The Director-General of the Nigerian Civil Aviation Authority at a press conference held in January, 2017 revealed that as at December, 2016, Nigeria had executed Bilateral Air Service Agreements with 90 countries. However, it is quite important to note that only about thirty-nine of these executed agreements are active.
Over the years, questions have been raised as to the effectiveness and profitability of these Agreements to the Nigerian economy.
This GEPLAW Focus Report analyses the Country’s position during the negotiation of these Agreements and the issues flowing from them alongside other related concerns within the Nigerian Air Transport Industry.
Negotiation of bilateral air service agreements: the Nigerian perspective
Bilateral Air Service Agreements (“BASAs”) are treaties signed between Countries to allow international commercial air transport services between territories. BASAs promote international air link between countries, which supports and enables movement of persons, cargo, trade and tourism. These agreements provide the framework under which identified airlines from the two countries fly into designated ports in each other’s country. It usually covers issues regarding traffic rights, use of intermediate routes, type of aircraft, safety standards, competition, policy on ownership, design and control of airlines, etc in order for both countries to benefit from the agreement, fares and tax issues.
Negotiations to enter into BASAs are usually spearheaded by the Ministry of Aviation after extensive consultation with Aviation regulatory authorities and concerned institutions, for example, immigration authorities. However, it is quite common to see airline operators, desirous of expanding their routes to a target destination, lobby the Ministry of Aviation through diplomatic channels, to engage in formal talks which usually lead to the commencement of negotiations between countries. In general, BASAs are negotiated based on the five freedoms prescribed under the International Air Transport Agreement (“IATA”) which are stated as follows:
- The privilege to fly across a state’s territory without landing,
- The privilege to land for non-traffic purposes, for example, for refuelling, repairs and maintenance,
- The privilege of an airline from one country to carry traffic from its own country to another country,
- The privilege of an airline from one country to carry traffic from another country to its own country,
- The privilege of an airline from one country to carry traffic between two other countries, provided that the flight originates and terminates in its own country.
Out of the five freedoms mentioned, the first two freedoms are considered technical rights while the last three are considered economic and commercial traffic lights.
In Nigeria, negotiations are largely conducted based on economic considerations and reciprocity under the last 3 freedoms to ensure fair and equal opportunities. For example, under Article 10 of the Bilateral Air Service Agreement between Nigeria and the United Kingdom, the Commercial Opportunities Clause, the designated airlines are allowed to have at least one its own staff in the foreign country, a sales office and airline agents. The Clause also specifically provides that a contracting party shall be allowed to establish and maintain a ticket sales office in the territory of the other contracting party and shall be allowed to maintain residence and accommodation, employment, managerial, sales, technical, operational and other specialist staff requirement for the provision of air transportation in accordance with the existing laws and regulations in operation in the Country. This provision effectively affords each designated airline the opportunity to effectively conduct business in the countries being served.