]
would[,] if necessary, be proceeded with, in time, by some
international tribunal in accordance with article IV of the
Geneva Agreement.”
2.52 The work of the Mixed Commission coincided with hostile
Venezuelan actions. Notably, this included Venezuela’s unlawful occupation
of Guyana’s eastern half of Ankoko Island in October 1966, including the
building of military installations and an airstrip. Guyana immediately
protested, stating that it:
88
“regards the introduction of Venezuelan personnel both
civilian and military into that part of the Ankoko island which
is part of the State of Guyana as a violation of Guyana’s
87
Cooperative Republic of Guyana, Ministry of Foreign Affairs, Memorandum on the
Guyana/Venezuela Boundary (2 Nov. 1981), reprinted in U.N. General Assembly, 36th
Session, Review of the Implementation of the Declaration on the Strengthening of
International Security, U.N. Doc A/C.1/36/9 (9 Nov. 1981), pp. 7-8. MG, Vol. III, Annex 54.
88
United Kingdom, Ministry of External Affairs, First Interim Report of the Mixed
Commission (30 Dec. 1966), p. 3. MG, Vol. II, Annex 41.
45
territorial sovereignty and a breach of the Geneva Agreement
on 17
th
Despite Guyana’s repeated protests, Venezuela’s unlawful occupation
continues to the present date.
89
February, 1966”
90
2.53 Two years later, by Decree dated July 1968, President Raúl Leoni of
Venezuela claimed the territorial sea along the coast of Guyana up to the
mouth of the Essequibo River.
Venezuela also issued threats against foreign
investment in the Essequibo region. On 15 June 1968, the Venezuelan
Ministry of Foreign Affairs placed a notice in The Times of London
newspaper asserting that “Esequivo Guiana is claimed by our country, as by
right belongs to it” and “publicly and categorically” stating that it does “not
91
89
Note Verbale from the Prime Minister and Minister of External Affairs of Guyana to the
Minister of Foreign Relations of Venezuela, No. CP(66)603 (21 Oct. 1966). MG, Vol. II,
Annex 40.
90
See e.g. Letter from the Vice President and Minister of Foreign Affairs of the Cooperative
Republic of Guyana to the Secretary-General of the United Nations (3 June 2016), referring
to the “continued illegal occupation of Guyana’s half of Ankoko island by the Venezuelan
military.” MG, Vol. IV, Annex 105. See further U.N. General Assembly, 37th Session,
Agenda item 9, U.N. Doc. A/37/PV.16 (4 Oct. 1982), paras. 279, 282 (“Even as I speak now,
Venezuela is in military occupation of territory belonging to Guyana. That territory was
seized by force of arms in 1966. That act of aggression took place, moreover, a mere few
months after the conclusion of the Geneva Agreement, which committed the parties,
Venezuela included, to the search for a peaceful settlement. What is particularly significant is
that that aggression did not take place while the British were still in the colony; the
Venezuelans waited until after the British left in order to occupy part of our territory…. By
sending its troops across that border in 1966, the Venezuelans signalled an intention to
pressure Guyana by military means into redrawing that boundary”). MG, Vol. III, Annex 57.
91
By note dated 19 July 1968, Guyana denounced a Decree by President Raúl Leoni which
“purported to annex as part of the territorial waters and contiguous zone of Venezuela a belt
of sea lying along the coast of Guyana between the mouth of the Essequibo River and Waini
Point.” Note Verbale from the Ministry of External Affairs of Cooperative Republic of
Guyana to the Embassy of the Bolivarian Republic of Venezuela in Guyana (19 July 1968).
MG, Vol. II, Annex 43.
46
recognize any type of such supposed concessions, either granted or to be
granted by the Guyana Government over the territory stretching to the West
of the Esequivo [sic] River.”
92
2.54 In 1970, the Commission ended its four-year mandate without “full
agreement” or any agreement, for that matter.
B. SUSPENSION OF ARTICLE IV OF THE GENEVA AGREEMENT PURSUANT
TO THE PROTOCOL OF PORT OF SPAIN: 1970-82
2.55 Following the failure of the Mixed Commission to arrive at a “full
agreement,” Article IV of the Geneva Agreement provided that the
controversy was to be referred to the Governments of Guyana and Venezuela,
to “choose one of the means of peaceful settlement provided in Article 33 of
the Charter of the United Nations”. It soon became clear, however, that they
were unable to agree. Guyana, for its part, needed respite from Venezuelan
threats against its territorial sovereignty. Accordingly, it welcomed the
overture of the Prime Minister of Trinidad and Tobago, Dr. Eric Williams,
who facilitated a “moratorium” in respect of the dispute settlement process,
which was reflected in a Protocol to the Geneva Agreement (“Protocol of
Port of Spain”).
2.56 Pursuant to the 1970 Protocol,
the parties agreed to suspend the
operation of Article IV
93
94
and “explore all possibilities of better understanding
92
Republic of Venezuela, Ministry of Foreign Affairs, Communiqué (14 May 1968). MG,
Vol. II, Annex 42.
47
95
between them”.
The Protocol was to “remain in force for an initial period of
twelve years” and could be terminated by either State at the expiration of that
initial period or of any period of renewal.
Both States further agreed that,
during the moratorium, neither one would assert claims to sovereignty in the
territory of the other.
96
97
2.57 Four days after the signing of the Protocol, Venezuela’s Minister of
Foreign Affairs explained that an “essential advantage[]” for his country was
that it “[a]voids our border dispute with Guyana from leaving (in a very short
period, possibly three months) direct negotiations between the interested
Parties to passing into the hands of third parties”.
98
He recognised that:
93
The Protocol was signed by Guyana, the United Kingdom of Great Britain and Northern
Ireland and Venezuela on 18 June 1970. Its full title is: “Protocol to the Agreement to resolve
the controversy between Venezuela and the United Kingdom of Great Britain and Northern
Ireland over the frontier between Venezuela and British Guiana.” Pursuant to Article VI of
the Protocol, it came into force on the date of signature. Protocol to the Agreement to resolve
the controversy between Venezuela and the United Kingdom of Great Britain and Northern
Ireland over the frontier between Venezuela and British Guiana signed at Geneva on 17
February 1966, 801 U.N.T.S. 183 (18 June 1970) (“Protocol of Port of Spain”). MG, Vol. II,
Annex 46.
94
Article III of the Protocol provides: “So long as this Protocol remains in force the
operation of Article IV of the Geneva Agreement shall be suspended….” Ibid., Art. III.
95
Ibid., Art. I. As set out in the Preamble of the Protocol, it reflected an understanding that
“the promotion of mutual confidence and positive and friendly intercourse between Guyana
and Venezuela will lead to an improvement in their relations befitting neighbouring and
peace-loving nations.” Ibid., p. 184.
96
Ibid., Art. V.
97
Article II of the Protocol provided: “no claim whatever arising out of the contention
referred to in Article I of the Geneva Agreement shall be asserted by Guyana to territorial
sovereignty in the territories of Venezuela or by Venezuela to territorial sovereignty in the
territories of Guyana.” Ibid., Art. II.
98
Government of the Republic of Venezuela, Exposition of Motives for the Draft Law
Ratifying the Protocol of Port of Spain (22 June 1970), reprinted in Republic of Venezuela,
48
“in the absence of suspending the legal force of Article IV, the
possibility existed that three months after the submission of
the Final Report of the Mixed Commission, an issue of such
vital importance for Venezuela as the determination of the
means of dispute settlement, would have left the hands of the
two directly interested Parties, to be decided by an
international institution chosen by them, or failing that, by the
Secretary General of the United Nations”.
2.58 Guyana and Venezuela further agreed that each Government would
“show restraint in its statements and actions so as to avoid bringing into
discredit the honor, standing or authority of the other Government”. They
confirmed that “each Government would abstain from any statements,
publications or other acts which could be detrimental to the economic
development and progress of the other’s State”.
99
100
2.59 Nonetheless, in 1981 – one year before expiration of the twelve-year
moratorium – Venezuela resumed its campaign of intimidation against
Guyana.
101
President Luis Herrera Campins “firmly ratifie[d] Venezuela’s
Ministry of Foreign Affairs, Claim of Guyana Esequiba: Documents 1962-1981 (1981), para.
8. MG, Vol. II, Annex 47.
99
Ibid., para. 4.
100
Government of the Cooperative Republic of Guyana and Government of the Republic of
Venezuela, Minutes of certain matters dealt with by the Minister of State of Guyana and the
Minister of External Relations of Venezuela in conversations held at Port-of-Spain (June
1970), p. 1. MG, Vol. II, Annex 45. Described in the relevant minute as an “understanding
between gentleman”, this agreement was expressly referred to by Guyana before the UNGA
in September 1981. U.N. General Assembly, 36th Session, Agenda item 9, U.N. Doc.
A/36/PV.12 (24 Sept. 1981), para. 61. MG, Vol. II, Annex 53.
101
See U.N. General Assembly, 36th Session, Agenda item 9, U.N. Doc. A/36/PV.12 (24
Sept. 1981), paras. 44, 58. MG, Vol. II, Annex 53.
49
claims to the Essequibo territory”,
and Venezuela advised the international
community that it would not recognize any form of co-operation for the
development of Guyana in the Essequibo region.
102
In particular, Venezuela
thwarted Guyana’s Upper Mazaruni hydroelectric project, issuing a threat to
the President of the World Bank, the major source of financing, that
Venezuela “will recognise no right nor legal situation” arising from the
project.
103
104
2.60 On 18 December 1981, Venezuela formally notified Guyana of its
decision to terminate the 1970 Protocol.
Accordingly, pursuant to
Article V(3) of the Protocol, it was terminated on 18 June 1982.
105
106
102
Cooperative Republic of Guyana, Ministry of Foreign Affairs, Memorandum on the
Guyana/Venezuela Boundary (2 Nov. 1981), reprinted in U.N. General Assembly, 36th
Session, Review of the Implementation of the Declaration on the Strengthening of
International Security, U.N. Doc A/C.1/36/9 (9 Nov. 1981), p. 12. MG, Vol. III, Annex 54.
103
At the UN Conference on New and Renewable Sources of Energy in August 1981,
referred to at para. 59 of UN GA debates in September 1981, Guyana observed “[e]veryone
knows that energy is critical in the process of development.” U.N. General Assembly, 36th
Session, Agenda item 9, U.N. Doc. A/36/PV.12 (24 Sept. 1981), para. 38. MG, Vol. II,
Annex 53.
104
Letter from the Minister of Foreign Affairs of the Republic of Venezuela to the President
of the World Bank (8 June 1981), p. 3. MG, Vol. II, Annex 51. Venezuela gave maximum
publicity to the document, issuing the text of its letter to the press and to representatives of
the member States of the Bank, as observed in the Letter from the Vice President of the
Cooperative Republic of Guyana to the President of the World Bank (19 Sept. 1981). MG,
Vol. II, Annex 52.
105
Letter from the Minster of Foreign Affairs of the Republic of Venezuela to the Minister of
Foreign Affairs of the Cooperative Republic of Guyana (Dec. 1981). MG, Vol. III, Annex
55.
106
Article V(3) provides: “This Protocol may be terminated at the expiration of the initial
period or of any period of renewal if, at least six months before the date on which it may be
terminated, either the Government of Guyana or the Government of Venezuela gives to the
50
C. THE PARTIES’ FAILURE TO REACH AGREEMENT, UNDER ARTICLE
IV(1) OF THE GENEVA AGREEMENT, “ON THE MEANS OF PEACEFUL
SETTLEMENT PROVIDED IN ARTICLE 33 OF THE CHARTER”: 1982
2.61 Article III of the Protocol of Port of Spain provided that, upon
termination of the 12-year moratorium, implementation of Article IV of the
Geneva Agreement would resume.
This was expressly acknowledged by
Venezuela.
107
108
2.62 As referred to above, Article IV of the Geneva Agreement provided
for three stages. The first stage required the parties to attempt to reach
agreement “on the means of peaceful settlement provided in Article 33 of the
Charter” (Article IV(1)).
109
In the event of failure to reach agreement under
other Governments parties to this Protocol a notice in writing to that effect [sic.]”. Protocol
of Port of Spain, Art. V(3). MG, Vol. II, Annex 46.
107
Article III provides: “On the date when this Protocol ceases to be in force the functioning
of that Article shall be resumed at the point at which it has been suspended, that is to say, as
if the Final Report of the Mixed Commission had been submitted on that date….” Ibid., Art.
III.
108
See Declaration of the Minister of Foreign Affairs of the Republic of Venezuela (10 Apr.
1981), reprinted in Republic of Venezuela, Ministry of Foreign Affairs, Claim of Guyana
Esequiba: Documents 1962-1981 (1981) (“The immediate consequence of the termination of
the Protocol of Port of Spain is the full reactivation of the procedures indicated in the Geneva
Agreement from 1966”). MG, Vol. II, Annex 49; Republic of Venezuela, Ministry of
Foreign Affairs, Statement (2 May 1981) (“The decision of the National Government not to
continue to apply the Protocol of Spain after it has come to an end, expressed to Mr Burnham
on the occasion of his visit to Caracas results in the provisions in Article IV of the Geneva
Agreement coming into full force … it is also certain that the Agreement, after being
approved by the Congress, became a Law of the Republic and it is an international
commitment for Venezuela”). MG, Vol. II, Annex 50.
109
Article IV(1) provides: “If, within a period of four years from the date of this Agreement,
the Mixed Commission should not have arrived at a full agreement for the solution of the
controversy it shall, in its final report, refer to the Government of Guyana and the
Government of Venezuela any outstanding questions. Those Governments shall without
51
Article IV(1), Article IV(2) provided for two further stages of proceedings
(the second and third stages). To begin with, the parties were to “refer the
decision as to the means of settlement to an appropriate international organ
upon which they both agree” (the second stage). However, “failing agreement
on this point”, the parties were to refer the decision as to the means of
settlement “to the Secretary-General of the United Nations” (the third stage).
2.63 Accordingly, on the expiration of the 12-year moratorium, the parties
first attempted to reach agreement “on the means of peaceful settlement
provided in Article 33 of the Charter,” as required by Article IV(1). But they
were unable to reach agreement. Venezuela rejected Guyana’s proposal of
judicial settlement, and proposed diplomatic negotiations instead.
As
explained by Guyana before the U.N. General Assembly on 4 October 1982:
110
“Venezuela proposed negotiations, as was its sovereign right
under the Agreement. Guyana, after the most careful
consideration, proposed judicial settlement in accordance with
its equally sovereign right. The Geneva Agreement gives no
primacy whatsoever to negotiation. The choice of means has
to be agreeable to both the parties; it is not the unilateral
decision of one or the other. Guyana therefore rejects any
insinuations of a reluctance to negotiate.
I reiterate Guyana’s commitment to a peaceful settlement with
Venezuela and to a regime of peaceful, harmonious, goodneighbourly
relations
with
Venezuela.
We
are
a
small,
poor,
militarily
weak
country.
But
we
will
not
be
bullied
by
delay choose one of the means of peaceful settlement provided in Article 33 of the Charter of
the United Nations.” Geneva Agreement, Art. IV(1). AG, Annex 4.
110
Cooperative Republic of Guyana, Ministry of Foreign Affairs, Press Release (30 Mar.
1983). MG, Vol. III, Annex 62.
52
Venezuela. We demand respect for our independence, our
sovereignty and our territorial integrity.”
2.64 Pursuant to the second stage, Guyana proposed three alternative
bodies as the “appropriate international organ” to choose the means of
settlement, namely the ICJ, the U.N. General Assembly or the U.N. Security
Council.
111
112
Venezuela rejected Guyana’s proposals, expressing its
preference for an immediate referral to the U.N. Secretary-General (as called
for in the third stage). By letter dated 19 September 1982, Venezuela’s
Minister of Foreign Affairs stated that:
“Venezuela has become convinced that the most appropriate
international organ to choose a means of solution is the
Secretary General of the United Nations, which organ
accepted this responsibility by its note of April 4, 1966
subscribed to by U. Thant and whose role has been expressly
agreed upon by the parties in the text itself of the Geneva
Agreement.”
113
2.65 Venezuela reiterated its position in a letter dated 15 October 1982:
“Venezuela is convicted [sic] that in order to comply with the
provisions of Article IV (2) of the Geneva Agreement, the
most appropriate international organ is the Secretary General
of the United Nations…..Venezuela wishes to reaffirm its
conviction that it would be most practical and appropriate to
entrust the task of choosing the means of settlement directly to
111
U.N. General Assembly, 37th Session, Agenda item 9, U.N. Doc. A/37/PV.16 (4 Oct.
1982), paras. 287-288. MG, Vol. III, Annex 57.
112
See U.N. General Assembly, 37th Session, Agenda item 9, U.N. Doc. A/37/PV.26 (11
Oct. 1982), paras. 207-215. MG, Vol. III, Annex 58.
113
Letter from the Minister of Foreign Affairs of the Republic of Venezuela to the Minister
of Foreign Affairs of the Cooperative Republic of Guyana (19 Sept. 1982). MG, Vol. III,
Annex 56.
53
the Secretary General of the United Nations. Since it is
evident that no agreement exists between the parties in respect
of the choice of an international organ to fulfil [sic] the
functions provided for it in Article IV (2), it is obvious that
this function now becomes the responsibility of the Secretary
General of the United Nations.”
2.66 In view of Venezuela’s stance, and the resulting impossibility of
reaching agreement on any other international organ to choose the means of
settlement, Guyana agreed by letter dated 28 March 1983 “to proceed to the
next stage and, accordingly to refer the decision as to the means of settlement
to the Secretary-General of the United Nations”,
114
consistent with Article
IV(2) of the Geneva Agreement.
115
D. REFERRAL OF THE CHOICE OF MEANS OF SETTLEMENT TO THE U.N.
SECRETARY-GENERAL, IN CONFORMITY WITH ARTICLE IV(2) OF THE
GENEVA AGREEMENT: 1983
2.67 In response to the parties’ referral, Secretary-General Javier Pérez de
Cuéllar accepted responsibility for choosing the means of settlement of the
controversy, in conformity with his authority under Article IV(2) of the
Geneva Agreement. By letter dated 31 March 1983, he stated that:
114
Letter from the Minister of Foreign Affairs of the Republic of Venezuela to the Minister
of Foreign Affairs of the Cooperative Republic of Guyana (15 Oct. 1982), p. 2. MG, Vol. III,
Annex 59.
115
See Letter from the Minister of Foreign Affairs of the Cooperative Republic of Guyana to
the Minister of Foreign Affairs of the Republic of Venezuela (28 Mar. 1983) (“proceeding
regretfully on the basis that [Venezuela] is unwilling to seriously endeavour to reach
agreement on any appropriate international organ whatsoever to choose the means of
settlement, hereby agrees to proceed to the next stage and, accordingly, to refer the decision
as to the means of settlement to Secretary-General of the United Nations.”). MG, Vol. III,
Annex 61. See further, U.N. General Assembly, 38th Session, Agenda item 9, U.N. Doc.
A/38/PV.20 (5 Oct. 1983), para. 221. MG, Vol. III, Annex 65.
54
“Being now assured that it is the wish of the governments of
both Guyana and Venezuela that I undertake the responsibility
conferred on me in Article IV(2) of the Geneva Agreement, I
shall, after due consideration, communicate to you and to the
Government of Venezuela the conclusion I have reached in
the discharge of that responsibility”.
2.68 On 31 August 1983, the Secretary-General issued a statement
explaining that “in order to facilitate the discharge of his responsibility under
the terms of Article IV (2) of the Agreement signed at Geneva”, he had sent
the Under-Secretary-General for Special Political Affairs, Diego Cordovez,
to visit Caracas and Georgetown. This was “for the purpose of ascertaining
the position which the parties might wish to provide relevant to a choice of
means for a peaceful settlement”.
