ABSTRACT

AIR' TRANSPORT BILATERALS OF NIGERIA

Author& Wilberforoe Oladela Odub~yo

Depta Institute of Air and Spae~ Lav Degreee LL.M.

We have in thi! thesis examlned analytleally the bilateral aeronautieal agreements of Nigeria. In chapter l va give a briet historieal sketch of the grovth of Civil aviation in Nigeria. ,In Chaptar 2 ve discuss generally the proeess of making and exeeuting treaties in Nigeria vith partieular reter6nee to Air Transport Agreements. Chapter 3 is a discussion of the ( lav of State succession and its relevance to Nigerla's inherltance of certain aeronautieal agreements concluded by Great Brltain and made applicable te the country. We enumerate sueh agree- mente at the end of the ehapter. Chapter 4 i6 a detaHed analye1~ of some ot the agreements conoluded by Nlgeria~ In the Con- clusions va make some suggestions concerning future aviation polieies. An appendlx and bibllography la lncluded. AIR TRANSPORT BILATERALS OF NIGERIA

by

w. O. OdubayQ LL.B. (London)

• .-

AIR TRANSPORT BILATERALS OF NIGERIA - A Study in Treaty Law -

by

w. O. Odubayo LL.B. (London) of the Inner Temple, Barrister-at-Law

1

A thesis submitted to the Facuitr of Graduate Studies and Research in partial fulfillment of the requirements for the degree of Master of Laws

Institute of Air and Space Law McGill University Montreal, Canada April, 1968 ••

~ W.O. Odubayo 1969 1 1i

TO THE MEMORY OF

CHIEF O. O. OMOLOLU M.A., LL.B (TCD), Q.C.

Former Deputy High Commissioner

for Bigeria in the U~K., Permanent Secretary, Ministry of External Affairs, Solicitor-General and Permanent Secretary, Federal Ministry of Justioe, Judge of the High Court of Lagos. i11

ACKIOWLEDGEMENTS

When he was Solicitor-General of the Federation and

Permanent Secretary in the Federal Ministry of Justice, the late Mr. Justice Chief Omololu to whose memory ! have dedicated thls thesie assigned me to the International and Comparative

Law Division of the Ministry. So began my particular interest in Air Law. From 1963-1966 1 was, in addition to other duties, adviser to various Conferences for the negotiation of some of the agreements discussed in this dissertation. 1 have now examined, or re-examined some of these agreements in the light of knowledge acquired during my two years residence at McGill. 1 need only to emphasize therefore, that the opinions expressed here are entirely my own and does not represent the official views or policies of the Nigerian Government.

1 owe a deep debt of gratitude to Dr. T. O. Elias,

Federal Attorney General of Nigeria, Dean of the Faculty of

Law in the University of Lagos, and Member of th~ International

Law Commission for his kindness and encouragement.

A fellowship from ICAO and a generous leave of absence granted to me by the Nigerian Government have made my stay in

Montreal possible. 1 am grateful to Dean Maxwell Cohen for allowing me to attend his lectures on International Law' in the 1966-67 iv

session. It has been a retreshing experience in that session

also to have participated in the seminars on International

Organisations conducted jointly by the Dean, Professor Humphrey

and Professor McWhinney, for which I hereby acknowledge my

appreciation.

Professor McWhinney, Director of the Institute of

Air and Space Law allowed me to attend his lectures and par­

ticipate in hls seminars on Comparative Federalism. For this,

also, 1 acknowledge my appreciation.

1 would also like to thank Dr. Fitzgerald, Senior

Legal Officer, ICAO for his warm friendship and hospitality.

Mrs. M. P. L. Mclver of the Legal Bureau of ICAO vas very helpful

to me in tracing the documents filed with the Organisation, and also discussing with me various aspects of registration of

treaties.

The McGill Law Librarian, Miss Marian Scott and her

staff have been particularly co-operative. Similarly the Library staftof ICAO deserves special mention.

Finally, but not least, 1 must put on record my gratitude to my Research Supervisor, Professor Bradley for his invaluable guidance and advice at various stages of the writing of this dissertation. 1 also appreciate and benefitted considerably from his experiences as a former Civil Servant in Australia and East Africa. TABLE OF CONTENTS

Chapter

ACKNOWLEDGEMENTS • • • • • • • • • • • • • • • 1U l INTRODUCTION: THE DEVELOPMENT OF AIR COMMERCE IN THE BRITISH EMPIRE • • • • • • • • • • · • • • · • 1 (a) The Period Prior to 1919 • • • • • • 2 (b) From 1919-1944 • • • • • • • • • • • 3 (c) Post-War Deve10pment of Civil Aviation 6 i The Chicago Conference 1944 • • 8 11 The Bermuda Agreement 1946 • • • 12 II THE PRO CESS OF MAKING AND EXECUTING TREATIES IN NIGERIA · • • • · · • • · • · • · 17 (a) General Constitutiona1 Background • • 17 (b) Constitutional and Statutory Authority Concerning Air Transport • • • • • • 22 (c) Form of Agreements • • · • • · · • • 26 (d) Negotiation • • • • • · • • • • · • • 30 (e) Inithling, Signature and Ratification 34 (f) Registration and Publication · • • • 35 III THE AGREEMENTS INHERITED BY NIGERIA • • • 38 (a) The Foundation of Legal Order in the Wor1d Community • • • • • • · • • 39 (b) The Theory of State Succession • • • 42 (c) State Practice • • • • • • • • • • • 49 i Great Britain • • • · • · • • · 51 ii United States of America • • · • 56 ili France • • • • · .. . • • • • • • 59 iv Other European Countries • • • • 62 (d) The Inherited Agreements • • • • • • 64 vi

Chapt.r

I.V AGREEMENTS CONCLUDBD BY NIGERIA •••• .. . . . 70 (a) The Nigerian Standard Dratt • • • • • • 76 (b) Legal Regime • • • • • • • • • • • • • 78 (c) Technical Regime • • • • • • • • • • • 86 (d) Custom~ Regime •• • • • • • • • • • • 89 (.) Commercial Regime • • • • • • • • • • • 92 (t) Settlement of Disputes · ...... 98 (g) Termination • • • • • • • • • • • • • • 103. (h) Memorandum of Understanding • • • • • • 104

CONCLUSIONS • • • • • • • • • • • • • • • • • 108 Appendix 1 - Bxchange of Notes betwe.n Sveden and Nigeria • • • • • • • • • • • • • • •• • 111 Appendix 2 - Nigerian Standard Draft •••••••••• 114'

Appendix 3 - Agreem~nt Between Nigeria and U.S.S.R. • 138

BIBLIOGRAPHY • • • • • • • • • • • • • e. • • • 169 INTRODUCTION

CHAPTER ONE

The Development of Air Commerce in the British Empire

Our objective in this dissertation is to conduct an analytical examination of the provisions of Air Transport Agree- ments entered into by ~igeria, and also identify those bilateral agreements binding on her at independence by virtue of U.K. signature. In this chapter we give a brief historical survey of air transport in Nigeria from colonial times until its attain- ment of statehood. 1

Like all Commonwealth countries the history of civil air transport in Nigeria manifests two characteristics. Firstly, it developed in response to the need for a political unit y of the British Empire, thus facilitating administration and the needs of the postal services. Secondly, it accelerated the economic u~ity of the colonies and provided an impetus for their rapid development. In order to appreciate fully the dimensions

l For the political history or geography of Nigeria; See K. M. Buchan~n and J. C. Pugh, Land and People in Nigeria, 1955; C. T. Quinn-Young and T. Herdman, Geography of Nigeria', 4th ReviseD Edition, 1954; M•. Crowder, The Story of Nigeria, 1966 •. 2

which air transportation has reached in Nigeria today, a brief examination of its deve10pment in the :British Empire generally will be appropriate.

The Period Prior to 1919

:By 1919, :Britain possessed a vast colonial empire. 2

These widely scattered territories created a problem;= -- that of access. Access not through the tradi tional sea routes over which :Britain vas already supreme, but access through the air- space.

In the period under review, legal doctrine on the question of access to the airspace above national territories 3 . crystallized into four schools of thought.. One school headed by the French jurist Paul Fauch~lle advocated the "freedom of the air" theory.4 Another school was in favour of absolute state sovereignty in the air. A third school advocated the creation of vertical zones in the air space where subjacent

2Final international recognition to :British claims over Nigeria was achieved by the General Act of :Berlin Congress of 26th February 1885. L.N.T.S. No. 202 Vol. 8 (1922); Convention of Saint-Germain-en-Laye of 10th September 1919, :B.F.S .. P. Vol. 76 p. 4; Vol. 82 p. 55.

'Sand, Pratt and Lyon, hAn Historieal Survey of the Law of Flighttl , Publication No. 7, Institute: of Air and Space Law, pp. 7-9; 21 Annuaire 297, 327-28 (1906).

4Revue Generale de Droit International Public, 8 (1901), 414; Annuaire de l'Institut de Droit International, 19 (i902), 19, '86. states may exercise sovereign rights. The fourth school of thought. led by Professor Westlake of Cambridge University proposed a functional limitation by international law~5

Officially, the attitude of the British Empire favoured state sovereign~ in the territorial airspace subjeot to the right of foreign aircraft to overfly such terri tories, on prior authorisation. This period therefore marked the beginning of negotiation of bilateral Air Transport Agreements by His Majestytl s 6 Government.

From 1919 to 1944

The Convention on Air Navigation concluded in Paris at the Peace Conference in 1919 confirmed the rule previously advocated by Professor Westlake, and adopted as the official view of the British Empire at the Conference that states have full sovereignty over the airspace above their national terri­ tories and territorial waters.? A1though air commerce in the

Empire at this period. came unàer the private sector of the

5See note 3, Supra.

6See L.N .. T.S. Vol. 5 p. 148 and p. 180;' Vol. 6, p. 308 and 348.

7Art • 1 of The Convention Re1ating to the Regulation of Aerial Navigation, opened for signature at Paris, October 13, 1919. Il L.N.T.S. 173-310 (1923). 4

8 economy, the negot1at1on of traff1c r1ghts w1th fore1gn govern- ments was in the· hands of the Imper1al Government.9:

Agreements concluded as a result of such 1nter-governmental negotiat1ons granted to aircraft of each other"s nationality on a rec1procal basis the right to:

(1) overfly the terr1tory non-stop,

(11) land in the territory in c&.se of emergency

(111) land forpurposes of re-fuelling, and

(1v) land in the territory with a view to exercise traffic rights.

Three notable developments in this period which affected the subsequent pattern of aviation in Nigeria were

8 One of the early mistakes of the British Government at this period was believed to have orig1nated with the then· Minister of Air, Winston Churchill. Not fully aware of the need to give subsidies to the airlines as was done by Germany and France, for example, the privata companies who began the opening up of the airlanes of the Empire were faced with financial dif­ ficulties. See further J. Stroud, Annals of British and Common­ wealth Air Transport at pp. 44 and 48.

9It is of interest to note here that at this early stage while the British Government took into its own hands the negotiation of bilaterals and sought permission from foreign governments for the exercise of traffic rights by British com­ panies, the U.S. Government gave Pan American Airways a free hand to negotiate direct with Latin American governments. It has been suggested that during this period the President of Pan Am Juan Trippe became something near to a private rov1ng Ambassador. For a history of this period, See R.E.G. Dav1es, A History of the World's A1rlines, Chapter 9. 5

Ca) The principle of the exclusion of cabotage traffic was introduced from the law of the sea into air commerce by

Metropolitan Powers in respect of inter-colonial operations.

This placed the French West African Colonies at an advantage over the British West African possessions in the profitable exercise of traffic rights because of theirgeographical con- 10 tiguity•.

(b) Imperial Airways, though a British company, had to negotiatewith the separate territorial administrationsin 11 the British Af'rican colonies concerning its operations •.

(c) A local company was fo~med in Nigeria to operate 12 feeder routes linked to the main trunk route •. The terminus

10Since the dissolution of West African Airways Cor­ poration (WAAC) in 1958,-and the formation of Air Afrique in 1961, thisprinciple has worked more to the advantage of Air Afrique countries, and the detriment of the former Bri tish West African terri tories. Bee further pages 80-83 infra •.

IlOne woald have thought that the Colonial Office in London would have been the competent authority on the advice of Colonial Administrations to grant rights and stipulate con­ ditions for Imperial Airways operations in those terri tories. A curious example of the lack of co-ordination and planning of that periodwas the restriction on flights from Nigeria by the Sudan Administration. See further R. Higham, Britain's Imperial Air Routes 1918-1939, pp. 207-209. l2Elder Dempster Lines, A Liverpool Shipping Company with services to West Africa formed the EIders Colonial Airways, by an agreement with Imperial Airways on 7th November 1935. This airline provided services from Lagos to link up with the branch line to Kano operated by Imperial Airways from Khartoum. The first service reached Lagos on l5th October 1936. cf. Davies, op. cit., supra, note 9, at pp. 182-195.

'" 6

of the trunk route was London. It passed through Europe to

Cairo from where the line breaks into two routes. One route

went on to India, Australia and the Far East while a Southern

route through Khartoum terminated in South Africa (Cape-Town) .13

In addition to agreements concerning traffic rtght.,

a number of other aeronautica1 agreements were concluded which

were specifically made applicable to Nigeria. 14

Post-War Development of Civil Aviation

Great technical progress was made in aviation during

the period covered by the military conflict in Europe in the

Second World War. In Nigeria, the airports and ground facilities

in Lagos, Kano and MaiduguY:"i ",ere developed as 9. Soutl)ern Stra-

tegic air communications line for the Allies in the Desert Cam­

paign in North Africa, and for the Far Eastern theatres of war.,15

13· Stroud, op. cit., supra note 8 at pp. 94 & 131.

l4A list of such agreements which in the opinion of the writer could be deemed applicable to Nigeria by the doctrine of state succession in international law is at pages 68-69 infra •.

l5Higham, op. cit., supra note 11. It may be recalled that the strategie importance of Kano as a strategie air base was emphasized by the Defence Agreement between Her Majesty's Government and the Government of the Federation of Nigeria in 1960. Under the Agreement Her Majesty's Government obtained rights in Kano Airport for a staging post for the R.A.F. This Agreement has now been abrogated. See E. Lauterpacht, The Con­ tem orar Practice of the United Kin dom in the Field of Inter­ national Law 1962, pp. 86-87, and the Documents referred to e· thereln •. . i, i .... " 'i 1 7 1 .' ,J : . " i . ' " " 1 i il :1 "

CAIRO Imperial Airways African Routes. • 1931-1939 l , WADLHALFA 0 , ;i \, .• H KANO FT. LAMY ELF~~E?:i

'UBAO, ,1 i KISUMUO~ , , .9.'\ L NAIROBI 0,," MOMBASA o '4DAR·ES- . MB'YAOl l'ALEM

LU'AKAQ/ O' ~ MOZAM- LIVINGSTONE 0, ~' BIQUE .' BULAWAYO1 0 0 ,BEIRA OHANNE'BURGO 0 -:-~ . ; J LOURENCO MARQUES MBERLEYO ~ 0::;,( DURBAN CAPE TOWN,,, 01 "~.

Repro~uced :from .page l~3 df: Rdb~n Hi'g,~am' s

Britain's Imperial Ai~ R6utes 19~8-~939

1 / 8

These provided an initial take-off advantage for Nigerian civil

aviation after the cessation of hosti1ities. The country soon

became an important stop-over for trans-continental f1ights from

Europe to the Union of South Africa, and the French, Be1gian 16 and Portuguese Colonies.

Constitutiona11y, during the period under review,

the grant of authorisations to engage in air commerce into Nigeria

vas exercised by His Majesty in Counci1 under powers conferred

upon him by the Civil Aviation Act 1949,17 and the ColoniaL

Civil Aviation (Application of Act) Order 1952-1959.~8 In practice,

hovever, the exercise of these povers formed part of the genera1

responsibi1ities of the Colonial Office in consultation vith

the Ministry of e:tvi1 Aviation for the administration of the 19 Colonies, and the deve10pment of civil aviation there.

The Chicago Conference 1944

On the initiative of the U.S. Government a conference was summoned in Chicago in 1944 to consider a pattern for civil

16This ",as the period preceding the deve10pment of long range aircraft •. 17 12, 13 ~ 14 Geo. 6 c. 67.

18s•r• 1952 No. 868; 1953 Nos. 591 and 1669; 1954 No. 830; 1955 No. 709; 1958 No. 1;14, and 1959 No. 1052. These ~rders have now beeh repealed by Section 18 of the Civil Aviation Act, 1964 No. 30.

19Lord Sempill, International Air Transport, 1947, p. 159. 9 aviation after the war. At the close of the conference a Con- vention on'International Civil Aviation was agreed upon and 20 opened for signature by the ·participating states., Nigeria, not being a statein international law was not an original sig- natory to t~e Convention, as signature by the U.K. was deemed to apply to aIL her colonial poçsessions. It is stated in the

Convention that:

For the purposes of this Convention the territory of astate shall be deemed to be the land areas and territorial waters adjacent thereto under the sovereignty, suzerainty, protection or mandate of 'such State.,2l

For the purpose3 of our present study, and as far as bilateral exchange of rights are'concerned, the most important provisions of the Chicago Convention are those which lay down the principle and the condition for the establishment of scheduled air services.

The Contracting states recognize that every state has comolete and exclusive sovereignty over the air spa~e above its territory~22

No scheduled international services may be oper­ ated over or into the territory of a Contracting state, except vith the special permission or

20 Proceedings of the International Civil Aviation Conference, Chicago, 1944. U.S. State Dept. Publication 2820.

2lConvention On International Civil Aviation concluded at Chicago on 7th December 1944, Art. 2; 15 U.N.T.S. 295. T,his Convention is nov generally referred to as the Chicago Convention.

22___0p ~• ___Ci t., Supra no t e 21 , Ar. t 1 • 10

other authorisation of that state, and in accordance with the terms of such permission or authorisation.23'

We do not propose to embark here on a full discussion

of the proceedings of,the Conference. Our task is to examine

the outcome of the Conference and i t's effect on the development of civil aviation in Nigeria. 24

In addition to the Convention on International Civil

Aviatio~, two other multilateral conventions were proposed.

These were,:

(i) The International Air Services Transit

Agreement, 25 and

(11) , The International Air Transport Agreement.

The main purpose of the International Air Services Transit Agree- ment was to grant to aircraft engaged in scheduled international flights the two fundamental freedoms; namely,

(a) The right to fly across the territory of

aState without landing, and

(b) The right to land on the territory of another

State for non-traffic purposes.

23 Id. Art. 6.

24For a full discussion of the Proceedings Gt the Chicago Conference, See U.S. Dept. of State Publications No. 2348, Blueprints for World Civil ,Aviation : The Chicago Inter­ national Civil Avia'tion Conference of 1944 As Viewed by Four Members of the U.S. Delegation in Recent Magazine Articles (1945).

25ICAO Doc. No. 7500. Il

The Convention was proposed by the United Kingdom Delegation 26 and was signed by a number of States."

The United States Delegation sponsored the International

Air Transport Agreement which envisaged the ex change of lst,

2nd, 3td, 4th and 5th freedom rights on a multilateral basis.

The British and other delegations, however, not without justi-

fication were opposed to this arrangement, as the British air-

craft industry particular1y and civil aviation in general were

then to recover from the aftermath of the world war. If anyone

stood to benefit from such libera1isation, it was the United

States which among the allies was the only nation with a large

reserve of military air power awaiting re-deployment and inte- 27 gration into a post-war economy.

Final1y, we wou1d refer to one other out come of the • Conference which has relevance for aviation in Nigeria.

26 . 1X&States are now parties to the Convention. Nigeria became a party on 25th January, 1961. Bee further, the writer's "Prob1ems of State Succession to Bilateral Aeronautical Agree­ ments in Nigeria," Unpublished Term Paper, Institute of Air and Space Law, McGill University, at page ii. For a full discussion on the law of succession to mu1tilateral conventions See Rene Mankiewicz, Air Law Conventions and New States, (1964) 29 J.A. L. & C. 52-64; Also his Les nouveaux etats et les conventions de droit aerien, (1961), Annuaire Francaise de droit International, 752. 27 " Text of the Agreement is published in ICAO. Doc. No. 2187, pp. 67-75. See further H.A. Wassenbergh, Post-Var International Civil Aviation Policy and the Law of the Air, at e page 17, and particularly note 2. 12'

This was the appearance of the "Chicago Standard: Form" of Agree-- men~~ which was recommended by the Conferenceto States for adoption in negotiating bilateral ~greements. This "Standard

.Form" was adopted as the basis of one of the. agreements which 28 devolved on Nigeria by operation of law.

The Bermuda Agreement 1946

This agreement has been described as ttprobably the most important Civil Aviation agreement that the U.K. has entered into •. ,,29 It will be recalled that at the Chicago Conference in

1944 the British and the U.S. p~ints of view on the pattern of development of international civil aviation were irreconcilable.

When the two Governments sUbsequently met in Bermuda in 1946, a compromise arrangement was entered into which struck a balance between American liberalism and British protectionism.

According to the Final Act signed by the representatives of the two Governments at the end of the Conference, it was agreed:

(1) That the two &overnments desire to foster and encourage the widest possible distribution of the benefits of

28The U.K. - Portugal Agreement of 6th Dec. 1945. On the international practi~e of adopting Standard Forms as basis of international agreements. See pp 76-78 infra.

29Lord Swinton, Addressing the British Parliament on Feb. 28, 1946. 11

air travel for the general good of mankind and the chea:pest rates consistent with sound economic principles; and to st1mulate international air travel as a mearls of promoting friendly under­ standing and good-w111 among peoples and ensur1ng as well the many indirect benefits of this new form of transportation to the common .welfare of both countries.

(2) Tl1.attthe two Governments reaffirm their adherenoe to the principles ud purposes set out in the preamble to the

Convention on International Civil Aviation signed at Chicago on the 7th December, 1944.

(3) That the air transport faci1ities available to the travelling public should bear a close relationship to the requirements of the public for such transport.

(4) That there shall be a fair and equal opportunity for the carriers of the two nations to operate on any route be­ tween their respective territorles (as defined in the Agreement) covered by the Agreement and its Annex.

