Admissibility vs Jurisdiction in Guyana v Venezuela (ICJ)

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On 6 April 2023, the International Court of Justice (ICJ) delivered its judgment in the case of Arbitral Award of 3 October 1899 (Guyana v Venezuela). The background to this case has already been discussed in detail on this blog here. In short, it relates to a centuries-old territorial dispute originating in the colonial era, unsuccessfully resolved by an Arbitral Award in 1899, the validity of which has long been disputed by one of the parties (Venezuela).

This most recent judgment relates to the admissibility and application of Venezuela’s preliminary objection that the UK is an indispensable third party to the proceedings under the Monetary Gold principle. This blog post considers two interesting aspects of the judgment. The first relates to the distinction between admissibility and jurisdiction that the Court makes in relation to the admissibility of Venezuela’s objection. The second relates to the Court’s application of the Monetary Gold rule.

The 2020 judgment and Venezuela’s preliminary objection

The present judgment follows the ICJ’s previous 2020 judgment on jurisdiction. Following proceedings conducted in the absence of Venezuela (on Venezuela’s refusal to participate, see here), the ICJ delivered its judgment on jurisdiction in December 2020. Those proceedings primarily concerned whether the Geneva Agreement of 1966 constituted a sufficient basis for jurisdiction, and the scope of that jurisdiction. For current purposes, the Court found that it did indeed have jurisdiction over (most of) Guyana’s claims (at [138]).

That is not, however, the end of the story as regards jurisdiction and admissibility. On 7 June 2022, Venezuela submitted its preliminary objection on the basis of the Monetary Gold rule.

Admissibility of the objection

The admissibility of Venezuela’s objection was challenged by Guyana, arguing that it was ‘a thinly disguised attack on the Court’s Judgment, … a misguided attempt to persuade the Court to revisit and revise that Judgment’ (here, at [4]). According to Guyana’s interpretation of the Rules of Court Article 79bis, ‘a respondent is not entitled to raise a preliminary objection that, in substance, concerns questions of jurisdiction raised proprio motu by the Court and already decided in a binding Judgment’ (at [8]).

Venezuela, conversely, drew a distinction between questions of jurisdiction and admissibility, submitting that whereas the previous judgment ‘revolved exclusively around the question of jurisdiction’ (here, at 14), the present objection was one of admissibility and could therefore still be heard by the Court.

On this point, the Court decided in favour of Venezuela. In its judgment, the Court draws a distinction between matters related to the ‘existence of jurisdiction’, and those related to the ‘exercise of jurisdiction’, i.e. admissibility (at [63]-[64], emphasis added). It refers to prior jurisprudence in which the Court referred to the application of the Monetary Gold principle in terms implying that it fell under the latter category. It notes, for example, the wording in Nauru (at [55]), where it held that the Monetary Gold principle would require the Court to ‘decline to exercise its jurisdiction.’

The Court concludes that Venezuela’s objection thus relates to the exercise, not existence, of jurisdiction (at [64]). Since ‘the force of res judicata attaching to the 2020 Judgment extends only to the question of the existence and not to the exercise of jurisdiction’, Venezuela’s objection is held to be admissible (at [70]-[74]).

This conclusion was supported and further elaborated upon in two separate judicial opinions. Judge Iwasawa (here) provides a brief further overview of ICJ jurisprudence supporting the Court’s conclusions, while Judge ad hoc Couvreur (here, in French) elaborates on the distinction between admissibility and jurisdiction. Couvreur notes that questions relating to the existence of jurisdiction relate to the extent to which the parties have consented to the jurisdiction of the Court (‘ni plus ni moins’, at [7]), whereas admissibility may cover a range of issues, including but not limited to the decision whether to exercise jurisdiction (at [11]).

The distinction between admissibility and jurisdiction

This is not the first time that the Court has explicitly acknowledged a distinction between admissibility and jurisdiction (see e.g. Djibouti v France, [48], Congo v Rwanda [88]). It is, however, the first time in which it has expressed the distinction in this way, i.e. as one between the existence and exercise of jurisdiction. It is also the first time that the distinction has led to this particular legal consequence, namely the admission of a preliminary objection after the Court has already made a decision on jurisdiction. The ICJ’s flexibility in this matter could reflect a desire to engage with Venezuela after its non-participation in the first stage of jurisdictional proceedings. Nonetheless, this has consequences. In essence, it has the practical effect of creating a potentially extended timeline for parties to submit such objections, provided that admissibility issues are not discussed in the first jurisdictional stage.

It is also interesting to consider other possible effects of the demarcation of admissibility and jurisdiction. This dividing line is not commonly discussed in detail in relation to ICJ procedure, but in other areas it has become a focal topic in recent years. Within international investment arbitration, it has been suggested that whereas a lack of jurisdiction is determinative, admissibility challenges leave a measure of discretion to the Court as to whether to exercise that jurisdiction, ‘guided by considerations of due administration of justice and judicial propriety’ (Rosenveld 2016, p146).

