171- Arbitral Awards of October 3rd, 1899 ( Guyana vs Venezuela)
On 29 March 2018, the Republic of Guyana (the applicant State) filed with the International Court of Justice (ICJ or the Court) an application instituting proceedings against the United Republic of Venezuela (the defendant State) for alleged violations of the arbitral award of October 3rd, 1899 concerning the delimitation of the borders between the two States.
Guyana maintains that pursuant to the Treaty of Arbitration between Great Britain and the United States of Venezuela, signed on February 2nd, 1897 in Washington (hereinafter, the “Treaty of Washington”), the award of 1899 contained “complete, perfect and final settlement” of all questions concerning the determination of the boundary line between the colony of British Guyana and Venezuela. Between November 1900 and June 1904, an Anglo-Venezuelan boundary commission raised, demarcated and permanently fixed the boundary established by the 1899 sentence. Their conclusions were endorsed in a joint declaration, accompanied by maps, in accordance with the 1899 award (‘the 1905 Agreement’).
From 1899 until Guyana’s independence in 1966, all parties (the United Kingdom as the former colonial power, Guyana as a newly independent state in 1966 and Venezuela, a neighbouring state) repeatedly recognized that the 1899 sentence and the 1905 agreement had definitively settled all territorial claims and permanently fixed the land boundary between British Guyana and Venezuela. This position has been maintained by Guyana.
As for Venezuela, it did not start challenging the 1899 award and the 1905 agreement until 1962, when the United Kingdom was completing preparations for British Guyana’s independence. The defendant State now claims the entire territory west of the Essequibo River. Negotiations with the United Kingdom culminated in the signing of an agreement in Geneva in February 1966 (the Geneva Agreement of 1966) that provided for the use of a series of mechanisms to definitively resolve the dispute caused by Venezuela’s change of mind. For more than fifty years, since the entry into force of the Geneva Agreement, the Parties have resorted to the means of settlement provided for in the Geneva Agreement, but have failed to resolve the dispute since 1966.
On January 30th 2018, almost 52 years after the signing of the Geneva agreement, UN Secretary-General António Guterres concluded that the good offices procedure had failed to lead to a peaceful settlement of the dispute. He then took a formal and binding decision in accordance with article IV, paragraph 2, of the Agreement, to choose another of the means of settlement provided for in Article 33 of the Charter, namely the judiciary route with the ICJ. Guyana filed the present application pursuant to the decision of the Secretary-General.
Venezuela raised preliminary objections, claiming that it had never accepted the jurisdiction of the International Court of Justice in this case and refused to participate in the proceedings at this stage. In its judgment dated December 18th, 2020, the Court affirmed that it had jurisdiction to hear the case insofar as it relates to the validity of the arbitral award of October 3rd, 1899 and the related question of the final settlement of the dispute concerning the land boundary between the Cooperative Republic of Guyana and the Bolivarian Republic of Venezuela. However, it does not have jurisdiction to hear claims by the Cooperative Republic of Guyana which are based on events that occurred after the signing of the Geneva Agreement.
Venezuela eventually agreed to take part in the proceedings and raised preliminary objections regarding the jurisdiction of the Court and the admissibility of the Application concerning:
- The unilateral submission of a request by Guyana on the basis of the 1966 Geneva Agreement;
- The legitimacy of the procedure tainted by the non-participation of the United Kingdom;
- The legitimacy of Guyana’s claim, which did not exist at the time of the signing of the Washington Treaty in 1897, the arbitral award of 1899, the 1905 Agreement or the Geneva Agreement of 1966. It would therefore have no standing to seek confirmation of the 1899 arbitral award.
The Court issued its Order on April 6th, 2023 and considered that all of Venezuela’s arguments amounted to arguing that the ICJ could not rule on the merits of the case without the participation of the United Kingdom, which would be an indispensable party in the case. Venezuela maintains that it concluded the Washington Treaty under duress and deception by the United Kingdom. He further alleges that, in the course of the arbitral proceedings, certain improper exchanges took place between counsel for the United Kingdom and the arbitrators appointed by the United Kingdom, and that the United Kingdom knowingly produced “doctored” and “falsified” cards before the arbitral tribunal, which, in its view, renders the 1899 award “null and void”. Guyana argues that the Court should reject Venezuela’s preliminary objection because there is no UK legal interest likely to be affected by the Court’s decision on the validity of the 1899 award, let alone any interest capable of “constituting the very subject-matter” of the decision.
Having examined the Geneva Agreement and the subsequent behaviour of the parties, the Court concludes that the United Kingdom, by virtue of its status as a party to the Geneva Agreement, has accepted that the dispute between Guyana and Venezuela may be settled by one of the means provided for in Article 33 of the Charter of the United Nations, and admitted that it would play no role in this procedure. In these circumstances, the Court considers that the principle of monetary gold does not come into play in the present case. It follows that even if, in its judgment on the merits, the Court were called upon to rule on certain conduct attributable to the United Kingdom, which cannot be determined at present, that would not prevent it from exercising its jurisdiction, which is based on the application of the Geneva Agreement. Venezuela’s preliminary objection must therefore be rejected.
This summary is provided for informational purposes only, does not involve the responsibility of Dome and should in no way be used as a substitute for a careful reading of the judgment and order of the case.