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Wednesday, July 3, 2024


Aviation diplomacy plays a crucial role in resolving international aviation disputes. It involves diplomatic channels, negotiations, and consultations to settle disputes between states. The International Civil Aviation Organization (ICAO) is a key player in this process, providing a framework for dispute resolution. Diplomacy helps maintain international relations and trade in aviation, ensuring the smooth operation of global air services.

1. Introduction.

In international relations, the skies above often serve as both conduits of connectivity and arenas for diplomatic tension. Aviation disputes often emerge as significant indicators of broader geopolitical and economic tensions. In East Africa, Tanzania and Kenya, two nations with closely linked histories and strategic interests, have experienced a series of aviation disputes. These aviation disputes go beyond administrative disagreements, reflecting the complexities of national sovereignty, economic ambitions, and regional integration. Understanding these conflicts and their resolutions offers valuable insights into the nature of diplomacy and power in the region.

At the heart of these disputes are issues of flight permissions, airspace access, and regulatory compliance, each representing a crucial aspect of national security and economic vitality. Tanzania and Kenya, both striving to assert their dominance in the regional aviation market, often find themselves at odds over these matters. This tit-for-tat move, seemingly retaliatory in nature, reveals the contention over aviation rights, which not only disrupts connectivity and trade but also influences the broader spectrum of bilateral relations. As such, aviation disputes between these nations serve as microcosms of their larger diplomatic interactions, depicting the challenges and opportunities inherent in their relationship.

Resolving aviation disputes between nations requires a blend of strategic negotiation and mutual concession, stressing the crucial role of diplomacy in maintaining stability. It is essential that countries involved demonstrate a willingness to address their differences through dialogue and cooperation, recognizing the mutual benefits of a harmonized approach to aviation. It is important to note that this analysis is intended solely for educational purposes, offering valuable insights into the evolving trends of aviation-related issues between the two countries. This article was researched, crafted, and finalized before the ongoing economic protests in Kenya, and it is not related to any current events or situations in Kenya.

2. Birth of Aviation Rights.

The International Civil Aviation Organization (ICAO) is a specialized agency of the United Nations established in 1944 during the Chicago Convention to promote the safe and orderly development of international civil aviation. ICAO sets global standards and regulations necessary for aviation safety, security, efficiency, and environmental protection. The Freedoms of the Air, established in 1944, are a set of commercial aviation rights that grant a country's airlines the privilege to enter and land in another country's airspace. These rights emerged from the Chicago Convention, which laid the foundation for international air travel regulations and cooperation. ICAO plays a critical role in facilitating global air transport by providing a framework for negotiating bilateral and multilateral air service agreements.

Established by the International Civil Aviation Organization (ICAO), the Nine Freedoms of the Air form a foundational element of international aviation law, governing the rights and privileges of airlines operating across borders. These legal frameworks enable airlines to operate beyond their home countries' borders, making international travel a reality. The First Freedom, often referred to as the right of innocent passage, was developed to address the need for airlines to traverse foreign airspace without the requirement to land. Meanwhile, the Second Freedom, also known as the right to refuel, was introduced to accommodate the operational requirements of long-haul flights. This freedom allows airlines to make technical stops in foreign countries for refueling or maintenance purposes without picking up or dropping off passengers or cargo, warranting the safety and efficiency of international air travel.

Continuing with the Third Freedom, it grants airlines the right to carry passengers or cargo between their home country and a foreign destination. This freedom is crucial for supporting international commerce and tourism, as it enables airlines to operate regular scheduled services between countries. The Fourth Freedom allows airlines to transport passengers or cargo from a foreign country to their home country, further enhancing global connectivity and facilitating trade and tourism. Moving on to the Fifth Freedom, airlines are granted the right to pick up passengers and cargo in one foreign country and drop them off in another while en route to or from their home country. This freedom is particularly beneficial for airlines looking to optimize their route networks and increase revenue by serving multiple markets with a single flight. For example, Emirates is permitted to carry passengers between New York (JFK) and Milan (MXP) on its way from or to its home base in Dubai (DXB) under the Fifth Freedom rights.