116
117
2.69 Mr. Cordovez subsequently reported, after his consultations with the
parties, that both Guyana and Venezuela “have reaffirmed their readiness to
cooperate fully with the Secretary-General in the discharge of his
responsibility under the Geneva Agreement”.
After taking Mr. Cordovez’s
report and the parties’ views into account, the Secretary-General decided that
118
116
Letter from the Secretary-General of the United Nations to the Minister of Foreign Affairs
of the Cooperative Republic of Guyana (31 Mar. 1983). MG, Vol. III, Annex 63.
117
Telegram from the Secretary-General of the United Nations to the Minister of Foreign
Affairs of the Cooperative Republic of Guyana (31 Aug. 1983), p. 2. MG, Vol. III, Annex
64.
118
Ibid., p. 3. He further reported that he “conveyed to the Secretary-General the assurances
of the governments of Guyana and Venezuela that they were determined to exert the utmost
efforts to settle their controversy in an entirely peaceful and amicable manner.” See further
U.N. General Assembly, 39th Session, Agenda item 9, U.N. Doc. A/39/PV.19 (3 Oct. 1984),
para. 134 (where Guyana noted that “The Secretary-General was prescient when he asked for
and obtained from both countries assurances that we would do everything necessary ‘in order
to foster and maintain the most favourable climate for the effective application of the Geneva
Agreement.’”). MG, Vol. III, Annex 66.
55
the means of settlement should be a “Good Offices Process” conducted by his
Personal Representative.
E.
THE GOOD OFFICES PROCESS: 1990-2014
2.70 Beginning in 1990, successive Secretaries-General exercised their
authority under Article IV(2) of the Geneva Agreement by appointing
eminent Personal Representatives to conduct the Good Offices Process:
a.
From 1990-99, Professor Alister McIntyre of Grenada was
appointed by Secretary-General Pérez de Cuéllar. He had
previously served as Secretary-General of CARICOM, and
was at the time serving as Vice-Chancellor of the University
of the West Indies.
b. From 1999 - 2007, Oliver Jackman of Barbados was appointed
by Secretary-General Kofi Annan as his “Personal
Representative on the Border Controversy between Guyana
and Venezuela”.
119
He had a distinguished career in the
diplomatic service (serving inter alia as Ambassador to the
United States, and Permanent Representative to both the OAS
and UN)120 and was elected as Judge on the Inter-American
119
U.N. Secretary-General, Press Release: Oliver Jackman Appointed Personal
Representative of Secretary-General in Border Controversy Between Guyana and Venezuela,
U.N. Doc SG/A/709 (26 Oct. 1999). MG, Vol. III, Annex 72.
120
Ibid.
56
Court of Human Rights.
In 1980, he was decorated by
Venezuela with the Order of Francisco de Miranda.
121
122
c. Following Mr. Jackman’s untimely death in January 2007, the
Good Offices Process suffered a hiatus until the appointment
of Professor Norman Girvan in 2010.
He was SecretaryGeneral
of
the
Association
of
Caribbean
States
between
2000
and 2004,
a
member
of
the
U.N.
Committee on
Development
Policy,
and
Professor
Emeritus
of
the
University
of
the
West
Indies.
123
124
He passed away in 2014.
2.71 Between 1990 and 2014, the Good Offices Process entailed
significant engagement by both the U.N. and the parties. Facilitators, selected
by Guyana and Venezuela respectively, were appointed to assist the
Secretary-General’s Personal Representative, and a practice was established
to hold regular meetings between the Foreign Ministers and the U.N.
Secretary-General during the annual meeting of the U.N. General Assembly,
121
Ibid.
122
Ibid. Mr. Jackman had also served as the Chief Information Officer at the UN Economic
Commission for Africa, a member of the Haitian Truth and Justice Commission, as well as a
member of the Barbados Social Justice Commission and the Barbados Constitution Review
Commission.
123
See U.N. Secretary-General, Press Release: Secretary-General Appoints Norman Girvan
of Jamaica as Personal Representative on Border Controversy Between Guyana, Venezuela,
U.N. Doc. SG/A/1230-BIO/4183 (21 Apr. 2010). MG, Vol. III, Annex 76.
124
Ibid. He also worked as Senior Officer and Consultant at the United Nations Centre on
Transnational Corporations and as Senior Research Fellow of the United Nations African
Institute for Development and Planning in Dakar, Senegal. In addition, he served as Chief
Technical Director of Jamaica’s National Planning Agency as well as serving on the Board
of Directors of the Bank of Jamaica and in the Economic Council of the Cabinet of the
Government of Jamaica.
57
in addition to regular visits of the Personal Representative to Caracas and
Georgetown.
2.72 Consistent with their obligations under Article IV(2) of the Geneva
Agreement, the parties continuously reaffirmed their commitment to the
Good Offices Process, chosen by the Secretary-General pursuant to his
authority under Article IV(2) as the means of settlement of the controversy.
For example:
a. Following a meeting on 5 April 1993 attended by the
Ministers of Foreign Affairs of Guyana and Venezuela, the
U.N. Secretary-General and Professor McIntyre, a joint
statement was issued in which:
“The representatives of both countries reiterated their
Governments’ determination to achieve a peaceful
settlement of the controversy, through the Good
Offices of the Secretary General, in keeping with their
deep and unswerving commitment to the peaceful
resolution of issues within the framework of the 1966
Geneva Agreement.”
b. On 2 October 1996, before the U.N. General Assembly, the
President of Venezuela stated that the controversy:
125
“lies within the framework of the 1966 Geneva
agreement signed by both countries in order to reach a
practical and lasting solution to this dispute. In a spirit
125
Government of the Cooperative Republic of Guyana and Government of the Republic of
Venezuela, Joint Statement (5 Apr. 1993), p. 5. MG, Vol. III, Annex 67.
58
of dialogue and cooperation between the two parties,
we appealed to the Secretary-General’s good offices
and are now applying one of the mechanisms for the
peaceful settlement of disputes provided for in the
United Nations Charter.”
c. On 23 July 1998, the Presidents of Venezuela and Guyana
issued a Joint Communiqué which “reaffirmed their decision
to continue to avail themselves of the McIntyre Process, in
order to reach a final settlement as called for by the Geneva
Agreement of 1966”.
126
127
2.73 Despite efforts over twenty-four years, the parties failed to make
significant progress in arriving at a settlement of the controversy through the
Good Offices Process. With the death of Professor Girvan in 2014, and the
need for the appointment of yet another Personal Representative, it became
increasingly apparent that the Good Offices Process was not going to resolve
the controversy, and would have to be replaced by another means of
settlement, in application of Article IV(2) of the Geneva Agreement.
F. VIOLATIONS OF GUYANA’S SOVEREIGNTY AND TERRITORIAL
INTEGRITY
2.74 Despite its participation in the Good Offices Process, Venezuela
engaged in hostile actions aimed at pressuring Guyana to cede the so-called
126
U.N. General Assembly, 51st Session, Agenda item 9, U.N. Doc. A/51/PV.19 (2 Oct.
1996), p. 14. MG, Vol. III, Annex 69.
127
Government of the Cooperative Republic of Guyana and Government of the Republic of
Venezuela, Joint Communiqué (23 July 1998). MG, Vol. III, Annex 70.
59
“Guayana Esequiba” territory west of the Essequibo River. As observed by
Guyana in a letter to the U.N. Secretary-General:
“during the twenty-five years of the Good Offices Process,
Guyana has continued to face repeated threats and
intimidation, military incursions and subversion, and a
deliberate policy of stymieing its economic development”.
2.75 Military incursions by Venezuela became increasingly frequent
during the last years of the Good Offices Process. For example
128
129
:
a.
In November 2007, a Venezuelan General led some thirty
soldiers into Guyana’s territory on the Cuyuni River,
supported by military helicopters, and used explosives to
destroy Guyanese dredges. By a Note dated 15 November
2007, Guyana protested that it was “extremely disturbed by
these unauthorized incursions into its territory and wishes to
request that the operations by the Venezuelan armed forces on
Guyana’s territory and air space cease forthwith”.
130
128
Letter from the Vice President and Minister of Foreign Affairs of the Cooperative
Republic of Guyana to the Secretary-General of the United Nations (3 June 2016). MG, Vol.
IV, Annex 105.
129
The map at Annex 125, shows the approximate locations of the incidents described in this
paragraph. See Map of Violations of Guyana's Sovereignty and Territorial Integrity. MG,
Vol. IV, Annex 125.
130
Note Verbale from the Ministry of Foreign Affairs of the Cooperative Republic of Guyana
to the Embassy of the Bolivarian Republic of Venezuela in Guyana, No. DG/2/11/2007 (15
Nov. 2007). MG, Vol. III, Annex 74.
60
b.
In 2013, armed Venezuelan soldiers landed on Guyanese
territory at Eteringbang.
131
c.
In June 2014, Venezuelan armed forces crossed into Guyana’s
territory at Bruk up Landing,
132
seized property and detained
Guyanese citizens. By Note dated 1 July 2014, Guyana
protested “these provocative acts committed by the
Venezuelan military”, noting “[t]hey are a violation of the
territory of Guyana as well as the human rights of its
people”.
133
2.76 Venezuela also continued to act in various ways to obstruct Guyana’s
economic development including by threatening potential investors.
134
More
recent examples include:
In 2013, the Venezuelan Navy seized a research vessel, the
RV Teknik Perdana, operating peacefully in Guyana’s
waters.135 The vessel had been contracted by Guyana’s
United States licensee, Anadarko Petroleum Corporation, and
a.
131
D. Scott Chabrol, “Venezuelan soldiers weren’t allowed entry-govt”, Demerara Waves
(13 Sept. 2013). MG, Vol. III, Annex 78.
132
Bruk up is located on the Guyana side of the Amacuro river.
133
Note Verbale from the Ministry of Foreign Affairs of the Cooperative Republic of Guyana
to the Ministry of People's Power for External Relations of the Bolivarian Republic of
Venezuela, No. 815/2014 (1 July 2014). MG, Vol. III, Annex 83.
134
See supra Sections II(A) and (B).
135
Referred in Address of the President of the Republic of Guyana to the U.N. General
Assembly, 70th Session, U.N. Doc. A/70/PV.16 (29 Sept. 2015), p. 3. MG, Vol. III, Annex
99.
61
was conducting transitory seismic activities off Guyana’s
Essequibo coast. Venezuela’s actions resulted in the cessation
of all further exploration activities in Guyana’s waters by the
licensee.
136
b.
In 2014, Venezuela objected to a joint hydroelectric project
planned by Guyana and Brazil in the Upper Mazarumi
region.
137
c. That same year, Venezuela warned Guyana to refrain from all
economic activity west of the Essequibo River.
138
136
See Letter from F. Patterson, Anadarko Petroleum Co., to R.M. Persaud, Minister of
Natural Resources and the Environment of the Cooperative Republic of Guyana (20 Aug.
2014). MG, Vol. III, Annex 84.
137
See Note Verbale from the Ministry of External Relations of the Bolivarian Republic of
Venezuela to the Ministry of Foreign Affairs of the Cooperative Republic of Guyana, No.
000802 (8 Apr. 2014). MG, Vol. III, Annex 80; Note Verbale from the Ministry of Foreign
Affairs of the Republic of Guyana to the Ministry of Foreign Affairs of the Bolivarian
Republic of Venezuela, No. DG/07/04/2014 (14 Apr. 2014). MG, Vol. III, Annex 81; Letter
from the Minister of Foreign Affairs of the Cooperative Republic of Guyana to the
Secretary-General of the United Nations (15 Apr. 2014). MG, Vol. III, Annex 82.
138
Note Verbale from the Ministry of the People's Power for External Relations of the
Bolivarian Republic of Venezuela to the Ministry of Foreign Affairs of the Republic of
Guyana, No. I.DDM. 005568 (22 Sept. 2014). MG, Vol. III, Annex 85.
62
G. EXHAUSTION OF THE GOOD OFFICES PROCESS AND DECISION OF THE
U.N. SECRETARY-GENERAL THAT THE INTERNATIONAL COURT OF
JUSTICE SHALL BE THE MEANS OF SETTLEMENT: 2014-18
1. The Lack of Progress Toward Settlement in the Good Offices Process:
2014-15
2.77 By 2014, Guyana concluded that, in light of the inability of the Good
Offices Process to achieve a settlement of the controversy, it was time for the
Secretary-General to choose another means of settlement under Article 33 of
the U.N. Charter. In a letter dated 2 December 2014 to her Venezuelan
counterpart, the Guyanese Foreign Minister stated that “after 25 years [the
Good Office process] has brought us no closer to the resolution of the
controversy… I am therefore writing to let you know that the Government of
Guyana is presently reviewing the other options under Article 33.”
139
2.78 In its reply, Venezuela apparently concludes that it benefitted from
the status quo, stating that the “[Good Offices] mechanism remains
politically and legally appropriate” in addressing the controversy, which it
noted has arisen with respect to “the Award of Paris of 1899 [being] null and
void”.
140
In a subsequent letter dated 19 June 2015, Venezuela defended the
139
Letter from the Minister of Foreign Affairs of the Cooperative Republic of Guyana to the
Minister of the People’s Power for External Relations of the Bolivarian Republic of
Venezuela (2 Dec. 2014). MG, Vol. III, Annex 86. See also Caribbean Community
(CARICOM), Statement: Thirtieth Regular Meeting of Heads of Government, Guyana (July
2009). MG, Vol. III, Annex 75.
140
Letter from the Minister of the People’s Power for External Relations of the Bolivarian
Republic of Venezuela to the Minister of Foreign Affairs of the Republic of Guyana (29 Dec.
2014). MG, Vol. III, Annex 87.
63
Good Offices Process under the Geneva Agreement, the U.N. Charter, and
the authority of the Secretary-General:
“international law, in particularly [sic] the Geneva Agreement
signed by our two nations on 17
February 1966 in
accordance with the Charter of the United Nations, has
authority over this territorial dispute….the Geneva Agreement
continues to be implemented by the Secretary General of the
United Nations through his high representatives who exercise
th
the Good Offices that derive from the aforementioned
141
2.79 Notwithstanding Venezuela’s invocation of international law and the
U.N. Charter, it continued to engage in actions that violated Guyana’s
sovereignty and territorial integrity. Notably, in May 2015, Venezuela issued
a Decree asserting Venezuela’s sovereignty and sovereign rights over
Guyana’s entire maritime area adjacent to the Essequibo coast, and
authorising its navy to enforce jurisdiction.
Agreement…”
142
141
Letter from the Minister of the People’s Power for External Relations of the Bolivarian
Republic of Venezuela to the Minister of Foreign Affairs of the Republic of Guyana (19 June
2015). MG, Vol. III, Annex 95.
142
Bolivarian Republic of Venezuela, Decree No. 1.787 (26 May 2015), published in The
Official Gazette of the Bolivarian Republic of Venezuela (27 May 2015). MG, Vol. III,
Annex 89. This was condemned by Guyana (see e.g. Letter from the Minister of Foreign
Affairs of the Cooperative Republic of Guyana to the Secretary-General of the United
Nations (8 June 2015). MG, Vol. III, Annex 90 and Caribbean Community (CARICOM),
Statement: Thirtieth Regular Meeting of Heads of Government, Guyana (July 2009). MG,
Vol. III, Annex 75. An amended Decree (No. 1859) was subsequently issued in July 2015.
“New Venezuelan decree doesn’t remove old claims – Granger”, Guyana Times (9 July
2015). MG, Vol. III, Annex 97.
64
2.80 On 9 July 2015, Venezuelan President Nicolas Maduro wrote to the
Secretary-General calling for the appointment of a new Personal
Representative and the resumption of the Good Offices Process:
143
“Since the appointment of a Good Officer is an appropriate
method for advancing towards a peaceful settlement of the
territorial dispute, as provided in Article IV.2 of the Geneva
Agreement…. [and] since the method of the good officer has
not been exhausted, the appropriate course of action is to urge
the Secretary-General of the United Nations to exercise the
jurisdiction invested in him by the parties in the Geneva
Agreement and nominate a new Good Officer …”
2.81 On 29 September 2015, President Granger of Guyana expressed to the
U.N. General Assembly Guyana’s view that, after twenty-five years of
failure, the Good Offices Process was now exhausted, and that it was time to
choose a new means of settlement:
144
“From the beginning of Guyana’s independence … Venezuela
has resorted to various stratagems to deprive us of our
territory… Venezuela – more than four times the size of
Guyana, with armed forces that are more than 40 times the
size of our defence force – mindful of its superior wealth and
military strength, but unmindful of its obligations as a
Member of the United Nations, Union of South American
nations and the Organisation of American States, has pursued
a path of intimidation and aggression… We thank the United
Nations and the Secretary-General for appointing various
143
Letter from the President of the Bolivarian Republic of Venezuela to the SecretaryGeneral
of
United
Nations
(9
July
2015).
MG,
Vol.
III,
Annex
98.
144
Address of the President of the Republic of Guyana to the U.N. General Assembly, 70th
Session, U.N. Doc. A/70/PV.16 (29 Sept. 2015), pp. 3-4. MG, Vol. III, Annex 99. See also
U.N. General Assembly, 37th Session, Agenda item 9, U.N. Doc. A/37/PV.16 (4 Oct. 1982),
para. 281 (“By its behaviour since 1966 Venezuela has created not only an image but the
reality of an aggressor country”). MG, Vol. III, Annex 57.
65
officials during the past 25 years to use their good offices to
help to resolve this controversy. We feel, however, that the
process has now been exhausted. Guyana does not want this
obnoxious territorial claim to obscure our country’s prospects
for peace and obstruct its potential growth for the next 50
years. We need a permanent solution if we are to avoid a fate
of perpetual peril and penury, and we seek a juridical
settlement to the controversy… The United Nations remains
our best hope and prospect for peace, the best assurance of
security for small States.”
2. U.N. Secretary-General’s Consultations with the Parties: 2015-16
145
2.82 Secretary-General Ban Ki-moon held a meeting with the Presidents of
Guyana and Venezuela at the 70
U.N. General Assembly in September
2015.
th
146
Later that year, he presented a proposal entitled “The Way
Forward”, for progressing towards a settlement of the controversy.
In
accordance with that proposal, there were extensive consultations and
meetings at the highest levels between the parties and the U.N. SecretaryGeneral’s
Chef
de
Cabinet.
147
148
145
See further Republic of Guyana, Ministry of Foreign Affairs, Press Release (17 Feb.
2018) (noting “The Mixed Commission ended in 1970. For 47 years after, Venezuela
harassed Guyana’s development, filibustered on settlement and steadily stepped up its
militarism – territorially and at sea”). MG, Vol. IV, Annex 129.
146
As noted by UNSG Ban Ki-moon in U.N. Secretary-General, Note to Correspondents:
The Controversy between Guyana and Venezuela (16 Dec. 2016). MG, Vol. IV, Annex 111.
147
Letter from Chef de Cabinet of the United Nations to the President of Guyana (12 Nov.
2015). MG, Vol. IV, Annex 100.
148
Letter from the Minster of Foreign Affairs of the Cooperative Republic of Guyana to the
Secretary-General of the United Nations (9 Nov. 2016). MG, Vol. IV, Annex 109. For
example, in March 2016 meetings were held with the parties in Georgetown and Caracas,
respectively, to attempt to arrive at an agreement (See Letter from the President of the
Cooperative Republic of Guyana to the Secretary-General of the United Nations (26 Apr.
2016). MG, Vol. IV, Annex 103.
66
2.83 During this period, Venezuela’s actions continued to reflect a pattern
of hostility against Guyana. On 4 February 2016, around the time of the
fiftieth anniversary of both the Geneva Agreement and Guyana’s
independence, the Foreign Minister of Venezuela made a statement at the
U.N. purporting to “ratif[y] its rights over the Essequibo”.
On 30 May
2016, a team of three Guyanese officials monitoring activities in the
Essequibo region came under gunfire from the Venezuelan armed forces.
