Ratification of bilateral air service agreements

ON May 29, during the post-cabinet media briefing, Prime Minister Kamla Persad-Bissessar announced that cabinet approved the coming into force of several bilateral air services agreements (BASAs) including those with Brazil, Colombia, the Dominican Republic and Rwanda in the African continent.

The Minister of Transport and Civil Aviation, Eli Zakour, must be commended for quickly bringing these BASAs to the front-burner. Hopefully, other long outstanding international aviation instruments will soon be ratified such as the Montreal Convention 1999 on the Unification of Certain Rules for International Carriage by Air which replaced the Warsaw Convention.

BASAs serve as a catalyst for social and economic development through trade and tourism. They facilitate rapid connectivity between countries for people and goods with numerous benefits to airlines, airports and national economies.

The genesis of all BASAs is Article 6 - Scheduled Air Services of the Chicago Convention which states: “No scheduled international air service may be operated over or into the territory of a contracting state, except with the special permission or other authorisation of that state, and in accordance with the terms of such permission or authorisation.”

This is supplemented by the International Air Transit Agreement (IATA) of which Trinidad and Tobago (TT) is a signatory. The IATA gives contracting states the right to fly across each others’ territory without landing and the right to land for non-traffic purposes.

The first BASA was the Bermuda I Agreement, which was signed in 1946 by the United Kingdom and the United States relating to air services between their respective territories. The agreement took its name from Bermuda where UK and US transport officials met to negotiate the BASA.

Features of Bermuda I became models for the thousands of BASAs that followed.

Bermuda I was replaced by the Bermuda II Agreement, which was signed in 1977 and became effective in 1978. Although Bermuda II was much less restrictive than the original Bermuda agreement, it was widely regarded as conflicting with the principle of open skies against the background of the continuing policy of liberalisation adopted by some governments, particularly the US.

On April 30, 2007, a new open skies agreement was signed by the US and the European Union, of which the UK was then a part, and which came into effect on March 30, 2008 and replaced Bermuda II.

Subsequently, the traditional clauses in some BASAs were modified to more "liberalised" versions in accordance with "open skies" policies.

The first open skies BASA in which TT became a signatory was with the US. In 2009, due to the imminent closure of Air Jamaica, the governments of TT and Jamaica commenced negotiations for the operation of certain routes into the US by Caribbean Airlines Ltd (CAL) on behalf of the Jamaican government. The US stated that favourable consideration would be given to CAL, not being an airline majority-owned and controlled by Jamaican citizens, to operate these routes on behalf of Jamaica, provided TT and the US enter into an “open skies” BASA.

The negotiations commenced on April 29, 2010 and got off to a slow start mainly due to reticence on the part of the TT delegation. The draft agreement was eventually initialled in the early morning of May 1, 2010.

On the morning of Saturday, May 22, 2010, the US government informed then prime minister Patrick Manning that the US was desirous of having the agreement signed before the general election scheduled for May 24, 2010. Subsequently, the agreement was signed on the same day by Colm Imbert, on behalf of the TT government and by then US ambassador Beatrice Welters.

The second open-skies BASA in which TT became a signatory was with Canada in accordance with its Blue Sky policy. Canada does not advocate a "one-size-fits-all" undifferentiated approach to BASA negotiations. Instead, it adopts a proactive approach to the liberalisation of BASAs seeking to negotiate reciprocal “open skies” type agreements when it is in Canada's best interest to do so. The TT/Canada BASA was signed on June 15, 2015.

TT is somewhat lagging behind in the negotiation of BASAs, perhaps due to the size of the cabinet-appointed Standing Negotiating Committee on Air Agreements, and bureaucracy.

This point was notably underscored with the TT/India BASA, the notion of which was revived by then minister of foreign affairs Suruj Rambachan and India’s minister of overseas affairs and civil aviation Ravi Vayalar during discussions when he visited TT for a diaspora conference in June 2011.

Persad-Bissessar, in her first term as PM, was scheduled to make a state visit to India in January 2012 at the invitation of the Indian government. In order to promote air links between India and TT, it was decided to sign a TT/India BASA during Persad-Bissessar’s visit to India.

A large delegation was proposed to the cabinet to negotiate this BASA. The cabinet decided to send only a three-man delegation led by myself, with one representative each from CAL and the Ministry of Transport.

We travelled to New Delhi during the last week of November 2011 and negotiated a fully ICAO compliant BASA in the record time of one-and-a-half days. The BASA was approved by cabinet and signed on January 6, 2012 in India during Persad-Bissessar’s visit.

In several countries such as Singapore, the negotiation of BASAs is done by the civil aviation authority (CAA) of the countries. The TTCAA’s department of air transport economic regulation (DATER) has in-house subject matter experts to effectively negotiate BASAs.

To save on overseas travel costs, video conferencing platforms such as Zoom and MS Teams should be used for negotiating BASAs.

The ICAO Doc 9587 – Policy and Guidance Material on the Economic Regulation of Air Transport provides detailed explanations and guidance on BASAs.

Doc 9587 also provide templates for traditional, transitional and liberalised types of BASAs.

Consistent with international best practice, the TT government after consultation with the appropriate stakeholders, should develop a policy on BASAs which would form part of the broader national aviation policy framework. The policy would delineate the parameters for BASA negotiations by the experts.

The draft BASA can then be submitted to cabinet for review and final approval.