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Abstract For Conference NOV 12

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Law , Tourism and Property Rights in British Caribbean States ; the Modern
Mode of Warfare
PhD Thesis
Donald Saint Patrick Taylor, MSc., CPA, LLM (City of London), LLM (De
Montfort)
Attorney at Law
Department of Hospitality and Tourism Management Studies
University of Aruba
JE Irausquinplein 4,
Oranjestad ,
Aruba Dutch Caribbean
Tel:( 00297) 5262200
Email:[email protected]
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Abstract:
Legal rules should be reflective of domestic social values and are structurally institutionalized in
Caribbean societies, yet they are also reflective of a colonial past, a continuation of the neo colonial
dependency that characterizes the emergence of post colonialism. Laws of many Caribbean States defer
to metropolitan institutions divorced from the current social context from which they ought to derive.
This paper intends to explore briefly the theoretical and contextual underpinnings of legal rules that
guide our insights into issues of critical importance for legal rules in Western neoliberal societies and its
appendages in Caribbean societies, that is the focus on protection of property rights. It is this protection
of property rights that allows tourism to develop in the Caribbean, and it is the implicit and pervasive
acceptance of the neoliberal legal model by institutional mechanisms that allows for the establishment
of chain hotels on small islands and other tourism related modalities. It is in effect colonialism, defined
in terms of exploitation of indigenous resources by the developed North, by other means.
Key Words: Colonialism, Neo Colonialism, indigenous, dependency
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Introduction and Overview
The concept of law , politics and economic development are often perceived as distinct areas of work
that is researched and discussed in separate subject silos. However, while that may be modern Western
thought , it sometimes clashes with the reality of small island states that emerged from the throes of
colonialism such as Jamaica , Trinidad and most of the English speaking Caribbean or are currently in a
state of post- colonial subjection such as Aruba and the Dutch Caribbean. The purpose of this paper is to
explore and research the extent to which law which is the modern expression of rules based social
interaction that comes with sanctions, impacts economic development in small islands by perpetuating
the doctrine of sanctity of property rights as fundamental to a global neoliberal order and its
consequences. One notable consequence of the dominance of property rights as a basic tenet in the
legal rules generally accepted by small island states is that it privileges power when such power is
manifested in investment by foreign investors. This allows for the continuation of a dependency
paradigm reflected in the need to attract foreign investors to drive and sustain economic development
and growth.
The dependency narrative of the 1960’s and 1970’s described a culture and focus of dependency as
being derived from the plantation system , transmuted into the dominance by multinational
corporations. Norman Girvan (2004) in particular pointed out that dependency was a consequence of
colonialism and postcolonialism. With the demise of socialism as a global ideological force in driving
alternatives to the dependency model , neoliberalism expressed as the “Washington consensus” has
dominated global economics and global political development. Under neoliberalism as a global
economic system, small island states have become disengaged from the global discourse as their voices
are increasingly otherized and peripheralized in international discourse on issues such as human rights
and climate change and the globalization of income inequality. This is so even though these issues are
relevant and pertinent to small island states’ economic and social development. The marginalization of
small islands under neoliberalism gives support to increasingly positive views on remaining colonized or
having the lingering detritus of colonialism by some small islands as part of a thematic shift from the
goal of sovereignty to seeking to become small non-independent jurisdictions (SNIJs) . These SNIJs
include Aruba , Curacao , Cayman Islands and others in the Caribbean that given the Darwinian culture
and environment that is engendered by unfettered neoliberalism find safe harbor by remaining
colonized or near colonized and therefore adopting the legal rules and laws of the metropolis. It is clear
that as Caribbean islands seek to optimally allocate resources aimed at maximizing their citizens’ welfare
there is only one clear ideological path that frames economic development discussions and that is the
neoliberal agenda.
This implies that economic development is path dependent and exogeneous and not autochthonous led
and therefore growth and development is externally driven and dominated. This paper is organized as
follows , in part one we will describe the global neoliberal order and the role that property rights play in
this harmonizing and globalizing effort and in the concept of the rule of law . In part two we will describe
the role of tourism to the extent that it is driven by law to provide a rules based dispute settlement
mechanism that lies outside the sovereignty of small island states. In part three we will discuss the
dominance of the North on their continued peripheralization in this order and the significance of that
dominance. In part four the paper will conclude and prescribe more research.