The Court’s language in this regard is inconclusive. Sometimes the Court’s wording would appear to support such a distinction: e.g. ‘there are reasons why the Court should not proceed to an examination of the merits’ (Oil Platforms at [29], emphasis added); ‘the Court could decline to exercise its jurisdiction’ (Guyana v Venzuela at [63], emphasis added). On the other hand, other expressions leave no such room for discretion. For example, the finding in Monetary Gold itself was that ‘the Court cannot decide such a dispute without the consent of Albania’ (at p32, emphasis added). For now this remains an open, if somewhat theoretical, question.

The Court’s application of the Monetary Gold principle

The second interesting aspect of the Court’s judgment relates to the application of the Monetary Gold principle. As explained in detail in Paddeu and Plant’s post, the case revolves around a disagreement over the validity of the Arbitral Award of 1866, and the application of the Geneva Agreement of 1966 which was set up to try and resolve that dispute. The issue is that the UK, as the then-colonial power in possession of the territory of British Guiana, was a party to both Award and Agreement. In addition, Venezuela’s argument on the invalidity of the original Award is largely based on allegations of wrongdoing by the UK. As such, Venezuela submits that the UK is an indispensable third party in this case.

The Court conducts a detailed interpretation of the Geneva Agreement upon which its jurisdiction is based, noting amongst other things the emphasis placed on the expected independence of British Guiana (at [89]) and the lack of a role envisioned for the UK in the dispute settlement process established under the Agreement (at [91]). The Court finds that there was a ‘common understanding of all parties … that the [dispute] would be settled by Guyana and Venezuela’ (at [96]). It also highlights that, in accepting  the scheme for dispute settlement between Guyana and Venezuela, the UK ‘was aware that such a settlement could involve the examination of certain allegations by Venezuela of wrongdoing’ by the UK (at [98]).

Taking all this and relevant practice of the parties into account, the Court concluded that ‘by virtue of being a party to the Geneva Agreement, the United Kingdom accepted that the dispute between Guyana and Venezuela could be settled by [the ICJ], and that it would have no role in that procedure’ (at [107]). Therefore, the Monetary Gold principle ‘does not come into play.’

Consent or lex specialis?

The Court does not clarify precisely why this acceptance by the UK has the effect of overcoming Venezuela’s objection. Judge ad hoc Wolfrum notes in his appended Declaration that, ‘theoretically’, there are ‘two options’ (at [4]). One is that ‘the Geneva Agreement embodies the consent of the United Kingdom as required under the Monetary Gold principle.’ The other (Wolfrum’s preferred option) is that the Geneva Agreement should be considered lex specialis; an alternative and ‘parallel approach to protect procedurally the interests of a third State’.

The main difference between these two options is that, whereas following the first, the Monetary Gold principle is complied with, following the second, it is displaced entirely. While one involves the Court reading into the Agreement implicit consent by the UK to proceedings in which its legal interests are at stake, the other interprets the UK as having implicitly done away with the need for its consent to such proceedings.

In the present case, this is a largely theoretical difference. However, it could have important implications – for the interpretation of the Monetary Gold rule, for the principle of state consent to jurisdiction, and the fragmentation of international law. It would mean that states are able – even implicitly – to exclude the application of fundamental rules of international law related to state consent. It suggests that there may be other treaty-based dispute settlement regimes, either currently in existence or which may arise in the future, in which the Monetary Gold rule need not apply because the treaty setting up that regime is lex specialis. Thus, while for now a merely theoretical concern, this part of the Court’s judgment (and Wolfrum’s Declaration) could have important ramifications for general international law.

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Comments

Aditya Roy says

April 30, 2023

Hii

Thanks for a very interesting blog post on what seems to be a very interesting case. My question is Does Uk not being a party to this dispute precludes the court from deciding on the conduct of the arbitrators and on the fairness of the arbitral award of 1899 at the merits stage

Rgards
Aditya Roy

Sarah Thin says

May 1, 2023

Hi Aditya,

Many thanks for your question. To clarify, the UK is not a party as such to the dispute (case) that is currently ongoing before the ICJ. In my interpretation it is relatively clear that the ICJ has decided that the UK's involvement is *not* a bar to consideration of the validity of the Award at the merits stage, and therefore that the Court could indeed consider the alleged wrongdoing of agents of the UK during the arbitration process. See in particular para 102 of the judgment:

'The Court is of the view that the United Kingdom was aware of the scope of the dispute concerning the validity of the 1899 Award, which included allegations of its wrongdoing and recourse to unlawful procedures, but nonetheless accepted the scheme set out in Article IV, whereby Guyana and Venezuela could submit the dispute to one of the means of settlement set out in Article 33 of the Charter of the United Nations, without the involvement of the United Kingdom.'

It will indeed be interesting to see how the Court approaches these allegations in the merits stage, whether/how it will treat the question of the potential responsibility of the UK, etc.

Hope this answers your question!

Best,
Sarah Thin