Former Foreign Affairs Minister Carl Greenidge has said that any inconsistency by Guyana in its treatment of laws—local and international—would affect its search for support among the international community and also has far-reaching implications for its border controversy with Venezuela which is currently before the International Court of Justice (ICJ).
In an article published by this newspaper on Tuesday, Greenidge submitted that Guyana’s treatment of Haitians, the passage of its local-content legislation for the Petroleum sector and suggestions from some of opting out of the CARICOM-founding Treaty of Chaguaramas are prime examples of inconsistency in the application of the rule of law and honouring its obligations under international law.
Greenidge said that the Guyana government’s success in the international arena, and underlying the support it has received in its efforts to resist Venezuela “is based, in no small measure, on the reputation…it gained for being an adherent to, and supporter of, the rule of law, in the international sphere.”
According to him, many observers would attribute most of the successes in the international arena to the effectiveness of Guyana’s Foreign Service, the “quality of its diplomats” and what he described as “formidable reputations;” among others, but contends, “the other part is consistency in public policy.”
Greenidge said that Guyana has routinely supported other states in the face of bullying and wrongs by larger members of the UN in particular and big international institutions, advancing its prudence in embracing the rule of law “even when interests including those of close bilateral partners are at stake.”
Guyana he says, “has tried to be balanced in its international relations under the banner it embraces as non-alignment.”
The former Foreign Affairs Minister said that Guyana’s complaint before the ICJ is based on a number of factors, among the most important of which is Venezuela’s breach of the fundamental legal principle that a state cannot sign a treaty, benefit from the implementation of its provisions for over 63 years and then—when convenient—simply unilaterally declare the treaty null and void.
The sanctity of treaties he notes, is enshrined in Article 26 of the 1969 Vienna Convention on the Law of Treaties (VCLT) and thus, either both parties would have to agree on invalidity or, a Court or other Tribunal, would have to do so.
Greenidge sought to point out that a cardinal principle of international law is that domestic legislation cannot override obligations entered into under the international treaties a country signs; for which Article 27 of the VCT provides ‘that no municipal rule may be relied on as a justification for violating international law.’
Greenidge shared that just recently it was brought to his attention that the Inter-American Commission on Human Rights (IACHR) will soon hold a virtual hearing on the ‘Situation of Human Rights of Haitian People in Human Mobility in the Region.’
The hearing, he said, is to be a forum for testimonies on the alleged escalation in ‘the cycle of migration-related abuses and torture faced by Haitian migrants in their journeys across the Americas’ and references “well-documented abuses” stemming from racism in North and Central America as well as the growing incidence of similar abuses in the Caribbean whose member-states—signatories to the Revised Treaty of Chaguaramas—are obliged to permit Haitians hassle-free travel and an automatic six-month stay upon entry.
Greenidge said he was made to understand that one agency will be contending that Guyana has arbitrarily stripped Haitians of that right; adding that it has been reported that there are numerous incidents of serious abuse which, “unfold in the context of a rising tide of racist and xenophobic rhetoric in Guyana and other CARICOM states that stigmatize Haitian migrants as undesirable…”
He said that apart from the embarrassment of being cited before the Commission for alleged Human Rights breaches “of all things,” against Caribbean citizens, the story has other implications for Guyana.
Major challenge
According to Greenidge, as Chief Justice Roxane George last year observed, a major challenge here has been the inconsistent explanations being offered by authorities on the Haitians issue.
Haitians, he noted, have been arrested, fined and deported on grounds that they are victims of people trafficking; “but the perpetrators escape the attention of the law.”
The Attorney General and legal system he said, prefer to penalize the victims, though he adds that most Haitians, “as the figures show and the authorities admit,” use Guyana as a point of transit.
He said that in contrast, there are far more Venezuelans, Cubans and Brazilians in Guyana than there ever are Haitians; while noting that the Venezuelans and Brazilians are visible on the streets of Georgetown “and most are trafficked or employed without ever acquiring work permits.”
Yet, unlike the Haitians he said, they do not attract anything like a proportional attention of the Police.