149
150
2.84 On 26 April 2016, President Granger wrote to the Secretary-General
expressing concern that Venezuela “evidently, is unwilling to accept any
effective procedure for settlement of the controversy”, and that “Guyana’s
security, development and well-being have been impaired”. He urged that the
Secretary-General “in the exercise of your authority under Article IV of the
Geneva Agreement inform the parties of your choice of the procedure leading
to the final and binding settlement of the controversy by the International
Court of Justice”.
151
In his statement before the U.N. General Assembly in
September 2016, President Granger confirmed that:
152
149
This was referred to by Hon. Carl Greenidge, Vice President and Minister of Foreign
Affairs, in his statement before the National Assembly in February 2016. Government of the
Cooperative Republic of Guyana, Proceedings and Debates of the National Assembly of the
First Session (2015-2016) of the Eleventh Parliament of Guyana under the Co-operative
Republic of Guyana held in the Parliament Chamber, Public Buildings, Brickdam,
Georgetown (11 Feb. 2016). MG, Vol. IV, Annex 102; Statement of the Minster of Foreign
Affairs of the Cooperative Republic of Guyana to the National Assembly (11 Feb. 2016).
MG, Vol. IV, Annex 101.
150
Note Verbale from the Ministry of Foreign Affairs of the Cooperative Republic of Guyana
to the Ministry of People’s Power for External Relations of the Bolivarian Republic of
Venezuela, No. 1075/2016 (1 June 2016). MG, Vol. IV, Annex 104.
151
Letter from the President of the Cooperative Republic of Guyana to the Secretary-General
of the United Nations (26 Apr. 2016). MG, Vol. IV, Annex 103. See also Letter from the
67
“Since my address last year, Venezuela has used every means
to stall, as it has intensified its aggression against Guyana and
thwarted all the Secretary-General’s efforts to pursue a way
forward, at least in terms of a process that would lead to a
final resolution of the controversy. Guyana stands ready to
have the International Court of Justice reach a final
determination on the matter. We will work resolutely with the
Secretary-General in his final months of office… In the
Geneva Agreement of 1966, Venezuela agreed that the
Secretary-General would determine the means of settlement of
this controversy, including by judicial settlement.”
3. U.N. Secretary-General’s Decision to Continue the Good Offices
Process for One Final Year: 15 December 2016
2.85 On 31 October 2016, Secretary-General Ban Ki-moon advised the
parties that he was not convinced that he should appoint a new Personal
Representative for the continuation of the Good Offices Process; instead, he
reported, he intended to take stock of the progress achieved in the resolution
of the controversy.
153
2.86 In its reply dated 9 November 2016, Guyana noted that it had “made
every effort to give the good offices process a final opportunity” but
explained that “at this stage, five decades since the Geneva Agreement was
Vice President and Minister of Foreign Affairs of the Cooperative Republic of Guyana to the
Secretary-General of the United Nations (3 June 2016) (reiterating that recourse to the Court
“is within your power under the 1966 Geneva Agreement”). MG, Vol. IV, Annex 105.
152
Address of the President of the Republic of Guyana to the U.N. General Assembly, 71st
Session, U.N. Doc A/71/PV.8 (20 Sept. 2016), p. 24. MG, Vol. IV, Annex 106.
153
As recorded in the Letter from the Minster of Foreign Affairs of the Cooperative Republic
of Guyana to the Secretary-General of the United Nations (9 Nov. 2016). MG, Vol. IV,
Annex 109.
68
adopted, recourse to the Court offers the only solution that is compatible with
Article IV”.
154
2.87 Commenting on an assertion made the previous month by the
President of Venezuela– that the Geneva Agreement “exclude[s] a settlement
in a legal forum” – Guyana explained that this assertion was not consistent
with the express powers conferred upon the Secretary-General by Article IV,
and contradicted Venezuela’s own position during and after negotiation of
the Geneva Agreement, including in the First Interim Report of the Mixed
Commission (dated 30 December 1996) in which the parties agreed that “the
juridical examination of the question would if necessary be proceeded with,
in time, by some international tribunal in accordance with article IV of the
Geneva Agreement”.
155
2.88 Referring to another Venezuelan statement the previous month
accusing Guyana of “aggression” in conjunction with “imperial forces”, and
recent Venezuelan military incursions on its territory, Guyana further
expressed its concern over a “situation of significant and alarming
deterioration”.
156
It stated that “without a clear signal that a final and binding
decision will soon resolve this controversy, there is a serious risk of
destabilization in the region”, and that “a referral to the Court would have the
effect of calming the situation”.
154
Ibid.
155
Ibid; United Kingdom, Ministry of External Affairs, First Interim Report of the Mixed
Commission (30 Dec. 1966), p. 4. MG, Vol. II, Annex 41.
156
Letter from the Minster of Foreign Affairs of the Cooperative Republic of Guyana to the
Secretary-General of the United Nations (9 Nov. 2016). MG, Vol. IV, Annex 109.
69
2.89 An official Venezuelan communiqué issued that same month
(November 2016) reiterated Venezuela’s position that the Geneva Agreement
is “the existing legal instrument deposited legally in the United Nations
Organisation, and which governs this territorial controversy as the law
between the Parties”.
157
2.90 On 15 December 2016 – thirty-three years after the parties had
referred the decision on the means of settlement to Secretary-General Perez
de Cuellar in 1983 – Secretary-General Ban Ki-moon decided that, for one
more year the means of settlement of the controversy shall be the Good
Offices Process; and that, if that Process fails to achieve “significant
progress” toward a resolution of the controversy by the end of 2017, the next
means of settlement shall be the International Court of Justice. His statement
read as follows:
“…The Geneva Agreement was signed with the aim of
amicably resolving the controversy that had arisen as a result
of the Venezuelan contention that the Arbitral Award of 1899
about the frontier between British Guiana and Venezuela is
null and void. The 1966 Geneva Agreement confers on the
Secretary-General of the United Nations the power to choose
means of settlement of the controversy from among those that
are contemplated in Article 33 of the United Nations
Charter… the Good Offices Process will continue for one final
year, with a new PRSG[
] with a strengthened mandate of
mediation who will be appointed by the Secretary-General
designate shortly after he takes office.
158
157
Ministry of the People’s Power for External Relations of the Bolivarian Republic of
Venezuela, Communiqué (12 Nov. 2016). MG, Vol. IV, Annex 110.
158
I.e. Personal Representative of the Secretary-General.
70
If, by the end of 2017 the Secretary-General concludes that
significant progress has not been made toward arriving at a
full agreement for the solution of the controversy he will
choose the International Court of Justice as the next means of
settlement, unless both parties jointly request that he refrain
from doing so”
2.91 In response, Venezuela “reaffirmed its commitment to a negotiated
resolution of this dispute, and demanded that Guyana comply with the Good
Offices process in good faith, which the UNSG has decided will continue for
one final year, until the end of 2017, with a reinforced mandate of
mediation”.
159
160
Whilst indicating its preference for a process of negotiation,
Venezuela reaffirmed that:
“the Geneva Agreement, which grants to the Secretary
General of the United Nations the power to choose the means
of pacific settlement of disputes within Article 33 of the
United Nations Charter, promotes a practical and friendly
resolution acceptable to both parties through a process of
negotiation”.
161
2.92 Guyana accepted the Secretary-General’s decision, without
qualification. In a letter to the Secretary-General, President Granger “assured
him of Guyana’s commitment to fulfilling the highest expectations of the
decision in respect of both the Good Offices Process in the coming twelvemonth
period
and
recourse
to
the
International
Court
of
Justice
thereafter,
if
159
U.N. Secretary-General, Note to Correspondents: The Controversy between Guyana and
Venezuela (16 Dec. 2016). MG, Vol. IV, Annex 111.
160
Ministry of the People’s Power for External Relations of the Bolivarian Republic of
Venezuela, Press Release: Venezuela celebrates UN decision to continue Good Offices to
resolve dispute with Guyana over the Essequibo (16 Dec. 2016). MG, Vol. IV, Annex 112.
161
Ibid.
71
this becomes necessary”, and thanked the Secretary-General for his role in
“maintaining the peace between nations – large and small”.
162
2.93 President Granger also wrote to President Maduro confirming
Guyana’s “full acceptance of the 15 December 2016 decision of the
Secretary-General of the United Nations on the ‘Way Forward’, pursuant to
the authority conferred upon him by the signatories under Article IV (2) of
the 1966 Geneva Agreement”.
163
2.94 In a statement before Guyana’s Parliament on 20 December 2016,
Guyana’s Vice President and Foreign Minister, Carl Greenidge, further
confirmed this position:
“We have assured the Secretary-General of our acceptance of
his decision and of our commitment to every effort to making
it a success. We had of course lost faith in the ‘good office’
process essentially because of Venezuela’s non-cooperation
with it but we are willing to give it one last try facilitated by
the Secretary-General’s nominee. But of course it is a process
162
Letter from the President of the Cooperative Republic of Guyana to the Secretary-General
of the United Nations (22 Dec. 2016). MG, Vol. IV, Annex 116. See further Government of
Guyana, Statement on the Decision by the United Nations Secretary-General (16 Dec. 2016)
(confirming inter alia “The Government of Guyana accepts the decision of the SecretaryGeneral.
We
stand
committed
to
using
our
best
endeavours
to
fulfill
its
highest
expectations.
The
Government
will
be
writing
formally
to
him
as
well
as
to
the
President
of
Venezuela
to
indicate
our
acceptance
of
this
decision”).
MG,
Vol.
IV,
Annex
113.
163
Letter from the President of the Cooperative Republic of Guyana to the President of the
Bolivarian Republic of Venezuela (21 Dec. 2016) (The letter stated inter alia, “Guyana
assures you of its commitment to fulfilling the highest expectations of the ‘Good Office’
process in the coming twelve-month period in accordance with the decision of the SecretaryGeneral,
to
conclude a
full
settlement
of
the
controversy
and,
should
it
become
necessary,
to
thereafter
resolve
it
by
recourse
to
the
International
Court
of
Justice”).
MG,
Vol.
IV,
Annex
115.
72
that can only produce mutually satisfactory results if
Venezuela cooperates fully to that end. As we say in Guyana
‘one hand can’t clap.’ …. If they do not we will have readied
ourselves for the International Court of Justice”.
4. U.N. Secretary General’s Appointment of Mr. Dag Nylander as Personal
Representative for the Final Year of the Good Offices Process: 2017
164
2.95 On assuming the position of U.N. Secretary-General in 2017, António
Guterres continued the Good Offices Process for a final year, in conformity
with his predecessor’s decision.
165
2.96 On 23 February 2017, he appointed Mr. Dag Nylander of Norway as
the Personal Representative of the Secretary-General on the Border
Controversy Between Guyana and Venezuela.
A jurist and distinguished
diplomat, Mr. Nylander was the First Secretary at the Permanent Mission of
Norway to the U.N. in New York from 2001 to 2004, and the Special Envoy
of the Government of Norway to the Peace Process in Colombia from 2012
to 2016.
166
167
164
“One hand can’t clap’ to resolve border controversy – Greenidge”, i News Guyana (20
Dec. 2016). MG, Vol. IV, Annex 114.
165
Letter from the Secretary-General of the United Nations to the President of the
Cooperative Republic of Guyana (23 Feb. 2017). MG, Vol. IV, Annex 117.
166
By letter dated 1 March 2017, Guyana welcomed Mr. Nylander’s appointment and
reiterated that it would provide full cooperation. Letter from the President of the Cooperative
Republic of Guyana to the Secretary-General of the United Nations (1 Mar. 2017). MG, Vol.
IV, Annex 118.
167
Letter from the Secretary-General of the United Nations to the President of the
Cooperative Republic of Guyana (23 Feb. 2017). MG, Vol. IV, Annex 117.
73
2.97 Mr. Nylander’s terms of reference, issued by the Secretary-General,
noted that pursuant to the Geneva Agreement:
“Guyana and Venezuela have referred to the SecretaryGeneral
the
decision
as
to
the
means
of
settlement
of
the
controversy
that
arose
as
the
result
of
the
Venezuelan
contention
that
the
Arbitral
Award
of
1899
about
the
frontier
between
Venezuela
and
what
is
now
Guyana
is
‘null
and
void’.”
168
2.98 The terms of reference specified that his mandate was to engage
intensively with the Governments of both States, exploring and proposing
options for the solution of the outstanding controversy, and “other relevant
aspects of the bilateral relations between the parties, including maritime,
environmental and cooperation issues”.
169
2.99 In the penultimate paragraph, Mr. Nylander was specifically directed
that in his final Report:
“the mediator will take into account the decision of the
Secretary-General communicated to the parties on 15
December 2016, that he will choose the International Court of
Justice as the next means of settlement of the controversy if
significant progress is not achieved by the end of 2017.”
168
Ibid.
169
Ibid.
74
5. No Significant Progress Made in 2017
2.100 Consistent with Mr. Nylander’s terms of reference, meetings and
exchanges were held with the parties during 2017.
Among them were three
formal bilateral meetings at Greentree Estate in New York, held on 28-29
October, 19-20 November and 29-30 November. The Foreign Ministers of
Guyana and Venezuela participated in these meetings with high-level
delegations. Nevertheless, the Secretary-General concluded that there had
been no significant progress toward a solution of the controversy.
170
2.101 During this period, notwithstanding the talks, Venezuela continued to
threaten Guyana militarily. On 20 September 2017, President Granger
expressed Guyana’s concerns before the General Assembly:
“We depend on our territorial and maritime resources for our
country’s development and for propelling our people out of
poverty. After 51 years of Guyana’s independence, the
Venezuelan claim persists …
This is a warning to the world, through the Assembly, that
peace will be jeopardized in our region if justice does not
prevail, not only within Venezuela, but also with regard to its
border controversy with Guyana. Four Secretaries-General
have been seized of the Venezuelans’ claim. The choice has
become one between a just and peaceful settlement in
accordance with international law, and a Venezuelan posture
of attrition that is increasingly blustering and militaristic. In
170
For example, by letter dated 11 April 2017, President Granger informed the SecretaryGeneral
that
Guyana
was
preparing
to
receive
Mr.
Nylander
for
discussions
“later
this
week.”
President
Granger
stated,
“I
wish
to
reiterate
my
Government’s
commitment
to
cooperate
with
Ambassador
Nylander
in
the
execution
of
his
mandate.”
Letter
from the
President of the Cooperative Republic of Guyana to the Secretary-General of the United
Nations (11 Apr. 2017). MG, Vol. IV, Annex 119.
75
this matter, protraction is the enemy of resolution and the ally
of sustained conflict.
…
Guyana has been working assiduously with the SecretaryGeneral’s
personal
representative
and
looks
to
the
international
community
to
ensure
that
Venezuela
is
not
allowed
to
thwart
the
process
of
judicial
settlement,
which
is
the
clear
and
agreed
path
to
peace
and
justice”.
6. Decision of U.N. Secretary-General Antonio Guterres to Choose the
Court as the Next Means of Settlement: 30 January 2018
171
2.102 On 30 January 2018, having received the final report of his Personal
Representative on the Good Offices Process during 2017, U.N. SecretaryGeneral
Guterres
issued a
public
statement.
In it he recorded his
conclusion that the Process had failed to achieve progress toward a resolution
of the controversy, and his decision that the next means of settlement under
Article IV(2) of the Geneva Agreement and Article 33 of the U.N. Charter
172
171
Address of the President of the Republic of Guyana to the U.N. General Assembly, 72nd
Session, U.N. Doc A/72/PV.7 (20 Sept. 2017). MG, Vol. IV, Annex 123. See further
Commonwealth Secretariat, Commonwealth Statement on Guyana (14 Feb. 2018) (which
noted “The Secretary-General recalled that at the September 2017 meeting of the
Commonwealth Ministerial Group on Guyana, Ministers noted Guyana’s concerns that this
longstanding controversy has impacted on the country’s economic development”). MG, Vol.
IV, Annex 128.
172
U.N. Secretary-General, Statement attributable to the Spokesman for the SecretaryGeneral on
the
border
controversy
between
Guyana
and
Venezuela
(30
Jan.
2018).
MG,
Vol.
IV,
Annex
126.
76
shall be judicial settlement by the ICJ. The U.N. Secretary-General wrote
letters to both parties to the same effect.
173
2.103 In his public statement and letters to the parties, the Secretary-General
observed that, under Article IV(2) of the Agreement, the parties had
“conferred upon the Secretary-General the power and responsibility to
choose a means of peaceful settlement from amongst those contemplated in
Article 33 of the Charter of the United Nations”, and that “if the means so
chosen does not lead to a solution of the controversy, the Secretary-General
is to choose another means of settlement”.
174
2.104 The Secretary-General then recalled the decision on the means for
settlement of the controversy made by his predecessor, Ban Ki-moon, at the
end of 2016:
“Former Secretary-General Ban Ki-moon communicated to
the parties on 15 December 2016 a framework for the
resolution of the border controversy based on his conclusions
on what would constitute the most appropriate next steps.
Notably, he concluded that the Good Offices Process, which
had been conducted since 1990, would continue for one final
year, until the end of 2017, with a strengthened mandate of
mediation. He also reached the conclusion that if, by the end
of 2017, his successor, Secretary-General António Guterres,
173
Letter from Secretary-General of the United Nations to the President of the Republic of
Guyana (30 Jan. 2018), noting that “an identical letter” had been sent to Venezuela. AG,
Annex 7.
174
U.N. Secretary-General, Statement attributable to the Spokesman for the SecretaryGeneral on
the
border
controversy
between
Guyana
and
Venezuela
(30
Jan.
2018).
MG,
Vol.
IV,
Annex
126.
77
concluded that significant progress had not been made towards
arriving at a full agreement for the solution of the controversy,
he would choose the International Court of Justice as the next
means of settlement, unless the Governments of Guyana and
Venezuela jointly requested that he refrain from doing so.”
2.105 Consistent with his predecessor’s decision, the Secretary-General
further recalled that he had appointed Mr. Nylander as his Personal
Representative, and that throughout 2017, he had “engaged in intensive highlevel
efforts
to
seek
a
negotiated
settlement
to
the
controversy”.
175
176
2.106 The Secretary-General then announced his decision on the next means
of settlement of the controversy:
“The Secretary-General has carefully analysed developments
in 2017 in the good offices process and has concluded that
significant progress has not been made toward arriving at a
full agreement for the solution of the controversy.
Accordingly, the Secretary-General has fulfilled the
responsibility that has fallen to him within the framework set
by his predecessor in December 2016, and has chosen the
International Court of Justice as the means to be used for the
solution of the controversy.”
2.107 Thus, some fifty-two years after the signing of the Geneva Agreement
in 1966, the U.N. Secretary-General decided, pursuant to his authority under
Article IV(2), that the ICJ shall be the means for settlement of the
controversy arising from Venezuela’s contention that the Arbitral Award of
177
175
Ibid.
176
Ibid.
177
Ibid.
78
1899 is “null and void”. That decision was based squarely on the agreement
of both parties, embedded in the 1966 Geneva Agreement.
2.108 As set out in the next Chapter, by authorising the Secretary-General to
decide on the means of settlement the parties mutually consented to the
Court’s jurisdiction to resolve the controversy, in the event of his decision
that the means of settlement should be the ICJ. When he so decided, their
consent to the Court’s jurisdiction became binding and irrevocable.
79
80
CHAPTER III
THE COURT HAS JURISDICTION OVER GUYANA’S CLAIMS
I. Introduction
3.1 Jurisdiction in this case is based on Article 36(1) of the Court’s Statute
pursuant to the mutual consent of Guyana and Venezuela to have this
controversy resolved by the Court. Their consent is expressed in Article IV(2)
of the 1966 Geneva Agreement.
