Law and the Maroon StateSunday, January 09, 2022
The Maroons have been in the news in recent times.
In August 2021, it was reported that some of their number repelled officers of the Jamaican State from areas under Maroon control, and earlier last week, a dispute emerged concerning public activities to mark the 284th anniversary of the signing of the first treaty between the Maroon and the British, organised under the auspices of the Accompong Maroons in St Elizabeth.
This latter dispute has reportedly resulted in violence. Jamaican police authorities had sought to prohibit the public activities given the country's COVID-19 rules and regulations.
We may recall as well that a few years ago, there was an attempt – by at least some Maroons – to print legal tender for use in Maroon communities without authorisation from the monetary authorities in Jamaica. In recent times, too, comments by certain Maroon leaders suggest that they regard themselves as members of a State which is separate and distinct from Jamaica.
The case for the Maroon State, with sovereignty and full decision-making power is often said to be based on the treaty — completed in 1739 — between Captain Cudjoe of the Maroons, on one hand, and Captain Guthrie of Britain, on the other.
Some supporters of the Maroon State suggest or imply that the British, in finalising a “treaty” with the Maroons, were in fact recognising the sovereignty of the Maroons within the Jamaican territory. Accompong was imperium in imperio, a State within a State. Why else would the British authorities enter into a treaty with the Maroons? The fact that subsequent treaties were completed between the British and the Maroons is said to reinforce this perspective.
This argument is based on a logical fallacy. It is true that states throughout history have entered into treaties to conduct their international relations; it is not true, however, that treaties may be completed only by states inter se. In modern international law parlance, a treaty will usually connote a document setting out rights and duties of states, but, as is evident from various “peace treaties” that have been completed between Jamaican political parties, there is no special magic in the term “treaties”.
According to historian Mavis Campbell, the 1739 treaty has been denoted in various official sources as “Agreement with Captain Cudjoe Vera Copia”, “Articles of Pacification with the Maroons of Trelawny” and “Articles of Agreement betwixt Coll Guthrie, Lieu Sadler and Capt Cajoe signed March 1 1738/9” (Campbell, The Maroons of Jamaica, 1655-1796 (1990), pp 128-129). In its preamble, the document refers to itself as a “Treaty of Peace and Friendship”, and the historical circumstances attendant to its completion firmly indicate that the British (including Governor Trelawny) were prepared to affirm the freedom of the Maroons in return for peace and security from Maroon onslaughts. But, for the present discussion, it is important to note that the treaty terms do not contemplate the grant of sovereignty to the Maroons.
Rights and Duties
The 1739 treaty carries 15 substantive paragraphs, the first of which specified “That all Hostilities shall cease on both Sides forever”. The second paragraph provided, inter alia, that “Cudjoe, the rest of his Captains, Adherents and Men shall be for ever hereafter in a perfect State of Freedom and Liberty…” Other provisions granted 1,500 acres of land to the Maroons, allowed sale of commodities by Maroons, and granted planting and hunting rights to Maroons in different parts of the island.
At the same time, Maroons were required to collaborate with the British in surrendering persons fleeing from slavery after a particular time, assist the Governor against “any foreign enemy”, “kill, suppress or destroy … all Rebels wheresoever they be throughout this island”, “wait” on the governor every year if required, and “cut, clear and keep open large and convenient Roads” between Trelawny Town to Westmoreland and St James and if possible, St Elizabeth.
The treaty also provided that Cudjoe should be chief commander in Trelawney Town for life, with leadership for life devolving to Accompong, Johnny, Cuffee and Quaco in that order. Thereafter, the governor retained the power to appoint the chief commander of Trelawney Town. Cudjoe and successors were empowered “to inflict any Punishment they think proper for Crimes committed by their Men among themselves (Death only excepted)”, and “Two white Men” were to be nominated by the governor “to constantly live and reside with Captain Cudjoe and his Successors” to promote friendly relations.
Some of the foregoing terms have been the subject of much controversy, with Bev Carey, pointing out for instance that some of the provisions depart from the Maroon oral tradition – including the acreage for the land grant (1,500 versus 15,000 acres) and the insertion of the requirement that recently escaped slaves be returned (Carey, The Maroon Story (1997), page 337). Similarly, Judge David Batts, writing extra-judicially, has noted that the British did not fulfil all the promises in the treaty (Batts, “A Maroon Right to Land”, available online). But, again, the point of importance here is that neither distinguished writer – each largely supportive of Maroon perspectives – argues that the treaty created a sovereign Maroon State.
So, the foundation document for Maroon rights and duties does not support the sovereignty case. There was a provision on Maroon leadership in the Maroon lands and punishment of Maroons in the defined area could largely be carried out by the Maroon leader. Generally, the arrangements envisaged freedom and some special rights for Maroons in return for peace and loyalty, but they did not create a Maroon State.
