8th Michael Manley Lecture
Jamaica and the World: Aspects of International Law
by Professor Stephen Vasciannie, Principal of the Norman Manley
Law School, UWI
Delivered On December 10, 2009
Introduction
When the Chairman of the Michael Manley Foundation, Mr Delano
Roosevelt Franklyn, asked me to deliver today’s lecture, I did
not hesitate in saying yes. Mr Franklyn and I have known each
other – and have been friends – for almost forty years; if
anything, this should tell you that Mr Franklyn does not look
his age. So, I wanted to give this lecture because Mr Franklyn
paid me the distinct honour of asking me to do so. His request
brought back enduring memories of teenaged exchanges across the
classroom at Kingston College about the fortunes, not only of
Floralee, but also of our political leaders. This was the
seventies: who was up today?
Was it Michael Manley, the Comrade Leader, Comrade
Conceptualiser? or was it Papa Eddie Seaga, sharpening up for
deliverance? Would Charlton Collie’s ideas, of a certain
political colouration, prevail in the broad sweep of history? Or
would Delano’s donation of democratic socialism and change, of a
different colouration, represent the future? The teenager of
that era of dynamism and turbulence, like Dennis Scott’s ‘Uncle
Time’, has witnessed much in our politics from then: this
background, and the need for us to reflect on the significance
of the 1970s, served as a motivating force for me to accept the
kind invitation of the Michael Manley Foundation. I express my
gratitude to the Foundation as a whole, and also to its
supremely efficient Executive Officer Mr Louis Marriott, who has
been kind, thorough and sensitive.
But there were other reasons to accept this invitation. About
two months ago, the Most Honourable Edward Seaga, the
aforementioned Papa Eddie, invited me to be a speaker at the
launch of one of his books, on the Grenada intervention of 1983.
The Grenada Intervention: The Inside Story is a short, incisive
book about the circumstances that led to the military
intervention in Grenada by United States and Caribbean forces in
1983.
The book also examines the legal issues that arose in
connection with the intervention and, in particular, the central
question whether the intervention was contrary to International
Law. Mr Seaga, who was truly an insider in respect of those
events, has taken on the issues from his perspective, which is
highly commendable. But it occurred to me then – as it has
before – that that many others should also be taking up the
challenge of reflecting and writing about the 1970s and 1980s in
Jamaican and Caribbean political life. The late Michael Manley
himself led the trail on some matters, and so, his Politics of
Change, A Voice at the Workplace, Up the Down Escalator,
Struggle in the Periphery, The Poverty of Nations, and indeed, A
History of West Indies Cricket, are testimony to his standing as
scholar-prince in the region.
So, against this background, I jumped, for a second reason,
at Mr Franklyn’s kind invitation: we need to study closely our
recent past and the present, from the perspectives of both
insiders and outsiders.
Today, I walk with an outsider’s perspective, as I
raise my hat in tribute to the insiders, of different political
colours, who have already started upon the road to writing down
their political, economic and legal recollections. And here I
note, in the form of a tribute, that the Honourable David Coore
has presented a series of authoritative commentaries on aspects
of Jamaica’s constitutional arrangements (including an
outstanding article on the breakdown of the Federation in the
journal Social and Economic Studies). Some UWI writers, such as
Rex Nettleford, Anthony Harriott, Louis Lindsay, Rupert Lewis,
Trevor Munroe, Robert Buddan and Brian Meeks, have also produced
strong works of political scholarship that help us to understand
our past even as we envision Caribbean futures (to borrow a
phrase from Professor Meeks).
Among Caribbean political leaders, Michael Manley’s range of
intellectual and political interests is outstanding. In addition
to his books, there is a large collection of speeches, some of
which are epic in tone and content. In deciding on the themes
for my presentation, therefore, there was an embarrassment of
riches, and I have decided to stay close to home. I wish to look
at three areas of International Law, and to consider ways in
which Michael Manley sought to use International Law to bring
about social and political change. This analysis, I hope, will
help to sharpen our understanding of the relevance and limits of
International Law to day-to-day activities in Jamaica. The three
areas I wish to consider are:
(a)International Law and the Use of Force;
(b)International Investment Law; and
(c)Human Rights Law
International Law and the Use of Force
The main rules of International Law concerning the use of force
are set out in the United Nations Charter. In essence, Article
2(4) of the Charter indicates that all States shall, in their
international relations, refrain from the threat or use of force
against the territorial integrity or political independence of
other countries. This rule, which has also been accepted by
States as a statement of customary international law, was
accorded the status of a peremptory norm of jus cogens by the
International Court of Justice in the Nicaragua Case. As a
peremptory norm, the prohibition on the use of force trumps
other rules of International Law: it is not open for States to
enter into agreements with each other to use force against other
countries.
