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LEGAL FRAMEWORK FOR THE RESOLUTION OF AVIATION DISPUTE (CASE STUDY NIGERIAN AIRLINES)

CHAPTER ONE

GENERAL INTRODUCTION

 

1.1          Background to the Study

The topic of this research is “Legal framework for the resolution of aviation dispute.”

Aviation is basically a transnational and border-crossing phenomenon, without which globalization (the flow of people and goods and the mixing of cultures) would have been difficult and the awareness that we all live on one planet could not have been established. The difference between this awareness and the ancient organizational principle of humans, the principle of national sovereignty is not completely clear. A group of people (a nation) live on a particular part of the earth (the national territory) and claim that this area is for them, and exercise legal power (government) over this area. This principle is known as „Sovereignty of Nations‟ or „Self-Determination of the Peoples‟ and is based on the notion that human beings are organized into groups or communities that have settled, but that such settlement is the reason why they claim exclusiveness of all powers for themselves on that part of the earth area which they occupied.

This ancient organizational principle results to the point that although there are so-called areas of international sovereignty in the world, that is, areas that are not claimed by anyone like the high seas, there are no areas in the air space that are considered „mutual property for all of mankind‟. This notable principle in customary international law is known as „the principle of territorial sovereignty‟ was confirmed in the Paris Convention of 1919[1] and reiterated in the Chicago Convention of 1944[2] and it gives each state to the exclusion of all others, a unilateral and absolute right to permit or deny entry into its territory and to control all movements therein.[3] According to Milde, this principle is “a cornerstone of international air law and … declaratory of general international law.”[4] Specifically, this state authority (also referred to as „national interest‟ principle) precludes the operation of scheduled international air services over or into the territory of a state without its permission or special authorization. Moreover, such authorization is required for state aircraft[5], pilotless aircraft[6], and aircraft carrying munitions[7], with an exception carved out for a restricted freedom of civil, non-scheduled flights8.

Consequently, before an airline can operate international air service to another country, the government must first negotiate with the destination country‟s government. International air services between countries operate under the terms of a bilateral air service agreement (BASA) negotiated between the two countries. These agreements are generally of treaty status and are enforceable in international law (although some operate under, or are modified by, a less formal Memorandum of Understanding arrangement). They are instruments used by countries to establish international air link between them and ensure that countries collectively maximize their potential in International Air Transport or the Aviation Sector. The agreement would cover such items as: i.)Traffic Rights (also known as Freedoms of the Air) – which are a standard set of nine distinct air rights over which the two countries will negotiate. For example, the first freedom of the air is the right to overfly the territory of a country without landing there. ii.) Authorized Points- which are the allowable routes that could be operated. iii.) Capacity- which is the number of flights or seats that could be operated between the two countries. iv.) Tariff (pricing) – which is the method for setting fares on the route. Some agreements require airlines to submit ticket prices to aeronautical authorities for approval while others allow the airlines to set prices without restriction. v.) Designation, Ownership and Control- which is the number of airlines the bilateral partners can nominate to operate the services and the ownership criteria airlines must meet to be designated under the bilateral agreement. This clause sometimes includes foreign ownership restrictions. vi.) Many other clauses which addresses competition policy, safety and security measures to be taken, operative arrangements (e.g., code-sharing) and various “doing business” issues such as repatriation of currencies, the ability to select handling agents at foreign airports, the use of computer reservations systems, etc.

The relationship between states is still hinging on the bilateral framework of exchanging air traffic rights. Nigeria today maintains bilateral air service agreement with over eighty countries spanning all continents with the view of ensuring and providing easy accessible means of transport to Nigerian travelling public and other nationals coming to Nigeria.[8] In addition, bilateral agreements provide the leverage for

Nigeria to enter into commercial agreement with foreign airlines operating into the country. Currently, Nigeria maintains such agreement with some countries and this enables their foreign airlines such as Emirates (UAE), Air France (France), KLM (Netherlands), Middle East Airlines (Lebanon), Lufthansa Airlines (Germany), etc. to fly into Nigeria.