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1.0 The Neoliberal Order and the Rule of Law
Colonialism was central to the development of international law and the sovereignty doctrine emerged
out of the colonial encounter (Antony Anghie, 2004). Anghie further notes that colonialism was a central
tenet of the constitution of international law . This was because international law was designed to
structure the legal rules for the colonial encounter and was an integral component and weapon of the
imperialist project and the underlying exploitation of non- European peoples by the colonizers. From the
point of view of the Third World international law was structured and weaponized to assure Northern
supremacy and disempowerment and disenfranchisement of the colonial peoples ( Anghie, 2004). In
seeking to attain this objective , international law also needed an economic and political ideology that
was potent and palatable to most common sense thinkers and intellectuals of the Third World. This
economic ideology was neoliberalism which asserted a sense of economic freedom combined with
liberal democracy within the context of a more globalized and connected world.
Neoliberal institutionalists are one of the many groups that seek to assert the dominance and hegemony
of neoliberalism by arguing that states should view inter state cooperation and relationships from a long
term perspective and that reputation matters (N. Wheeler, 2008). This is because at an international
legal, political and economic level there is more to be gained from not incurring a state’s reputational
risk and in greater cooperation. According to David Harvey (2005) neoliberalism involves and embraces
the intensification of the influence and hegemonic dominance of capital and its accoutrements and in
doing so asserts the supremacy and elevation of capitalism, as the primary and most efficient mode of
production, into a globalized ethic, which includes a tapestry of political imperatives, and socio-cultural
logic. Neoliberalism is then an imperative architecture for the application and dominance of
international law to be used to dominate and subjugate the non-European other by appealing to the
amorphous concept of a “rule of law”. From a Marxian perspective neoliberalism is a global project
driven by Western thought that seeks to strengthen and reinforce the dominant power of economic
elites and extend it globally (D.Harvey, 2005).
Neoliberalism is an economic and political ideology that privileges and places supreme values on
market exchange as “an ethic in itself, capable of acting as a guide to all human action, and substituting
for all previously held ethical beliefs,”. It does this by focusing on the preeminence and economic
efficiency that contractual relations brings to the market and focuses on the market driven nature of
most transactions to best allocate resources. In addition the neoliberal logic holds that the social good
will be maximized by increasing the reach and frequency of market transactions, and it seeks to bring all
human action into the domain of the market.’ (p. 3)
In this context sovereignty should be reconceptualized from one of territorial control and independence
to the unmasked racialization and otherization of non- Europeans. Sovereignty thus defined is
unmoored by imprecise claims of morality and justice (Anghie, 2004, p 101).This reconceptualization
entails a rethinking of the concept of international law and legal thought in the colonial encounter
where colonial states were denied recognition of their sovereignty. The primary instrument used by
European powers was the conceptual stick of the “recognition” which acknowledged states that were
integrated into Western concept of civilized international society when European standards of
institutional governance emerged. In the context of an emerging doctrine of international law , viewed
from a post colonial perspective Europe is the subject and non Europe can be perceived as the object of
sovereignty conceptualization.
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It should be noted that even in within the post-modern legal philosophical framework the developed
Western states have asserted that international law is ostensibly neutral even though the basis of such
law is the dominant exercise of asymmetric power by those former colonizers. International law as now
generally accepted is a consequence and reflective of that dominance which the West has continued to
maintain through the pervasiveness and dominance of an economic ideology and political hegemony
(Anghie, 2018). International legal concepts such as the doctrines on state succession , acquired rights
and sources doctrine are evidence of concepts ostensibly tilted towards a reference to historical origins
irrespective of their current relevance .For example the sources doctrine , which among other things
indicates that treaties are international law and which provides the framework , structure and
coherence for an expansionist doctrine of international law are part of this engaged structure of
Western domination (H.G. Cohen, 2007). Further the concept of acquired rights ( vested or executed
rights) are those rights not automatically revoked if a treaty or law no longer applies. If acquired rights
are recognized, they become a part of that state’s legal heritage and cannot be revoked despite changes
in the ultimate power over a country from colonized to sovereign state (S. Douglas-Scott, 2016).
