Can Venezuela unilaterally disengage from the ICJ?

THE EDITOR: The numero uno question is whether Venezuela can, as it has done unilaterally and illegally, disengage from being bound by and beholden to the jurisdiction of the International Court of Justice (ICJ) to determine the merits of its boundary controversy, as well as to the three judgements that the ICJ has hitherto delivered at the procedural stages, rejecting the submissions tabled by Venezuela at these sessions.

There were two hearings. Firstly, on the competence and the jurisdiction of the ICJ to adjudicate on the boundary controversy.

Secondly, there were hearings (November 14 and 15) on the application of Guyana petitioning the ICJ to issue provisional measures to avert the implementation of the consultative referendum held in Venezuela on December 3 that the court delivered on December 1 at The Hague.

Readers will recall that in operative paragraph four, the Argyle Declaration, placed Guyana’s uncompromising and legally sound insistence and acceptance of the ICJ as the exclusive dispute settlement procedure with Venezuela on the same legal plane as Venezuela’s unilateral, continuing and some selective rejection of and disengagement from the ICJ and its judgements.

The answer to this question is to be derived from:

Firstly, an examination of the inter-related international law principles of estoppel and recognition (customary law).

Secondly, from the procedural obligations assumed by Venezuela as party to the 1966 Geneva agreement (statutory law) relating to its promissory adherence to the mediation role to be performed by the United Nations secretary general (Article IV (2)) in selecting a judicial institution to finally determine the matter when his requisite diplomacy and dialogue failed to yield a solution.

The principles of estoppel and recognition prohibit Venezuela from disengaging from the remit/jurisdiction of the ICJ when its public utterances are at variance and inconsistent with its past and current actions.

Its presence at the ICJ generated reasonable expectations of compliance.

For example, Venezuela and Guyana are ipso facto or automatically parties to the statute of the ICJ by their UN membership and are estopped from removing themselves from the jurisdiction of the ICJ.

This is what the UN secretary general took into account in the ICJ selection.

Secondly, Venezuela, by its actions and conduct of participating fully in all the sessions/hearings of the ICJ, held on this territorial controversy/validity of the 1899 treaty so far is estopped from peddling its false disengagement propaganda.

Accordingly, it is deemed to have conveyed implied recognition of the jurisdictional role of the ICJ that is legally seized of this six-decade long festering dispute.

Another legal factor that precludes, inhibits and renders Venezuela’s unilateral self-removal from the current jurisdictional remit of the ICJ as null and void is the 1966 Geneva agreement.

Venezuela, by this treaty, agreed to adhere to and recognise the competence of the UN secretary general to choose a judicial organ to legally settle the dispute when he failed to bring about a negotiated settlement.

To renege on fulfilling this legal undertaking is a classic case of the violation of the twin concepts of estoppel and implied recognition.

The perennial problem that is obstructing the solution of this controversy is Venezuelan predilection for making up its own illegal incarnation of international laws and norms to foster and promote its expansionist agenda over the Essequibo and appurtenant maritime areas.

Is Venezuela, using the words of Guyana President Irfaan Ali, an outlaw state?

Guyana should petition the ICJ to rule on whether Venezuela can unilaterally decertify the jurisdiction of the ICJ and whether Venezuela’s virtual annexation of the Essequibo post-referendum constitutes an infringement of its December 1 judgement because it has illegally modified Guyana’s exclusive sovereignty status quo in the Essequibo, making it concurrent with that of Venezuela.

STEPHEN KANGAL

Caroni