The essence of bilateral air service agreements



JF-Expert Member
Nov 22, 2007


JF-Expert Member
Joined Nov 22, 2007
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Just in case you didn’t know, under the international law, airspace is a natural resource which belongs to countries just like land, water, minerals, forests, et cetera. In other words, a big firmament of the airspace above the territory of the United Republic of Tanzania is within her jurisdiction. This principle applies to all sovereign countries around the world. The management and regulation of the airspace in this country is vested with Tanzania Civil Aviation Authority (TCAA).

All resources are exploitable and are governed by certain principles. Just like surface transport between countries is administered under certain laws and bilateral agreements, the same applies to air transportation (movement through airspace) which in this case is governed by what is known as Bilateral Air Services Agreements (BASAs). BASAs are generally negotiated and contracted between two parties although recently there has been a trend to conduct BASAs on a multilateral framework like is the case with the European Union (EU).

As a rule of thumb, BASAs are negotiated around four basic principals although there has been some improvisation along the way. In the BASAs, countries generally agree to exchange what is known as traffic rights or freedom of the air in a reciprocal manner to home based airlines mainly for non-commercial and commercial exploitation. Under the Chicago Convention of 1944 an airline can only enjoy traffic rights under BASAs if it is substantially owed and effectively controlled by the nationals of a contracting party to the BASA. For avoidance of doubt nationals could be government, companies and individuals.

The first right that countries grant each other is known as the First Freedom of the Air. This is the right for airlines from country “A” to fly across the airspace of country “B” and vice versa without landing. This may sound a straightforward matter but not until you listen to the following anecdote.

During the apartheid era, African countries (with exception of few like Malawi) put an embargo on South Africa’s airlines not to fly across their airspace, in essence denying S. Africa’s airlines the first freedom of the air. Faced with this dilemma South African Airways (SAA) in particular approached Boeing Aircraft Manufacturing Company for the way out. The objective was to get a long range aircraft that could enable SAA to avoid flying across the rest of Africa’s airspace, that means by taking a circuitous route all the way from South Africa to any destination in Europe non-stop and vice versa. The only option available at that time was for Boeing to improvise its B747 generic model aircraft by reducing its payload in terms of seating capacity from more that 400 seats to 248 seats and that was the birth of the B747-SP (Special Performance). With reduced payload the B747-SP acquired extended range which enabled SAA to beat airspace sanctions albeit at a great cost (via the Atlantic Ocean) and SAA was the only airline in the world to own the B747-SP! The airspace embargo amongst a myriad other sanctions was the reason the apartheid regime opted for a negotiated solution with the liberation movements to have a new political dispensation in S. Africa. Thanks partly to the aero-political power of the airspace.

The second freedom in a BASA grants the right for airlines in country “A” to make a technical landing or stop over in country “B” and vice versa. Technical landing could be for refueling or emergency cases, et cetera but with no right to drop or pick traffic or purely for non-commercial reasons. However, the second freedom may be granted by any country even in the absence of a BASA between countries at the discretion of the civil aviation authority in accordance with the International Air Services Transit Agreement under the Chicago Convention.

The third freedom entails granting of the rights for airlines in country “A” (home country) to pick traffic and drop it in country “B” while the fourth freedom grants airlines in country “A” to pick traffic from country “B” and drop in country “A” and reciprocal rights are granted for airlines in country “B”. This is the essence of scheduled airline (Cargo and Passenger) operations between countries. The airlines operating under this framework are designated by their respective governments through a diplomatic process.

As the BASAs continued to evolve, countries saw the need to add the fifth freedom of the air which essentially gives traffic rights to airlines from country “B” to pick traffic from country “A” to carry it through or via country “B” (home country) and drop it in country “C”. Let us exemplify this scenario. Tanzania may grant Kenya Airways (KQ) fifth freedom rights by allowing KQ to pick traffic (passengers) from Tanzania (country A) traveling to London, U.K (country C) via Nairobi. Likewise KQ needs fifth freedom rights from U.K Authorities to be able to pick traffic destined for Tanzania from U.K via Nairobi.

As the aero-political environment became more liberal some countries have moved further to adopt what is known as Open Sky policy championed by the United States of America (USA). Under this framework the skies are literally opened for airlines to operate between “open sky policy’ contracting countries unfettered in terms of capacity, frequencies and freedom to drop and pick passengers. In this context the freedom may be given to airlines from country “A” to pick and drop traffic from country ‘B” to “C” and vice versa. This is known as sixth freedom and is very common in the USA, EU and Dubai. A typical example in this case is for KQ to be allowed to pick traffic from Rome, Italy (country B) and drop it in London, U.K (country C) and vice versa. What is important here is for both country “B” and “C” to grant traffic rights to airlines from a third party country i.e Kenya for KQ to exercise traffic rights between the Italy and United Kingdom.

The last freedom of the air which is rarely granted is called the seventh freedom otherwise known as “Cabotage rights” in aviation parlance. Ideally Cabotage rights are reserved for domestic airlines to carry internal traffic within the country. But on very rare occasions seventh freedom could be grated by country “A” to allow airlines from country “B” to carry domestic traffic between domestic points. In practical terms this would entail Tanzania giving KQ rights on its way from Nairobi to Dar Es Salaam to pick traffic, say, from Kilimanjaro International Airport and drop it at JNIA and vice versa, but as said earlier, these rights are rarely granted except under special circumstances.

Although the airspace may not be at the forefront of the natural endowments because it does not touch or feature on a day to day life of many ordinary people like land or water does, it is nevertheless an important resource in the sense that it is one of the pivotal mediums of fostering people movements and international trade between countries. It is also a source of income for civil aviation authorities for the development of the aviation sector in the country. Airspace is also one of the most monitored and controlled resource thanks to advanced surveillance technology in this area.

Byase Luteke

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