State Contracts
For developing states the concept of internationalized state contracts , which are ostensibly agreements
between the state and foreign MNCs became a symbol of the emergence of an international law
doctrine rooted in the historically accepted doctrine of pacta sunt servanda. The rationale for the
internationalization of state contracts was to restrict the sovereign rights of host states to modify ,
abrogate or rescind such agreements which are essentially under contract law , private agreements
recognized within domestic jurisdictions. This internationalization raised the profile of state contracts
from the private domestic arena , subject to host state jurisdiction to the status of quasi-treaties. As
Anghie (2004) points out the elevation of state contracts to quasi treaties limited the ability of
developing countries as host states of foreign investments to intervene and modify contract terms even
though they may be detrimental to the citizens’ welfare. In addition there is a raising of a private actor’s
position and profile to that of equality with the host state in dispute settlement forums such as arbitral
panels.1 Such elevation also implies the assertion of rights equal to the host state in such matters and
allowing such companies the position to assert rights equal or comparable to host states. It involves the
diminution of host state’s sovereign powers to legislate in its own national interest and the interest of
its citizens to enhance their welfare and reduces the state’s autonomy in the domestic sphere to the
advantage and priviliege of large multi national corporations (MNCs). The concept of state contract and
its elevation to the status of quasi treaties , allowed for the application of the doctrine of pacta sunt
servanda within a domestic and international legal context that limited host state’s autonomy and
discretionary powers.
Multinational corporations (MNCs) who made investments in the Caribbean and other developing states
were granted a quasi-sovereign status by being on equal footing with hosts states in cases of contract
disputes. Such status not just elevated the profile and standing of MNCs domestically but within the
context of international law by supporting a view that there is equality or near -equality of status with
sovereign host states. It should be noted that while this MNCs considered themselves equal or near
equal in the context of their negotiations or settlement dispute matters in the Caribbean such audacity
would not be accepted by governments in states from which they emerged. This duality in MNCs
1
For example the International Centre for Settlement of Investment Disputes (ICSID)
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treatment of Caribbean islands versus the position they accepted in their home country is one of the
paradox of globalization.
International law was founded on an epistemic grounding that invariably focused on the conceptual
dichotomy between the civilized and uncivilized peoples. In that context from an historical perspective
only European peoples were civilized and therefore subject to and could perpetuate the concept of
international law. This ideology meant that non civilized were otherized and had no place in
international law and was therefore outside its civilizing sphere. International law was epistemologically
positivist in its doctrinal underpinnings which emphasized the concept of sovereign which meant control
over physical space. This implied that property rights , that is rights over physical territory , rights over
physical things at the time mattered in determination of what or ho could be considered sovereign .
According to Anghie (2004) , the conceptual and philosophical framing as determined by European
private law with a specific focus on property law and property rights influenced the nasceant emergence
of international law jurisprudence and weaponized international law as an instrument of colonialism.
Legal Imperialism
Conquest and the colonial encounter are critical components of what is referred to as legal imperialism ,
that is, the imposition of legal values and norms on colonized societies. It involves a consistent and
coherent effort to universalize Western legal mores and to impose that as the normative reference for
law. Whitman(2009) notes that Western law was culturally engineered to expand beyond its founding
tenets and engage spaces that it considered void of law and legal rules recognized by those in power. Its
origins lies in antiquity, as law of the city-state law, and once that space was covered by legal rules
expanded to fill spaces outside the city- state.
