In an interview with The Bahama Journal before the decision to release two Cuban dentists was announced, Minister of Foreign Affairs Fred Mitchell said The Bahamas has a history, under both the Ingraham and Christie administrations, of violating a Memorandum of Understanding (MOU) with Cuba, which governs repatriation of illegal Cuban migrants in The Bahamas.
The Bahamas’ continued “violation” – to use Minister Mitchell’s word – of the MOU stems from the absence of a clause in that bilateral agreement recognizing The Bahamas’ “international obligations.”
In international diplomacy, the term “international obligations” means agreements made under international law, which officials say supercedes bilateral or regional agreements.
The Memorandum of Understanding between The Bahamas and Cuba came into effect on January 12, 1996. It was amended with a Protocol in June 1998, in which The Bahamas government agrees to notify Cuban authorities of all Cuban citizens detained in Bahamian territory “through the most expeditious way and in a period no longer than 72 hours.”
Article one of the Protocol adds that, once notification is received, the repatriation is to take place within 15 days.
Since 1993, The Bahamas has been party to the United Nations 1951 Convention and the 1967 Protocol relating to the Status of Refugees, the primary international instrument for determining refugee status.
It is the attempt to conform to this agreement and honour the MOU that officials say creates the difficulty. The Bahamas must distinguish whether migrants detained in Bahamian territory are political refugees or economic migrants. Officials say the process of making this determination of political refugee status takes an undefined length of time.
Mr. Mitchell told the Journal that the government is in the process of reforming the system so that the parties involved in the determination of refugee status conclude their investigations within the 72-hour timeframe.
In this way, government plans to bring The Bahamas back into a position where it is honouring the agreement it has with Cuba, and international conventions on refugees, which Mr. Mitchell says a sovereign government cannot ignore.
Former prime minister and Leader of the Opposition Hubert Ingraham, however, told the Journal on Monday that “nobody’s hands are tied to (prevent them from doing) anything.”
“We who signed the agreement (with Cuba) granted political refugee status to more than 100 Cubans,” he said.
Amid seemingly escalating rhetoric surrounding the continuing detention of two Cuban dentists in The Bahamas for more than ten months, the efficacy of that bilateral agreement had come into question.
The U.S.-Cuba agreement governing the migration of Cubans to the United States was also reached in stages. In an update to the September 1994 agreement, the U.S. included a line which reads as follows: “All actions taken will be consistent with the parties’ international obligations.”
There was no reference to “international obligations” in the 1994 wording of the U.S.-Cuba agreement.
The general practice, which according to Minister Mitchell the Christie administration “met in place” and continued, is for The Bahamas to determine, in consultation with the Office of the United Nations High Commissioner For Refugees, whether the immigrant detained qualifies as a refugee or not.
Only after the determination has been made either way does The Bahamas begin the 72-hour clock, Minister Mitchell said.
Mr. Ingraham also claimed that Prime Minister Perry Christie told the House of Assembly on March 1 that his government was “minded” to give eight Cubans political refugee status, but that he wanted a third country to take them.
The language in the 1998 Protocol between The Bahamas and Cuba is subtly different from that contained in the original MOU, but the effect of that difference is anything but subtle.
In the 1996 wording, The Bahamas government agrees to notify the Cuban authorities of the arrival of illegal Cuban migrants “within 72 hours thereof, or as soon as it is reasonably practicable thereafter-” The latitude implied in that statement was effectively removed by the 1998 Protocol, which enshrines the three-day time limit.
Minister Mitchell told the Journal that the PLP had opposed the signing of the MOU because of the lack of provision for The Bahamas’ “international obligations.”
He explained that the practice of delaying notification until refugee status is determined is what he meant by “a history of violation of the agreement.”
While the agreement carries the full force of both countries’ law, it is not unbreakable. Article Nine of the 1996 Protocol states, “Both parties may denounce this Protocol with prior written notification, which shall be effective as of 90 days following its reception.”
Minister Mitchell firmly denied that The Bahamas has denounced the Protocol.
Had the established procedure been followed, The Bahamian government would have notified Cuban authorities of having detained Drs. Gonzalez-Mejias and Darias-Mesa, and the 16 other Cuban illegals on the boat with them, within 72 hours. Fifteen days after that notification had been received, the Cubans would have been repatriated “forthwith.”
In a press release issued yesterday, the Cabinet Office said the Department of Immigration and the United Nations High Commission on Refugees (UNHCR) had earlier both advised that neither individual could establish a credible claim of a well grounded fear of persecution in Cuba.
The statement said that this meant that they did not qualify to be political refugees in The Bahamas.
“However, UNHCR did further advise that [it] would not object to a humanitarian gesture of paroling the individuals out to allow them to join their families in circumstances where such a request was made by the two individuals,” the statement added.
Following a release issued by the U.S. Embassy, the government said the doctors landed in Jamaica yesterday morning and were flown to the Untied States.
By: Quincy Parker, The Bahama Journal