(5) That, in the operation by the air carriers of either Government of the trunk services described in the Annex to the Agreement, the interest of the air carriers of the other

Government shall be taken into consideration so as not to affect unduly the services which the latter provides on all or part of the same routes. 14

(6) That it is the understand~ng of both Governments that services provided by a designated air carrier under the

Agreement and its Annex sha11 retain as their pr1mary objective the provision of capacity adequate to the traffic demands between the country of which such air carrier. is a national and the country of u1timate destination of the traffio. The right to embark or disembark on such services international traffic dest1ned for and com1ng from third countries at a point or points on the. routes specified in the Annex to the Agreement shall be applied in accordance with the general princip}es of orderly development to which both Governments subscribe and shal1 be subject to the general principle that capacity should be related;

(a) to traffic requirements between the country of origin and the countries of destination;

(b) to the requirements of through air1ine operation; and

(c) to the traffic requirements of the area through which the airline passes after taking account of local and regional services.

(7) That, in so far as the air carrier or carriers of one Government May be temporarily prevented through di ffi­ culties arising from the war from taking immediate advantage of the opportunity referred ta in Paragraph (4)above, the situation shall be reviewed between the Governments with the 15

object of fac111tating the necessary development, as soon as the a1rcarrier or carriers of the first Government is or are in a position increasingly to make theirproper contribution to the service.

(8) That duly author1sed United States civil air carriers will enj?y non-discriminatory "Two Freedom" privileges and the exercise (in accordance with the Agreement or any con- tinuing or subsequent agr~ement) of commercial traffic rights at ,airports located in territory of the United Kingdom which have been constructed in whole or in part with United States funds and are designated for use by international civil air carriers..

(9) That it ia the intention of both Governments . that there should be regular and frequent consultation between their respective aeronautical authorities (as defined in the

Agreement), and that there should thereby be close collaboration in the observance of the principles and the implementation of the provisions outlined herein and in the Agreement_nd'its Annex. 30

The Bermuda Agreement has now influenced civil aviation policy in Nigeria in two ways. Firstly, by operation of law,

Nigeria succeeded to this agreement on its attainment of statehood.31

30Final Act of the Civil Aviation Conference held at Bermuda, January 15 - February 11, 1946.

31 Chapter 3, infra. 16 ·e Secondly, the Nigerian Standard Form of Agreement though based

on the E.C.A.C;. Standard Form yet reflects some of the basic

articles in the Bermuda Agreement. 32 .

32Articles 7, 9 & 11 of the Nigerian Standard Draft are based on paragraphs 3, 4, 5, 6 & 9 ·of the Bermuda Final Act. 17

CHAPTER TVO

THE PROCESS OF MAKING AND EXECUTING TREATIES IN NIGERIA

General Constitutional Background

Before we begin with our examination of the procedure

for making and executing treaties in Nigeria, it would be appro-

priate if we explain what we mean by a "treaty", and mention

other descriptive designations which we have employed in this

dissertation to characterize a treaty. According to Lord McNair,

a treaty is na written agreement by which two or more states

or international organizations create or intend to create a re-

lation between themselves operating within the sphere of inter­

national law. nl In the Draft Articles On The Law Of Treaties

prepared by the International Law Commission, a tttreaty" is

defined in Article 2 as ttan international agreement concluded

between states in written form and governed by international

law, whether embodied in a single instrument or in two or more

related instruments and whatever its particular designation. tt2

lLord McNair, The Law of Treaties,(1961 Edition), p. 4.

2Reproduced in 61 (1967) A.J.I.L., 263 • • 18

From these definitions it would appear that a treaty is any international tran'saction which constitutes

(1) an agreement (2) in writing (3)between states or other international legal persons (4) with the intention to create legal relations and (5) international law being the applicable law.

We have however used in the following pages the terms "agreement",

"contract, ft ''Memorandum of Understanding", "Exchang~ of Notes" or "Ex change of Lettera", "Compact" and "engagement" interchange- abl,. with the word "t'reaty" to refer to those binding international obligations entered into by two sovereign states.

Furthermore we should mention that Nigeria has a federal type of constitution whicn derived its inspiration from those classical federal constitutions of the United States of America,

Canada and Australia. A common characteristic feature of this type of constitûtion' is that the internal organization arrange- ments and the division of powers between the constituent states and the federal government are clearly defined.

In Section 69 1 (1)(a) of the Constitution of the Feder- ation it is providedtha~ "Parliament shall have power to make lawa for the peace, order and good government of Nigeria (other than the Federal territory) or any part thereof with respect 19

• toany matter included in the Legislative l:l;sts~"3 The Legis- lativeLists are in two parts. Part l containe the Exclusive

Legislative Lists vith fort y five itemsover vhich only the

Federal government can legis1ate to thé exclusion of any other

authorities. in the federation. Part II contains the Concurrent

Legislative List over which either the federal government or

state governments can legis1ate. Tothis however there is a

proviso that "if any law made by the legislature of astate is

inconsistent vith a law valid1y made by Parliament, the law made

by Parliament shal1 prevail and the state law shall to the extent

of the inconsistency be void. n4

3The ConsU tution of the }'ederal Republic of Nigeria, 1963. No. 20. It should be pointed out that'" a Mi11tary Govern­ ment seized power in Nigeria on l6th January 1966. By the Con­ stitution (Suspension and Modification)Decree 1966, - certain provisions of the Constitution vere suspended; particularly those dealing with the office of President, the povers of Par­ liament and the office of Ministers. Other Decrees have been issued to amend, vary or abolish certain provisions of the Prin­ cipal Decree, (Decree No. 1) after the counter-coup of July 1966 vhen the form of Government estab1ished by Decree No. 34 was abolished. Briefly the legal position at present is that Nigeria is still a federation.Tbe..:)ulv81"8 of the President and Prime Minister under the Constitution are nov concentrated in the hands of the Head of the Military Government and Supreme Commander of the Armed Forces. The povers of Parliament are nov vested in a Supreme Military Council and a Federal Executive Council com­ posed of military and civilian members. The Republic of Nigeria i6 now made up of tvelve states instead of four Regions and the Federal Territory of Lagos. Each of the tvelve states nov exer­ cise such powers as vere formerly exercised by the Regions prior to 16th January 1966.

4Id• Sec. 69 (4). 20

While External Affairs power:: is specifically granted to the federal government in Item 15 of the Exclusive Legislative

List, ,the power:' to "make laws for Nigeria or any part thereof with respect to matters not included in the Legislative Lists for the purpose of 1mplementing any treaty, convention or agree- ment between the Federation and any other coumt,~ or any arrange- ment with or decision of an international organizat1on of which the Federation i8 a member," is granted in Section 74 of the

Constitution of the Federation.5 It 1s this section that provides the legal basis for the Governinent in acceding to the Chicago

Convention, 6 the Air Transit Agreement7' and the Warsaw Convention.

The proviso to this section however prevents the federal gover~ ment from exercising its powers under the section to take effect in a component State of the Federation unless the Governor of 8 that state has consented to its having effect in that state.

It 1s this proviso for example, among other things, which pre- vented the Federal government from ratifying certain Multilateral

Conventions su ch as the United Nations Convention on Consent

5 Id. Sec. 74. 6 U.N.T.S. Vol. ~09 p. 370. 7 Id at 3'72. 8 Q:g,. Ci t., Supra note 5. 21

Tb Marriages, Minimum Age For Marr1age And Registrat10n of Mar­ r1ages, or the ILO Convention On The Prevention of Discrimination

In Employment.

In view of the diff1culties inherent in Section 74, vis-a-vis the domestic legal order and Nigeria's international obligations. a special elaborate procedure has been formulated to coyer those instances where astate government intends to conclude an agreement with an international legal.person in re­ spect of matters within its legislative competen~e. To enable astate government accomplish its aim in this direction, it has to request the federal Government to conclude the agreement on its behalf. We shall illustrate this point by reference to the

U.N. Special Fund Agreement with Nigeria,9 concerning assistance from t~e Special Fund in certain projects. The Agreement pro­ vides that a "Plan of Operation" for each project shall be agreed in writing by the Government, the Special Fund and an Executing

Agency. Tobenefit from this Agreement, astate government sub­ mits to the Federal Government plans of particular projects it intends to carry out. Such plans or projects might involve the elimination of malaria fever, other forms of pests, 1llness affect1ng humans, plants or livestock.

9U.N.T.S. Vol. 390, p. 86. 22

In dealing with such projects, the appropriate Specialized

Agency such as WHO or FAO designated by the Special Fund as the

Ezecuting Agency enters into a subsidiary agreement with the

Federal Government and the state government as to the details of the "Plan of Operation." In this instance the status of a state government in such a tripartite agreement is similar to that of an individual in municipal law handicapped by a legal or moral disability and 1s therefore unable to enter into a valid contraot w1thout the sanction or counter-signature of its legal guardian.

With th1s constitutional background in view we now propose to examine the process of making and executing aviation treaties in Nigeria under the following headings:-

i Constitutional and Statutory Authority Concerning Air Transport ii Form of Agreements iit Negotiation iv Initialing, Signature and Ratification v Registration and Publication

Constitutional and Statutory Authority Concerning Air Transport

We discussed at some length above the constitutional position of the Federal Government as the only authority that can make treaties on behalf of Nigeria. Now we intend to. discuss the specifie civil aviation power in the Constitution. 2'3'

Powers to legislate over aviation. is grant.ed to the

Federal Government by virtue of Item 3 of the Exclusive Legis- lative List in The Schedule to the Constitution of the Federation.

Under this item, the Government can legislate in respect of

"Aviation, including airports, safety of airerait and ancillary 10' transport and other services." . In exercise of this power the

Civil Aviation Act 1964~1 wa3 enacted. Section l (1) of this

Act empowers the Minister to make by regulations such provision as appears to him to be necessary or expedient

(a) for carrying out the Convention on Inter­ national Civil Aviatiqn concluded at Chicago on the seventh day of December, 1944, any annex to the convention which relates to international standards and recommended practices and is adopted in accordance with the Convention, and any amend­ ment of the Convention of of any such annex which is made in accordance with the Convention; and "(b) generally for regulating air navigation".

Regulation of air transport covers a wide field of governmental functions, particularly where international air

Commerce i8 concerned •. These functions involve licensing of aircraft to engage in carriage of passengers, mail and cargo, regulation of customs, personnel licensing, airworthiness cer- tificate, radio and meteorology. Section l (2) of the Act sets

100p. Cit., Supra note 3, at p. 77.

111964, No. 30~ out in gre'at detail the areas over which the reguJ.atory powers

of the Minister may be exercised. These 'include the powers to make regulations.

"(a) as to the registration of aircraf~ in Nigeria;

(b) for prohibiting aircraft from flying unless certificates of airworthiness issued, or vali­ dated under the regulations are in force with respect to them and except upon compliance with such conditions as to maintenance and repair as may be prescribed;

(c) for the licensing, inspection and regulation of airports, for access to airports and places wher~ aircraft have landed, for the inspection of aircraft factories, and for prohibiting or regulating the use of airports which are not lieensed in pursuance of the regulations ;'

(d) for prohibiting persons from engaging in, or being employed in or in conneetion with, air navigation in such capacities as may be pre­ scribed unless they satisfy the preseribed requirements, and for the lieensing of per­ sons employed at airports in the inspection, testing or supervision of aircraftr

(e) as to the conditions under whie~and in par­ ticular the airports to or from whieh, air­ eraft entering or leaving Nigeria may fly, and as to the conditions under which aireraft May fly fr0m one part of Nigeria to another;

(f) as to the conditiqns'under which passengers and goods May be carried by air and under which aircraft may be used for other gainful purposes, and for prohibiting the earriage by air of such classes as May be preseribed.

(g) for minimizing or pre'venting interference with the use or effectiveness of apparatus used in connection with air navigation, and for prohibiting or regulating the use of sueh apparatus and the diaplay of signa and lights liable ta endanger airerait;

(h) generally for seeuring the safety, effieiency andregularity of air navigation and the safety of aireraft and·of persons and property earried in aireraft, and for preventing air­ eraft from endangering other persans and property;

. (i) for requiring persons engaged in, or employed in or in conneetion with, air navigation ta supply meteorologioal information for the purposes of air navigation;

(j) for regulating the making of signals and other communications by or ta aircraft and persans carried in aircraft;

(k) for instituting and regulating the use of a civil air ensign and any other ensign established by the Minister for purposes connected with air navigation;

(1) for prohibiting aireraft from flying over such areas in Nigeria as may be prescribed;

(m) for applying, with or without modifications, the enactments relating ta customs in r~lation ta airports and to aircraft and to pers ons and. property carried in aireraft;

(n) as to the manner and conditions of the issue, validation, renewal, extension or variation of any certificate, licence or other document required by the regulations (including the examinations and tests to be undergone), and as to the form, custody, production, eaneellation, suspension, endorsement and surrender of any sueh document;

(0) for the registration of births and deaths occurring in aireraft and of particulars of persans missing from aircraft; 26

(p) for regulating the charges that may be made for the use of.a~rports licensed under the regulations and for services provided at such airports;

(q) for specifying the fees to be paid in respect of the issue, validation, renewal, extension, or variation of any certificate, licence or other document or· the undergoing of any examination or test required by virtue of the regulations and in respect of any othen' matters in respect of which it appears to the Minister to be expedient for the purposes of the regulations to charge fees;;

(r) for exempting from the provisions of the regulations or any of them any aircraft or persons or classes of aircraft or persons •. "

We shouldpoint out that regulations made in exercise of these powers are subsidiary or delegated l~gislations and are 12 of equal validity as an Act. There is no doubt therefore that

~n vlewof its External Affairs powers, Treaty Making powers and the specifie Aviationpowers, the Federal Government ls the only authority in Nigeria that can conclude aviation treaties with foreign government s •.

Form of Agreements

Air Transport Agreements generally appear in three forms. The first and most common form is that of an inter-

l2For details of the administrative law rules governing delegated legi slations, See J;.A.G. Griffi ths and H. Street, Principles of Administratiye Law (3rd edition), pp. 32-75; see also S.A. de Smi th, Judic'ial Review of Administrative Action (1959 Edition), pp. 27-34. governmental agreement. This is in contra-distinction to an

agreement in t'he t'He,ad of State" forme The regu1ari ty wi th whi ch

Air Services Agreements are conc1uded by various countries,

particularly countries such as the United States, where a dis-

tinction is made between treatieà which ca11 for certain pro-

cedura1 requirements such as approval by two thirds majority of

the Senat~ and executive agreements which ,do not require such

congressional approva1, makes an executive agreement in inter- governmental form preferable. 13

The second fom in which Air Agreements are concluded ls by Exchange of Notes between two Foreign Mlnistries. This practice is particularly useful in amending, mOdifying, or clari- fying an earlier agreement.. The practice of concluding bilateral aeronautical agreements by Exchange of Notes has not been adopted hitherto in Ni~eria. However during the formal signature of the Nigeria-Sweden Air Agreement, Diplomatie Notes were exchanged between the accredited representatives of the Contracting Parties to clarif'y some provisions in the Agreement .. 14

13See Charles Cheney Hyde, International Law Chiefly as Interpreted And Applied By the United States (1962 EdItIon), Vol. 2, pp. 10-34, and the authorities referred to in the foot­ notes. See also McNair, op. cit., supra note l, at pp. 63-65; cf.C,e11v.r~ ll.isBI\Z,n, The Leal Status of Executive A reements on Air Transportation, 17 J ~ Air L. & Com. 436 1950;; 18 J. Air L. & Com. 12 (1951).

l4See appendix 1. 28

A third practiceis by an ad-hoc arrangement whereby a fore~gn government or its designated airline is granted pro- visional permit or licence to engage in international air trans. portation to or from a.ter~itory. This practice is provided for tn. thl Civil Aviation (Air Transport)(Licensing) Regulations,15

1965. Section 8(1) prov,ides that .

The Minister may if he thinks fit, pending the - determination of an application for a. licence, or a negotiation for a bilateral agreement grant to the applicant a proviSionaLltce!1c.:,td~u8.::in Nigeria for the carriage of passengers; mail or cargo for hire or reward such aircraft, on such scheduled journeys (being journeys of a kind to which the application relate·s) subject to such conditions as may be specif1ed respectively in such provisional licence.

Section 8(2) gives. the duration of "any provisional licence so granted." Such licence "shall remain in force until the appli- cation is determined but on such determination sha11 come to an end." ,In 'Section 8(3) it .is provided that "any provisional licence may if the Minister thinks fit be limited to the carriage of passengers or to the carriage of cargo."

Nigerian practice resembles that of the U.S. in one important respect; that is, Air Services Agreements are treated as executive agreements •.

l5Legal Notice II of 1965, at p. B45. 2'9 .

No pr!1ctica1 1ega1 effect attaches to the form in

which an agreement is drafted. In theory an executive agree-

ment requires no ratification by the 1egis1ature except rati-

. fication by the executive if so required by the particu1ar agree-

ment. An agreement in a "Head of State" form however requires 16- no ratification at a11.. Such a form was adopted in the Air

services Agreement between Nigeria:. and Liberia. This agree-

ment has one distinctive feature. The parties were referred

to as "The High Contracting Parties". This 11:. the on1y Air

Transport agreement entered into by Nigeria that ia drafted in

this forme

Another' striking feature of the agreements conc1uded

by Nigeria between 1962 and 1966 was the various changes in

the constitutional designation of the government. During thls

period the country went through various constitutional changes.

It passed from a ~onarchia1 form of ~overnment to become a

Repub1ic. Now it haa a mi1it~ry Government. For examp1e, the

"7 agreement,with Switzer1and"", refera to the government of Nigeria

as "The Government of the Federation of Nigeria", indicating

that the agreement was conc1uded or signed when the country

had a monarchical form of government. The agreemenœwith

16McNair, op. cit., Supra note 1 at pp. 129-143; see a1so J. G. Castel, Internationat Law, pp. 825-835~ e 17ICAO • Reg. No. 1840. JO

18 19' U.A.R.,and Togo refer' to the Nigerian government as "The

Government of the Federal Republic of Nigeria", signifying.a period of Republican government. The agreement with Sweden~20 21 22 Norway and Denmark refers to the government of Nigeria as

"The National Mili tary Government", .indicating a period of military rule under aunitary form of government.

It may be stated that in international law no particular inci·dence attaches to a change in the name, style or designation of a government. This is a matter that is governed by internaI, domesti c const! tuUonal law of indi vidual states. What is of interest to inte:r.national.law or the communi ty of S.tates is that a government exist in fact and in lawin success-ion to a 23 previous one with which it can deal.

Negotiation

The primary'responsibility for t~e initiation of negotiation of bilateral Air T'ransport Agreements is that of

18rcAo • Reg. No. 1863.

19r CAO. Reg. No. 1864.

20ICAO • Reg. No. 1920.

21ICAO. Reg. No. 1921.

22 rCAO • Reg. No. 1922.

2;J • G. Sta:tke, Introduction to International Law, Ch. 8 (5th Èdition 1963). j , " :31

the Ministry of Transport. Nevertheless, the Ministry of External

Affairs, acting within its general responsibility for maintaining friendly relations between Nigeria and foreign countries May put pressure on the Ministry of Transport to open negotiations with any country. Thirdly, a foreign Government or airline desirous of operating scheduled international services to Nigeria can approach the Ministry of Transport through diplomatie channels for formal talks leading to the conclusion of an agreement.

The Ministry of Transport usually insist on negotiating agree­ ments with all countries whose flag carriers operate to Nigeria, even if an airline has alr~ady been granted a provisional licence to operate scheduled international services. The reason for this insistence is clear. A provisional licence is a temporary authorisation to operate a service. The duration of such licence is usually for six months. It May, however, be renewed pending 24 the conclusion of an agreement.

Prior to negotiations, the Ministry of Transport holds consultations with Nigeria Airways, and other interested Min­ istries su ch as Customs, External Affairs and Justice. The views of these Ministries are taken 1nto consideration in drawing up a brief for submission to the Cabinet for approval, and which will form the basis of the negotiations. Once a brief is approved,

240p• Cit., Supra note 15, Sec. 8(1). ne1ther the M1n1stry of Transport, nor the delegates to a Con-

ference will alter or deviate trom the instructions in such

a briet without the express permission or other authorization

of the Council·ot Ministers.

A briet is a confidential document whose contents:

vary trom one country to another. As a matter of pra'ctice i t

is prepared with an eye on the relative strengths of the air-

ltnes of the two countries, and the degree of friendly under-

standing or co-operation existing between the two governments negotiating thebilateral air agreement, particula~~,in other areas outside the aviation. field.

Generally a brief may specify or re-state

(1) the civil aviation policy of a country;

(2) the type of agreement that is envisaged;

(3) the Draft Agreement that will form the basis of the negotiations~

(4) routes desir~;or alternative routes if desired routes are not secured;

(5) routes which the other Party might probably desire judging from its aviation policy, the previous practices of its flag carriers and a reasonable prognosis of its future operations in the light of the air travel market in that ares ·generally;

(6) guid pro guo.

We may at this stage, and in relation to the preceding

paragraph define Nigeria's civil aviation policy. As we :ll!ldicate ------......

in Chapters 1 and 3, Nigeria succeeded by operation of law to the Bermud& Agreement. Nevertheless, judging trom the Standard Draft on which Nigeria bases her bilateral air transport negotiations,25 and the consistency with which it has adhered to it in all her agreements, it is clear that she favours'a policyof predeter- mination . '26 of capacity. This policy has been described as an arrangement whereby the Itaeronautical authorities of the Con- tracting Parties, before ,the servi ces are actually inaugurated by agreement fix in advance, in accordance with the principles governing capacity laid down in the agreement, the actual capacity to be made available, and thereafter continue to keep the matter under constant review and their direct control. The airlines are not allowed to exceed .this 1 predetermined capacity, except temporarily and by agreement between themselves to me et any un- expected traffic demanda of transient character, but any such increases must be reported 'forthwith to the competent aeronautical authori ties which may confirm or modify them. Once " , the ini Ual capacity has been determined, the designated airlines ofboth

25See Art. 9 of the Standard Draft in Appendix 2. 2S This might be one other why justification in our view the Bermuda Agreement in so be far as it affects Nigeria should terminated by agreement or re-negotiated flag carriers either to bring U.S. in line with other operators reflect the present to Nigeria, or to status of the country •

...... ------" .. ,.

sides will then agree on the actual load factor and frequenoies. These are subject to the approval of the two states. A rigid governmental control is thus exerci.sed. "27

When a date and ~enue for negotiations have been fixed, a negotiating team is assembled under the leadership of an officer

not below the rank of Deputy Permanent Secretary. According to our administrative practiae,.only officers of such ranks and

above have authority to negotiate, initial or sign a document binding on the Nigerian Government. .