The Sixth Freedom permits airlines to carry passengers or cargo between two foreign countries via their home country, providing additional flexibility in route planning and scheduling. In contrast, the Seventh Freedom allows airlines to operate flights solely between two foreign countries without including their home country in the route, offering opportunities for airlines to enter new markets and compete more effectively. Finally, the Eighth and Ninth Freedoms of the Air focus on cabotage rights. The Eighth Freedom, or "consecutive cabotage," grants airlines the privilege to transport passengers or cargo between two points within a foreign country as part of a service originating or ending in the airline's home country. The Ninth Freedom, or "stand-alone cabotage," allows airlines to operate domestic flights entirely within a foreign country without any connection to their home country. These freedoms collectively create a robust framework for regulating international air travel, enabling competition, and driving global economic growth.

3. The Tanzania-Kenya Bilateral Air Services Agreement.

The Tanzania and Kenya Bilateral Air Services Agreement (BASA), initiated on November 24, 2016, in Nairobi, is based on the International Civil Aviation Organization (ICAO) template. Its core aim is to facilitate scheduled services between the two nations for their designated airlines. This agreement allows for multiple designations of airlines, unrestricted frequencies and capacity, codeshare services, and a specified route schedule. It demonstrates a mutual commitment to enhancing air connectivity and promoting cooperation in the aviation sector between Tanzania and Kenya. Our analysis will focus specifically on key provisions of this agreement.

3.1. Bilateral Aviation Rights and Route Specifications.

The agreement between Tanzania and Kenya defines crucial aspects of international air services, particularly in Article 2. This article focuses on the rights granted to each party for operating international flights between the two countries. Both nations agree to allow their designated airlines to operate on specified routes. The routes for the designated airlines of Kenya include Dar es Salaam, Kilimanjaro, Zanzibar, and one other point, while the routes for the designated airlines of Tanzania include Nairobi, Mombasa, Kisumu, and one other point. These rights include the ability to fly across each other's territory without landing, make stops for non-traffic purposes, and stop at designated points to board and discharge passengers, cargo, and mail.

Additionally, the agreement specifies that while operating agreed services on the specified routes, airlines can enjoy the rights mentioned, which facilitate smoother international air travel. However, it is clearly stipulated that these rights do not extend to allowing an airline from one party to pick up passengers, cargo, or mail in the other party's territory for delivery to another point within that same territory. This clause effectively prevents the practice of cabotage, safeguarding that domestic aviation markets remain protected. Moreover, the exercise of fifth freedom traffic rights, which would allow an airline to carry traffic between two foreign countries, will be considered by the aeronautical authorities of both parties on a case-by-case basis.

Article 2 of the agreement is fundamental in establishing a balanced framework for bilateral cooperation in aviation that benefits both Tanzania and Kenya. It delineates the privileges and limitations for the designated airlines, promoting mutual respect for each nation's airspace and economic interests. Through these provisions, the agreement enhances air connectivity and strengthens diplomatic and economic ties between the two countries.

3.2. Airline Designation and Authorization Procedures.

Details on the procedures for designating and authorizing airlines are covered in Article 3. Each party has the right, through diplomatic channels, to designate one or more airlines to operate the agreed international air services, as well as the ability to withdraw or alter such designations. Upon receiving a designation and the necessary applications from the designated airline, the other party is required to grant the appropriate authorizations with minimal procedural delay, provided that certain conditions are met.

These conditions include mandating that the designated airline is substantially owned and effectively controlled by nationals or the government of the designating party. The airline must also meet the qualifications prescribed under the laws and regulations normally applied to international air transportation by the party considering the application. Additionally, the designating party must adhere to the safety and aviation security standards set forth in Articles 13 and 14 of the agreement. Importantly, even if the airline does not meet the ownership condition, a party may still grant authorization on a case-by-case basis if the airline's principal place of business and effective regulatory control are within the designating party's territory.