3.2 Article 36(1) of the Court’s Statute provides:
“The jurisdiction of the Court comprises all cases which the
parties refer to it and all matters specially provided for in the
Charter of the United Nations or in treaties and conventions in
force.”
178
3.3
In the present case, the treaty relied upon by Guyana is the Geneva
Agreement. It has been in force between the parties at all material times and
continues to be in force today.
179
Both parties have always recognised this and
180
recently confirmed it.
178
Statute of the International Court of Justice, Art. 36(1).
179
See infra paras. 3.8, 3.74.
180
Government of the Bolivarian Republic of Venezuela, Communiqué: The Bolivarian
Republic of Venezuela pronounces on the territorial dispute with the Cooperative Republic of
Guyana (31 Jan. 2018), p. 1 (“Venezuela ratifies the full validity of the Geneva Agreement of
February 17, 1966, signed and ratified between our country and the United Kingdom of Great
Britain and Northern Ireland, in consultation with the Government of British Guiana, an
international treaty that governs as Law the Territorial Controversy between the parties,
81
3.4 The object and purpose of the Geneva Agreement is set forth in its
title: it is an “Agreement to resolve the controversy over the frontier between
Venezuela and British Guiana”. The “controversy” to be resolved is defined in
Article I as “the controversy between Venezuela and the United Kingdom
which has arisen as the result of the Venezuelan contention that the Arbitral
Award of 1899 about the frontier between British Guiana and Venezuela is
null and void.” The “controversy” thus encompasses not only Venezuela’s
belated claim that the 1899 Arbitral Award is “null and void”, but also any
dispute “which has arisen as a result of the Venezuelan contention”.
181
3.5 The Geneva Agreement did not purport, in itself, to resolve the
controversy. Rather, its purpose was to commit the parties to a detailed,
failsafe procedure to assure that a definitive and binding resolution would be
achieved. That procedure is set out in Articles I through IV.
3.6 As described in Chapter 2, Article I provides for direct negotiations by
means of a Mixed Commission consisting of the parties’ appointed
representatives, while Articles II and III elaborate on the establishment and
functioning of that Commission. Article IV(1) provides that, in case the Mixed
Commission fails to settle the controversy within four years, the parties shall
attempt to agree on another means of settlement of the controversy, from
among those listed in Article 33 of the U.N. Charter. Article IV(2) then
validly recognized and registered before the UN, the only way to the final solution of this
opprobrious heritage of British colonialism.”). MG, Vol. IV, Annex 127.
181
Geneva Agreement, Art. I (emphasis added). AG, Annex 4.
82
provides that, if they are unable to agree upon the means of settlement, they
will attempt to agree upon an appropriate international organ to choose the
means; and, finally, to assure that the controversy is not left unresolved,
Article IV(2) further provides that if the parties are unable to agree upon an
international organ, the decision on the means of settlement to be pursued shall
be made by the U.N. Secretary-General. To further assure a complete and final
settlement, Article IV(2) empowers the Secretary-General, in case the means
he has chosen fail to resolve the controversy, to continue choosing other
means set out in Article 33 until a full settlement is achieved.
3.7 These procedures have been scrupulously followed by the parties and
by the Secretary-General. Following the failure of the Mixed Commission to
settle the controversy, and the inability of the parties to reach agreement on the
means of settlement or on an international organ to make that decision, the
choice of means fell to the Secretary-General under Article IV(2). As
recounted in Chapter 2, for twenty-seven years, between 1990 and 2017,
successive Secretaries-General exercised their authority under that Article by
choosing “good offices” as the means of dispute settlement, and the parties
duly engaged in a “good offices” process conducted by the SecretaryGeneral’s
Special
Representative.
But,
after
more
than a
quarter
century
of
fruitless
effort,
this
means
of
settlement
had
failed
to
yield
any
substantial
progress
toward
an
agreement.
Accordingly,
on
30
January 2018,
invoking
his
authority
under
Article
IV(2),
Secretary-General
António
Guterres
decided
that
the
“good
offices”
process
had
failed,
and
chose
adjudication
by
the
83
International Court of Justice as the next means of settlement of the
controversy.
182
3.8 Guyana regrets that, notwithstanding the fact that Venezuela
recognises that the Geneva Agreement is still in force, and that the SecretaryGeneral
is
empowered
by
Article
IV(2)
to
choose
the
means
of
settlement
until
a
definitive
resolution
of
the
controversy
is
achieved,
the
Respondent
State
has
indicated
that it
will
not
participate
in
these
proceedings.
However, this
does not deprive the Court of its jurisdiction, nor does it diminish in any way
the binding force of the Court’s decisions in this case. Guyana is conscious
that if Venezuela does not avail itself of its procedural rights as a party to this
case,
183
184
the Court has a duty, pursuant to Article 53 of its Statute, to assess
issues of jurisdiction proprio motu.
In writing this Memorial, Guyana is
conscious of its obligation to assist the Court in this task.
185
3.9 As set out in the remainder of this Chapter, Guyana considers that the
Court’s jurisdiction is firmly established over its claims – all of which, as set
forth in the Application, have “arisen as the result of the Venezuelan
contention that the Arbitral Award of 1899 about the frontier between British
182
Letter from Secretary-General of the United Nations to the President of the Republic of
Guyana (30 Jan. 2018). AG, Annex 7. See also supra paras. 2.102-2.107.
183
Letter from the President of the Bolivarian Republic of Venezuela to the President of the
International Court of Justice (18 June 2018). MG, Vol. IV, Annex 132.
184
The Courts’ Order of 19 June 2018 which preserves Venezuela’s right to appear.
185
Aegean Sea Continental Shelf (Greece v. Turkey), Jurisdiction, Judgment, I.C.J. Reports
1978, para. 15; Fisheries Jurisdiction (United Kingdom v. Iceland), Merits, Judgment, I.C.J.
Reports 1974, para. 6.
84
Guiana and Venezuela is null and void”
– and that all procedural and
jurisdictional requirements have been satisfied. However, mindful of the
additional burden Venezuela’s non-appearance might impose on the Court, in
this Chapter Guyana will consider and respond to the jurisdictional objections
it believes Venezuela might have raised had it decided to take part in these
proceedings. In so doing, Guyana will take into account, especially, the
official statements Venezuela has made in questioning the Court’s jurisdiction
over this dispute.
186
3.10 In Section II, immediately below, Guyana underscores that the object
and purpose of the Geneva Agreement – reflected primarily in its text but also
in the circumstances surrounding its adoption, as well as the contemporaneous
intentions of the parties and their subsequent conduct – was to assure a
complete and definitive resolution to the “controversy… which has arisen as
the result of the Venezuelan contention that the Arbitral Award of 1899 about
the frontier between British Guiana and Venezuela is null and void.”
The
procedures adopted in Articles I-IV were specifically intended to lead to a full
and final settlement of this controversy, and to avoid a stalemate or permanent
entrapment in endless negotiations.
187
3.11 Section III focuses specifically on Article IV(2) of the Geneva
Agreement and its proper interpretation. It comprehensively reviews the text,
and the intentions of the parties as reflected both in the negotiating history that
led to their adoption of this key provision and their subsequent conduct
186
Geneva Agreement, Art. I. AG, Annex 4.
187
Ibid.
85
pursuant to it. In Guyana’s view, the record conclusively demonstrates that the
Secretary-General was fully authorized to decide on the means of settlement to
be pursued by the parties, and to freely choose from among those means
mentioned in Article 33 of the U.N. Charter, including judicial settlement by
the ICJ; and that the parties are bound by his decision. In setting out its case on
the meaning and consequences of Article IV(2), Guyana refutes the various
objections Venezuela has made, publicly and in correspondence with the
Court, to the Secretary-General’s decision and his authority to make it.
3.12 Finally, in Section IV, Guyana demonstrates that, based on the Geneva
Agreement, the referral to and decision by the Secretary-General, and
Guyana’s seisin of the Court by its Application of 29 March 2018: (i) the
Court has jurisdiction in this case; and (ii) the scope of the Court’s jurisdiction
rationae materiae extends to all of the claims asserted in Guyana’s
Application.
II. Object and Purpose of the Geneva Agreement
3.13 As set forth in Chapter 2, in February 1962, after more than sixty years
of accepting the 1899 Arbitral Award as legally valid and binding, Venezuela
abruptly changed its position. On that date it formally asserted, for the first
time, that the frontier was “demarcated arbitrarily” and therefore the Award
was null and void.
188
As the United Kingdom began preparing British Guiana
188
Letter from the Permanent Representative of Venezuela to the United Nations to the
Secretary-General of the United Nations (14 Feb. 1962), reprinted in U.N. General Assembly,
Fourth Committee, 16th Session, Information from Non-Self-Governing Territories
transmitted under Article 73 of the Charter, U.N. Doc A/C.4/536 (15 Feb. 1962), paras. 16-17.
86
for independence, Venezuela threatened not to recognise the new State of
Guyana, or to respect its boundaries, unless the United Kingdom agreed to
repudiate the 1899 Arbitral Award and the 1905 Agreement by which the Joint
UK-Venezuelan Commission had identified, demarcated and permanently
fixed the boundary established by the Award.
189
3.14 Negotiations between Venezuela and the United Kingdom, including
representatives of British Guiana, led to a meeting of their senior officials at
the Palace of the United Nations in Geneva on 16 and 17 February 1966.
The respective delegations were led by the Venezuelan Minister for Foreign
Affairs (Dr. Ignacio Iribarren Borges), the British Secretary of State for
Foreign and Commonwealth Affairs (Michael Stewart), and the Prime
Minister of British Guiana (L. Forbes Burnham).
190
MG, Vol. II, Annex 17. See also supra paras. 1.29, 2.5-2.6. Telegram from the Ministry of
Foreign Affairs of the Bolivarian Republic of Venezuela to the Secretary-General of the
United Nations, reprinted in U.N. General Assembly, 17th Session, Question of Boundaries
Between Venezuela and the Territory of British Guiana, U.N. Doc A/5168 and Add.l (18 Aug.
1962). MG, Vol. II, Annex 23.
189
See Letter from the Permanent Representative of Venezuela to the United Nations to the
Secretary-General of the United Nations (14 Feb. 1962), reprinted in U.N. General Assembly,
Fourth Committee, 16th Session, Information from Non-Self-Governing Territories
transmitted under Article 73 of the Charter, U.N. Doc A/C.4/536 (15 Feb. 1962). MG, Vol. II,
Annex 17; Statement made by the Representative of Venezuela at the 1302nd meeting of the
Fourth Committee on 22 February 1962, reprinted in U.N. General Assembly, Fourth
Committee, 16th Session, Information from Non-Self-Governing Territories transmitted under
Article 73 of the Charter, U.N. Doc A/C.4/540 (22 Feb. 1962). MG, Vol. II, Annex 19. See
also supra para. 2.8.
190
Government of the United Kingdom, Record of Discussions between the Foreign
Secretary, the Venezuelan Minister for Foreign Affairs and the Premier of British Guiana at
the Foreign Office on 9 December, 1965, No. AV 1081/326 (9 Dec. 1965), p. 7. MG, Vol. II,
Annex 28.
87
3.15 The Geneva Agreement emerged from those negotiations. Its object
and purpose is evident from its title: “Agreement to resolve the controversy
between Venezuela and the United Kingdom of Great Britain and Northern
Ireland over the frontier between Venezuela and British Guiana.”
191
3.16 The Oxford English Dictionary defines the verb “resolve” as “to find a
solution to a problem.”
192
Likewise, the use of the verb “resolver” in Spanish
evidences that the purpose of the Agreement is to provide for an assured
means of settlement of a controversy. The Diccionario de la Lengua Española
defines “resolver” as “[s]olucionar un problema, una duda, una dificultad o
algo que los entraña” (“To solve a problem, doubt or difficulty, or something
that entails them”).
193
3.17 The last preambular paragraph of the Geneva Agreement confirms that
it was concluded “to resolve the present controversy”, that is, as specified in
the title of the Agreement, the “controversy … over the frontier between
Venezuela and British Guiana”.
The Agreement is aimed at assuring a final
resolution of this controversy. To that end, it provides for a successive set of
procedures, including diplomatic negotiations by means of a Mixed
Commission, as well as resort to binding and compulsory mechanisms in case
the negotiations or any other means of settlement that are adopted do not
194
191
Geneva Agreement (emphasis added). AG, Annex 4.
192
Oxford English Dictionary (7th ed., 2012), “Resolve” (emphasis added). MG, Vol. III,
Annex 77.
193
Diccionario de la Lengua Española (23d ed., 2014), “Resolver” (emphasis added). MG,
Vol. III, Annex 79.
194
Geneva Agreement (emphasis added). AG, Annex 4.
88
produce a final settlement. This is evident from Article IV(2), which provides
that the “appropriate international organ” and/or the U.N. Secretary-General
shall choose from among the means of dispute settlement in Article 33 of the
U.N. Charter, which include arbitration and judicial settlement, “until the
controversy has been resolved or until all the means of peaceful settlement
there contemplated have been exhausted.”
195
3.18 In their Joint Statement issued upon the conclusion of the Geneva
Agreement, the parties affirmed that:
“As a consequence of the deliberations an agreement was
reached whose stipulations will enable a definitive solution for
these problems. The Governments have agreed to submit the
text of the agreement to the Secretary General of the United
Nations. The agreement has been welcomed by the Ministers of
the three countries since it provides the means to resolve the
dispute which was harming relations between two neighbours
and contains a basis of good will for future cooperation
between Venezuela and British Guiana.”
196
3.19 Venezuelan representatives promptly confirmed their understanding
that the object and purpose of the Geneva Agreement was to establish a means
for assuring a definitive resolution of the dispute over the validity of the 1899
Arbitral Award and the controversy arising from Venezuela’s contention of
invalidity. One month after the conclusion of the Agreement, on 17 March
195
Ibid., Art. IV(2).
196
Minister of Foreign Affairs of Venezuela, Minister of Foreign Affairs of the United
Kingdom, and Prime Minister of British Guiana, Joint Statement on the Ministerial
Conversations from Geneva on 16 and 17 February 1966 (17 Feb. 1966) reprinted in
Republic of Venezuela, Ministry of Foreign Affairs, Claim of Guyana Esequiba: Documents
1962-1981 (1981) (emphasis added). MG, Vol. II, Annex 31.
89
1966, the Foreign Minister of Venezuela, who negotiated the Agreement on
behalf of Venezuela, declared to the Venezuelan Congress that: “[t]he most
important point of the Geneva Agreement is the adoption of a procedure in
case the negotiations carried out by the Mixed Commission cannot solve the
controversy.”
197
Later that year, the Acting Permanent Representative of
Venezuela to the United Nations told the U.N. Special Committee on
Decolonization (the Committee of 24) that it was Venezuela’s position that
“the United Kingdom agreed at Geneva, with Venezuela, that within the
means provided for in the Charter for the peaceful settlement of disputes every
effort shall be brought to bear until a final solution of the problem has been
found.”
198
3.20 It follows from the text of the Geneva Agreement, and the intentions of
the parties manifested in their contemporaneous statements, that the object and
purpose of the Agreement was to provide a fail-proof mechanism by which the
controversy would definitively be resolved. The procedure set out in the
Agreement is self-contained within its own limits, so as to preclude endless reopening
of
the
matter
by
reference
to
other
arrangements,
and
avoid
interminable
and
fruitless
negotiations.
Its
genius
is
not
to
allow
any
one
of
the
parties
unilaterally
to
block
the
resolution
of
the
controversy.
To
the
contrary,
it
mandates
that,
failing
the
other
prescribed
procedures,
the
Secretary-General
of
the
United
Nations
shall
decide
on
the
means
of
settlement
for
the
parties
to
pursue
until
a
definitive
resolution
of
the
controversy
is
achieved.
The
means
197
Statement by Dr. Borges, Minister of Foreign Affairs of Venezuela (17 Mar. 1966), p. 16.
(emphasis added). MG, Vol. II, Annex 33.
198
Letter from F. Brown, U.K. Mission to the United Nations, to R. du Boulay, U.K. Foreign
Office, No. 1082/77/66 (21 Mar. 1966), p. 3 (emphasis added). MG, Vol. II, Annex 34.
90
from which the Secretary-General is empowered to choose consist of all those
listed in Article 33 of the U.N. Charter, which include judicial settlement.
III. Interpretation of Article IV(2) of the Geneva Agreement
3.21 The Geneva Agreement is a treaty, subject to and governed by the
generally applicable rules of international law. In interpreting Article IV(2), it
is therefore appropriate to “apply the rules on interpretation to be found in
Articles 31 and 32 of the Vienna Convention, which [the Court] has
consistently considered to be reflective of customary international law”.
As
the Court recalled in the Maritime Delimitation in the Indian Ocean (Somalia
v. Kenya) case:
199
“Article 31, paragraph 1, of the Vienna Convention provides
that ‘[a] treaty shall be interpreted in good faith in accordance
with the ordinary meaning to be given to the terms of the treaty
in their context and in the light of its object and purpose’. These
elements of interpretation ordinary meaning, context and
object and purpose are to be considered as a whole.”
200
199
Maritime Delimitation in the Indian Ocean (Somalia v. Kenya), Preliminary Objections,
Judgment, I.C.J. Reports 2017, p. 29, para. 63 (quoting Question of the Delimitation of the
Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles from the
Nicaraguan Coast (Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J. Reports
2016, p. 116, para. 33); Dispute regarding Navigational and Related Rights (Costa Rica v.
Nicaragua), Judgment, I.C.J. Reports 2009, p. 237, para. 47 (referring to Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), pp. 109-110, para.
160 and Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994,
pp. 21-22, para. 41); Oil Platforms (Islamic Republic of Iran v. United States of America),
Preliminary Objection, Judgment, I.C.J. Reports 1996 (II), p. 812, para. 23.
200
Maritime Delimitation in the Indian Ocean (Somalia v. Kenya), Preliminary Objections,
Judgment, I.C.J. Reports 2017, p. 29, para. 64.
91
3.22 Under Article 32 of the Vienna Convention and the Court’s
jurisprudence, recourse may also be had to supplementary means of
interpretation, which include the travaux préparatoires and the circumstances
of the Agreement’s conclusion to confirm the meaning resulting from that
process, or to remove ambiguity or obscurity, or to avoid a manifestly absurd
or unreasonable result.
201
3.23 As indicated in Chapter 2, the Geneva Agreement, in Article I,
established an institutional framework (the Mixed Commission) through
which the parties agreed to hold bilateral negotiations to “seek[] satisfactory
solutions for the practical settlement of the controversy”.
Recognizing,
however, the possibility that negotiations might fail to produce a solution, the
parties made express provision for the settlement of the controversy in the
event the Mixed Commission failed to fully resolve it. Article IV of the
Geneva Agreement provides:
202
“(1) If, within a period of four years from the date of this
Agreement, the Mixed Commission should not have arrived at
a full agreement for the solution of the controversy it shall, in
its final report, refer to the Government of Guyana and the
Government of Venezuela any outstanding questions. Those
Governments shall without delay choose one of the means of
peaceful settlement provided in Article 33 of the Charter of the
United Nations.
(2) If, within three months of receiving the final report [of the
Mixed Commission], the Government of Guyana and the
201
Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 332 (23 May 1969), Art. 32.
MG, Vol. II, Annex 44.
202
Geneva Agreement, Art. I. AG, Annex 4. See supra paras. 2.28-2.29.
92
Government of Venezuela should not have reached agreement
regarding the choice of one of the means of settlement provided
in Article 33 of the Charter of the United Nations, they shall
refer the decision as to the means of settlement to an
appropriate international organ upon which they both agree or,
failing agreement on this point, to the Secretary-General of the
United Nations. If the means so chosen do not lead to a solution
of the controversy, the said organ or, as the case may be, the
Secretary-General of the United Nations shall choose another
of the means stipulated in Article 33 of the Charter of the
United Nations, and so on until the controversy has been
resolved or until all the means of peaceful settlement there
contemplated have been exhausted.”