Initialing, Signature and Ratification

State practice in Nigeria distinguishes between initialing and ·signature of international agreements. In Nigeria the dele- gates to a Conference or negotiations fo~ an Air Transport Agree-· ment are not issued with Full Powers or Credent;i.als to sign an agreement at the conclusion of a Conference. The only authorization which the Chairman ot a delegation has ls to initial the agreed text of an agreement. However he also has authority to sign any agreed minutes or Communique if any were issued at the close

ot a Conference. To this extent the authority of a negotiating team to bind the government iB only as to the text of an agree- ment. The reason for this limitation on the authority of delegates

27Bin Cheng, The Law of International Air Transport p. 424 ..

• is because the text of eyery agreemen·t must besubmi tted as soon

as poss~ble to the Counç11 of Mints,tersfor approval, together

wi th a full report of the proceedings of the Conference at· wh1ch

suqh agreement was negotiat'ed.

·At this stage the ·Council of M1nisters has the final

responsibility to cons.ider the whole agreement, and may even

propose amendments for clearance through diplomatié channels.

If, sfter such consideration the Council of Ministe~s is satisfied

that:

(a) the negotiation has been fair and reasonable,

(b) the Attorney-General and Minister of Justice has no objections,

it will then authorize the Minister of Transport or any other member of the Cabinet to ~ign the agreement on behalf of the

Nigerian Government.

Where an agreement provides for ratification, the

Minister of External At'fatrs may be authorized within the period

stipulated in the agreement to ratify it on behalf of the Govern- ment by Exchange of Notes.

Registration and Publication

As·we indicate below,28 bilateral Air Transport Agree­ ments are supplementary to the Chicago Convention 1944. It is

28 Infra, p. 78. also reasonable to infer that as far as registration and publi- cation of aeronautical agreements are concerned Articlè 83 of the Chicago Convention and Article 102 of the Chartèr of the United Nations are comp1imentary to eaéh other. Article 102 of the Charter provides that:

1. "Every treaty and every international agreement entered

into by any Member of the United Nations after the pr.esent

Charter comes into0force shall as soon as possible be

registered with the Secretariat and published by it.

2. No party to any such treaty or international agreement

which has not been registered in accordance with the

provisions of paragraph 1 of this Article may invoke

that treaty or agreement before any orgari of the United Nations •. "

Article 83 of the Chicago Convention also has simi1ar provision té the effect that:

tlany Contracting State may make arrangements not inconsistent w~th the provisions of this Convention. Any such arrangement shall be forthwith registered vith the Council, vhich sha1l make it public as soon as possible."

On completion of the necessary formalities about sig- nature, ei ther Contracting Party can take steps t'o'.' forward certi- fled true copies of an agreement to the Secretariat of 1CAO for registration. There lB, however, no standard practice as to • the number of certified true copies astate is expected to for- ward to IOAO-. Usually, one or two copies an regarded as sufficient.

We may comment here on the general practice of states concerning

certification of true copies of agreements. In the United StSi.tes

certification is a function of the Secretary of State. In the

United Kingdom, certification ia done under the Statutory Instru-

ments Act. Under this Act·a copy of the U.K. Treaty series in

which an agreement is published is forwarded to lCAO. In Malaya

certification ia done by affixing a simple stamp marked tlcertified·

true copy" on a facsimile of an agreement, dated and initialled

by a responsible official ·of the government. Nigeria follows

the U.K. practice.

Publication of agreements is the responsibility of

the Secretary-General of ~he UN. These appear from time to time

in the Treaty Series published "6y the organization •. 29

29As to the practice of different States in the negotiation of treaties see further U.N. Legislative Series, Laws and Practices concerning the Conclusion of TreatiesJ ST/LEG/SER.B/3 December 1952. See also Rules for Registration with ICAO of Aeronautical Agreements and Arrangements (Annex to lCAO Doc. 8388-LGB/202adopted by the Council on lst April 1949. 38

CHAPTER THREE

THE AGREEMENTS INHERITED BY NIGERIA

The legal problems created by the independence of colonial terri tories have evok.ed considerable interest in recent years. This interest concerns the extent to which the new States are bound by agreements concluded by the Metropolitan powers.

'lie prop'ose to examine this probleJ:ll in some detail wi th reference to aeronautical agreements concluded by the United Kingdom and made applicable to Nigeria.

On the date of Nigeria1a independence there was an . 1 . Exchange of Lettera between the High Commissioner of the United

Kingdom to Nigeria and the then Prime Minister of Nigeria, the late Sir Abubakar Tafawa Balewa. The effects of these lettera were to transfer to Nigeria all the rights, duties and obligations arising from treaties.entered into by the United Kingdom and made a~plicableto Nigeria. The extent of the rights, duties and obliagions so incurred were not immediately realized. Up

lThe Letters were published simultaneously on lst October,. 1960 in Lagos and London: See "Federation of Nigeria International Rights and obligations. Exchange of Letters be­ tween the Government of the United Kingdom and the Government of the Federation of Nigeria. 1I Cmnd 1214. H.M.S.O; U.N.T.S. Vol. 384, p. 207. 39

till now it would appear that the extent of these obligations 2 are sU.ll unknown, and doubts exist as to whether Nigeria:. is

bound by the~lon the attainment of Statehood. Our intention

in this chapter is to identify aeronautical agreements fa1ling

within this indeterminate group of treaties and .evaluate their

continued application by -the interested parties.

The Foundation of Legal Order in the Yor1d Community

State succession to treaties entered into by Metro-

politan Powers and applied to their Colonial possessions reappeared as a life issue and in a new form with the independence of India 3 and Pakistan in 1947. This was soon fol1owed by Burma and

Cey10n in 1948. With the independence of Ghana_in 1957, the

"wind of change"4 policy of the United Kingdom and the emergence

of General De Gaulle in France in 1958 aIl combined to 1aunch

the deco1onization process in Africa. Today, there are almost

sixt Y Afro-Asian members in the United Nations.

2Federal Repub1ic of Nigeria Official Gazette No. 77, Vol. 52, Government Notice No. 1881 of 7th October, 1965 at p.~600.

3The.Indian Independence Act, 1947 (10 & 11 Geo.6c.30) See also The Statesman, l7th, July 1947; U.N. Press Release, P.M.473, 12th August, 1947; N.Y. Times 12th August 1947.-

4The phrase was used by Prime Minister Harold MacMillan defending British Policy before ·the South African Parliament in an address in 1960. See Commonwealth Survey 1960, pp. 125-129. 40

With the exception of India who was an original sig­

natory to the Charter of the United Nations,5 all the new states

have become members of the new international community by adher-

ence t.O the Charter. Many of these new states have fi1ed "~e-

clarations Accepting the Compulsory Jurisdiction of the Inter- 6 national Court of Justice" which by its statute shall apply

in matters of dispute among such signatories or declarants,

(a) international conventions, whe~hergeneral or particùia~,

establishing rules expressly recognized.by the contesting

states;

(b) international custom, as evidence of a general practice

accepted as law;

(c) the general principles of law recognized by civilized

nations;

(d) subject to the provisions of Article 59, judicial de-

cisions and the teachings of the most highly qualified

publicists of the various nations, as subsidiary means

for the determination of rules of law~7

5See U.S. Dept. of State Publication 2368, pp. 1-20.

6UNTS Vol. 137, p. 8;; Vol. 163 p. 117; Vol. 277 p. 77;­ Vole 252 p. 301; Vol. 2B4 p. 215; For Declaration filed by Nigeria: See U.N. ~eoretary (JOneral"s Report 1966 Supplement No. 1(A/6301) . at 151. U.N. Gen~ Ass. Off. Rec. 2lst Sess.

7Art • 38(1) Statute of the I.C.J. 41

Without questioning the basis of the legal order both

in the United Nations and the international community to which

they have,entered, these new states now eonduet their international

affairs ineonformity with the traditions of state intercourse

whieh "has its beginning about the middle of the Sixteenth eentury 8 in We·st ern Europe. No new state now would, for example, deny

the eustomary right of the invlolability of a Diplomatie Envoy . 9 . and his retinue. Under the pr~sènt world legal order tne cus- 10 Il tomary right of legation'7 the reception of aliens, the 12 right of asy1um and the dut Y to pay compensation for expro-

priation of properties ·of foreign nationa1s are now accepted

facts of life in international law and relations among states.13

It is in the light of aIl these customary rules of

international law that it is proposed to examine the effect.of

independenee. on aeronaut ieal agreements concluded by the United

8Roscoe Pound-Philosophieal Theory and International Law (1 Bibliotheca Visseriana, 1923). Also Schwarzenberger, A Manua1 of International Law (3rd Edition), at 166.

90ppenhèim, International Law 8th Edition by Lauterpaeht Vol. l at 788-792; 899-813. N.Y. Times of November 1966 reported that the Mi1itary Regime in Ghana arrested the Foreign Minister of Guinea and his entourage whi1e in transit in an Amerieanregis­ tered aircraft making a scheduled stop over at Accra. The diplo­ matie furore resulting from this incident has now been settled.

10Id. at 773-775 •.

11Id• at 675.

12Asy1um Case (1950) I-C-J Rep. 266.

13Nationality Decrees in Tunis and Morocco (1923) P.C.I.J .. ~ Sere B4. at 27. (Advisory Opinion) 42'

Kingdom and made applicable to Nigeria.

The Theory of State Succession

The influence of Grotiu,s in the development of inter-

national law from the analogy of the law of nature is already weIl known. To him also ~elongs'the unique distinction of first introducing the theory of state succession into the law of nations.14 This theory which Grotius himself borrowed from the Roman law

concept of heres was,later adopted andmodif1ed by subsequent wri ters 15 ) •. Just as in Roman pri vate law' the heir succeeds to aIl the rights ~nd obligations of his ancestor, so it was argued that in the same way a state in international,law succeeds to the rights and obligations of lts predecessor. It ls this product of Roman law which has now permeated and influenced the develop- ment of international law on tho'se occasions when a change of sovereignty occurs. It is surprising to note, however, that in spite of the unquestionably logical basis on which this doc- trine rests; authoritative writers and scholars disagree on the true application of this doctrine in internationallaw.

l4Crotius, De jure belli et pacis, lib ii Cap. IX, tit. XII - Publication's of Carnegie Endowm.ent for International Peace, in the series Classics of International law •.

15Pufendorf, Vattel, Despagnet, Wheaton, Phillimore and Kent in his Commentary on International Law 2nd Edition. 1878, Vol. 1 at 25. Cf. D. P. O'Connell, 1he Law of State SUs­ cession published in the series Cambridge Studies in International and Comparative Law 1956. 43

One school of thought acoepts this doctrine without reser~ation. Among the members of this group is Halleck in whose submission:

Complete conquest by whatever mode it may be per­ feoted carries'with it aIl the rights of the former government; or in other words the .conqueror by the completion of his conquest becomes as it were, the heir and universal sucoessor of the defunct or extinguishe4 state.~6

Hall also shares the view that:

When a. state ceas'es to exist by abso'rption in another state, th~ latter in the same way 1s the inheritor of aIl local rights, obligations and property •.17

Commenting on the position of a territory whic;h has won its independence, he observes further thatt

Rights possessed in respect of the lost territory, including obligations contracted with reference to it alone, and property which is within it, and has therefore a local character transfer them­ selves to the new state person.lB

An exhaustive examination of this subject was done by Arthur Keith in a treatise written at the beginning of this

16 Halleck, International Law 4th Edition Vol. Il ch. 34 Sec. 27 at 530.

17W.E.Hall, A Treatise on International Law ( 7th Edition), Sec. 29, p. 101.

l8Ibid• 44.

, 19 century. In his examination of this subject he made copious

references to treaties, text writers and the contemporary practice

of states at the close of the 19th century and the firat decade

of this century. Keith took the view that:

Cession in itself creates only a singular succession, that is a succession to rights and not to liaèilities ••• In any case in which the question should be judged is that of a succession to rights and not to li­ abilities. Buch a succession ls really merely a substitution without any. contin~ity.

He submits further that

the true doctrine of international law with regard to the annexation of states is that the annexing Powen seizes aIl the rights in the country and its material resources, but it does not succeed to the obligations of the conquered government nor to such rights as were personal to that govern­ ment •.

Before proceeding further with an examination of this

theory in its application to Nigeria it is essential for clart- fication to define what is meant by 'State' in customary inter- national.law; analyse the attributes of statehood, and find out

Reference Bince the end of the second world war international law and morality have assumed a different standard of comportment from the archaic power politlcs of the 19th Century. The emergence of new nations have tended to accellerate the crystallization of a new code of international law and mo~lity. Colonialism or annexation of territories by force of arms is now anathema to right thinking people. The usefulness of Arthur Keith's thesis ls in my view of doubtful validity in the context of the twentieth century. See U.N. General Assembly Resolution 1514 (XV) of 1960. 45

whether those external manifestations of statehood are an in-

dispensable accoutrement of international personality particularly

with the events of lat October, 1960 when Nigeria waSdeemg4 to

have inherited among others some Bilateral Air Services Agreements

concluded by the U.K. Oppenheim defines astate incontradistinction

to a colony. To him four essential characteristic8 must pre- exist in astate. These are people, country, government and

sovereign. He goes on· to define sovereignty as

Supreme authority, an authorit, which is inde- . pendent of any other earthly authority. Sover­ eignty in the strict and narrowest sense of the term implies, therefore, inqependence all .round~ within and without the borders of the eountry.2u

A definition similar to that of Oppenheim is provided by Dieey. He re.gards sovereignty as "power of law-making un- 212. restricted by any legal limit."

Westlake however takes a totally different view of the subjeet and holds that nit is not neeessary for astate to be inde pendent in order to be a state in international law. tt This view has gained some prominence in recent years and has been adopted to explain the curious position of India before her 22 indépendence in 1947. India was a signatory to the Peace

200ppenheim, op. cit., Supra note 9 at pp. 118-119. See further the definition of "state" in Article 1 of the Monté­ video Convention on the Rights and Duties of States. L.N.T.S. Vol. 165 at p. 25.

21Dieey, Law of the Constitution 9th Edition (1939), p. 429.

22Sen, The Partition of India and Succession in Inter­ national Law, Vol. 1 (1947) The Indian Law Review, p. 190. 46 -e Treaty of Versailles after the end of the first World War. She

was a member of the League of Nations, a participant in the San

Francisco Conference, and an original member of the United Nations,

even though in legal theory she was a colonialdependency of

Britain. Further justification for the view of Westlake is to

be found in the present status of the innumerable international

institutions which has been set up after the .last world war.

Even though these international institutions do not fall within

the customary definition of subjects of international la·w, never-

theless, by the complexity and magnitude of their functions it

has been found necessary to attribute some juridical personality

to these new entities, for the efficient discharge of their day

to day operations. As the court said in the Reparations case:

whereas astate possesses the totality of inter­ national rights' and duties recognized by inter­ national law, the rights and duties of an inter­ national organisation must de pend on its purposes and functions as specified or implied in its con­ stituent docume~ts and developed in practic. 23

Another relevant criteria to bear in mind in under-

standing the legal- status of ~igeria is that provided by a former

Judge of the Permanent Court-of International Justice Bustamente

Y. Sirven. He identified three different manifestations of

external sovere.ignty, namely

23Reparations for Injuries Suffered in the Service of the United Nations (1949) I.C.J. Rep. 180. 47

(1) nomination of diplomatie representatives and consular agents

(11) conclusion of treaties; and

(i1i) parti c1pation in international conferences, which 1s the most frequent form of the exercise of independence and one of the tests for decid1ng which states are in actual enjoyment of such author1ty.24

There i8 no doubt that on lst October 1960, when Britain re1inquished a11 authority over Nigeria, and the country was deemed to assume a11 the international obligations of the United

Kingdom, Nigeria vas already a state in international law.

Having brietly examined the modalities by which Britain divested herselt of al1 authority over Nigeria, it is equally essentia1 to mention the different forms in which changes of

Sovereignty might occur. In customary international 1aw, change of sovereignty from one state to the other might take place either by annexation, cession, emancipation, formation of a union or federation. ~In the case of the United Kingdom vis-a-vis Nigeria 26 change of sovereignty25 took the form of emancipation as has been shown above. The writer feela that in the context of this

24Three Derecho International Bublic. French Edition Vol. 1, p. 240.

258_9 Eliz. II C. 55 p. 638.

26For a detailed study of this subject see Oppenheim, op. cit., supra note 20, at pp. 543-581; also D.P. O'Connell, International Law Vol. l, pp. 423-426. '" 48

chapter it is irrelevant and unnecessary to go into a detailed examination of the remaining traditional modalities of change of sovereignty, apart from the brief reference made to them here for fullness and clarity.

From the discussion so ~ar pursued in this chapter.', the following proposftions of law emerge:

(a) That on a change of sovereignty astate suc­ ceeds to a totality of the rights, duties and obligations of its predecessor

(b) That a state s.uc~eeds on a change of sover­ eignty to only the rights of its predecessor but not the duties

(c) That astate inherits the duties and obli­ gations of ita pr-edecessor but not its rights

'(d) That astate does not inherit any rights, duties or obligations of its predecessor but instead begins its life anew unsaddled with any commitments

(e) That Nigeria became an international person on"lst October 1960 by Act of the United Kingdom Parliament, and thus became capable of exercising international rights and duties.

The outstanding question we have to answer is whether

Nigeria automatically was subrogated to all the contractual rights and duties of the United Kingdom entered into as Sovereign of

Nigeria prior to her attainment of statehood. In finding a solution to this problem one has to bear in mind that the issues involved goes deeper than a superficial succession to international rights and duties. Viewed realistically against the background of the 49

new international society, with its delicate problema·of attracting foreign investment and capital to the new countries, the importance of maintaining triendly relations with other states, responsible

state officiaIs in new countries must exercise their ~reference of one or the other of these propositions vith caution. With these realizations in mind, it is proposed to examine the practice of other states vith regard to the general problem of state suc-

cession in order to determine wheth~r Nigeria could be said to be bound by the "Exchange of Letters.,,27

State Practice

There is a feeling among the older nations today, that the new nations may not conduct their affairs in conformity with traditional practice. There is also the fear that the new nations in order to avoid obligations devolving on them may resort to 28 the rebus sic stantibus doctrine. Furthermore it has been suggested that the admission of new states to the Community of . 29 nations would upset the established arder of international society.

27 Note 1 Supra.

28H.W. Briggs, Rebus sic stantibus Before the Security Council; The Anglo Egyptian Question 43 (1949) A.J .I.L. 762-769.

29Alwyn V. Freeman commenting on Professor McDougal's "Law and Minimum World Public Ordertl in 60 (1966) A.J.I.L. at page 712 observes as follows: "What McDougal and Feliciano have chosen as the object of their expertise ia essentially an attainable 50

These suggestions however, have not been 'justified by current practice of any of the new nations. As has been indicated abov.e, no new nation that 1s genuinely concerned with ;he overall problems of raising capital for economic development and improve the standard of living of her population would resort to irrational conduct and

~;hus jeopardize the friendship of the older nations. However i t is in respect of those aspects of international law that are largely unwritten and èonsequently appear to be a mixture of code of conduct for evolved responsible' governments. Yet those who attàch some importance to pragmatic analysis will be disturbed by the failure to take sufficient account of the upheaval in international society which has occurred si'nce the second world war. Too little way has beeri given to the devastating inroads which the myth of universality has chiseled into the very found­ ations of traditional international law. Some it ls true, appear to regard this as a good thjng; bUt a complete evaluation must impeach the practice of admitting into the society of Nations primeval en~ities which have no real claim to international status or the capacity to meet international obligations, and whose primary congeries of contributi3onsconsists of replacing norms serving the common interest of manking by others releasing them from inhibitions upon irresponsible conduct. In this pursuit they have been aided and abetted by the so-called socialist camp, whose parallel objectives are motivated by a somewhat different inspiration. A further consequence has been to impair respect for that rule of law whose primacy is. essential to a minimum world order of hum an decency. To an impartial observer rarely encountered though he might be -- it should be apparent that the development of international law as a code of responsible action in the advance of human values has hardly been expedited by abandonment of prior standards. An indignified compulsion to admit these entities as full-bloom members of the international society upon achieving "independence" has impeded, not advanced, the emergence of a mature code of conduct. Cf. for a rejoiner by Richard A. Falk in 59 (1965) A.J.I.L. 66. policy, and conven1ence that represent the real danger. 30 In

this group falls state practice concerning devolut1on of rights

and obligations on a change of sovereignty.

(A) Great Britain:

The contribution of the United Kingdom to the develop-

ment of international law and legal order cannot be doubted and

therefore requires no recital here. However British conception

of her obligations in the realm of State succession on changes

of sovereignty i s rather flexi ble •.;l This becomes more so when

legal opinions of Law Officers of the Crown are disregarded for

policy considerations. In the famous case ~2 arising out of the

annexation of South Africa in 1900, the Colonial office set up

the Transvaàl Concessionairee, to advise the Government whether

it was obliged to pay compensation to the holders of such con-

cessions. The Commission stated the law applicable in the fol-

lowing terms:-

30This explains some of the reasons why the new states have insisted that the rules of international law be codified and modernized in order to relieve it of those anachronistic principles that are now nothing more than relies of a bygone age. Cf. Ed~rd McWhinney, "The "New" Countries and the "New" International Law: The United Nations Special Conference on Friendly Relations and Co-operations among States" 60 (1966) A.J.I.L.I. 31 Supra. n. 30.

32west Rand Go1d Mining Company V. The King (1905) 2 K.B. 391. 52

We doubt whether the d\~ties of an annexing state towards those claiming under such concessions or contracts granted or made by the annexed state have been def,ined wi th such precision in authori­ tative statement, or acted upon with such uni-, formity in civilized practice, as to warrant 33 their being termed rules of international law .... Ve are convinced that the pest modern opinion favours the view that, as a general rule, the obligations of the annexed state towards private persons should be respected.