Another problem with the sovereignty approach arises from the response of the British authorities to the treaty arrangements. Specifically, at various times following the treaty's completion, Britain and the colonial House of Assembly in Jamaica formulated and implemented legislation that amended the rights of Maroons. These laws prevailed over the terms of the treaty and tended to bring the position of Maroons into line with that of other Jamaicans.
Thus, by 1956, Chief Justice McGregor in the case of R v Man O Rowe found that there was no distinction or difference between the rights of Maroons and those of “any other British subject in Jamaica”. The chief justice's dictum confirms that in the immediate pre-independence period Maroons had the same rights as Jamaicans and in the view of the law were British subjects in Jamaica – not nationals of a Maroon State.
In the era of Jamaican independence, policy continuity has been preserved. The 1962 Constitution carves out no exceptions for Maroons and proceeds implicitly on the basis that Maroons born in the country have Jamaican citizenship. Maroons themselves have enjoyed basic rights in the country qua Jamaicans, living, learning, working, contributing to national life and sharing in the country's travails. As a matter of Jamaican law, therefore, the Jamaican status of Maroons is beyond question.
The question arises, however, whether, for the purposes of international law, Accompong may be regarded as a separate State — entitled to make its own laws and to assume all the attributes of sovereignty. This question prompts two related lines of enquiry, namely: (a) does Accompong satisfy the criteria for statehood in international law? and (b) are Accompong Maroons entitled to establish a Maroon State pursuant to rules of self-determination?
As to (a), it is generally accepted that Article 1 of the Montevideo Convention on the Rights and Duties of States sets out the main criteria of statehood in international law. It indicates that a State must have population, defined territory, government and the capacity to enter into international relations.
Clearly, Accompong would satisfy the population, territory and government criteria for statehood. The comparatively small population in Accompong would not, as a matter of law, deter the acquisition of statehood: there is no shortage of states with small populations in the international community today.
Also, even if there might be some initial uncertainty concerning the delineation of the boundary between Accompong and the remaining parts of Jamaica, a clear border could be negotiated. Also, the geographical size of the Maroon State would not impede its exercise of statehood.
The establishment of a government ought not to be very difficult. And this government could, in theory and in practice enter into relations with other countries in areas such as trade, investment promotion, tourism ventures, the pursuit of international aid and so forth.
So, with reference to the criteria in the Montevideo Convention, the Maroon State could be created. But while an entity needs to meet these criteria to assume statehood, not all entities that satisfy the criteria are states. The criteria are, in other words, necessary but not sufficient conditions for statehood today. This is an important point in the debate on Maroon sovereignty.
What additional features, then, would the Maroons be required to demonstrate in order to achieve independence from the Jamaican State? The response to this key question relates to point (b) noted above on self-determination. If the Maroons are to achieve independence from Jamaica, they need to show that this independence is consistent with the international law rules on self-determination.
A central point of reference for these rules on self-determination is the United Nations General Assembly Resolution 1514 (1960) on the Granting of Independence to Colonial Countries and Peoples. In its 2019 Advisory Opinion on the Chagos Archipelago, the International Court of Justice noted that the right to self-determination is “a fundamental right” (paragraph 144 of the Opinion) and that Resolution 1514 “has a declaratory character with regard to the right to self-determination as a customary norm” (paragraph 152). So, we must look to Resolution 1514 for guidance on the law.
Resolution 1514 carries two points of considerable significance to any Maroon claim to sovereignty. First, it states, in numbered paragraph 2, that “All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”. Relying on this paragraph, Accompong Maroons could argue, for instance, that they constitute a distinct people for the purposes of the law, and that, as such, they have the right to decide that they wish independence.
Secondly, however, Resolution 1514 places a notable caveat on self-determination claims. In numbered paragraph 6, it specifies: “Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations”. In effect, therefore, although Maroons may claim self-determination, their claim must not lead to the disruption of the national unity and territorial integrity of Jamaica. My submission is that a Maroon claim for sovereignty would be in direct and irreconcilable conflict with this provision in Resolution 1514.
Both Jamaican and international law point firmly against the notion that the Maroons may be regarded today as an independent State. This conclusion is consistent with clear facts on the ground throughout Jamaica. Maroons accord generally with the laws within the country and conduct their affairs as Jamaicans. If the Maroons wish to be regarded as politically separate from the rest of Jamaica, they will have to make the case with clarity and precision.
They will need to demonstrate convincingly why the small Jamaican State, already struggling with the problems of small island development, should support a diminution in its size at the behest of another small unit which is physically part of the existing Jamaican State. Until then, the sceptics will rule.
Ambassador Stephen Vasciannie is Professor of International Law at The University of the West Indies.