 

1.2 Statement of the Research Problem

This research is in a nutshell a comparative legal analysis of legal framework for the resolution of aviation dispute of Nigeria and Ghana, United Kingdom and Israel. It was spurred by the perceived imbalance (on frequency distribution and airport slot allocation) which the researcher observed in the operation of the Nigeria – United Kingdom route. In the bid to understand the issue, it was pertinent to study and analyze the terms and clauses in not only the Bilateral Air Service Agreement of Nigeria and the United Kingdom, but to compare it with other Bilateral Air Service Agreement Nigeria entered into with other countries (Ghana, a neighboring African country and Israel, a very recently concluded Agreement).  In order to do a good analysis of the legal framework for the resolution of aviation dispute of Nigeria with the three countries, the following research questions became necessary:

  1. Are there any gaps in these Agreements?
  2. If there are any gaps, how can these Agreements be improved upon?
  3. What is the problem associated with the implementation of Air Service Agreements of Nigeria and how can it be resolved?

These questions and the answers the researcher sets to find form the fulcrum of this research.

 

1.3            Aim and Objectives of the Research

The aim of this research is to examine the Legal framework for the resolution of aviation dispute between Nigeria and Ghana, United Kingdom and Israel. The objectives of the research are as follows:

  1. to carry out a comparative analysis of the Air Service Agreements Nigeria has with Ghana, the United Kingdom and Israel;
  2. to discuss the making and implementation of legal framework for the resolution of aviation dispute in Nigeria;
  • to discover and discuss certain gap in these Agreements with a view to proffer solutions on them;
  1. to discuss the problems associated with the implementation of Air Service Agreements of Nigeria.

 

1.4           Justification for the Research

This research is very important because it analyses the legal framework for the resolution of aviation dispute (case study nigerian airlines) and some selected countries namely: Ghana, UK and Israel. It envisages clear understanding of the terms of these Agreements and how they can be made better. Therefore, law teachers, law students, law scholars, the Contracting Parties, the general public etc., will benefit greatly from this research.  This is because the discussions on the said legal framework for the resolution of aviation dispute coupled with the findings and recommendations that make up this thesis will be a good reference material to the public.

 

1.5          Scope of the Research

The scope of this research is limited to the appraisal of UN Conventions on Air Service Agreements within the scope of the requirement of offences committed on board of aircraft and other unlawful activities involving aircraft, unification of certain rights in aircrafts and in particular, how these conventions impact the legal framework for the resolution of aviation dispute between Nigeria and Ghana, UK and Israel.  Domestic legislation relating to air transport regulation will form part of this appraisal.

 

 

1.6          Research Methodology

The researcher used doctrinal and empirical research method. Doctrinal method of research means the type of research that theorizes with the aid of books, statutes and cases and thereafter makes findings and recommendations.[9]This is based on relevant statutes, case laws, textbooks, newspapers, internet sources etc. for good understanding of the subject matter under study. Empirical method of research on the other hand, involves the collection of facts and data through interviews, questionnaires etc.11 The researcher also used interview for the purpose of extracting certain information about the legal framework for the resolution of aviation dispute being studied. The interview questions were both structured and unstructured. This is because some questions which were not earlier prepared became necessary as a result of the answers obtained from the interviewees. The interviewees were experienced officials of the Nigerian Ministry of Aviation and the Nigerian Civil Aviation Authority (NCAA).

 

1.7         Literature Review

There are many research conducted generally on Aviation Law and Bilateral Air Service Agreement but there is no research so far on Legal framework for the resolution of aviation dispute between Nigeria and Ghana; Nigeria and UK; and Nigeria and Israel to the best knowledge of the researcher. This research is principally on Legal framework for the resolution of aviation dispute between Nigeria and the aforementioned countries.

 

Ozoka I., in his book Aviation Systems Planning and Operations: Blending Theory and Professional Practice[10] discussed generally aviation planning and operations. The author devoted a very tiny portion of the book to the concept of bilateral air service agreement without discussing the Legal framework for the resolution of aviation dispute from the focus of this research.

Mild M. in his book International Law and the ICAO[11] treated topics like Convention on

International Civil Aviation (Chicago, 1944), International Civil Aviation Organization, International legal regime of aircraft and its operation, Legal management of aviation security, International Unification of Private Air law ICAO, Aircraft nationality marks and common marks, etc. The author did not treat any topic on aviation law in Nigeria or any bilateral air service agreement signed by Nigeria and any country.