The Commission concluded that this general rule is a rule of

tt 34 ttethics rather than of Law •

This view'of the Commission was contrary to the opinion of the Law Officers of the Crown who advised as follows:

'A Government annexing territory after conquest, so annexes it subject, speaking generally, to su ch legal obligations as have been incurred by the previously existing Government l~efore the outbreak of war, and not from their nature con­ ditional on the continued existence of the ter­ ritory as an independent state.' The Law Officers also disapprove of the view of the High Commission that it would be open to Her Majesty's Government, acting upon any recognized principle of inter­ national law, to repudiate responsibility for all the o:êllga:t;ioll'B incurred by the Governments of the South African Republic, and the Orange Free S,tate. Within the term 'obligation' theY35 specifically included concessionary contracts.

33Supra note 30.

34It should be remembered that this passage was written in 1900. Since the second world war and the holocaust of the Nazi era in Germany there has been a re-examination and a re­ evaluation of the traditional approach of lawyers to the posi­ tivist theory of law. See Lord Devlin, The Enforcement of Mo~ls, 1959; Cf. the debate between Professor H.L.A. Hart and Lon L. Fuller,"Positivism and the Separation of Law and Morals" (1957-58), 71 Harvard Law Review 593; "Positivism and Fidelity to Law (1957-58) 71 Harvard Law Review, 630.

35British Foreign Office Confidential Papers (~5l6), No. 22A reproduced in full at page 396 of D.P. Q'Connell's, The Law of State Succession 1956. 53

Decisions of British municipal and Colonial Courts,

too, do not give any clear principle from which one could infer

a legal basis for British State practice. In the case of West 36 Rand Central Gold Mining Co. V The King an action was commenced

in the Kings Bench Di vision to ob tain return or compensation"for

its equivalent in money of certain bars of gold seized from the

plaintiffs by the Government of the Republic of South Africa.

The plaintiffs Case was that by virtue of the annexation of South

Africa, Her Majesty' s Government, having succeeded to the Sover-

eignty of those terri tories ipso facto succeeded to all the rights

and obligations of the preceding Sovereign. It was also argued

at the trial that as the bars of gold had been illegally seized

by the previous government, Her Majesty's Government was bound

in law as the successor sovereign to make good the default of

her predecessor. The plaintiffs relied on a number of precedents

among which was a dictum of Marshall C.J. of the U.S. Supreme

Court that:

It is very unusual even in cases of conque st for the conqueror to do more than to displace the Sovereign and assume dominion over the country •. The modern usage of nations which has become law would be violated; that sen~e of justice and of right which is acknowledged and felt by the whole civilized world would be outraged, if private

36 note 32 Supra.

8 54

property should be generally confiscated and private rights annulled.,37

It was argued on behalf of the Respondent that,rthere is no principle of international law by which a conquering state becomes ipso facto liable to discharge all the contractual obli- gations of the conquered state~ Lord Alverstone C.J. finding for the Respondent held that

there is no principle of international law by which after annexation of conquered territory, the conquering st~te becomes liable in the absence of expr'ess stipulation to the contrary, to cÎis­ charge financial liabilities of the conquerred state incurred before the outbreak of war. 38

A look at one case from another jurisdiction would confirm the flexibility of British practice on this subject.

In the case of Amodu Tijani- V Secretary Southern Nigeria39 the

Judicial COmPlittee of the Privy Council was confronted with an application by the Aypellant Amodu Tijani for compensation to be paid to him for 108s of usufructuary title resulting from the cession of Lagos to the British Crown in 1861. The appellant who was one of the Idejo white cap chiefs of Lagos exercised seignourial rights over certain lands on the mainland of Lagos.

In 1861 King Dosumu of Lagos entered into a treaty of cession

37(1833) 7 Peters 51 at page 86.

38note 32 Supra. -e 55 by which he ceded to the British Crown the port and Island of

Lagos 'IIi th all the ftrights, profits, terri tories and appurtenances

thereto belonging~" The cession was made on the understanding

that the rights of property of the inhabitants were to be fully

respected. Their Lordships examined the effect of the treaty

of cession and concurred with the view of the Supreme Court of

Nigeria in an earlier case that

the ownership rights of private landowners, in­ cluding the families of the Idejos, were left entirely unimpaired, and as freely exercisable after the cession as before.40

Their Lordships 'lient on to express the view that na mere change

in Sovereignty i8 not to be presumed as meant to disturb rights

of private owners; and the general terms of a cession are prima

facie to be construed accordingly~4l

The different postures taken by Great Britain and

British Courts above are irreconcilable with the views of other

European States; particularly when British interests are at stake

in the Colonial possessions of some other European Bowers. This

i8 clearly seen in the dispute between Great Britain and France

over the French annexation of Madagascar~

40' .. Onislwo 04untan.V.'t Attorney General of Southern Nigeria (1915) A.C.599.

41note 39 Supra. 56

(B) United States of America:

The le~ding case which illustrates U.S. practice and

which go a long way to establish international law and practice

on the subject of State Succession i8 the classic case of United 42 States V Percheman.. . In t,hat case the plaintiff claimed 2,0001

acres of land in Florida under a grant made by the Spanish Governor

in 1815 when Florida was a Spanish colony. In 1819, Spain ceded

Florida to the United States. After the cession the United States

appointed Commissioners to look into and settle all problems

arising from titles to land in the territory. The plaintiff

lodged his claims with the Commissloners but his claim was rejected.

He then initiated proceedings in the lower courts and finally

appealed to the Supreme Court. Chief Justice Marshall delivering

the judgement of the Supreme Court said

It ls very unusual even in cases of Conquest, for the conqueror to do more than to displace the Sovereign and assume dominion ùver the Country. The modern usage of nativ~s, which has become law, would bé violated : that sense of justice and of right which is acknowledged and felt by the whole civilized world would be outraged, if private property should be generally confiscated, and private rights annulled. The people change their allegiance; their relation to their ancient sovereign is dissolved; .but their relations to each other, and.their rights of property, remain undisturbed. If this be the modern rule even in cases of conquest, who can doubt its application

42(1833) 7 Peters 51. Cited before the Privy Council in the Nigeri an case of Amodu TUanl V. Secretary of Southern e Nigeria •. 57

to the case of an amicable cession of territory? Had Florida changed its sovereign by an act con­ taining no stipulation respecting the property of individuals, the right of property in all those who became subjects or citizens of the new govern­ ment would have been unaffected by the change. It would have remained the same as under the ancient sovereign •••• A cession of territory is never understood to be a cession of the property be­ longing to its inhabitants.... The cession of a territory by its name from one sovereign to another ••• would be necessarily understood to pass the sovereignty only, and not to interfere with private property.

In another case the United States Supreme Court approved and extended the rule in the Percheman case by proclaiming

that by the law of nations, the inhabitants; citizens or subjects of a conquered or ceded country, ter­ ritory or province, retain aIl rights of property which have not beeri taken from them by the orders of the conqueror, or the laws of the sovereign who acquires it by cession •••• That a treaty of cession was a deed or grant by one sovereign to another, which transferred nothing to which he had no right of property, and only such right as he owned and could convey to the grantee.43

The Supreme Court again in one case observed that

this is the principle of the law of nations, as expounded by the highest authorities. In the case of the Fama, in the 5th of Robinson's Reports at page 106, Sir Villiam Scott declares it to be 'the settled principle of the law of nations, that the inhabitants of a conquered territory change their allegiance, and their relation to their former sovereign is dissolved;- but their relation to each other, and their rights of property not taken from them by the orders of the conqueror,

43Mitchel V United States (1835) 9 Peters 711, at 733. 58

remain undisturbed.' So too it is laid down by Vattel, book 3d, cap 13, Sec.' 200, that the con­ queror lays his hands on the possessions of the state, whilst private persons are permitted to retain theirs; they suffer but indirectly by war, and to them the result is, that they only change masters. 44

Although the decisions of the U.S. Supreme Court is only persuasive in other common law jurisdictions, the United

States fidelity to the doctrine of succession to rights and obli- gations on a change of sovereignty cannot now be doubted. The

U.S. has gone further in proclaiming this principle not only within its municipal 1ega1 system but a1so by provisions incor­ porated in bilatera1 treaties to which the U.S. is,a party.45 46 In the case of United States V Sou1ard Chief Justice Marshall in the course of his judgement referred to another factor which made the U.S. adherence to this princip1e unmistakab1e. He said that

In the treaty by which Louisiana was acquired, the United State~ stipulated that the inhabitants of the ceded territory should be protected in the'free enjoyment of their property. The United States, as a just nation, regard this stipulation

44Leitensdorfer V ~ (1857), 20 Howard 176.

45Examp1es of such provisions are:- Arts V & VI of Treaty of Peace with Great Britain (1783); Art. III of Treaty wi th France for cession of Louisi'ana (1803); Art VIII of Treaty with Spain for cession of F10rida (1819); Art VIII of Treaty of Guade1upe Hidalgo with Mexico (1848); Arts V & VI of Gadsden Treaty with Mexico (1848); Art III of Treaty with Russia for cession of Alaska (1867); Art IX of Treaty of Paris with Spain (1898).

46 4 Peter s 511. 59

as theavowal of a princip1e vhich would have been he1d equa1ly sacred, though i t had nO,t been inserted in the contract.

From the cases referred to above and the, influence which the

United States exercise in international affairs the'law in this

field has been sufficient1y crystal1ized to influence state

practice in other European States.

(0) France

By a treaty of 1865 certain commercial rights vere

granted to British nationa1s in Madagascar vhich vas at that

time a protectorate of France. In 1896 the Queen of Madagascar

former1y ceded and transferred sovereignty over the territory

to France. In exercise of her sovereignty France issued certain

fiscal and regu1atory decrees, vhich vas regarded as infringing

on the rights of British subjects guaranteed by the Treaty vith

France in 1865. France assebted that on the transfer of sovereignty

to her she vas re1ieved of a11 obligation in respect of treaty

rights existing before that periode The British Government in

protesting against the French attitude stated that

When France established her Protectorate in Mada­ gascar, the French Government had informed us that this wou1d not change the treaties vhich existed betveen Madagascar and other states. Subsequent1y, the French Government had dec1ared the is1and to be a French Co1ony, and th en had app1ied the French Tariff. It vas true that e 60

annexation', as a general rule, put an end to the Treaties existing vith the State which was annexed. But, in the case of Madagascar, we had contended that the French had come under an obligation not to interfere vith our commercial Treaty rights. The French had not admitted this view, but we had pressed it.~7

Similarly when France dec1ared a Protectorate over

Morocco in 1912, Bri tain raised the question of the Ang1o-Morocc.an 48 Treaty of 1856 and asserted that the Treaty was still operative and binding on France aven when she assumed Sovereignty over the territory. This view however would appear to have been endorsed by the International Court of Justice in the United

States Nationa1s in Morocco Case49 where it was said that France

is bound not on1y by the provisions of the Treaty oF Fez, but a1so by al1 treaty obligations to which Morocco had been subject before the Protecl.­ torate and which have not since been'terminated or suspended by arrangement vith the interested States. 50

"The Court went further to imply that treaties conc1uded by

France during the protectorate wou1d remain binding on Morocco upon the termination of the protectorate.,,5l

47F•0• 371/877.26243/988/10/12, Gooch and Temperley,

Vol G VI!!; p. 489. Referred to by D.P. O'Conne1l, The Law of State Succession at p. 21.

48(1923) P.C.I.J. Sere C, No. 2, at 156 etc. (Advisory Opinion)

49(1952) I.C.J. Rep.

501d at 188. We share the view of the World Court here. We wou1d like to add that the interest of order in the world communi ty makes this desirable •.

51D•P• O'Connell, ~o~p~.~c~it~., Supra note 47 at p. 30. 61

The French view of this subject is stated by the jurist

Gidel whose approach favours the American reasoning referred to above. He wri tes as follows :,-

La jurisprudence américain, qui a consacré ce principe de l'inviolabilité de la proprieté privée dans une foule de décisions, c'est distinguée par la maniére particuliérement large done elle l'a entendu. 'Ce serati violer un usage qui a acquis force de loi entre les nations modernes, 'dit le juge Marshall en des termes qui se trouvent reproduite dans tous les arrêts ultérienurs de la Cour Suprême des Etats - Unis relatifs à la matiere,' ce serait outrager ce sentiment de justice et d'équité reconnu par tous les, peuples civilisés que d'ériger en r~gle géné~ale la confiscation de la propriété privée et d'annuler les droits des particuliers. L'allége.nce des sujets se trouve modifiée ; leurs rapports avec leur ancien Souverain se trouvent rompus; mais les relations respectives des atoyens, entre oux et leurs droits de propriété subsistent intacts. Telle fut la doctrine appliquée sans interruption par la Cour Suprême à propos des annexions de la Louisiana, de la Floride, de la Californie, du Texas, c'est - à-dire au moment du grand développement territorial de la République américaine •••• Les obligation dérwaient de titres strictement légaux •••• La Cour de caf.':':.'ltion francaise e, elle aussi, entendu dans un sens tres libéral l'application de ce principe de l'inviolabilite de la propriéte privée. Elle n'a pas sanctionné seulement les droits de proprieté naissant au profit de particuliers de contrats passés entre eux. Elle a formellement reconnu et protégé les droits acquis par des individus sur le domaine public de l'Etat annexé ••• Mais les alienations anterieures à l'annexion que le Souverain avait le, droit de consentir sous la loi alors en vigueur, doivent être respectees apr~s l'annexion. Et les tribunaux doivent respecter les droits acquis sur ce domaine par les particuliers avant 1 'annexion. 52

52Gidel, Des Effets de l'annexion sur les concessions et page 90. 62

(D) OTHER EUROPEAN STATES

If there are any concept s that are common to all the variOus schools of jurisprudence in the West, they are the concepts of an all pervading law of nature, reasonableness and good conscience forming an integral part of the legal system.

These njural ~Jostulates" too permeates the law of nations. 53

While British attitude ta the problem of state succession i5 dictated more by policy considerations and is there~ore variable, inconsistent and confusing, continental Euro:pean countries appear to have adopted uniform practices follo'W·ü.lg the lead of the

United States Supreme Court in the Percheman Ca.se:4-

This prin~iple of law enunciated in the Percheman case has been cited with approval by Calvo. He makes the fol- lowing observations:-

"La conquête, nous l'a.vons déjk démontré, change les droite politiques des habitants du territoire et transf're au nouveau souverain la ~)ropriété du domaine public de son céda.nt. 'Il n'en est pas de m&me de la nropriét~ privée, o..ui demeure incommutable entre les mains de ses legitimes possesseurs. Ce serait violer un usage qui acquis force de lois entre les nations modernes,' dit le juge Harshall §; pro~)os ae la translation d'un paye d'une souverRinet~

5'3 R. Pound, Social Control ThroulZh Law (1942). k une autre, ce ~8etait outrager ce sentiment de justice et de droit reconnu part tous les peuples civilisés qui d'ériger appelés k en fair l'application. C'est qu'en effet la base en est essentrellement rationalle et logique. La conquête définitive du territoire met fin' la situation créée par la guerre pour y substituer les relations de paix et de bonne barmonie; et dés que l'administration militaire a achivé son rôle, l'autorité et le gouvernement civil reprennent le premier rang pour faire prévaloir de nouveau les r'gles de droit commun. O'u l'Etat puiserait­ il donc le pouvoir de' confisquer la propriété de ses nouveaux sujets, que le fait d'avoir été ennemis ne peut rendre indéffiniment punisables? Le cQnquérant n'a pas seulement le devoir strict de respecter-lej droits acquis; il est encore moralement tenu de cher.cher par tous les moyens en son purvoi~ ,- en garantir le maintien et , en améliorer ou k en facihter l'exercice."

"Le jurisconsulte américan Marshall, en traitant cette question spéciale, fair remarquer avec raison que par le mot propriété privée ir faut entendre une possession reposant sur un titre entouré de toutes les garanties légales, compl~tement valide; sanctionnant des droits 55 acquis et des obligations ayant force de loi. "

j The same precttce is folloved ln Italien law. The jurist Piore states the lav thus:-

ItL'Etat cessionnaire sera tenu de respecter les droits acquis par les particuliers. relativement au territoire cédé et aussi les droits acquis par les fronctionnaires publics en vertu de l'exercice de leurs fonctions sur le territorire cédé. Cette r'gle est applicable aux droite qui peuvent être considérés comme acquis d'apr~s les

55Calvo, Droit International, 5th Edition, Vol. Iv at page 399. Sections 2478-2479. 64

principes du droit commun, _ais non aux expectatives, ni aux actes de jouissance basés sur l'abus on eur le consentement implicite de l'Etat cédant. 1156

In Germany the American and French lead are regarded as indicative of customary international lav in this field.,57

It appears to us therefore that consider1ng the weight of the authorities in the different countries referred to in this chapter there is a sufficient degree of uniformity in state practice to 'enable us formulate the rule that where there ls a change of sovereignty the rights, duties and obligations of the previous sovereign are transmitted to the succeeding sovereign.

This would be the rule even in the absence of a formal duly signed instrument recording such tra.nsfer and assumption of obligations as vas done in the case of Nigeria.

AERONAUTICAL AGREEMENTS INHERITED BY NIGERIA

Xi is not our intention in this paper to examine the detailed provisions of those aeronautical agreements lnherited by Nigeri~. What ve propose to do is to identify them and find

56Fiore, Droit International (translated by Antoine) at page 150 Section 154.,

57See Huber in Stasten-Succession at page 57; flIst es unbestritten dass die subjektiven Privatrechte, sowait sie woh1erworbene Rechte sind, von dem Wechse1 der Staatsgewa1t nicht betroffen werden". 65

the legal basis for their continued application. These agree- ments fall into three different categoriesj-

Ar Air Transport Agreements for Scheduled International Services.

(i) Agreement Between the United States of America

And the United Kingdom of Great Britain and

Northern Ireland, Signed at Bermuda, February

11, 1946 and effective from the same date. 58

Under this agreement the United Kingdom granted t~aff:fe- rights to the Air carriers of the United States in some of her overseas possessions including Nigeria. In Route 13 of Annex lll(b) of the Agreement, the United States carriers were granted third, fourth and fifth freedom traffic rights to and from Lagos to two points outside Nigeria, namely Leopoldville (now KinshaSa) and Johannesburg. This route is being operated by Pan American

Airlines.

(ii) Agreement Between The Government of The United

Kingdom and The Government of Portugal For Air

Services Traversing British and Portuguese

Territories. Signed at Lisbon on 6th December, 1945.59

58I • C•A•O• Reg. No. 8~82; U.N.T.S. Vol. 3 p. 253; See also for the U.S. position as to the continued application of this agreement "Air Law and Treaties of the World" published by U.S. Senate 89th Congress lst Session, Vol. 3 (1965 Edition) at page 4319. 59I.C~A.O. Reg. No. 119; And as amended by Exchange of Notes ICAO Reg. No. 945 and 1166. 66

In Schedule 11 Route 3 of this Agreement the Portuguese

Air1ines were granted the right to operate through Lagos to

Libreville, Loan~~ and Laurenco Marques. This Agreement: has subsequently been modified by an Exch~nge of Notes dated 3rd

April, 1952. Under this amendment Kano was substituted for Lagos in a route pattern originating from Lisbon, through Kano, Luanda,

Laurenco Marques and terminating in Johannesburg.

(ii1) Agreement Between The Government of The United

Kingdom and The Provisional Government of The

French Repub11c Relating To Air Transport Between

British and French Territories. Signed at London

on 28th February 1946. As modified by Exchange 60 of Notes dated 21st January 1953.

As the tit1e of this Agreement indicates, its purpose was to provide air transportation through the British and French

African terri tories. In this connection three points in Nigeria were to be operated by the designated air carriers of the French

Republic in their network of air routes. The three points that were to be operated are Lagos, Kano and Maiduguri, 1inking French

African territories to Madagascar, Windhoek, Angola, Johannesburg and Cape Town. Some of these routes are still being operated

60 I.C.A.O. Reg. No. 326; 1031. 67

by the Frenoh Airlines U.T.A. 61

(iv) Agreement Betveen The Government of The United

Kingdom of Great Britain and Northern Ireland

and The Government of the Italian Republic

Relating to Air Services Betveen Their Respeotive

Territories. Signed at Rome on 25th June 1948,

came into force provisionally on the same day

and definitively on 24th October 1950.62

In this Agreement the designated air carriers of Italy vere given the right to operate Air Services through either Lagos or Kano to Leopoldville and a point in South Africa, in accordancë wi th Route (e) of l ta1.ian schedule.

(v) Agreement Betveen The Government of The United

Kingdom and The Swiss Federal Council for Air

Services Between and Beyond Their Respective

Countries. Signed at London on 5th April 1950- 63 and came into force definitely on 8th June 1951.

6lwhen Nigeria broke diplomatie relations with France in 1961 for testing an atomic device in the Sahara, overflight and landing rights in Nigeria were denied to French aircraft, on the grounds that a Bilateral Ai'r Services Agreement vas not binding on Nigeria. For details of this event see Elias, T. O. Year Book of the International Law Commission 1962. Vol. 1 at pages 4 and 5. 62 I.C.A.O. Reg. No. 660 as Revised by ICAO Reg. No. 1752 of 22/11/1963. Now superceded.

63 I.C.A.O. Reg. No. 808. A new Agreement has now been re-negot iat ed •. 68

(vi) Agreement Betveen The Government of the United

Kingdom and The Government of Be1gium for Air

Services Betveen And Beyond Their Respective

Territories. Signed at LondQn on 8th May, 1951

and came into force deflnitive1y as from 21st

January 1953.64

Under this Agreement the designated air carrier of

Be1gium vas granted trafflc rights in Kano on its route to

Leopo1dvi11e. 65

66 B. Aeronautica1 Agreement Concerning Cargo Restrictions

(i) Exchange of Notes Constltuting an Agreement Between

the United Kingdom of Great Britain and Northern

Ire1and and Itaq,Regarding The Carrlage of Dangerous

i Goods in Aireraft. Signed at Rome 24th October, 67 1951 and came into force immediate1y •. Paragraph (1) of the Exchange of Notes provldes as fo110ws

"Permlts issued by the appropriate authorities of one party for the earriage of sueh goods into or over the territory of the other party•. "

64I.C.A.O. Reg. No. 939. This Agreement has now been re-negotiated. 65A new agreement has been negotiated but not yet signed.

