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DM N° 000930
Caracas, July 24, 2020
Your Excellency
Abdulqawi Ahmed Yusuf
President of the International Court of Justice
The Hague,
Excellency,
In its Order dated 19 June 2018, the International Court of Justice
decided, "pursuant to Article 79, paragraph 2, of its Rules, that, in the
circumstances of the case, it must resolve first of all the question of the Court's
jurisdiction, and that this question should accordingly be separately determined
before any proceedings on the merits". Since, as Venezuela informed the Court,
the Court manifestly lacks jurisdiction (hence the decision of Venezuela not to
take part in the proceedings), there is indeed no need to address issues other
than jurisdiction (be it admissibility or merits) in relation to Guyana's Application
submitted to the Court in March 2018.
In the framework of the assistance that Venezuela has offered to provide
to the Court in the performance of its duty set forth in Article 53.2 of its Statute,
Venezuela wishes to inform the Court that it does not find in the transcript of the
hearing held remotely by the Court with the representatives of Guyana on June
30, 2020, concerning the Jurisdiction of the Court to hear the case, any
argument that requires Venezuela to reconsider what has been expressed in its
Memorandum of November 29, 2019 and the Annex of the same date.
Guyana's presentation appears to Venezuela to have been nothing but a
repetition of the arguments in its Memorial. The objections by Venezuela to the
jurisdiction of the Court remain wholly valid, effective and relevant and should
lead the Court to declare that it does not have jurisdiction to entertain Guyana's
Application.
This conclusion is confirmed by the following considerations.
1. The nature of the controversy and the purpose of the Agreement of
February 17, 1966, are reflected in the very title of the instrument:
"Agreement to resolve the controversy.., over the frontier...". It deals with
the settlement of a territorial controversy. That controversy, according to
the preamble, should be "amicably resolved in a manner acceptable to
both parties". This spirit must prevail in the interpretation of the articles.
The parties have maintained contradictory positions as to the validity of
the Award of October 3, 1899, and instead of agreeing to an arbitral or
judicial settlement of this issue, to which they did not devote a
single word in Geneva, they agreed to overcome them, thus
establishing a mechanism enabling them to reach a practical and
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mutually satisfactory settlement of the territorial controversy. Those
words are hardly compatible with a judicial or arbitral settlement of the
controversy.
2. Guyana's assertion that the only subject of the negotiation of the
agreement was the validity of the 1899 Award stands in marked contrast
with the fact that during the negotiations of the Agreement in London and
Geneva, the United Kingdom and Guyana fiercely resisted the juridical
means of the settlement, including the recourse to the Court, proposed
as a last resort by Mr. lribarren Borges, who was then Foreign Minister of
Venezuela. What Venezuela was proposing and was finally signed
by the parties has been a detailed negotiation leading to an
agreement that would supersede 1899 Award.
3. The preparatory works of the Geneva Agreement are instructive in
several ways. They demonstrate that:
3.1 Venezuela desired to reach a settlement of the territorial contention
with the United Kingdom (and Guyana) on the borders with British
Guiana as soon as possible.
3.2 It was Venezuela that, for the purpose of reaching that solution,
suggested arbitration and judicial settlement of the territorial
controversy as a last resort, and that it was the United Kingdom
and Guyana that objected the inclusion of any direct reference
to such means of settlement —an attitude that would have been
inexplicable if what was at stake really was deciding upon the validity
of the 1899 Award, rather than settling the border and more sensitive
matters that might arise for resolution notwithstanding that Award:
3.3 The Venezuelan Minister understood that, should the political means
of political negotiation provided for in Article 33 of the Charter of the
United Nations be eventually exhausted in a successive, gradual and
progressive manner, the procedures of arbitration or judicial
settlement could not operate in a mechanical or a unilateral
manner, but needed to be subject to an express and specific
agreement negotiated between the Parties which would make
equity a fundamental source of the decision to be reached,
under an imperative of substantial justice. Historical justice,
morality and equitable rectification were the foundations of
Venezuela's proposals in London and Geneva. In his March 17, 1966
presentation on the Geneva Agreement signed on 17 February 1966,
before the Congress of the Republic of Venezuela, former Foreign
Minister lribarren Borges concluded his address, asserting as
follows.
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Evidently, the Geneva Agreement does not constitute the ideal
solution to the problem, which is nothing else but to return back to
Venezuela its territory. We did not go to the city of Lac Leman to
dictate the terms of surrender of the adversary, placing on the
scale of the dispute the sword of a warlike victory. We went there
to find a satisfactory solution to the arduous territorial issue. As a
fruit of the diplomatic dialogue, and not of the monologue of
victors, the Geneva Agreement leads the extreme positions of
those who demand the return back of the usurped territory under a
null and void Award to a new situation and those who argued that
harbouring no doubt of its sovereignty over the territory were not
willing to take the case to any court.
4. Within the provisions of the Geneva Agreement, Article IV.2 put "the
choice of the means of settlement" into the hands of the United Nations
Secretary -General, providing that "if the means so chosen do not lead to
a solution of the controversy", the Secretary -General "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 here contemplated have been exhausted".
The characteristic features of that provision are graduality
progressiveness, and the condition that the choice of a further means
may not be made unless the previous "means so chosen do not lead to a
solution of the controversy".
5. The fact that, in his letter of January 30. 2018 choosing the Court, the UN
Secretary -General also referred to negotiations and to its good offices
confirms that political means for the settlement of the controversy were
and still are certainly not exhausted.
