Reflections on Jamaican sovereignty
THE term “sovereignty” is used in international relations to cover a variety of issues. It may refer, for instance, to the location of ultimate legal power within the State. In this sense, it is identifiable with executive, legislative and judicial authority in the State authority which, in the case of Jamaica, rests formally with the Queen. We may regard this as “internal sovereignty”.
National Pride
The term “sovereignty” is also used, on occasion, in a manner synonymous with national pride. This is a political use of the term, which sometimes justifies a particular stance in foreign policy: Jamaica, as a matter of its sovereignty or national pride, may well choose not to accept money to build a new prison. Or Jamaica may say, as a matter of sovereignty, national pride or national self-respect, that we will not allow foreigners to search ships in our waters. We may regard this as a type of “political sovereignty”, exercisable at our will.
A third sense in which sovereignty may be used concerns legal authority in international relations; we may call this “legal sovereignty”, as a matter of shorthand. In this sense, sovereignty seeks to address the limits of a State’s actions in its relations with other countries. Sovereignty used in this way usually starts out with the idea that a given State will have ultimate control over its territory; but this is just a starting point, for even the most powerful State will be subject to the dictates of international law and to international commitments which the State has made.
The Shiprider
Moving from the level of abstraction to the practical, sovereignty issues have recently been in the news. We may consider, first of all, the matter of our surrendering to the United States of America Jamaicans accused of drug trafficking.
A bill on this issue was steered through the House of Representatives by Minister Peter Bunting a few months ago. When carried to the Senate by Minister Mark Golding within the last fortnight, it encountered opposition, not least from former Minister of National Security, and of Foreign Affairs Senator KD Knight QC.
Under the current law, the United States of America provides assistance to Jamaica through the so-called Shiprider Agreement. The Shiprider Agreement allows United States vessels to pursue and search within Jamaica’s waters, vessels suspected of drug trafficking; United States vessels may also pursue and search suspect Jamaican vessels in international waters.
Respect for Sovereignty
The arrangements that allow the United States to undertake such pursuit and searches show respect for Jamaica’s legal sovereignty in at least two ways. First, the United States may have on board its vessel a Jamaican security officer (the “shiprider”) who provides authorisation for pursuit and search within Jamaican waters.
And secondly, where the Jamaican shiprider is not on board the United States vessel, the United States is required by the Shiprider Agreement to obtain authorisation for pursuit and search. This authorisation is normally obtained by contact with the Central Authority in Jamaica (an officer of the Jamaica Defence Force acting on behalf of State).
At the time of the Shiprider negotiations in 1996 and 1997, Jamaica found it necessary to assert its sovereignty because the United States had wished to be able to pursue and search vessels in Jamaican waters without obtaining authorisation to do so on a case-by-case basis.
The American perspective at the time — reflected in several Shiprider Agreements throughout the Caribbean — was that the USA could receive general authorisation in each Agreement, and that thereafter, there would be no need to obtain permission to pursue or search each vessel.
In short, the USA maintained that it would be respecting the legal sovereignty of each Caribbean State by gaining prior permission from each State in the treaty. Jamaica and Barbados resisted this approach even though, strictly speaking, it was compatible with the legal concept of sovereignty (or what I am calling “legal sovereignty”).
Contracting Out
It was compatible because each State, again as part of its legal sovereignty, may contract out or allocate some of its rights of sovereignty to other States. This happens all the time — and, indeed, it happens almost every time a State enters into a treaty, for the essence of treatymaking is the surrender of a State’s right with respect to one item, in return for a share of another State’s right in another item: quid pro quo.
At the time of the Shiprider negotiations, Jamaican authorities, led by then Prime Minister PJ Patterson, would have been more than familiar with this concept. After all, since Independence, Jamaica has been contracting out a part of its legal sovereignty to Great Britain through our continued recourse to the Privy Council as our final court of appeal.
So, in the context of the Shiprider negotiations, when Jamaica resisted the American position on sovereignty grounds, this was not a reference to “legal sovereignty”. Rather, I suggest, the Jamaican authorities were saying that we would not give the USA prior permission to pursue and search vessels in our waters, or to do the same to Jamaican vessels in international waters, because this was inconsistent with our sense of national pride, or what I am calling our “political sovereignty”.