But the United Nations Charter sets out two express
exceptions to the prohibition on the use of force in Article
2(4). The first of these pertains to self-defence. By virtue of
Article 51 of the Charter, States may use force for purposes of
self-defence, and such force will not be in breach of Article
2(4). Self-defence may be exercised either individually by a
State or collectively; in the case of collective self-defence,
States may come together to protect their interests.
There is an interesting question about collective self-defence:
as a matter of law, does each State exercising collective self-defence
need to be under attack in order to invoke the right of self-defence?
Or, alternatively, can one State under attack call upon third
States to provide assistance; and when the third States give
help are they exercising collective self-defence? In the
Nicaragua Case, judges of the International Court of Justice
offered divergent perspectives on this point.
Another longstanding point of contention in relation to self-defence
concerns whether there needs to be an armed attack on a State
before that State may exercise self-defence? In other words,
does Article 51 permit anticipatory self-defence? On one view,
the words expressly used in Article 51 indicate that there does,
in fact, need to be an armed attack before States may rely on
the concept of self-defence – Article 51 actually uses the term
“if an armed attack occurs” in the text.
This view is sometimes countered, however, mainly on two
grounds. In the first place, it is said that, as a matter of
policy, it is unrealistic to await a physical attack in all
cases before a State can exercise self-defence: awaiting an
attack would lead the victim State to be a sitting duck at the
time when it can best defend itself. Secondly, anticipatory
self-defence may, in textual terms, be supported by reference to
the fact that Article 51 of the Charter enshrines “the inherent
right of self-defence”: arguably, the right to self-defence
which States have inherently allows them to strike before they
are destroyed. This reading of the law is supported by State
practice which preceded the formulation of Article 51, and
probably by subsequent practice as well.
In particular, the State practice in support of the inherent
right of self-defence is sometimes said to be summarised in the
statements associated with the Caroline Incident involving the
Governments of the United Kingdom and the United States; there
it was agreed by the antagonists that anticipatory self-defence
was permitted in the law if the occasion for anticipatory self-defence
was an attack that was on its way, “instant, overwhelming,
leaving no choice of means and no moment for deliberation.”
Overall, therefore, one exception to the prohibition on the use
of force in Article 2(4) of the UN Charter is the use of force
in self-defence: this may be collective or individual self-defence,
and the better view appears to be that States may exercise
anticipatory self-defence in some circumstances, but these
circumstances are quite limited.
The second exception to the prohibition on the use of force in
Article 2(4) concerns collective security under Chapter VII of
the UN Charter. In brief, Chapter VII of the Charter allows
States to come together under the auspices of the United Nations
to use force for collective purposes; this may be done when
there is a threat to, or breach of, international peace and
security, or an act of aggression on the part of a State. When
the predicated circumstances exist, then the United Nations
Security Council may vote, pursuant to Chapter VII, to use
military force to rectify the situation that amounts to a threat
to the peace, breach of the peace or act of aggression. During
the period of the Cold War, there were very few instances of the
use of force pursuant to Chapter VII largely because Security
Council resolutions on the use of force were barred by the
exercise of the veto by at least one of the permanent members of
the Security Council.
In the immediate aftermath of the end of the Cold War, the
situation changed, and so the resolutions on the first Iraq War
in 1991 and on Haiti in 1994 stand as examples in which the
United Nations supported the use of force pursuant to Chapter
VII.
This scheme of International Law on the use of force works in
the interest of small States; specifically, the prohibition of
the use of force challenges the notion that might per se is
right. At the same time, the possibility of relying on force in
self-defence ensures that peaceful States are not disadvantaged
by their adherence to the rule of law; and the provisions for
collective security under Chapter VII of the Charter allow for
the United Nations as a group to rally for the protection of
militarily weak countries.
But this scheme contains a gap that has long been of concern to
States and policy-makers. The United Nations Charter bars the
use of force and then expressly says force may be allowed in two
circumstances: self-defence and collective security pursuant to
Chapter VII. But what about other circumstances, where the
United Nations Charter is silent? Can States use force for
reasons other than those expressly allowed in the Charter? The
short answer to this appears to be no, but this response has
been challenged on strong grounds. So, for example, there is
certainly a case that force should be allowed to bring an end to
genocide and other serious, widespread instances of human rights
violations. In short, many argue that States should be allowed
to intervene to avert or end humanitarian crises that “shock the
conscience of mankind.” In recent years, this policy question
has been of grave concern to the United Nations, and former
Secretary General Kofi Annan, in particular, was cogent in his
arguments for humanitarian intervention, whether under the
notion of responsibility to protect, or using other words.
So, should there be instances in which the use of force is
permitted even if they do not fall within the exceptions to
Article 2(4) of the United Nations Charter? To some extent, the
answer to this question turns on one’s underlying philosophy of
international relations; and on this point, Michael Manley’s
reflections, in The Politics of Change, are illuminating. In
Chapter 3, on Foreign Policy, he wrote:
“The only wars that are morally justified in history are those
dedicated to national liberation where it is clear that no other
method can succeed. Therefore a policy of enlightened
self-interest will commend to any intelligently-led nation the
conclusion that peace is in every man’s interest in the end.