Once the operating authorization is granted, the designated airline is permitted to begin operating the agreed international air services, either in part or in whole, as long as it complies with the provisions of the agreement. The established framework facilitates that designated airlines can efficiently commence their operations while maintaining high standards of safety, security, and regulatory compliance, thereby strengthening aviation ties between Tanzania and Kenya.

3.3. Revocation and Suspension of Airline Authorizations.

Provisions for the revocation of airline authorizations are outlined in Article 4. Each party reserves the right to withhold, revoke, suspend, or impose conditions on the authorizations granted to a designated airline by the other party, either temporarily or permanently. This can occur if the designated airline fails to comply with the provisions of paragraph 2 of Article 3, which covers designation and authorization, and Article 12, which pertains to the application of laws.

The exercise of the rights to withhold, revoke, suspend, or impose conditions, however, is generally subject to prior consultations between the aeronautical authorities of both parties, as stipulated in Article 17 of the agreement. Unless immediate action is essential to prevent further non-compliance with the requirements outlined in paragraph 1 of Article 4, these rights will be exercised only after such consultations. Implementing a structured process guarantees that any revocation or suspension of authorizations is conducted transparently and fairly, preserving the integrity and cooperative spirit of the bilateral aviation relationship between Tanzania and Kenya.

3.4. Promotion of Fair Competition.

Focusing on fair competition, Article 7 mandates that each party must provide a fair and equal opportunity for all designated airlines to compete in providing international air transportation governed by the agreement. Furthermore, both parties are required to take appropriate actions within their respective jurisdictions to eliminate all forms of discrimination or unfair competitive practices that could negatively impact the competitive position of the other party's airlines.

Moreover, the agreement facilitates that designated airlines have the freedom to determine the frequency and capacity of the agreed services they offer based on commercial considerations. The provision prohibits either party from imposing requirements related to capacity, frequency, or traffic on the designated airlines of the other party that would be inconsistent with the agreement's objectives. Additionally, neither party can unilaterally limit the volume of traffic, frequency, or regularity of service, or the types of aircraft operated by the designated airlines of the other party, except for specific reasons such as customs and government inspection services, technical, or operational requirements under uniform conditions.

The agreement also explicitly prohibits both parties from imposing certain requirements on designated airlines that would hinder fair competition. These include first-refusal requirements, uplift ratios, no-objection fees, or any other restrictions related to capacity, frequency, or traffic that would contradict the agreement's objectives. These provisions collectively establish a level playing field for designated airlines from both Tanzania and Kenya, promoting fair competition and benefiting consumers through increased choice and quality of air transportation services.

3.5. Application of Laws in Air Transportation.

Article 12 stresses the importance of compliance with each party's laws and regulations concerning aircraft operation, navigation, and passenger, crew, and cargo admission and departure. It upholds the principle of non-discrimination, asserting that neither party favors its airlines over those of the other in implementing immigration, customs, quarantine, and similar regulations.

The agreement stipulates that while operating within the territory of one party, the designated airlines of the other party must adhere to the host country's regulations. This includes laws related to aviation security, immigration, passports, customs, and quarantine, promoting a harmonized approach to air transportation. Moreover, the agreement provides for simplified controls for passengers, baggage, cargo, and mail in direct transit, exempting them from customs duties and similar taxes, facilitating smoother and more efficient transit operations.

By enshrining these principles, the agreement promotes a fair and conducive environment for international air transportation between Tanzania and Kenya. It sets a foundation for mutual cooperation, guaranteeing that the rights and obligations of both parties are respected and that air travel between the two nations is conducted in a safe, secure, and efficient manner.

3.6. Dispute Resolution Framework.

Article 18 of the Bilateral Air Services Agreement between Tanzania and Kenya delineates a comprehensive framework for resolving disputes arising from the agreement's interpretation or implementation. Initially, the agreement mandates negotiation as the primary method for settling disputes. If negotiations fail to produce a resolution within sixty days, the matter is escalated to resolution through diplomatic channels.

