4.1.1 General Attitude of the State towards the UN Treaty System

Interviews with relevant actors suggest that state officials generally are unfamiliar with, or may not have received specific training on, UN treaties, treaty body recommendations and General Comments.³³ Some officials question the authoritativeness of UN instruments. One official, for example, questioned the legitimacy of ratified unincorporated treaties as sources of law, noting that, in Jamaica, treaties are ratified by the executive and the obligations they incur do not require parliamentary approval. Therefore, the official considered that the principles of democracy and separation of powers that undergird Westminster-type constitutions preclude the executive changing domestic law through unilateral action at the international level without the participation of parliament. The official also expressed concern about the open-ended nature of the language used in UN treaties. Moreover, the official questioned the legitimacy and authority of treaty bodies to interpret treaty provisions with binding effect, especially since these bodies do not have the character of an independent judiciary.³⁴ Non-state actors have also noted that the state does not consider General Comments to be binding.³⁵

4.1.2 Level of Awareness

Only a few human rights activists, human rights academics and government officials directly involved with UN treaty implementation and reporting demonstrate a high level of awareness of UN treaties. ccpr, cescr, cedaw and cerd are the treaties that are most widely referred to in several academic books and articles dealing with the human rights situation in Jamaica or the wider Anglophone Caribbean. Neither cmw nor ced has given rise to any notable academic discussions in relation to Jamaica. The treaties and jurisprudence of treaty bodies appear to receive the most attention in academic literature dealing with polemical human rights issues in Jamaica and the wider Anglophone Caribbean, notably the death penalty,³⁶ sexual orientation³⁷ and the corporal punishment of children.³⁸

UN treaties and the UN treaty system are covered in the curriculum of legal education institutions in Jamaica³⁹ and, to some extent, in training programmes targeting professionals involved in the administration of justice, including judges and the police.⁴⁰ However, there is a low level of awareness of UN treaties among legal practitioners, except for a small group of advocates who litigate human rights issues.⁴¹

There is limited, often cursory, coverage of UN treaties by Jamaica’s main newspapers. ccpr, cedaw and crc are the most extensively-covered treaties by the news media. Experts and academics, including a former member of the cedaw Cttee, have used newspapers to raise awareness of UN treaty obligations.⁴²

4.1.3 State Reporting

Jamaica generally does not meet its reporting obligations on time, having thus far submitted a total of 23 reports with an average delay of three and a half years. There currently are two outstanding state reports, which should have been submitted to the cescr Cttee and cedaw Cttee in 2018 and 2016, respectively. Since ratifying cmw in 2008, Jamaica has not submitted a report to the cmw Cttee. Relevant domestic state actors attribute the delay in reporting to a lack of resources.⁴³ In 2016 there was an improvement in reporting to the HRCttee, which received Jamaica’s most recent report with a four-month delay.

The quality of Jamaica’s reporting appears to be highest under crc.⁴⁴ Other treaty bodies have expressed concern about the lack of sufficient information in Jamaica’s state reports.⁴⁵

Jamaica has engaged in 15 dialogues with treaty bodies since 1990: four with the HRCttee; two with the cescr Cttee; and three each with the crc Cttee, the cedaw Cttee and the cerd Cttee. The absence of any representative of the government of Jamaica at the cescr Cttee’s consideration of Jamaica’s second state report triggered concern among committee members.⁴⁶ Jamaica consistently sends high-level officials to the crc Cttee and cedaw Cttee, but in other cases representatives from the capital are not consistently present. Limited resources may, in part, explain deficiencies in state dialogues.⁴⁷

On 25 June 2018 Cabinet approved the formal establishment and institutionalisation of the Inter-Ministerial Committee on Human Rights (imchr) as the official national entity for reporting and follow-up to the UN human rights mechanisms.⁴⁸ The imchr meets quarterly and comprises a range of ministries, departments and agencies, but noticeably does not include parliamentary commissions. Members of the imchr serve as the core points of contact on human rights issues in their respective ministries, departments and agencies. Their functions include preparing Jamaica’s national reports to the Human Rights Council and treaty bodies, reviewing recommendations by the treaty bodies, and developing an action plan for implementation.

There is a low level of alternative reporting to UN treaty bodies. A small, but effective, group of local civil society organisations presents alternative reports, often in conjunction with foreign non-governmental organisations (ngos). However, domestic organisations do not report consistently across all treaty bodies and do not always involve a diversity of groups. The Ministry of Foreign Affairs and Foreign Trade has expressed an intention to strengthen and institutionalise consultation with civil society actors during the reporting process and consultations are being held and requested prior to reporting.⁴⁹

4.1.4 Domestic Implementation Mechanism

The imchr has a mandate to develop action plans to implement the recommendations of international human rights bodies. However, interviews with relevant domestic actors suggest that there still is no systematic work with respect to the implementation of treaty body recommendations.⁵⁰

4.1.5 Treaty Body Membership

Current research was unable to find evidence of a formal national process for nomination of treaty body members. Nonetheless, Jamaica has had, and continues to have, members on UN treaty bodies, including Verene Shepherd, who is a member of the cerd Cttee (term expiring in 2024).⁵¹ Former treaty body members include Barbara Bailey (cedaw Cttee 2009–2016); Glenda Simms (cedaw Cttee 2005–2008); Marjorie Taylor (crc Cttee 2003–2004); Alison Anderson (crc Cttee 2004–2007); Laurel Francis (HRCttee 1993–1996); and Kenneth Rattray (cescr Cttee 1986 to 2004).⁵² Outside the period covered by this chapter, on 30 November 2020 Floyd Morris was elected to the crpd Cttee (2021–2024).⁵³