203
3.24 In his address to Congress on 17 March 1966, one month after the
conclusion of the Geneva Agreement, Venezuela’s Foreign Minister explained
how the text of Article IV came to be adopted at the Geneva Conference:
203
The Spanish version of the Agreement provides:
“(1) Si dentro de un plazo de cuatro años contados a partir de la fecha de este
Acuerdo, la Comisión Mixta no hubiere llegado a un acuerdo completo para la
solución de la controversia, referirá al Gobierno de Venezuela y al Gobierno
de Guayana en su Informe final cualesquiera cuestiones pendientes. Dichos
Gobiernos escogerán sin demora uno de los medios de solución pacífica
previstos en el Artículo 33 de la Carta de las Naciones Unidas.
(2) Si dentro de los tres meses siguientes a la recepción del Informe final el
Gobierno de Venezuela y el Gobierno de Guyana no hubieren llegado a un
acuerdo con respecto a la elección de uno de los medios de solución previstos
en el Artículo 33 de la Carta de las Naciones Unidas, referirán la decisión
sobre los medios de solución a un órgano internacional apropiado que ambos
Gobiernos acuerdem, o de no llegar a un acuerdo sobre este punto, al
Secretario General de las Naciones Unidas. Si los medios así escogidos no
conducen a una solución de la controversia, dicho órgano, o como puede ser el
caso, el Secretario General de las Naciones Unidas, escogerán otro de los
medios estipulados en el Artículo 33 de la Carta de las Naciones Unidas, y así
sucesivamente, hasta que la controversia haya sido resuelta, o hasta que todos
los medios de solución pacífica contemplados en dicho Artículo hayan sido
agotados.”
93
“I will not list each of the points from the discussion that arose
as a result of the British rejection of the first proposal of
Venezuela, which was countered by a proposal that Venezuela
should, in an ‘act of statesmanship and courage’, renounce its
claim. I then formulated a second Venezuelan proposal
whereby over a period of time there could be a joint
administration of the territory claimed by Venezuela, so long as
our sovereignty over the territory was recognized. This
proposal was also rejected. Finally, in an attempt to seek a
respectable solution to this problem I put forward a third
Venezuelan proposal that would lead to the solution for the
borderline issue in three consecutive stages, each with their
respective timeframe, with the requirement that there had to be
an end to the process: a) a Mixed Commission b) Mediation c)
International Arbitration.”
204
3.25 It was this “third Venezuelan proposal,” intended by Venezuela to
“lead to a solution of the borderline issue,” that was accepted by the United
Kingdom at Geneva. It was then embodied in Article IV(2) of the Agreement.
A. THE SETTLEMENT PROCESS IN ARTICLE IV(2)
3.26 Article IV establishes a three-stage dispute settlement process leading
to a final and definitive resolution of the controversy. It was described by the
Venezuelan Foreign Minister as follows:
“1. Governments will try to reach an agreement on the choice
of one of the means to resolve disputes peacefully as foreseen
in Article 33 of the United Nations Charter.
204
Statement by Dr. Borges, Minister of Foreign Affairs of Venezuela (17 Mar. 1966), p. 9.
MG, Vol. II, Annex 33. See also supra para. 2.33. This is consistent with the British account,
see Note Verbale from the Foreign Secretary of the United Kingdom to the U.K. Ambassador
to Venezuela, No. AV 1081/116 (25 Feb. 1966), para. 5. MG, Vol. II, Annex 32.
94
2. Three months after the receipt of the final report of the
Mixed Commission, where the Governments have failed to
choose the means to resolve the controversy peacefully, the
decision on the means of settlement will be referred to an
appropriate international body that both Governments agree on.
3. A lack of agreement over the choice of the international body
which is to chose the means of solution, this function will be
carried out by the Secretary General of the United Nations.”
205
3.27 This three-stage process gives effect to the object and purpose of the
Geneva Agreement by establishing a pathway leading to a definitive resolution
of the controversy. As explained below, that agreed pathway leads to the
International Court of Justice, in the event (i) the parties cannot agree on the
means of settlement or (ii) on which international body should choose those
means, and (iii) it falls to the Secretary-General to choose one of the means
under Article 33 of the U.N. Charter and he chooses judicial settlement.
3.28 First, under Article IV(1), Guyana and Venezuela are given the
opportunity to agree upon one of the means of settlement enumerated in
Article 33 of the Charter. They must agree “without delay” (i.e. within three
months of receiving the final report of the Mixed Commission). As to which
means of settlement may be adopted, Article 33(1) of the Charter provides:
“The parties to any dispute, the continuance of which is likely
to endanger the maintenance of international peace and
security, shall, first of all, seek a solution by negotiation,
enquiry, mediation, conciliation, arbitration, judicial settlement,
205
Statement by Dr. Borges, Minister of Foreign Affairs of Venezuela (17 Mar. 1966), p. 16.
MG, Vol. II, Annex 33.
95
resort to regional agencies or arrangements, or other peaceful
means of their own choice.”
206
3.29 Second, Article IV(2) expressly makes provision in case Guyana and
Venezuela are unable to agree on the means to settle the controversy: in such
circumstance, they are to agree on an “appropriate international organ” to
decide on the means of settlement.
3.30 Third, failing agreement on an “appropriate international organ”,
Article IV(2) provides again for a solution to avoid impasse. To that end, it
vests the U.N. Secretary-General with the power to make “the decision as to
the means of settlement”. In the event the means of settlement chosen by the
Secretary-General does not result in a definitive settlement of the controversy,
Article IV(2) stipulates that he shall continue to choose from among the means
of peaceful settlement in Article 33 of the Charter “until the controversy has
been resolved or until all the means of peaceful settlement there contemplated
have been exhausted.”
207
3.31 Venezuela does not disagree that the Secretary-General is empowered
by Article IV(2) to choose the means of settlement. However, it argues that the
means of settlement named in Article 33 must be applied successively, in the
same order as they are listed in that Article, such that all means that are listed
ahead of judicial settlement must be exhausted before the Secretary-General
206
U.N. Charter, Art. 33(1) (emphasis added).
207
Geneva Agreement, Art. IV(2). AG, Annex 4.
96
may decide upon recourse to the Court. According to Venezuela’s
communiqué of 31 January 2018:
“The Secretary General’s communication goes beyond the
successive nature of the means of peaceful settlement
established by the Geneva Agreement as the established
methodology for reaching an acceptable, practical and
satisfactory solution to the dispute.”
208
3.32 This argument was repeated in a declaration by the Venezuelan
National Assembly of 19 June 2018:
“That the National Assembly, [the] only legitimate power of
the people of Venezuela, in the face of the announcement of the
Secretary-General of the United Nations Antonio Guterres
made on January 30th 2018, in which it is proposed to forward
the dispute between Venezuela and Guyana for the Essequibo
region to the International Court of Justice, in spite of not
having been exhausted all non-jurisdictional means of peaceful
solution foreseen in article 33 of the Charter of the United
Nations, considers that this is a hasty decision that contradicts
the very Geneva Agreement of 1966 which mentions in its
article 1 ‘a practical Arrangement of the controversy’.”
209
3.33 This is an entirely implausible argument. Venezuela’s “successive
nature” interpretation does not accord with the text of Article IV, nor with the
object and purpose of the Geneva Agreement, nor with parties’ practice under
the Agreement. As indicated, Article IV(1) provides that the parties “shall
208
Government of the Bolivarian Republic of Venezuela, Communiqué: The Bolivarian
Republic of Venezuela pronounces on the territorial dispute with the Cooperative Republic of
Guyana (31 Jan. 2018), p. 2 (emphasis added). MG, Vol. IV, Annex 127.
209
Bolivarian Republic of Venezuela, National Assembly, Parliamentary Agreement of
Rejection of the Cooperative Republic of Guyana of Judizializing the Essequibo and Their
Reaffirmation of the Venezuelan Sovereignty on Anacoco Island and the Atlantic Front (19
June 2018), p. 1 (emphasis added). MG, Vol. IV, Annex 133.
97
without delay choose one of the means of peaceful settlement provided in
Article 33 of the Charter of the United Nations.” Article 33 provides a menu of
options from which any one of them may be chosen, not a fixed order of
sequence that requires choosing the first one listed before proceeding to the
second, and so on.
3.34 Under the second and third stages of the three-stage process, if Guyana
and Venezuela are unable to agree on “the choice of one of the means … they
shall refer the decision as to the means …” to an appropriate international
organ or the Secretary-General.
The reference to “one of the means” plainly
encompasses any one of the means in Article 33. If the means were to be
applied mechanically, in the order in which they appear in Article 33, the role
of a third party in the “decision as to the means” would be unnecessary. There
is no indication in Article IV(2), or in the travaux préparatoires, or in
contemporaneous statements made at the time of adoption, that the parties
intended to limit the discretion of the Secretary-General to decide on the
means of settlement of the controversy, except that he must choose from
among the means listed in Article 33. Such an approach would produce absurd
results. It would mean that the dispute would have to be referred, for example,
to arbitration as a pre-condition to its being referred to the Court. Equally
illogical, it would have to be referred to the Court before the parties could
“resort to regional agencies or arrangements, or other peaceful means of their
own choice”.
210
210
Geneva Agreement, Art. IV(2) (emphasis added). AG, Annex 4.
98
3.35 The practice of the parties further demonstrates that the means of
settlement named in Article 33 were not intended to be applied sequentially.
Both Venezuela and Guyana readily accepted the Secretary-General’s decision
that the first means of settlement to be employed was “good offices”. Yet,
pursuant to the 1982 Manila Declaration, the reference in Article 33 to “other
peaceful means of their own choice” includes “good offices”.
This means
that the Secretary-General began to exercise his authority under Article IV(2)
by choosing the last means of settlement named in Article 33, not the first. By
Venezuela’s (il)logic, he should have chosen judicial settlement before he
chose “good offices”. Indeed, if Venezuela were right, it would mean that the
parties were precluded from pursuing any “other peaceful means of their own
choice”, including “good offices”, before first exhausting “negotiation,
enquiry, mediation, conciliation, arbitration, judicial settlement, [or] resort to
regional agencies or arrangements”. That is patently absurd, and is not what
Article IV provides.
211
3.36 Furthermore, strictly as a matter of textual interpretation, the use of the
definite article “the” (one of the means) is indicative of comprehensiveness.
The decision maker (i.e. the Secretary-General) can thus choose from among
any of the means set out in Article 33. This is consistent with the longstanding
approach adopted by the Court and its predecessor. In the Polish War Vessels
case, the P.C.I.J. interpreted the words “the relevant decisions” of the Council
of the League of Nations as “all decisions at which the Council might
211
U.N. General Assembly, Sixth Committee, 37th Session, Manila Declaration on the
Peaceful Settlement of International Disputes, U.N. Doc A/RES/37/10 (15 Nov. 1982),
Annex, para. 5. MG, Vol. III, Annex 60.
99
212
arrive”.
In Constitution of the Maritime Safety Committee, the Court
interpreted the words “the largest ship-owning nations”
as “any one or more
of the eight largest ship-owning nations.”
213
Likewise, in the Territorial
Dispute between Libya and Chad, the Court was called upon to interpret the
words “the frontiers between the territories of Tunisia, Algeria, French West
Africa and French Equatorial Africa … and the territory of Libya”.
214
The
Court ruled that “the use of the definite article is to be explained by the
intention to refer to all the frontiers between Libya and those neighbouring
territories for whose international relations France was then responsible.”
215
216
3.37 In sum, there is nothing in the text of the Geneva Agreement, nor in the
travaux préparatoires, nor in the practice of the parties to suggest that a
“successive” approach is to be adopted, or that all means of settlement listed
prior to judicial settlement must be exhausted before the Secretary-General
may decide that the dispute shall be resolved by the Court. To the contrary,
Article 33 lists the various means of peaceful settlement without limitation or
exception, and it contains no hierarchy or order of preference. Nor does the
Geneva Agreement purport to establish any hierarchy or order of preference.
There is no basis for arguing that the choice of judicial settlement is subject to
212
Access to, or Anchorage in, the Port of Danzig, of Polish War Vessels, Advisory Opinion,
1931, P.C.I.J. Series A/B, No. 50, pp. 145-146 (emphasis added).
213
Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime
Consultative Organization, Advisory Opinion, I.C.J. Reports 1960, p. 154 (emphasis added).
214
Ibid., p. 164 (emphasis added).
215
Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994, pp.
20-21, para. 39 (emphasis added).
216
Ibid., p. 24, para. 48 (emphasis added).
100
the prior exhaustion of any or all non-judicial means. Rather, the choice of
means is left exclusively to the discretion of the Secretary-General. As the
Court noted in Land and Maritime Boundary between Cameroon and Nigeria,
“[n]either in the Charter nor otherwise in international law is any general rule
to be found to the effect that the exhaustion of diplomatic negotiations
constitutes a precondition for a matter to be referred to the Court”.
217
3.38 In any event, by the time the Secretary-General decided that the means
of settlement of the controversy between the parties would be the International
Court of Justice, they had already engaged in a process of non-judicial means
of dispute settlement for more than fifty years, encompassing:
a. A tripartite process of examining documents from 30 July 1963
to 3 October 1965;
218
b. Negotiations between British Guiana, Venezuela and the
United Kingdom, which eventually led to the adoption of the
Geneva Agreement on 17 February 1966;
219
217
Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria),
Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 303, para. 56. The Court went on to
say that a “precondition of this type may be embodied and is often included in compromissory
clauses of treaties.” That is not the case here. There is no such precondition embodied in
Article IV(2). Such direct negotiations as were required were embodied in Article I, and the
four-year process during which the Mixed Commission attempted to settle the controversy by
direct negotiations was exhausted.
218
See supra paras. 2.9-2.14.
219
See supra paras. 2.21-2.49.
101
c. A Mixed Commission which met on numerous occasions over a
period of four years (from 1966 to 1970);
220
d. A good offices process under the supervision of the U.N.
Secretary-General for 26 years (from 1990 to 2016);
221
and
e. An enhanced good offices process for a final period of one year
(from 2017 to 2018).
222
3.39 As shown in Subsections B and C, below, there can be no question that
the Secretary-General properly exercised his authority under Article IV(2) in
deciding that the Court shall be the next means of settlement of this dispute.
223
B. THE RENVOI TO ARTICLE 33 OF THE U.N. CHARTER AND ITS EFFECT
3.40 In its most recent statements, Venezuela suggests that the SecretaryGeneral
lacked
the
authority
to
choose
the
Court
as
the
means
to
settle
the
controversy
between
the
parties.
In
an
official
communiqué
dated 31
January
2018,
the
Venezuelan
Foreign
Ministry
declared
that
the
Secretary-General’s
decision
“exceeded
the
powers
granted
to
his
office,
contravening
the
spirit,
purpose
and
reason
of
the
Geneva
Agreement
and
the
principle
of
equity
220
See supra paras. 2.50-2.54.
221
See supra paras. 2.70-2.73, 2.77-2.84.
222
See supra paras. 2.85-2.101.
223
See infra Sections III(B) and (C).
102
concluded between the parties.”
This view was reiterated by President
Nicolas Maduro, in his letter to the Court of 18 June 2018, in which he insisted
that the controversy must be resolved exclusively by “friendly negotiations”:
224
“Venezuela reiterates its most strict adherence to what has been
legally established for the solution of this controversy through
the Geneva Accord which binds the Parties to reaching a
practical and mutually satisfying agreement through friendly
225
negotiations.”
3.41 Venezuela’s new interpretation of the Geneva Agreement – that
diplomatic negotiations are the only means by which the controversy
addressed by the Agreement may be resolved – contradicts its express terms,
as well as the intentions of the parties when they negotiated and ratified the
Agreement, and their subsequent statements about their understanding of the
Agreement. Contrary to Venezuela’s current position, the text of the
Agreement, the travaux préparatoires and the subsequent conduct of the
parties make it abundantly clear that the three-stage settlement process in
Article IV(2) encompasses judicial settlement as one of the means to settle the
dispute.
3.42 To be sure, Article I of the Geneva Agreement refers to friendly
negotiations to achieve a “practical settlement” of the controversy. But that
language addresses the role of the Mixed Commission. It does not describe the
224
Government of the Bolivarian Republic of Venezuela, Communiqué: The Bolivarian
Republic of Venezuela pronounces on the territorial dispute with the Cooperative Republic of
Guyana (31 Jan. 2018), p. 1. MG, Vol. IV, Annex 127.
225
Letter from the President of the Bolivarian Republic of Venezuela to the President of the
International Court of Justice (18 June 2018), p. 5 (emphasis added). MG, Vol. IV, Annex
132.
103
procedures to be followed in the event the Mixed Commission fails to achieve
its objective. In contrast, Article IV addresses those procedures, and it refers to
Article 33 no less than three times. On each occasion, it confirms that the
parties or, as the case may be, the appropriate international organ or the U.N.
Secretary-General, may choose any of the means of peaceful settlement
enumerated in Article 33:
a. The Governments shall “choose one of the means of peaceful
settlement provided in Article 33”;
b.
If they “should not have reached agreement regarding the
choice of one of the means of settlement provided in Article
33”; and
c.
“the Secretary-General of the United Nations shall choose
another of the means stipulated in Article 33”.
3.43 The unqualified renvoi to Article 33 empowers the Secretary General
to decide that the parties shall have recourse to judicial settlement. The
emphasis on the choice of “one of the means” or “another of the means” of
settlement enumerated therein is not accidental. It serves the object and
purpose of the Agreement, which is to definitively resolve the controversy. It
allows the Secretary-General to determine which – of several possible –
“means” shall be followed. An interpretation of Article IV(2) which excludes
the possibility of judicial settlement would deprive the treaty of its
effectiveness in assuring a definitive resolution of the controversy. Instead, it
would lock the parties into a never-ending process of diplomatic negotiation,
104
where successful resolution could be permanently foreclosed by either one of
them.
3.44 The travaux préparatoires, and more generally the circumstances
leading up to, surrounding and attendant to the conclusion of the Geneva
Agreement, confirm that the parties understood and accepted that their
deliberate renvoi to Article 33 made it possible that the controversy ultimately
would be resolved by judicial settlement, including, specifically, by the ICJ.
3.45 In May 1965, the Venezuelan Ambassador to the United Kingdom
called on the British Secretary of State for Foreign and Commonwealth Affairs
and suggested that “if Her Majesty’s Government did not like the idea of joint
commissions, his government would be prepared to take their claim to some
international body such as one of the United Nations Committees or the
International Court.”
226
3.46 During trilateral discussions in London on 9 and 10 December 1965,
immediately preceding the Geneva Conference, the Venezuelan Minister of
Foreign Affairs put forward a proposal for a time-bound mixed commission
with subsequent recourse to binding third-party settlement, if the commission
could not reach an agreement:
“Dr. Iribarren then put forward another proposal. A mixed
commission should be set up to solve the territorial
controversy, to formulate plans for collaboration in the
226
Letter from R.H.G. Edmonds, U.K. Foreign Office, to D. Busk, U.K. Ambassador to
Venezuela (15 May 1962). MG, Vol. II, Annex 22.
105
development of Essequiban Guyana and British Guiana, and to
carry out these plans. If the commission could not reach
agreement, they were to refer within three months to one or
more mediators and if they failed to reach a satisfactory
solution, within a prescribed time limit, they were to have
recourse to international arbitration. The Treaty setting up the
basis for this arbitration would have to be concluded within 18
months from 1 January 1966. Mr. Stewart promised to look at
this proposal and closed the meeting.”
227
3.47 According to the contemporaneous official British record of the
December 1965 meetings, the Minister of Foreign Affairs formally conveyed
Venezuela’s willingness to resolve the controversy by binding third-party
settlement:
“His own proposal for a mixed commission provided for
finding solutions by a series of conciliatory stages, and if
necessary by recourse to arbitration by an impartial
international body. Venezuela’s willingness to submit to an
arbitration tribunal represented a great concession on her
part.”