66See Art 35, Chicago Convention 1944.

67U•N•T•S• Vol. 118 page 143. See further the definition of territory in Art 2 of Chicago Convention 1944, I.C.A.O. Doc. 730013 at page 8. Paragraph (2) provides that

"For the purposes of the Agreement the expression 'territory of a party' means the land areas and territorial waters under the sovereignty, suzera1nty, protection or trusteeship of that Party. '.'

Although this Agreement vas not specifically made ap- plicable to Nlgeria~' or to any of Ber Majesty's Colonial ter- ritories, it is submitted that in lav and fact the term territory as used in the context will include Dot only the United Kingdom but also those Colonial possessions for whose affairs Ber Majesty's 68 Government in the United Kingdom bears responsibility.

C. Aeronautical Agreements Regulating Personnel Licensing

(1) Exchange of Notes Betveen The Government of United

States of America and His Majesty's Government in

the United Kingdom Constituting an Arrangement

concerning The Issuance By The One Country of

Licences To Nationals of the Other Country Authorizing

Them to Pilot Civil Aircraft. Washington March 28th

and April 5th 1935. Came into force on May 5th, 1935.69

68lli.,g.

69 L.H.T.S. Vol. 162 page 59. Nigeria is one of the Countries 1isted in the Schedule. In Vol. 2 of Shawcross and Beaumont on Air Law 3rd Edition at page 46, it is suggested that this Agreement was terminated on 23/12/50 and cited Comd 8133~ page 113 which gives the date of termination as 24/12/50. But see further The International Law Association Publication, The"Effect of Independence on Treaties at page 88. 70

CHAPTER FOUR

AGREEMENTS CONCLUDED BY NIGERIA

Various policy considerations underlle most of the

bilateral aviation treaties concluded by Nigeria. These policy

considerations change according ta the particular country with

which a treaty is concluded. In the firet place, the consider-

ation might be to foster friendly relations between the two . 1 coun t rles. Secondly it might have been concluded because

of the economic benefi t that will accrue to bath',; parties,

bearing in mind the traffie offering from a partieular geographical 2 area. A third considerationmight be based OD the community of .

interest existing between Nigeria and a particular country.

This interest May be founded on a shared religious belief,' or

cul tural, ethnologieal identi ty•. 4 A fourth' eategory of aviation

agreements are tho~that were eoneluded on either of the fore-

going considerations, or a combinatioh of them. It is not

lThe Agreement with the Soviet Union of August, 1966 will in our view fall within this category. .~- { 2The Agreement vith Italy is an example. Rome is an important cross-route in Europe for flights to the Middle and Far-East, Australlœa and Africa; and also serves as a gate-way to Europe.

'Agreement between Nigeria and Saudi-Arabia. See infra at pages 73-75.

4Agreement between Nigeria and the Republic of Niger. 71

unusual for an agreement to be concluded nat because either party intends immediately exploitation of the routes granted, but merely to secure a foothold in each other's territory against a possible future inauguration of services.

This is not in ourview an unhealthy move, but a sound business initiative. The development of a new route from the ina~lgural flightto the stage where the route becomes profitable is a venture which very fev airlines are financially equipped to undertake. It is therefore not surp~ising when a foreign carrier suddenly starts to compete on a route that has taken matly years of financial loss to make lucrative.5 A fifth type of agreement are those that are entered into in response to a specifie calI for trans-national co-ordination of air transport. 6

5Although no formaI bilateral air services agreement das been entered into between Nigeria and the U.K., neverthe- less there are a numberJ of commercial agreements between Nigeria Airvays and B.O.A.C. In pursuance of these commercial agree­ ments, traffic and revenue on the Lagos - London route has built up tremendous1y over the last few years to the mutual advantage of bothairlines. However, an alarming situation seems to be developing when foreign competitors lift up traffie from either Lagos or London and enroute through their national terri tories offer quiek connection to the ultimate destination of the traffic 50 lifted, to the detriment of the existing commercial co-operation agreement between Nigeria Airways and B.O.A.C.

6See genera11y "Air Transport in Afriea", ECA:Doc ~/CN. 14/TRANS/20; ICAO:Doc 84l9-AT!718, -- A joint study by the International Civil Aviation Organization and the Economie Commission for Africa, July 1964. 72

The deta1led provisions of the various agreements are dis.cussed and an.lyzed below. Bere an attempt is made to

find a rational bas1s for the polieies and considerations that

shape the••

AIl the aeronautieal agreements concluded by Nigeria

which we diseuss in th1s chapter are in respect of "scheduled

international services'·. According to the defini tion 1ssued by the Council of I.O.A.O.

HA scheduled international air service is a series of flights that possasses all the fol­ lowing characterist1cs; (a) 1t passes through the a1rspaee over the territory of aore than one state; (b) it is pertormad by aircratt for the transport of passengers, mail or cargo for remuneration, in such a manner that each t11ght is open to use by members .of the public; (c) it 1s operated, 80 as to serve traffic between the same two or more pointa, e1ther (1) according to a published time­ table, or (ii) with flights so regular or fre­ quent that they constitute & 7 recognizably systematic series."

The Civil Aviation (Air Navigation) Regulations 1965 made under

The Civil Aviation Act 1964 defines a schedu1ed journey as

7ICAO Definition of a Scheduled International Air Service, ICAO Doc. 7278-C/841 of lOth May, 1952. See a1so Art. 96 of Chicago Convention. 73

na series of journeys which are undertaken between the same

two places and which together amount to a systematic service. n8

The Civil Aviation (Air Transport) (Lieensing) Regu- lations, 1965 also defines a "Scheduled journey" as Ita series of journeys whieh are undertaken between the same two places and which together amount to a systematie service operated in such a manner that the benefits thereof are available to members of the public from time to time seeking to take advantage of it" •.9

With these definitions in mind ve would consider the Air Trans- 10 port Agreement between Nigeria and Saudi-Arabia with a view to categorizing it either as an agreement for seheduled inter- national services or one for non Scheduled Commercial Air Transport.

8Section 84 (i).

9Sec• 2(i), Civil Aviation (Air Transport)(Licensing) Regulations 1965. 10 The agreement was concluded to make available to Nigerians the advantages of modern air transportation during the season of the Holy Pilgrimage ta Mecca. For many years the Nigerian Government has been concerned about the hardships and the fate of Many de vaut Nigerian moslems who had ta trail the old Sahara caravan routes to Mecea in order to perform the moslem rituals. Many of these pilgrims peri shed in the desert. Others became destitute, and settled in the Sudan and Saudi­ Arabia, with no hope of ever returning ta their own country. The agreement vi th Saudi Arabia therefore vas madè,~ to solve a number of social problems not normally vithin the purview of negotiations of bilateral Air Services Agreements. 74

Firstly, according to IATA Traffic Conference Reso- lut10n 045, IATA fares or rates are not applicable te "carriage of Haj and pilgrim traffic to or from Jeddah, Mecca, Medina,

Jerusalem and. Karabala. ,,11 This resolution permits IATA members in Traffie Conference 2 and Joint Traffic Conferences 2 and , to eonclude special charter agreements for this special type of traffic without applying the normal IATA fares or rates.

Secondly the European Civil Aviation Conference has designated certain categories of flights as "non-scheduledll

Commercial operations. In this category are "flights where the entire capacity of an aircraft i8 liired on behalf of members of a group, provided::

(a) that the group has princi~al purposes, aima and objectives

other than travel and sufficient affinity existing prior

ta the application for Charter transportation to distinguish

i taud set i t apar~- from the general public.

(b) that no part of the said capacity i8 8014 to persons

outside this group (though it may be sold ta the members

of the group);

(c) that the group has a permanent character;

(d) that the individuals carried have been members of the

11See IATA Manusl of Traffic Conference Resolutions, Ilth Edition of 1/9/65, Resolution 045, page 1 Issue 4 at (2)(b). 75

group for more than six months preceding the flight

( __ be in thetamily ot such members);

(e) that theflight be adverti8ed only to members of

the group and by members or officials in the g~oup;

and (t) that the group does not exceed a maximum of 20,000

membera. Hl2

Thirdly, there i6 no provision in the agreement vith

Saudi Arabia comparable to Attlcle 8 of our Standard Draft whlch makes provision for lATA rate fixing machinery as being applicable.

Applying these three tests above to the Nigeria -- SaudiArabia

Agreement, the following eharacteristics are immediately noticeable.

1 that the traffie between Nigeri.,!. and Saudi-Arabia i8

seasona1

ii that it ls of a special re1iglous character, both as

to passengers who take advantage of it and as to their

u1timate destination

iii that the agreement is subject to revlew or re-negotiation

annual1y.

For these reasons we are of the opinion that commercial operations of services under this agreement is one for "non-scheduled"

services, even though the agreement does not refer to it as such.

No specifie agreement has yet been conc1uded with any other state ln respect of non-schedu1ed international services.

12ECAC , Fourth Session, 1961, Recommendation 3, ICAO Doc. 8185, ECAC/4-l pp. 9-12. See a1so Gazdik, J.G.T. - "Schedulee and Non-Schedu1ed Air Services", being an Address delivered at the International Conference On The Freedom of The Air, Institute of Air and Space Law, McGi11 University, Montreal, November 1967 - Proceedings of the Conference. 76

In practice, however, non-scheduled international services similar to the pilgrims seasonal traffic are operated by a number of airline~. _ These flights are common1y referred to as "students flight". In these operations air services are provided between Nigeria and the United Kingdom during the summer months. On1y bona fide students certified as such by either the Federal Ministry of Education, or the Office of The

High Commissioner for Nigeria in the United Kingdom are per- l mi tted to taIte advantage of these services. ' Ve shall there­ fore only confine ourselves in this dissertation to an examination of those agreements for scheduled international services.

The Nigerian Standard Draft

The Form adopted by Nigeria in the negotiations of

Air Transport Agreements ls based on the Strasbourg Standard

Clauses prepared by the Thlrd European Civil Aviation Conference in 1959. The ECAC Standard Draft was later commended to member states of the ECAC for use as basis of their future bilaterals; 14 and recommended to ICAO for adoption by member states. The practice of adoptlng standard forms as modela in negotiating bi1ateral agreements is not in itself a new international practlce.

13Ibid•

14Report, ICAO Doc. 7977, ECAC/3-1 (1959). 77

Before the days of the League 'of Nations, bilateral

Treaties of Friendship, Commerce and Navigation and Consu1ar

Conventions concluded by the European Povers fo11ov some regu1ar,

recognisable standard pattern of draftsmanship. However in the ear1y 1930's, the League of Nations took some 'positive steps in providing Standard Draft Agreements which countries can adopt as basis for negotiationg their bi1atera1 treaties •.15 The main purpose of these standard draft agreements vas to achieve some degree of uniformi ty vhere di,fferences in legal systems or failure to arrive at an acceptable multilateral treaty may othervise prevent a solution to a pressing i~ternational problem.

At the Chicago Conference in 1944, the participating

States had little or no difficulty in agreeing to a Standard

Form of Provisional Route Agreements vhich was recommended for adoption in concluding bilateral air agreements. This draft 16 vas generally referred te as the Chicago Standard Clauses •.

When the U.S. and Great Britain met at Bermuda in

1946 and proposed that the agreement concluded betveen them shall serve as a model for future bilaterals, the two countries

l5AS to the background, and the details of the League procedure in this connection, see M. Hill, The Economic and Financial Organisation of the League of Nations (Publications of the Carnegie Endowment for International Peace), pp. 72-74 in the Series "Stud:i.es in the Administration of International Lav and Organisation" No. 6.

l6p rocee d·lngs 0 fIC••• A Conference, Chicago 1944, pp. 1274-1296. 78

vere mer.ely crystall1s1ng a long proc.ss of achieving un1formi ty

in drafting bilateral agreements.

We shall nov examine in detail the agreements concluded

by Nigeria under the following beadinga

(a) Legal Regime

(b) Technical Regime

{cl Customs Regime

{dl Co:mnerc1al Regime

{el Settlement of Disputes

(f) Termination

(g) Memorandum of Understanding

Legal Regime

Article 2 of the Nigerian Standard Draft re-emphasizes

the traditional doctrinal questions involving public international air law. This article deals with;

{il the terr1tory of states,

(i1) Sovereignty in the airspace

(iii) transit rights

(1 v) Cabotage

In bilateral negotiations these matters do not generally create any difficulties, as they have already been settled by the Chi­

cago Convention, which lS binding on all Contracting States and

to which their bilaterals are supplementary. 79

In the Nigeria-U.S.S.R. bilaterals, these questions had to. he negotiated as the U.S.S~R. ls not a member of ICAO.

Resolution of these international air law problems vere accompli shed by reading Article 3(2) of the agreement which provides that

"The flight routes of aircraft on the agreed services and the points for crossing national ·boundaries shall be established by each of the Contracting Parties within its territory" together wi th .the grant of rights clause in paragraphs 3 and 4 of Annex 1 of the agreement vhich also provides for:!iesigllated airlines of the Contracting Parties to exercise the following rights on the specified routes:-

3. n{-a) to make stopss in the ss.id territory for non-traffie purposes; and (b) to make stops in the said territory at the points specified for that route in the table of Routes eonte.ined in this Annex for the purpose of putting down and taking up inter­ national traffio in passengers, cargo and mail.

4. Nothing in paragraph 3 of this Annex shall be deemed to confer on the airline of one Contract1ng Party the privilege of taking up, in the territory of the other Contracting

Party, passengers, cargo or mail earried for remunèratiôn~, or hire and destined for another point in the territory of that other Contracting Party."

Peculiar problems do arise in concluding bilaterals with countries which are members of a "joint air transport 80 operating Organisation",17 or an "international operating ageney".18

One of sueh problems is the interpretation of cabotage traffie.

Ve shall illustrate this by referenee to the praetice of states, parties to the Treaty of Yaounde,19 and the Seandinavian Countries of Norway, Sweden and Denmark vith whom Nigeria has eoneluded bilateral Air Services Agreements.

Bilateral negotiations for traffie rights with states in the Air Afrique group are eonducted separately by the member states. The problem does arise that while eaeh etate in the group obtains 3rd, 4th and 5th freedom traffie rights for ex- ploitation by Air Afrique, the states do not grant in practice reeiproeal rights to Nigeria Airways. In other wor~e, a massive combination of 3rd and 4th fr~edom traffie rights in the hands of a single airline operating services on international routes for sueh a large grouping of states makes 5th freedom rights illusory. This beeomes more so if the states eoneerned are geographically loeated that they are eontiguous one with the

l7Art • 77, Chicago Convention. ICAO Doc. 7300/3. For further information on the problems of sueh joint inter­ national operating ageneies, see, "Report by Air Law Committee of International Law Association on Nationality and Registration of Aireraft with Special Reference to Article 77 of the Chicago Convention on International Civil Aviation" 1966.

l8Ibid•

19In this treaty some Afriean states, members of the African and Malagasy Organisation for Economie Co~operation concluded an agreement in Yaounde for joint co-operation. This co-operation ineluded the setting up of a joint airline. 81

other. Whl1e negotiations based on 3rd and 4th freedom rights

vith these states offer no special attraction to Nigeria Airvays,

it gives Air Afrique a commercial edge over our airline.

As a matt,er of law, astate that i8 a member of an

international operating agency viII not assert that its ter-

ritory and that of a third state vith which it operates such an ageney constituleone state for purposes of Interpretation of 20 "cabotage traffle". Nevertheless the argument may be advanced;

(a) that oving to a prior agreement vith a thlrd state

permission to exerclse 5th freedom traffie rights

to and from that state cannot be glranted. "

(b) that the sector is already adequately served, and

that it would not be in the test interest of civil

aviation to over saturate a route by providing too 21 mueh capacity along that sector.

(c) that it was the understanding of both parties before

the commencement of negotlations that the primary

justification of the bilaterals ls the mutual exchange

of 3rd and 4th freedoms.

20For an explanation of this term see H. A. Wassenbergh, op. cit. p. 72 supra p. 11. n. 20. 2lIn Sehedule 1 to the Annex of the Nigeria-Togo Agree­ ment, it is provided in footnote 3 that "The designated airline of Nigeria shall be allowed to serve ~Dlt,oa. or many other points not shown in the schedule it being vell understood that no traffic rights shanbe enjoyed on the one hand between Cotonu and the territory of the Republic of Togo and on the other hand between the other points mentioned above (i. e. Kccra., and Robertsfield) and the territory of the Republic of Togo unless the Republie of Togo grants specially those said traffie rights. 82

(d) That if a 5th freedom traffic right is indispensable

for a profitable exploitation. of the route, it could

only be grantad to a point in a fourth state or to

an alternative destination in a third state to which

the ocher party does not already operate a service.

The following h1Po~hetical tables illustrate vividly how a combination of 3rd and 4th fraedom rights at the disposal of an alert route planner m&y render 5th fraedom rights nugatory.

(a) Let us assume that thepe is an agreement providing for exercise of 3rd and 4th freedom traffic rights between Nigeria and the following countries in the Air Afrique Consortium, namely,

Senegal, Ivory-Coast, Togo, and Dahomey.

(b) Let us assume further that the designated air- lines of both countries have "fair and equal opportunity" to operate the agreed services.

TABLE 1

NIGERIA AIRWAYS

LAGOS-DAKAR (both directions) 3rd and 4th freedoms only • tt .. tt " -ABIDJAN ~ " " " ft Il -LOME " " " Il " " ft "-COTONU " fi " te " ..

Note:- To operate an economic service and meet the policy 22 consi~erations leading to the conclusion of the bilatarals

22 Supra pp. 70-71. 8'.

Nigeria Airvays route pattern vould be Lagos-Cotonu*-Lome*-Abidjan.- Dakar.

*No 5th freedom traffie rights may be exereised trom any of these points (See for ixample Nigeria-Togo Agreement).

TABLE 2

AIR AFRIQUE

DAKAR-LAGOS (both direotions) 3rd and 4th freedoms (Sn V Ng) Bilat ABIDJAN-LAGOS " et Il .. tt tl (le V Ng) ft LOME -LAGOS te " Il .. tt .. (Tg V Hg) " COTONU-LAGOS " " te " .. fi (Dh V Ng) "

~I- A eombination of 'rd and 4th freedom rights obtained by the four countries in this consortiùm together vith similar rights exchanged among members of the group either through a provision in the consortium agreement, or through existing bilaterals among individual members of the group, will permit Air Afrique the right to exercise traffic rights on all points on a route betveen Dakar and Lagos.

Dakar* - Abidjan* - Lome* - Cotonu* - Lagos*

*3rd and 4th freedom traffic only. This route pattern in effect as far as Lagos i8 con­ cerned makes 5th freedom traffie for Air Atrique an academie exereise. In Chapter Five we make some tentative suggestions for a solution of the partieular problems created for Nigeria Airways by the Air Afrique Consortium. 23

23Infra at page 108. Negotiations with the Scandinavian countries present a different picture from that of the Air Afrique states. The countries of Norway, Sweden and Denmark negotiated as a team, although each state signed separate agreements with Nigeria.

Thi s, however~', did not improve the position of SAS in obtaining by accumulation traffic rights out of all proportion to the needs of the airline and the available traffic potential between 24 Scandinavia and Nigeria.

In the agreement with the Soviet Union, a careful blending of the Nigerian Standard Form was produced, which made the agreement noteworthy by its departure from our normal legal drafting technique. For example, the "Grant of Rights Clause" which appears as Article 2 of our Standard Form was inserted in Annex 1. It would appear unusual for an important provision such as this, which in fact is the "meat" of any bilaterals to be contained in an Annex to the agreement. This technique becOI':.es more unusual ""hen construed in the light of Article 11(1) of our Standard Form and Article 17(1) of- the agreement. These

Articles provide as follows:-

"In a spirit of olose co-operation the aeronautical authorities of the Contracting Parties shall consult each other from time to time with a

24For a history of Scandinavian co-operation, see R.A. Nelson, "8candinavian Airlines System Co-operation in the Air", (1953) J.A.L. & C., pp. 178-196. 85

vie. to'ensuring the Implementation ot, and satistactory compliance with the provisions ot the present agreement and the annexes attached ther.to and shall also consplt .hep necessary to provide tor modification thereot".

Amendaents to the texts ot a bilateral air agreement in general practice could only be made by the Contracting, Parties.

However, "Annexes" or "Schedules" to an agreement are treated ditterently. In order to maka tor speedy moditications and adjustments in mattera concernlng the day to day commercial aspect ot an agreement, it is generally underatood that govern- ments delegate these powers to their respective Aeronautical

Author1ties. Powers ot amendments to the main body ot an agree- ment ls reserved for the Contracting Parties. Departure trom this usual practice ve venture to suggest may be due to a con- cession tor the difterent constitutional practice in the U.S.S.R.

Finally, it may be observed that Article 17 ot the

Agreement with the Soviet Union combines Articles 11 and 13 of the Standard Form. Article 15 ot the Standard Fonn also laY8 dovn a procedure tor termination of the agreement. It i8 provided in the Article that: "Either Contracting Party 1Iay at any time give notice to the other Contracting Party of lts deeision to tenninate the present Agreement: such notice shall be simultaneously communicated to the International Civil Aviation Organisation. In such case the Agreement shall tenninate tvelve (12) months atter the date of receipt of the notice by the other Contracting Party, unless 86

the notice to terainate is vithdravn b, agree­ aent before the expiry of this periode In the absence of acknovledgemeDt of receipt by the other Contracting Party, notice shall be deemed to have been reeeived fourteen days (14) after the receipt ot the notice by the International Civil Aviation Organization."

Hovever in the agreement v1ththe Soviet Union this procedure vas abandoned as being unsuitable, the USSR not being a member of lCAO. Article 19(:S) of the Agreement vi th the USSR prov.idesl

"Either Contraeting Party _ay at any time g1ve notice in vriting to the other Contracting Party of it. decision to terminate the present Agree­ ment. In sueh case, The Agree_ent shall term1nate tvelve (12) montha after the date of reeeipt of sueh notification by the other Contracting Party, if such a notice ia not withdrawn earlier."

Technical Regime

Matters of a teehnical nature generally regulated in b1laterals inelude:- (1) Personnel 11eens1ng (1i) A1rvorthiness certifieates (111) Operating rules, (iv) Ground Organisations, (v) Accident Investigation.