4.1.6 Incorporation and Reliance by Legislature and Executive

In the past two decades, Jamaica has embarked upon a process of legal reform that incorporates some of its UN treaty obligations into domestic law. The new Charter of Fundamental Rights and Freedoms expands the scope of civil and political rights and recognises a few social and economic rights. In addition, Parliament has enacted landmark legislation, such as the Child Care and Protection Act 2004, the Sexual Offences Act 2009 and the Disabilities Act 2014, which broaden the scope of human rights protection, although some aspects of these laws are inconsistent with UN treaties.⁵⁴

In 2015 the Minister of Justice emphasised that ‘Jamaica is committed to its obligations’ under the core international human rights treaties Jamaica has ratified, and that this commitment ‘is buttressed by legislation to give effect to those obligations in law’.⁵⁵ While human rights laws do not explicitly refer to UN treaties, parliamentary debates suggest that in some instances, UN treaties, particularly crc, cedaw and crpd, have played a role in law and constitutional reforms. Moreover, key policies and action plans also refer to UN treaty norms, particularly those policies related to women,⁵⁶ children⁵⁷ and development.⁵⁸

Despite Jamaica’s progress, Jamaica’s compliance with UN treaty obligations is slow and incomplete. Parliament has acknowledged the ‘inordinate lapse of time between the ratification of a treaty by Jamaica and its incorporation into domestic law’.⁵⁹ Importantly, significant gaps in the law remain and some laws are inconsistent with UN treaty norms, including with respect to cross-cutting principles such as equality and non-discrimination. Jamaica, for example, is yet to enact comprehensive anti-discrimination legislation. Treaty bodies have consistently commented on the narrow scope of prohibited grounds of discrimination in the Charter and, in particular, on the absence of sexual orientation, disability, health status, and marital status as prohibited grounds.⁶⁰ Instead of prohibiting discrimination on the grounds of sex or gender, the Charter speaks to discrimination on the basis ‘of being male or female’,⁶¹ an approach designed to ensure that ‘sexual orientation’ would not be indirectly included.

The Charter also contains savings clauses, which limit judicial review of certain criminal laws, such as those laws dealing with consensual same-sex conduct and abortion.⁶² These provisions place an even greater responsibility on the legislature to ensure that Jamaica’s laws are in compliance with the Constitution and with UN treaties. Yet, Parliament generally is reluctant to address issues such as the decriminalisation of same-sex conduct, because of what a parliamentary committee describes as the ‘sensitive nature’ of these provisions and the existence of savings clauses.⁶³

Another obstacle is Jamaica’s delay in establishing a national human rights institution in accordance with the Paris Principles, despite the Minister of Justice’s statements in 2014 welcoming discussion on how Jamaica could establish an effective and sustainable NHRI.⁶⁴

4.1.7 Reliance by Judiciary

Jamaica’s judiciary rarely uses UN treaties as a source of law in judicial decision making, even when adjudicating constitutional challenges dealing with human rights. Based on a systematic review of case law, judges only make brief references to UN human rights treaties in a small number of cases.⁶⁵ ccpr appears to be the most frequently-cited UN treaty. No references have been found to cerd, crpd, cedaw or cmw. Jamaican judges rarely observe the principle of relying on treaty obligations where there is ambiguity in the domestic law or as persuasive precedent.

4.1.8 Impact on and through Independent State Institutions

The UN treaty system generally does not have a pronounced impact on or through independent state institutions. UN treaties do not influence the work of most parliamentary commissions with human rights mandates. The Public Defender and the Commissioner of indecom acknowledged during interviews that they generally do not cite UN treaties or receive copies of cos.⁶⁶ In the case of indecom, the inter-American system has had a more significant impact on its work due to the Inter-American Commission’s individual petition and case system, which has produced jurisprudence that shaped the normative foundation of indecom’s work. On the other hand, there is evidence that UN treaties have played an influential role in the work of oca. crc and its General Comments, for example, inform the formulation of the oca’s recommendations to Parliament⁶⁷ and normative standards, such as the Child Justice Guidelines, which were developed by the oca with the support of unicef Jamaica.⁶⁸

4.1.9 Impact on and through Non-state Actors

The UN treaty system has a noticeable impact on the work of non-state actors, mostly human rights experts and academics with an interest in this area. ngo representatives rely on these treaties to strengthen their advocacy and to shape the normative aspects of their work.⁶⁹ These ngos focus mostly on crc, cedaw and ccpr. Some ngos use cos and General Comments to develop training materials and shape institutional knowledge.⁷⁰ The Women’s Resource and Outreach Centre, for example, has organised workshops and published a booklet that uses cedaw and General Comments as tools for educating women’s organisations.⁷¹ Academics also cover UN treaties in their academic research and teaching and have sought membership on UN treaty bodies. They have also been involved in training state officials and non-state actors on the treaties.⁷² On the other hand, the UN treaty system has not had a significant impact on members of the Jamaican legal profession who generally do not use UN treaties or mechanisms in their legal work or continuing legal education.⁷³

Jamaica’s withdrawal from or lack of participation in UN individual complaints mechanisms has significantly diminished the impact of UN treaties on the work of non-state actors around redress. The Inter-American human rights system has had a more pronounced impact on their work, due, in part, to the existence of quasi-adjudicatory mechanisms that offer important avenues for redress.