228
3.48 The U.K. was unwilling to accept Venezuela’s proposal at the London
meetings. Before adjourning, the parties agreed to continue their discussions
at Geneva in February 1966.
229
227
Government of the United Kingdom, Record of Discussions between the Foreign
Secretary, the Venezuelan Minister for Foreign Affairs and the Premier of British Guiana at
the Foreign Office on 9 December, No. AV 1081/326 (9 Dec. 1965), p. 4. MG, Vol. II, Annex
28. See supra paras. 2.15-2.20.
228
Government of the United Kingdom, Record of Discussions between the Foreign
Secretary, the Venezuelan Minister for Foreign Affairs and the Premier of British Guiana at
the Foreign Office on 9 December, No. AV 1081/326 (9 Dec. 1965), p. 6. MG, Vol. II, Annex
28. See supra para. 2.19.
229
Ibid.
106
3.49 When they reconvened in Geneva, a breakthrough was achieved. The
British Secretary of State for Foreign and Commonwealth Affairs explained
how it came about in a Note Verbale written very shortly after the meetings
concluded:
“After rapid lobbying of the Venezuelan Ambassador and
consultation with my Guianese colleagues, I decided to modify
the proposed recourse to the United Nations by suggesting that
if the Mixed Commission could not settle the controversy, in
the first instance the two Governments should seek to agree
among themselves which of the means of settling disputes
peacefully under Article 33 of the United Nations Charter
should be applied to this controversy, and, failing agreement,
the United Nations should be asked to choose a means for
them. (By good fortune, it had been the Venezuelans
themselves who had introduced the idea of Article 33 into one
of the drafts which they had put forward during the afternoon).
When I put the Article 33 proposal to the Venezuelan Foreign
Minister at our session after dinner, he asked to consider it
overnight before giving me his reply. That evening the
Venezuelan Government was asked for fresh instructions. This
was the turning point of the meeting.”
230
3.50 This is consistent with what Venezuela’s Foreign Minister reported to
the Venezuelan National Congress on the occasion of the ratification of the
Geneva Agreement in March 1966. He confirmed that it was Venezuela itself
that proposed including the renvoi to Article 33 of the Charter in Article IV(2)
of the Agreement, and that this was expressly for the purpose of providing for
binding third-party settlement, in the event the mixed commission was unable
to settle the controversy. Dr. Iribarren explained that as a result of the renvoi
230
Note Verbale from the Foreign Secretary of the United Kingdom to the U.K. Ambassador
to Venezuela, No. AV 1081/116 (25 Feb. 1966), para. 5. MG, Vol. II, Annex 32. See supra
paras. 2.35-2.36.
107
to Article 33, Article IV(2) provided not only for arbitration, but also for
judicial settlement by the ICJ. He emphasized that it was Venezuela which had
proposed this; and that “It was on the basis of this Venezuelan proposal that
the Geneva Agreement was reached”:
“After some informal discussions, our Delegation chose to
leave a proposal on the table similar to that third formula which
had been rejected in London, adding to it recourse to the
International Court of Justice. … The objection was bypassed
by replacing that specific mention by referring to Article 33 of
the United Nations Charter which includes those two
procedures, that is arbitration and recourse to the International
Court of Justice, and the possibility of achieving an agreement
was again on the table. It was on the basis of this Venezuelan
proposal that the Geneva Agreement was reached.”
231
3.51 It was thus Venezuela’s contemporaneous understanding of Article
IV(2) that it constituted the parties’ agreement to accept binding third party
settlement, including by the ICJ, in the event the mixed commission failed to
settle the controversy. This was confirmed again, by Venezuela’s
representative on the Mixed Commission in a 30 December 1966 statement
that, if the Commission were unable to resolve the controversy: “the juridical
examination of the question [of nullity] would[,] if necessary, be proceeded
with, in time, by some international tribunal in accordance with article IV of
the Geneva Agreement.”
232
231
Statement by Dr. Borges, Minister of Foreign Affairs of Venezuela (17 Mar. 1966), p. 13
(emphasis added). MG, Vol. II, Annex 33.
232
United Kingdom, Ministry of External Affairs, First Interim Report of the Mixed
Commission (30 Dec. 1966), p. 3. MG, Vol. II, Annex 41. See supra para. 2.51.
108
3.52 These contemporaneous statements clearly show that the parties to the
Geneva Agreement, and in particular Venezuela, intended for the renvoi to
Article 33 of the U.N. Charter to encompass all the means of peaceful
settlement named therein, including judicial settlement by the ICJ. It follows
that under Article IV(2) of the Geneva Agreement, a referral of the
controversy to the Court can occur in three circumstances: (i) by agreement
between the parties; (ii) by the decision of an agreed “appropriate international
organ”; (iii) or – as is the case here – by the decision of the U.N. SecretaryGeneral.
C. THE REFERRAL OF THE DECISION ON MEANS OF SETTLEMENT TO THE
U.N. SECRETARY-GENERAL
3.53 As set out in Chapter 2, soon after signing the Geneva Agreement the
parties sought and obtained the agreement of the Secretary-General to exercise
the authority conferred on him in Article IV(2) – to choose the means of
settlement of the controversy – if and when they called upon him to do so. The
Secretary-General formally agreed to accept that authority in a letter dated 4
April 1966, signed by Secretary-General U Thant:
“I have the honour to acknowledge the receipt of the text of the
Agreement signed at Geneva on 17 February 1966 by the
Secretary of State for Foreign Affairs of the United Kingdom,
by the Prime Minister of British Guiana and by the Minister for
Foreign Affairs of Venezuela. I have taken note of the
responsibilities which may fall to be discharged by the
Secretary-General of the United Nations under Article IV (2) of
the Agreement, and wish to inform you that I consider those
109
responsibilities to be of a nature which may appropriately be
discharged by the Secretary-General of the United Nations.”
3.54 Guyana and Venezuela called upon the Secretary-General to discharge
those responsibilities, in conformity with Article IV(2), in March 1983. By
that time: (i) the Mixed Commission had failed to reach an agreement; (ii) the
12-year moratorium agreed at Port of Spain had expired; and (iii) the parties
had failed to agree upon a means of settlement or an appropriate international
organ to choose the means of settlement. In such circumstances, Venezuela
insisted upon proceeding immediately to the U.N. Secretary-General for a
decision on the means of settlement.
233
By letter dated 28 March 1983,
Guyana agreed to Venezuela’s proposal.
234
Secretary-General Javier Pérez de
Cuéllar responded on 31 March 1983. Acknowledging that he had been asked
to “undertake the responsibility conferred upon me in Article IV(2) of the
Geneva Agreement”, the Secretary-General advised that he would “after due
consideration, communicate … the conclusion I have reached in the discharge
of that responsibility”.
235
236
233
Letters from Secretary-General U Thant to Dr. Ignacio Iribarren Borges Minister of
Foreign Affairs of the Republic of Venezuela and the Rt. Hon. Lord Caradon Permanent
Representative of the United Kingdom to the United Nations (4 Apr. 1966). The Spanish text
of this letter provides that: “He tomado nota de las obligaciones que eventualmente pueden
recaer en el Secretario General de las Naciones Unidas….” (emphasis added). AG, Annex 5.
234
Letter from the Minister of Foreign Affairs of the Republic of Venezuela to the Minister of
Foreign Affairs of the Cooperative Republic of Guyana (19 Sept. 1982). MG, Vol. III, Annex
56. See supra paras. 2.63-2.65.
235
Letter from the Minister of Foreign Affairs of the Cooperative Republic of Guyana to the
Minister of Foreign Affairs of the Republic of Venezuela (28 Mar. 1983). MG, Vol. III,
Annex 61. See supra para. 2.66.
236
Letter from the Secretary-General of the United Nations to the Minister of Foreign Affairs
of the Cooperative Republic of Guyana (31 Mar. 1983). MG, Vol. III, Annex 63.
110
3.55 As fully recounted in Chapter 2, Secretary-General Pérez de Cuéllar
exercised his authority under Article IV(2) by deciding that the means of
settlement initially to be pursued would be a Good Offices Process, and
appointed a Personal Representative to facilitate a settlement of the
controversy. Between 1990 and 2015, the Good Offices Process was employed
by the Secretary-General and his various successors, who appointed their own
Personal Representatives to conduct the process. At all times, the SecretaryGeneral
and
the
parties
understood
that
in
choosing
and
conducting
the
Good
Offices
Process
the
Secretary-General
was
exercising
his
authority
under
Article
IV(2).
3.56 On 12 November 2015, by which time 25 years of the Good Offices
Process had failed to achieve substantial progress toward a settlement of the
controversy, Secretary-General Ban Ki-moon proposed a new approach that he
called The Way Forward. This provided that “[i]f a practical solution to the
controversy is not found before the end of his tenure [i.e., by the end of 2016],
the Secretary-General intends to initiate the process of obtaining a final and
binding decision from the International Court of Justice.”
A year later, in
December 2016, just before he left office, the Secretary-General decided, in
consultation with his successor, that the Good Offices Process should continue
for one final year, but that “[i]f, by the end of 2017, the Secretary-General
concludes that significant progress has not been made toward arriving at a full
237
237
Letter from Chef de Cabinet of the United Nations to the President of Guyana (12 Nov.
2015), p. 2. MG, Vol. IV, Annex 100.
111
agreement for the solution of the controversy he will choose the International
Court of Justice as the next means of settlement”.
238
3.57 In conformity with his predecessor’s decision, on 23 February 2017,
Secretary-General António Guterres appointed a Personal Representative to
continue the Good Offices process for an additional year.
However, at the
end of that year, following numerous meetings of the parties facilitated by his
Personal Representative, he concluded that there still had been no significant
progress toward a solution of the controversy.
239
240
3.58 Based on this conclusion, Secretary-General Guterres issued a decision
in conformity with Article IV(2) of the Geneva Agreement, which provided
that the next means of settlement would be adjudication by the International
Court of Justice. His decision was communicated in identical letters to the
parties dated 30 January 2018, and a public statement issued on the same
date.
241
The Secretary-General’s letter to Guyana states that:
“Consistently with the framework set by my predecessor, I
have carefully analyzed the developments in the good offices
process during the course of 2017. Consequently, I have
238
See supra para. 2.90. See also U.N. Secretary-General, Note to Correspondents: The
Controversy between Guyana and Venezuela (16 Dec. 2016). MG, Vol. IV, Annex 111.
239
Letter from the Secretary-General of the United Nations to the President of the Cooperative
Republic of Guyana (23 Feb. 2017). MG, Vol. IV, Annex 117.
240
See supra para. 2.90.
241
Letter from Secretary-General of the United Nations to the President of the Republic of
Guyana (30 Jan. 2018). AG, Annex 7. See also U.N. Secretary-General, Statement attributable
to the Spokesman for the Secretary-General on the border controversy between Guyana and
Venezuela (30 Jan. 2018). MG, Vol. IV, Annex 126.
112
fulfilled the responsibility that has fallen to me within the
framework set by my predecessor and, significant progress not
having been made toward arriving at a full agreement for the
solution of the controversy, have chosen the International Court
of Justice as the next means that is now to be used for its
solution.”
242
3.59 This decision was a proper exercise of the Secretary-General’s
authority under Article IV(2) of the Geneva Agreement, and his decision is
therefore binding on the parties. In Article IV(2), they knowingly and
deliberately vested in the Secretary-General the authority to decide upon the
means of peaceful settlement to be pursued until the controversy is resolved,
provided only that he choose the means from among those listed in Article 33
of the U.N. Charter, and they agreed to be bound by his decision. The
language of Article IV(2) is mandatory:
“If, within three months of receiving the final report [of the
Mixed Commission], the Government of Guyana and the
Government of Venezuela should not have reached agreement
regarding the choice of one of the means of settlement provided
in Article 33 of the Charter of the United Nations, they shall
refer the decision as to the means of settlement to an
appropriate international organ upon which they both agree or,
failing agreement on this point, to the Secretary-General of the
United Nations. If the means so chosen do not lead to a solution
of the controversy, the said organ or, as the case may be, the
Secretary-General of the United Nations shall choose another
of the means stipulated in Article 33 of the Charter of the
United Nations, and so on until the controversy has been
242
Letter from Secretary-General of the United Nations to the President of the Republic of
Guyana (30 Jan. 2018), p. 2. AG, Annex 7.
113
resolved or until all the means of peaceful settlement there
contemplated have been exhausted.”
243
3.60 The existence of an obligation is clear from the use of the term “shall”,
and it is consistent with the object and purpose of the Geneva Agreement.
Moreover, the use of the term “decision” reflects that the Secretary-General’s
authority to choose the means was intended to be – and is – binding on
Guyana and Venezuela. There is a distinction in Article IV(2) between (i) the
choice of means by the parties and, (ii) the referral of that choice to an
“appropriate international organ” or the Secretary-General. In the first case,
the parties have to agree on that choice; in the latter, the “international organ”
or the Secretary-General may impose its or his choice upon them. Relegating
the Secretary-General’s decision to a mere recommendation (as Venezuela
seeks to do), in the face of the plain words of Article IV(2), would be contrary
to the clear and unambiguous text as well as the object and purpose of the
Geneva Agreement and the contemporaneous intentions of the parties.
244
3.61 The word “decision” is usually reserved for binding instruments, as
opposed to “recommendations” or even “resolutions,” which are generally
understood as terms that do not imply, as such and without more, binding
consequences under international law.
245
The Court has consistently
243
Geneva Agreement, Art. IV(2) (emphasis added). AG, Annex 4.
244
The Court has confirmed on a number of occasions that the use of “shall” entails in
principle a binding obligation. See Immunities and Criminal Proceedings (Equatorial Guinea
v. France), Preliminary Objections, Judgment, I.C.J. Reports 2018, para. 92 and Somalia v.
Kenya, para. 55.
245
Whaling in the Antarctic (Australia v. Japan), Merits, Judgment, I.C.J. Reports 2014, para.
46.
114
interpreted the word “decision” as having binding force when considering, for
example:
a. Resolutions of the U.N. General Assembly having “dispositive
force and effect”;
246
b. Dispositive resolutions of the U.N. Security Council which
were not adopted under the Chapter VII of the Charter;
247
and
c. Court orders prescribing provisional measures.
248
246
Certain expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory
Opinion, I.C.J. Reports 1962, p. 163 (“Thus, while it is the Security Council which,
exclusively, may order coercive action, the functions and powers conferred by the Charter on
the General Assembly are not confined to discussion, consideration, the initiation of studies
and the making of recommendations; they are not merely hortatory. Article 18 deals with
‘decisions’ of the General Assembly ‘on important questions’. These ‘decisions’ do indeed
include certain recommendations, but others have dispositive force and effect. Among these
latter decisions, Article 18 includes suspension of rights and privileges of membership,
expulsion of Members, ‘and budgetary questions’. In connection with the suspension of rights
and privileges of membership and expulsion from membership under Articles 5 and 6, it is the
Security Council which has only the power to recommend and it is the General Assembly
which decides and whose decision determines status.”) (emphasis added).
247
Legal Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory
Opinion, I.C.J. Reports 1971, pp. 52-53, para. 113 (“It has been contended that Article 25 of
the Charter applies only to enforcement measures adopted under Chapter VII of the Charter. It
is not possible to find in the Charter any support for this view. Article 25 is not confined to
decisions in regard to enforcement action but applies to ‘the decisions of the Security Council’
adopted in accordance with the Charter. Moreover, that Article is placed, not in Chapter VII,
but immediately after Article 24 in that part of the Charter which deals with the functions and
powers of the Security Council. If Article 25 had reference solely to decisions of the Security
Council concerning enforcement action under Articles 41 and 42 of the Charter, that is to say,
if it were only such decisions which had binding effect, then Article 25 would be superfluous,
since this effect is secured by Articles 48 and 49 of the Charter.”).
248
LaGrand (Germany v. United States of America), Merits, Judgment, I.C.J. Reports 2001, p.
506, para. 108 (“The question arises as to the meaning to be attributed to the words ‘the
decision of the International Court of Justice’ in paragraph 1 of this Article. This wording
115
3.62 Beyond conferring on the Secretary-General the discretionary authority
to choose the means of settlement, the Geneva Agreement depends upon his
exercise of that authority in order to achieve its object and purpose, once the
matter is referred to him for a decision. It is only by his exercise of the
responsibility vested in him by the parties, and their compliance with his
decision, that the object and purpose of the Agreement – the definitive
resolution of the controversy – can be achieved. That this was their
understanding and intention is clear from the text of Article IV(2) and the
circumstances surrounding its negotiation and incorporation into the Geneva
Agreement.
3.63 In the past, some Secretaries-General have consulted with the parties
during the process of choosing the means of settlement. As described above,
Secretary-General Pérez de Cuéllar engaged in consultations with Guyana and
Venezuela in 1983 “to facilitate the discharge of his responsibility”.
A
diplomatic process, such as negotiation or good offices, requires the active
participation of both parties, and cannot succeed if one of them opposes or
refuses to engage with it. But consultation with the parties to ascertain their
249
could be understood as referring not merely to the Court’s judgments but to any decision
rendered by it, thus including orders indicating provisional measures. It could also be
interpreted to mean only judgments rendered by the Court as provided in paragraph 2 of
Article 94. In this regard, the fact that in Articles 56 to 60 of the Court’s Statute both the word
‘decision’ and the word ‘judgment’ are used does little to clarify the matter. Under the first
interpretation of paragraph 1 of Article 94, the text of the paragraph would confirm the
binding nature of provisional measures; whereas the second interpretation would in no way
preclude their being accorded binding force under Article 41 of the Statute. The Court
accordingly concludes that Article 94 of the Charter does not prevent orders made under
Article 41 from having a binding character.”).
249
Telegram from the Secretary-General of the United Nations to the Minister of Foreign
Affairs of the Cooperative Republic of Guyana (31 Aug. 1983). MG, Vol. III, Annex 64. See
supra para. 2.67.
116
willingness to participate in such a process does not detract from the
Secretary-General’s authority under Article IV(2) to decide unilaterally, if he
chooses to do so, on the means of settlement, including settlement by the ICJ.
3.64 The travaux prépartoires confirm that the parties understood that the
Secretary-General’s decision would be binding on them. Moreover, it is clear
from more than three decades of practice that this is also how successive
Secretaries-General understood their powers. At the Geneva Conference in
February 1966, it was Venezuela that first proposed the Secretary-General as
the ultimate decision-maker under the third stage of Article IV. An official
British account of the Geneva Conference records that:
“6. The 17th of February was spent in discussing formulae
based on my proposal. The first problem was to decide to
whom the Governments of Venezuela and British Guiana were
to refer if they themselves were unable to decide which of the
methods provided in Article 33 they should adopt. In the
formula finally agreed in Article IV of the Agreement (‘an
appropriate international organ’, or, failing that, the Secretary
General of the United Nations) we suggested the first and the
Venezuelans the second alternative.”
250
250
Note Verbale from the Foreign Secretary of the United Kingdom to the U.K. Ambassador
to Venezuela, No. AV 1081/116 (25 Feb. 1966), para. 6. MG, Vol. II, Annex 32. See also
Airgram from the United States Department of State to the Embassy of the United States in
Venezuela, No. A-798 (18 Apr. 1966) (“Arguing that Venezuela went to Geneva without an
admission from Great Britain that a dispute did in fact exist, Iribarren said that astute
diplomacy had won for Venezuela an important victory. He pointed out that Venezuela had
achieved a reduction of the period sought by the British for consideration of the problem from
30 years to four, and that Britain’s suggestion that the problem be given over to the U.N.
General Assembly if a satisfactory resolution could not be reached within the stipulated fouryear
period
was
eliminated
in
favour
of
Venezuela’s
wish
that
the
problem
then
be
considered
by
the
U.N.
