Dec 22, 2020 Letters
Not too long after the World Court ruled on Guyana’s application concerning the ‘legal validity and binding effect of the award regarding the boundary between the colony of British Guiana and the United States of Venezuela of October 3, 1899,’ the press published two rather interesting interpretations regarding the Court’s decision.
More opinions and interpretations from the editors of mainstream media and experts at home and abroad are to be expected in respect to the Court’s decision.
The interpretations published thus far have raised some interesting questions.
Ralph Ramkarran in the final paragraph of his recent Conversation Tree blog ‘Victory at the World Court.’ wrote:
‘Of interest is that in paragraph 135 the ICJ appears to be contending that if it rules that the 1899 Award is null and void, it then has jurisdiction over the related question of the land boundary.’
In a sentence before the final paragraph in his blog Ramkarran opines; ‘Further, the Court ruled that it had no jurisdiction over the events that took place after the signing of the Geneva Agreement. The seizure of Anoka, Venezuela’s violation of Guyana’s sovereignty on land and sea, will therefore have to be resolved by other peaceful means.’
Dr. Bertrand Ramcharran writing under the headline ‘ A reckless World Court decision on border controversy’ in last Sunday’s edition of the Stabroek News took aim at the court’s decision.
He asked; ‘How can the Court , supposedly with a mission to up hold the international rule of law, ignore Venezuela’s illegal occupation of Ankoko island and other territorial incursions?’ He went on, ‘The Court here lost an opportunity to uphold the principles of legality and justice for a small state at the mercy of a much larger bully.’
Experts would however argue that in its application to the Court, Guyana did not ask the Court to pronounce on the legality or illegality of Venezuela’s occupation of Ankoko.
Guyana’s application to the Court was limited – it asked the Court to pronounce on the ‘legal validity and binding effect of the Award of 1899.’
It is here that Ramkarran’s question appears relevant meaning, ‘…if it (the Court) rules that the Award is null and void it then has jurisdiction over the related question of the land boundary.’
From this assertion it is to be assumed that, at a given point in time, Guyana will raise in a further application to the Court, the question of the land boundary between Guyana and Venezuela, now that the question of jurisdiction concerning the legality and binding effect of the Arbitral Award is out of the way.
In the circumstances, it appears that Guyana has opted for a step by step approach to the Court on this long running and complex matter.
From all indications, Guyana’s approach appears to be more strategic, rather than a one-off tactical one.
Ramcharran’s assertion on the Ankoko question, though an important one, appears to be preemptive, if not premature. There is no ‘lost opportunity’ here. Nor has the Court ‘failed in its mission to uphold the international rule of law’ as Ramcharran claims.
I shudder to think that, of all courts, the World Court would dare replicate our Court of Appeal’s half of sixty-five ruling thus bringing itself into disrepute on the global stage.
My own view is that contrary to Ramcharran’s claim about a ‘lost opportunity,’ we just haven’t reached that stage as yet in the proceedings where, all things being equal, seems a long way yet to go.
My take on the Ankoko matter is that Guyana wants the matter to be resolved, it always did. It never ceded sovereignty over Ankoko to Venezuela.
Guyana’s preference as ‘a small state at the mercy of a much larger bully’ has always been to have the matter resolved, not by military, but by peaceful means, and the World Court is precisely the forum that small states have at their disposal to do so.
The mere fact that more than fifty years ago Guyana had insisted that the Ankoko issue should have been taken to the UN Security Council and if necessary, to the World Court was a clear indication of its interest in having the matter settled peacefully.
In anticipation of the Court’s ruling that the Arbitral Award is null and void and, as a consequence, that it has jurisdiction over ‘the related question of the land boundary,’ should that ruling eventuate, it would offer the strong possibility for a convergence in Ramkarran’s interest in the seeing the Ankoko matter being settled by peaceful means and Ramcharran’s questioning of the Court’s ruling on said issue, and their settlement much to the satisfaction of the two legal luminaries.
