As a starting point, I too join the United States and the various families that were affected by the horrific and barbaric act at the Orlando nightclub shooting. The American Embassy in Kingston, Jamaica, raised the rainbow flag as a symbolic gesture of support for its citizens. The Attorney General of Jamaica Marlene Malahoo Forte, in seeming support of her country’s citizens, echoed her personal views denouncing the raising of the non-state flag while in sympathy with our closest friend (the USA). The cold truth is that the Constitution of Jamaica is the supreme law of the land, and until changes are made, homosexuality and its concomitant acts are still prohibited by our laws. The question to be answered is whether the rainbow flag is a legitimate flag according to international law.
Article 20 of the Vienna Convention on Diplomatic Relations 1961 states that the mission and its head shall have the right to use the flag and emblem of the sending State on the premises of the mission, including the residence of the head of the mission, and on his means of transport. The rainbow flag is not a flag or emblem of the United States under the circumstances. Similarly, Article 29 of the Vienna Convention on Consular Relations 1963 states:
1. The sending State shall have the right to the use of its national flag and coat of arms in the receiving State in accordance with the provisions of this article.
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2. The national flag of the sending State may be flown and its coat of arms displayed on the building occupied by the consular post and at the entrance door thereof, on the residence of the head of the consular post, and on his means of transport when used on official business.
3. In the exercise of the right accorded by this article, regard shall be had to the laws, regulations and usages of the receiving State. ( Jamaica would be a receiving State)
Clearly from both conventions the rainbow flag would not be considered a legitimate flag to be flown on the compound of the American Embassy and would be in breach of section 29(3) of the 1963 Vienna Convention on Consular Relations.
The question about an apology by some quarters of Jamaica is plain stupidity and irrelevant, however. There is nothing to apologise about. The attorney general was just making a legal argument grounded on domestic and international law. However, I am sure our friends the United States are fully aware of 29(3) mentioned above.
We must, as a people, continue to embrace the rule of law both domestic and international. The concept of State sovereignty is paramount to the existence of a nation. I submit that sovereignty is the ultimate control/jurisdiction over a people and a territory. A sovereign entity can decide and administer its own laws, can determine the use of its land, and can do pretty much as it pleases, free of external influence (within the limitations of international law).
The notion of “State sovereignty” is the basic concept of modern international law. It is a necessary and inalienable political and legal property of any state and ought to be respected. State sovereignty is synonymous with the “grundnorm” developed by jurist and legal philosopher Hans Kelsen, who referred to the grundnorm as the fundamental norm, order, or rule that forms an underlying basis for a legal system.
In studying international law there are two distinct theories. The dualist and the monist. Monism views international and domestic law as one unitary coherent system, while dualism which is a theory of international law stipulates that international and domestic legal order exist as two separate and distinct sets of legal orders. States decide on modes of incorporation (how) and domestic law has priority over international law that has not been incorporated. But by doing so, a State may not violate its national laws, but it might incur international responsibility.
Let’s now look briefly at the status of supremacy of the United States Constitution. The fundamental norm/order. In terms of constitutional sources of authority, Article VI of the United States Constitution clearly states that the “Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” What a profound explanation.
So what about our Constitution in Jamaica? Is it not to be respected? That’s a question we need to ponder in our minds when deciding whether or not Attorney General Marlene Malahoo Forte did anything wrong and needs to apologise.
As John Acton stated: “The fate of every democracy, of every Government, based on the sovereignty of the people, depends on the choices it makes between these opposite principles, absolute power on the one hand, and on the other the restraints of legality and the authority of tradition.”
Victor Barrett is a final-year student at the Norman Manley Law School. Send comments to the Observer or