The Impact Of Air Service Agreements In Civil Aviation In Nigeria -By Oyetola Muyiwa Atoyebi & Tobenna Mogbo

INTRODUCTION

Civil Aviation is a transnational global business that drives the world economy. In order to facilitate effective transborder airtransportation, Air service agreements have become a necessity in the civil aviation industry.

An air service agreement or air transport agreement is a bilateral or multilateral agreement between countries that outlines the terms and conditions for international air services between their respective territories. This agreement clearly provides conditions that regulate international travel between party states.

This agreement containsessentialcivil aviation terms such as routes, healthhazards,flight schedules, capacity, tariffs, and other related issues[1]. This agreement serves as the legal structure that facilitates international travel across borders and territories, promoting cooperation between parties and ensuring fair competition amongst international airlines.

NATURE AND CONTENT OF AIR SERVICE AGREEMENTS

An Air Service Agreement comprises various clauses and provisions that govern the terms and conditions of international air travel across two or more countries. Owing to the importance of this agreement and the peculiarities of individual countries, the content of an air service agreement might vary on a couple of factors, most especially the preferences of parties and their territories[2].Nonetheless, there are common elements typical of most air service agreements and some will be discussed below:

1. Route Designation: A typical Air Service agreement specifies the acceptable routes that airlines from each country are authorized to operate between. This provision might be extended to include the description of the route and even specific airports.
2. Tariffs and Pricing: This is an important provision to be contained in the agreement to prevent conflict, unhealthy competition or predatory pricing practices. Provisions related to pricing, fares, charges, and the currency in which payments will be made are covered under tariff and pricing and should be clearly stated.
3. Capacity and Frequency:This is oftenprovided for in a typical air service agreement. It includes the number of flights and the passenger and cargo capacity that airlines are permitted to operate on the designated routes.
4. Safety and Security: An Air Service Agreement may contain safety standard provisions that emphasize compliance with international aviation safety and security regulations.
5. Customs and Immigration: Provisions related to customs and immigration procedures for passengers and cargo such as handling of transit passengers and cargo might be included.
6. Designation of Airlines: The agreement may specify what airlines can operate within which designated routes. The import of this provision is that it regulates the number of airlines serving a designated route.
7. Dispute Resolution: This is a very important provision for air service agreements. It clearly states dispute resolution measures between the party countries or airlines, inclusive of negotiation or arbitration, depending on the choice of the parties.
8. Registration of Aircraft: The agreement may include the registration requirements for aircraft used on routes covered by the agreement.
9. Environmental and Regulatory Compliance: This is in line with the relevant laws and regulations.
10. Fair Competition: The agreement may include provisions that guide against anti-competitive practices and predatory behaviour.
11. Termination and Amendments: The agreement may state conditions under which the agreement is to be terminated or amended including the procedures for doing so.

This agreement includes provisions on currency conversion, taxation, damages, and any other matters that might hamper the smooth running of international air services.

THE INSTRUMENTALITY OF AIR SERVICE AGREEMENT IN NIGERIA

The role of the Air Service Agreement in civil aviation in Nigeria cannot be overemphasized. These agreements are instrumental in the efficient regulation of international air services, promoting growth in the aviation industry and ensuring connectivity between Nigeria and other nations. Some of these major roles of Air Service Agreements in civil aviation in Nigeria include:

1. Regulation of International Air Services.
2. Establish the legal framework for international air services between Nigeria and other countries.
3. Define the terms and conditions under which airlines can operate within the Nigerian territory.
4. Maintain order and consistency in international aviation operations.
5. Facilitate Connectivityby designating specific routes and airports where airlines can operate, which in turnpromotetrade, tourism, and economic development.
6. Managing Competition by reducing unhealthy competition and unfair or predatory pricing.
7. Ensure compliance with international aviation safety and security regulations to guarantee the safety of passengers and cargo.
8. Air service agreements create opportunities for job creation, encourage tourism, and promote trade due to ease of access to international markets.
9. The negotiation and implementation of Air Service agreement foster diplomatic ties and cooperation in various sectors even beyond aviation[3].
10. Inclusion of dispute resolution clauses in the agreement facilitates effective dispute resolution between Nigeria and party countries.
11. Open Skies Agreement which is one of the forms of Air Service Agreement with the aim of liberalizing air services aids in the removal of restrictions such as routes, capacity, and pricing.