4.1.10 Impact of State Reporting

Jamaica does not generally implement cos. Jamaica, for example, has not fully implemented any of the HRCttee’s 2016 recommendations selected for follow up, such as the recommendations to amend abortion legislation; to amend the law in order to remove the possibility of incarcerating a child on the basis of him or her being ‘beyond parental control’;⁷⁴ to amend laws to prohibit discrimination on the basis of sex, sexual orientation and gender identity; and to decriminalise same-sex conduct. Parliamentary debates suggest that the existence of savings clauses that limit judicial review of criminal laws dealing with same-sex sex and abortion negatively impact the legislature’s responsiveness to treaty body recommendations.⁷⁵ The low impact of cos on Jamaica’s domestic legal system is acknowledged by relevant actors during interviews, some of whom suggest that any mirroring between domestic reforms and cos is coincidental.⁷⁶ cos have the most impact on ngos, who strategically use UN treaty body recommendations in their advocacy.⁷⁷

4.1.11 Impact of Individual Communications

Individual communications are no longer available. In 1997 Jamaica withdrew from op1-ccpr. In the most recent cycle of reporting under ccpr, the government indicated that it was ‘unable to re-accede’ to op1-ccpr, noting that alternative means of redress exist at the domestic and inter-American level.⁷⁸ Since Jamaica’s withdrawal from op1-ccpr, the HRCttee issued 16 decisions in respect of individual complaints that were still pending at the time of Jamaica’s withdrawal from op1-ccpr. Most of these decisions deal with the death penalty and conditions of detention. The resulting jurisprudence has shaped the jcpc’s jurisprudence on the mandatory death penalty. Jamaica has signed, but not ratified, op-crpd.

5.1.1 Incorporation and Reliance by Legislature and Executive

cerd has not been fully incorporated into domestic law and it is not a driver of legal reform. The Constitution guarantees the right to equality before the law⁷⁹ and the right to freedom from discrimination on the ground of race, which preceded Jamaica’s ratification of cerd in 1971.⁸⁰ Jamaica, however, still has not adopted comprehensive anti-discrimination legislation containing a clear definition of racial discrimination as required under cerd.⁸¹ Moreover, Jamaica has not adopted specific legislation to give effect to article 4 of cerd prohibiting racist propaganda and racist organisations.

5.1.2 Reliance by Judiciary

There is no significant body of litigation on discrimination generally, including based on race, colour, descent, or national or ethnic origin.⁸² A systematic study of domestic case law shows that courts do not refer to or rely on cerd.

5.1.3 Impact on and through Non-state Actors

ngos and human rights advocates do not use cerd in their campaigns or sensitisation initiatives, although it has been discussed and considered in recent training with some ngos.⁸³ Furthermore, ngos do not engage with the cerd Cttee around its review of Jamaica’s implementation of cerd. According to Jamaica’s most recent periodic report to the cerd Cttee, ngos did not respond to the government’s calls for public consultation.⁸⁴ cos on Jamaica’s compliance with cerd are discussed in some analyses of racial discrimination⁸⁵ and race and language rights in Jamaica.⁸⁶ State reports on Jamaica’s compliance with cerd are referred to in some non-legal publications simply for data on the racial distribution of Jamaica.⁸⁷

5.1.4 Impact of State Reporting

The cerd Cttee has issued cos on seven occasions in the context of its review of Jamaica’s reports. Jamaica has rejected the cerd Cttee’s recommendations to enact legislation that prohibits racial discrimination on the basis that there are sufficient measures in place under the Constitution.⁸⁸ Similarly, the government has rejected the cerd Cttee’s recommendation to withdraw its reservations to article 4(a), which prohibits ‘dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination’, on the basis that it could infringe the constitutional guarantee of freedom of expression.⁸⁹

5.1.5 Brief Conclusion

cerd has not had an impact on Jamaica’s legal system, primarily due to a general lack of awareness of cerd among the population and the attitude of state officials who generally consider cerd to be irrelevant to Jamaica’s context.

5.2.1 Incorporation and Reliance by Legislature and Executive

There is no single piece of legislation incorporating ccpr. Some provisions of ccpr are contained in the Constitution, as amended by the Charter of Fundamental Rights and Freedoms, and various pieces of legislation. The new Charter broadened the protection of civil and political rights, for example, by recognising the right to vote in free and fair elections and the right of every citizen to be granted a passport.⁹⁰ The Charter more clearly guaranteed and broadened the right to privacy, which includes ‘respect for and protection of private and family life’.⁹¹ The Charter also introduced additional prohibited grounds of discrimination, including ‘social class’, but failed to add other key grounds. Progress is undermined by the inclusion of ‘savings clauses’ that are contrary to ccpr in that they shield from constitutional challenge certain laws and punishments, even if they violate the Constitution and UN treaties.⁹²

The HRCttee has taken note of legislative reforms in Jamaica that address some of their consistent concerns, such as the enactment of the Sexual Offences Act 2009 and the Law Reform (Flogging and Whipping) (Abolition) Act 2013. A notable achievement is the creation of parliamentary commissions, such as the opd and indecom, with specific mandates to investigate and remedy human rights abuses. However, Jamaica retains legislation that violates key human rights norms recognised in ccpr, such as the continued criminalisation of consensual same-sex conduct, despite the multiple recommendations of the HRCttee to remove these provisions.⁹³ Parliament is reluctant to review the law because of the ‘sensitive nature’ of these provisions and the special protection from challenge they enjoy under the savings clause in the Charter.⁹⁴

