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Jamaica, Expropriation by any Means is an Absolute Last Resort!

Ambassador Curtis A. Ward

Ambassador Curtis A. Ward

Jamaica, Expropriation by any Means is an Absolute Last Resort!

Ambassador Curtis A. Ward

(11 Jan 2019) — Jamaica’s Foreign Affairs & Foreign Trade Minister, Senator the Hon. Kamina Johnson-Smith’s announcement, on January 9, 2019, that the Jamaican government “proposes to use legislation to retake ownership of the 49% shareholdings in Petrojam currently held by PDV Caribe S.A. …to ensure (Jamaica’s) energy security,” is an unusual and perhaps unprecedented unilateral action for modern liberal democracies. This path by the Jamaican government is a sharp divergence from the usual practices of former governments which have honored the sanctity of international contracts. Respect for the Rule of Law and strict adherence to international norms are precepts which Jamaica and other small countries which nurture their nascent democracies have assertively defended in international fora. A deviation from this course could prove ultimately detrimental to Jamaica in the future.

Sen. the Hon. Kamina Johnson-Smith, Minister of Foreign Affairs & Foreign Trade

Sen. the Hon. Kamina Johnson-Smith, Minister of Foreign Affairs & Foreign Trade

It is perhaps no coincidence that this announcement was made just prior to supporting a vote in the Organization of American States (OAS) not to recognize Nicolás Maduro’s new term as president of Venezuela. Now it seems Jamaica no longer has a negotiating partner on PDV Caribe. Should the Jamaican government proceed with the taking of Venezuela’s interest in PDV Caribe through legislative action, to whom will compensation be paid?

The Minister in making the announcement suggested that this chosen path was a means to ensuring Jamaica’s energy security. Perhaps though well-intentioned, one should consider whether it is wise to act precipitously without first exhausting available international mechanisms for settlement of investment disputes. Understandably, the Jamaican government may have been frustrated by the lack of timely responses from the Venezuelan government.  However, considering the chaos in Venezuela, this should not be surprising or unexpected. Lack of timely response does not justify unilateral action by either side to settle a bilateral issue where no discernible emergency is evident. This is a situation where the Jamaican government has possession and control of the property and the Venezuelan government cannot remove it from the country.

The decision by the Jamaican Government to sidestep international mediation or arbitration, when bilateral negotiation fails, cast aspersions on the government’s intentions from the outset.  It raises doubts that the Jamaican Government entered negotiations with the Venezuelan Government in good faith or with a ‘take it or leave it’ choice for Venezuela. This approach is troubling. It seems to mimic a “Trumpist” and irresponsible modus operandi. Make a deal on Trump’s terms, or he takes unilateral action to enforce his will against the weaker party. Trump also cites non-existence national security concerns in attempts to achieve his ends.

We have become accustomed to seeing pressure being put on governments throughout Latin America and the Caribbean region to sever ties with the Maduro regime. The U.S. Secretary of State and other Trump Administration interlocutors use the occasions of visiting foreign ministers and other senior government representatives from countries in the region to Washington to ramp up pressure on the Venezuelan government. We also are aware of pressure being put on top diplomatic representatives of countries in the region to support the Trump Administration in isolating Venezuela in the OAS and other fora.  It is unlikely that isolating Maduro was not an issue discussed during the November visit of Jamaica’s Prime Minister to Washington.

Venezuelan President Nicolas Maduro

Venezuelan President Nicolas Maduro

At the least, this unilateral decision by the Jamaican Government reflects the disdain held for the Maduro regime and disrespect for the sovereignty of Venezuela. Whether or not one agrees with the domestic actions of the Maduro government should not be a factor in severing a business relationship which has been to Jamaica’s advantage for several years. This decision is an effort to sever a business relationship which no longer benefits Jamaica and which the government feels it can discard unilaterally at very low risk.

However, the use of domestic legislation to expropriate Venezuela’s shares in Petrojam sets a very risky precedent for the treatment of foreign direct investments in Jamaica. No words spoken by the Minister can sufficiently assuage the concerns of current and future foreign investors when the government resorts to unilateral action to abrogate an existing agreement. Such action is an absolute last resort after international mediation or arbitration has been exhausted. The International Center for the Settlement of International Disputes (ICSID), an agency of the World Bank, facilitates the settlement of international investment disputes akin to the one between Jamaica and Venezuela. The Jamaican Government should first avail itself of the process offered by ICSID before deciding on a unilateral path which could prove costly to the country in the future. International mediation or arbitration is the path pursued by modern democracies. Unilateral action is the path of autocratic regimes and geopolitical bullies in the global arena.

One of the ways to divert attention from one issue to the next, a practice we’ve seen used quite effectively by U.S. President Donald Trump, is to make an announcement to take the public on another tract. The recent spate of bad news coming out of the governance of Petrojam, and the seemingly egregious levels of corruption recently exposed, may have triggered this precipitous decision by the Jamaican government. It raises a number of questions, not the least of which is how well the possible repercussions have been given full consideration. Unless perhaps this has been a plan all along during the negotiation process. This would make the timing of the vote in the OAS a mere coincidence.

Under similar circumstances, governments of investor home countries around the world warn their private sector to be cautious about the potential risks of new investments in countries which unilaterally violate sacrosanct international contractual agreements. Perhaps with the Trump Administration’s determination to pressure and isolate the Nicolás Maduro regime in Venezuela, Washington may have greenlighted this action by the Jamaican government. The government may have been assured that the Trump Administration would provide cover and have given assurance that the Overseas Private Investment Corporation (OPIC) which insures U.S. foreign investments abroad will not downgrade Jamaica’s insurability.

Unfortunately, Jamaica pursuing this course could reverberate in other capitals around the world giving foreign investors pause when considering future investments in Jamaica. Many will be watching keenly how the Jamaican government arrives at appropriate compensation for the PDV Caribe property now under threat of expropriation. In any scenario the future of foreign investments in Jamaica could be threatened.

We excoriate Maduro for seizures of foreign-owned assets and investments in Venezuela for what he spuriously claims as protecting the interests of the Venezuelan people. His actions are condemned as violations of norms of international commercial practices and violations of due process. While the actions of autocratic regimes hardly surprise us, we are flummoxed by similar actions when carried out by democracies. Using parliamentary procedure does not distinguish one’s action from using the barrel of a gun to attain the same result. A government with a parliamentary majority can be just as draconian as an autocratic government where there are no checks and balances and Rule of Law is marginalized. We must be mindful of this.

© 2019 Curtis A. Ward/The Ward Post

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About the author

Ambassador Curtis A. Ward

Ambassador Curtis A. Ward is a former Ambassador and Deputy Permanent Representative of Jamaica to the United Nations with Special Responsibility for Security Council Affairs (1999-2002) serving on the UN Security Council for two years. He served three years as Expert Adviser to the UN Security Council Counter-Terrorism Committee. He is an Attorney-at-Law and International Consultant with extensive knowledge and experience in national and international legal and policy frameworks for effective implementation of United Nations (UN) and other international anti-terrorism mandates; the legal and administrative requirements to effectively implement and enforce anti-money laundering and countering financing of terrorism (AML/CFT); extensive knowledge of the legal and regulatory requirements for effective implementation and enforcement of United Nations multilateral and U.S.-imposed unilateral sanctions; and the imperatives for Rule of Law and governance.

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