THE REALITY OF AIR SERVICE AGREEMENT IN CIVIL AVIATION IN NIGERIA

Generally, air service agreements and the regulation of international air services are regulated by several laws, regulations, and international agreements. These laws and agreements provide the legal framework for the negotiation, implementation, and enforcement of Air Service Agreements. Some of these laws include the Civil Aviation Act, of 2022, the Nigerian Civil Aviation Regulations of 2023, International Air Transport Conventions, Customs and Immigration Laws. The Nigerian Ministry of Aviation and the Nigerian Civil Aviation Authority are responsible for the administration and enforcement of these laws.

Nigeria has signed over 80 bilateral air service agreements with several countries and is yet to largely benefit from any of these agreements. Foreign airline companies seem to have an upper hand and continue to make enormous profits under these agreements and Nigeria continuously fails to reciprocate these flights. A report in the Guardian Newspaper showed that

“ Nigeria’s domestic air carriers continue to remain shortchanged under the agreements, as their inability to reciprocate these flights has been reported to cost the country over $3billion annually”[4].

Nigeria continues to be unable to maximize profits from these agreements because while party countries are optimally plying the route, Nigeria fails to reciprocate same. This is regrettably linked to the lack of a national carrier to carry out its own part of the agreement. Due to financial incapabilities, it is extremely difficult for privately owned airlines to step up and effectively run internationally designated routes, dealing Nigeria the shorter end of the rope[5].

This disadvantaged position is largely attributed to the absence of laws that effectively regulate air service agreements and protect domestic airlines in Nigeria. This has resulted in dysfunctional Air control systems that cause delays, poor infrastructure of airport facilities and outdated agreements.

CONCLUSION

Aviation authorities and various aviation industry stakeholders need to periodically review and renegotiate existing agreements, prioritize investment in airport infrastructure and airspace management, enhance safety and security measures, and work diplomatically to create favourable conditions for Nigerian airlines in international markets. There is also a need to revisit the national carrier to help Nigeria maximize the benefits of Air Service Agreements.

SNIPPET: Air Service Agreement or air transport agreement, is a bilateral or multilateral agreement between countries that outlines the terms and conditions for international air services between their respective territories.

KEYWORDS: aviation, air service agreement, aviation industry, civil aviation.

AUTHOR: Oyetola Muyiwa Atoyebi, SAN FCIArb. (U.K)

Mr. Oyetola Muyiwa Atoyebi, SAN is the Managing Partner of O. M. Atoyebi, S.A.N & Partners (OMAPLEX Law Firm).

Mr. Atoyebi has expertise in and vast knowledge of Corporate and Commercial Practice and this has seen him advise and represent his vast clientele in a myriad of high-level transactions.  He holds the honour of being the youngest lawyer in Nigeria’s history to be conferred with the rank of Senior Advocate of Nigeria.

He can be reached at atoyebi@omaplex.com.ng

CONTRIBUTOR: Tobenna Mogbo

Tobennais a member of the Dispute Resolution Team at OMAPLEX Law Firm. He also holds commendable legal expertise in Corporate Practice.

He can be reached at tobenna.mogbo@omaplex.com.ng

[1] U.S Department of Transportation’s Report on Air Service Agreements <http://www.transportation.gov/policy/aviation-policy/international-relations/air-service-agreements> accessed on 20 August 2023

[2] B Cheng, The  Law  of  International  Air  Transport,  (Stevens  and  Sons Limited, London1962),  p. 314, 424, 465.

[3] Gertler,Bilateral Air Transport Agreements: Non Bermuda Reflections (Journal of Air Law and commence 1976) p.807

[4]Oluwole Akinyeye, ‘Aviation cabotage policy and Nigeria’s imbalanced bilateral air service agreements’ <https://guardian.ng/issue/aviation-cabotage-policy-and-nigerias-imbalanced-bilateral-air-service-agreement > accessed on 20 August 2023

[5]Oluwole Akinyeye, ‘Aviation cabotage policy and Nigeria’s imbalanced bilateral air service agreements’ <https://guardian.ng/issue/aviation-cabotage-policy-and-nigerias-imbalanced-bilateral-air-service-agreement > accessed on 20 August 2023