Hence every country, and Third World countries even more so, has
a tremendous investment in the success of the United Nations.”
Mr Manley then considers what he regards as a clear case
concerning the use of force:
“… (A) country like Jamaica must be totally dedicated to the
active support of all those measures that can lead to the
overthrow of the apartheid regime in South Africa, the Smith
regime in Rhodesia and the Portuguese tyranny in Angola and
Mozambique. In other words, where wars of liberation for the
purpose of establishing national freedom are being fought, the
objective of freedom legitimises them and commands our
unswerving support.”
From this, we may confidently extrapolate that if the United
Nations Charter prohibits the use of force for national
liberation or anti-colonial purposes, then Mr Manley would
reject the formulation in the Charter. At the time when Mr
Manley wrote The Politics of Change, the United Nations was, in
fact, grappling with this issue. In the end, the United Nations
Security Council came to the view that the situation in Southern
Africa amounted to a threat to, or breach of, international
peace and security, thus suggesting that the use of force would
have been legally justified. Notice, however, that Mr Manley
reached the conclusion that the use of force would be justified
to assist the Frontline States and the black majority in South
Africa by a more direct route than that taken by the Security
Council. For Mr Manley, the morality of the claim against
apartheid oppression and colonial hegemony trumped other
considerations. He wrote with force:
Can one… say that the black African does not have the moral
right to resort to arms in the pursuit of freedom? And which
metropolitan nation would dare to deny this right?”
It is clear from the foregoing, therefore, that Mr Manley was
prepared to support the use of force for national liberation
even if this was not expressly allowed under the terms of the
United Nations Charter. But, at the same time, he acknowledged
the difficulty of distinguishing permissible instances of the
use of force from others. He wrote:
“If terrorism is defined in a manner that includes African wars
of liberation it is very difficult to see how one can oppose it.
However, terrorism in the sense of hijacking planes, the
slaughter at the Munich Olympics and indeed all acts that seek
to involve innocent third parties as a means of applying
pressure to an enemy represent outrages against humanity which
are intolerable. The problem is how to distinguish the
legitimate from the rest. One might retort that there is no
situation in which violence can be justified at all. I am
instinctively passivist and intellectually a part of the
non-violent tradition of Ghandi and Martin Luther King. However,
where one is faced with a tyranny like that of South Africa, one
is forced to concede that there is not the remotest possibility
that non-violent methods would lead to either the overthrow of
that regime or even its substantial modification.”
It appears, therefore, that in Mr Manley’s scheme where
non-violent methods are likely to be unsuccessful in
overthrowing or changing a horrendous regime, then the use of
force may be justified. This is a reasonable line of approach,
but it is to be noticed that it encounters the usual problem of
classification. One man’s terrorist is still sometimes another
man’s freedom fighter. This adage, though, should not prevent us
from attempting to identify the terrorist: it simply emphasises
that classification is sometimes a challenging task.
Another challenge for Mr Manley’s world view on the use of force
in international law arose in the context of the Grenada crisis
of 1983. I go further. The Grenada crisis had the effect of
challenging the intellectual assumptions of both left and right
in the Caribbean, and offers no satisfactory solutions. On the
issue of the use of force to bring an end to the crisis in
Grenada, the stronger moral arguments point in one direction,
while the stronger legal arguments point the other way.
As to the moral arguments, when we cut through the
Marxist-Leninist verbiage, the short point is that one faction
of the People’s Revolutionary Government caused or permitted the
murder of Maurice Bishop, Prime Minister; Unison Whiteman,
Minister of Foreign Affairs; Jacqueline Creft, Minister of
Education; Norris Bain, Minister of Housing; Vincent Noel and
Fitzroy Bain, trade unionists; Sergeant Dorseet Petres and
Warrant Officer Raphal Mason; and a number of other Grenadians.
From the left, then President Fidel Castro condemned the murders
in the following terms, quoted by Mr Seaga in his recent book on
the intervention:
“No doctrine, no principle, nor position proclaimed as
revolutionary and no internal division can justify savage
methods such as the physical elimination of Maurice Bishop and
the outstanding group of honest and worthy leaders who died…”
So, in moral terms, the intervention that followed upon the
murders is not hard to justify if one attaches significance to
the right to life. Other strong arguments for intervention can
also be found in the inordinately high level of military
equipment found in Grenada following the intervention, and in
the fact that the People’s Revolutionary Army had imposed a
“shoot on sight” curfew as a means of securing order. This was a
society in fear which had departed from the norms of political
behaviour associated with Commonwealth Caribbean societies.