To American Courts
The Shiprider deliberations have been revived in national discourse because of the current efforts to allow United States courts to try Jamaicans seized in Jamaican waters or in international waters. Broadly speaking, under the proposed scheme, the Jamaican minister of national security would have the power to transfer (or surrender) Jamaican nationals to the United States for trial.
In the face of this proposal, some critics have invoked “sovereignty”. They argue, specifically, that transferring Jamaicans without an extradition warrant would undermine our sovereignty on a matter of importance.
Perhaps the critics constructing their arguments on the sovereignty foundation need to refine their position. The transfer of Jamaican nationals — pursuant to Jamaican legislation — would not be incompatible with the legal concept of sovereignty. As in the case of the Shiprider negotiations, the Jamaican State has the power to contract out parts of its sovereignty in this case, it is proposing to contract out the State’s right to have a trial for drug-trafficking offences in the Jamaican courts.
Strongly Analogous
But does the surrender of Jamaican nationals to the USA go against our national pride, or against “political sovereignty”? In responding to this, we need to recall that the final decision on the transfer of the Jamaican is being left to a Jamaican official (the minister of national security). This approach is strongly analogous to the model Jamaica has already accepted for the Shiprider Agreement; for, as noted above, in the case of the Shiprider solution, a Jamaican gives permission to the Americans for their actions in our waters or against our ships.
Thus, from my perspective, there is nothing in the proposed arrangements to transfer accused persons to the United States that would go against our political sovereignty or national pride. Nor do the proposed transfer arrangements go against legal sovereignty, I repeat for emphasis.
Policy Considerations
Sovereignty, however, may not be the only consideration applicable with respect to the transfer arrangements. Are there other policy-related reasons to oppose the transfer approach? One ground for complaint is that the proposed scheme amounts to extradition of Jamaicans without following the appropriate procedures for extradition.
This complaint has some merit: the approach approved by the House of Representatives, but opposed in the Senate, would not require a judicial hearing in Jamaica prior to the transfer of the accused. So, it would cut across traditional extradition procedures.
Notice, however, that there may be good reasons for wanting to expedite the transfer of the accused. For example, Jamaicans and nationals of other countries may be involved in a drug trafficking scheme, and seek to implement it in our waters or in one of our vessels. Assume that they are caught in flagrante delicto. The non-Jamaicans are taken off to the United States for trial, and the Jamaicans are taken to Jamaica. The Jamaican extradition procedures may take some time, and are appealable up to the Court of Appeal stage; conceivably, too, there may be constitutional points that could be taken to the Privy Council.
So, in effect, if the proceedings against the accused are to be addressed as part of one trial, there may be significant delay while the American court awaits the extradition proceedings. These delays may lead to significant hardship for the non-Jamaicans who may be in detention in the USA.
Justice
Alternatively, the American court may proceed without the Jamaican accused; but this could have implications concerning the full availability of evidence. It could also mean that if and when the Jamaicans come to trial, plea bargaining arrangements have already been made with the non-Jamaicans.
More generally, from the perspective of arriving at justice in any particular case, it seems altogether more suitable if the accused are before the court at about the same time. The expedited approach facilitates this result. Thus, the attempt to forego extradition procedures is not prompted by the desire to deprive persons of any rights in Jamaica, but rather to promote the cause of justice.
In response to this line of reasoning, the critics of the transfer approach may argue that even if the transfer is well intentioned this does not give the Jamaican State authority to trample upon the right of the Jamaican accused to have an extradition hearing.
True, but if the State decides that the right to an extradition hearing will not be applicable in a particular set of cases, it is, I believe, open to Parliament to pass a law to that effect. This is what the proposed legislation seeks to achieve. Unless one can demonstrate that there is a constitutional right to an extradition hearing (a dubious proposition), the approach in the legislation is supportable as a plausible and practical response to a difficult law enforcement problem.
Effectiveness
Overall, in assessing this issue, we should also be mindful of the practical problems faced by the Jamaican State in combating drug trafficking. Our law enforcement system simply does not have the financial and infrastructural means to mount a strong counter-narcotics programme without United States assistance. By the same token, our judicial system — and country — should benefit from having some of the major drug traffickers tried expeditiously in the United States of America. The Government’s original approach promotes effectiveness.
All of which is to suggest that I would support the transfer approach that was passed by the House of Representatives. In response to concerns raised in the Senate, the Government may consider various means of ensuring that transfers of Jamaicans are not motivated by political motives. But, subject to measures being put in place to bar partisan decisions, the scheme should be supported. And it is difficult to argue that the scheme undermines Jamaica’s sovereignty.
