Reviewing Maroon argumentsSunday, January 16, 2022
Prime Minister Holness is correct on this point: Jamaica is a unitary State and there is no independent State of Accompong.
The Maroons do not have sovereignty over Accompong; nor is it helpful to refer to Accompong as a sovereign State. The matter needs to be addressed in unequivocal terms to avoid uncertainty. Clarity is essential.
The Jamaican Constitution, the document setting out the fundamental rules for the Jamaican State, makes no provision for a Maroon State within a State. This silence is not accidental. Jamaica, as a unitary State, has in place one system of laws, one system for the promulgation of laws, and one system for the execution of laws.
On particular matters, rules concerning Maroons may differ from rules applicable to other Jamaicans, but if so, the departure from the laws applicable to all Jamaicans would need to be ordained ultimately by the Jamaican Constitution. Sovereignty over Jamaica is derived from the constitution and derogations from the constitution must be consistent with the terms of the constitution itself.
Notwithstanding, the principle of constitutional supremacy, some persons have suggested that Maroons have sovereignty over Accompong because of the 1739 Treaty between Guthrie (for the British) and Cudjoe (for the Maroons). Last week I sought to demonstrate that this line of argument is incorrect.
For one thing, the treaty, by its own terms, did not establish Maroon sovereignty over any part of Jamaica. For another, subsequent actions by the British colonial authorities and the independent Jamaican State did not contemplate a sovereign Maroon State established by the treaty. Nor did the nomenclature of the word “treaty” mean that the British and the Maroons completed their agreement as sovereign states.
In response to the Pprime minister's sharp refutation of the Maroon sovereignty claim last Sunday, Chief Currie of Accompong has asserted that the Maroons build their case on the United Nations (UN) Declaration on Indigenous Peoples. Others, including some distinguished scholars, have supported the chief on this point.
The UN Declaration on Indigenous Peoples is a resolution of the UN General Assembly passed in 2007 (A/RES/61/295) where 144 States voted for the resolution (including Jamaica), while four voted against (Australia, Canada, New Zealand and the USA) and 11 abstained. Since 2007, the dissentient states have reportedly given their support to this resolution.
As its name implies, the resolution recognises and seeks to protect the interests of indigenous peoples in different parts of the world. Presumably, Chief Currie's main argument is that the UN Declaration affirms Maroon sovereignty and creates binding obligations on the Jamaican State. This approach is problematic for several reasons.
In the first place, the idea that the resolution addresses Maroon issues is readily open to challenge. The resolution does not define indigenous peoples and, on the conventional view of our history, the Maroons are not indigenous people. For the Caribbean and the Americas, the term “indigenous peoples” has traditionally been understood to refer to groups existing in the so-called New World prior to the arrival of Columbus and the Europeans. These groups include, among others, the Tainos, Kalinagos, Mayans, Incas and Aztecs.
Maroons have not historically been regarded as falling within this category because they were originally persons transported – in horrific conditions – from Africa to the Caribbean and other places. They were not indigenous.
In recent times, attempts have been made to overcome this definitional reality. Some historians argue that Maroons are to be regarded as indigenous because they mixed with the indigenous Tainos and thus assumed standing as indigenous people. This claim is of doubtful validity as a matter of fact.
Another attempt to place Maroons in the indigenous category is through reference to two International Labour Organization (ILO) Conventions (ILO Conventions 107 and 169 of 1957 and 1989, respectively). These conventions include definitional terms that could assimilate the Maroons to the status of indigenous people; but significantly Jamaica is party to neither of them.
The country, in other words, has not accepted the idea that Maroons are indigenous people. The Maroons, it is fair to argue, do not fall within the scope of the UN Declaration on Indigenous Peoples.
Source of Law?
Chief Currie's sovereignty argument also falters on the fact that the UN Declaration on Indigenous Peoples is not a formal source of international law. Resolutions of the UN General Assembly are normally non-binding, recommendatory instruments. Contrary to what one Jamaican scholar has said, states do not become “signatory” to General Assembly resolutions; rather, they simply cast votes for or against them.
True, resolutions such as this declaration may become binding as customary international law, but there is little evidence that this has happened with respect to the UN Declaration on Indigenous Peoples. So, Chief Currie would be hard-pressed to demonstrate that Jamaica is obliged to accept the declaration as law, even though Jamaica voted for it. We did not vote for it to be binding on us; we supported it as a recommendation for consideration by states.
But, for argument's sake, let us assume at the declaration actually sets out binding rules of international law. This assumption would not mean that Jamaica is bound to accept Maroon sovereignty. The declaration would still not be law in Jamaica, for it has not been incorporated into Jamaican law by Parliament. And if Chief Currie wished to show that the Maroons are sovereign, he would need to establish that, on its terms, the declaration supports sovereignty for indigenous peoples. The declaration does not do so, it is submitted.