5.2.2 Reliance by Judiciary

A systematic review of electronic case law databases shows that Jamaican courts referred to ccpr only in a handful of cases and, even then, the references were generally brief.⁹⁵ In 1994 in a Jamaican case, the jcpc rejected the HRCttee’s decision on the scope of the right to legal representation,⁹⁶ stating that ‘[a]lthough Jamaica is a signatory to the Covenant, it has not been incorporated into Jamaican law’.⁹⁷ In Jamaica’s common law system, this ruling was binding precedent on the Court of Appeal, which followed it in 2015.⁹⁸ Regrettably, the Court of Appeal did not acknowledge that the jcpc’s later cases had shown a greater willingness to rely on UN treaties, especially where the Constitution is open to multiple meanings. In 2000, in Lewis v Attorney-General, the jcpc enforced the treaty obligation of access to the individual complaints system through the constitutional right to the protection of the law for persons on death row.⁹⁹

In dealing with cases from Jamaica Jamaican courts and the jcpc have shown more willingness to rely on jurisprudence related to the European Convention on Human Rights (echr) as a guide to interpretation. In Grant v R, for example, the jcpc stated that ‘the Board readily accepts the relevance of the Strasbourg jurisprudence’ because the echr applied to Jamaica before it became independent (because it was binding on the United Kingdom) and because ‘the close textual affinity’ between the relevant articles in the echr and the Constitution ‘makes it appropriate to pay heed to authority on the one when considering the meaning and effect of the other’.¹⁰⁰ Ironically and by comparison, Jamaica’s binding obligations under ccpr received scant attention.

5.2.3 Impact on and through Independent State Institutions

The researchers were unable to find evidence of the impact of ccpr on commissions of parliament with human rights mandates. The OPD and INDECOM do not rely significantly on UN treaties, including CCPR, in their work.¹⁰¹

5.2.4 Impact on and through Non-state Actors

The impact of ccpr on the work of ngos is severely diminished by Jamaica’s withdrawal from the OP1-CCPR individual complaints mechanism, which between ratification and withdrawal received more than 150 communications from Jamaica.¹⁰² For this reason, the Inter-American system of human rights, in particular the work of the Inter-American Commission, is more impactful as an engine of change.¹⁰³

CCPR is the most widely-considered treaty in academic discussions on human rights in Jamaica. Academic and policy publications dealing with Jamaica’s human rights situation that refer to multiple treaties almost always reference CCPR.¹⁰⁴ The jurisprudence developed by the HRCttee in the many death penalty cases from Jamaica and the rest of the Caribbean has given rise to significant academic discussions.¹⁰⁵ Jamaica’s withdrawal from OP1-CCPR garnered significant international attention and academic interest.¹⁰⁶

5.2.5 Impact of State Reporting

The HRCttee has issued cos on four occasions in the context of reviewing Jamaica’s periodic reports. As noted by the Special Rapporteur for Follow-Up in 2013, Jamaica generally does not implement the HRCttee’s recommendations.¹⁰⁷ In some cases the state has accepted the HRCttee’s recommendation, but has been slow to implement the required reforms. In other cases, the state has rejected or has been reluctant to adopt recommendations. Jamaica, for example, has rejected calls to amend its laws to prohibit discrimination on the basis of sex, sexual orientation and gender identity and to decriminalise same-sex conduct. In 2017 the Minister of Justice made it clear that Parliament would not take any decision on the decriminalisation of same-sex conduct without allowing Jamaicans to vote in a referendum.¹⁰⁸ In addition, the HRCttee recommended that states of emergency be brought in line with CCPR, noting in particular the 2010 state of emergency.¹⁰⁹ Since then, especially during 2018 and 2019, multiple states of emergency over large sections of the island, and for extensive periods of time, have been institutionalised.

5.2.6 Impact of Individual Communications

A total of 152 communications were submitted against Jamaica under OP1-CCPR. Most of these complaints relate to death penalty cases and conditions of detention. In 95 of these, the HRCttee found Jamaica in violation of CCPR. The HRCttee issued 82 of these before and 13 of these views after 30 June 1999, the cut-off date for the previous study.¹¹⁰ Jamaica denounced OP1-CCPR on 23 October 1997. The Government’s stated reason for denunciation is that the 5-year timeline between sentencing and execution stipulated by the jcpc in Pratt v Attorney General ‘was not sufficient to allow persons to exhaust all their domestic appeals and their petitions to international human rights bodies.’¹¹¹ Following Jamaica’s withdrawal, the HRCttee concluded a significant number of complaints that were still pending at the time of the denunciation. The HRCttee’s jurisprudence has shaped the jcpc’s jurisprudence on the mandatory death penalty, which was declared unconstitutional in Jamaica in 2004.¹¹²

5.2.7 Brief Conclusion

ccpr has had limited impact on Jamaica’s legal system, although there are signs of symbolic impact on human rights defenders who find empowerment in its normative framework. While some of the ccpr provisions have been domesticated, significant gaps remain, including with respect to cross-cutting principles such as non-discrimination. Furthermore, Jamaica has enacted and retains legislation that violates key ccpr norms, despite the consistent recommendations by the HRCttee to amend these laws. Jamaica’s ability to respond to its UN treaty obligations is greatly diminished by savings clauses that not only limit judicial review of certain laws, but also make legislators reluctant to amend ‘sensitive’ laws that are inconsistent with ccpr. Jamaica’s withdrawal from the ccpr’s independent complaint mechanism also significantly limits ccpr’s potential impact and has undermined the importance that ccpr had assumed and would likely have continued to hold.

