Guyana playing with danger if it opts out of CARICOM Treaty obligations

Mar 22, 2022 News

– Venezuela closely watching our respect for int’l agreements – Greenidge

Economist and Advisor on Borders, Carl Greenidge

PPP/C Parliamentarian and Attorney-at-Law, Sanjeev Datadin

Kaieteur News –

By Kiana Wilburg
The debate regarding Guyana’s Local Content Law which calls for locals to be given first consideration for employment and procurement opportunities in the oil sector and whether such a provision is in harmony with obligations under the Revised Treaty of Chaguaramas (RTC) continues to attract commentary.
Approximately eight days ago, Attorney-at-Law and PPP/C Parliamentarian, Sanjeev Datadin, via his Facebook page, noted that Guyana can so choose to opt out of Treaty obligations that would allow for a hostile and uncontrollable takeover of the country’s booming oil sector, particularly by Trinidadians.
The lawyer recalled that the Caribbean Court of Justice (CCJ) in an examination of opt-out powers as set out in Article 27(4) of the RTC had made clear that a reservation to any treaty obligation can be unilaterally done whilst to opt-out of treaty obligation, it required consent of the other Member States. “The reality is that Guyana can enter a reservation to the relevant part of the RTC and/ or opt out; depending on the prevailing circumstances,” he had argued.
But upon noting these statements, Advisor on Borders and former Foreign Secretary, Carl Greenidge categorically stated that he out rightly disagrees with Datadin’s perspective which has also been echoed by President of the Guyana Chamber of Commerce and Industry (GCCI), Mr. Timothy Tucker. Tucker had also launched an attack on the Caribbean Private Sector Organisation (CPSO) leadership for daring to question whether the Local Content legislation is consistent with Guyana’s obligations under the CARICOM Single Market and Economy (CSME).
Before elaborating on his position, Greenidge said one must understand that Guyana would be playing with danger if Datadin’s “opt out arguments” are further perpetuated, believed and worst, yet, acted on by the government. He warned that Guyanese ought to be more cautious and strive to be informed when speaking on such matters as the implications could be far-reaching.
Expounding on this front, the former Foreign Affairs Minister said non-discrimination has been a key principle underlying the negotiations on liberalisation of the international trading system since the end of World War II and the start of the Uruguay Round in 1982 in particular. Greenidge said it is captured in two rules known as Most Favoured Nation treatment (MFN) and the National Treatment obligation. In simple terms, Greenidge explained that the MFN obligation, the subject of the first General Agreement on Tariffs and Trade (GATT) Article, prohibits a country from discriminating between other countries; the national treatment obligation prohibits a country from discriminating against other countries. Where special privileges are granted, he noted that those privileges have to be extended to all other trading partners. Ironically, given the present context, Greenidge noted that the main exception to this rule is a Common Market – such as the CARICOM Single Market and Economy. He said there is absolutely no reference to petroleum, which incidentally has no significance in economics beyond being a commodity.
The Advisor on Borders noted too that there is neither an exception based on a particular definition of local content or free movement. He asserted that the consistency simply turns on whether ‘Chaguaramas’ permits Caribbean nationals/firms to be treated differently from Guyanese.

