Guyana asks ICJ to dismiss Venezuela’s application

Nov 23, 2022 News

…points out inconsistencies in arguments

By Rehanna Ramsay

Kaieteur News – Guyana asked the International Court of Justice (ICJ) to dismiss an application by Venezuela, which sought to strike down this country’s case for a juridical settlement of the decades-old border controversy.

The ICJ – the Principal Judicial Organ of the UN has concluded hearings on the preliminary objections raised by Venezuela in the case concerning the Arbitral Award of 3 October 1899 (Guyana v. Venezuela).

The International Court of Justice, (ICJ) today heard closing arguments from Guyana in response to Venezuela’s application for the Court to throw out the merits of Guyana’s case on the basis of admissibility.

Venezuela had argued that the Court should not entertain Guyana’s substantive application on several grounds and one of those grounds is that the Britain should be party to the case instead of Guyana.

Professor Phillipe Sands, one of Guyana’s Lawyers, highlighted the inconsistencies in the arguments presented by Venezuela. The Lawyer said that the burden is on Venezuela to prove its contention that the arbitration process was corrupted. “It has offered no evidence to support such an argument,” he submitted.

Professor Sands addressed the Court on a number of points including the United Kingdom’s consent to the Court’s jurisdiction, and the Monetary Gold Principle-Procedural legal rule that came with the historical practice of the ICJ—which means that international courts are not competent to settle disputes between states unless those states agree to exercise jurisdiction over the dispute by the Court.

He said that although Venezuela’s initial argument, in part, was based on the wrongful conduct of the British Government or its legal team whose position changed during Venezuela’s second presentation.

“If a tribunal is corrupt someone must have corrupted it … you cannot collude on your own,” Professor Sands said while submitting that “The alleged wrongful conduct of the Arbitrators has disappeared, despite the fact that the Court has ruled that its Jurisdiction is focused on the validity of the Arbitral Award. To succeed on the merits, it is not enough for Venezuela to prove wrongful conduct by the United Kingdom. It will be insufficient to argue that a British Lawyer expressed a desire to communicate with an Arbitrator, or actually sought such communication.”

Further, Professor Sands posited that Venezuela has offered no evidence of any misconduct or wrongdoing by any Arbitrator. “You cannot make such allegations without evidence. There is none. That, presumably, is why Venezuela said nothing — nothing — about the material to which we drew your attention,” he said.

Meanwhile, the Lawyer noted that Venezuela’s Attorney, Professor Palchetti, failed to put strong arguments to the Court on why Guyana’s case should be struck out.

Further, Professor Sands said Venezuela failed to properly address the claim that the United Kingdom (UK) has consented to the Court’s exercise of jurisdiction over Guyana’s claims, in reference to the Monetary Gold test.

“On Friday, [Guyana’s team] explained that the 1966 Geneva Agreement embodies a clear expression of consent by the UK to the Court’s exercise of jurisdiction over Guyana’s claims, which explains why the issue of its participation as a party to the proceedings does not arise. We hoped to hear a meaningful, substantive response to Guyana’s argument,” the Lawyer submitted.

He continued, “Professor Palchetti’s principal response was to assert that Article IV of the Geneva Agreement provided no support for Guyana’s argument, since those provisions make no mention of the UK and are, he said, intended only to set out practical arrangements for all the parties.”

According to Professor Sands, this submission was completely flawed. “The fact that the UK is not expressly mentioned in Article IV is irrelevant to the question of whether or not the UK has consented to the Court exercising jurisdiction over Guyana’s claims. The existence of that consent is manifested and evidenced through the UK’s signing of the Geneva Agreement,” he submitted.

Professor Sands explained that “By signing and being a party to the 1966 Agreement, the UK consented to all of the provisions of the Agreement, including Article IV. It has consented to all processes for the resolution of the controversy conducted in conformity with those provisions, including those conducted pursuant to the process established under Article IV(2).”

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