ABSTRACT AIR' TRANSPORT BILATERALS of NIGERIA Author&
Total Page:16
File Type:pdf, Size:1020Kb
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