But, to reiterate, although the morality of the intervention
points one way, the law suggests something quite different.
Return to Article 2(4) of the United Nations Charter, together
with Article 51 and Chapter VII: no force is allowed except in
self-defence or to address problems of international peace and
security. The United States and Caribbean forces appear, prima
facie, to have violated the United Nations Charter when they
landed in Grenada.
This conclusion recommended itself to the vast majority of
States that voted in the General Assembly in 1983 to condemn the
intervention. In the face of such condemnation, various legal
arguments have been offered by supporters of the intervention.
Among other things, it has been suggested that the intervention
was justified by reference to Article 8 of the Treaty
establishing the Organisation of Eastern Caribbean States; that
it was justified by reference to an invitation given by the then
Governor-General of Grenada, Sir Paul Scoon; and that the
intervention was necessary to protect American nationals in
Grenada.
Each of these arguments is flawed. Article 8 of the OECS Treaty
required a unanimous vote to support the use of force, but
Grenada was absent from the meeting at which the vote was taken.
Moreover, Article 8 was designed as a self-defence provision
against external aggression (saying nothing about internal
aggression). And perhaps most importantly from the legal
standpoint, a provision in a regional treaty calling for the use
of force on a member of that region would be invalid to the
extent that it sought to allow the use of force on terms
contrary to those set out in the jus cogens rule in the United
Nations Charter.
With respect to the gubernatorial invitation, one problem was
that the Governor-General may not have had authority to invite
troops into Grenada, this being the prerogative of the persons
who held de facto control in Grenada or the remaining members of
the People’s Revolutionary Government. The peculiar nature of
the invitation has also been criticised. It was delivered to the
intervening forces after they arrived in Grenada, appearing to
be an ex post facto attempt to find permission for the entry of
troops.
With respect to the argument based on the need to protect
American nationals, the main difficulty is that intervention to
protect nationals – if it is allowed in International Law – must
be undertaken in a manner proportionate to what is required to
save the nationals. So, at most, intervention to protect
nationals could have allowed the removal of the Americans from
Grenada; it did not justify a change of Government as this is
unquestionably a disproportionate response to the danger to
American citizens.
In his publication on the intervention, Mr Seaga has also raised
an argument based on the idea that the Cubans in Grenada were
mercenaries, and that International Law allows intervention to
tackle mercenary activity. This argument can be traced back to
the late Aubrey Fraser, writing in the West Indian Law Journal
in 1983. It runs as follows: (a) the Cubans in Grenada were
mercenaries, (b) Article 8 of the OECS Treaty allows member
States to take measures to combat the activities of mercenaries,
and (c) measures to fight mercenaries are allowed as part of the
inherent right of self-defence as provided for in Article 51 of
the Charter.
With respect, this argument is as problematic as others
mentioned as legal justifications for the intervention. In the
first place, it is highly debatable that the Cubans were
mercenaries: they were not specially recruited to fight in armed
conflict, nor were they motivated to take part in fighting for
private gain, and so they did not meet the main criteria for
mercenary status. It also appears to be true that the Cubans did
not take part in fighting before the arrival of the American-led
forces. Thus, they were not mercenaries at the time when the
decision to intervene was taken.
Secondly, even if the Cubans fit the definition of
mercenaries, the argument based on Article 8 does not stand up;
for, as already noted, Article 8 required a unanimous vote of
members of the OECS to justify the use of force, and there was
no unanimity given the absence of Grenada from the vote in
favour of intervention. On a broad view, the mercenary argument
presented in The Grenada Intervention and the West Indian Law
Journal is also weakened by the way it has been applied.
Mercenary activity can give rise to a response in self-defence
if the mercenaries are fighting against the governing group that
is in de facto control of territory. But where that governing
group has invited foreigners to fight on the territory, then
this does not give rise to the right of self-defence: it is the
State that has invited the fighters.
Overall, therefore, I believe that the intervention was not
lawful, but that it was justifiable as a matter of morality. Mr
Manley appears to have shared some of the angst that came to be
associated with the intervention and ultimately disagreed with
those who favoured the intervention. His perspective was largely
influenced by the view that the sovereign Grenadian people, and
not foreigners, should determine the course of development in
their country.
This sovereignty-based argument is tantamount to the legal
approach which recommended itself to the vast majority of States
at the United Nations. It may be significant to note, however,
that the Grenada episode provides an instance in which the
majority in Jamaica did not sympathise with the approach taken
by Mr Manley. The majority, I believe, was prepared to look past
what they perceived to be the niceties of International Law to
the realities on the ground in Grenada; and the majority felt
that the Grenada killings in the name of ideology were a bridge
too far for the Caribbean. I believe Mr Manley got the law right
on Grenada, but the morality wrong.
