INTERNATIONAL COURT OF JUSTICE
GUYANA v. VENEZUELA
HEARING ON THE QUESTION OF THE COURT'S JURISDICTION
Response of the Co-operative Republic of Guyana
to the question posed by Judge Bennouna on 30 June 2020
6 July 2020
Question: "In paragraph 2 of article 4 of the Geneva Accord of the 17th of February 1966
concludes in an alternative according to which either the controversy has been resolved
or indeed that all the means of peaceful settlement stipulated in Article 33 of the Charter
of the United Nations have been exhausted. Now my question is as follows:
Would it be possible to think of a situation in which all of the peaceful means for
settlement have been exhausted without the controversy having been resolved?"
Response:
1. Guyana's answer to Judge Bennouna's question is "No".
2. The 1966 Geneva Agreement established a procedure to ensure that the controversy
would be finally and completely resolved. This is clear from the text of the Agreement,
its object and purpose, and the contemporaneous statements of the Parties reflecting
their understanding of the Agreement.
3. The procedure is set out in Articles I through IV of the Agreement. Articles I through
III provide for resolution of the controversy by diplomatic negotiations, conducted via
a Mixed Commission composed of two representatives of each Party.
4. In the event of failure by the Mixed Commission to resolve the controversy within four
years, Article IV(1) provides for the Parties to agree on another means of settlement. In
the event of their failure to agree on another means of settlement, Article IV(2) then
describes how the means of settlement will be chosen and the controversy will be
resolved.
5. Pursuant to Article IV(2), the means of settlement of the controversy are to be chosen
either by an appropriate international organ agreed by the Parties, or, failing their
agreement on such an organ, by the Secretary -General of the United Nations. Article
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IV(2) mandates that the Secretary -General (assuming there has not been an agreement
on another appropriate international organ) shall choose the means of settlement from
among those listed in Article 33 of the United Nations Charter. If the means so chosen
fail to resolve the controversy, the Secretary -General is mandated to choose another
means of settlement from among those listed in Article 33, until the controversy is
finally resolved (or until all the means of settlement listed in Article 33 are exhausted).
6. Because arbitration and judicial settlement are among the means of settlement listed in
Article 33, a final and complete resolution of the controversy arising from Venezuela's
contention that the Arbitral Award of 3 October 1899 is null and void is ensured.
7. Under Article IV(2), the Secretary -General was empowered to choose other means of
settlement before choosing arbitration or judicial settlement, in his discretion, and he
did so. He decided, in the first instance, that the means of settlement shall be Good
Offices, which Venezuela considers to be included within "other means" under Article
331. But since, as he concluded, that means of settlement failed to resolve the
controversy, he was mandated by Article IV(2) to choose another means of settlement
until a final and complete resolution of the controversy could be achieved. In the event
that no other means so chosen by him produced such a resolution, Article IV(2) required
him ultimately to choose arbitration or judicial settlement, either one of which would
ensure a final and complete resolution of the controversy.
8. Article IV(2) thus assures that the object and purpose of the Agreement will be
achieved. The object and purpose are set forth in the title: "to resolve the controversy"
between Venezuela and the United Kingdom over the frontier between Venezuela and
British Guiana; and in the final preambular paragraph of the treaty, which states that
the Parties "have reached the following agreement to resolve" that controversy2.
9. The contemporaneous statements of the Parties make it unambiguously clear that the
object and purpose of the Agreement was to achieve a final and complete resolution of
the controversy, and that this was ensured by the inclusion of Article IV(2). In their
'Memorandum of the Bolivarian Republic of Venezuela on the Application filed before the International Court
of Justice by the Cooperative Republic of Guyana (28 November 2019), para. 78 (Judges' Folder, Tab 6).
2 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 February
1966), Preamble (Annex 4 to Guyana's Application; Judges' Folder, Tab 5).
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Joint Statement of 17 February 1966, issued upon signature of the Agreement, the
Parties declared that the Agreement provided "the means to resolve" the controversy
and that its "stipulations will enable a definitive solution."3
10. Of particular significance are the statements made by the Foreign Minister of
Venezuela, who led the Venezuelan delegation at Geneva and directly negotiated its
terms, during his address to the National Congress of Venezuela urging ratification, one
month after the Agreement was signed. As noted by Guyana's counsel at the oral
hearing, the Foreign Minister explained that "in an attempt to seek a respectable
solution to the problem, I put forward a third Venezuelan proposal that would lead to a
solution for the borderline issue in three successive stages, each with their respective
timeframe, with the requirement that there had to be an end to the process: a) Mixed
Commission, b) Mediation, c) International Arbitration."4
11. The Agreement that was ultimately reached was based on Venezuela's "third" proposal.
According to the Foreign Minister: "In conclusion, due to 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, in compliance with Article 4, if no satisfactory
solution for Venezuela is reached, the Award of 1899 should be revised through
arbitration or judicial recourse."5
12. The Foreign Minister explained that, although the United Kingdom and British Guiana
objected to including in the Agreement a specific reference to arbitration or judicial
recourse: "The objection was bypassed by replacing that specific intention 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
3 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 February 1966) reprinted in Republic of Venezuela, Ministry of Foreign Affairs, Claim of
Guyana Esequiba: Documents 1962-1981 (Annex 31 to Guyana's Memorial; Judges' Folder, Tab 9).
Statement by Dr. I. Iribarren Borges, Minister of Foreign Affairs of Venezuela, to the National Congress of
Venezuela (17 March 1966), reprinted in Republic of Venezuela, Ministry of Foreign Affairs, Claim of Guyana
Esequiba: Documents 1962-1981, p. 9 (Annex 33 to Guyana's Memorial); Judges' Folder, Tab 10).
Ibid, p. 17 (emphasis added).
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achieving an agreement was again on the table. It was on the basis of this Venezuelan
proposal that the Geneva Agreement was reached."'
13. Accordingly, as the head of Venezuela's delegation at Geneva recognised, it was
Venezuela's position that any agreement reached must provide for a final and complete
resolution of the controversy, and that the only way to guarantee this was by ensuring
that, if other means of settlement failed, recourse would ultimately be had to
international arbitration or the ICJ. The vehicle for accomplishing this was the text as
adopted of Article IV(2). By providing that the Secretary -General must choose the
means of settlement from among those listed in Article 33, and that he must continue
to choose the means from that list until the controversy is fully and finally resolved, the
Agreement ensured that, if necessary to resolve the controversy, recourse would be had
either to international arbitration or the ICJ. In Venezuela's own words: "It was on the
basis of this Venezuelan proposal that the Geneva Agreement was reached."7
14. It is indisputable that, once the Secretary -General has decided on the ICJ as the means
of settlement, a definitive resolution of the controversy is ensured. Indeed, Article 94
of the UN Charter and Articles 59 and 60 of the Statute of the Court make it clear that
a Judgment of the Court concerning the legal status and effect of the 1899 Arbitral
Award would be final and binding on Venezuela and Guyana. Accordingly, the
decision by the Secretary-General to select judicial settlement as the means of
settlement —by the very nature of that means —eliminates any possibility that the
controversy will not be resolved.
6 Ibid, p. 13 (emphasis added).
Ibid, p. 13.
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Written reply of Guyana to the question put by Judge Bennouna at the public sitting held on 30 June 2020 at 2 p.m.