For the Caribbean, Western legal imperialism was part and parcel of the context and social contract with
slavery and as Antoine (2005) notes there is an enduring psychological residue that ensures that such a
brutal system of law and governance impacted former colonies with levels of doubt and insecurities
that is reflected in their ability to develop and structuralize legal rules that are reflective of their social
reality. For most British Caribbean and other Caribbean islands there is a reference to legal rules as
determined by former colonizers on matters of deep social ills which is outside their capacity and
contextual knowledge . For example the continued dominance of final appeals to the Privy Council
located in England is an example and the continued rejection of the Caribbean Court of Justice (CCJ)2 as
a competent judicial body for final appeals by Grenada are two main touchpoints. Caribbean people
continue to doubt their capacity to adjudicate final appeals in a manner that is justiciable . According to
Antoine (2005) this lack of trust and continued self-doubt in the capacity and capabilities of Caribbean
peoples is one of the primary drivers for the preponderance of written constitutions in the Caribbean
compared to the continuation of the Westminster model of unwritten constitution. As Antoine(2005)
further points out , British Caribbean states’ courts and jurists rely almost exclusively on English
precedent. Legal rules are based on a social contract and are normatively context driven, this basis of
law as reflective of the social institutional structures is absent to some extent in the Caribbean because
of the impact of legal imperialism and its role as being reflective of social action is diminished. Therefore
2
Grenada and Antigua & Barbuda Reject Caribbean Court of Justice, Oct. 7, 2018
< http://www.caribbean360.com/news/grenada-antigua-barbuda-reject-the-caribbean-court-ofjustice#ixzz5Wlq6nYLs, accessed Nov 12, 2018>
Page | 6
where the social reality of Caribbean islands and legal rules are disconnected from each other legal
decisions do not serve to dispense justice as in the Pratt and Morgan judicial rulings .3
Property Rights in The Caribbean
Property can be defined in terms of a system of pre-established rights , which are disputable or even
disputed and to be clear there is no universalization of the concept of property and property rights but
what Perrone (2017) refers to as different conceptions based on normative and policy preferences. He
notes that the interpretation of property is ‘informed by background conceptions about economics ,
public law and private authority , the nature of property and by ideas about what law itself is and how it
works ‘. This is impacted by temporal and spatial contexts.
Property rights is regarded as a fundamental right in some economic and legal cultures , particularly
those that are the source of neo liberal ideology such as the United States. This view of property as
rights is rooted in the Lockean philosophy of the sanctity of such rights and the privileging of property as
a basic right. As Kramer (1997) notes Lockean philosophy on property rights laid the foundation for the
conditions for the appropriation of material goods by individual human subjects. In pursuit of individual
autonomy man in could procure or transform things existing in a state of nature as possessions, that is
as property. Property rights represents and reflects the human ability to transform effort manifested as
labor into property and therefore assert a right to the outcome of that effort.
Within the Caribbean property rights feature prominently in the foreign investor’s decision to invest in
countries that have strong property rights protection rules. It is also the general consensus that strong
property rights rules reflects a fundamentally strong system of legal rules . It affirms and confirms the
existence and robustness of the rule of law.
Our point of departure starts from an assessment of property rights in the Caribbean and includes a
compilation of the property rights index which is a useful reference point. This index seeks to measure
the extent to which domestic laws provides protection for private property rights, as well as the
robustness of enforceability in these jurisdictions. The higher the score signals greater protection of
property rights and the more attractive for global capital flows. As a reflection of the robustness and
resilience of the rule of law the property rights index provides an objective basis for the evaluation of
whether or not there is potential for expropriatory action by the host state and assesses key
components of rule of law measures. These include issues such as judicial independence, the culture oof
legal corruption and the capacity and capability of the legal system to ensure that contracts are
enforced within the jurisdiction .
For Caribbean states it is clear that the index signals rule of law development with most Caribbean
states at below the accepted levels in developed states as a measure of rule of law robustness.
3
Pratt v A-G [1993] 43 WIR 340
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Source: The Heritage Foundation and the Wall Street Journal
A further analysis of Global Property Rights Index updated to 2018 for selected Caribbean islands include
the following countries:
Source: International Property Rights Alliance
Country
Jamaica
Haiti
Dom. Rep.
Trinidad & T.
Score
5.99
2.73
4.83
5.71
Global Rank
51
125
87
57
Regional
Rank
4
20
13
7
Source: International Property Rights Alliance
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The more updated report indicates that Caribbean islands are marginally better than their counter parts
from a comparative perspective but are ranked low internationally when it comes to recognition of
property rights . This is important because it is a key component in measuring the rule of law.
