Abstract:
In 1999, African States concluded an intra-Africa air services treaty, namely the Yamoussoukro Decision (YD) the purpose of which was to improve intra-Africa air services. The YD was intended to be the legal basis on which intra-Africa air services may be conducted, thus to replace existing bilateral air services agreements between the African States, unless such bilateral air services agreements supplement the YD. In the market access provisions of the YD, African States agreed to derogate from the requirement of ‘airline ownership and control’ as a market access provision for intra-Africa air services because it was regarded as an obstacle to the growth of intra-Africa air services.
Airline ownership and control has been used by many States as a market access provision in bilateral air services agreements ( in civil aviation commonly known as BASAS when refering to more than one agreement and BASA when it is one agreement.) since the 1940’s. Its implementation did not only occur on the basis of the BASA but State practice as well. Thus it would not be an exaggeration to conclude that airline ownership and control attained the status of a rule of customary international law alternatively, by practice crystallising into a rule of customary international law.
Despite the conclusion of the YD in 1999 and its entry into force in 2000 some African States never implemented the YD or continue to violate material provisions of the YD by insisting on airline ownership and control as a market access provision for intra-Africa air services. It is in this context that the principle of pacta sunt servanda may become relevant as a customary international law principle, as stipulated in article 26 of the Vienna Convention on the Law of Treaties (VCLT), African States as parties to the YD have a legal duty to implement the YD in good faith.
The nature of obligations assumed by States under the YD are such that legal standing is limited to the parties to the dispute in case of breach of the YD. Expanding legal standing to all African States by inserting a special provision in the YD may resolve the problem of continuous breach of the YD by the African States.
