Jamaica-US diplomatic imbroglio over same sex spouse 

Jamaica-US diplomatic imbroglio over same sex spouse 

Ambassador Curtis A. Ward

(22 July 2023) — The brewing threat to the bilateral relationship between the United States and Jamaica is not a mere diplomatic spat as one might deduce from the statement of Jamaica’s minister of foreign affairs and foreign trade on the fallout from the denial by the government of Jamaica (GoJ) of the U.S. government’s (USG) request for diplomatic immunity for the spouse of a U.S. foreign service officer slated to be posted in the U.S. embassy in Kingston. There is the likelihood of a diplomatic tsunami slowly building to upend the traditional excellent bilateral relations between the two countries.

The Jamaican government botched an opportunity to resolve the issue discreetly. Instead, due perhaps to arrogance, the Jamaican government did not merely thumb its nose at the Biden administration, the government poked the American president in the eye. I am not being dramatic!  That’s how the action of Jamaican prime minister Andrew Holness’ government is being viewed in diplomatic circles and the international media. The relevant issues are far more complex than the emotion-laced responses seen in regular and social media. It is important that all relevant issues are understood in this complex matter. International and domestic laws and policies impact both sides of the issue. I doubt the GoJ gave due consideration to the relevance of these legal issues in its knee jerk rejection of the USG request.

There are several interlocking issues which make this diplomatic imbroglio a complex one and there is no simple explanation. Let me elaborate.

 What we know – information in the public square

The U.S. Department of State (DoS) following diplomatic protocol sent a diplomatic note (Dip Note) to the Ministry of Foreign Affairs and Foreign Trade (MFAFT or GoJ) requesting diplomatic immunity for the spouse of a US foreign service officer who would be posted to the American embassy in Kingston. This request for diplomatic immunity for the family of diplomatic staff members (diplomatic agents) is normally routinely approved. This request was not normal. The spouse of this foreign agent was part of a same-sex marriage. Clearly, the USG in making this specific request had not treated it as routine, given the potential effects of Jamaica’s buggery law on a same-sex couple, including a member of the diplomatic community without a specific grant of diplomatic immunity.

The GoJ failed to respond to the DoS request. Obviously annoyed that the GoJ by ignoring or otherwise failing to respond (note I didn’t suggest failing to accede to), the USG likely saw this as being disrespectful. Given the totality of US economic and security assistance to Jamaica and the traditional good relations, it is inconceivable in the DoS that the GoJ would simply ignore the USG request. Failure to respond was probably interpreted as the GoJ flexing its sovereignty, that is of a small country, against the most powerful country in the world. Then again, that may not have been the thinking in Washington and instead the DoS may have viewed it as a diplomatic snub.

The DoS, perhaps angered by the snub, sent a second Dip Note to the MFAFT literally demanding a response. The GoJ responded by denying diplomatic immunity for the spouse of the same-sex union. The Holness government could not under any circumstances believe the USG would simply accept this response. Influenced by arrogance, willful ignorance, or lacking in diplomatic skills, the GoJ grossly miscalculated. The exchanges between the DoS and the GoJ were leaked. Perhaps intentionally, but by which side, and to what end?

Knowing of the presence of highly qualified senior staff in the MFAFT it is unimaginable that they would not have advised a timely diplomatic approach to avoid this unforced error. Rather than a deliberative approach and response taking into consideration what was at stake in damaging Jamaica’s relations with the United States, the Jamaican government opted for a political response catering to the high level of homophobia in Jamaica. But it was a gross misunderstanding or ignorance of the possible detrimental consequences for the nation.

The DoS’s preliminary response was to inform the GoJ that Jamaican diplomats in the U.S. would not be granted what were normal waivers extending their stay in the US beyond the prescribed five-year period of posting. Sources suggest that the repercussions for Jamaica could be far greater than denial of extensions for its diplomats.

There are several other areas within the bilateral relations between the two countries that could be affected. Some could be severe; some could be merely embarrassing. For example, withholding certain airport courtesies, including the usual secret service treatment that would be extended to the prime minister traveling through American airports could be withheld and the Jamaican prime minister could suffer the indignity of joining the lines and going through security like any other passenger. But that would be personal pain on the prime minister, not on the country and the people of Jamaica. Most importantly, the USG could decide to take this further and freeze economic and security assistance to Jamaica. The people would feel the pain.

