Dear Editor,
The Guyana Local Content Act 2021 (LCA) received Presidential assent on the 31st December 2021. The LCA was the delivery of a campaign promise made vigorously by now Vice President, Bharrat Jagdeo, whilst in Opposition. The Irfaan Ali lead Government has repeated that promise since taking office in August 2020 and the LCA represents a delivery on that promise. The introduction of the LCA brought with it whispers of resistance, mainly from Trinidadian businesses it seems, as to its legality and compliance with the Revised Treaty of Chaguaramas (RTC). No one seemed interested in investing in Guyana before the discovery of oil in 2015; Guyana’s treatment as a “poor-distant-relative” was well entrenched. However, the whispers in the shadows made bold its entrance into the light, yesterday, in an article portrayed as a legal opinion of sorts, published in a Trinidadian newspaper about the legality of the LCA; with detailed focus on its compliance with treaty law.
The sense of entitlement was un-surprising in the article. The implied portrayal of Guyana’s oil resources as CARICOM’s oil resource (as opposed to Guyana’s) was most significant and interesting. The attitude in some quarters seems to be that Trinidad’s involvement in Guyana’s oil sector, as a historical oil producer, was somehow pre-ordained and unstoppable. However, the writer of that article ignored, entirely, the resolve of the Government of Guyana on this issue. It was ignored that the people of Guyana must benefit more than tangentially or on the fringes; their benefit must be real and substantial. This involvement is seen as the path to lift an entire nation from a poor developing nation to a prosperous nation. It ignores totally, the determination of the present Government to deliver on its promises. Know this, the resolve of the Government of Guyana in implementing and supporting the LCA is unshakable and any challenge will be met with a determined resolve.
In this regard, it is useful to note that the arguments made in the shadows about CARICOM, and posited in the open yesterday, ignores the reality of treaty law. The Government of Guyana in an effort to achieve its objective has at its disposal established principles of treaty law. Every Member State can issue a reservation and/or opt out of treaty obligations at its discretion. The Caribbean Court of Justice in an Advisory Opinion (AOOJ2019/001) in an examination of opt-out powers as set out in Article 27(4) of the RTC, 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. This may be sought for a period of years deemed sufficient for the Guyanese sector to mature and be able to compete with foreign businesses. It is well known that Bahamas has taken itself out of the CSME and does not allow free movement of CARICOM Nationals, and, Antigua and Barbuda and St. Kitts and Nevis have opted out of the free movement of skilled labour (security guards and agricultural workers) in 2019. Additionally, most of the signatories to the RTC have still not accepted the Caribbean Court of Justice as their final Appellate Court, preferring the Privy Council instead.
It is inescapable, that it is the fair and right thing to do to allow Guyanese to benefit from her oil resources in a preferential manner. This is not to say that our CARICOM neighbours are not welcome; everyone is, but respect must be had to the LCA in this regard. The benefit to our CARICOM brothers can’t be at the expense or marginalization of Guyanese nationals and companies. Those who seek to challenge the LCA in Court do so at their own peril. They would be underestimating or not understanding the sentiment across Guyana on this issue; across all ethnic, cultural, class and political lines. In my interactions, “on the ground”, and with those in Government there is a quiet but firm resolve on the issue. A resolve so strong that a treaty reservation/opt out or even a withdrawal are all possible. Make no mistake, Guyana will assert her sovereignty and right to choose in coming days and, likely, if necessary, adjust her treaty obligations to remove any possible conflict, real or perceived.
Sincerely,
Sanjeev Datadin, MP