International Investment Law
Michael Manley, Julius Nyerere and a number of other leaders
from the Third World advanced the cause of the New International
Economic Order (the NIEO), starting in the early 1970s. The NIEO
had a number of dimensions, but central to the project was the
idea that trade and investment relations in the world were
structured essentially to the detriment of developing countries,
and that, consequently, without reform the international system
would severely limit the development capability of Third World
countries on the whole.
In the realm of trade, the bias against developing,
primary-producing countries was evident, according to Mr Manley,
in the shifting terms of trade, which tended in the long run to
work against primary producers: with the passage of time, the
metropolitan tractor grew relatively more expensive vis-à-vis
local sugar prices.
Simultaneously, capital was not readily available. In the area
of investment, Mr Manley wrote:
“(T)he former colonial territories entered upon their
independence desperately short of capital and of the means to
accumulate capital for themselves … As a result, it is vital
that these territories should be able to attract overseas
capital. However, we find ourselves once again in a dilemma
because the price of money … moves steadily to our
disadvantage.”
In essence, there is a certain darkness in our investment
corner.
How did Mr. Manley propose addressing the dilemma of limited
capital? There were different prongs to the response, with one
being the diversification of sources of capital. But, perhaps
most importantly, the New International Economic Order sought to
change the relationship between capital-importing host
countries, including Jamaica, and the capital-exporting
countries of the metropole. It was central to Mr Manley’s
philosophy that our capital shortage, and relatively limited
technological base, meant that multinational corporations could
take advantage of developing countries acting alone. This was in
keeping with emerging theories from the 1960s onwards about the
power of multinationals to hold sovereignty at bay. One aspect
of the NIEO, therefore, was to negotiate a Code of Conduct on
Transnational Corporations under the auspices of the United
Nations. This Code of Conduct was intended to provide guidelines
on how multinational corporations in developing countries should
behave in their interaction with the State; conversely, it was
also accepted that the Code would guide States in their conduct
towards foreign investors.
In the end, the Code of Conduct did not prevail, with negative
consequences for the vision of Michael Manley. To begin with, Mr
Manley’s vision contemplated that developing countries would
work together to ensure that their numbers within the United
Nations would lead to rules reflecting their perspective. But
ultimately this did not happen, and instead most of the rules
that now govern International Investment Law are significantly
in favour of the viewpoint espoused by developed countries. The
current rules on investment law are enshrined mainly in more
than 3,000 bilateral investment treaties, with Jamaica being
involved in more than 10 of these with various developed
countries. The extent to which these rules depart from
developing country aspirations is striking even when the points
are set out in summary form. Three areas of contention may be
briefly considered:
(a)Dispute Settlement. Developing countries – the Manley
vision – have consistently argued that investment disputes
between foreign investors and the host State should be resolved
using the courts of the host State. The rationale for this
position, inherent in the Calvo Doctrine espoused by Latin
American countries in the past, is that the foreign investor
should accept the entire legal system in which the foreign
investment project operates. Among other things, this approach
requires respect for the domestic jurisdiction, and implies
equality of treatment for both local and foreign investors. In
contrast, foreign investors prefer to have investor-State
disputes resolved by arbitral tribunals operating outside the
host country. This preference is now granted in the vast
majority of bilateral investment treaties in the world today,
including those involving Jamaica. In practice, this gives some
degree of security to the foreign investor and ensures the
appearance of impartiality in the judicial process. In the
mid-1970s, Jamaica under Manley was inclined to the view that
matters concerning the Bauxite Levy ought not to have been
resolved by the third-party mechanisms of the International
Centre for the Settlement of Investment Disputes (ICSID): the
dispute between the Manley Government and the multinational
bauxite companies on this point is well known, but the
significance of this conflict merits further analysis in the
future. The balance of forces that emboldened the Manley
Government to insist on the resolution of bauxite disputes in
Jamaica has certainly shifted in the era of globalisation, so
that such disputes are now routinely perceived as belonging to
the realm of third-party arbitration.
(b)Transfer of Currency. From the Jamaican perspective in
the mid-1970s and onwards, there was a strong case for limiting
the outflow of foreign currency from the jurisdiction. The
country had severe balance of payments difficulties, and foreign
investments, in the nature of things, led to an outflow of
foreign exchange for a variety of reasons. Within the Manley
vision, it was natural that restrictions on the outflow of
foreign capital should be in place; but this vision conflicted
with the equally natural desire for the foreign investor to
repatriate capital and profits back to the home country of the
investment. In the end, most bilateral investment treaties now
expressly contemplate the removal of restrictions on currency
transfer from the host country. But in some cases there is
sensitivity for the concerns of developing countries, for some
international investment agreements indicate that the outward
flow of foreign exchange may be regulated where this will help
to alleviate serious balance of payments difficulties.