No doubt, Jamaica will be on the deficit end. Big time!

The Vienna Convention on diplomatic relations – 1961 (Vienna Convention)

The Vienna Convention on Diplomatic Relations (Vienna Convention) of 1961, is the overarching international legal framework for the conduct of diplomatic relations between States. It guides bilateral relations between all sovereign States, no matter their sizes and relative power. The Vienna Convention imposes certain rights, obligations, and responsibilities on the sending and receiving States. In this instance the United States is the sending State and Jamaica is the receiving State. All responsible governments strive to follow the rules laid out in the Convention.

In my examination of the relevant issues, I found applicable provisions in Articles 1(e), 7, 9, 11(1) and 11(2), 25, 29, 31, 37 and 41 of the Vienna Convention..

References throughout to “diplomatic agent” as is defined in Article 1 (e) as “the head of mission or a member of the diplomatic staff of the mission”. The term “diplomatic agent” is sometimes used interchangeably with “diplomatic staff”. Article 7 states that the sending State (United States) “may freely appoint the members of the staff of the mission.” The only exception, as stated in the article is, “In the case of military, naval or air attachés the receiving State may require their names to be submitted beforehand, for its approval.”  Other provisions in other articles to be discussed herein are also applicable. So, while we begin with the premise that the US government was free to appoint whomever they wished, regardless of sexual orientation, to serve in the US mission in Kingston, there are limitations and exceptions.

On the side of the receiving State (Jamaica), there are also certain rights under the Vienna Convention. Article 9 states: “The receiving State may at any time and without having to explain it’s decision, notify the sending State that the head of the mission or any member of the diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is not acceptable. … A person may be declared persona non grata or not acceptable before arriving in the territory of the receiving State.” This now causes us to pause and ask whether the Jamaican government had availed itself of Article 9 and the way it was done.

While Article 9 states quite clearly that the receiving State was not duty bound to explain its decision, in the interest of comity between the sending and the receiving State, and the importance of maintaining the existing friendly relationship between the United States and Jamaica, the circumstances of this case make it prudent and provide a good example for diplomatic discussion and mutual agreement between the two friendly States.

Therefore, it brings into question the rationale for the delay in the first place and the failure of the GoJ to respond promptly to the USG.  Perhaps, given Jamaica’s dependency on American economic and security assistance the Jamaican government should have taken a practical approach which may have been supported by other collateral issues. Remember what I said at the very beginning, the issues are complex.

We can assume that there was no prior agreement between Jamaica and the US on what category of persons were welcome to serve in the United States embassy in Kingston or the Jamaican embassy in Washington. Article 11(1) of the Vienna Convention states that in the absence of specific agreement the receiving State may, within certain bounds, impose restriction on the size of the mission, and Article 11(2) gives similar right to the receiving State. Specifically, the “receiving State may equally, within similar bounds and on a non-discriminatory basis, refuse to accept officials of a particular category.”

At the same time, Articles 25 and 29 also shift the burden on the receiving State.

Article 25, states that, “The receiving State shall accord full facilities for the performance of the functions of the mission.” That would be interpreted to mean the receiving State (Jamaica) should not impede the sending State (United States) in choosing its staff for “the performance of the functions of the mission.” But the Jamaican government’s position is that failure to impede the United States government means that Jamaican domestic laws would be violated. And the Jamaican government is effectively saying that it was incapable of guaranteeing fulfilment of its obligation under Article 29, which states that, “The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.”

Furthermore, Article 31, states that “A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction ….” And Article 37(1) provides similar protection for the family members of a diplomatic agent. To wit, “The members of the family of a diplomatic agent forming part of his household shall, if they are not nationals of the receiving State, enjoy the privileges and immunities specified in articles 29 to 36.”

While diplomatic agents and their family members are guaranteed immunities and privileges under the provisions of the Vienna Convention, Article 41 (1), also places obligations on them Specifically, “Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State.” That would have been difficult in a same sex marriage, except that their right to privacy should also be inviolable.

The issue of same sex marriage under the foregoing circumstances posed a dilemma for both governments and is precisely why this matter should have been handled in the most discreet manner possible.