The Nigerian Standard Fora does not mBke provisions to regulate

the above mentioned matters. Thare is justification for this omission. In the preamble to the Standard FOrli, 1t 1s stated

that the tvo GoverDDlents "are parties to the Convention on 87

International Civil Avia~ion", and that the parties are desirous of conclu ding "an Agreement supplellentary to the said Convention".

Since these matters of a technical nature have been regulated by the Chicago Convention25 and its annexea,26 it would the re- fore be superfluous to repeat theae provisions in a bilateral agreement. However, it is not unknown that some countries insist ... on inserting these provisions in their agreements. 27

In this connection, the agreement with the Soviet

Union stands on a different footing. The U.S.S.R., not being a member of ICAO, specifie:' provisions had to be inserted in the agreement in respect of all those matters covered by the

Convention and its Annexes. Article 12 of the Nigeria-USSR bilaterals provides as follows:-

"(l)Aircraft of the airlines designated by one Contracting Party during flights over the ter­ ritory of the other Contracting Party shall have identification marks of its state, established for international flighta, certi~ica~es of regis­ tration, certificates of air worthiness and other aircraft documents established by the Aeronautical Authorities of the Contracting Parties, and also permission for radioequi~ent. Pilots and other members of the crew shall have appropriate certificatea.

25 Arts. 32 and 33. 26 Annexes l, 5, 7, 8, 13 and 14. 27Agreement betveen Nigeria and Belgium has provisions regulating Personnel licensing and Certificates of Airworthiness. 88

(2) A11 of the aforementioned documents issued or recognized a8 va1id by one Contracting Party sba11 be recognizedas va1id within the terr1tory of the other Contracting Party."

This 1s provided for in Articles 20, 17, 29 and 33 of the Chicago

Convention, and Annexes 1, 7, 8 and 10. Under Article 13 of the same agreement i' is provided tha+'

"(1) In case of a forced 1and1ng or other acoidents affecting an aircraft of one Contracting Party within the territory of the other Contracting Party, the Aeronautical Authority of the Con­ tracting Party on whose territory the forced 1and1ng or other accident has occurred shall imaediate1y notify the other Party thereof, take necessary measures for the investigation of the causes of the accident, and a1so under- take immediate steps to assist the crew and passengers if they are injured in the accident and shall provide for the safety of the aireraft and of mail, baggage and cargo on its board. (2) The Contracting Party conducting the in­ vestigation of the accident shall inform the other Contracting Party of its results;; the Contracting Party to whom the aircraft belongs shal1 have the right to appoint its observera, who may be represented at the investigation of the accident."28

Simi1arly Article 14(1) of the Nigeria-USSR bilateral agreement was based on Article 15 of the Convention. A peeu1iar provision which has not previous1y appeared in any of our bi- laterals was also inserted as Article 15 of the agreement in the following words:-

28Identical provisions exist in Arts. 25 and 26 and Annexes 12 and 13 of the Chicago Convention concerning aircrafts in distress, search and investigation of accidents. 89

"(1) For the co-ordination of matters concerning air transportations and servicing of aircraft: each Contracting Party shall grant to the de­ signated airline of the other Contracting Part7 the right to have representatives and their assistants at _lrports on the territory of the said Contracting Party. (2) The representatives specified in this article and also members of the crew of aircraft of the airlines designated by the Contracting Parties shall be citizens of the said Contracting Parties."

The matters regulated in this Article are in general practice dealt with by Governments or their designated airlines by com- mercial arrangements rather than through the medium of a formal treaty.

Ânnex II to the agreement also reproduces the ideas in Article 22 of the Chicago Convention and its Annexes and the Procedures For Air Navigation Services laid down by the

Council of ICAO.

Customs Regime

One notable reminder of the special treatment enjoyed by International Civil Aviation from its inception in 1919 as compared with other means of transportation is in the Customs regime çreated first by the Paris Convention 1919, and later by the Chicago Convention 1944. Articles 10, 13, 14, 22, 23,

24 and 27 of the Convention and Annex 9 governs the Customs formalities to which all Contracting States and Civil Aircraft registered in those States must conform. 90

Ve examine below the relevant customs articles in the Nigerian Standard Draft under the following heads

(1) International Customa A1rport

(ii) Free zones in A1rports

(1ii) Free Exemptions from Customs duties

(i) An international customs airport is one where aireraft destined for, or eoming from places abroad are permitted to land to fulfil the eustoms and health regulations of a country.

As a matter of practice bilateral agreements do not refer to such airportse Such airports are generally designated in the

Air Navigation Regulations. In Nigeria, by the Civil Aviation

(Air Navigation) Regulations 1965,29 Oustoms airports in Nigeria are of two categories. The first category which consists of

Lagos and Kano are airports "where faeilities for the purposes of enactments relating to eustoms, health and immigration are available at all times." The second category of customs a1r- ports which includes Calabar and Maiduguri are airports "where any airerait wishing to land or depart from such places must give at least 48 hours prior ~otice of such landing or departure to the customs, health and immigration authorities at the place where the aerodrome is situated.

29Regu1ation 66. By a Notam of 1967, flights into Ca1abar were prohibited for emergency reasons. 91

(i1) Free zones in airports or bonded warehouses are places designated as such where aircraft or spare parts, foo~fuels, lubricants and other aircraft stores imported from abroad could be stored or allowed to remain dut Y free under customs supervision pending re-exportation. The designation of thes8 zones or approval of bonded warehouses forms part of the administrative duties~ of respective local customs authorities.

(i11) In Article 5(2) of our Standard Draft the fol- lowing are exempt from customs duties, fees and charges:

"(a) aircraft stores taken on board in the ter­ ritory of a Contracting Party, within limits fixed by the authorities of the said Con­ tracting Party, and for use on board out­ bound aircraft engaged in an international service of the other Contracting Party; (b) spare parts introduced into the territory of either Contracting Party for the main­ tenance or repair of aircraft used on inter­ national services by the designated airlines of the other Contracting Party; (c) fuel and lubricants dastined to supply out­ bound aircraft operated on international services by the designated airlines of the other Contracting Party, even when these supplies are to be used on the part of the journey performed over the territory of the Contracting Party in which they are taken on board.

Article 5(1) of our Standard Form and Article 6(1)

of the Agreement with the U.S.S.R Q similarly exempt from all customs duties, inspection fees and other similar charges air- craft operated on international services by the designated 92

airlines of eitherContracting Party. This· exemption ls alao extended to their regular equipment, supplies of fuel and lubrlcants, and aircraft stores (including food, beveragea and tobacco) on such aireraft.

It ls perhaps relevant to make one comment here eon~ cerning the Customs provisions in bilateral air agreements.

It seems to us that sinee in the preamble to a bilateral air

.services agreement between two Contraeting States i~d;S:' spe~lfically stated that an agreement 1s supplementary to the Chicago Con­ vention;, and since all the exemption privileges granted to air transport have been multilaterally recognized in Article 24 of the Convention, it would be quite logioal if Article 5 of the Standard Form vere omitted in future bilateral agreements.

Commercial Regime

The "Grant of Rights Clause" referred to above in our discussion of the legal regime stipulates the framevork of the rights granted by the Contraeting Party. The actual economie exploitation of these rights, and the procedure to be folloved form the subject of our discussion here.

The principal problems which often arise in this connection are as follows:-

(i) In Article 3(i) of the Standard Form provision is made for 93 each Contraeting Party to have the r.ight to designate "one or more airlines" for the purpose of operating the agreed services on the speeified routes. In those eountries where there 1s a

.strict licensing poliey such as the U.K. and U.S.A., the licensing authorities grant operating permits to applicant airlines in . 30 such a manner that competition is controlled on a given route.

Some countries, too, operate a single international airline which is usually designated as the national flag carrier in the

Memorandum ·of Understanding. 3l However, it 1s not unknown for a country to designate a second air1ine to operate a part of the agreed services.

This point came up for consideration in the Exchange of Notes32 between the U.S. and Japan for the amendment of the

Civil Air Transport Agreement33 between the two countries.

The Schedu1e to the Japanese note provides that:

"(A) An airline or air1ines designated by the Government of Japan sha11 be entitled to operate

30See U.K. Civil Aviation (Licensing Act, 1960, Section 2, 8 and 9 ELIZ. 2 Ch. 38. See a1so Federal Aviation Act of 1958. Sec. 102 (72 Stat. 740, 49 U.S.C. 1302.) ; Sec. 802. (72 Stat. 783, 49 U.S.C. 1462.) ; Sec. 402. (72 Stat. 757, 49 U.S.C. 1372.) ; Sec. 401. (72 Stat. 754, as amended by 76 Stat. 143, 49 U.S.C. 1371.) 31See page 105-6 infra.

32U•S• Dept. of State Bulletin, Vol. LIV, No. 1387 of 24th January 1966 at pp. 141-143.

33T1AS , 2854, 4158. 94

air services on each ot the att routea specified, in both directions, and to make scheduled landinga. in the United States of America at the pointa apecified in this paragraph".34

Paragraph (B) g1vea reciprocal right to the U.S.

In the Annex to the Bchedule, however, an elaborate description was given as to the procedural steps to be observed in making such designation. It was understood by the parties intends that (A) In the event the Government ot the United States air to designate more than one United States airline to operate route services from New York to Japan under the United States

described in paragraph (B)(l) of the Sohedule, the Government ot of the United States will notify the GO.yernment ot Japa!' With- this intention sixt Y days in advance ot the designation. States out prejudice to the right of the Government of the United of to designate the airline or airlines concerned at the end

such sixt Y days, the United States will, on request ot the

Government ot Japan, consult vith Japan prior to the expiration Agreement. 1I35 of such sixtY daya in accordance vith Article 16 of the Once again, as far as Nigerian bilaterals are coneerned, Ve ve may take the Air Afrique countries tor illustration.

discussed above hoy an accumulation of 3rd and 4th traffie

34Xote 32 supra at p. 141.

35 1d• p. 142. 95

rights at the disposal of a consortium may result in a surplus

of sueh traffic rights which could be usefully exploited by

Air Afrique.. This may indue. a national domestic airline of

a member country of the ConsortiUD to designate its domestie

air1ine to operate on a part of the given route, in order to

maximize the utility of the traffie rights granted to it under

a bilateral agreement. This possibility may need to be guarded agains either by amending Artiole 3(i) of the Standard Form to

provide that a Contracting Party shall have the right to designate

only one airline; or alternatively c1arify this article in a

Memorandum of'Understanding. j (2) Article 3(3) requires that an air1ine even atter

the conclusion of a bilateral agreement, and its designation

in writing, still has to satisfy the Aeronautiea1 Authorities

that "it is qualified to fulfi1 the conditions prescribed under

the 1awa and regulations norma11y and reasonably app1ied to

the operation of international air services".3.6

(3) Tariff provisions in bilateral Air Transport

Agreements do not generally create any special difficulties.

36See for example how this system operates in the U.S.. Calkins, "The Role of the Civil Aeronauties Board in the Grant of Operating Rights in Foreign Air Carrlage," 22 J. Air L. and Com. 253 (1955), See also the fo11owing Re1ease by the C.A.B. (1966) on "The Role of the Civil Aeronautics Board in Licensing Foreign Air Carriers", by Whitney Gi1liland, Member C.A.B~ 96

Governmenta and Airlines have come to rely on IATA and it. rate fixing machinery in the negotiations and enforaement of the complex problems involved in fares, rates and taxes connected vith the carriage of passengers, mail and cargo.'7

(4) Article 4 of the Standard Form contains the conditions vhereby an operating permit may be revoked. Here the sost important condition vhich is carefully considered ia the "substantial ovnership and effective control clause".,a Dif- ficulties arise here in connection vith joint operating agencies such aa Air Afrique and SAS, subatantial ownership and effective control of vhich Airlinea are not vested in the nations of any one State in the Consortium. Hovever, this difficulty la over- come by a sympathetic friendly understanding than by a strict adherence to a legal Interpretation of the clauae.

(5) One of the most important outcomes of the Berauda

Conference is the elaboration of "the fair and equal opportunityn rUle. 39 This rule has nov become a very important clause in bilateral aviation agreements, particularly among unequal parties.

37Xoffler, "IATA : Its Légal Structure - A Critical Reviev," 32 J .A.L. &: C. 222 (1966}J See also Sheehan, "The lATA Traffie Conferences," 7 Southvestern L.J. 135, (1953). IATA, Act of Incorporation, Articles of Association; Rulea and Regulations of International Air Transport Association (7th Publication, 1965).

3Bwassenbergh, op. cit., n. 20 supra.

39Supra, ; p. 13. 97

a For example, it i8 of primary concern for a country vith saall national carrier to insist that the type of aireraft vhich the other country will operate on a given route shall be of similar versatility and capaeity. If ODe of the Parties engine operate a jet aircraft while the other operates a piston aeroplane, one can hardly de scribe those operations as being must "fair and equal". Similarly the capacity of the aireraft of he nearly equal, as Article 7(2) puts a limit on the number 40 seats to be offered under the agreement. It may be pointed tera out that for a lawyer in a common law jurisdiction, the the "fair and equal" opportunity is readily understood. To

civilians hovever, it vould appear that a precise mathematical

'la .1' 41 expression such as Iifty fift3 ia preferable. This ve Bubmit 42 vith respect ia poor drafting technique. (6) The procedure laid down for capacity review and not the "origine and destination" of traffic in Article 9 has The created any special problem up till now in our bilaterals.

40See definition of the term "pre-determination" at p.33-34 supra. 41ICAO Reg. No. 1864, Nigeria-Togo Agreement, Art. 13; the See also Ralph Azz1e, "Some Specifie Problems Solved by McGill Negotiations of Bilateral Air Agreement", Vol. 13 (1967) L.J. p. 306 vhere this tera is also employed. 42 Bin Cheng, op. ci$., supra note 27 p. 34 at pp. 215-218 where the learned author drev attention to the general agree­ staridard of draftamansh1p in international aeronautieal 10C.L.P. ments. See also his "Centrifugal Tendencies in Air Law", pp. 200-222, (1957). 98

reason for this can be e.xplained s·imply. Aviation and traffic potentialities 1s still developing in Nigeria, and it may still tate some further time for that potential to be reached when

"capacity review" and "origins and destinations" become sig- nificant in our bilateral air agreements.

(7) Article 10 of' our Standard Fom dealing vith the ~ep.triation of earninga has been altere4 f'rom the Bermuda type of wording to the ECAC f'orm. While the f'ormer gives an absolute right to transter excess of earnings over expenditure ab~oad, the latter form provides that such tranef'era could only be made in accordance with any paymenta agreements existing between the two countries. Under the Exchange Control Act

1962, the transfer of' currency abroad vithout the permission of' the Minister of Finance is prohibited. However in order to facilitate transf'ers of currencies abroad without unduly jeopard1zing our economy, or causing hardship to foreign air- lines, this provision for special transf'er agreement vas incorporated. 43

Settlement of Disputes

It is a customary practice for tr~aties to contain

&.Settlement of Disputes clause. Bilateral Air Services Agreements

43We may point out that under this Article no payments agreement has so far been concluded. 99 of Nigeria follov this general practice. The firat procedure laid down in our Standard Form and negotiated agreements provide that if ~ dispute should arise betveen the Contracting Parties as to the interpretatioD or application of an agreement, the

Aeronautical Authorities should endeavour to aettle it by ne- gotiation betveen the.selves. Failing to reach an agreement by negotiatioD, a'second procedure ia provided for. That is, settlement could be effected through Diplomatic correspondence.

In this instance it is not indicated what extent of negotiations vas necessary before the condition could be met that a dispute could not be aettled by negotiation.44

A third provision for settlement of dispute is that of reference of the dispute for decision "to some person or body" •. Fourthly, if the Contracting Parties cannot agree on such reference, resort could be made at the request of either

Party to an Arbitral Tribunal.

the Agreements set out in elaborate detail the number, mode of appointment, expenses of the Tribunal, the binding effect of an Arbitral avard and the consequences of non-compliance vith such avard. 45

44Article 16 of the Nigeria-USSR Air Services Agreement.

45See Article 12 of the Nigerian Standard Form in Appendix 2 infra. 100

It is gratifying to note that very fev dispute~ in- volving international air ~ranaport agreementB.exhauat all the full procedures uaually laid down in bilaterala bafore a settle- ment 1s reached. By general pract1ca States Bettle their dis- putes through Consultation and negot1ation. One oalls to mind the precedents created by the two disputes vhere states have ·46 resorted to arbitration. In the 1963 France-U.S.A. Arbitration, two questions came up for resolution. Firstly what is the meaning of the term "Near East" &s used in the contractual text of the U.S.-France bilaterals of 1946 in Schedule Il,

Route 1 of the agreement. Secondly, what are the legal con se- quences of the temporary authorisation given by France under protest to Pan~ls successive variations and extensions of its traffic rights through Paris to points beyond in Turkey,

Baghdad and Teheran. The tribunal decided that neither Istanbul,

Ankara nor Teheran could be included in the description "Hear

East" for the purposes of interpretation of the 1946 bilateral agreement. It decided further that Pan· .. !m was entitled however

46Decision of the Arbitration Tribunal established pursuant to the Arbitration Agreement signed at Paris on Jan­ uary 22, 1963, between The United States of America and France. Decided at Geneva on December 22, 1963 published in 3 Inter­ national Legal Màterials (1964), p. 668; See also ITA Studies No. 66/2-E (1966); Institut de Transport Aerien. Further see article by P.B. Larsen, "Arbitration of the United States-Franee Air Traffie Righta Dispute", J.A.L. and C. (1964) 231-247. 101

to operate services betveen the U.S. and Iran or Turkey via

Paris. In such operations the Arbitrators were ot the opinion that the U.S. designated carriers could exercise 5th tre.dom traiiic rights betveen Paris and points in Iran.

The Second Arbitration proceedings involveda dispute betveen the United States and Italy. Prior to the conclusion of the Air Transport Agreement of 6th February, 194847 United

States operators have been operating all cargo services betve~n the U.S. and Italy, by a temporary concession granted to the

U.S. operators. It is fair to say that Italian operators also vere in aocordance vith the general international practice of reciprocity permitted to operate all cargo services betveen

Italy and the United States. Hovever after the conclusion ot a formal bilateral treaty betveen the tvo countries, the United States operators vanted to increase the frequency of its all cargo services to Italy, and also substituœjet aireratt for the piston engine4 aircratt hitherto in operation. This request of the United States operators vas rejeeted by the ltalian government on the grounds that the agreement of 1948 did not envisage the operation of all-cargo services. lt further con- tended that the available tratfic did not justity any increase in the present frequencies being operated by U.S. operators.

47 T.l.A.S., No. 3513, U.S. Dept. of State; also U.N.T.S. Vol. 73, 1950. 102

The folloving question vas therefore referred to

Arbitration. "Does the Air Transport Agreement betveen the

United States of America and Italy of February' 6, 1948, as amended, grant the right to a des1gnated airline of either party to operate scheduled flights carrying cargo only?" Doc- umentary pleadings were filed vith the Tribunal, and oral sub- missions vere made by Counael for the Parties.

By tvo votes to one the Arbitral Tribunal gave an affirmative reply to the question reterred to it. The dissenting opinion of Riccardo Monaco vas appended to the Majority Adviaory Opinion. 48

In the Agreement with Liberia, tvo new departurea were introduced into the Bettlement of Disputes Clause in our

Standard Form. The first provided for reference of a dispute to the Commission of Mediation, Conciliation and Arbitration of the Organisation of Africau Unity. This is a significant novel development in bilateral air agreements, as this was the

48AdVisory Opinion of the Arbitral Tribunal Constituted 1n virtue of the Compromise Signed at Rome on 30 June 1964 by the Governments of the United States of American and of the Italian Repub11c, given at Geneva on l7th July, 1965. Published in (1965) International Legal Materials Vol. Iv p. 974-987. See also article by M.A. Bradley, "International Air Cargo Services :. The Italy-U.S.A. Air Transport Agreement Arbitration. (1966) Vol. 12 McGill Law Journal p. 312-326. 10'

first time that a purely international Regional institution

has been saddled with such a highly spec1alised function. The

second departure involved a provision for an appeal to the

ICJ. 49

. Termination

, Like all other agreements. air Transport Agreements are also subject to termination. However, unlike other agree-

ments, termination of an Air Transport Agreement has immediate

poli·tical effect that such an action tantamounts to a break in

diplomatie relations and ia therefore rarely resorted to.

Three provisions exist in. our Standard Draft to meet this con-

tingency.

i. Where one party fails to comply with an Arbitral award

under Article 12(5)

ii. Under a general right of termination irrespective of

fault in Article 15

iii. Under Article 16(') where an agreement has been brought . 50 into effect provisionally from the date of signature.

49Both Nigeria and Liberia are parties to the Convention For the Pacifie Settlement of '[ilternational Disputes •.

50See the legal distinction above as to the Nigerian practice, concerning, initialing and signature. It would a·ppear that: this article could also cover instances where an agreement was initialled, and either party did not take steps to invoke its internal Constitutional machinery leading to formal signature or ratification. 104

This power to terminate an agreement referred to above should hovever not be confused vith the power in Article 4 to revoke an operating authorisat1on or suspend the exercise of traffic rights in any case where one party His not satisfied that substantial ownership and effective control of an airline is vested in a Cont~acting Party or nationals of that Contracting

Party", or of failure of '$!J.at a~rline to comply with the laws or regulations of the Contracting Party granting these rights", or failure by an airline "to operate in accordance with the conditions prescribed under the agreement. fI

Memorandum of Understanding

In treaty law, a Memorandhm of Understanding denotes

"an informal but nevertheless legal agreement between two or more States, particularlyvhen that agreement forms a step in the process of tidying up a complicatéd si tuati·on". 51 In bi­ lateral Air Tr4nsport Agreements, a Memorandum of Understanding which is invariably a secret document and subsidiary to it may be used to:-

(a) Exp~ain or clarify obscure provisions in an agree­

ment, e.g. the term "in both directions", in the

5lLord McBair, op. cit., p. 17 n.l: Supra at p. 15. 105

determination of frequencies to be operated on a

given route over a given periode

(b) It mal" be used where actua1 statistics are available

to specify the actual number of passengers to be

1ifted or discharged in each other's territory.

