The Journey Towards African Open Skies: The 1999 Yamoussoukro Decision

By August 2002, the legal transition envisaged by the Yamoussoukro Decision was supposed to be complete.

On paper, an eligible African airline could be designated to serve another participating country, choose the capacity and frequency it considered commercially viable, lower its fares without prior approval and carry passengers or cargo onward between African markets under fifth-freedom rights.

In practice, access to many routes continued to be negotiated country by country, airline by airline and frequency by frequency.

Africa’s problem was no longer the absence of an agreed policy. It was the distance between a continental framework and the national governments expected to apply it.

The Yamoussoukro Decision was far more consequential than the 1988 Yamoussoukro Declaration that preceded it. The Declaration had committed governments to integrating African airlines over eight years, principally through cooperation, joint operations, consortia and mergers. The Decision took a different approach; it sought to liberalise the market so that eligible African airlines could compete across borders whether or not national carriers had merged.

It was a shift from trying to integrate the airlines to opening the skies in which they operated.

Some technical cooperation took place. Airlines shared facilities, entered commercial arrangements and explored joint operations. But governments remained reluctant to surrender traffic rights, national carriers continued to struggle financially, and the political and commercial difficulties of merging airlines proved far greater than the 1988 timetable had allowed.

African ministers began revising the approach before the deadline arrived.

In September 1994, they met in Mauritius and adopted measures intended to accelerate the Declaration’s implementation. The meeting focused more directly on traffic rights. It supported the progressive granting of third-, fourth- and fifth-freedom rights to African carriers and proposed that fifth-freedom access be granted where no airline was providing third- and fourth-freedom services.

Under the 1988 Declaration, traffic rights were expected to become easier to exchange as airlines integrated. Under the emerging strategy, governments would liberalise those rights even if their airlines remained separate.

The original Declaration was meant to culminate in 1996. By then, participating governments were expected to have integrated their airlines through consortia, jointly owned carriers or mergers.

That did not happen.

The 11th Conference of African Ministers Responsible for Transport and Communications, held in Cairo in November 1997, called for another continental meeting to determine how the Declaration could finally be implemented.

That meeting took place in Yamoussoukro on 13 and 14 November 1999.

The ministers adopted the full instrument, which was formally titled: the Decision Relating to the Implementation of the Yamoussoukro Declaration Concerning the Liberalisation of Access to Air Transport Markets in Africa.

It became known simply as the Yamoussoukro Decision.

The 1988 Declaration was a statement of policy and political intent. The 1999 Decision was constructed under the Treaty Establishing the African Economic Community, commonly known as the Abuja Treaty.

Article 10 of that Treaty allowed the Assembly of Heads of State and Government to adopt decisions that were binding on member states and the institutions of the African Economic Community. Article 61 specifically called for the coordination and harmonisation of air transport policies as part of Africa’s economic integration.

On 12 July 2000, at its summit in Lomé, Togo, the OAU Assembly of Heads of State and Government endorsed the Yamoussoukro Decision and urged member states to implement it speedily.

The Decision entered into force on 12 August 2000, 30 days after it was signed by the chair of the Assembly that adopted it. Participating states could temporarily limit some of their obligations, but only for a maximum of two years. That transition expired on 12 August 2002.

The Decision created a multilateral framework through which participating states were expected to open their international air transport markets to eligible African airlines.

Its most important provisions dealt with traffic rights, capacity, frequency, tariffs and airline designation.

Article 3 granted participating states the free exercise of the first five freedoms of the air for scheduled and non-scheduled passenger, cargo and mail services operated by eligible airlines.

The Freedoms of the Air are a set of commercial aviation rights established during the 1944 Chicago Convention that dictate how an airline from one country can enter and land in the airspace of another.

Only the first five freedoms are officially recognised and codified by international treaty through the International Civil Aviation Organisation (ICAO).

First Freedom (Transit): The right to fly over a foreign country without landing.

Second Freedom (Technical Stop): The right to land in a foreign country for non-traffic purposes, such as refuelling or maintenance.

Third Freedom (Home to Foreign): The right to carry passengers, mail, and cargo from an airline’s home country into a foreign country.

Fourth Freedom (Foreign to Home): The right to carry passengers, mail, and cargo from a foreign country back to the airline’s home country.

Fifth Freedom (Beyond): The right to fly between two foreign countries on a flight that originates or terminates in the airline's home country (e.g., flying from Country A to Country B, and continuing onward to Country C).

The Decision did not require states to grant cabotage: the right of a foreign airline to carry traffic solely between two points inside the same country.

Under traditional bilateral air services agreements, governments may decide how many airlines can operate, how many weekly flights each may offer, which aircraft may be used and how many seats may be placed on the route.

Article 5 reversed that presumption. It provided that there should be no limit on the capacity or number of frequencies offered between any city-pair combination covered by the Decision. A designated airline could decide what capacity and frequency to operate according to commercial demand.

States retained the ability to impose restrictions for environmental, safety, technical or other special considerations. They could also intervene where additional capacity breached fair-competition rules. But these exceptions were not intended to restore ordinary commercial protection through another name.

Article 4 reduced government control over international air fares. An airline increasing a tariff did not require prior approval, although it had to file the new tariff with the relevant authorities 30 working days before it took effect. A fare reduction could take effect immediately at the airline’s discretion.