5.3.1 Incorporation and Reliance by Legislature and Executive

cescr has not been fully incorporated into the domestic legal system, although some progress has been made through processes of domestic legal reform. The 2011 Charter of Fundamental Rights and Freedoms broadened the protection of economic, social and cultural rights in Jamaica, for example, by recognising the right to enjoy a healthy and productive environment free from the threat of injury or damage from environmental abuse and degradation of the ecological heritage.¹¹³

At the policy level, Jamaica’s development plan, Vision 2030, is based on human rights and environmentally sustainable principles. The plan states that the economic and social rights set out in the Universal Declaration of Human Rights and in cescr ‘have served as broad indicators for social and economic policy’.¹¹⁴ In 2003 Jamaica adopted a National Cultural Policy aimed at promoting and protecting cultural diversity and expression, including that of indigenous communities such as Maroons and Rastafari.

However, major implementation gaps exist. The Charter does not include the right to enjoyment of the highest attainable standard of health. Additionally, the Charter fails to prohibit discrimination on grounds such as health status and disability. Moreover, there still is no comprehensive legislation clearly prohibiting gender discrimination. Jamaica is yet to adopt its Occupational Safety and Health Bill¹¹⁵ and the work around cultural diversity at the policy level has not translated into legislation that specifically addresses the protection of traditional knowledge of the Maroons and Rastafari. The long-debated Sexual Harassment Act 2021 came into force in 2023.

Furthermore, some of the laws that actually exist do not adequately reflect human rights norms. The Employment (Equal Pay for Men and Women) Act 1975 only guarantees equal pay for ‘similar’ or ‘substantively similar’ work, rather than ‘equal remuneration for work of equal value’.¹¹⁶

5.3.2 Reliance by Judiciary

A systematic review of electronic case law databases¹¹⁷ shows that Jamaican courts only referred to cescr on one occasion, namely, in the case of West v Miller before Jamaica’s Supreme Court.¹¹⁸ The Supreme Court made a rare acknowledgment of Jamaica’s obligations under cescr, stating that, by ratifying cescr, state parties commit to act in conformity with their legal obligations under that treaty and must provide judicial remedies for alleged violations of economic, social and cultural rights. In a particularly rare occurrence, the Court relied on the cescr Cttee’s General Comment 4 as an interpretative tool.

5.3.3 Impact on and through Independent State Institutions

The researchers were unable to find evidence of the impact of cescr on parliamentary commissions with human rights mandates. The opd and indecom do not use cescr in their work, even in cases where their work centres on the rights recognised in the treaty. For example, one of the priority issues arising out of the work of the opd relates to the environment and the land rights of Maroon and Rastafari communities. However, the opd has never used cescr in submissions to Parliament or in other public reports to frame the nature of state obligations.¹¹⁹ Moreover, the opd has never presented reports to the cescr Committee in the context of the Committee’s review of Jamaica’s periodic state reports.

5.3.4 Impact on and through Non-state Actors

There is limited evidence of cescr’s impact on the work of non-state actors. Interviews with ngos and human rights activists show that they rarely, if at all, rely on cescr in human rights litigation or in the context of campaigns. There is general acknowledgement that cescr is not a central focus, although economic and social issues are integral to their human rights work.¹²⁰

cescr is considered in some publications that look at multiple treaties in examining the human rights situation in Jamaica.¹²¹ cescr has received attention in academic publications looking specifically at economic and social development in Jamaica,¹²² as well as a publication considering an emerging human rights issue in Jamaica about protecting the tradition of Rastafari and Maroons.¹²³

cescr is covered in the curricula of legal education institutions in Jamaica in courses on Public International Law and International Human Rights Law.¹²⁴ There has been training for government officials and civil society focused on cescr.¹²⁵ In 2018 the Faculty of Law, University of the West Indies, Mona, held a human rights symposium for high-school students focused on the right to education that highlighted the Committee’s General Comment 13.¹²⁶

5.3.5 Impact of State Reporting

The cescr Cttee has issued cos on three occasions in the context of its consideration of Jamaica’s periodic reports. Jamaica generally does not implement cos. In the most recent observations, published in 2013, the Committee reiterated many of the cross-cutting issues highlighted by other treaty bodies, such as the absence of a national human rights institution and issues around discrimination against women and sexual minorities.¹²⁷

5.3.6 Brief Conclusion

cescr has had a discernible, though limited, impact on the domestic legal order. Some of cescr’s provisions are enshrined in the Constitution and other pieces of legislation. While cescr is not specifically mentioned in these laws, Jamaica’s development plan explicitly states that the rights set out in cescr are broad indicators of economic and social policy. One of the factors limiting the transformative potential of cescr is the absence of ngo advocacy around its provisions. There is some evidence of impact in academic publications, but this is consistent with the general observation that awareness of UN treaties is limited to human rights experts and academics, and officials charged with the implementation of UN treaties.

