AG: Treaty does not trump sovereignty, but we respect our obligations

The Bahamas government has full sovereignty in all matters within its borders, but it has determined to honor a treaty whereby it agreed not to discriminate against airlines, Attorney General Carl Bethel said.

Bethel was referring to the Convention on International Civil Aviation, drafted in 1944, which is more commonly known as the Chicago Convention.

That agreement sets out the principles for international air travel and led to the establishment of the International Civil Aviation Organization (ICAO).

The attorney general cited the treaty in explaining why the July 19 announcement by Prime Minister Dr. Hubert Minnis that international commercial flights and commercial vessels were being banned, except for commercial flights from Canada, the United Kingdom and the European Union, was reversed.

The government had not publicly spoken to the reversal until after a Nassau Guardian editorial on Friday pointed out that the newly tabled emergency order reflected something materially different from what Minnis had stated.

Speaking to the issue, Bethel told The Nassau Guardian, “It was not the intention to insult anyone’s intelligence. The government took a strong stance to protect the Bahamian people.

“As we prepared the latest order, I and lawyers in the international unit of my office looked at the convention and concluded that Article 11 required non discrimination against civil aircraft in any circumstances.

“We therefore devised what in our view was a way to achieve such protection of Bahamians in a way which did not involve challenge to our treaty commitments and protects our sovereignty.”

Article 11 states: “Subject to the provisions of this convention, the laws and regulations of a contracting state relating to the admission to or departure from its territory of aircraft engaged in international air navigation, or to the operation and navigation of such aircraft while within its territory, shall be applied to the aircraft of all contracting states without distinction as to nationality, and shall be complied with by such aircraft upon entering or departing from or while within the territory of that state.”

The Guardian pointed to Article 1 of the convention, which states, “The contracting states recognize that every state has complete and exclusive sovereignty over the airspace above its territory.”

In addition to the article that deals with sovereignty, The Guardian, in its recent discussion with the attorney general, also pointed to Article 89 of the treaty, which states, “In case of war, the provisions of this convention shall not affect the freedom of action of any of the contracting states affected, whether as belligerents or as neutrals. The same principles shall apply in the case of any contracting state which declares a state of national emergency and notifies the fact to the council.”

The attorney general conceded: “We can in our sovereign right abrogate any treaty in the national interests.”

He, however, added, “But if you can achieve a desired outcome by a means other than by violating a treaty that you have entered, it is now better or perhaps more prudential to use means that do not violate a treaty obligation.”

His reference in this respect was to the stringent requirements the competent authority (the prime minister) has put in place for arriving passengers.

Under the latest order, a visitor arriving “on an international commercial air travel” shall be permitted to enter The Bahamas and must at his own expense submit to mandatory quarantine in a government facility for a period of 14 days upon arrival in The Bahamas and must undergo an RT-PCR COVID-19 molecular diagnostic test at the end of the 14 days.

The competent authority may in writing, however, exempt diplomatic personnel, a person or class of persons from the requirement for mandatory quarantine upon arrival in The Bahamas.

The effect of the new requirement will likely be to substantially discourage visitors from coming to The Bahamas.

In a press statement on Friday, the attorney general said the provisions governing the admission of foreign visitors to The Bahamas were changed “in order to create a uniform standard of treatment for all visitors to The Bahamas during this pandemic emergency”.

“The creation of a uniform framework means that there is no longer any need to create any list of countries from which The Bahamas would accept commercial flights; which list thereby excluded other countries. Further, it eliminates the need to continuously add or delete countries, as their circumstances might change,” he said.

“Importantly, it allows for the protection of the Bahamian people from the possible dangers or travel-related contagion in a manner which is consistent with our treaty obligations, and also with the provisions of the Chicago Convention, which regulates international air transport.”

On January 20, the government placed a ban on travel from China in response to COVID-19.  The ban prevented anyone who had traveled to China within 20 days from entering The Bahamas.

On March 5, it banned travel from Iran, Italy and South Korea.

Bethel said given that there are no direct flights to The Bahamas from those countries, The Bahamas could not have been in violation of the Chicago Convention when it instituted those travel bans.

On March 15, the prime minister also announced that foreign guests with recent travel to the United Kingdom, Ireland and Europe will be prohibited entry into The Bahamas. The Bahamas has direct flights from the UK and European Union.

Asked whether The Bahamas was in violation of the treaty in March, Bethel said, “No. The statement refers to foreign guests, not a ban on UK flights. There is no discrimination against airlines (emphasis his).”

He added, “We can ban people traveling from any country. We could have simply banned all Americans, but did not.”

Many countries have banned travel from COVID-19 hotspots since the start of the pandemic. The United States, for instance, banned all travel from Europe and the European Union banned travel to the United States.

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