(c) It may be used to vary the agreement completely.

For example vhere a country normal1y negotiates and

has negotiated on the princip1e of pre-determination

of capacity, a secret memorandum of understan41ng"m~y

be used ta vary that principl•. to one of absolute

free competition. While reelprocity is prima facie

preserved in the agre.ment;: in practice there is no

true reciprocity.

(d) A Memorandum could be emp10yed to explain certain

aspects of the domestic lavs of the other Contracting

Party. ,An example of this is the practice of

"expatriate Quotas" in some countries vhere for

the purposes of preventing discrimination in employ­

ment, or solving the unemployment problems in a

country, the lav requires that a percentage of the

employees of any busine8s undertaking operating in

the country must be indigenou8 citizens.

(e) Where one country has more than one national flag 106

carrier a Memorandum cou1d be resorted to in designating

one of these air1ines to operate a route or routes

specifiedin the agreement. This becomes important

where the text of.the agreement provides that either

party may designate "one or more airlines".

(f) Where a country has more than one customa airport,

and where the route Behedule in the annex to the bi­

lateral agreement indicate. "one/or other" of these

airports as the traffie point to be served in the

territory, a Contracting Party desirous of deve10ping

another traffie center in its territory may obtain

an assurance from the other Contracting Party by a

Memorandum of Understanding that a specified number

of services vil1 be operated through that other air­

port which that Party intends to deve10p.

A Memorandum of Understanding being a secret, confidential document is in practice never registered with the Counci1 of ICAO as required under Article 83 of the Chicago Convention 1944, nor with the Secretary General of the UN under Article 102 of the

Charter. The reason for this is tvofold. Firstly, a Memorandum of Understanding may deal vith pure1y commercial arrangements between the tvo designated airlines of the Contracting Parties.

In such instance the Memorandum of Understanding becomes an 107

informal commercial arrangement betveen airline8, and is s1gnet

as such b~ their. respective competent author1t1ea.

Secondly, .where the Contracting Parties or the1r

Aeronautical Authoritiea 8ign a Memorandum of Understanding

subsequent to an Air Services Agreement, or some other arrange­

ments mutually beneficial to both Parties but tied up vith the

Air Services Agreement, it 1s customary to respect the confi­

dential nature of such arrangements by refra1ning from publi­

cation or d1vulglng the contents of such meaorandum to thlrd

Parties.

In the light of the above analysis there is in our humble opinion a danger that a Memorandum of Understanding may be turned 1nto a respectable legal cloak for perpetuating otherwise objectionable conduct. However, since this is an area where Governments or their Agenoies exeroise sovereign rights to enter into binding contracts, and sinee this praetice appears to york satisfactorily vith all eoncerned, it would appear that it may develop in the fore-seeable future ae a normal praetice or development in negotiations of bilateral

Air Transport Agreements. 108

CONCLUSIONS

Our analysis and discussion above of the Bilateral

Air Transport Agreements of 'Iigeria lead us to the following

conclusions.

(r) All the bilaterals inherited by Nigeria, par- ticularly the Bermuda Agreement should be re-negotiated as soon as possible to reflect the changed status of the country, and bring our aviation policy in respect of the United States into line vith our policy vith other countries.

(ii) All the Air Services Agreementa concluded vith the individual Statea participating in Air Afrique: should be revieved and replaced vi th a single agre_entl negotiated jointly vith all the States participating in the Consortium. In theory, hovever, those States vill sign separate agreements as a matter of administrative routine as vas done in the agreement vith the Scandinavians. The effect of this vould be to readjust the amount of traffic rights exercised by Air Afrique in à, manner more beneficial to Nigeria Airvays and Air Afrique than iG othervise the case at present. In this connection, we vould suggest further that the pOlicy of the exchange of c~pital for capital should be revieved and replaced vith a policy of re- ciprocal exchange of traffic generating points of equal potential. 109

(Ui) In order to accelerate the development of should air transport in Nig.ria, more of our dOmeetic airporte be developed and thrown open to international tra~fic. This could be achieved by offer1ng additional routes and frequencies to to toreign airlinea as an inducement for them to operate such airports. In this exerciee the vast hinterland of Nigeria vould be vithin easy reach of the major capitale of the vorld. country, It vould, in addition, foster the politica1 unit y of the the and bring economic deve10pment to those neglected ar81B0f Since interior. Ve may il1ustrate this point by one examp1e. in 1961 to the withdr~wa1 of Southern Cameroons from ligeria

j01n with the French Cameroons in a nev federation our intel"- national airport in Calabar has virtually gone into disuse. of the The Colonial Development Corporation which provided Most plant- traffic betveen this airport and the headquarters of its is our ations at Tiko nov use Douala to carry this traffic. It traffic submission that a revival of this airport as an important all center ie possible if oftered as an additional point for to airlines operating more than one service through Nigeria

Central,East and South Atr1ca. Such an arrangement may divert

traffic trom Douala to Calabar. 1 Under the Exchange Control Act 1962, transfer the of currency abroad from Nigeria 1s prohibited except with

1 1962, Ho. 16. 110

2 permission of the Minister of Finance. The BCAC Standard

Clauses on which the Nigerian. Standard Draft is based envisagea a system of iree transfer at the official rate of exchange of the excess of receipts over expenditure, earned by a1rlines in connection vith the carriage of passengers, mail and cargo.

However, this clause has been modif1ed by the addition of a further clause which envisages the conclusion of a payments agreement. In this connection, nQ pay,ments agreement has so far been made. If the original purpose of the Exchange Control

Act 1962' and the clau*, in the bllateral agreements providing for a strict currency control system ia to protect our monetary system and balance of payments position, it appears to us that the conclusion of payments agreements with various countries should not be delayed any longer. It seems to us further that such agreements will not only be beneficial to civil aviation, but other sectors of the economy as wel~

2 See pa~ 19 note; supra. The office of Minister of Finance ia now designated Commissioner for Finance.

'Note 1 supra. 111 ..

APPENDIX l

EXCHANGE OF NOTES - l

Stockholm, 8th September, 1966

The Minister for Communications

Your Excellency,

Vith reference to the Agreements signed to-day betveen the Government of Sveden and the Government of Nigeria l have the honour to notify you that, in accordance vith Article, of the Agreement, the Swedish Government designate AB Aerotransport (ABA) to operate the routes specified in the Annex attached to the Agreement. In this connection l have the honour to confira, on behalf of my Government, the following understanding reached in the course of the negotiations preceding the signature of the Agreement:- (1) AB Aerotransport (AM) co-operating vith Det Norske Luftfartselskap (DNL) and Det Danske Luftfartselskab (DDL) under the designation of Scandinavian Airlines System (SAS) may operate the services assigned to it under the Agreement vith aircraft, creys and equipment of either or both of the other tvo airlines. (2) In so far as AB Aerotransport (ABA) employ aircraft, crevs and equipment of the other airlines participating in the Scandinavian Airlines System (SAS), the provisions of the Agree­ ment shall apply to such aireraft, creys and equipment as though 112

they vere the aireraIt, crews and equipment of AB Aerotransport (ABA), and the competent Svedish authorities and AB Ae:cotransport (ABA) shall accept full responsibility under the Agreement therefor.

Pl~ase accept, Your Excellency, the assurances of my highest consideration.

His Excellency Hen'ry O. Omenai, Permanent Secretary, (Sgnd) Olof Palme Ministry of Transport. 113

NOTE II

. Stockholm, 8th September, 1966.

Your Excellency,

1 have the honour to acknovledge receipt of your let ter of the 8th day of September, 1966 referring to the Agree­ ment Betveen the Kingdom of Sveden and the Federal Republic of Nigeria on Air Services, the text of which is the following:- (1) AB Aerotransport (ARl) co-operating with Det Norske Luftfartselskap (DNL) and Det Danske Luftfartselskab (DDL) under the designation .of Scandinavian Airlines System (SAS) may operate the services assigned to it under the Agreement with aircraft, creys and equipment of either or both of the other tvo airlines. (2) In so far as AB Aerotransport (ABA) employ aircraft, creys and equipment of the other airlines participating in the Scandiaavian Airlines System (SAS), the provisions of the Agree­ ment shall apply to such aircraft, creys and equipment as though they vere the aircraft, creys aad equipment of AB Aerotransport (ABA), and the competent Svedish authorities and AB Aerotransport (ABA) ehall accept full responsibility under the Agreement therefor. On behalf of the Federal Republic of Nigeria 1 have the honour to confirm the above understanding reached in the course of the negotiations preceding the signature of the Agree- ment. 1 avail myself of this opportunity to express to Your Excellency the assurances of my highest consideration.

His Excellency Olof Palme Minister of Communication (Sgnd) Henry O. Omena1 Ministry of Communication

18 ICAO Reg. No. 1927 114

APPENDIX 2

AGREEMENT BETWEEH THE FEDERAL REPUBLIC OF NIGERIA AND THE GOVERNMENT OF

FOR AIR SERVICES BETWEEH AND BEYOND THEIR RESPECTIVE TERRITORIES

The Government of the Federal Republic of Nigeria and the Government .of ______

Considering that the Federal Republic of Nigeria and

are parties to the Convention on International Civil Aviation opened for signature at Chicago on the seventh day of December,

1944, and

Desiring to conclude an Agreement, supplementary to the said Convention, for the purpose of establishing air services between and beyond their respective territories,

Have agreed as follows:· 115

ARTICLE 1

For the purpose of the present Agreement, unless the context otherwise requ1res,-

(a) the térm "the Convention" means the Convention on Inter­ national Civil Aviation opened for signature at Chicago on the seventh day of December 1944 and inc1udes any Annex adopted under Article 90 of that Convention and any amendment of the

Annexes or Convention under Articles 90 and 94 thereof so far as those Annexes and amendments have been adopted by both Con­ tracting Parties;

(b) the term "aeronautica1 authorities" means, in the case of the Federal Repub1ic of Nigeria, the Minister responsib1e for civil aviation matters and any person or body authorised to perform any funct10ns at present exercised by the said Minister or simi1ar functions, and, in the case of

• • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •

• • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • and any person or body authorised to perform any functions at present exercised by the said • • • • • • • • • • • • • • • • • • •

• • • • • • • • • • • • • • • • • • • • • or simi1ar functions~ (c) the term "designated air1inett means an air1ine which has been designated and authorised in accordance with Article 3 of the present Agreement; 116

ARTICLE l (Continued)

(d) the term "territory" in relation to aState means the land areas and territorial waters adjacent thereto under the sovereignty, protection or trusteeship of that State; and

(e) the term "air service","international air service", "A1r­ linett and ttstop for non-traffic purposes" have the meanings respectively assigned to them in Article 96 of the Convention. 117

ARTICLE 2

(1) Each Contraeting Party grants to the other Contraeting

Party the rights speeitied in the present Agreement for the purpose of establishing seheduled international air services on the routes spec1tied in the appropriate Section of the Sehedule annexed to the present Agreement. Sueh services and routes are hereafter ealled "the agreed services" and "the speeitied routes" respeetively. The airlines designated by each Contraeting

Party shall enjoy, while operating an agreed serviee on a speeified route, the following rights:

(a) to fly without land1ng aeross the territory of the

other Contracting Party;

(b) to make stops in the said territory for non-traffie

purposes; and

(c) to make stops in the said territory at the points

specified for that route in the Sehedule to the

present Agreement for the purpose of putting down

and taking up international traffie in passengers,

cargo and mail.

(2) Nothing in paragraph (1) of this Article shall be deemed to confer on the airlines of one Contracting Party the privilege of taking up, in the territory of the other Contraeting Party, 118

ARTICLE 2 (Continued)

passengers, cargo or mail carried for :'remunerat1on or hire and destined for another point in the territory of that other

Contracting Party. 119

ARTICLE'

(1) Each Contracting Party shall have the right to designate in vriting to the other Contracting Party one or more airlines for the purpose of operating the agreed services on the specified routes.

(2) On receipt of such designation, the other Contracting

Party shall, subject to the provisions of paragraphs (3) and

(4) of this Article, without delay grant to the airline or airlines designated the appropriate operating authorisations.

(3) The aeronautical authorities of one Contracting Party May require an airline designated by the other Contracting Party to satisfy them that it ia qualified to fulfil the conditions prescribed under the lavs and regulat10ns normally and reasonably appl1ed to the operation of international air services by such authorities in conform1ty vith the provisions of the Convention.

(4) Each Contracting Party shall have the right to refuse to grant the operat1ng authorisations referred to in paragraph~) of this Article, or to impose such conditions as it May deem necessary on the exercise by a designated airline of the rights specified in Article 2 of the present Agreement, in any case vhere the said Contracting Party 1s not sat1sfied that substantial ovnership and effective control of that airline are vested in the Contracting Party designating the airline or in its nat:lonals. 120

ARTICLE , (Continued)

(5) Vhen an airline has been 80 designated andauthorised, it may begin at any time to operate the agreed service provided that a tari ft established in accordance vith the provisions ot Article 8 of the present Agreement is in force in respect of that service. 121

ARTICLE 4

(1) Each Contracting Party shall have the right to revoke

an operating authorisation or to suspend the exerciae of the

rights specitied in Article 2, of the present Agreement by

any airline designated by the other Contracting Party, or to

impose such conditions as it may deem necftssary on the exer­

cise of these righta:

(a) in any case vhere it ia not satisfied that substantial

ownership and effective control of that airline are

vested in the Contracting Party designating the air­

line or in nationale of such Contracting Party, or

(b) in the case of fa11ure by that airline to comply

vith the lavs or regulations of the Contracting

Party granting these rights, or

(c) in case the airline othervise tails to operate in

accordance vith the conditions prescribed under the

present' Agreement.

(2) Unless immediate revocation, suspension or imposition

of the conditions mentioned in paragraph (1) of this Article

is essential to prevent further infringements of lavs or regu­

lations, such right shall be exeroised only after consultation

vith the other Contracting Party. ~. 122

ARTICLE 5

(l) Aireraft operated on international services by the desig- nated airlines of either Contracting Party, as well as their ., regular equipment, supplies of fuels and lUbrioants, and air- oraft stores (includ1ng food, beverages and tobacco) on board such a1rcraft shall be exempt from all customs duties, inspection fees and other similar charges on arr1ving in the territory of the other Contracting Party, prov1ded such equipment and supplies remain on board the aircraft up to su ch time as they are re-exported or are used on the part of the journey performed over that territory.

(2) There shall also be exempt from the same dut1es, fees and charges, with the except10n of charges corresponding to the services performedJ

(a) aircraft stores taken on board in the terr1tory of

a Contracting Party, within limits fixed by the

authorities of the said Contracting Party, and for

use on board outbound aireraft engaged in an inter-

national service of the other Contracting Party;

(b) spare parts 1ntroduced 1nto the terr1tory of either

Contracting Party for the maintenance or repair of

aireraft used on international services by the 123

designated airlines of the other Contracting Party;

(c) fuel and lubricants destined to supply outbound air­

craft operated on international services by the

designated airlines of the other Contracting Party,

even when these supplies are to be used on the part

of the journey performed over the territory of the

Contracting Party in which they are taken on board.

Materials referred to in sub-paragraphs (a), (b) and (c) ab ove. may be required to be kept under Customs supervision or control. 124

ARTICLE 6

The regular airborne equipment as well a8 the materials and supplies retained on board the aireraIt ot either Contraet1ng Party may be unloaded in the territory ot the other Contraeting Party only with the approval ot the Customs authorities ot that territory. In sueh case, the, _ay be plaeed under the supervision ot the said author1t1es up to sueh ti~e as they are re-exported or otherwise d1sposed ot in aecordanee with Customs regulations. 125

• ARTICLE 7

(1) There shall be fair and equal oPPQrtunity for the

designated airline of each Contracting Party to operate

the agreed services on the specified routes.

(2) The inauguration and subsequent operation of the

agreed serviceè on the specified routes shall be strictl,

within the limits set out in the Annex to this Agreement

or as it may be amended from time to time. 126

• ARTICLE 8

(1) The tarifta ta be charged by the airlinea of one Contracting

~arty for carriage ta or from the territory of the other Con­

tracting Party shall be established at reasonable 1evelB due

regard being paid to all relevant factors including coat of

operation,_reasonable profit and the tariffs of other airlines.

(2) The tariffs referred to in paragraph (1) of this Article,

together vith the rates of agency commission applicable, shall,

if possible, be agreed by the designated airlines concerned

of both Contracting Parties, in consultation with other airlines

operating over the whole or part of the route, and such agreement

shall, where possible, be reached through the rate-fixing machinery

of the International Air Transport Association.

(3) The tarifts so agreed shall be submitted for the approval

of the aeronautical authorities of the Contracting Parties at

least thirty (30) days before the proposed date of their intro­

duction;; in special cases, this time limit may be reduced sub­

ject to the agreement of the said authorities.

(4) If the designated airlines cannot agree on any of these

tariffs, or if for some other reason a tariff cannat be fixed

in accordance vith the provisions of paragraph (2) of this

Article, or if during the first fifteen (15) days of the thirty

(30) days' period referred ta in paragraph (3) of this Article 127,

• ARTICLE 8 (Continued)

one Contracting Party gives the other Contracting Party notice

of it. dissatisfaction vith any tariff agreed in accordance

vith the provisions of paragraph (2) of this Article, the aero­

nautical authorities of the Contracting Parties shall try to

determine the tariff by agreement betveen themselves.

(5) If the aeronautical authoritiea cannot agree on the

approval of any tariff submitted to them under paragraph (3)

of this Article or on the determination of any tarift under paragraph (4), the dispute shall be settled in accordance vith

the provisions of Article 11 of the present Agreement.

(6) Subject ta the provisions of.paragraph (5) of this Article,

no tarifr shall come into force if the aeronautical authorities

of either Contracting Party have not approved it.

(7) The tarifrs established in accordance vith the provisions

of this Article sha11 remain in force unti1 nev tariffs have

been estab1ished in accordance vith the provisions of this

Article. 128

• ARTICLE 9

The aeronautiea1 authorities of either Contraeting

Party shal1 8upply to the aeronautieal authorities of the

other Contraeting Party at their request such periodie or

other statements of statisties as may be reasonably required

for the purpose of reviewing the eapacity provided on the

agreed services by the designated airlines of the firet

Contracting Party. Such statements shall inelude all

information required to determine the amount of traffic

carried by those airlines on the agreed services and the.

origins and destination of such traffie. 129

• ARTICLE 10

Bach Contracting Party grants to the designated Air­

lines of the other Contracting Party the right of tree tran.ter

at the official rate ot exchange of the excess of receipts

over expenditure earned by those airlines in its territory

in connectton vith the carriage of passengers, mail and cargo. Whenever the payments system betveen Contracting Parties 1s

governed by a special Agreement, this agreeaent shall apply. ARTICLE 11

(1) In a spirit of close co-operation, the aeronautical authorities of the Contracting Parties shall consult each other from time to time vith a viev to ensuring the implement­ ation of, and satistactory comp1iance vith, the provisions of the present Agreement and the Schedules annexed thereto and sha11 a180 consult when necessary to provide for modification thereof.

(2) Bither Contracting Party may request consultation, which may be through discussion or by correspondanoe and sha1l begin vithin a period of sixt Y (60) days of the date of the request, unless both Contracting Parties agree to an extension of this periode ARTICLE 12

(1) If any dispute arises between the Contracting Parties

relating to the interpretation or application of the present

Agreement, the Contracting Parties shall in the first place

endeavour to settle it by. negotiation.

(2) If the Contracting Parties fail to reaoh a settlement

by negotiation, they may agree to refer the dispute for decision

to some person or body; if they do not so agree, the dispute

shall at the request of either Contraoting Party be submitted

for decision to a tribunal of three arbitrators, one to be

nominated by each Contracting Party and the third to be appointed

by the two so nominated. Each of the Contracting Parties shall

nominate an arbitrator within a period of sixt Y (60) days from

the date of receipt by either Contracting Party from the other

of a notice through diplomatie channels requesting arbitration

of the dispute by sueh a tribunal and the third arbitrator

shall be appointed within a further period of sixt Y (60) days.

If either of the Contracting Parties fails to nominate an arbitrator

within the perlod specifled, or if the third arbitrator ls not

appointed within the period speeified, the International Civil

Aviation Organisation may be requested by either Contraeting

Party to appoint an arbitrator or arbitrators as the case e 1'2 requires. In such case, the third arbitrator shall. be a national of a third State and shall act as President of the arbitral tribunal.

(,) The Contracting Parties shall comply with any decision given under paragrapn (2) of this Article.

(4) Bach ~ontracting Party will be responsible for the cost of 1ts designated arbitrator and subsidiary staff provided and both Contracting Parties shall share equally all such further expenses involved in the activities of the tribunal including those of the President.

(5) If as so long as either Contracting Party or a designated air11ne of either Contracting Party fails to comply with a decision given under this Article, the other Contracting Party may limit, withhold or revoke any rights or privileges which it has granted by v1rtue of the present Agreement to the Con­ tracting Party in default or to the designated airline or air­ lines of that Contracting Party. 133

If either of the Contraoting Parties considers it desirable to modify any provision of the present Agreement inc1uding the Schedules annexed thereto, such modification, if agreed betveen the Contract1ng Parties, and if necessary. after consultation in accordance vith Article 10 of the present

Agreement, shall come irito effect when confirmed by an Exchange of Notes. l~

ARTICLE 14

The present Agreement and 1ts Schedule shall be amended so as to conform w1th any Multilateral Convention which May become binding on both Contracting Parties. ARTICLE 15

Either Contracting Party may at any time give notice to the other Contracting Party of its decision to terminate the present Agreement: such notice shall be simultaneously communicated to the International Civil Aviation Organisation.

In such case the Agreement shall terminate twelve (12) months after the date of receipt of the notice by the other Contracting

Party, unless the notice to terminate i8 withdrawn b1 agreement before the expiry of this periode In the absence of acknowl­ edgement of receipt by the other Contracting Party, notice shall be deemed to have been received fourteen (14) days aiter the receipt of the notice by the International Civil Aviation

Organisation. 136

ARTICLE 16

(1) The present Agreement shall be subject to ratification by the Contracting Parties and instruments of ratification

shall be exchanged in • • • • • • • • • • • • • • (2) The present Agreement and its annex shall be provisionally applicable fromthe date of signature and shall come into force definitively on the date of exchange of instruments of ratification.