Where there are no relevant international agreements, this is
an area for which different developing countries have different
degrees of control, but, to be sure, the underlying point must
be that a country which consistently places exchange control
restrictions on foreign capital will damage its reputation as a
hospitable venue for such investment. In the era of
liberalisation of markets, the Manley vision has not prevailed,
even though it was clearly designed to safeguard the interests
of developing countries.
(c)Compensation for Expropriation. There has, of course,
been a long-standing debate in international law about the level
of compensation that is to be paid to foreign investors when the
investors’ property has been nationalised or expropriated. From
the developing country standpoint, and again as reflected in
Michael Manley’s vision, where an expropriation occurs, the
level of compensation to the foreign investor should be
“appropriate” compensation, as determined by the developing
country concerned.
This perspective was reflected in the debates on the
New International Economic Order by various resolutions of the
United Nations General Assembly, including the Charter of
Economic Rights and Duties of States of 1974. For the developing
countries which put forward this position, with Jamaica in a
leadership position at the time, appropriate compensation could
possibly mean payment for the full market value of the
expropriated property. But, in some instances, it could also
mean that, based on the historical relations between the host
country and the foreign investor, full market value would not be
the appropriate level of compensation: a lower level of
compensation might be justified as part of a negotiated
settlement which would take into account the profitability of
the investment in the host State over many years.
In contrast, foreign investors, and the Governments of
capital-exporting countries, have retained their preference for
the Hull Compensation Formula for expropriation cases: where a
host State takes foreign property, it must pay “prompt, adequate
and effective compensation”. Promptness in payment is
self-explanatory, while effective compensation requires payment
in a freely convertible currency. Adequate compensation, as
understood by the proponents of the Hull formula, requires the
expropriating State to pay the full market value of the property
that has been taken.
In this scheme, there may need to be negotiations to
determine the full market value of the expropriated property
(the value at a date before the expropriation plans have been
announced) but, generally speaking, the Hull formula assumes
that the full market value can be calculated with some degree of
certainty. Supporters of the Hull Formula argue, inter alia,
that this level of compensation is required as a matter of
customary international law, and that it conforms, in any event,
to basic principles of private property enshrined, for example,
in the constitutional order of most democracies. In this debate
– appropriate compensation versus full market value – Manley
favoured the former perspective, and there have been in Jamaica
negotiated settlements about the value, for instance, of bauxite
assets, that do not fully reflect the Hull Compensation formula.
Significantly, though, the bilateral investment treaties
involving Jamaica now take it for granted that the Hull
Compensation formula is part of the governing law for Jamaica’s
foreign investment relations.
Therefore, it seems that the Manley vision has not prevailed in
respect of International Investment Law. Manley wanted
developing countries to rely on their collective strength to
bring about a reformulation of the accepted principles of
investment law and, in particular, to establish rules that would
tip the balance in favour of developing countries on issues such
as the forum for dispute settlement, transfer of currency and
the level of compensation for expropriation.
This has not happened partly because developed
countries have undermined the collective approach of their
developing country counterparts by relying on bilateral
investment treaties, with negotiations essentially between
individual developed and developing countries in which the power
imbalance is often abundantly clear. This result must have irked
Mr Manley, given his commitment to the perspective of developing
countries. Indeed, by the time Mr Manley completed The Poverty
of Nations, in 1991, there is a marked sense of disappointment
concerning relations between multinational corporations and
Jamaica. Thus, with reference to the withdrawal by the Reynolds
Metal Company from bauxite mining in the country after more than
30 years, Mr Manley wrote:
“Reynolds simply ceased the Jamaican bauxite mining operation
without notice to the Government. They destroyed revenue
expectations, dislocated workers and their families, and upset
the aspirations of entire communities. This is regarded as the
right of the multinational corporation, no matter what profit
has been made out of the exploitation of a resource of years.
The Code of Conduct would require some sort of principled
behaviour regarding the giving of notice and the holding of
negotiations with host governments.” .
There is also disappointment with the more general project for a
New International Economic Order:
“The Code of Conduct was agreed by the United Nations system but
collapsed in Washington because the proposed enabling
legislation was blocked by the US; they agreed with the Code but
didn’t agree to any legislation in support of the agreement
which they felt was contrary to the principles of free
enterprise.
When examining all the elements of the NIEO and the progress
that has been made one sees a stalled process. It is now in a
cul-de-sac, and the next stage is vital since the survival of
millions of Third World people is at stake.”
One lesson to be taken from the Manley experience with
multinational corporations is that International Law evolves
largely on the basis of consensus. Starting with the Third
World’s strength in numbers, Manley and others sought to
develop, in the first instance, consensus among countries of the
South for a new world view concerning foreign investment. Then
this position was taken in the NIEO project, through the
negotiating process with developed countries, most of which
simply did not share the world view presented by the South.