Special Economic Zones
Another issue that touches and concerns sovereignty pertains to special economic zones proposed by the Jamaica (SEZs) an Government. Naturally, Jamaica has the right to establish such zones for the promotion of the country’s development goals. One question that has arisen, though, is whether a “last minute” adjustment to the Special Economic Zones Act is supportable.
The last-minute adjustment was made by Minister Anthony Hylton, while he piloted the Special Economic Zones bill through the House of Representatives on November 30. The adjustment was to replace the term “Jamaica” with “Caricom” in a provision in the bill relating to employment: as revised, the legislation would require developers in the SEZ to give priority in employment to Caricom nationals (and not only Jamaican nationals) in the developer’s enterprise.
Resistance to the revised approach, coming, for instance, from Opposition Spokesman on Finance Audley Shaw, is based on the idea that priority should indeed be given to Jamaicans above Caricom nationals, bearing in mind Jamaica’s well-known employment challenges and having regard to the underlying economic development purposes of the SEZ effort.
International Commitments
A key question in this debate is whether Jamaica’s international commitments, specifically as set out in the Revised Treaty of Chaguaramas, require us to eschew preferential treatment for Jamaicans as against other Caricom nationals. This, presumably, is the question that influenced Minister Hylton’s last minute adjustment to the bill.
In responding to this legal question, we may be tempted to say that Jamaican sovereignty requires us to put Jamaica first, and that, therefore, the Caricom approach should be rejected. This is an argument which turns largely on the concept of sovereignty as national pride — it is not seriously based on legal arguments.
As regards the law, the response to Minister Hylton’s last-minute adjustment should turn on the interpretation of relevant provisions of the Revised Treaty of Chaguaramas. In presenting a suitable interpretation, the minister and his critics would be well-advised to recall the guidance on treaty interpretation provided by the Vienna Convention on the Law of Treaties (and especially Articles 31 and 32 thereof).
In brief, the Vienna Convention on the Law of Treaties indicates that in interpreting a treaty, regard must be had to the text of the treaty, its context, and its object and purpose. This approach has already recommended itself to the Caribbean Court of Justice in TCL v Guyana and Shanique Myrie v Barbados, cases arising under the original jurisdiction of the Court.
Chaguaramas
The Revised Treaty of Chaguaramas has provisions that bear directly on the question of priority rights and equal treatment within Caricom, as well as provisions concerning the employment status of Caricom nationals: these provisions will naturally constitute the relevant text to be interpreted. But full attention must also be given to the context and to the object and purpose of the Treaty, considerations which, in some instances, do not speak as unequivocally as the text.
The result is that neither side in this debate should rush forward with what they deem to be a definitive interpretation on whether Jamaican sovereignty allows us to give priority employment rights to Jamaicans in the SEZ. This is not simply a matter of Jamaican legal or political sovereignty. It is governed by international law, which may not be altogether clear on the interpretation to be given to the Revised Treaty of Chaguaramas.
Caution
I should add that a cautious approach to the interpretation question is prompted by two additional considerations. The first is that, even assuming, arguendo, that the Revised Treaty of Chaguaramas does not require Jamaica to include other Caricom nationals in the priority employment arrangements, the Government of Jamaica may wish to offer the priority all the same.
The Government may wish to take this approach, based on reciprocity, in order to safeguard the possibility that Jamaican nationals have similar priority employment opportunities in other Caricom countries. The Government has a duty to ensure that in advancing the employment cause within Jamaica, it does not inadvertently undermine the same cause for Jamaicans in other Caricom territories.
Secondly, the Government may be mindful that the approach which it takes on the employment question could have implications for other issues within the Revised Treaty of Chaguaramas. For example, if we adopt a narrow, protectionist, Jamaica first, employment policy for SEZ, Jamaica could be estopped from arguing that the Revised Treaty of Chaguaramas should be interpreted more expansively, say, in respect of pricing policy for certain commodities in Caricom.
In sum, assertions about sovereignty do not get us very far into the debate about employment policy. Political sovereignty should want us to promote greater employment prospects in Jamaica. But the matter is circumscribed by Jamaica’s legal commitments and by policy considerations that may not be readily apparent at first glance.