June 20, 2016

Just last week, Attorney General Mrs Marlene Malahoo Forte, QC, was embroiled in controversy after she tweeted that it is "disrespectful of Jamaica's law to have the rainbow flag flown here". The rainbow flag is widely known to be associated with the LGBT community, which lost 49 of its members in what has been described as the worst mass shooting in the USA.

Following the shooting, President Barack Obama ordered that flags at the White House and on all United States government buildings be flown at half-staff. As a result, the US Embassy in Jamaica complied by flying the US flag along with the rainbow flag at half-mast.

The learned attorney general did not make reference to the Jamaican law, which she said was being disrespected despite being asked by the US Embassy to provide the legal reasoning for the tweet. I suspect that there has been no response in this regard, for the simple reason that flying the rainbow flag anywhere in Jamaica does not constitute a breach of Jamaican law, even though many may view it as being offensive.


The tweet by the attorney general raises two fundamental issues: the first one is whether the US Embassy is the sovereign territory of Jamaica, the receiving State, or the sovereign territory of the USA, the sending State; and the second is whether there ought to be a protocol governing the use of social media by government ministers and other public officials.

With respect to the first issue, the answer is to be found in the Vienna Convention on Diplomatic Relations, 1961 (the Convention). Article 22 specifically provides that 'the premises of the mission shall be inviolable'. As such, the agents of the receiving State may not enter them, except with the consent of the head of the mission. The receiving State 'is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity'. Also, the premises of the mission, their furnishings and other property shall be "immune from search, requisition, attachment or execution".

Article 21 of the Convention provides 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..."

The Convention does not state that the property belongs to the sending State. However, it is on account of the foregoing provisions that the premises on which the US Embassy is located are treated, for all intents and purposes, as being a part of the US territory. In reality, though, it is still Jamaica's territory with concessions given to the USA by virtue of the rules, norms and custom of international relations.

It is for that reason that although one may argue that the rainbow flag is not the American flag, the US Embassy is still free to use the premises it occupies as it sees fit, which would involve the flying of any flag it chooses. That is its right and privilege under international law.


With respect to the second issue, it is clear that despite the proliferation of social media, successive administrations have allowed high-ranking government officials to use social media sites without control or adequate directions. The attorney general tried to retract her comments by suggesting that she was misunderstood but, like a spent arrow, her comments could not be taken back; the damage (as some have viewed it) had already been done; that is one of the dangers of social media.

So, the issue is much deeper than a tweet or the flying of the rainbow flag. A protocol on the use of tweets, and social media in general, by public officials may have prevented this outcry. It is therefore high time for Government to develop a protocol regarding the use of social media by its officials. It could go a far way in preventing embarrassment to the Government and people of Jamaica in the long run.

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