Dear Editor,
On Tuesday last (22nd), Stabroek News and Kaieteur News published a commentary drawing readers’ attention to the importance of honouring international treaty obligations in the current context of unstable international relations. It ought not to be necessary to point out to any Guyanese that CARICOM is our first line of defence in the international fight against Venezuela in its efforts to annex the Essequibo, a territory that they never governed at any point in time in their history. But the commentary became a lightning rod for a debate, about securing greater benefits from the exploitation of Guyana’s petroleum and gas reserves (Newsroom Mar 22 and OilNow, March 23rd & 24th). That debate completely ignored the focus of my commentary and implied that theirs is a battle for Guyanese versus Trinidad and Tobago (T&T) dominance and indeed against international obligations.
The report of the Local Content Task Force chaired by Mr Shyam Nokta, drew the attention of the Government of Guyana (GOG) to take account of Guyana’s obligations under the Revised Treaty of Chaguaramas (RToC) whenever it drafted proposed legislation on local content. The potential conflict between that new legislation and the 2001 treaty is not therefore something dreamt up by me or unknown to well-informed observers. The issue was never one of preventing Guyanese from fully benefitting from the development of the sector.
There appears to be resistance to the view that Guyana as a small state should scrupulously honour its international obligations and especially those pertaining to our regional partners, members of the Single Market and Economy. Surprisingly, those resisting this view first insisted that there was no conflict between the new legislation and the RToC. When challenged, Mr Datadin, the lawyer who made the claim contended that Guyana should either exit the RToC or opt out of the non-discrimination provisions, if there is indeed a conflict. Well, I have pointed out before that not only is there obviously a conflict with CARICOM obligations. (The EU is challenging before the WTO, a Russian Federation law that requires up to 90% of vehicles (machinery, medical devices and textile products) to be domestic products. The WTO law, in contrast, requires its members to treat foreign and domestic producers in a non-discriminatory manner. )
The law – the RToC
While that exchange has been characterised as being one between an economist and a lawyer, the actual challenge before us is the ability to read and interpret the Queen’s English, the language in which the issues are set out in the legislation. It is not highly technical. The RToC and the WTO define discrimination as different treatment of some trading partners and their nationals. Mr Datadin, the lawyer, on the other hand, simply denies the existence of discrimination apparently because he believes that different treatment is justified! Unfortunately, whilst the new MP may have found it to be an acceptable technique in Guyana’s Parliament, it is not an acceptable approach elsewhere, least of all in conventional law courts.
That being said, Mr Datadin contended that Article 27(4) of the Revised Treaty, provides a means of avoiding Guyana’s treaty obligations. However, that article is specifically limited to opting out of ‘…obligations arising from decisions of competent Organs’ (emphasis added). The ‘enlargement issue’ on which the CCJ was requested to provide an Advisory Opinion in 2019 concerned the expansion of the categories of CARICOM nationals entitled to the right to free movement within the Community for the purpose of seeking employment. It was already the subject of decisions of the Conference of Heads of Government. The Court was of the view that reservations such as this, relating to decisions of an organ of the community can be lodged unilaterally by a Member State (e.g. Guyana). Ideally, this should be done at the time the decision is being taken (in this case July 2001), rather than any old time deemed expedient or convenient by that Member State. Furthermore, opt-outs, according to the Court, require the consent of all the parties to the Revised Treaty. Those parties would of course include Trinidad and Tobago, upon which much of the CSME-related fire and brimstone has been directed by the lawyer and Mr Tucker, his ally.
Article 27(4) further stipulates that opt-outs cannot prejudice ‘…fundamental objectives of the Community as laid down in the Treaty’, of which the prohibition of ‘discrimination on grounds of nationality only’ in Article 7 of the Revised Treaty, is one such. Consequently, the opt-out provision in Article 27(4) would not provide succour for those such as Messrs Tucker and Datadin, who support the discriminatory percentages set out in the Local Content Act, as non-discrimination is grounded in an Article of the Treaty, not a ‘decision of [a] competent Organ[s]’ of the Community. In other words, no opt-out is possible from the obligation (not to discriminate against nationals of the other Member States) for two reasons: first, it does not originate as a decision of a competent Organ, but rather an article of the Treaty; secondly, the non-discrimination provision is a fundamental objective of the Community.
Again, in applying the Law of Treaties to this, a careful reader would appreciate that Article 237 of the Revised Treaty, entitled “Reservations”, states that ‘Reservations may be entered to this Treaty with the consent of the signatory States’. This begs the question as to whether it would even be remotely possible for Guyana to enter a reservation to the non-discrimination provision in Article 7 of the Revised Treaty – a fundamental objective of the Community – by securing the consent of the signatories, including Trinidad and Tobago.
When the Court was examining this matter it noted that it would have to decide whether the opting out State was entitled to do so on a reciprocal or non-reciprocal basis, that is, whether the nationals of a State that opted out were also automatically barred from enjoying the rights embodied in the decision. In other words, would Guyana in opting out not be barred from the very rights it seeks to prevent T&T from enjoying?
It is more than likely that the ill-informed and undiplomatic criticism that some members of the private sector have levelled against our CARICOM neighbour would not have advanced the Government of Guyana’s chances of securing such consent to a reservation, had the Article not been a fundamental objective of the Revised Treaty. This would be even more unlikely if Mr Tucker’s preferred approach of ‘slamming ..hands on the table and ..’ were on display.
