The following column was first published in the print version of the Kaieteur News on February 4, 2018. It did not appear, however, on the online interface homepage of Kaieteur News. It was posted in the Peeping Tom archives. But it did appear in the printed edition of this newspaper as the Peeping Tom column for that day.
On February 6, 2018, this newspaper carried a column written by ‘Analyst’ which dealt with the same subject matter, that is, whether the International Court of Justice has jurisdiction to hear the matter involving Guyana and Venezuela in the absence of a consent regime.
Peeping Tom is not using the pseudonym of ‘Analyst’. The Peeping Tom column of February 4 appeared before that of the column of ‘Analyst’ of February 6. It is therefore unfounded for Mr. Ralph Ramkarran to suggest in his Conversation Tree column of yesterday that Peeping Tom changed his identity to ‘Analyst’ so as disguise his authorship of a previous column in November 2017 which had predicted that the good offices process would be continued and that the matter would not immediately be referred to the ICJ. There was concealment of authorship because Peeping Tom dealt with the SG’s ruling two days prior to the ‘Analyst’ column.
This reprint of the Peeping Tom column of February 4, 2018 is dedicated to Mr. Ramkarran for his education and edification.
During a ‘conversation’ hosted recently by the University of Guyana, the most important contribution actually came from the floor and not the panel of experts. It was Mr. Neville Bissember, a legal expert himself, who stood up and pointed out to the gathering that jurisdiction of the International Court of Justice (ICJ) requires the consent of the parties to the dispute.
Guyana has been in a semi-trance ever since the Secretary General of the United Nations decided that with respect to the border controversy between Guyana and Venezuela, the means of resolving this dispute should be the ICJ.
Unlike what is being reported in the Guyanese media, the Secretary General did not refer the matter to the ICJ. He simply, under the Geneva Agreement of 1966, decided the chosen means by which both Venezuela and Guyana should settle this dispute.
The media in Guyana has been so delirious over this decision that it either missed or is seeking to underplay the other important element of the Secretary General’s decision. The Secretary General (SG) has also decided that the good offices process will continue, but this time under the auspices of the United Nations.
This may seem contradictory. On the one hand, the SG chooses the ICJ as the means of settlement and then, on the other hand, still opts for a new good offices process. Why?
The SG is aware of what Guyana seems to be trying to deny – that in order for the ICJ to hear Guyana’s case; Venezuela must consent to the jurisdiction of the court.
Mr. Neville Bissember, speaking from the floor, made this point to the assemblage. He argued that the jurisdiction of the court has triggers, one of which is consent, and the other through agreements which provide for the jurisdiction of the court to hear contentious cases. He noted, quite correctly, that the Geneva Agreement makes no mention of the ICJ.
The United Nations has produced a “Handbook on accepting the jurisdiction of the International Court of Justice: Model clauses and templates”. The handbook states that to become a party to a contentious case before the Court, States must have access to the Court and accept its jurisdiction.
The issue of access is not an issue, because access is provided to all members of the United Nations. Both Guyana and Venezuela have access to the court. But jurisdiction is based on consent of the parties to the case. A country can give consent by means of unilateral declarations (optional clause declarations), in treaties or through Special Agreement.
The Geneva Agreement of 1966 is not listed among the agreements which can trigger the jurisdiction of the Court. Guyana therefore needs the consent of Venezuela in order to activate the jurisdiction of the Court.
Let me reiterate, Guyana needs either Venezuela to make a unilateral declaration accepting the jurisdiction of the Court or to enter into a Special Agreement granting the court jurisdiction to hear the matter. And it was probably with this understanding that the SG decided that the good offices process would continue.
A member of the expert panel attempted to suggest that the ICJ may be able to hear the case even without the consent of Venezuela. Reference was made to the case between the Republic of the Philippines and the Republic of China, in which China did not participate, but which was still adjudicated.
However, this case was not heard by the ICJ, It was adjudicated on by the Arbitral Tribunal constituted under the United Nations Convention on the Law of the Sea (UNCLOS). As Guyana knows all too well, the consent of all parties to a case is not required to trigger the jurisdiction of the Arbitral Tribunal of UNCLOS.
The reason for this is that Article 9 of UNCLOS provides that “the absence of a party to defend its case shall not constitute a bar on the proceedings.” The tribunal in its ruling in the case held that China’s non-participation did not prevent the arbitration from continuing.
Unfortunately, there is no similar provision under the ICJ statute. The statute of the ICJ is clear that there must be both access and jurisdiction, and that the latter requires the consent of parties in contention. The precedent of UNCLOS therefore cannot apply to the ICJ. These are two different courts with different rules.
Guyana therefore has to be able to convince Venezuela to accept the jurisdiction of the ICJ. This is why the good offices process will continue. Venezuela, however, is not likely to want to do that in an election year. So Guyana has to wait on the outcome of those elections.
In the meantime, Guyana should take note of Venezuela’s statement rejecting the SG’s decision. Venezuela ended by reasserting its claim to the Essequibo. It stated, “The sun of Venezuela rises in the Essequibo.”
Publisher’s Note: Peeping Tom is not The Analyst
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