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INTERNATIONAL COURT OF JUSTICE WHITE PAPER OF THE VENEZUELAN COUNCIL ON FOREIGN RELATIONS (COVRI) REGARDING THE PENDING CASE ARBITRAL AWARD OF 3 OCTOBER 1899 (GUYANA v. VENEZUELA) STATEMENT OF FACTS, JURISDICTION AND ADMISSIBILITY sent to the Registry of the Court on 9 December 2020 prepared by Dr. Kenneth Ramírez _________________ COUR INTERNATIONALE DE JUSTICE LIVRE BLANC DU CONSEIL VÉNÉZUÉLIEN POUR LES RELATIONS INTERNATIONALES (COVRI) CONCERNANT L’AFFAIRE PENDANT SENTENCE ARBITRALE DU 3 OCTOBRE 1899 (GUYANA c. VENEZUELA) EXPOSÉ DES FAITS, COMPÉTENCE ET RECEVABILITÉ envoyé au Greffe de la Cour le 9 décembre 2020 preparé par Dr. Kenneth Ramírez TABLE OF CONTENTS I. Introduction...............................................................................................4 II. Statement of Facts: the Null and Void 1899 Award................................15 A. Historical Rights and Legal Titles of Venezuela................................15 B. Origins of the Dispute........................................................................27 C. Vices of the 1897 Arbitration Treaty..................................................30 D. Grounds of Nullity of 1899 Award......................................................40 E. Venezuelan always protested the 1899 Award and was not estopped to denounce the nullity of it................................................................73 III. Statement of Facts: the 1966 Geneva Agreement and its implementation until 2018................................................................................................97 A. Travaux Préparatoires of the 1966 Geneva Agreement....................97 B. The 1966 Geneva Agreement reopened the Dispute......................111 C. The first step of the dispute settlement procedure set out in the 1966 Geneva Agreement: Mixed Commission 1966-1970.......................118 D. Protocol of Port of Spain (suspension of Article IV of the 1966 Geneva Agreement) and bilateral negotiations: 1970-1982............122 E. The failure of Guyana and Venezuela to agree under Article IV (1) of the 1966 Geneva Agreement: 1982-1983.......................................128 F. The first referral of the controversy to the U.N. Secretary-General under Article IV (2) of the 1966 Geneva Agreement: 1983-1989....133 G. The Good Offices process 1990-2014 ...........................................140 H. The second referral of the controversy to the U.N. Secretary-General under Article IV (2) of the 1966 Geneva Agreement: 2015-2016....146 I. Good Offices with stregthened mandate of Mediation and the wrong choice of the Court as next means by the U.N. Secretary-General: 2017-2018.......................................................................................151 IV. Questions on Jurisdiction and Admissibility..........................................158 A. Introduction: The Court has not jurisdiction on the Dispute.............158 B. Venezuela has never consent the compulsory jurisdiction of the Court on matters of vital interest and territorial integrity: the Gil Borges Doctrine...........................................................................................162 C. The Article IV of 1966 Geneva Agreement is not a compromissory clause, but a pactum de negociando, which is not by itself a basis for the jurisdiction to the Court..............................................................180 D. The role of U.N. Secretary-General in the Article IV of 1966 Geneva Agreement: his (wrong) choice of the Court as next means is not sufficient to confer jurisdiction to it on the Dispute, and constituted an ultra vires act...................................................................................191 E. The Court has not Jurisdiction Ratione Materiae............................201 F. Response to the question posed by Judge Bennouna in the Oral Hearing on the question of the Court’s jurisdiction..........................209 G. Objections to the Admissibility of the unilateral Application filed before the Court by Guyana.......................................................................213 V. Conclusion............................................................................................222 To the Registrar of the International Court of Justice. The undersigned, duly authorized by the non-governmental think tank Venezuelan Council on Foreign Relations (hereinafter referred to as “COVRI”, its acronym in Spanish), has the honour to submit to the International Court of Justice, in accordance with Article 53 (2) of the Statute of the Court and paragragh 31 of the Judgment Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) of 31 June 1986, this White Paper of the Venezuelan Council on Foreign Relations (COVRI) regarding