"The Secretary of the Treasury should direct the United States Executive Directors of the International Bank for Reconstruction and Development and the International Development Association (commonly known as the "World Bank'') and the International Monetary Fund to use the voice and vote of the United States to ensure that any future loan made by the World Bank or the International Monetary Fund to the Government of Antigua and Barbuda is conditioned on providing complete redress of the matters, and satisfaction of the requirements, described under paragraph (1),"according to a recent Senate resolution.
This follows Antigua's actions in the Stanford Ponzi debacle and the country's on-going attempts to illegally deprive the US owners of their rightful compensation despite the protection of Antigua's Constitution and a Privy Council ruling.
However, Attorney General Justin Simon, QC has defiantly signalled that the Antiguan Government may appeal the Eastern Caribbean Supreme Court of Appeal decision to increase the award of compensation to the owners of the Half Moon Bay Resort for its expropriation of their private property to $45.5 million.
Speaking to the Antigua Daily Observer in article entitled AG hints at appeal of Half Moon Bay award published on 17 December 2011, Simon announced "Last night (Thursday) I received the judgment...the issue of appeal certainly does arise in respect of that matter. Yes, it can be appealed and so that has to be looked at. The Court of Appeal arrived at US $45.5 million, but how they have arrived at that figure baffles me.
I remind them that this matter was canvassed throughout the court, in High Court and Court of Appeal and with us before the Privy Council ... we clearly gave an opportunity to her (sic - Mrs Natalia Querard, Managing Director, Half Moon Bay Holdings Limited) in respect of settling this matter out of court and we came to Cabinet and indicated the conditions, and not a response from her, not even to say 'no thank you."
Simon protested that the Antigua Government was confronted by US lawyers and senators who came to speak on Querard's behalf "as if to say the weight of the United States is behind her and whatever we do is wrong or we may suffer as a result of it; but we have got our pride."
He added, "There is a legal process and I accept government has not paid any of the US $23 million and we have fallen short of that, but that is not to say that we do not recognise that there is a financial liability on the part of government in respect of that. However, at no point in time did either the Antigua Labour Party government or the United Progressive Party government indicate she did not have a right to compensation."
In response, Mrs Querard wrote open letters to the Daily Observer and Caribarena, which has also carried the story saying, "Dear Editor, There are two important matters that I would like to offer for consideration in the current debate over Half Moon Bay and I appreciate the space you are making available for me to do so.
The first issue has to do with the Resolution presented to the Senate of the United States of America in response to certain actions taken by the Government of Antigua over the last several years. It states that the Government of Antigua has "committed numerous acts against the interest of US Citizens" and specifies the expropriation without compensation of the Half Moon Bay Resort as one such act.
"Fulfilment by the Government of Antigua and Barbuda of its obligations relating to the expropriation of the Half Moon Bay Resort" is now one of the conditions for "restoring the voice and vote of the United States" in support of any further financial assistance.
Although nobody likes to be told what to do, especially by an entity perceived as bigger or stronger, it must be remembered that the basis for such financial assistance has been enshrined in a series of Treaties which have been entered into voluntarily by sovereign states and their governments. The Caribbean Basin Initiative and the Caribbean Basin Economic Recovery Act are both available on the World Wide Web. Their basic conditions are the same. Both view the expropriation of American-owned property as contrary to the terms of the Treaty.
The terms of a Treaty are conditions or rules governing a mutually beneficial relationship between sovereign nations by which the signatories have agreed to abide. They have been agreed to by the people of the countries and signed by their elected representatives because they create benefits perceived as greater than the limited restriction on the sovereign power of the signatories. Thus, what may be considered legal in a particular country may still be in violation of an International Treaty to which that country is a signatory.
By expropriating the Half Moon Bay Resort from its American owners, the Government of Antigua has breached the CBI and CBERA treaties. The breach of a Treaty cancels the agreement. What the US Government is now engaged in doing is 1) advising the Government of Antigua that it recognizes this breach, and 2) taking steps to remove itself from the obligation imposed by said treaty, at least until such time as the breach is healed.
The restriction on financial assistance caused by the breach of a Treaty has been the subject of warnings delivered in writing and in person to Antiguan Ministers by members of the US Government since December of 2000. Such letters were one of the reasons the UPP in opposition protested against the process initiated by the ALP administration at the time.
Unfortunately, that process was not reversed. There is nothing sudden or unexpected in the Resolution offered by the U.S. Senate. The US Government has given Antigua ten years to correct the breach.
The WTO dispute has nothing in common with this matter. Nor do either David or Goliath.
Two sovereign nations, Antigua and Barbuda and the United States of America, have voluntarily signed an agreement and one of them has breached it.
The second issue I would like to raise which has been totally absent from this discussion, is the distinction between right-and-wrong and legal-and-illegal.
We teach our children not to do certain things because they are wrong -- not because they are illegal. A good example of this is that we teach them that lying is wrong. In fact, only lying under oath (called perjury) is illegal. Does that make lying legal? Or is it still wrong?
The Attorney General, the highest placed legal persona in Antigua, who by virtue of his Ministerial positions is also the ultimate protector and arbiter of the Law is making statements that are simply not true.
It is not true to say that I refused to acknowledge the Government's request to settle the matter out of court. The Daily Observer published the following quote:
"... We clearly gave an opportunity to her (Querard) in respect of settling this matter out of court and we came to Cabinet and indicated the conditions, and not a response from her, not even to say "no thank you", Simon said. He said, instead, government was confronted by US lawyers and senators who came to speak on Querard's behalf "as if to say the weight of the United States is behind her and whatever we do is wrong or we may suffer as a result of it; but we have got our pride."
I am attaching my letter to Prime Minister Spencer, dated October 17, 2005 responding to the proposed conditional "revesting" of the Half Moon Bay property, and giving the reasons for that response.
I also refer the readers to the following articles published on Caribarena (Gov Said No to Blom-Cooper, March 25, 2010) and on http://antiguainvestmentauthority.com/truechronology.html.
Finally, in defense of the "bloggers" that, according to Mr. Simon have supplied "erroneous information to show that the Government has behaved arbitrarily and unfairly with respect to the acquisition of HMB", let me quote Prime Minister Baldwin Spencer, who swore in an affidavit supporting HMB against the Government of Antigua, saying "I am firmly of the view... that the decision by the cabinet of the government of Antigua and Barbuda is fundamentally flawed. The decision must not be allowed to stand. The decision is pregnant with bias, unreasonableness and maladministration....". (Full text of Affidavit is attached.)
The difficulty that the Government of Antigua now faces can be framed by the mantra of the UPP prior to its election to office: Remember "what is right will remain right, and what is wrong will be made right"?
Although the Land Acquisition Act makes expropriation legal, as confirmed by the Privy Council, the expropriation of Half Moon Bay was wrong. It breached international treaties, created a loss of confidence in the security of foreign direct investment in Antigua, caused great harm to all who participated in the creation of a splendid destination for discriminating individuals worldwide and destroyed the last vestiges of the flagship of the Antiguan tourist industry.
"We have our pride", says AG Justin Simon. Pride in what, may I ask?"
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