Stephen Vasciannie’s presentation of the 8th Michael Manley Lecture

WHEN the chairman of the Michael Manley Committee, Mr Delano Roosevelt Franklin, asked me to deliver today’s lecture, I did not hesitate in saying yes. Mr Franklin and I know each other — and have been friends — for almost 40 years; if anything, this should tell you that Mr Franklin does not look his age.

So, I wanted to give this lecture because Mr Franklin 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 Committee. I express my gratitude to the committee as a whole, and also to its supremely efficient secretary 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 had before — 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 Franklin’s kind invitation: we need to study closely our recent past and the present, both from the perspectives of 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 Hon 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 Louis Lindsay, Rupert Lewis, Trevor Munroe 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 long-standing 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 predicate 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 use 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?” (p. 131).

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, Sgt Dorseet Petres, 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 (OECS); 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 (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: Reflections on Underdevelopment and the World Economy 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.”(p. 100).

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.”(pp. 100-101).

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.

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 co-operation.

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

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.” (p. 14).

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 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 of 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 judgements 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 lifestyle to which economic theory could contribute much, if anything. Even now, 27 years later, I would not swear that I had found a confident answer.” (p. 16).

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.