the case Arbitral Award of 3 October 1899 (Guyana v.Venezuela). Statement of Facts, Jurisdiction and Admissibility. I. INTRODUCTION 1. By this extra-procedural document titled White Paper of the Venezuelan Council on Foreign Relations (COVRI) regarding the pending case Arbitral Award of 3 October 1899 (Guyana v.Venezuela). Statement of Facts, Jurisdiction and Admissibility, the COVRI presents to the International Court of Justice (hereinafter referred to as “the Court”) the general view and main arguments of the Venezuelan Civil Society, and raises particular questions about the jurisdiction and the admissibility, in relation to the unilateral Application that the Government of the Co-operative Republic of Guyana (hereinafter referred to as “Guyana”) filed in the Registry of the International Court of Justice on 29 March 2018, instituted proceedings against the Government of the Bolivarian Republic of Venezuela (hereinafter referred to as “Venezuela”), which “...requests the Court to confirm the legal validity and binding effect of the Award regarding the Boundary between the Colony of British Guiana and the United States of Venezuela, Decision of 3 October 1899”1 (hereinafter referred to as “1899 Award”)2. 2. In the meeting held, by the President of the Court, H.E. Abdulqawi Ahmed Yusuf, with the representatives of the Parties, on 18 June 2018, the Agent of Guyana indicated that its Government wished to have at its disposal a period of nine months for the preparation of its Memorial; and the Agent of 1 Application Instituting Proceedings of Guyana, para. 1. 2 “Award regarding the Boundary between the Colony of British Guiana and the United States of Venezuela, Decision of 3 October 1899”, Reports of International Arbitral Awards, Vol. XXVIII, pp. 331-340. 4 Venezuela stated that its Government considers that the Court manifestly lacks jurisdiction and that Venezuela has decided not to take part in the proceedings. 3. The President of the Court, H.E. Abdulqawi Ahmed Yusuf, adopted the Order of 19 June 2019, which pursuant to Article 79 paragraph 2 of Rules of the Court, stated that, in the circumstances of the case, it must resolve first of all the questions of jurisdiction and admissibility, and that these questions should accordingly be separately determined before any proceedings on the merits. Because it is necessary for the Court to be informed of all of the legal and factual grounds on which the Parties rely in the matter of its jurisdiction, also, the President of the Court decided that the written pleadings shall first be addressed to the question of the jurisdiction of the Court; and fixed the time-limits for the filing of those pleadings. Accordingly, Guyana filed its Memorial on 19 November 2018; but Venezuela only remitted a letter to the Registry of the Court on 12 April 2019, in which reiterated its decision of not to participate in the written phase of proceedings on the questions of jurisdiction of the Court, but manifested its willingness to cooperate in good faith with the Court, providing information in order to assist it in the duty imposed by Article 53 (2) of Statute of the Court. In this cases, the Court has held: “...the experience of previous cases in which one Party has decided not to appear shows that something more is involved. Though formally absent from the proceedings, the Party in question frequently submits to the Court letters and documents, in ways and by means not contemplated by the Rules. The Court has thus to strike a balance. On the one hand, it is valuable for the Court to know the views of both Parties in whatever form those views may have been expressed. Further, as the Court noted in 1974, where one Party is not appearing ‘it is especially incumbent upon the Court to satisfy itself that it is in possession of all the available facts’ (Nuclear Tests, I.C.J. Reports 1974, p. 263, para. 31; p. 468, para. 32). On the other hand, the Court has to emphasize that the equality of the Parties to the dispute must remain the basic principle for the Court. The intention of Article 53 was that in a case of non-appearance neither Party should be placed at a disadvantage”3. 4. Accordingly, on 28 November 2019, Government of Venezuela sent the Memorandum of the Bolivarian Republic of Venezuela on the Application filed before the International Court of Justice by the Cooperative Republic of Guyana as extra-procedural document “...aimed to demostrating the 3 Military and Paramilitary Activities in and against Nicaragua, I.C.J., Reports 1986, para. 31, p. 2 (underline added). 5 manifest lack of jurisdiction of the Court and the absence of Venezuela’s consent to have this case adjudicated by the Court, as its own Statute requires”4. 5. The position of Venezuela of
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