Secretary
General.”)
(emphasis
added).
MG,
Vol.
II,
Annex
36.
117
3.65 In his statement to the Venezuelan Congress on 17 March 1966, the
Minister of Foreign Affairs underscored that the role of the Secretary-General
was to make the “decision on the means of settlement”.
Reciting from
Article 33 of the Charter, he explained that: “[t]he means are the following:
negotiation, investigation, mediation, conciliation, arbitration, judicial
settlement and recourse to regional organs or agreements. These are explicitly
the procedures to be used up until the issue is solved or until these are
depleted.”
251
252
3.66 The Venezuelan Foreign Minister further explained how the parties
came to agree upon the role and authority of the Secretary-General:
“I must place it on the record that in the last discussions of the
Geneva Agreement the British suggested entrusting the General
Assembly of the United Nations to choose the means for a
solution comprised in Article 33 of the Charter.
This proposal was discarded by Venezuela due to the following
reasons:
1. Because it was not suitable to submit the specific role of
choosing the means for the solution to an eminently political
and deliberative body as is the General Assembly of the United
Nations. This procedure could lead to disproportionate delays
since the introduction of outside political elements would be
easy in what is a simple function of choosing the means of
settlement;
251
Statement by Dr. Borges, Minister of Foreign Affairs of Venezuela (17 Mar. 1966), p. 16
(emphasis added). MG, Vol. II, Annex 33.
252
Ibid., p. 17 (emphasis added).
118
2. Because the General Assembly of the United Nations only
meets for ordinary sessions once a year, during a period of
roughly three months, to deal with previously indicated matters
in the Agenda and in extraordinary sessions by request of the
majority of the members of the United Nations.
These reasons were presented by Venezuela and further
suggested entrusting the International Court of Justice with the
role of choosing the means of solution as a permanent body and
exempt of the inconveniences mentioned above. Since this
proposal was rejected by the British, Venezuela then suggested
giving this role to the Secretary General of the United Nations.
In conclusion, due to the Venezuelan objections accepted by
Great Britain, there exists an unequivocal interpretation that the
only person participating in the selection of the means of
solution will be the Secretary General of the United Nations
and not the Assembly.”
253
3.67 In sum, it is clear from the text of the Geneva Agreement, the travaux
préparatoires and contemporaneous statements by the parties themselves that
they understood, intended and agreed: (i) that Article IV(2) empowers the
Secretary-General to make a binding decision on the means of settlement to
resolve the controversy, provided that the previous stages of dispute settlement
253
Ibid. (emphasis added). During the negotiations, it also proposed that the International
Court of Justice should be the body to decide on the means of settlement. An early draft of
Article IV provides that:
“4. If the Parties should not have reached an agreement within a period of 3
months regarding the choice of one of the methods provided in Article 33 of
the United Nations Charter, they will request the International Court of Justice
to choose one of the said means for peaceful settlement. If the method chosen
by the Court should not allow a solution of the controversy to be arrived at, the
said Court shall choose another of the methods stipulated in Article 33 of the
Charter, and so on successively, until the controversy shall have been resolved,
or until all the methods of peaceful settlement there contemplated shall have
been exhausted.” Early Drafts of the Geneva Convention (undated) (emphasis
added). MG, Vol. II, Annex 1.
119
under Article IV have failed (i.e. that the parties are unable to agree on the
means of settlement and unable to agree on an “appropriate international
organ” to choose the means); and (ii) that Article IV(2) empowers the
Secretary-General to choose judicial settlement as the means of settlement of
the controversy. Indeed, the record shows unequivocally that it was Venezuela
itself that proposed both that the Secretary-General be empowered to decide
upon the means of settlement, and that those means include judicial settlement
by the Court.
3.68 Accordingly, by virtue of their consent to this process, as expressed in
Article IV(2), and especially their consent to the authority of the SecretaryGeneral
to
choose
judicial
settlement
as
the
means
to
resolve
the
controversy,
both
parties
are bound
by
the
Secretary-General’s
decision.
IV. The Court Has Jurisdiction over This Dispute
3.69 In his letter to the President of the Court dated 18 June 2018, the
President of Venezuela stated that “the establishment of the jurisdiction of the
Court requires, according to a well-established practice, both the express
consent granted by both parties to the controversy in order to subject
themselves to the jurisdiction of the Court, as well as a joint agreement of the
parties notifying the submission of the said dispute to the Court.”
Venezuela’s objections to jurisdiction thus fall broadly into two categories: (i)
that it “did not accept the jurisdiction of the Court in relation to the
254
254
Letter from the President of the Bolivarian Republic of Venezuela to the President of the
International Court of Justice (18 June 2018), p. 4. MG, Vol. IV, Annex 132.
120
controversy” and (ii) that it “did not accept the unilateral presentation” of the
dispute by Guyana.
255
Both objections are unfounded. Beyond the exercise by
the Secretary-General of the authority conferred on him by the parties to
choose the Court as the means of settlement, there is no further manifestation
of consent by either party that is required to vest jurisdiction in the Court.
Following the Secretary-General’s decision, Guyana was endowed with the
capacity to bring these proceedings, without more, by filing its Application.
There was no requirement that Venezuela agree to that “presentation”.
A. VENEZUELA’S CONSENT TO JURISDICTION
3.70 Venezuela argues that the Court’s jurisdiction is “not regulated by the
Geneva Accord” and that there is no “agreement of the Parties expressing their
consent to the jurisdiction of the Court under Article 36” of the Court’s
Statute.
256
Venezuela is plainly mistaken.
3.71 It is a principle of general international law, to which Guyana fully
subscribes, that “jurisdiction depends on the consent of States and,
consequently, the Court may not compel a State to appear before it”.
The
Court’s jurisdiction over States is governed by its Statute. Article 36(1)
provides that:
257
255
Ibid., p. 3.
256
Ibid., p. 4.
257
Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections,
Judgment, I.C.J. Reports 1992, p. 260, para. 53.
121
“The jurisdiction of the Court comprises all cases which the
parties refer to it and all matters specially provided for in the
Charter of the United Nations or in treaties and conventions in
force.”
258
3.72 Article 36(1) enshrines the principle of consent. It endows the Court
with jurisdiction when a particular dispute is referred to it by the parties, or
when the dispute arises from a bilateral or multilateral convention in which the
parties have provided in advance for recourse to the Court for dispute
settlement. While consent to the Court’s jurisdiction is in all cases
indispensable, there are no rules governing, or limiting, the precise manner in
which a State can express its consent. The consistent practice of the Court, and
its predecessor, is that “[w]hile the consent of the parties confers jurisdiction
on the Court, neither the Statute nor the Rules require that this consent should
be expressed in any particular form.”
In the Minority Schools case, for
example, the Permanent Court of International Justice explained:
259
“The acceptance by a State of the Court’s jurisdiction in a
particular case is not, under the Statute, subordinated to the
observance of certain forms, such as, for instance, the previous
conclusion of a special agreement. … And there seems to be no
doubt that the consent of a State to the submission of a dispute
to the Court may not only result from an express declaration,
258
Statute of the International Court of Justice, Art. 36(1).
259
Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania),
Preliminary Objections, Judgment, I.C.J. Reports 1948, p. 27. See also Certain Questions of
Mutual Assistance in Criminal Matters (Djibouti v. France), Judgement, I.C.J. Reports 2008,
p. 203, para. 60 (“[N]either the Statute of the Court nor its Rules require that the consent of the
parties which thus confers jurisdiction on the Court be expressed in any particular form”.).
122
but may also be inferred from acts conclusively establishing
it.”
260
3.73 Commentators concur that there are no formal requirements as to how
consent to jurisdiction should be expressed. The fifth edition of Rosenne’s
Law and Practice of the International Court provides that:
“The Statute contains no provision regulating the form or
manner in which the consent to confer jurisdiction on the Court
should be expressed. The silence of the Statute regarding the
manner of expressing the consent stands in contrast to the
rigidity of the application of the substantive demand for a
consensual basis of jurisdiction, and has produced a radical
transformation in the ways of expressing that consent. The
language of Article 36, paragraph 1, of the Statute – all cases
which the parties refer to the Court and all matters specially
provided for in treaties and conventions in force – embodies the
fundamental principle that the parties must agree to submit the
matter to the Court, without laying down any requirements as to
the form of that agreement.”
261
3.74 Consent depends not on the form of the agreement, but on whether it
reflects an intention to confer jurisdiction on the Court. As the Court noted in
Chorzów Factory, “[w]hen considering whether it has jurisdiction or not [over
a dispute], the Court’s aim is always to ascertain whether an intention on the
part of the Parties exists to confer jurisdiction upon it.”
Guyana submits that
such an intention is manifest in the Geneva Agreement. Venezuela accepts that
the Agreement is an international treaty that remains in force between the
262
260
Rights of Minorities in Upper Silesia (Minority Schools) (Germany v Poland), Judgment,
1928, P.C.I.J. Series A, No. 15, pp. 23-24.
261
M. Shaw, ROSENNE’S LAW AND PRACTICE OF THE INTERNATIONAL COURT 1920-2015, Vol.
II (5th ed., 2015), pp. 579-580, para. 155 (emphasis added). MG, Vol. III, Annex 88.
262
Factory at Chorzów, Jurisdiction, Judgment, 1927, P.C.I.J. Series A, No. 9, p. 32.
123
parties “which governs as Law the territorial controversy on the Essequibo.”
It has repeatedly reaffirmed that it is bound by the terms of the Agreement, the
purpose of which is “to solve the issue” of the Guyana-Venezuela border.
263
It
is therefore bound by the consent it has given to the exercise of jurisdiction by
the Court in Article IV(2) of the Agreement.
264
263
Note Verbale from the Ministry of People’s Power of Foreign Affairs of the Bolivarian
Republic of Venezuela to the Embassy of the Cooperative Republic of Guyana in Venezuela,
No. 000322 (28 Feb. 2018). MG, Vol. IV, Annex 130.
264
Republic of Venezuela, Law Ratifying the Geneva Agreement (13 Apr. 1966) reprinted in
Republic of Venezuela, Ministry of Foreign Affairs, Claim of Guyana Esequiba: Documents
1962-1981 (1981). MG, Vol. II, Annex 35. See also Statement by Dr. Borges, Minister of
Foreign Affairs of Venezuela (17 Mar. 1966), p. 13 (“As an essentially Venezuelan solution,
the Geneva Agreement deserved the unanimous support of the Delegation which included the
delegates of three parties of the government, three of the opposition and a senator of the
independent group. They all vividly endorsed the signature which I, under the authorization of
the President of the Republic, stamped on this transcendental instrument.”). MG, Vol. II,
Annex 33.; Republic of Venezuela, Ministry of Foreign Affairs, Statement (2 May 1981)
reprinted in Republic of Venezuela, Ministry of Foreign Affairs, Claim of Guyana Esequiba:
Documents 1962-1981 (1981) (“The Geneva Agreement was approved, at that time, by
determining the national consensus, which was expressed by a landslide majority after being
submitted for consideration to the Congress and ratified by the Head of State at that moment,
Dr. Raúl Leoni. It is true that then, just like now, some sectors and individuals expressed
respectable arguments against the Agreement. However, it is also certain that the Agreement,
after being approved by the Congress, became a Law of the Republic and it is an international
commitment for Venezuela.”). MG, Vol. II, Annex 50.; Letter from the Minister of the
People’s Power for External Relations of the Bolivarian Republic of Venezuela to the Minister
of Foreign Affairs of the Republic of Guyana (19 June 2015) (“the Bolivarian Republic of
Venezuela wishes to reiterate that international law, in particularly [sic] the Geneva
Agreement signed by our two nations on 17
February 1966 in accordance with the Charter of
the United Nations, has authority over this territorial dispute.”). MG, Vol. III, Annex 95;
Government of the Bolivarian Republic of Venezuela, Communiqué: The Bolivarian Republic
of Venezuela pronounces on the territorial dispute with the Cooperative Republic of Guyana
(31 Jan. 2018) (“Venezuela ratifies the full validity of the Geneva Agreement of February 17,
1966, signed and ratified between our country and the United Kingdom of Great Britain and
Northern Ireland, in consultation with the Government of British Guiana, an international
treaty that governs as Law the Territorial Controversy between the parties, validly recognized
and registered before the UN, the only way to the final solution of this opprobrious heritage of
the British colonialism.”). MG, Vol. IV, Annex 127.
th
124
3.75 In Article IV(2) the parties gave their mutual consent for the Court to
“resolve the controversy over the frontier between Venezuela and British
Guiana,” at the conclusion of a three-stage process, in the event of failure to
resolve it at the first two stages. The consent of the parties manifested in
Article IV(2), in conjunction with the renvoi to Article 33 of the U.N. Charter,
is an unequivocal expression of acceptance by Guyana and Venezuela of
judicial settlement by the Court, in the event the Secretary-General decides on
judicial settlement as the means to be pursued by the parties to resolve the
controversy.
265
It would also constitute the parties’ consent to arbitration, if
the Secretary General had chosen that means of settlement.
3.76 Indeed, as shown above, it was Venezuela which insisted upon the
inclusion in Article IV(2) of the provision calling upon and empowering the
Secretary-General to choose the means of settlement of the controversy, and to
decide, specifically, that it shall be settled by the International Court of Justice.
According to Venezuela’s Foreign Minister and chief negotiator, the
Venezuelan proposal for arbitral or judicial settlement – in the event
negotiations or other means of settlement were unsuccessful – was “the basis”
of the Agreement reached at Geneva.
266
265
U.N. Charter, Arts. 33, 91. As the principal judicial organ of the U.N. and the only
permanent public international law court of general jurisdiction, “judicial settlement” must
encompass recourse to the ICJ.
266
Statement by Dr. Borges, Minister of Foreign Affairs of Venezuela (17 Mar. 1966), p. 13.
MG, Vol. II, Annex 33. See supra para. 3.50.
125
3.77 Article IV(2) of the Geneva Agreement thus operates as a
compromissory clause, conferring jurisdiction on the Court provided that one
of the following occurs:
a. The parties agree that the Court should resolve the dispute;
b. The parties agree on an “appropriate international organ” which
then decides that judicial settlement by the Court will be the
means to resolve the controversy; or
c. The Secretary-General decides that judicial settlement by the
Court will be the means to resolve the controversy.
3.78 In this case, the decision of Secretary-General Guterres on 30 January
2018, by which he exercised the authority conferred on him by the parties in
Article IV(2) in choosing the International Court of Justice as the means for
settlement of the controversy, satisfies the third condition above.
267
3.79 Guyana notes that it is not unusual for a dispute settlement clause in a
bilateral or multilateral treaty to include certain pre-conditions requiring prior
resort to other means, such as negotiation or political procedures, before
jurisdiction may vest in the Court. For instance, Article 30(1) of the
Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (1984) provides that:
267
Letter from Secretary-General of the United Nations to the President of the Republic of
Guyana (30 Jan. 2018). AG, Annex 7.
126
“Any dispute between two or more States Parties concerning
the interpretation or application of this Convention which
cannot be settled through negotiation shall, at the request of one
of them, be submitted to arbitration. If within six months from
the date of the request for arbitration the Parties are unable to
agree on the organization of the arbitration, any one of those
Parties may refer the dispute to the International Court of
Justice by request in conformity with the Statute of the
Court.”
268
3.80 This provision requires States parties to the Convention to first engage
in negotiation, and then attempt, during a prescribed period, to agree on
arbitration; it is only after negotiations are unsuccessful and the parties are
unable to reach an arbitration agreement that one of them may invoke the
Court’s jurisdiction. As the Court explained in interpreting a similar (although
not identical) dispute resolution clause in Georgia v. Russia, these are
“preconditions to be fulfilled before the seisin of the Court.”
As
demonstrated above, all of the pre-conditions set out in Article IV(2) of the
Geneva Agreement have been satisfied, and the parties themselves recognized
this when, in 1983 – at Venezuela’s insistence – they agreed to refer the
269
268
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (1984), Art. 30(1). In a bilateral context, see e.g. Management and Cooperation
Agreement between the Government of the Republic of Senegal and the Government of the
Republic of Guinea-Bissau, 1903 U.N.T.S. 3 (14 Oct. 1993), Art. 9 (“Disputes concerning the
present Agreement or the international agency shall be resolved initially by direct negotiations
and, should these fail, after a period of six months, arbitration or by the International Court of
Justice.”). MG, Vol. III, Annex 68; Treaty of amity, commerce and navigation between Japan
and the Republic of the Philippines and the Republic of the Philippines, 1001 U.N.T.S. 296 (9
Dec. 1960), Art. VIII(2) (“Any dispute between the Parties as to the interpretation or
application of the present Treaty, not satisfactorily adjusted by diplomacy, shall be submitted
to the International Court of Justice, unless the Parties agree to settlement by some other
pacific means.”). MG, Vol. II, Annex 13.
269
Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J.
Reports 2011, p. 128, para. 141.
127
decision on means of settlement to the Secretary-General. As a consequence,
the Secretary-General had the authority to decide upon the means of settlement
of this controversy.
270
3.81 The role of the Secretary-General under the Geneva Agreement is to be
distinguished from cases where the Security Council has recommended that
U.N. Member States should refer a dispute to the Court, including the Corfu
Channel case and the Aegean Sea Continental Shelf case. In Corfu Channel,
for example, the Security Council “recommend[ed] that the United Kingdom
and Albanian Governments should immediately refer the dispute to the
International Court of Justice in accordance with the provisions of the Statute
of the Court.”
271
In those circumstances, mere recommendations by a U.N.
organ could not as such constitute consent to the Court’s jurisdiction, absent
their acceptance by the parties.
3.82 Here, in contrast, the Secretary-General’s decision that the parties shall
settle their dispute by recourse to the ICJ is not a mere recommendation, it is a
binding decision. Most importantly, it is a decision that the parties mutually
empowered the Secretary-General to make, and thus an unequivocal
manifestation of consent – by both parties – to the Court’s jurisdiction. This is
a consent given a priori by the express terms of Article IV(2), as further
evidenced in the travaux préparatoires and by the conduct of the parties.
270
See supra Section III.D and paras. 2.67-2.69.
271
Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania),
Application Instituting Proceedings, I.C.J. Reports 1962, Annex 2, p. 16.
128
There is no requirement for any supplementary agreement to implement the
Secretary-General’s decision.
3.83 In that regard, the Geneva Agreement may be compared with the
Agreement concluded on 1 December 1926 between Greece and Turkey to
overcome certain difficulties resulting from the application of the Treaty of
Lausanne in respect of Moslem properties in Greece.
272
The Treaty provided
that disputes were to be resolved, in the first instance, by a Mixed Commission
consisting of Greek and Turkish representatives. Article 4 of the Treaty’s Final
Protocol stipulated that under certain conditions recourse was to be had to
arbitration.
273
Differences of opinion arose in the Mixed Commission
regarding the interpretation of Article 4, and the Commission requested the
Council of the League of Nations to obtain an advisory opinion from the
Permanent Court of International Justice.
The Court was asked to determine
if it was within the Mixed Commission’s mandate to decide whether the
conditions for arbitration laid down by the Protocol were fulfilled. After
examining the general structure of the Mixed Commission and its duties, and
considering the intentions of the parties underlying the various instruments
relating to the exchange of Greek and Turkish populations, the Court
concluded that it was for the Mixed Commission alone to decide whether the
conditions for arbitration were satisfied, and that the Commission itself could
274
272
Interpretation of Greco-Turkish Agreement, Advisory Opinion, 1928, P.C.I.J. Series B, No.
16, p. 8.
273
Ibid., p. 5.
274
Ibid., pp. 5-6.
129
refer a question to the arbitrator.
The Court’s Opinion confirms that two
States may confer upon a third party the task of deciding by what means a
dispute should be resolved, and that when that third party so decides, in
accordance with the requirements agreed, the decision as to means of
settlement is binding upon them.
