Last Updated on Monday, 28 December 2020, 0:04 by Writer
Members of Guyana’s legal team who are representing Guyana at the International Court of Justice in the border controversy case with Venezuela on Tuesday dismissed Attorney Dr. Bertie Ramcharran’s critique of that court’s decision that it has jurisdiction to hear the merits of the case.
Dr. Ramcharran was particularly taken aback by the ICJ’s decision in which it referred to a “dispute” instead of controversy, among his reasonings.
“On closer look, there are perplexing features of the decision that warrant serious scrutiny. With great respect, the decision of the Court is a reckless one. The first issue is how the Court framed the issue that must now be addressed in the final stage of the case. By twelve votes to four, the Court, in paragraph 138 of the Decision “Finds that it has jurisdiction to entertain the Application filed by the Co-operative Republic of Guyana on 29 March 2018 in so far as it concerns the validity of the Arbitral Award of 3 October 1899 and the related question of the definitive settlement of the land boundary dispute between the Co-operative Republic of Guyana and the Bolivarian Republic of Venezuela.”
By this wording, the World Court has, on its own volition, invented a “land boundary dispute” between the two countries. Guyana’s position has hitherto been that the land boundary was firmly and finally settled in 1899. What it has been seeking is a confirmation of the validity of the 1899 decision,” Dr. Ramcharran was quoted as saying by the privately-owned Stabroek News newspaper.
Dr Bertrand Ramcharan, a barrister of Lincoln’s Inn with a Doctorate in international law from the London School of Economics and Political Science, is a former acting United Nations High Commissioner for Human Rights, a former Commissioner of the International Commission of Jurists and former a member of the Permanent Court of Arbitration in The Hague, Netherlands. He has also previously served as Chancellor of the University of Guyana.
Following is the response by Mr Paul Reichler, Foley Hoag LLP, Washington DC and Professor Philippe Sands QC, London:
We have read with considerable surprise the article written by Dr Bertrand Ramcharran, in Stabroek News. This is all the more so, having known Dr Ramcharran for many years. He has expertise and experience in many areas, but the practise of the International Court of Justice is not, as far as we are aware, one of them.
The Court was faced with a novel situation, in which its jurisdiction was premised on a decision of the Secretary-General of the United Nations. The Court has ruled, by a large majority, that ‘it has jurisdiction to entertain the Application filed by the Co-operative Republic of Guyana on 29 March 2018 in so far as it concerns the validity of the Arbitral Award of 3 October 1899 and the related question of the definitive settlement of the land boundary dispute between the Co-operative Republic of Guyana and the Bolivarian Republic of Venezuela’.
The ruling follows the careful and considered approach of the Court, as reflected in its practise. The Court has expressed no view on whether there is or is not a land boundary dispute between Guyana and Venezuela. Rather, it has decided to exercise jurisdiction on the question of whether such a dispute has been subject to a “definitive settlement”, a question that turns on the validity of the Arbitral Award of 1899.
That, according to last week’s careful Court judgment, is the definitive issue. Quite how that approach may be said to be “reckless” is unclear, and it may be that on carefully re-reading it Dr Ramcharran will come to a clearer understanding of what it has actually said. Having between us practised before the Court for more than six decades, the judgment appears to us to be reasonable in its approach, and one that is entirely favourable to Guyana.
For over 50 years, since the signing of the Geneva Agreement in 1966 and pursuant to its procedures, Guyana has been hoping to obtain a final and binding judgment from the Court on the validity of the 1899 Award and the resulting land boundary. Finally, as a result of its perseverance and diplomatic skill, it obtained from the United Nations Secretary-General, in January 2018, authorization to take the matter to the ICJ. Two months later, Guyana filed its case with the Court. Venezuela immediately objected, contending that the Court lacked jurisdiction to consider the validity of the 1899 Award or the land boundary.
Guyana gave us the honor, under the leadership of Hon. Carl Greenidge and Sir Shridath Ramphal, and accompanied by a team of distinguished international lawyers, to argue the jurisdictional issues on its behalf. The Court’s decision of 18 December is a historic victory for Guyana. It gives Guyana exactly what it has been seeking since independence in 1966, an opportunity to obtain a final and binding judgment from the world’s highest court on the validity of the 1899 Arbitral Award, and the boundary that was fixed in accordance with it, and to confirm Guyana’s exclusive and undisputed sovereignty over the entire Essequibo Region.
Mr Paul Reichler, Foley Hoag LLP, Washington DC
Professor Philippe Sands QC, London
December 22, 2020