Turning to Mr. Tucker’s other contribution concerning infringements. T&T is not alone in infringing the Treaty and Guyana is free to have resort to the Courts where such infringements occur. The pre-2015 Guyana Government was held liable for several violations of the Revised Chaguaramas Treaty (RToC). In 2009, for example, the Caribbean Court of Justice (CCJ) ruled against the Government of Guyana (GOG) for, inter alia, not seeking COTED’s permission prior to importing cement from outside the Region. The decision was in favour of Trinidad Cement Limited (TCL) and the latter claimed US$250 million in damages. The Surinam company, Rudisa, challenged at the CCJ the imposition of an ‘environmental’ tax on plastic bottles. In 2014, the CCJ ordered the GOG to pay Rudisa US$6 million in damages. In 2017, as result of a similar case filed prior to 2015, the CCJ ordered the GOG to pay S. M. Jaleel & Co. Ltd., a Trinidad company, the ‘environmental’ tax unlawfully collected, amounting to US$11 million with interest.
In other words, the price of similar personal opinions parading as legal advice has been very high for Guyana taxpayers. Judging from T&T’s reactions, this particular issue will, if the GOG does not amend the legislation in the light of these concerns, end up at the CCJ. At that point we will see whether a view is legally nonsensical simply because it is inconvenient for a state and one of its Parliamentarians.
Mr Tucker whose forte seems to be vitriol, may not be aware that noise alone does not win arguments in international negotiations, however, effective it may be in Guyana. He blames me personally for allowing T&T to take advantage of Guyana but blame is the normal fare of politicians so what is new?! He also attributes to me a quotation, ’the Government will go ahead and sign the agreement’, `all because Trinidad had loaned Guyana $96mn in the 1980s’. It is not acceptable to fabricate quotations when one’s memory fails you especially if you do not have a clear understanding of the issues. Furthermore, the ‘agreement’ to which he referred was not a binding agreement as he implies but actually two MOUs (see e.g. Guyana-Trinidad MOU on Energy Sector Cooperation. OilNow Sept 19, 2018). The first of these was a platform for facilitating bilateral cooperation. The second dealt with cooperation in oil and gas, including arrangements to properly deal with oil spills and involved the exchange of information on how to jointly collaborate within the regional and international framework available to us and already utilised by T&T. Anyone could be forgiven for not understanding that the GCCI could have been instructing the GOG not to sign such a non-binding document! What is more, in 2021 the two governments signed a similar, if not identical, arrangement. I have heard no similarly strong complaints from Mr Tucker.
The belief that that Guyana’s MoFA had been ignoring T&T’s infringements, is quite untrue. The MoFA established a forum, the National Advisory Committee on External Negotiations (NACEN) in which several of the key private sector, service bodies, such as the GMSA, GCCI and Transparency, are represented. That forum monitors and advises Government on our international agreements and their implementation. The minutes of 2018 and 2019 do not support Mr Tucker’s contentions. They point to T&T’s obstinacy and the dispatch of a team in 2019 for bilateral talks. Mr Tucker might like to consult with his representative before pronouncing so definitively about matters to which he was not a party.
Mr Tucker’s allegation about Guyana being classified as a ‘disadvantaged country within the context of CARICOM and … [was] to be treated similarly to the OECS..” suggests that he is confused about the matter. Indeed, if that were so the very privileges Mr Tucker seeks on behalf of some elements of the private sector could already be enjoyed under the RToC. The special privileges CARICOM member states may enjoy is defined by Art 4 where Guyana has been classified as an (MDC).The specific rights of the LDCs, the OECS states, are set out under Art 164 of the RTC and include first access to the Caribbean Development Fund (CDF). Guyana is not mentioned in that context at all. Such rights as the OECS can enjoy are time-bound and require the agreement of all the CARICOM Member States. At the time of the negotiation of the Revised Treaty, Guyana was able to convince the member states that the special arrangements intended for LDCs should be extended to Heavily Indebted and Poor Developing Countries (HIPCs); hence the inclusion of Article 156 in the Revised Treaty. We are no longer classified as a HIPC. Mr Tucker seems to be proposing that we now seek to be classified as a disadvantaged state in order to be able to exclude T&T firms from most of the opportunities being discussed under the Local Content debate. Such a decision would require the concurrence of T&T, the very state being attacked so ferociously by Mr Tucker. Is it conceivable that Guyana with its status as a burgeoning oil-giant with the fastest growing economy in the Hemisphere could secure agreement for Guyana be treated as an LDC? Which of our CARICOM or international partners would consent to such an inconsistency, to satisfy a search for monopoly by segments of the Guyana private sector?
Mr. Tucker has stated on his Facebook page that ‘they [sic.] are a number of legal ways to resolve, fix or amend the Treaty, but there must be a will to do so’. I look forward to his further elucidation of how this would be possible; in the interim, I respectfully caution that he should be aware that it will take more than the requisite will. Suffice to say that the 1969 Vienna Convention on the Law of Treaties provides in Part IV for “Amendment and Modification of Treaties”. The General rule in Article 39 states inter alia that ‘A treaty may be amended by agreement between the parties’. The parties in this case would include T&T!
Conclusion
I am an economist rather than a lawyer. That is a fact but I have represented many states besides Guyana, in the course of negotiating international trade agreements affecting or on behalf of many corners of the world. From that experience I am sure that this dispute will end up at the CCJ unless the GOG amends the legislation in question. Also certain is that, Guyana is likely to add to the long list of its lost cases, judgment on which has been costly for the Guyana taxpayer. We can say without a doubt that the proposals of Mr Datadin and his colleague as regards opting out hold no water at all especially because their success depend on decisions by the very state/s that are the object of their vitriol.
One would have expected ‘the lawyer’ to deal with the issues, such as the misunderstanding of the RToC, failure to read the WTO statutes and my call to explain just how Guyana could increase its exports to the Caribbean if it were to leave CARICOM (repudiate the RToC), which I raised. Instead of that, they opted to deem CARICOM ‘a failure’ and to finger T&T as the main source of Guyana’s regional trade problems.
Yours faithfully,
Carl Greenidge