275
B. THE DISTINCTION BETWEEN JURISDICTION AND SEISIN
3.84 Venezuela has also challenged the Court’s jurisdiction on the basis that
there is no “joint agreement of the Parties notifying the submission of the …
dispute to the Court.”
276
It is further argued that there is no “agreement by the
Parties accepting that the dispute can be raised unilaterally, and not jointly,
before the Court, as established by Article 40”.
This argument is
misconceived in that it fails to recognise that jurisdiction and seisin are
different concepts.
277
3.85 In Qatar v. Bahrain the Court emphasised that seisin – the procedural
act by which proceedings are instituted – is independent of the basis of
jurisdiction:
“It is true that, as an act instituting proceedings, seisin is a
procedural step independent of the basis of jurisdiction invoked
and, as such, is governed by the Statute and the Rules of Court.
However, the Court is unable to entertain a case so long as the
275
Ibid., p. 21.
276
Letter from the President of the Bolivarian Republic of Venezuela to the President of the
International Court of Justice (18 June 2018), p. 4. MG, Vol. IV, Annex 132.
277
Ibid.
130
relevant basis of jurisdiction has not been supplemented by the
necessary act of seisin: from this point of view, the question of
whether the Court was validly seised appears to be a question
of jurisdiction.”
278
3.86 The Court was called upon to interpret paragraph 2 of the Doha
Minutes, which provides that:
“The good offices of the Custodian of the Two Holy Mosques,
King Fahd Ben Abdul Aziz, shall continue between the two
countries until the month of Shawwal 1411 A.H.,
corresponding to May 1991. Once that period has elapsed, the
two parties may submit the matter to the International Court of
Justice….”
279
3.87 The Court ruled that this provision gave the parties the “option or
right” to unilaterally seise the Court of the dispute as soon as the time-limit
had expired (i.e. “[o]nce that period has elapsed”). The Court emphasised that:
“Any other interpretation would encounter serious difficulties:
it would deprive the phrase of its effect and could well,
moreover, lead to an unreasonable result.
In fact, the Court has difficulty in seeing why the 1990
Minutes, the object and purpose of which were to advance the
settlement of the dispute by giving effect to the formal
commitment of the Parties to refer it to the Court, would have
been confined to opening up for them a possibility of joint
action which not only had always existed but, moreover, had
proved to be ineffective. On the contrary, the text assumes its
full meaning if it is taken to be aimed, for the purpose of
accelerating the dispute settlement process, at opening the way
278
Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v.
Bahrain), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1995, p. 23, para. 43.
279
Ibid., p. 17, para. 30.
131
to a possible unilateral seisin of the Court in the event that the
mediation of Saudi Arabia – sometimes referred to, as in the
text under discussion, as ‘good offices’ – had failed to yield a
positive result by May 1991.”
280
3.88 The Court’s reasoning in Qatar v. Bahrain applies with equal force to
the Geneva Agreement. In this case, the Secretary-General has been given the
authority to decide which of the means of dispute settlement in Article 33 of
the Charter shall be pursued by the parties to resolve the controversy. The
decision of the Secretary-General is thus a legal act materialising the parties’ a
priori consent to judicial settlement. There can be no requirement for a
separate agreement between Guyana and Venezuela because, as described
above, both have already expressed their unequivocal consent to jurisdiction
by virtue of Article IV(2). In sum, having consented to the Court’s
jurisdiction, Venezuela cannot validly object to Guyana’s unilateral recourse
to, and seisin of, the Court.
3.89 Moreover, requiring a separate agreement between the parties before
either could initiate proceedings in the Court would defeat the very purpose of
the Geneva Agreement. As explained above, the Agreement was intended by
the parties to ensure that the controversy would be resolved, rather than
continue indefinitely. If a separate agreement to confer jurisdiction on the
280
Ibid., p. 19, para. 35. See also Corfu Channel (United Kingdom of Great Britain and
Northern Ireland v. Albania), Preliminary Objections, Judgment, I.C.J. Reports 1948, p. 28
(“The Security Council’s recommendation has been relied upon to support opposite
conclusions. But, in the first place, though this recommendation clearly indicates that the
bringing of the case before the Court requires action on the part of the parties, it does not
specify that this action must be taken jointly, and, in the second place, the method of
submitting the case to the Court is regulated by the texts governing the working of the Court
as was pointed out by the Security Council in its recommendation.”).
132
Court were required, either party would be able to prevent resolution, even
after all other means of settlement had failed, merely by refusing to agree to
submission of the controversy to the Court. It was precisely to avoid such an
outcome that they gave their consent, in advance, to judicial settlement if that
was the means of settlement chosen by the Secretary-General.
C. THE SCOPE OF THE COURT’S JURISDICTION RATIONE MATERIAE
3.90 The scope of the Court’s jurisdiction is determined by the text of the
Geneva Agreement, understood in light of its purpose and the parties’ practice
under it.
3.91 As indicated above, the Geneva Agreement is an “Agreement to
resolve the controversy over the frontier between Venezuela and British
Guiana”.
281
3.92 Article 1 of the Agreement mandates the Mixed Commission to seek
“satisfactory solutions for the practical settlement of the controversy between
Venezuela and the United Kingdom which has arisen as the result of the
Venezuelan contention that the Arbitral Award of 1899 about the frontier
between British Guiana and Venezuela is null and void.”
The other
authoritative version of the same provision reads: “soluciones satisfactorias
para el arreglo práctico de la controversia entre Venezuela y el Reino Unido
surgida como consecuencia de la contención venezolana de que el Laudo
282
281
See supra paras. 3.4, 3.13-3.20.
282
Geneva Agreement, Art. I. AG, Annex 4.
133
arbitral de 1899 sobre la frontera entre Venezuela y Guayana Británica es
nulo e irrito.”
3.93 The “controversy” thus encompasses not only Venezuela’s claim that
the 1899 Arbitral Award is “null and void”, but also any dispute “which has
arisen as a result of, the Venezuelan contention”. In the same vein, the
Preamble of the Agreement indicates the intention of the parties to resolve
“any” outstanding controversy.
3.94 This understanding is confirmed by the fact that the two authentic
versions of the Geneva Agreement refer in the plural to the need of finding
“satisfactory solutions” for the “settlement” of “the controversy … which has
arisen as a result of the Venezuelan contention….” If the task of the Mixed
Commission were limited to addressing the contention of nullity only, such
use of the plural (i.e., “solutions”) would not make sense. Likewise, if the only
issue to be addressed were the nullity contention, which is in essence a
squarely juridical issue, one wonders why the parties envisaged a “practical
settlement”. The language employed plainly indicates the parties understood
that the nullity contention had not only already entailed a whole range of
contentious events between them in need of being settled, and that more of
such events would likely result from Venezuela’s contention and also be in
need of settlement by means of the procedures established in Articles I
through IV. The very progressivity of the latter, concluded during a
decolonization process, makes particular sense for addressing a “controversy”
consisting of new contentious events resulting from the nullity contention and
faced by the newly independent Guyana.
134
3.95 Article V(2) further confirms that the parties envisioned the occurrence
of later “acts and activities taking place while this Agreement is in force”.
Those “acts and activities” are deemed neutral as far as the respective
sovereignty claims are concerned, but they undoubtedly result from the nullity
contention and are therefore part of the “controversy” to be definitively solved
by the settlement procedure agreed by the parties. Because Article IV(2)
entitles the Secretary-General to refer “the controversy” to any of the means of
settlement stipulated in Article 33 of the U.N. Charter, such referral concerns
“the controversy” in its entirety and is not limited to the disputed contention of
nullity. Indeed, in his decision of 30 January 2018, the Secretary-General
specified that he had chosen the ICJ as the means of settlement of “the
controversy”, not merely the question of whether the 1899 Arbitral Award is
null and void.
283
3.96 This conclusion on the scope of the Court’s jurisdiction under Article
IV(2) and the Secretary-General’s decision is supported by the reasoning of
the Special Chamber of ITLOS in Ghana v. Cote d’Ivoire.
That was a
boundary delimitation case in which Cote d’Ivoire sought to hold Ghana
internationally responsible for alleged infringements of its maritime area.
Jurisdiction was based on a Special Agreement between the two States to
submit to ITLOS a “dispute concerning the delimitation of their maritime
boundary in the Atlantic Ocean”.
284
285
The Special Chamber concluded that “it
283
Ibid., Art. V(2).
284
Delimitation of the Maritime Boundary between Ghana and Côte d'Ivoire in the Atlantic
Ocean (Ghana/Côte d’Ivoire), Judgment, Case No. 23, ITLOS Reports 2017.
285
Ibid., para. 547 (emphasis added).
135
would stretch the meaning of the words ‘dispute concerning the delimitation of
their maritime boundary’ too much to interpret it in such a way that it included
a dispute on international responsibility.” However, in reaching this
conclusion, the Special Chamber made clear that its decision turned on the
parties’ use of the word “concerning” to describe the dispute that they had
submitted:
“The Special Chamber concedes that the word ‘concerning’
may be understood to include within the scope of the dispute
other issues which are not part of delimitation but are closely
related thereto. It is evident that the dispute between Ghana and
Cote d’Ivoire on international responsibility arose out of the
delimitation dispute between them.”
3.97 Likewise, it is evident in the present case that the dispute between
Guyana and Venezuela over Venezuela’s infringements on Guyana’s territory
and maritime space arose out of the boundary dispute between them. The
difference between the two cases is that in the present case the special
agreement on which the Court’s jurisdiction is based – the Geneva Agreement
– defines the controversy that is subject to judicial settlement under Article
IV(2) to include that “which has arisen as a result of the Venezuelan
contention that the Arbitral Award of 1899” is “null and void”. Plainly,
Guyana’s international responsibility claims have “arisen as a result of” its
dispute with Venezuela over the alleged nullity of the Arbitral Award. This is
sufficient, under the language of the Geneva Agreement (as contrasted with
the language in the Special Agreement between Ghana and Cote d’Ivoire) to
vest jurisdiction in the Court in regard to these claims.
286
286
Ibid., para. 548 (emphasis added).
136
3.98 The Corfu Channel case offers an interesting parallel. There,
jurisdiction was established on the basis of forum prorogatum and then
perfected by special agreement between the parties. However, the Security
Council resolution recommending that the parties immediately refer the
dispute to the Court remained important for determining the scope of the
dispute with which the Court was seised. In particular, the Court interpreted
the special agreement as incorporating the aim of the Security Council’s
resolution, and what the Security Council “undoubtedly intended”.
It gave
“full effect” to the resolution in order “not [to] leave open the possibility of a
further dispute”.
287
288
Likewise, it is clear that the parties here intended to solve
through the Geneva Agreement all aspects of the controversy resulting from
Venezuela’s contention of nullity, not leaving aside for further dispute
between them events arising as a result of the nullity contention. The Court
should thus give full effect to the decision of the Secretary-General that it shall
be the means of settlement of the entire “controversy” between Guyana and
Venezuela.
289
3.99 Statements by Venezuela’s Minister of Foreign Affairs confirm that
Venezuela, too, considers “the controversy” to be resolved by the dispute
settlement process defined in Article IV to include not only the challenge to
the validity of the 1899 Arbitral Award, but also the disputes arising as a result
of Venezuela’s repudiation of it. In June 2015, Foreign Minister Delcy
287
Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania),
Merits, Judgment, I.C.J. Reports 1949, p. 26.
288
Ibid., pp. 4, 26.
289
Letter from Secretary-General of the United Nations to the President of the Republic of
Guyana (30 Jan. 2018). AG, Annex 7.
137
Rodriguez issued a public statement criticizing Guyana for licensing oil
drilling operations in the seabed adjacent to the Essequibo Coast: “It is
unacceptable that the new Government of Guyana takes this position with a
territory that is subject to controversy, and who has expressly recognized that
this area of the sea is subject to an amicable settlement of territorial claims, as
envisaged in the Treaty of Geneva. … The only appropriate channels to
resolve this dispute are those of International Law, the Geneva Agreement and
to continue with the Good Officer mechanism under the figure of the Secretary
General of the United Nations.”
290
3.100 In numerous diplomatic notes to Guyana, Venezuela has reiterated its
view that the controversy includes any disputes arising as a result of the
alleged “nullity” of the 1899 Award. Some of these notes are incorporated in
Annexes 107, 108 and 131. For example, on 8 November 2016, the
Venezuelan Ministry of Foreign Affairs complained to its Guyanese
counterpart that Guyana’s licensing of oil drilling activities in waters adjacent
to the coast between the land boundary terminus fixed by the Award (in the
west) and the mouth of the Essequibo River (in the east) represent “violations
of the provisions of the 1966 Geneva Agreement.”
291
On the same date,
290
See the following three media reports: “Venezuela urges Guyana to enforce Treaty of
Geneva on territorial dispute”, Caribflame (11 June 2015), p. 2. MG, Vol. III, Annex 94;
“Venezuela further urges peace, but maintains territorial claim” Kaieteur News (10 June
2015). MG, Vol. III, Annex 93; “Venezuela wants peaceful solution to border dispute”
Jamaica Observer (9 June 2015). MG, Vol. III, Annex 92. A non-official Spanish version of
Minister Rodriguez’s statement can be found in “Minister Delcy Rodriguez, Official
Statement: Guyana shows a dangerous Politics of Provocation Against the Bolivarian
Venezuela of Peace”, Correo del Orinoco (9 June 2015). MG, Vol. III, Annex 91.
291
Note Verbale from the Ministry of People’s Power for External Relations of the Bolivarian
Republic of Venezuela to the Ministry of Foreign Affairs of the Cooperative Republic of
138
Venezuela responded to a protest by Guyana in regard to Venezuela’s
mapping exercises explaining these activities were not in violation of “the
provisions of the 1966 Geneva Agreement.”
Venezuela further declared:
“For these reasons and in conformity with public international law, the
Bolivarian Republic of Venezuela wishes to reiterate that the territorial
controversy between Venezuela and Guyana is governed by the 1966 Geneva
Agreement and is subject to the peaceful settlement of disputes to which the
aforementioned bilateral international instrument refers.”
292
293
3.101 Venezuela has maintained its position regarding the scope of the
controversy under the Geneva Agreement even after the Secretary-General’s
decision of 30 January 2018. On 28 February 2018, Venezuela protested the
concessions by the Guyana Forestry Commission to two private companies “in
the zone subject to territorial controversy in accordance with the existing
Treaty in effect and registered in the United Nations Organisation: the Geneva
Agreement of 1966.”
294
Venezuela characterized the concessions as “a flagrant
Guyana, No. 02013 (8 Nov. 2016) (“[T]ales acciones violentarían lo pautado en el Acuerdo
de Ginebra de 1966.”) (Translation by Guyana). MG, Vol. IV, Annex 107.
292
Note Verbale from the Ministry of People’s Power for External Relations of the Bolivarian
Republic of Venezuela to the Ministry of Foreign Affairs of the Cooperative Republic of
Guyana, No. 02014 (8 Nov. 2016) (“[N]o violentan … los términos establecidos en el Acuerdo
de Ginebra de 1966.”) (Translation by Guyana). MG, Vol. IV, Annex 108.
293
Ibid. (“Por tal razón, en concordancia con el Derecho Internacional Público, se ratifica
que la controversia territorial entre Venezuela y Guyana se encuentra regida por el Acuerdo
de Ginebra de 1966, y está sujeta a la solución pacífica de conflictos a que se alude en el
referido instrumento bilateral internacional.”) (Translation by Guyana).
294
Note Verbale from the Ministry of People’s Power of Foreign Affairs of the Bolivarian
Republic of Venezuela to the Embassy of the Cooperative Republic of Guyana in Venezuela,
No. 000325 (28 Feb. 2018) (“[E]n la zona sometida a controversia territorial conforme con el
Tratado vigente y registrado en la Organización de las Naciones Unidas: Acuerdo de Ginebra
de 1966.”) (Translation by Guyana). MG, Vol. IV, Annex 131.
139
violation” of the Agreement.
In a separate note issued on the same date,
Venezuela protested Guyana’s authorization of a seismic study in the maritime
area adjacent to the Essequibo Coast on the ground that this action violated
“the Geneva Agreement of 1966, [an] international treaty signed by Venezuela
and Guyana which governs as Law for the territorial controversy over the
Essequibo.”
295
296
3.102 Accordingly, there can be no doubt that, in the view of both parties, the
“controversy” that is subject to the dispute settlement procedures of the
Geneva Agreement consists not only of the contention of nullity of the 1899
Arbitral Award advanced by Venezuela, but any territorial or maritime dispute
between the parties resulting from that contention.
3.103 In its Application,
Guyana has described the actions taken by Venezuela in violation of its
territorial integrity since 1966 “as a result of [its] contention that the [1899
Award] is null and void”.
297
and in the preceding Chapter of this Memorial,
298
All of these actions resulted directly from
Venezuela’s contention that the 1899 Award – and the boundary established in
299
295
Ibid. (“una violación flagrante del Acuerdo de Ginebra de 1966”.) (Translation by
Guyana).
296
Note Verbale from the Ministry of People’s Power of Foreign Affairs of the Bolivarian
Republic of Venezuela to the Embassy of the Cooperative Republic of Guyana in Venezuela,
No. 000322 (28 Feb. 2018) (“[A]l Acuerdo de Ginebra de 1966, tratado internacional firmado
por Venezuela y Guyana que rige como Ley de la controversia territorial sobre el Esequibo.”)
(Translation by Guyana). MG, Vol. IV, Annex 130.
297
AG, paras. 50-54.
298
See supra paras. 2.74-2.76.
299
Geneva Agreement, Art. I. AG, Annex 4.
140
accordance with the Award – is null and void. Accordingly, Guyana’s claims
based on these actions fall squarely within the controversy that is now, by
virtue of Article IV(2) of the Geneva Agreement and the Secretary-General’s
decision of 30 January 2018, subject to the Court’s jurisdiction ratione
materiae.
* * *
3.104 In conclusion, the Court has jurisdiction over all parts of the claim that
Guyana has submitted in its Application. The starting point for the
establishment of jurisdiction is the text of Article IV(2) of the Geneva
Agreement, which, as demonstrated above, is clear and unambiguous in
expressing the mutual consent of Guyana and Venezuela to judicial settlement
of this controversy, in the event the U.N. Secretary-General chooses that
means of settlement.
3.105 The effect of the renvoi to Article 33 of the U.N. Charter is that the
mutual expression of consent in Article IV(2) extends to adjudication by the
Court. This interpretation reflects the object and purpose of the Geneva
Agreement and the intentions of the parties as demonstrated in the travaux
préparatoires and in their contemporaneous and subsequent official statements
and actions. The mutual consent of Guyana and Venezuela to judicial
settlement by the Court became effective upon the decision of SecretaryGeneral
Guterres on 30
January 2018.
More
than
fifty
years
after
the
conclusion
of
the Geneva Agreement, it is not now open to Venezuela to
renege on the binding commitments it made to resolve the controversy,
including by judicial settlement.
141
3.106 On the basis of the foregoing, Guyana respectfully submits that the
Court should determine that it has jurisdiction in regard to all of the claims set
forth in the Application, and should proceed to hear the merits of Guyana’s
claims.
142
SUBMISSIONS
For these reasons, Guyana respectfully requests the Court:
1. to find that it has jurisdiction to hear the claims presented by Guyana, and
that these claims are admissible; and
2. to proceed to the merits of the case.
19 November 2018
________________________
Hon. Carl B. Greenidge
Vice President and Minister of Foreign Affairs
Cooperative Republic of Guyana
Agent
143
144
Certification
I certify that the annexes are true copies of the documents reproduced therein and
that the translations into English are accurate translations of the documents
annexed.
19 November 2018
________________________________
Hon. Carl B. Greenidge
Vice President and Minister of Foreign Affairs
Cooperative Republic of Guyana
Agent
145
Memorial of Guyana - Volume I