5.4.1 Incorporation and Reliance by Legislature and Executive

cedaw has had an important impact on Jamaica’s legal system, although the legal and policy framework remains deficient. The Charter of Fundamental Rights and Freedoms prohibits discrimination on the ground of ‘being male or female’, instead of ‘sex’ or ‘gender’.¹²⁸ Jamaica has adopted legislative measures aimed at eliminating discrimination against women, including the Sexual Offences Act 2009; the Domestic Violence Act 1995; the Property Rights of Spouses Act 2004; the Maintenance Act 2005; and the Sexual Harassment Act 2021. Additionally, a Joint Select Committee of Parliament recently concluded its review of the Sexual Offences Act and related laws, calling for increased protection for women, children and the elderly.

cedaw is not explicitly mentioned in the relevant laws, but there is ample evidence that cedaw played a role in legal reform. The parliamentary debates surrounding the adoption of the Domestic Violence Act show acute awareness of cedaw, with the Minister of Justice noting that ‘Jamaica is a party to this convention, and we are therefore committed to taking this sort of action’.¹²⁹ Similarly, debates around the process of constitutional reform suggest that cedaw has had an impact on the new Charter of Fundamental Rights and Freedoms, which somewhat expands the protection of women’s rights to be free from discrimination. In discussing this reform, one senator commented that ‘[w]e have finally taken the step to comply with Article Two of [cedaw]. Article Two calls on all parties to embody the principle of equality of men and women in their national constitutions, or other appropriate legislation.’¹³⁰

At the policy level, Vision 2030, Jamaica’s national development plan, has a ‘Gender Sector Plan’ that makes reference to cedaw and expresses a commitment to ‘ensure enactment of new laws and continuing reform of existing laws in keeping with international conventions that address gender equality’.¹³¹ The National Policy for Gender Equality 2011 similarly expresses a commitment to ‘updating existing legislation affecting women to ensure consistency with cedaw’.¹³² The National Strategic Action Plan to Eliminate Gender-Based Violence in Jamaica (2017–2027) is also grounded in cedaw.

Notwithstanding this impact, important gaps remain. The Constitution still has no definition of discrimination against women. Furthermore, there still is no comprehensive legislation clearly prohibiting gender discrimination in employment. Importantly, Jamaica has not amended its abortion legislation to help women address unplanned pregnancies. In 2018 the Joint Select Committee reviewing the proposal for reform of the Sexual Offences and related acts rejected a proposal to allow for abortion in certain specified cases, noting that the existing law concerning abortion was protected under a savings clause that shields it from constitutional challenge.¹³³

5.4.2 Reliance by Judiciary

A systematic search of electronic case law databases shows that cedaw has not been referred to in any decisions by Jamaican courts.¹³⁴ This is remarkable, given that issues related to gender-based violence and discrimination are key human rights challenges in Jamaica.¹³⁵ Domestic violence in Jamaica is litigated before parish courts and family courts. No written decisions are issued, except that criminal cases get written decisions on appeal. Therefore, in the area of domestic violence there are many cases, but not many opportunities for written decisions and, thus, public records.

5.4.3 Impact on and through Independent State Institutions

The researchers were unable to find evidence of the impact of cedaw on parliamentary commissions with human rights mandates. The opd and indecom do not use UN treaties in their work.

5.4.4 Impact on and through Non-state Actors

cedaw has had a remarkable impact on the work of non-state actors in Jamaica. ngos focusing on women’s rights centre their advocacy and awareness-raising campaigns around cedaw and the jurisprudence of the cedaw Cttee. One of the leading women’s rights organisations has published a cedaw booklet, which uses Jamaican language to explain cedaw’s normative framework. The booklet makes extensive reference to the cedaw Cttee’s General Comments and also reproduces the Committee’s cos.¹³⁶

cedaw is cited in a range of publications addressing women’s rights in Jamaica.¹³⁷ The most extensive analysis of cedaw is found in a book devoted to the implementation of article 5 of cedaw in Jamaica.¹³⁸

5.4.5 Impact of State Reporting

The cedaw Cttee has issued cos on four occasions in the context of reviewing Jamaica’s periodic reports.

Relevant domestic actors have expressed a commitment to implementing the cedaw Cttee’s recommendations.¹³⁹ In the most recent cos, published in 2012, the Committee focused its attention on a variety of issues, including the failure to criminalise all instances of marital rape and the criminalisation of abortion. However, the most recent assessment of the Rapporteur for Follow-up on cos has found that recommendations selected for follow-up had either not been implemented, been partially implemented, or could not be assessed due to insufficient information.¹⁴⁰

In 2018 the Joint Select Committee reviewing the proposal for reform of the Sexual Offences and related acts addressed some of the issues raised by the cedaw Cttee in its cos, but made no reference to the Committee’s recommendations and, in some cases, articulated positions that are inconsistent with them. The Joint Select Committee, for example, rejected a proposal to allow for abortion in certain specified cases, noting that the existing law concerning abortion was protected under a savings clause that shields it from constitutional challenge.¹⁴¹ On the other hand, the Joint Select Committee in 2018 recommended that all marital rape be criminalised, but makes no reference to the cedaw Cttee’s cos recommending the same in 2012.¹⁴²

A high-level delegation consistently appears before the cedaw Cttee. However, the Committee has noted that the state report does not provide sufficient data. Moreover, the reports are generally submitted with delays.

5.4.6 Brief Conclusion

cedaw has had a discernible impact on the domestic legal order, not only through the domestication of treaty norms, but also through the work of women’s rights groups who centre their advocacy around cedaw. Jamaica has adopted laws aimed at eliminating discrimination against women. While cedaw is not explicitly mentioned in these laws, parliamentary debates and policies confirm the awareness of lead government ministers and key policy makers of Jamaica’s obligation to update existing legislation to ensure consistency with cedaw. We also see evidence of Jamaica’s commitment to cedaw in the high-level delegation that appears before the cedaw Cttee.