In addition to the above, Ramcharran raised a number of provocative issues in his article. I ticked ten such issues as follows:
1. ‘The World Court by its own volition invented a land boundary dispute between the two countries;’
2. ‘The Court has jurisdiction to entertain the related question of the definitive settlement of the land boundary dispute between the two territories;’
3. The World Court has given Venezuela a gift in holding that there is a ‘territorial dispute;’
4. At no time did Guyana invite the Court to hold that there is a ‘territorial dispute;’ This decision is … an irresponsible and reckless one;’
5. ‘The Court recklessly volunteered that the Geneva Agreement uses the term ‘controversy’ as a synonym for the word ‘dispute;’
6. ‘The Court is just wrong in holding that there is a territorial dispute when Guyana has consistently maintained that there was a controversy…;’
7. ‘The Court blithely join the issue of a territorial dispute to that of the validity of the 1899 Award;’
8. That ‘the Court’s finding that there is now two issues to be decided i) the validity of the Arbitral Award and ii) the related question of the definitive settlement of the land boundary dispute. That this finding will be of great disservice to Guyana and its people;’
9. That there are two perplexing issues of the World Court’s decision 1) it did not have jurisdiction to entertain Guyana’s claim arising from the events that occurred after the signature of the Geneva Agreement and 2) that the Court ignored Venezuela’s illegal occupation of Ankoko island and other illegal territorial incursions;’
10. That ‘Guyana’s lawyers need to seriously consider whether to make an application for the rectification of the decision of the Court or face the risk of Venezuela opportunistically exploiting the gift that the World Court has recklessly handed them.
All ten issues raised by Ramcharran are interrelated and interconnected in one way or another, yet he makes the mistake by his misunderstanding of the fundamental questions of why did Guyana approach the Court and what was the question put to the Court? viz; ‘Does the Court have jurisdiction to entertain Guyana’s application with regards to the dispute concerning the legal validity and binding effect of the award regarding the boundary between the colony of British Guiana and the United States of Venezuela of 3 October 1899. The Court’s unequivocal and pellucid answer was yes.
Guyana’s sole objective in it’s application to the Court was to determine the validity and binding nature of the 1899 Award. It is in Guyana’s national interest to do so. On the other hand, Venezuela has no interest in discussing the validity of the Award per se, it holds the view that the Geneva Agreement has to do with what they claim to be a ‘territorial dispute.’
As far as Guyana’s application to the Court is concerned, it is the validity and binding nature of the award that it asked the Court to pronounce on, not the land boundaries between the two countries. At least not yet. In any event, the Court refrained from pronouncing on such matters. Now that it decided it has jurisdiction to pronounce on the question of the Arbitral Award, the ball is now in Guyana’s court to take its case to another level.
It is now up to Guyana to move to the next stage contemplated. Herein lies the crux of the matter. An application to the Court as to whether it has jurisdiction to rule on the validity and binding nature of the Award has been decided in Guyana’s favour. Perhaps, sometime in the not too distant future, Guyana will make a fresh application to the Court asking it to rule finally and definitively on Guyana’s land and sea boundaries with Venezuela.
Guyana never asked the Court to pronounce on that matter. Yet we learn from Mr. Ramcharran’s writing, the rather surprising conclusion that the ‘Court has handed a gift to Venezuela in holding that there is a ‘territorial dispute.’
If Mr. Ramcharran is referring to a territorial dispute vis-a-vies the Geneva Agreement, then he must know that that is a long held Venezuelan position. Not Guyana’s. In the circumstances, the Court could not hand to Venezuela what Venezuela notionally held as its position since Noah was a boy!
From what I have read therefore, nothing of substance was handed by the Court to Venezuela by way of a ‘gift.’ As regards Ramcharran’s entreaty that ‘Guyana’s lawyers would need to seriously consider whether to make an application for the rectification of the decision of the Court or face the risk of Venezuela opportunistically exploiting the gift that the World Court has recklessly handed them.’ I defer to Ramkarran who in his blog wrote, ‘This great preliminary success was achieved after a monumental degree of work over a long period of time by a large number of foreign ministry officials, consultants, experts, advisers and lawyers.’
I note the term ‘preliminary success’ which connotes that more is yet to come that will build on what was achieved on December 18 at the Court.
Surely Ramcharran must have surmised that this must have been the case and that it could not be that ‘the mighty mountain gave birth to a tiny mouse.’
I know Mr. Ramcharran personally. We met and conversed from time to time while I served as Guyana’s Foreign Minister. He has always been favorably disposed to placing his skills, knowledge and experience at the service of his native land.
Maybe at some point Mr. Ramcharran could be involved.
Clement J. Rohee
Former Minister of Foreign Affairs
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