GCCI President, Timothy Tucker

“Article 7, Article 31 (2a & 2b), and Article 37 of Chaguaramas in particular, do not permit it, except in clearly defined terms. Therefore, Guyana 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. Also, alleged discrimination by T&T in the past cannot constitute such justification,” explained the former Vice President.
The economist continued, “…That a debate of such import could so quickly reflect heightened ill-will, shows how easily public debate in Guyana, whether in politics or business, can quickly degenerate into personal attacks and abuse. Whilst the Guyana Government has not been party to these contentious exchanges, one of its prominent and new Members of Parliament (MPs) has been and recently, President Irfaan Ali offered a comment to the effect that no Head of State has complained of the alleged breach of the Treaty.”
He added, “In the face of criticisms, both Messrs. Tucker and Datadin have gone on to suggest that, if Guyana’s Treaty obligations have been infringed, Guyana should seek to ‘opt out’, secure exemption from those obligations or ultimately withdraw from the treaty…Suffice it for me to point out the reality in the realms of the Dismal Science and international Trade, namely that after the USA and Canada, the Caribbean is our most important export market and being closed out of the latter market will adversely affect the long-term prospects of Guyana’s key industries and frustrate any effort to diversify out of petroleum products.”
Greenidge also noted that the “opting out attitude” has implications for the country’s national interest as well as its international standing while adding, that it can likely impact support from the international community for Guyana’s case against Venezuela.
The Advisor on Borders noted in this regard that Guyana’s complaint before the International Court of Justice (ICJ) against the Venezuelan Government is based on a number of factors among the most important of which is, Venezuela’s breach of one fundamental legal principle—A State cannot sign a treaty, benefit from the implementation of its provisions for over 63 years then, when convenient, simply unilaterally declare the treaty null and void.
Greenidge categorically stated that the sanctity of treaties is enshrined in Article 26 of the 1969 Vienna Convention on the Law of Treaties (VCLT). Thus, either both parties have to agree on invalidity or a Court or other Tribunal, would have to do so. Since Guyana will not agree to invalidate the Paris Arbitration Award, he said Venezuela would need to seek from a competent international tribunal or authority a declaration to that effect. It has refused to do so.
Greenidge further explained that a second concern about Venezuela’s position turns on a matter not yet before an international Court. In this regard, he said Venezuela’s proclamation of Decrees (referred to as Leonie Decree of 10th January 1968; 1781 of May 27th 2015; 1859 of 2015; 4415 of Jan. 2021, inter alia), in its local legislation purports to confer maritime rights, to which it would not be entitled under international law. He said citizens must bear in mind that a cardinal principle of international law is that [ex post facto] domestic legislation cannot override obligations entered into under the international treaties a country signs. In fact, Greenidge highlighted that Article 27 of the VCLT states that no municipal rule may be relied on as a justification for violating international law. Simply put, “The tail cannot wag the dog!”
Greenidge said too that no matter the issues being fought for, Guyana should not be seen as inconsistent in its treatment of laws, whether local and international in nature.
As regards unhappiness with provisions of an existing agreement such as Chaguaramas by the private sector or the 1899 Paris Award (by Venezuela), Greenidge reiterated that international law does not permit a Sate 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 it deems currently convenient.
Greenidge said, “Opt-outs may be sought and secured during negotiations but not 50 or 5 years after Treaties have been signed and invariably require the consent of the other parties (see Art 237, e.g., of the Revised Treaty which states: Reservations may be entered to this Treaty with the consent of the signatory States).”
He said however, that there is an agreed process by which a disagreement or claim of invalidity can be resolved. “That is why we have the Courts and a CCJ, in particular. A less time-consuming and less costly mechanism than approaching the CCJ itself for a formal opinion would be for the Heads 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,” the Advisor on Borders stated.
What is the Revised Treaty of Chaguaramas?This Treaty provides inter alia, for integration of efforts in economic matters, co-ordination of foreign policies and functional cooperation in a list of areas including labour administration and industrial relations and social security among subscribing states.The Treaty of Chaguaramas established the Caribbean Community and Common Market, popularly known as CARICOM. It was signed on 4 July 1973 in Chaguaramas, Trinidad and Tobago. It was signed by Barbados, Guyana, Jamaica, and Trinidad and Tobago. It came into effect on 1 August 1973. The 15 CARICOM member states and signatories to the Treaty as follows: Antigua and Barbuda, Bahamas, Barbados, Belize, Dominica, Grenada, Guyana, Haiti, Jamaica, Montserrat (a British overseas territory in the Leeward Islands), Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Suriname, and Trinidad and Tobago.