Statistic
IPRI
Legal And Political
Judicial Independence
Rule Of Law
Control Of Corruption
Political Stability
Protection Of Physical Property
Property Rights Protection
Registering Property
Ease Of Access To Loans
Intellectual Property Rights
Protection Of Intellectual Property Rights
Patent Protection
Jamaica
5.991
5.328
6.401
4.496
4.678
5.736
6.474
5.98
9.36
4.083
5.625
6.17
6.716
Comparison
between
Trinidad &
The
Netherlands
Haiti Tobago
Dom Rep Netherlands and Jamaica
2.733
5.714
4.837
8.325
2.334
2.92
5.193
3.98
8.431
3.103
2.371
5.811
2.225
9.075
2.674
3.002
4.674
4.423
8.787
4.291
2.303
4.476
3.446
8.901
4.223
4.003
5.812
5.826
6.958
1.222
1.326
5.913
6.106
8.012
1.538
2.789
5.448
4.82
8.684
2.704
1.298
7.46
8.524
9.897
0.537
1.19
4.831
4.975
5.457
1.374
2.108
4.57
4.713
8.661
3.036
3.954
6.035
4.426
8.531
2.361
5.8
7.5
6.166
9.333
2.617
Source: International Property Rights Alliance
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Tourism Investments- FDIs
Investment flows follows countries where the rule of law is perceived to be strong.
Latin America and the Caribbean: FDI inflows, by recipient country and subregion, 2005–2017
(Millions of dollars and percentages)
Country
2005-2009
2011
2012
2013
2014
2015
2016
Absolute
variation
2017 2017-2016
Relative
variation 20172016
Jamaica
Barbados
Bahamas
Trinidad and Tobago
882
416
1265
1232
218
458
1409
41
413
548
1034
-1904
545
56
1133
-1130
582
559
3244
661
925
69
408
194
928
230
943
-24
888
286
928
-374
-40
57
-15
-350
-4.3
24.6
-1.6
-1475
The Caribbean
6 598
5 380
4 579
3 885
8 478
4 917
5 501
6 074
1 086
21.8
Source: Economic Commission for Latin America and the Caribbean (ECLAC), on the basis of preliminary figures and official
estimates at 6 June 2018. Note: Information based on the sixth edition of the Balance of Payments and International
Investment Position Manual (BPM6) (IMF), except for Argentina, the Bahamas,
Page | 10
Conclusion and Call for Further Research
There is need for further research on the extent to which the Caribbean has been and continues to be
subject to legal imperialism, that is , adopting the legal norms of values that are exogeneous to its social
reality without substantial modification for the uniqueness of its culture and its people. In terms of
property rights which is generally accepted culturally as an inherent , human right, Caribbean peoples
have been impacted by both cultural and legal imperialism which privileges property rights and
accumulation of those rights in terms of wealth as a marker of success. Critique of the concept of rights
as property are driven by the need to seek alternatives to the inevitable social and economic inequality
that is globalized and its potential impact on small islands. Therefore there is a need to embrace
alternative theories of property rights and place it in a communitarian context, as well as separating it
from being an index of the pervasiveness and consistency of the rule of law. The rule of law , in terms of
social adherence to general rules and natural law of fairness and equity can be distinct and sustainable
without dependence on a single metric as an index of good governance. Further it is time to limit the
judicial dependence on European and American models of justice where it conflicts with the social
reality of the Caribbean, for example when it involves a matter of justice for victims and which issues
are justiciable. This can only occur if the Caribbean embrace their uniqueness and social independence
to have that reflected in the legal rules that are socially acceptable and which may differ from the
historical imperial center. There is need to consider that the islands are not peripheralized but thoughts
and social action can be if there is no assertion of independence in legal thought in the Caribbean.
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References
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2004
Kramer, M. (1997). Labor and property. In John Locke and the Origins of Private Property: Philosophical
Explorations of Individualism, Community, and Equality (pp. 91-92). Cambridge: Cambridge University
Press. doi:10.1017/CBO9780511585630.005
Whitman, J.Q., Western Legal Imperialism: Thinking About the Deep Historical Roots, Theoretical
Inquiries in Law 10.2 (2009)
Antoine, R.M, Waiting to Exhale: Commonwealth Caribbean Law and Legal Systems, Nova Law Review,
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Page | 12
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