Each state could designate at least one eligible airline to exercise its rights under the Decision. The framework did not limit a country to a single national flag carrier.

It also contained a more radical possibility. A state could designate an eligible airline from another participating state to operate on its behalf. It could also designate an African multinational airline in which it was a stakeholder.

This provision recognised that sovereignty did not require every state to own and operate a separate airline. A government could preserve connectivity by assigning its market rights to a qualifying African carrier with the aircraft, expertise and commercial capacity to use them.

Once a designation was received, the other state was expected to accelerate authorisation under its national laws. The Decision said authorisation should be granted within 30 days, subject to the airline meeting the eligibility requirements.

Article 2 gave the Decision precedence over bilateral or multilateral air services agreements between participating states to the extent that those agreements were incompatible with it. Compatible provisions could remain in force as supplements.

Article 10 reinforced this by stating that participating states should not enter into obligations more restrictive than the Decision, while allowing them to agree to arrangements that were more liberal.

This was potentially transformative in that governments would no longer need to renegotiate every restrictive bilateral agreement before the continental rules could apply.

Open access was not granted to every carrier that requested it. Article 6 required an eligible airline to be legally established in a participating state and to have its headquarters, central administration and principal place of business physically located there. It had to be licensed, adequately insured and capable of meeting standards at least equal to those set by the International Civil Aviation Organisation.

The airline also had to own an aircraft or hold a lease exceeding six months, retain technical supervision over it and be effectively controlled by a participating state or states.

These requirements protected safety and ensured that the benefits of liberalisation accrued to genuinely African-established airlines rather than carriers using nominal registration to gain market access.

States could refuse, suspend or limit an authorisation where an airline failed to meet the criteria or comply with safety and security obligations.

Fifth-freedom access was both the commercial centre of the Decision and one of its most politically sensitive provisions.

Governments with small or struggling flag carriers feared that stronger African airlines would enter their markets, carry the most valuable traffic and weaken their national airlines further. Governments with stronger carriers saw access to new markets as necessary for building efficient continental networks.

The Decision initially offered a compromise. For a transitional period of no more than two years, a state could limit its fifth-freedom commitment. Where no third- or fourth-freedom operator served a route, fifth-freedom access would be unrestricted. Where home-country airlines already operated, fifth-freedom airlines would receive at least 20% of the capacity offered on the route.

The compromise gave protected airlines time to adjust. It was not intended to become permanent. Once the transition expired in August 2002, unrestricted fifth-freedom rights were supposed to apply among states bound to the full Decision.

The two-year transition ended but protection did not.

Many African governments still owned the airlines they were expected to expose to greater competition. The same state could be the market regulator, the airport owner, the air-navigation provider, the shareholder of the national carrier and the authority negotiating traffic rights.

Opening the market could benefit travellers, traders, tourism operators and the wider economy. But the political cost of a national airline losing market share or failing altogether was immediate and visible.

Traffic rights were also exchanged on the principle of reciprocity. In law, two states could receive equal rights. However, a country with no viable airline had little capacity to use the rights it received, while a country with a strong carrier could begin operating quickly.

That produced an understandable but damaging response: some governments withheld access until their own airlines could compete, even when those airlines were unable to provide the routes, frequencies or fares passengers needed.

A 2010 World Bank assessment found that some countries with strong airlines supported liberalisation because they needed larger markets. Others without significant national carriers welcomed foreign African airlines because connectivity mattered more than preserving a flag carrier. States trying to sustain or revive weak national airlines were often the most protective.

Implementation was therefore not completely absent. Some countries concluded liberal bilateral agreements consistent with Yamoussoukro, and regional economic communities developed their own programmes. But the outcome was a patchwork of open routes, restricted routes and unused rights, not the predictable continental market envisaged by the Decision.

The old bilateral system remained powerful because it allowed governments to retain discretion. Rights recognised at continental level could still become bargaining chips at national level.

The delay between adopting the Decision and completing its institutional machinery illustrates the scale of the problem.

The Monitoring Body first met in November 2000, but its meetings were infrequent and its resources limited. The Executing Agency promised in 1999 remained unresolved for years.

In 2007, African transport ministers entrusted the functions of the Executing Agency to the African Civil Aviation Commission, or AFCAC. This avoided creating an entirely new continental institution, but AFCAC still needed clear powers, sustainable funding and common regulations to supervise a liberalised market effectively.

In January 2015, the AU Executive Council endorsed a package of regulatory and institutional texts covering competition, dispute settlement, consumer protection and the powers of the Executing Agency. At the same summit cycle, eleven states made a Solemn Commitment to implement the Decision immediately and work towards a single African air transport market.

When the African Union launched the Single African Air Transport Market(SAATM) in January 2018, it was creating a new political and institutional mechanism for implementing the 1999 Decision.

Rules on AFCAC’s powers, competition and consumer protection were incorporated into the Yamoussoukro framework, with the dispute-settlement mechanism completed through the later regulatory process. These instruments addressed gaps that had existed from the Decision’s earliest years.

SAATM is the African Union’s mechanism for giving practical effect to the principles adopted at Yamoussoukro: first-to-fifth-freedom rights, liberalised tariffs, unrestricted capacity and frequency, multiple designation of eligible African airlines, fair competition and a continental system of oversight.

AFCAC is pursuing implementation of SAATM partly through smaller groups of willing countries under the SAATM Pilot Implementation Project.