However, significant gaps remain in existing laws, which still do not adequately protect women against discrimination. Importantly, Jamaica retains laws that are inconsistent with cedaw, such as the law criminalising abortion. Notwithstanding the public statements from officials expressing a commitment to implementing the Committee’s recommendations, the reporting process does not appear to be a significant driver of reform. It is telling that the cedaw Cttee’s 2012 cos were not mentioned by the 2018 Joint Select Committee reviewing the proposal for reform of the Sexual Offences and related Acts that considered the decriminalisation of abortion or a second parliamentary committee that addressed abortion and reported in early 2020.

cedaw’s impact is also limited by the absence of case law that advances the interpretation of cedaw’s provisions and Jamaica’s failure to participate in cedaw’s independent complaint mechanism.

5.5.1 Incorporation and Reliance by Legislature and Executive

Some provisions of crc are reflected in the Constitution and other laws. The 2011 Charter of Fundamental Rights and Freedoms broadened the protection of children’s rights in the Constitution.¹⁴³ For example, the Constitution now recognises the rights of children to measures of protection and publicly funded pre-primary and primary school level education.¹⁴⁴

crc was instrumental in the enactment of the Child Care and Protection Act in 2004. While crc is not mentioned in this Act, in the parliamentary debates preceding the Act one parliamentarian noted that it was ‘a giant step in fulfilling [Jamaica’s] obligations under the Child Rights Convention’.¹⁴⁵ Jamaica has enacted a variety of other laws in the past two decades that advance children’s rights, including the Child Pornography Act, 2009; the Trafficking in Persons Act, 2007; and the Maintenance Act, 2005.

The United Nations Children’s Fund (unicef) representative to Jamaica has also noted that crc has led to the establishment of key institutions, such as the Early Childhood Commission in 2003; the oca in 2004; the Child Development Agency in 2004; and the Office of the Children’s Registry in 2007.¹⁴⁶ crc has also had an important impact on the development of policies and best practices, some of which make explicit reference to crc and the crc Cttee.¹⁴⁷

Despite this progress, important gaps remain, particularly in the area of juvenile justice. The Child Care and Protection Act, for example, empowers judges with the authority to imprison a child for life, in violation of article 37 of crc. Importantly, section 24 of the Child Care and Protection Act permits the incarceration of children considered to be beyond parental control, thus making such conduct a poorly-defined status offence since it is not conduct that would be considered a crime if committed by adults.

Furthermore, while corporal punishment in the juvenile justice system is unlawful, there has been no legislative reform around abolishing corporal punishment in educational institutions and family settings. This much-needed reform remains at the policy level.

5.5.2 Reliance by Judiciary

A systematic search of case law produced one case before the Supreme Court that made very brief reference to crc.¹⁴⁸ In Stockhausen v Willis,¹⁴⁹ the Supreme Court referred to article 9 of crc, in a child custody case, but the analysis turned on jurisprudence from other common law jurisdictions, rather than jurisprudence from the crc Cttee.

5.5.3 Impact on and through Independent State Institutions

The oca extensively relies on crc in its normative documents. The Child Justice Guidelines, for example, explicitly state that crc ‘informed the formulation of these Guidelines’ and they reproduce specific articles of crc.¹⁵⁰ The oca has also developed public service announcements¹⁵¹ that ‘highlighted different aspects of the [crc]’. The opd and indecom do not use crc in their work.¹⁵²

5.5.4 Impact on and through Non-state Actors

crc is one of the treaties with the most significant impact on the work of non-state actors due, in part, to the presence of unicef in Jamaica and the impact of that office in galvanising advocacy around children’s rights. crc is referred to in a range of academic publications addressing the rights of children in Jamaica.¹⁵³

5.5.5 Impact of State Reporting

The crc Cttee has issued cos on three occasions in the context of reviewing Jamaica’s periodic reports. Jamaica is yet to implement the crc Cttee’s recommendations, particularly in the area of the administration of juvenile justice. In the most recent cos, published in 2015, the Committee expressed concern about Jamaica’s failure to implement many of the Committee’s recommendations from its 2003 cos. The crc Cttee welcomed information from the state that children deemed ‘uncontrollable’ would no longer be criminalised. However, as at the end of 2019 no reforms had been implemented.¹⁵⁴ In 2018 the Joint Select Committee reviewing the proposal for reform of a number of laws, including the Child Care and Protection Act, addressed the issue of children deemed ‘uncontrollable’, but did not refer to the crc Cttee’s recommendations on this issue.¹⁵⁵

5.5.6 Brief Conclusion

crc is the treaty that has had the most discernible impact on the domestic legal order, not only through the incorporation of treaty norms, but also through the work of ngos and state functionaries who rely heavily on the crc’s normative framework. In the past two decades Jamaica has adopted various laws aimed at broadening the protection of children’s rights, the most notable being the Child Care and Protection Act 2004. While crc is not explicitly mentioned in these laws, parliamentary debates and policies confirm the influencing role of crc in driving reform. We also see evidence of Jamaica’s commitment to crc in the establishment and operation of oca, an independent institution that explicitly grounds its work in crc’s normative framework.

However, the impact of crc is diminished by the state’s repressive approach to juvenile justice and the existence of legislation that directly contradicts crc norms, such as section 24 of the Child Care and Protection Act, which permits the incarceration of children considered beyond parental control. Even where the government expresses a commitment to treaty bodies to bring legislation in line with crc, progress is slow. Another factor that limits the impact of crc is the near absence of case law that advances interpretation of crc’s provisions. Jamaica’s failure to participate in crc’s independent complaint mechanism also limits crc’s potential impact.

