12 Feb Does the ICJ Have Binding Jurisdiction Over the Guyana-Venezuela Border Controversy? Probably, But Maybe Not
Last month, the UN Secretary General António Guterres announced that he was referring the longstanding border dispute between Guyana and Venezuela to the International Court of Justice. This decision was made after a long period of mediation by various UN Secretaries-General dating back to 1990. But as a ICJ jurisdiction nerd, I am curious what the basis of the Secretary-General’s power to refer the dispute to the ICJ is.
It is based on the 1966 Geneva Agreement between the United Kingdom (which was sovereign over Guyana at the time) and Venezuela. That agreement specified a long process of study via a joint commission and then noted that, if agreement on the commission’s report failed, the following process should be undertaken according to Article IV(2):
If, within three months of receiving the final report, the Government of Guyana and the Government of Venezuela should not have reached agreement regarding the choice of one of the means of settlement provided in Article 33 of the Charter of the United Nations, they shall refer the decision as to the means of settlement to an appropriate international organ upon which they both agree or, failing agreement on this point, to the Secretary-General of the United Nations. If the means so chosen do not lead to a solution of the controversy, the said organ or, as the case may be, the Secretary-General of the United Nations shall choose another of the means stipulated in Article 33 of the Charter of the United Nations, and so on until the controversy has been resolved or until all the means of peaceful settlement there contemplated have been exhausted.
There is no doubt that this provision has been invoked, and the Secretary General’s announcement indicated that he deems “the International Court of Justice as the means to be used for the solution of the controversy.” Article 33 of the UN Charter does list “negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice” as options for “pacific settlement of disputes.” The ICJ would seem to qualify as a “judicial settlement.”
The problem is that it is not clear that Article IV of the Geneva Agreement automatically makes the ICJ’s decision legally binding. Neither Guyana nor Venezuela have accepted the compulsory jurisdiction of the ICJ, so there is no independent basis for jurisdiction. The Geneva Agreement, I suppose, should be read as delegating to the UN Secretary-General the power to refer their dispute to “judicial settlement.” But it is not clear whether this broad delegation includes any and all forms of dispute settlement, or that those settlements would be binding.
The most natural reading, I concede, is that Venezuela is indeed bound to abide by any ICJ ruling in this case. But I wouldn’t be surprised if Venezuela tries to contest the jurisdiction of the ICJ, or the binding nature of any decision it issues.
Julian, Thank you for this. I can’t think of any alike ICJ or PCIJ cases. The closest is probably the Corfu Channel case. As one of its arguments, United Kingdom tried to found jurisdiction on a Security Council resolution recommending it and Albania to submit their dispute to the ICJ. The ICJ did not delve into the argument, but a joint separate opinion wrote that the jurisdiction couldn’t be found on that resolution. But that was a clearly nonbinding resolution.
There are statements in the 1928 Minority Schools and Corfu Channel cases supporting an argument that the way in which consent can be expressed is flexible. It wouldn’t be surprising to see reliance on those case. But, whatever the answer is, one of the two states would need to seise the ICJ first for proceedings to start (ICJ Statute, Art. 40).