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Venezuela’s Non-Participation Before the ICJ in the Dispute over the Essequibo Region

Published on June 29, 2018        Author: 
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On 18 June 2018, Venezuela notified the International Court of Justice that it intends not to participate in the proceedings before the Court in the case over the Essequibo region brought by Guyana (for an excellent analysis of Guyana’s application and the complex historical and procedural background on this blog see here). Venezuela’s move is reminiscent of a long series of cases before the PCIJ and then the ICJ in which the defendant State chose not to appear. At its peak in a period in the 1970/80s this phenomenon had almost become the norm rather than the exception, a situation widely seen as symptomatic of a major crisis of confidence in the Court. The Institut de Droit International noted with concern ‘that the absence of a party is such as to hinder the regular conduct of the proceedings, and may affect the good administration of justice’. This short contribution will assess whether similar concerns are warranted now that the Court will once again be confronted with this peculiar procedural situation. It will first briefly evaluate to what extent Venezuela’s announcement may be part of a re-emerging trend of non-participation. It will then consider how Venezuela’s decision will legally impact the proceedings, highlight key challenges for the conduct of the proceedings, and suggest how and to what extent the Court can address these.  

Back to the 1970s?

Since the US ceased participating in the Nicaragua case following the decision on jurisdiction more than thirty years ago, there have only been rare incidents of (temporary) non-participation in contentious proceedings before the ICJ (Bahrain was not represented when the second judgment on jurisdiction and admissibility in Maritime Delimitation and Territorial Questions was delivered, nor at a later meeting of the Court when time limits for submissions at the next stage were fixed; note also in the different context of advisory proceedings Israel’s refusal to take part in the Wall case). Non-participation thus seemed to have gone out of fashion – France, for example, had failed to appear in the Nuclear Tests cases in 1973/74 but chose to participate when New Zealand requested the Court to resume that case in 1995.

Recently, however, Pakistan who had submitted a counter-memorial did not appear in the oral hearings in the Marshall Islands case. Croatia only partially participated in the ad hoc arbitration with Slovenia. And Venezuela’s announcement comes only relatively shortly after China and Russia did not take part in major UNCLOS proceedings (the South China Sea and the Artic Sunrise cases). Even among these States, however, participation at present seems to remain the norm: Russia, for example, is currently participating in cases brought by Ukraine, both before the ICJ and in an UNCLOS Annex VII arbitration. Read the rest of this entry…

 
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The Dispute between Guyana and Venezuela over the Essequibo Region

Published on April 11, 2018        Author:  and
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Introduction

On 29 March 2018, Guyana filed an Application against Venezuela before the International Court of Justice (‘ICJ’) concerning the two States’ long-standing dispute over the Essequibo region. This Application was filed after the UN Secretary General decided on 30 January 2018 that the dispute between Guyana and Venezuela should be submitted to the Court. The Secretary General’s decision was welcomed in Guyana and received support from Caribbean countries. But it was received with some hostility in Venezuela. A decision by the ICJ could be the final act in a dispute which has, sometimes bitterly, divided the neighbouring countries for over a century. The dispute between the two States includes both procedural and substantive elements.

Procedurally, the parties disagree (and have disagreed for some time) as to whether the ICJ has jurisdiction to hear the dispute. As will be discussed below, the Secretary General’s role in the dispute is based on the provisions of the Geneva Agreement of 1966 between the UK (the colonial power in Guyana at that time) and Venezuela. Under this agreement, in the event that bilateral efforts to solve the dispute fail, the Secretary General is empowered to choose ‘…another of the means stipulated in Article 33 of the Charter of the United Nations…’. However, questions arise as to whether the Secretary General may submit the dispute to the ICJ in a manner which is binding on both parties. As for the substantive aspect of the dispute, the parties disagree as to the alleged nullity and invalidity of an arbitral award handed down in 1899 which found that the Essequibo region lies on British Guiana’s side of the border with Venezuela.

The resolution of the dispute is of significant economic interest to the parties, as the area is rich in natural resources: the world’s largest untouched oil reserves lay in the east of Venezuela, around the Orinoco river delta, close to the disputed border with Guyana. Natural resources are also present in the (as yet undelimited) coastal waters, and Guyana’s exploratory activities in the area have been protested by the Venezuelan government. In 2015, a Venezuelan Presidential Decree (1787, as amended by Decree 1859) laid claim to Atlantic waters off the Essequibo coast, and Venezuela’s navy has intervened in the disputed area on numerous occasions. The Decree met with protest from Guyana. As is common in these disputes, nationalist sentiment rides high as sovereignty over the area is seen as a matter of national honour and pride, and the rhetoric concerning the dispute has intensified on both sides. Venezuelan officials and civil society (see here and here) have decried the UNSG’s decision to submit the dispute to adjudication by the ICJ as a ‘hostile’ act against Venezuela. In Guyana, where Venezuela’s conduct is often perceived as a form of bullying by its more powerful neighbour, the Government is organising a public awareness campaign, including educating schoolchildren about the controversy. Read the rest of this entry…