United States laws and policy on sexual orientation

Since the US Supreme Court decision ruling in 2015 recognizing same sex marriage as a constitutionally protected right, US government policy has been very clear. No U.S. government (USG) agency can discriminate based on sexual orientation. That applies to the Department of State in selecting and posting foreign service officers abroad. The DoS specifically changed its internal policy accordingly. According to the DoS, “It is the Department’s policy to provide equal opportunity and fair and equitable treatment in employment to all people without regard to race, color, religion, sex (including pregnancy, sexual orientation, and gender identity), national origin, age, disability, or genetic information….” This policy would have applied in the decision to select a foreign service officer in a same sex marital relationship for posting in Jamaica.

The US Foreign Assistance Act of 1961, as amended, obligates the DoS to report annually to the US Congress on the human rights situation in each country.  This report could have a bearing on US assistance provided to recipient States. The State Department can seek exceptions where US national security interests may be affected by withholding of such assistance. There are other provisions in US law which also prohibit discrimination in violation of human rights.

The DoS 2022 human rights report identified Jamaica’s legal prohibition of same sex unions as a major violation.  In reference to Jamaica’s buggery law, the DoS human rights report noted: “The law criminalizes consensual sexual conduct between men, with penalties of up to 10 years in prison with hard labor. Attempted sexual conduct between men is also criminalized, with penalties up to seven years in prison. Physical intimacy, or the solicitation of such intimacy, between men, in public or private, is punishable by two years in prison under gross indecency laws. The Inter-American Commission on Human Rights stated the law legitimizes violence towards lesbian, gay, bisexual, transgender, queer, and intersex (LGBTQI+) persons.”

The report also pointed out: “Significant human rights issues included credible reports of: unlawful and arbitrary killings by government security forces; cruel, inhuman, or degrading treatment by the government; harsh and life-threatening conditions in prisons and detention facilities; arbitrary arrest and detention; serious government corruption; lack of investigation of and accountability for gender-based violence; and the existence of a law criminalizing consensual same-sex sexual conduct between adults, although the government did not enforce the law during the year.”

 In spite of this scenario, the US government continued to grant exemption to Jamaica and has provided significant economic and security assistance to Jamaica up to the present. The question now arises as to whether this diplomatic imbroglio and the self-inflicted wound by the Jamaican government in the way it dealt with the US request will jeopardize US assistance to Jamaica in the future.

International human rights laws and standards

United Nations Human Rights declarations on discrimination include discrimination based on sexual orientation as a violation of human rights. Jamaica is party to UN Human Rights Conventions, including the International Covenant on Civil and Political Rights, and has been an advocate on international human rights for decades. A February 2, 2007 opinion by the UN Working Group on Arbitrary Detention, is specific to the situation in Jamaica in many ways. It was the opinion of the Working Group that “The existence of laws criminalizing homosexual behaviour between consenting adults in private and the application of criminal penalties against persons accused of such behaviour violate the rights to privacy and freedom from discrimination set forth in the International Covenant on Civil and Political Rights.”

Current trends on same sex marriage

There have been changes taking place in several countries in decriminalizing same sex marriages. At current count, 129 countries do not criminalize homosexuality and 64 countries have laws making it illegal. Almost half of the 64 countries are in Africa. Some 29 Commonwealth countries have buggery laws. A few Caribbean countries, members of CARICOM, partly driven by court decisions, have been making changes in their criminal laws to legitimize same sex relations. These include Antigua and Barbuda, Barbados, Belize, St. Kitts and Nevis, and Trinidad and Tobago. The laws of others inherited from Britain, as is Jamaica’s since colonial times, are being challenged in courts. Jamaica is among a dwindling number of States that retain its law criminalizing same sex relationships.

There is no question Jamaica is among States where homophobia has become a part of the cultural norms. It places Jamaica among a minority of states in the international community. This diplomatic imbroglio should engender a serious debate of the issues from all perspectives, including from a human rights perspective and the right to privacy of consenting adults. The reactions so far have been emotionally charged. As Jamaicans at home and in the diaspora, we should be more cerebral in our discourse, including on this issue.

We must address this issue, and ask and answer whether this is a tempest in teapot, or does this issue have deeper implications for US-Jamaica relations?

(c) Curtis A. Ward/The Ward Post