International Law in this area has not, therefore,
evolved in the way that would have suited Manley. But the
process is also dynamic; for, in the area of investment
relations, tensions arising from the differing perspectives of
developing and developed countries contribute either to
incremental change or to cycles of conflict with new rules
emerging after periods of disagreement. Here then, I think Mr
Manley had the morality entirely right, but the law has not
caught up with his position as yet.
It should also be noted that the efforts by Mr Manley and others
to bring about change in the investment area for the benefit of
developing countries helped to enhance the status of the
Caribbean at the United Nations. The fact that Jamaica was able
to punch above its weight category in the United Nations for
many years is a tribute to Michael Manley and his vision for
international development through Third World cooperation.
Similarly, it is not an accident that the headquarters of the
International Seabed Authority came to be placed in Jamaica.
A number of skilled negotiators from Jamaica, including
Dudley Thompson, Ken Rattray, Patrick Robinson, and Allan Kirton,
worked successfully to achieve this result; but there should be
no doubt that Jamaica’s status in international relations at the
time, and essentially Michael Manley’s status in the NIEO
negotiating process, was a decisive factor in bringing the
Seabed Authority’s headquarters to this country.
Human Rights
1.In this section, I wish to consider briefly some human rights
issues that arise from Michael Manley’s political perspectives.
This is not intended as a review of the performance of the
Manley Government in respect of human rights matters, for time
and space do not allow such a review today. It should be noted
from the outset, however, that Michael Manley’s perspective on
human rights issues was influenced in large part by the issue of
social class. For much of his life in the trade union movement,
Mr Manley dedicated himself to improving the position of workers
and to securing workers’ rights vis-à-vis capital. The class
emphasis in this area of Mr Manley’s work is reflected, for
instance, in the following statement from the preface to A Voice
at the Workplace:
“My hope is that this book may, in some small way, help
Jamaicans to look at themselves, or perhaps more accurately,
look within themselves, particularly where they meet each other
at the workplace. In the process it may also be of use to others
who feel themselves constrained by those invisible but terrible
bars which form the prison of class within a society.”
For Manley, therefore, the human rights project included the
quest for social equality; persons should receive rewards in
society not on the basis of status, but rather on the basis of
achievement. But in matters concerning human rights, Jamaica was
not alone in the world. The country would stand to benefit from
external perspectives even as it contributed to the
international understanding of certain core human rights. Hence,
it is not an accident that Jamaica became a party to the two
main United Nations human rights treaties during the period of
the first Manley Government (in 1975).
These two treaties – the International Covenant on Civil and
Political Rights (the ICCPR) and the International Covenant on
Economic, Social and Cultural Rights (the ICESCR) – set out a
broad range of rights and entitlements for individuals. As its
name implies, the ICCPR concerns itself mainly with civil and
political rights: the right to life, freedom from inhuman and
degrading punishment and treatment, freedom of expression,
freedom of thought, conscience and religion and so forth. When
Jamaica became a party to this treaty, we offered the commitment
to ensure that these rights would be available to all Jamaicans.
To some extent, this has been done, but a balanced assessment
certainly prompts the conclusion that the country’s record on
civil and political rights leaves considerable scope for
improvement.
It is all too easy to move into the realm of partisan politics
when discussing civil and political rights, but I wish to avoid
that today. For the present purposes, I note, however, some of
the problems in Jamaica concerning civil and political rights.
The main right recognised by the ICCPR, the right to life, is
often honoured in the breach. Individual life is treated with
scant regard, giving rise to our frightful murder rate. The
level of police killings, and the rate at which police are
killed, also reinforce the perception that both the State and
adversaries of the State are attracted to killing without trial
as a means of dispute resolution.
The country retains in its municipal law the punishments of
flogging and whipping, although the United Nations Human Rights
Committee, the United Nations Committee against Torture and
other external agencies have indicated that these forms of
punishment are inhuman and degrading, in breach of International
Law. Prison conditions are, generally speaking, inhumane, and
have been like this for decades. The Constitution contains a
savings clause that requires local judges to respect colonial
laws even if these laws clearly violate modern precepts of
humanitarianism. And the wheels of justice grind slowly. I do
not wish to imply that these issues are the legacy of Michael
Manley; on the contrary, there is evidence, for example, that in
his appointments and in various initiatives in respect of prison
reform, Manley sought to bring Jamaican law and practice in line
with the expectations of the ICCPR. The question I raise, then,
concerns implementation.
Why is it that after more than 30 years as a party to the
ICCPR, Jamaica still has marked deficiencies in implementing the
commitments in that treaty and, indeed, is slow even to meet its
reporting requirements under this treaty? The answer to this
question rests in part on social and cultural considerations
within the country. So, for example, the high crime rate in the
society has given rise to strong sentiments about the treatment
of perceived criminals without regard to internationally
accepted safeguards and fair standards of treatment. Similarly,
as to culture, there is evidence that practices such as flogging
and whipping are not regarded as shocking; rather, they are seen
by some persons in society as the appropriate punishment for
some crimes. It is also true that the class considerations
emphasised by Manley provide a part of the explanation: prison
conditions, it is submitted, reflect the classist notion that
some people are not entitled even to minimum conditions of
living.
