There are concerns and commendations regarding the wording of the Interpretive Declaration that the Jamaican government had submitted upon signing the controversial Samoa Agreement, which will be binding for the next 20 years.
The Ministry of Foreign Affairs and Foreign Trade had promised to issue the interpretative declaration after yielding to pressure to sign from several LGBTQ rights advocates and civil society groups in December 2023. Foreign Affairs Minister Kamina Johnson-Smith insisted Jamaica had to sign to benefit under the new treaty, which provides the legal framework guiding relations between the EU’s 27 nations and 79 African, Caribbean, and Pacific countries. She said that while the terms of the agreement could not be adjusted, an interpretative agreement would be issued that would clarify Jamaica’s understanding of the terms used in the document.
This interpretative declaration has since been made available to the public on the website of the European Council of the EU. The Jamaica Coalition for a Healthy Society (JCHS), which was one of the groups that had strongly resisted the signing of the agreement in its original format, issued a press release on Wednesday, May 28. The group, with the endorsement of eight NGOs, commended the government for listening to the electorate and welcomed the text of the Interpretative Declaration as a recognition by the government of Jamaica of the validity of their concerns regarding Jamaica’s sovereignty and the rights of future generations.
“The JCHS sincerely thanks the thousands of Jamaicans at home and abroad who joined in voicing support for preserving national freedoms,” the organisation stated.
Notwithstanding, advocacy officer at the JCHS and attorney at law Philippa Davies noted some concerns.
“Our concerns are that the ongoing constitutional reform process could result in a changed constitution that removes current protections enjoyed by citizens and which the Declaration intends to present as our legal ceiling,” she told the Freedom Come Rain.
She said the organisation made several recommendations to the government regarding how the interpretative declaration could be worded.
“Our recommendations included some of language in the Declaration but more specificity. We named the controversial words and phrases like sexual and reproductive health and rights, gender, comprehensive sexuality education, inter alia,” she noted.
Given that the Samoa Agreement is a 20-year binding trade agreement and the country could face punitive sanctions if found to breach the agreement, Davies noted that it is critical to know what Jamaica agreed to and the meaning of the terms used.
THE INTERPRETATIVE DECLARATION SUBMITTED BY JAMAICA
The Constitution of Jamaica entrenches and guarantees to every person in Jamaica the fundamental rights and freedoms to which they are entitled by virtue of their inherent dignity as persons and as citizens of a free and democratic society. The Constitution prescribes judicial processes to be observed in the event of the violation of any of these rights, whether by the State or by a private individual. Neither the Signature, Provisional Application, nor Ratification of the Samoa Agreement by Jamaica implies the acceptance of obligations going beyond the constitutional limits.
The Agreement includes some terms that do not have a universally agreed definition or whose usage is not agreed as amongst the Parties hereto. The Government of Jamaica, therefore, understands that the Samoa Agreement will be interpreted and implemented by Jamaica in a manner consistent with Jamaica’s domestic legal and policy frameworks. Without limiting the generality of the foregoing, Jamaica understands that Article 29(5) does not impose an obligation on Jamaica to legalise or decriminalise abortion. Further, the Government of Jamaica understands that, in relation to Jamaica, references to ‘sexual and reproductive health’ and ‘family planning services’ do not include a reference to abortion other than where the termination of a pregnancy is made lawful under its domestic law.
The Government of Jamaica also declares that it understands that the Samoa Agreement does not alter the interpretation of or create new legally binding obligations under international law in respect of any other instrument, including any treaty, declaration, or resolution. Without limiting the generality of the foregoing, the Government of Jamaica further declares that, while it is committed to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), it does not consider the last sentence of Article 9 of the Samoa Agreement as creating binding obligations as to the interpretation or implementation of the UNDRIP. In this regard, it is recalled that the UNDRIP is not a legally binding instrument.