(3) If instruments of ratification are not exchanged within twelve (12) months"from the date of signature, either Contracting

Party may terminate the provisional application of this agreement by giving twelve (12) months' notice in writing to the other

Contracting Party.

In witness whereof the undersigned, being duly authorised thereto by their respective Governments, have signed the present

Agreement:

Done at • • • • • • this • • • • day of • • • • • 196 • . . in duplicate in the English and the French languages, both texts being equally authoritative.

For the Government of the For the Government of

Fed~ral Republic of Nigeria: • • • • • • • • • • • • • • 137

ANNEX

Schedule l

•• Routesto be operated by the designated airline of • • • • • •

4 Column (1) Column 2 Column '3 Column beyond Points of Intermediate Points in Point s more of Departure Points • • • • • (one or

(one or more • • • • • the following,

of the following, • • • • • if desired)

if desired)

1. The designated airline may

omit any point of any of

the flights on the specified

routes.

2. The designated airline may

terminate any of its services

on the specified routes. l3a

APPENDIX 3

AIR TRANSPORT AGREEMENT BETWEEN THE GOVERNMENT OF THE UNION OF SOVIET SOCIALIST REPUBLICS AND THE NATIONAL MILITARY GOVERNMENT OF NIGERIA

The Government of the Union of Soviet Socialist

Republics and the National Military Government of Nigeria desiring to conclude an Agreement with the aim of establishing air transport services, between their two countries have agreed as follows: 139

Article l

For the purpose of the present Agreement, unless the context otherwise requirest

(a) the term "aeronautical authorities- means in the case

of the Republic of Nigeria, the Federal

Ministry charged with responsibility for civil aviation

matters and any person or body authorised to perform

any functions at present exercised by the said M1nistry

respons1ble for civil aviation matters or similar

functions, and, in the case of the Union of Soviet

Socialist Republics, the Ministry of Civil Aviation

of the U.S.S.R. and any person or body authorised by:

the said Ministry of Civil Aviation to

perform any functions at present exercised by the said

Ministry of Civil Aviation or similar functions;

(b) the term tldesignated airline- means an airline which

has been designated and authorised in aceordance with

Annex 1 to the present Agreement;

(c) the term "air service" means any scheduled air service

performed by aireraft for the public transport of

passengers, mail or cargo;

(d) the term "territory" in relation to astate means

the land areas and territorial waters adjacent thereto

under the sovereignty of that State; 140

Article 1 (Continued)

(e) the term "international air service" means an air

service which passes through the air space over the

territory ot more than one State. (t) the term "Air1ine" means any air transport enterprise

ottering or operating an international air service;

(g) the term "Stop for non-traffic purposes" means a

landing for any purpose other than taking on or dis­

charging passengers, cargo or mail. 141

Article 2

Each Contracting Party grants to the

other Contracting Party the rights enumerated in

Annex 1 to this Agreement for the purpose of

estab1ishing air services (hereinafter ca11ed

"agreed services") envisaged herein. 142

Article 3

1. The operation of the agreed services May commence immediately following the appointment by the respective

Contracting Party of its airline for the operation of these services.

2. The flight routes of aircraft on the agreed services and the pOints for crossing national boundaries shallbe established by each of the Contracting Parties within its territory.

3. All technical and commercial questions pertaining to the flights of aircraft and the transportation of passengers, baggage, cargo and mail on the agreed services as well as all questions concerning commercial co-operation, in particular the establishment of time tables, type of aircraft, rates, servicing of aircraft on the ground, and methods of financial accounting shall be resolved directly by the airlines designated by the Contracting Parties. 14'

Article 4.

1. Bach Contracting Party reserves the rights to temporarily suspend or revoke the rights specified in Annex 1 to this Agreement in any case when it does not have satisfactory evidence to the effect that substantial ownership of or actual control over the airline designated by the Contracting Party is vest~d in the nationals or agenc1es of that Contracting

Party, or in the case of non-observance by designated airline of lavs and rules spec1fied in Artice 6 or non-fulfilment of the conditions under vhich rights are granted in accordance vith this Agreement.

2. This right shall be exercised only after consultation between the Aeronautical Authorities of the Contracting Parties, unless immediate suspension of operation or the immediate introduction of restrictive conditions is essential to prevent further infringement of the laws and regulations. Article 5;

1. To ensure safety of flights on the agreed services

each Contracting Party shall grant to the aircraft of

the other Contracting Party necessary radio, lighting, meteorological and other facilities required for the operation of flights and shall convey to the other

Contracting Party data of such services and information

in regard to primary and alternate aerodromes where landing may be effected and in respect of flight routes within the limita of its territory.

2. Matters perta1ning to ensuring aafety of flights and to the responsibility of the Contraoting Parties in relation to the operation of the flights shall be within the competence of Aeronautioal Authorities of the Con­ tractiJng Parties as specified in Annex 2 of this Agreement.

,.- Annex 1 and the routes specified in Tables 1 and II of Annex 1 may be changed by agreement between the Aero­ nautical Authorities of the Contracting Parties within the period of validity of this Agreement. 145

Article 6

(1) Aireratt operated on international service. by the designated airlines ot either Contraetins Party, as well as their regular equipment, spare parts, supplies ot tuels and lubrieants, and aireraIt stores (inelud1ng tood, beverages and tobaeeo) on board sueh aireratt shall be exempt trom all customs duties, inspection fees and other s1milar charges on arriving in the territory ot the other Contracting Party, provided sueh equipment and supplies remain on board the aircraft up to such time as they are re-exported or are used on the part of the journey pertormed ov.r that territory.

(2) There shall also be exempt trom the same duties, tees and charges, vith the exception ot charges corresponding to the services pertormed:

(a) aircratt stores, regular equipment and spare parts

taken on board in the territory ot a Contract1ng

Party, vithin limits fixed by the authorities ot

the said Contracting Party, and for use on board

outbound aircraft engaged in an international service

ot the other Contracting Party;

(b) regular equipment and spare parts introduced into

the territory ot either Contracting Party tor the 146

Article 6 (Continued)

maintenance or repair of aireraft used on international

services by the designated airlines of the other

Contraeting Party;

(0) fuel and lubrieants destined to supply outbound air­

eraft operated on international services by the

designated airlines of the other Contraeting Party,

even when these supplies are to be used on the part

of the journey, pertormed over the territory of the

Contraeting Party in which they are taken on -'board.

Materials referred to in sub-paragr~phs (a), (b) and (e) above may be required to be kept under Customs supervision or control. 147

Article l

The regular airborne equ1pment,, as well as the materials and supplies retained on board the aireraft of either Contraeting Party may be unloaded in the territory of the other Contraeting Party only vith the approval of the Customs authorities of that territory.

In sueh case, they may be placed under the supervision of the said authorities of that territory. In such case, they may be placed under the supervision of the said authorities up to such time as they are re-exported or otherwise disposed of in accordance with Custom regulations •. 148

Article 8

1. The lave and regulations of each Contraeting Party

eoncerning the entry into and the exit from its territ~ry of aireratt engaged in international flight or the operation and navigation of sueh aireraft vhile within the limits of its territory shall apply to the aireraft of the airline designated by the other Contraeting Party.

2. The lavs and regulations of eaeh Contraeting Party eoncerning the arrival in or departure from its territory of passengers, erew, cargo or mail of aireraft, in par- tieular, rules eoneerning passports, eustoms, eurreney and quarantine formalities shall apply to the passengers, erev or cargo of the aireraft of the airline designated by the other Contraeting Party during the arrival in or departure trom the territory of the said Contraeting Party. 149

Article 9

(1) There shall be fair and equa1 opportunity for the designated airline of eacb Contracting

Party to operate the agreed services on the specified routes.

(2) The inauguration and subsequent operation of the agreed services on the specified routes

shall be strictly within the limits set out in

Annex l to this Agreement or as it may be amended

from time to time. 150

Article 10

Cl) The tariffs to be charged by the airlines of one Contracting

Party for carriage to or from the territory of the other Con­ tracting Party shall be established at reasonable levels due regard being paid to all relevant factors including cost of operation, reasonable profit and the tariffs of other airlines.

(2) The tariffs referred to in paragraph Cl) of this Article, together with the rates of agency commission applicable, shall, if possible, be agreed by the des1gnated airlines concerned of both Contracting Parties, in consultation with other a1r­ l1nes operating over the whole or part of the route. In any case the tariff charged shall not be 1ess than those charged by other air11nes already operating on the whole or part of the route.

(3) The tariffs so agreed shall be submitted for the approval of the aeronautical authorities of the Contract1ng Parties at least thirty (30) days before the proposed date of their intro­ duction;; in special cases, this time lim1t may be reduced, subject to the agreement of the said authorit1es.

(4) If the designated airlines cannot agree on any of t~lese tariffs, or if for some reason a tariff cannot be fixed in accordance with the provisions of paragraph (2) of this Ar~le, 151

Article 10 (Continued) or if during the first fifteen (15) days of the thirty (30) one days' period referred to in paragraph (3) of this Article

Contracting Party gives the other Contracting Party notice of its dissatisfaotion with any tariff agreed in aooordance with the provisions of paragraph (2) of this Article, the try aeronautical authorities of the Contraoting Parties shall

to determine the tariff by agreement between themselves.

(5) If the aeronautical authoritie8 oannot agree on the (3) approval of any tariff submitted to them under paragraph

of this Artiole or on the determination of any tariff under vith paragraph (4), the dispute shall be settled in accordance

the provisions of Article 16 of the present Agreement.

(6) Subject to the provisions of paragraph (5) of this Article,

no tariff shall come into force if the aeronautical authorities

of either Contracting Party have not approved it.

(7) The tariffs established in accordance vith the provisions have of this Article shall remain in force until nev tariffs

been established in accordance with the provisions of this

Article. 152

Article 11

The aeronsŒtical authorities of either

Contracting Party shal1 supply to the aeronautical authorities of the other Contracting Party at their request such periodic or other statements of statistics as may be reasonably required for the purpose of reviewing the capacity provided on the agreed services by the designated air1ines of the first

Contracting Party. Su ch statements shall include all information required to determine the amount of traffic carried by those airlines on the agreed services and the origins and destination of such traffic •. 153

Article 12.

(1) Aircraft of the airlines designated by one Contracting

Party during flights over the territory of the other Con- tracting Party shall have identification marks of its state, established for international flights, certificates of registration, certificates of air worthiness and other aircraft documents established by the Aeronautical Authorities

of the Contracting Parties, and also permission for radio

equipment. Pilots and other members of the crew shall

have appropriate certificates.

(2) All of the aforementioned documents issued or recognized

as valid by one Contracting Party shall be recognized as

valid within the territory of the other Contracting Party. 154

Article l}

(1) In case of a forced landing or other accidents affecting an aircraft of one Contracting Party within the territory of the other Contracting Party, the Aeronautical Authority of the

Contracting Party on whose territory the forced landing or other accident has occurred shall immediately notify the other

Party thereof, take necessary measures for the investigation of the causes of the accident, and also undertake immediate steps to assist the crew and passengers if they are injured in the accident and shall provide for the safety of the air­ craft and of mail, baggage and cargo on its board.

(2) The Contracting Party conducting the investigation of the accident shall inform the other Contracting Party of its results; the Contracting Party to whom the aircraft belongs shall have the right to appoint its observers, who may be represented at the investigation of the accident. 155

Article 14

(1) Fees and other charges for the US~ of each airport, in­

cluding its installations, technical and other facilities and

services, as well as any charges for the use of aeronavigation and communication facilities and services shall be made in accordance with the rates and tariffs established by the appropriate Aeronautical Authority.

(2) Each Contracting Party grants to the .designated Airline of the other Contracting Party the right of free transfer a{ the official rate of exchange of the excess of receipts over expenditure earned by this airline in its territory in con- nection with the carriage of paaaengera, mail and cargo~

Wherever the payment system between Contracting Parties ia governed by a special agreement, this special agreement shall apply. 156

Article 15

(1) For the co-ordination of matters concerning air transportations and servicing of aireraft each Con- tracting Party shal1 grant the designated airline of the other Contracting Party the right to have representa- tives and their assistants at airports on the territory of the said Contracting Party.

(2) The representatives spec1f1ed in this article and a1so members of the crew of aircraft of the air1ines designated by the Contracting Parties shal1 be citizens of the sa1d Contracting Parties. ~7

Artiçle 16

If any dispute arises between the Contraçting

Parties of Aeronautiça1 Authorities relating to the

interpretation or appliçation of the present agreement,

the Aeronautiçal Authorities of the Contraçting Parties

shall in the first plaçe endeavour to sett1e it by negotiation between themse1ves. If the Aeronautiçal

Authorities of the Contraçting Parties fail to reaçh a settlement of the dispute by negotiation, it should be settled through diplomatie ehannels.

If the Contraeting Parties fail to reaeh a settlement of the dispute through diplomatiç channels, either Contraçting Party may deeide to terminate the agreement in açeordanee with Article 19 of the present agreement. 158

Article 17_.

(1) In a spirit of close co-operation, the aeronautioal

authorities of the Contracting Parties shall consult each

other from time to time with a view to ensuring the implementation

of, and satisfactory compliance with, the provisions of the

present Agreement and the Annexes attached thereto and shall also consult when necessary to provide for modification thereof.

(2) Either Contracting Party may request consultation, which may be through discussion or correspondence and shall begin

within a period of sixt y (60) days of the date of the request, unless both Contracting Parties agree to an extension of this

perlod.

(;) If either of the Contracting Parties considers it desirable to mOdify any provision of the present agreement including the provisions of the Annexes attached thereto, such modifi­ cation, if agreed between the Contracting Parties and if nec­ essary after consultation in accordance with paragraphs (1) and (2) of this Article, shall come into effect when confirmed by an Exchange of Notes. 159

Article 18

The present Agreement and its Annexes shall be amended so as to conform with any mult11ateral convention which may become binding on both Contracting Parties. 160

Article 19

(1) The present agreement shall be ratified by the Contracting

Parties in accordance with the respective Constitutional require-

ments. The instruments of ratification shall be exchanged

through diplomatie: channels.

(2) The agreement shall come into force on the date of its

signature and shall be valid until either of the Contracting

Parties informs the other Contracting Party of its desire to

denounce this agreement.

(3) Either Contracting Party may at any time give notice in

writing to the other Contracting Party of its decision to

terminate the present Agreement. In such case, the Agreement

shall terminate twelve (12) months after the date of receipt

of such notification by the other Contracting Party, if such a notice is not" wi thdrawn earlier.

Concluded in the city of •••••••••••••

on the • • • • • • • • • • • • • • . . • of • • • • • 196 ••• in two originals in the Russian and the English Languages,

both texts being equally authentic.

On behalf of the On behalf of the Government of the Union National Military of Soviet Socialist Government of Nigeria. Republics 161 A N N E X 1

To the Air Transport Agreement between the Government of the Union of Soviet Soc1alist Republics and the National Military Government of Nigeria.

dated • • • • • • • • • 196 • • •

1. The Government of the Union of Soviet Socialist Republics authorizes the Ministry of Civil Aviation of the USSR to operate

the agreed services 8p~cified in the Table of Routes for Soviet aircraft contained in this Annex. For this purpose the Ministry of Civil Aviation of the USSR designates the Department of International Air Services (Aeroflot) as its airline. 2. The National Military Government of Nigeria designates Nigeria Airways as its airline to operate the agreed services specified in the Table of Routes contained in this Annex. 3. The airline designated by each Contracting Party shall enjoy, while operating an agreed service on a specified route, the following rights:- (a) to make stops in the said territory for non-traffic purposes; and (b) to màke stops in the said territory at the points specified for that route in the table of Routes contained in this Annex for the purpose of putting down and taking up international traffic in passenger8, cargo and mail. 4. Nothing in paragraph 3 of this Annex shall be deemed to confer on the airline of one Contracting Party the privilege of taking up, in the territory of the other Contracting Party, passengers, cargo or mail carried for ~remuneration or hire and destined for another point in the territory of that other Contracting Party. 162

TABLE 1

Route to be operated by the designated airline of USSR

Points in Intermediate Points in Points USSR Points Nigeria Beyond Frequency

Belgrade (Rome) Tunis Algiers Bangui Points in Rabat Lagos USSR Bamako Brazzaville Once Weekly Dakar Conakry Accra Nicosia (or Damascus ) Cairo (Or Tripoli) Khartoum {or Fort Lamy

Notes:. 1. Traffic rights shall not be exercised between Lagos and any of the above intermediate points except between Lagos and Belgrade. 2. Similarly traffic rights shall not be exercised between Lagos and any of the points beyond. 3. The designated airlines of the Con­ tracting Parties while operating on agreed services may omit any or all points of intermediate landings. TABLE II:

Routie.t.o bé; operated by the designated ai rline of Nigeria

Column (1) . Column (2) Colwm (:~) Column (4) Column (5)

Points in Intermediate Points in Points Nigeria Points USSR Beyond Frequency . Points in 1 Cairo Nigeria IBt.ànbùl~ Moscow Helsinki Once Prague Weekly

Tunis Algiers Belgrade Budapest Bucharest Vienna Beirut

NoteSI- 1. Traffic rights shall not be exercised between Moscow and an)' of the above intermediate points except between Moscow and Istanbul.

2. Similarly traffic rights shall not be exercised between Moscow and, Helsinki.

3. The designated aiilines of the Con­ tracting Parties while operating on agreed services may omit any or all points of intermediate landings. l64f

A N N E X 1'1

To the Transport Agreement betveen the Government of the Union of Soviet Socialist Republic8 and the lational Military Government of Nigeria.

Dated • • • • • • • • • 196 • • ••

GENERAL PROVISIONS

1. The Contracting Parties shall take all necessary measures

to ensure the safe and efficient operation of the agreed services.

For this purpose each Contracting Party ahall provide for the.

use of the .aircraft of the airline designated by the other

Contracting Party all technical meana of communication, radio

navigation aids, and other services necessary to operate the agreed services.

2. The information and assistance provided in accordance vith

the terms of thia Agreement by each Contracting Party shall

be suffic1ent in the opinion of the Contracting Party providing

the necessary information and assistance to meet the reasonable

safety requirements of the airline designated by the other

Contracting Party.

PROVISION OF INFORMATION

3. The information to be provided by each Contracting Party

shall. include necessary data concerning the main and alternate aerodromea assigned for operat1ng the agreed services, the flight 165 routes within the territory of that Contracting Party, radio and other navigation aids, and other facilities necessary for aireraft to fulfil prooedures of the air traffic control services.

4 •. The information sha1l also include al1 appropriate meteorological data to be provided before the flight as well as during the flight on the agreed services. The Aeronautical Authorities of the Con­ tracting Parties shall use the international code for the trans­ mission of the meteoro1ogica1 data and agree on necessary periods of transmitting meteorologica1 forecasts in accordance with the approved time-tables on the agreed services.

5. The Aeronautica1 authorities of the Contracting Parties shal1 provide a continuous information service to the operating airline and services concerned in accordance with paragraph " and 4 of this Annex and ensure immediate transmission of all notices concerning all the changes:

This sha1l be done by means of "NOTAMS" transmitted either by existing international communication means with sub­ sequent written confirmation where app1~c~ble, or in a written form only, provided that sufficient advance notice can be given to the addressee. "NOTAMS" shall be supplied in Russian and

English or in English only.

6. The exchange of information by "NOTAMS"shall commence as soon as possible and in any event prior to the commencement of regular flights on the agreed services. 166

FLIGHT PLANNING AND AIR TRAFFIC CONTROL PROCEDURES

7. The crew of aircratt operat1ng on the agreed services by

the air1ine designated by one ot the Contracting Parties sha11

be fu1ly acquainted with the procedures of the flight control

service applied in the terr1tory of the other Contract1ng Party.

8. The Aeronautical Authorit1es of each Contracting Party

shall provide the crew of the aircratt of the airline designated

by the other Contract~ng Party with the following information

before the flight and, if necessary, during the flight:-

(a) Information about the condition of the aerodromes

and navigation aids necessary for the execution of

the flight;

(b) Written information, charts and schemes as well as

additional oral information regarding the weather

conditions on the route and at the point of destination

(actual weather conditions as well as weather fore­

casta).

9. Before each flight the aireraft commander shall submit a

flight plan for approval to the agency of the air traffie control authorities in the country from which the flight starta. The

flight must be executed in accordance with the approved plan. 167

Changes in the flight plan will bt adaissible only vith permission of the'appropriate agency of the air traffic service, unless emergency circumstanoes demand taking immediate measures.

In such cases the appropriate agency of the air traffic control service shall be notified of the changes in the flight plan within the short est possible time. lO~ The aircraft commander shall ensure the maintenance of a continuous watch on the radio frequency of the air traffic control and a readiness for immediate transmission of replies on the above-mentioned frequencies of all information, in par­ ticular, data concerning location of aircraft and meteorological information in accordanoe v1th the national rules.

11. Provided there 18 no other arrangement betveen the Aero­ nautical authorit1es of the Contracting Parties, communications between the aircraft and the appropriate agencies of the' air traffic control service shall be carried out by radio telephone in Russian or English languages while working vith the stations in the Soviet Union and in English vith the stations in Nigeria on frequenc1es determined for this purpose by the Contracting

Parties.

For long-distance transmission radio telegraph may be used in international Q code, if it is available. 168

AIRCRAIT EQUIPMEBT

12. Aireraft operating on the agreed services by the air1ine designated by each Contracting Party shall be equipped and adapted, if possible, for the use of navigation aids and facilities which permit them to follow the authorized routes and also one or severa1 1anding systems used on the territory of the other Contracting Party.

13. The aircraft to be used on the agreed services are to be equipped with radio transmitters and receivers with appropriate radio frequeneies for communication purposes vith ground stations situated on the territory of the other Contracting

Party.

FLIGHT AND AIR TRAFFIC CONTROL PROCEDURES

14. For the purposes pointed out in the present Annex there shall be applied flight, air traffic control and other procedures used on the territory of each Contracting Party.

COMMUNICATION FACILITIES

15.. For the purpose of exchanging the information essential for the operation of the agreed services, including the transmission of "NOTAMS", as well as for air traffic control liaison pur­ poses, the Aeronautieal Authorities of the Contracting Parties undertake to use existing communication channels between Moseow and Nigeria. 169

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