With respect to the ICESCR, there has been considerable debate
in the literature and practice about whether economic, social
and cultural rights amount to “rights properly so-called”. At
its core, this debate comes down to the fact that the ICESCR
allows each State to derogate from the provision of particular
entitlements if the State cannot afford the entitlement. Thus,
the ICESCR acknowledges that the availability of economic,
social and cultural rights is a function of the resources held
in the public sector. So, for instance, the right to tertiary
education, championed by Manley at the local level, is not
regarded unequivocally as a right in the ICESCR. Rather, it is
stated to be a right that may be introduced progressively,
giving rise to the result that if a State does not provide this
entitlement the State will not be in breach of its treaty
obligations.
Given then the nature of some economic, social and
cultural rights, one may be slow to draw conclusions about the
extent of Jamaica’s commitment to the terms of the ICESCR. That
said, Jamaica’s performance here seems to be better than its
overall performance under the ICCPR. The ICESCR includes
provisions on employment matters, the provision of health care,
education and other social amenities: although there are
pronounced challenges in these areas, there is broad social
consensus of the value of these entitlements to individuals in
Jamaican society. That social consensus, I suggest, is largely a
result of the work of Michael Manley and his political and union
colleagues.
Finally, on the question of human rights, I take the
opportunity to say that the logic of Michael Manley’s views on
the sovereign equality of States and his devotion to
self-reliance both suggest that he would now think that the time
for the Caribbean Court of Justice is long overdue. In recent
months, there have been signals that the Privy Council is
impatient with our continued reliance on them as our final
appellate court. At the same time, the salient objections that
have been raised about the Caribbean Court of Justice have been
fully addressed; the Court is operating, and it has given
judgments of the highest authority and erudition. The reluctance
to move towards the Caribbean Court of Justice on the part of
Jamaica can now really be attributed to our lack of
self-confidence as a people.
As both President de la Bastide and Lord Hoffmann agree, the
final appellate court of any jurisdiction is called upon to make
policy choices in making decisions, especially in areas
pertaining to individual rights and the rights of persons
vis-à-vis the State. These policy choices are best made by
judges who have intimate knowledge of the socio-economic and
cultural environment from which the cases emanate. Consider the
proposed Charter of Rights: both the Executive and the
Legislature in Jamaica have been responsible for the terms of
the re-draft of our fundamental rights and freedoms, taking into
account local circumstances. By what line of reasoning may we
now conclude that our judges are not as good as other judges in
determining what these rights mean in the same local
circumstances?
Conclusion
Michael Manley, by the power of his words and by the depth of
his convictions, has left an indelible mark on the modern
political history of Jamaica. I note with interest one
difference in intellectual discourse concerning Michael Manley
and his distinguished father the late National Hero Norman
Manley. In Jamaica, Norman Manley’s views are today cited as
authoritative. They are received components of conventional
wisdom; the ideas of the horse of the morning have settled and
are regarded with reverence. As far as Michael Manley is
concerned, however, a different picture remains. Michael Manley
is still living in our world of contested ideas.
His works of scholarship still provide challenges,
still cause you to hold on to the edges of your now receding
hairline as you contemplate ideas that you first noted in
adolescence. There is, in short, a vibrancy in Michael Manley’s
writing that still has the capacity to excite and stimulate.
Perhaps this is not altogether surprising. Manley himself has
written in A Voice at the Workplace that his first real calling
was in the area of art criticism:
“It may have been a delusion, but I was sure that I was more
comfortable with the late chamber music of Beethoven than with
the theory of diminishing returns. Certainly, there was a period
when I found Cubist painting less mysterious than elasticity of
demand… For a year, at least, I doubted whether mine would be a
life style to which economic theory could contribute much, if
anything. Even now, twenty-seven years later, I would not swear
that I had found a confident answer.”
The style is the style of the art critic; but, at the
international level, the work is that of the policy-maker
determined to carve out areas of influence for developing
countries. On issues concerning the use of force in
International Law, Michael Manley got the law right both
generally and in respect of the difficult question of the
Grenada intervention, which still haunts us almost 27 years
later; but, I think, he got the morality wrong. On issues of
investment law, Manley’s vision continues to provide important
guidelines for developing countries that wish to maximise
returns from their raw material, labour and other endowments in
a world that has moved inexorably in the direction of
globalisation and liberalisation. And in the area of human
rights, his sensitivity especially to class relations and to
economic, social and cultural rights, has helped to keep Jamaica
in the mainstream of human rights recognition in the world.
Which is not at all to say that we have moved past our
deficiencies; but it is to say that Manley’s work in the
international arena has kept Jamaica in the forward march of
history.