Should diplomatic efforts prove unsuccessful within another sixty-day period, either party may refer the dispute to a tribunal of three arbitrators. Each party appoints one arbitrator, and these two arbitrators then select a third arbitrator, who serves as the tribunal's president. Significantly, if either party fails to appoint an arbitrator within the specified timeframe, the International Civil Aviation Organization (ICAO) may be called upon to make the appointment.

The arbitration process is designed to guarantee fairness and efficiency. The tribunal determines its own jurisdiction, establishes procedural rules, and selects the location for arbitration. It may also recommend interim relief measures pending a final decision. Additionally, both parties are obliged to adhere to the tribunal's decision. Importantly, each party bears the cost of its appointed arbitrator and related staff, with further expenses being shared equally. A structured approach to dispute resolution reinforces the commitment of both Tanzania and Kenya to honoring the terms of their air services agreement through a transparent and legally sound process.

3.7. Termination Procedures.

Article 21 of the Bilateral Air Services Agreement between Tanzania and Kenya governs the termination of the agreement, providing that either party may terminate it by giving written notice through diplomatic channels, with simultaneous notification to the International Civil Aviation Organization (ICAO). The agreement will then terminate one year after the date of receipt of the notice by the other party, unless the termination notice is withdrawn by mutual consent before this period expires. If the other party does not acknowledge receipt, the notice is deemed received fourteen working days after ICAO's receipt of the notice. The article mandates a formal and diplomatic process for terminating the agreement, indicating the importance of mutual consent and proper notification procedures.

4. The Inception of the Tanzania-Kenya Aviation Dispute.

The inception of aviation disputes often stems from complex diplomatic and regulatory challenges between nations. Such disputes can arise from differences in policy, perceived inequities in treatment, and conflicting national interests. These tensions may lead to reciprocal actions, impacting flights and operations between the countries involved. Resolving these disputes requires careful negotiation, adherence to international regulations, and a commitment to equitable solutions to maintain smooth and fair aviation operations.

The longstanding history of the Tanzania-Kenya aviation dispute is marked by tit-for-tat actions and reciprocal bans over flight rights and approvals. Over the years, various disagreements have emerged, shedding light on the complex and often contentious nature of international air travel agreements. By examining the recent tensions between Tanzania and Kenya, we can gain insights into the broader challenges that arise in international air travel and the importance of striving for fair and balanced solutions. Addressing such disputes not only impacts the immediate parties involved but also sets precedents for handling future conflicts, pointing to the need for ongoing dialogue and cooperation in the aviation industry.

4.1. Turbulence in 2015.

In 2015, the Tanzania-Kenya aviation dispute escalated significantly when the Tanzania Civil Aviation Authority (TCAA) decided to drastically reduce the frequency of Kenya Airways flights from Nairobi to key Tanzanian destinations, including Dar es Salaam, Zanzibar, and Kilimanjaro. This reduction from 42 flights per week to just 14 dealt a significant blow to Kenya Airways, which had a dominant presence on the Dar-Nairobi route. The decision by TCAA was perceived as a retaliatory move after Kenya banned Tanzanian vehicles from accessing Jomo Kenyatta International Airport (JKIA), leading to a deadlock over the Bilateral Air Services Agreements (BASA) between the two nations.

The fallout from the TCAA’s decision had immediate and tangible impacts on tourism and aviation between the two countries. With flights from Kenya to Tanzania reduced by 67%, and entry points limited to Kilimanjaro, Dar es Salaam, and Zanzibar, the aviation connectivity between the two countries was severely disrupted. Additionally, Tanzanian tour operators faced significant logistical challenges. They were forced to arrange for taxis to ferry tourists from JKIA to Athi River, from where Tanzania-registered vehicles would take them on the 110-kilometer journey to Arusha. These disruptions not only increased costs but also strained relationships between tourism stakeholders in both countries.

