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Commentary: ICJ adjudication of Guyana-Venezuela border issue draws nearer
Published on June 1, 2017 Email To Friend    Print Version

By Odeen Ishmael

On February 27 this year, UN Secretary-General Antonio Guterres announced the appointment of Dag Halvor Nylander of Norway as his personal representative to help find a solution to the border controversy between Guyana and Venezuela. Nylander comes with the experience as ambassador in Colombia in 2006-2008 and, more recently, as his country’s special envoy in the Colombian peace process (2012-2016).

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Dr Odeen Ishmael, Ambassador Emeritus (retired), historian and author, served as Guyana’s ambassador in the USA (1993-2003), Venezuela 2003-2011) and Kuwait and Qatar (2011-2014). He actively participated in meetings of UNASUR from 2003 to 2010 and has written extensively on South American integration issues. He is currently a Senior Research Fellow of the Washington-based Council on Hemispheric Affairs.
Earlier, on December 16, 2016, the secretary-general concluded that the existing Good Offices process, which began in 1990, would continue until the end of 2017. A UN media statement revealed: “If, by the end of 2017, the secretary-general concludes that no significant progress has been made towards arriving at a full agreement for the solution of the controversy, he will choose the International Court of Justice (ICJ) as the next means of settlement, unless the governments of Guyana and Venezuela jointly request that he refrain from doing so.”

Nylander’s task involves regular and constructive meetings with both governments to explore and propose options for a solution to the controversy arising from the Venezuelan claim that the 1899 arbitral award settling the then border dispute is null and void.

Over the past 50 years, the controversy has generated intermittent tensions between the two countries. These heated up in 2015 after a significant oil find was announced in an offshore concession granted to Exxon by Guyana in its Atlantic economic zone, an area that Venezuela describes as “disputed waters”; and even also declaring the zone as its own, as it did in June 2015 when President Maduro issued decrees claiming almost all of Guyana’s offshore contiguous economic region.

Guyana opts for ICJ

More than a year before, the PPP administration of President Bharrat Jagdeo declared that the Good Offices process had outlived its usefulness and would no longer support its continuity. The government of that period opted for the controversy to be dealt with by the ICJ. On the other hand, the Venezuelan government insisted that it wanted the Good Offices process to continue and would not support any move to the international court to handle the issue.

The Guyana government headed by President David Granger from May 2015 also took a similar position. The recent appointment by the secretary-general seems set to placate both governments – allowing the continuation of the Good Offices process desired by Venezuela, and announcing that the process would end this year after which the ICJ would become involved, as advocated by Guyana.

With the secretary-general deciding to choose the ICJ as the next means of settlement if his personal representative does not succeed in enabling a solution, it is absolutely clear that the Guyanese government will never ask the secretary-general to refrain from taking this action.

UN recognition of Guyana’s territory

Interestingly, Nylander is given the mandate to mediate, a power which previous Good Officers did not have. However, his mediation will have to be bound by an earlier decision of the UN, which gave recognition to the legality of Guyana’s boundary as demarcated by the 1899 arbitral award. This was defined when the UN Convention on the Law of the Sea Tribunal made its award in the case of the maritime boundary between Guyana and Suriname in 2007.

In making that award, the arbitrators used Devonshire Castle Flat, a location on the Essequibo coast, as a base point to draw the boundary line based on the principle of “equidistance.” By using the Essequibo coast as a base point, the arbitrators (and hence the UN Convention of the Law of the Sea) gave recognition to the Essequibo as part of Guyana’s sovereign territory despite the existing claim by Venezuela.

Actually, during the arbitration hearings, the Suriname government had initially opposed the use of this base point, on the grounds of its location in the area claimed by Venezuela. However, the arbitration court dismissed Suriname’s protest, declaring that the Caribbean Community (CARICOM), with Suriname being an integral member, recognized Guyana’s sovereignty over the Essequibo region.

But despite this recognition, Venezuela since 1966 has continued to occupy Guyana’s eastern half of the three-square-miles Ankoko Island at the border junction of the Cuyuni and Wenamu Rivers.

Maritime boundary not defined

In his attempt at mediation, the Good Officer, therefore, will have to concentrate on finding a solution to the maritime boundary between the two countries – a maritime boundary that was never legally demarcated. But in doing so, he will have to keep in mind that Venezuela is not a signatory to the UN Law of the Sea, which has been involved in settling maritime boundaries between various countries.

Actually, both countries saw the importance of a settled maritime boundary. A joint declaration of September 30, 2011, signed in Port of Spain by Carolyn Rodrigues-Birkett and Nicolas Maduro, the foreign ministers of Guyana and Venezuela, respectively, recognized that the delimitation of the maritime boundaries between the two countries was an outstanding issue and agreed that such delimitation would require negotiations.

Another meeting on October 17, 2013, between the Guyanese foreign minister and her new Venezuelan counterpart, Elias Jaua, ratified the decision of the September 2011 discussions and they declared that a bilateral technical team would meet within four months to exchange views on how such delimitation could proceed. However, this technical team could not be organized since Venezuela, then experiencing growing political instability, was unprepared to begin this work despite several reminders from Guyana.

Advisory commission

In preparation for Nylander’s mediation, and likely ICJ jurisdiction, it is hoped that the proposed national border institute or a politically bipartisan special commission will be fully organized as an advisory body to the government on the border issue.

In the limited time left for his mediation efforts, the Norwegian diplomat may encounter some difficulty in managing his work with Venezuela, as the country is facing serious political, economic and social crises along with massive anti-government street protests. Thus, it is doubtful that he will be able to mediate any solution before the end of the year. This means that the UN secretary-general will have no other option but to request adjudication by the ICJ to end the controversy.
 
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