5.6.1 Incorporation and Reliance by Legislature and Executive

cmw has not been incorporated into domestic law. Several laws on migration are obsolete and have not been harmonised with cmw. The Deportation (Commonwealth Citizens) Act 1942, the Aliens Act 1946 and the Immigration Restriction (Commonwealth Citizens) Act 1945 criminalise irregular immigration. There are discriminatory provisions in the Immigration Restriction (Commonwealth Citizens) Act, which lists prohibited immigrants, and in the Aliens Act, which prescribes the eligibility criteria for entry and prohibits entry to persons with disabilities, among others (although Jamaica asserts that such laws are not enforced).¹⁵⁶ Thus, alongside cerd, cmw is one of the least impactful treaties, although there is evidence of a growing impact. Jamaica has adopted the Trafficking in Persons (Prevention, Suppression and Punishment) Act of 2007 (amended in 2013) which contributes to the implementation of cmw. At the institutional level, the appointment of the National Rapporteur on Trafficking in Persons in 2015 is also a notable achievement. The 2017 National Policy on International Migration and Development is replete with references to cmw, and articulates Jamaica’s desire to fulfil its obligations under this convention.

5.6.2 Reliance by Judiciary

A systematic search of electronic case law databases shows that cmw has not been referred to by Jamaican courts.¹⁵⁷

5.6.3 Impact on and through Non-State Actors

The researchers were unable to find evidence of the impact of cmw on commissions of parliament with human rights mandates. The opd and indecom do not use cmw in their work.

5.6.4 Impact on and through Non-State Actors

The researchers were unable to find evidence of the impact of cmw on and through non-state actors.

5.6.5 Impact of State Reporting

State reporting under cmw has had no impact on Jamaica’s legal system. Jamaica has never submitted a state report to the cmw Cttee, which issued cos on one occasion in 2017 in the absence of a state report.¹⁵⁸ The Committee expressed concern that the delegation, composed of the representatives of the Permanent Mission of Jamaica to the UN Office and other international organisations in Geneva, was unable to fully provide detailed information. The Committee also expressed specific concerns on a variety of issues, including the absence of implementing legislation; discriminatory provisions in the Immigration Restriction (Commonwealth Citizens) Act; the fact that the detention of irregular migrants under the Aliens Act is not a measure of last resort; and the provisions of the Immigration Restriction (Commonwealth Citizens) Act, which provide that children under 16 who are dependents of a prohibited immigrant are considered prohibited immigrants.

5.6.6 Brief Conclusion

cmw has had little impact on the domestic legal order. cmw has not been incorporated into domestic law and has not been the subject of civil society advocacy. However, policy statements could be evidence of an emerging trend towards an increasing impact of cmw in the future. The 2017 National Policy on International Migration, for example, articulates Jamaica’s desire to comply with cmw.

5.7.1 Incorporation and Reliance by Legislature and Executive

crpd has not been fully incorporated into domestic law. The Constitution does not specifically mention persons with disabilities. However, Jamaica values and highlights its leadership on disability rights at the international level.¹⁵⁹ There is an ongoing process of legislative and institutional reform that culminated in the passage of the Disabilities Act in 2014. The Act builds on a National Policy for Persons with Disabilities, approved by Parliament in 2000. crpd is not explicitly mentioned in the Disabilities Act. Nevertheless, crpd obligations were present in the minds of some parliamentarians in the debates leading to the new law. One Minister noted that Jamaica was one of the first countries to ratify crpd and that ‘we are in effect reinforcing in our domestic legislation the obligations that we have made at the international level’.¹⁶⁰ The Act, which is yet to enter into force, envisions the creation of a disabilities rights tribunal to settle claims of discrimination. It also established the Jamaica Council for Persons with Disabilities, a department that currently exists within the Ministry of Labour and Social Security, which promotes the protection of the rights of persons with disabilities.

5.7.2 Reliance by Judiciary

A systematic search of electronic case law databases shows that crpd has not been referred to by Jamaican courts.¹⁶¹

5.7.3 Impact on and through Independent State Institutions

We were unable to find evidence of the impact of crpd on commissions of Parliament with human rights mandates.

5.7.4 Impact on and through Non-state Actors

We were unable to find extensive evidence of crpd’s impact on non-state actors. crpd was featured heavily in a special workshop on ‘ict Empowering Persons with Disabilities’, which focused on the theme ‘ict Accessibility in the Convention on the Rights of Persons with Disabilities’.¹⁶²

5.7.5 Impact of State Reporting

The state reporting process has had no impact on the domestic legal order. However, in 2018 Jamaica submitted its initial report to the crpd Cttee, which is pending review.¹⁶³ This could point to the future impact of the reporting process.

5.7.6 Brief Conclusion

crpd has had an evident impact on the domestic legal order. The enactment of the Disabilities Act in 2014 is a notable milestone in advancing crpd norms in Jamaica. While crpd is not specifically mentioned in this Act, parliamentary debates confirm that some legislators had a desire to fulfil Jamaica’s obligations under crpd. Nonetheless, the impact of crpd is diminished by Jamaica’s slow progress in bringing the 2014 Act into force and setting up a disability rights tribunal, and its failure to participate in the individual complaints procedure under op-crpd. Another factor limiting the impact of crpd is the absence of case law that makes reference to crpd. Jamaica’s recent submission of its initial state report to the crpd Cttee could however strengthen engagement with the UN reporting process in the future.