What the declaration supports for indigenous peoples is the right of “self-determination”. But self-determination is not necessarily sovereignty; and, most importantly, in the practice of the United Nations, self-determination shall not be used to disrupt the territorial integrity or national unity of any existing State – see, for example, UN General Assembly Resolution 1514 of 1960 on the Granting of Independence to Colonial Countries and Peoples (noted in my Sunday Observer article last week). This rule against disruption is widely accepted as customary international law. As the Maroon sovereignty claim would unquestionably disrupt the Jamaican State, it cannot stand as supported by international law.
What is Sovereignty?
Some supporters of the Maroon approach to sovereignty take a less expansive line than appears in Chief Currie's assertions. They submit that when the Maroon leader refers to sovereignty he is not claiming sovereignty in the Westphalian sense. The Westphalian conception – with its European roots – departs from Maroon expectations in notable respects. So, for example, the sovereign Maroon State would not expect to be a member of the United Nations, these experts say.
But if these experts are correct, the debate on Maroon sovereignty will be almost futile, for no one will know for sure what we are talking about. If the Maroons have their own definition of “sovereignty” but have not got around to telling us what it means in practice after over 280 years, how will the Jamaican State be able to decide whether it can support Maroon sovereignty? This is all too nebulous and it may lead, at very least, to confusion. What, then, we may ask, does the notion of Maroon sovereignty – without Westphalian trappings – actually mean?
Shooting and Driving?
In the Maroon sense, sovereignty means to some people that Accompong may print its own money. Last week, Nationwide News Network skillfully gathered what appeared to be a gun licence and a driver's licence issued by a Maroon community. The “minister of foreign affairs” of Accompong said that these documents were not from the realm of Accompong. Still, we are entitled to enquire whether Accompong as a sovereign entity could reserve the right to issue such permits, even if only for shooting and driving in their community.
And what about police enforcement? A former Maroon chief, pre-Currie, asserted a few years ago that the Maroon leadership has the right to flog and whip lawbreakers in the Maroon areas, even if Jamaican law said otherwise. Would sovereign Accompong be able lawfully to drive away agents of the Jamaican State and prevent criminal investigations in its area. Would Maroon sovereignty mean that Maroons could pay no taxes to the Jamaican State?
Other Sovereign Rights
Could Accompong, as a land-locked State within Jamaica, successfully claim special rights of access to the sea for its people? Could they build an international airport without Jamaican approval? Could they negotiate with Jamaica for reparations concerning perceived historical injustice wrought by the Jamaican authorities? Could they pass their own COVID-19 laws and disregard those of Jamaica?
Supporters of Maroon sovereignty may think that these are elements of autonomy, self-determination or sovereignty, but these elements in the hands of the Maroons would clearly undermine the unitary character of the Jamaican State. They would also be set against the expectations of the vast majority of Jamaicans who instinctively regard Maroons as Jamaicans, like everybody else born in the country or otherwise meeting nationality requirement in our constitution. The law should work to preserve Jamaica.
International lawyers sometimes refer to the doctrine of uti possidetis juris in considering questions of title to territory or sovereignty over a given area. Uti possidetis juris – meaning literally “as you possess under law” – indicates that when an area moves from colonial status to independence, then the boundaries of the administrative divisions of the colonial area should be accepted as the borders of the emerging independent states.
This doctrine has been applied to Latin American independence in the 19th century and to Africa boundaries in the 20th. Colonial boundaries have been acceptable mainly as a means of avoiding disruption and uncertainty. The doctrine of uti possidetis juris has become a rule of customary international law.
The question arises: could Maroons successfully argue that uti possidetis juris must apply to their territories today? On the better view, the answer is no. The Maroon lands from 1739 could arguably – just arguably – have been separate administrative districts within Jamaica for some purposes. However, at the time of Jamaica's Independence uti possidetis was not invoked on behalf of the Maroons.
Invocation of the doctrine today would lead to disruption of the national unity of Jamaica and produce a situation in which Maroons are nationals of Jamaica for some purposes but nationals of Accompong for others. Maroons would then be vulnerable to the allegation that they are enjoying the benefits of Jamaican citizenship without accepting the responsibilities thereof.
“Sovereign State” Politicians
Finally, what legal consequences, if any, arise from the fact that some Jamaican politicians occasionally refer to “the sovereign State of the Maroons” or otherwise appear to accept that the Maroons are sovereign in their domain. Does this give rise to Maroon sovereignty? The answer, again, is no. In international law some legal obligations may arise by virtue of consistent statements or practice by states in favour of a rule; and in a few instances, statements have become binding on states by virtue of the general principle of estoppel.
But for the Maroons, the politicians have not been consistent. You may be able to find at least one statement each from Andrew Holness and Mark Golding referring to the sovereign Maroon State. But equally you may find the same Holness, Dudley Thompson and Sir Alexander Bustamante saying quite the opposite.
Whether we like it or not, this is part of the cut and thrust of Jamaican politics. The establishment of the Maroon State cannot be achieved by inconsistent statements when there are clear parliamentary approaches that may be used by the Jamaican State to recognise Accompong as a State on acceptable, well-defined terms.
In sum, the sovereignty arguments of the Maroons presented so far are quite weak in law. Jamaican sovereign territory and sovereign rights must not be reduced by a side wind.
Ambassador Stephen Vasciannie is professor of international law at the University of the West Indies.