The aviation and tourism sectors' strained relations were not new; they had roots stretching back several years. Disagreements over air travel and vehicle access had been brewing since 2007, with multiple meetings held to resolve the issues. Significant efforts included meetings in Nairobi in 2011 and Indonesia in 2014, but a lasting solution remained elusive. The situation reached a turning point in March 2015, when Presidents Jakaya Kikwete of Tanzania and Uhuru Kenyatta of Kenya met in Namibia. This meeting, held on the sidelines of Namibia's 25th independence anniversary and the swearing-in of President Hage Geingob, led to an agreement to resolve the dispute amicably.

The late Bernard Kamilius Membe, who served as Tanzania's Minister for Foreign Affairs and International Cooperation at the time, pointed out the global perception of the dispute as a serious issue between the two countries. He stressed the need for Tanzania and Kenya to resolve their differences quietly and amicably, reflecting the sentiment that the two nations were more than just neighbors; they were brothers. Following the agreement reached by Presidents Kikwete and Kenyatta, further diplomatic efforts were planned, including a joint meeting of tourism and transport ministers from both countries. These diplomatic efforts aimed to find a lasting solution and prevent similar disputes in the future. The legacy of this dispute serves as a reminder of the importance of diplomatic dialogue and cooperation in regional relations.

4.2. COVID-19 Impact on Airspace.

The 2020 Tanzania-Kenya aviation dispute revealed the difficulties of regional cooperation during the Covid-19 pandemic. On July 30, 2020, the Tanzania Civil Aviation Authority (TCAA) decided to revoke Kenya Airways' (KQ) permission to resume flights to Tanzania. This action was a response to Kenya’s exclusion of Tanzania from a list of countries allowed to enter Kenya without a 14-day quarantine. The exclusion prompted Tanzania to reconsider its stance, leading to the suspension of KQ flights to Dar es Salaam, Kilimanjaro, and Zanzibar starting August 1, 2020.

As the dispute unfolded and Kenya expanded the list to 100 countries, while continuing to exclude Tanzania, Tanzania extended its actions to include three more Kenyan airlines, AirKenya Express, Fly540, and Safarilink Aviation. The approvals for these airlines to operate in Tanzanian airspace were revoked, affecting their daily flights to Kilimanjaro and Zanzibar. Tanzania's decision came as a response to perceived inconsistencies in Kenya’s quarantine policies, which allowed entry from some countries with higher Covid-19 infection rates without quarantine while excluding Tanzania, which had declared itself Covid-19 free.

The dispute reached a resolution on September 16, 2020, when the TCAA announced the lifting of the suspension on Kenyan airlines. This followed the Kenya Civil Aviation Authority (KCAA)'s updated list of countries exempted from the 14-day quarantine, now including Tanzania. The reciprocal actions taken by both nations indicated the necessity for mutual respect and cooperation in managing international travel during the pandemic. The resolution pointed to the value of dialogue and fair treatment, with the understanding that regional aviation policies should be aligned and equitable for all parties involved.

4.3. 2024 Skies of Disagreement.

While the 2020 dispute was eventually resolved, it left behind a residue of unresolved grievances between the two neighboring nations. Fast forward to the recent escalation in January 2024, Tanzania's decision to withdraw approval for Kenya Airways to operate flights to Dar es Salaam served as a retaliatory measure against Kenya's refusal to grant reciprocal rights to Tanzania's national carrier, Air Tanzania Company Limited (ATCL). That move marked a significant turning point, bringing to the forefront a longstanding dispute over aviation rights that had been simmering beneath the surface.

On behalf of the aeronautical authorities of the United Republic of Tanzania, the Tanzania Civil Aviation Authority announced on January 15, 2024, the rescindment of approvals for Kenya Airways (KQ) to operate passenger flights between Nairobi and Dar es Salaam under Third and Fourth Freedom Traffic Rights, effective from January 22, 2024. This action was a direct response to the Republic of Kenya's refusal to permit all-cargo flight operations by Air Tanzania Company Limited under Fifth Freedom Traffic Rights between Nairobi and third countries, a refusal that contravened Section 4 of the Memorandum of Understanding on Air Services signed between Tanzania and Kenya in 2016.

