Aviation Cabotage Policy to Resolve BASA Treaties, Says Legal Expert

Olisa Agbakoba

Chinedu Eze

Former President of the Nigerian Bar Association (NBA), Mr. Olisa Agbakoba, has stressed that developing a cabotage policy in the aviation sector will resolve problems associated with the existing lopesided Bilateral Air Service Agreement (BASA) the country signed with different nations whose airlines operate into Nigeria.

Agbakoba made this known in a presentation made available to THISDAY on Wednesday.

He explained that bilateral air service agreements are international trade agreements that permit the airlines of two countries to conduct air transport services between their respective territories and noted that currently, Nigeria has signed over 80 bilateral air service agreements with various countries, which have largely failed to benefit the country.

According to reports, Nigeria loses about N200 billion to unfavourable BASA treaties annually, as the country does not reciprocate many flight operations of many airlines that operate into the country.
Agbakoba, noted that aviation stakeholders had identified that the unfair imbalance created under Nigeria’s bilateral air service agreements could largely be attributed to an absence of government policy protecting the Nigerian airlines.

“Given this position, it becomes crucial to create a government policy to resolve the imbalance. It is these circumstances that warrant the consideration of Nigeria’s imbalanced bilateral air service agreements and the ramifications of enacting the proposed ‘Fly Nigeria Act’, which aviation stakeholders have clamored for, as a viable solution to resolving the imbalance,” the renowned lawyer said.

He remarked that the imbalance of Nigeria’s bilateral air service agreements is the result of certain problems that are primarily responsible for the inability of Nigeria to reciprocate its agreements with other countries and to maximize the opportunities flowing from such agreements.

These problems he said included the demise of national carrier, which negotiated commercial agreement with foreign airlines in the past and ensured that the country was not short-changed besides reciprocating flight operations to other countries.

“Previously, the Nigeria Airways was the national carrier that executed Nigeria’s part of its bilateral air service agreements, however, its regrettable demise meant that inevitable difficulties would be presented to Nigeria’s efforts to continue to fulfil its own end of the agreements. It is also recalled that the defunct Nigeria Airways was replaced by Air Nigeria (originally Virgin Nigeria), however, it is quite unfortunate that the latter suffered the same fate of the former.

“The inevitable result is that there is no existing national carrier that would position Nigeria to reciprocate its bilateral air service agreements with other countries. This constitutes an unacceptable situation considering that a country’s national air carrier boosts that country’s image and tourism.

“Arguably, the current nonexistence of a national carrier is clearly an indictment on the past and current governments for their failure to sustain the continued existence and operation of the defunct national carriers,” Agbakoba noted.

He said the concept of cabotage originated from the shipping sector and refers to the carriage of goods or passengers from one place to another place within the same country, by a transport service provider from a foreign country.

Furthermore, he said the concept can, however, be considered inimical to any country where it is permitted, as the economic growth and development of that country’s maritime sector could be inhibited.

“As a result, it is not surprising that an appreciable number of countries have enacted cabotage laws restricting the participation of foreigners in local shipping. For instance, Nigeria has its cabotage restriction law in the form of the Coastal and Inland Shipping (Cabotage) Act, 2003.

He also noted that cabotage law had been extended to aviation with the Article 7 of the Chicago Convention 1944 that permits a State to refuse foreign airlines the right to operate domestic flights in its territory.
“It is noteworthy that Nigeria has categorically forbidden cabotage in its bilateral air service agreements,” he said.

Agbakoba also observed that simply prohibiting cabotage is inadequate in dealing with the imbalance arising from Nigeria’s bilateral air service agreements, which is created by the challenges posed to the implementation of the agreements.

“Given this position, it is quite clear that cabotage restriction must be taken a notch further. In this regard, it is submitted that there is a growing necessity to enact legislation based upon a policy that will ensure that every government spending on travels, originates and terminates with an indigenous national air carrier,” he added.