Journal of Civil & Legal Sciences
Open Access

Sea; Legislation; Payment; Aviation; Sovereign; Freedom

Introduction

From another point of view, the notion of innocent passage exists in common law as in the law of the Sea. In civil law, for example, innocent passage is referred to as a right of way when, in order to reach an enclosed piece of land, it is necessary to pass through the land of another. Also, in the law of the Sea, the term "innocent passage" refers to the right of a ship to cross a State's territorial sea, provided, of course, that it does not present any danger. Far from being a textbook case, it is essential, in view of the incident that took place in Belarus, albeit in Europe, to re-examine the international legislation in force, and above all, African legislation, in order to determine at what point the principle of innocent passage will no longer be applicable [1].

Discussion

How is airspace delimited?

Airspace boundaries are both horizontal and vertical. In the vertical direction, it is usual to differentiate between two areas: the Flight Information Region (FIR), and the Upper Information Region (UIR). Only the former is the one that will be most concerned in this study. Indeed, the delimitation of the FIR area is a matter of sovereignty and discretion for each State [2]. ICAO, in its Annex 2 Appendix 3 on Rules of the Air, nevertheless requires that it has a minimum threshold of 300 metres or 600 metres within 8km depending on the position of the aircraft in a given geographical context. In other cases, most countries will have an FIR up to 19,500 feet (FL 195); others will extend to FL 245 (Niamey East-West FIR, Antananarivo 3 FIR, Brazzaville FIR, Dakar Oceanic 3 FIR, Dakar Land FIR, and N’djamena FIR). Depending on their geographical location, the FIR area also extends to the open sea. A control centre manages this area [3]. In French-speaking Africa, it is better known as ASECNA, i.e. the Agency for the Safety of Air Navigation in Africa and Madagascar. This agency, based on the AAMAC treaty, is a pioneer in air navigation cooperation in Africa. It manages airspace of 16,100,000 km2, including 18 countries, 27 international airports and 76 national and regional airports. Given the extent of the control area, ASECNA has prerogatives from the entry of an aircraft into a territory to its exit. (Figure 1) above presents ASECNA air traffic control divided into six FIR areas for 18 countries [4]. In the horizontal direction, if the country is a coastal one, the country’s airspace extends to the open sea [5]. The particularity of the horizontal division is the flight area in classes. Per Annex 11 of the Convention on International Civil Aviation, the classes range from A to G, comprising restricted, military, hazardous, or densely populated areas. In addition, the civil aircraft must follow the taxiway dedicated to it as it would have done in road traffic.

Figure 1: ASECNA airspace.

What are the regulations in force?

Air law is unique in that it is primarily international in construction. Regional conventions and national laws follow the international conventions. Since 1944, the Chicago Convention on International Civil Aviation has been in force, and it is the international convention regulating international air travel, and applicable in 193 member countries. According to Article 1 of the Chicago Convention, "each State has complete and exclusive sovereignty over the airspace above its territory." However, this sovereignty principle does not imply a complete impossibility to fly over another State’s territory [6]. There are procedures to be followed before a commercial aircraft can fly over the airspace of another State. The Chicago Convention makes a difference between aircraft not providing a scheduled service and those providing a scheduled service [7]. While the former has the right "to transit non-stop and to make non-commercial stops (e.g. refuelling) without having to obtain prior permission, subject to the right of the State overflown to require landing," the latter does not have this right unless "special permission or other authorisation is obtained from the said State and in accordance with the conditions of such permission or authorisation." The problem is that in civil aviation, airlines are increasing in number and new destinations are appearing at such a rapid pace that it would be difficult to identify precisely which aircraft would be providing a scheduled air service and which would not, if we based on the first reading of the Chicago Convention [8]. To overcome this restriction, the Agreement on the Transit of International Air Services, signed in Chicago in 1944, grants aircraft operating scheduled international air services the right to cross a territory without landing or land for non-commercial reasons (e.g. refuelling). As a reminder, there is also an agreement on international air transport that provides for almost identical rules. In short, since 1944, regular service or not,any aircraft has the right to use this innocuous passage, i.e. to fly freely over one or more territories, subject, of course, to payment of fees to the organisation concerned [9].

and in Africa, are there any conventions?

The 1944 Chicago Convention is widely ratified in Africa and remains the primary regulation for civil aviation. The Economic and Monetary Community of Central Africa (CEMAC) and the West African Economic and Monetary Union (WAEMU) concluded conventions on civil aviation in 2012 and 2007, respectively, for the areas concerned. Both conventions established the right to fly freely over the territory of member states without differentiating between scheduled and nonscheduled services. This freedom of the air is conditioned, of course, by the respect of the rules of air safety and security, such as the prohibition to circulate without a title, to fly acrobatically over a built-up area, to fly in a prohibited zone, or to perform any manoeuvre that would hinder the exercise of the owner's right, among others. On the other hand, given the territorial applicability of the conventions, there is still a difference between national and foreign aircraft. The latter has the same right to circulate provided that they derive it from an international convention or, failing that, hold a special or temporary authorisation in advance. Where the multimodal transport operator or a person acting on his behalf knows, or has reasonable grounds to suspect, that the particulars furnished by the consignor in the multimodal transport document do not accurately represent the goods actually taken in charge, or if he has no reasonable means of checking such particulars, the multimodal transport operator or a person acting on his behalf shall insert in the multimodal transport document a reservation specifying the inaccuracies, if any, the grounds of suspicion or the absence of reasonable means of checking the particulars. The consignor shall be deemed to have guaranteed to the multimodal transport operator the adequacy and accuracy, at the time the multimodal transport operator takes charge of the goods, where the multimodal transport operator or a person acting on his behalf fails to insert the reservation in the multimodal transport document relating to the apparent condition of the goods, he shall be deemed to have accepted the goods in apparent good condition.

Conclusion

In conclusion, air transport is a significant driver of economic growth in Africa by allowing for the fluidity and speed of movement of people and goods. Since the Yamoussoukro Decision in 1999, adopted by the Assembly of Heads of State and Government of the Organisation of African Union in 2000, civil aviation policy has tended to harmonise and liberalise access to air transport markets. Allowing an aircraft to cross a territory without a forced landing or stopover is undoubtedly a flagship freedom of the air in aviation. Nevertheless, this freedom of the air is not often applied. This is because not all countries are necessarily members of ICAO. Still other countries are in open conflict and do not allow their aircraft to fly over "enemy territory". In this respect, bilateral conventions have proven necessary. In professional practice, the commander of an aircraft, not having the right to fly over a well-defined territory, should not fly over that territory under any circumstances. Although there is this freedom of over-flight, his responsibility could be engaged.

Acknowledgement

None

Conflict of Interest

None

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