Central to the escalation of tensions is the Memorandum of Understanding (MoU) on Air Services, a bilateral agreement intended to govern and facilitate air travel between Tanzania and Kenya. With reciprocity and equitable treatment for each other's airlines as its core principles, the MoU's regulatory framework is focused on Article 3 (Designation and Authorization), Article 4 (Revocation of Authorization), and Article 7 (Fair Competition). Article 3 grants each party the right, through diplomatic channels, to designate one or more airlines to operate agreed international air services and to withdraw or alter such designations.

Article 4 grants each party the right to withhold, revoke, suspend, or impose conditions on authorizations granted to designated airlines by the other, temporarily or permanently. Meanwhile, Article 7 mandates both nations to eliminate discriminatory or unfair competitive practices that could harm the competitive standing of the other's airlines within their respective jurisdictions. Kenya's refusal to grant operating rights to Air Tanzania Company Limited (ATCL), potentially violating these provisions, prompted Tanzania to suspend Kenya Airways' passenger flights to Dar es Salaam in the 2024 dispute. Thus, the MoU serves as both the foundation for cooperation and the source of contention in this recent aviation rights dispute between Tanzania and Kenya.

The resolution of the January 2024 dispute centered on the balance between national interests and cooperative principles in regional aviation diplomacy. Kenya's decision on January 16, 2024, to grant Air Tanzania the Fifth Freedom Traffic Right for all-cargo service played a crucial role in reinstating Kenya Airways' permissions for Third and Fourth Freedom Traffic Rights between Nairobi and Dar es Salaam. Foreign ministers Musalia Mudavadi of Kenya and January Makamba of Tanzania were instrumental in reaching a mutual agreement.

5. Conclusion.

Aviation disputes often arise from differing interpretations and applications of the Freedoms of the Air, which govern commercial aviation rights, aviation agreements between countries, and permit airlines to access foreign airspace. These freedoms are critical for international air travel, allowing airlines to operate routes that include stops in foreign countries. Central to these disputes are typically transit rights and the ability to carry passengers or cargo between countries. Tensions can escalate when one nation believes that another is violating Bilateral Air Service Agreements or understandings meant to support reciprocal treatment, or when a nation actually commits such violations. These breaches can lead to retaliatory actions, such as revoking approvals for certain airlines, thereby disrupting international travel and trade.

Actions taken by one country in response to violations point to the challenges nations face in balancing national interests with international agreements in the aviation sector, particularly when there are imbalances in the treatment of each nation's airlines. They reveal the delicate nature of international aviation diplomacy, where the principles of reciprocity and mutual benefit must be carefully negotiated and upheld. The frequent need for renegotiation and clarification of Bilateral Air Service Agreements speaks to the dynamic and sometimes contentious nature of these relationships.

Diplomatic negotiations are crucial in addressing the underlying issues and finding mutually acceptable resolutions in aviation disputes. Through careful dialogue and compromise, nations can reach agreements that balance national interests with international obligations. Concessions, such as granting specific rights or permissions, can mark significant steps toward de-escalation and restoring normalcy in air travel operations. The role of diplomacy extends beyond resolving immediate conflicts; it establishes a foundation of trust and cooperation, enabling future disagreements to be managed more effectively. By prioritizing diplomatic engagement and honoring international agreements and standards, countries can build a resilient and predictable environment for global aviation, crucial for driving economic growth, improving connectivity, and advancing global understanding.

Thank you.

Written by Christopher Makwaia
Tel: +255 789 242 396

— The writer, is a University of West London graduate (formerly Thames Valley University) and an expert in Management, Leadership, International Business, Foreign Affairs, Global Marketing, Diplomacy, International Relations, Conflict Resolution, Negotiations, Security, Arms Control, Political Scientist, and a self-taught Computer Programmer and Web Developer.

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