6. In purportedly choosing the Court as a means of settlement, after
deeming that the Good Offices have failed, the Secretary -General has
acted contrary to both the letter and the spirit of Article IV.2, which
contemplated the use of other political means (such at mediation), as a
genuine assistance to the parties in the negotiation of a practical,
acceptable and mutually -satisfactory settlement, which is the purpose of
the procedure set forth in that provision. Choosing the Court without
verifying the exhaustion of the political means of settlement not yet
attempted is a leap that is not consistent with the procedure agreed and
equally is clearly not the most suitable way to achieve the purpose and
the objective of the Geneva Agreement.
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7. In addition, it should be noted that the Secretary -General made his
choices and the successive appointments for Good Offices always
and in all cases after obtaining the agreement of both parties. By
contrast, in choosing the Court, the Secretary -General has departed from
the principle of equilibrium of the parties, which had been followed until
that moment, thus aligning with one of them, which is not compatible with
the letter and spirit and the object and purpose of the Geneva
Agreement.
8. Above all, Article IV.2 of the Geneva Agreement does not constitute the
certain and unequivocal expression of the consent of Venezuela to
accept the jurisdiction of the Court regarding Guyana's Application, which
is required by international law. To guarantee, as the Geneva Agreement
seeks to do, that the controversy is "amicably resolved in a manner
acceptable to both parties", both parties must progressively use the
political negotiation means provided in Article 33 of the Charter of the
United Nations, and should they fail to reach a mutually acceptable and
satisfactory settlement through these mechanisms, both parties could
conclude that the political means have been developed and exhausted,
and only then, they should not only voluntarily accept the jurisdiction of
the Court but also proceed, in a consensual manner, to negotiate a
special agreement, which is indispensable to establish the role of the
Court, the subject -matter of the controversy, and the sources of law and
elements of equity that have to be taken into account to settle the
controversy in conformity with the Geneva Agreement. Such a
compromising agreement could include provisions on procedural
aspects, as well as on the language in which the case would be heard to
safeguard the equality of the parties. Absent any such special
agreement, it is not possible to seise the Court.
9. In short, Article 33 of the United Nations Charter already obliges
Guyana and Venezuela to resort to one or more of the pacific means
of settlement listed there and, consequently, ultimately to resolve
their controversy by one or more of those means. But it is
indisputable that Article 33 is not a "specific provision" conferring
jurisdiction on the Court. The mere fact that the UN 'Secretary -General
has a duty to choose from that same list of means of settlement cannot
transform it into a provision validly conferring jurisdiction on the Court.
10. In the same vein, the choice made in January 2018 by the UN Secretary-
General could not be self-executing in that regard, because it does not
specify any of the elements mentioned above that are indispensable to
settle the controversy before the Court in accordance with the Geneva
Agreement.
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11.The fact that the nomination of the Court by the UN Secretary -General as
a means of settling the controversy is not self-executing and requires an
additional agreement is confirmed by Guyana's oral pleadings. Guyana
has been unable to define the exact subject -matter of the
controversy it sought to submit to the Court. To the contrary, its
counsels elaborated on contradictory views on this point. According
to Professor Akhavan, the controversy would be only on the validity of
the Award.' By contrast, according to Professor Pellet, the controversy is
a "wider one" ("plus yaste"): it is a "territorial dispute", which requires the
Court to "delimit the boundary between the two countries" CdOfini[ir] la
frontiere entre les deux pays"), and to decide on the validity of the Award
only as a "preliminary issue" ("a titre preliminaire").2 This contradiction in
the definition of the controversy in the Applicant's own pleadings
confirms that a special agreement is needed before resorting to the
Court
Excellency,
To conclude, may I be permitted to recall some of the paragraphs with
which the November 29, 2019 Memorandum closed:
Should the Court assert its jurisdiction over Guyana's claims, Guyana's
application would be breaching the Geneva Agreement, thus preventing it from
satisfying its subject matter and purpose that motivated its conclusion: namely,
the achievement of a practical, acceptable and satisfactory settlement of the
territorial controversy. Deciding on the validity of the 1899 Award alone will not
serve this purpose: on the contrary, it will make its settlement more difficult, and
will involve the Court in a process that is in breach of the Geneva Agreement.
Conversely, should the Court decide, as Venezuela believes, that it lacks
jurisdiction over the unilateral application made by Guyana, it will reinvigorate
the Geneva Agreement, allowing direct negotiations and enabling political
means to regain their role in assisting the search for a practical, acceptable and
satisfactory settlement for the benefit of both Parties. The controversy over the
Essequibo, in any of its dimensions, should be settled through reciprocal
concessions and resort to cooperation mechanisms.
See CR 2020/5, P. 20, para. 2: The history of the controversy demonstrates that the dispute
between the Parties was, and remains, about the legal validity and binding force of the 1899
Arbitral Award. (...) The Parties held "clearly opposite views" on the validity of the 1899 Award,
a2nd that was the dispute dividing them". CR 2020/5, pp. 67-69, paras. 31-35.
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Venezuela will not resort to force, not only because it is prohibited by the
current international law, but also, and specially, because of its own regional
policy of peace, integration, and solidarity. Venezuela once again invites
Guyana to the negotiating table, in the fraternal and supportive spirit that has
always animated its policy of good neighbourliness and integration. The
treatment of the territorial controversy by Venezuela will always be in
accordance with the principles of the UN Charter and the maintenance of
peace.
I avail myself of this opportunity to renew to Your Excellency the
assurances of my highest consideration.
1i4-•70
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Letter from Venezuela’s Minister of People’s Power for Foreign Affairs dated 24 July 2020