Greenidge said “it is this inconsistency, if not absurdity, rather than stupid or biased observations, which is giving rise to questions about Guyana’s policies;” while opining that it has fed the effort to have the Guyana government arraigned before the regional body on Human Rights, the IACHR and can have adverse implications for Guyana’s international standing.
At the same time, he said that an ill-tempered debate has erupted in the Region about whether or not Guyana’s recent legislation on Local Content in the Oil and Gas sector is consistent with the country’s obligations under the regional treaty underpinning Caribbean integration and most importantly, the CARICOM Single Market.
Greenidge said that President of the Georgetown Chamber of Commerce and Industry (GCCI), Timothy Tucker, launched an attack on the Caribbean Private Sector Organisation (CPSO) leadership because they “dared to question” whether the legislation was consistent with Guyana’s obligations under the CARICOM Single Market and Economy (CSME).
On this point he said that local attorney Sanjeev Datadin, in support of Tucker claimed definitively that the legislation does not infringe the Treaty of Chaguaramas by which CARICOM was created, “because it does not prevent Caribbean citizens from entering the oil and gas sector in [but that] it merely concretizes the production sharing agreement.”
Greenidge said that Datadin has accused those who disagreed with Tucker of, “clouding the obligations under the CARICOM Revised Treaty of Chaguaramas with investment obligations.”
Advancing the principle in international law of the Most Favoured Nation treatment (MFN), the former foreign affairs minister said that it prohibits a country from discriminating between other countries; while noting that where special privileges are granted, those privileges have to be extended to all other trading partners.
Greenidge said that ironically given the present context, the main exception to this rule is a Common Market—such as the CARICOM Single Market and Economy.
“There is absolutely no reference to petroleum, which incidentally has no significance in economics beyond being a commodity. Neither is there an exception based on a particular definition of local content or free movement. The consistency simply turns on whether ‘Chaguaramas’ permits Caribbean nationals/firms to be treated differently from Guyanese,” Greenidge said.
Articles 7, 31 (2a & 2b) & Article 37 of the Treaty of Chaguaramas in particular, he said do not permit it, except in clearly defined terms.
Guyana he said, is not in a position to ignore the rule on grounds that it has either now thought up a justification or has just begun the production of petroleum; neither can alleged discrimination by Trinidad & Tobago in the past, constitute such justification, he said.
Greenidge notes that in the face of criticisms, both Tucker and Datadin have gone on to suggest that, if Guyana’s obligations have been infringed, Guyana should seek to “opt out,” secure exemption from those obligations or ultimately withdraw from the Treaty.
Greenidge advances, however, that after the US and Canada, the Caribbean is Guyana’s most important export market and reasons against this background that being closed out of the latter market would “adversely affect the long-term prospects of Guyana’s key industries and frustrate any effort to diversify out of petroleum products.”
Greenidge reasoned that such approaches by Tucker and Datadin have implications for Guyana’s national interest, its international standing and are likely to impact on support by the international community for its case against Venezuela.
As regards dissatisfaction by the GCCI with an existing agreement such as the Treaty of Chaguaramas or the 1899 Paris Award by Venezuela, Greenidge said that international law does not permit a State to sign a treaty, enjoy specific benefits as a signatory, adhere to the provisions then suddenly refuse to adhere to those provisions for whatever reason is deems currently convenient.
“Opt-outs may be sought and secured during negotiations not 50 or 5 years after Treaties have been signed and invariably require the consent of the other parties,” he said.
On this point he said that there is an agreed process by which a disagreement or claim of invalidity can be resolved and that that is why “we have the Courts and a [Caribbean Court of Justice] CCJ, in particular.”
He, however, went on to offer that a less time-consuming and less costly mechanism than approaching the CCJ itself for a formal opinion would be for the Heads of governments of CARICOM to trigger either the Good Offices Dispute Settlement Mechanism, to establish a Working Group of Heads of Government to consider the matter or to request an Advisory Opinion from the CCJ.
“Any of these could spare us the poisonous debate to which we have been subjected,” Greenidge said; while adding, “Whether Guyana is dealing with the CARICOM single market and economy, international trade disputes or the World Court, it is in our interest for Guyanese and their Government to recognize consistency and to consistently embrace the rule of law in confronting the challenges these fora pose.”