Azzle R. in his article Some Specific Problems Solved by the Negotiations of Bilateral Air Agreement[12] discussed some problems solved by negotiating legal framework for the resolution of aviation dispute, but did not discuss the problems associated with implementation of the legal framework for the resolution of aviation dispute Nigeria entered with any country.

Zylics M. in his book International Air Transport Law[13]analyzed the main policy objectives and dilemmas of the air transport industry and examined the concepts, institutions and principles governing international air transport activities, including those drawn from the areas of civil and penal law. He also discussed the role of existing legal instruments in serving various air transport policy system, but he did not discuss the Nigerian aviation industry or any legal framework for the resolution of aviation dispute of Nigeria.

Hamilton[14] while discussing how the legal system works with respect to aviation activities, also gave entertaining examples of aviation law in action, all with respect to recent changes to date in statutory and regulatory international aviation law. The book also outlined resources available and procedure to follow an accident, current information on aviation labour laws, union interaction, aircraft insurance, aircraft sales as well as federal programs and aviation organizations. The author however, did not discuss the aviation industry in Nigeria or the legal framework for the resolution of aviation dispute between Nigeria and the selected countries discussed herein.

Hannappel in his article „Bilateral Air Transport Agreements: 1913-198021discussed the events leading to the Bermuda 1 Agreement, the important developments in the field of bilateral air transport agreements following Bermuda 1 Agreement, tariffs, capacity and frequency under the Bermuda 1 Agreement, Bermuda 2 and Post-Bermuda 2 Agreements, etc. His Article did not venture into Nigerian Aviation industry or any of Nigeria’s legal framework for the resolution of aviation dispute.

Mendes de Leon[15] discussed cabotage in Air Transport Regulation without delving into any bilateral air service agreement of Nigeria with any country. The focus of this research is on legal framework for the resolution of aviation dispute of Nigeria with Ghana, UK, and Israel. The concept of cabotage which Mendes de Leon dwelt primarily on was only discussed in this thesis by way of general explanations.

Dempsey P.S. and Gessell L.E. in their book Air Commerce and the Law23 discussed simply the law on air commerce but no bilateral air service agreement between Nigeria and any country was discussed or analyses. The strength of this research therefore is that it discusses legal framework for the resolution of aviation dispute between Nigeria and Ghana, Nigeria and UK, and Nigeria and Israel. Also, Dempsey P. S. in his book Aviation Liability Law[16] dealt with aviation liability law. From accidents to personal property damages, he also discussed liability for death and personal injury and loss, damage and delay of freight. He assessed the liability of airlines, air traffic control providers, governments, manufacturers, lessors and other potential defendants, but he did not examine any bilateral air service agreement of Nigeria with any country.  To the best of the researcher’s knowledge, no research work has been carried out on legal framework for the resolution of aviation dispute between Nigeria and UK, Nigeria and Ghana, Nigeria and Israel. The entire literature reviewed did not address any gap in the bilateral air service agreement between Nigeria and any of the selected Countries. Also, the works reviewed did not address the problems associated in the implementation of the legal framework for the resolution of aviation dispute of Nigeria with the selected Countries. These are the key gaps that this research intends to fill. Hence, there is the need for a comprehensive research on Legal framework for the resolution of aviation dispute of Nigeria and the selected Countries.

1.8          Organizational Structure

This research work is divided into five chapters. Chapter One introduces the work and is segmented into background of the study, statement of problem of the research, aims and objectives of the research, the scope of the research, literature review in the area of the research and justification of the research.

Chapter Two deals with the development of legal, policy and institutional framework for air transport industry in Nigeria. The sub-topics considered here are; the history of the aviation industry in Nigeria, the legal regulation of air transport industry in Nigeria, and aviation regulatory agencies in Nigeria.

Chapter Three deals with the evolution and nature of legal framework for the resolution of aviation dispute in general. The sub-topics treated are: history of legal framework for the resolution of aviation dispute, structure of legal framework for the resolution of aviation dispute, types of legal framework for the resolution of aviation dispute, and finally, the making and implementation of legal framework for the resolution of aviation dispute in Nigeria.

Chapter Four analyses the major clauses in the Legal framework for the resolution of aviation dispute between Nigeria and Ghana, UK and Israel. Under this Chapter, the major clauses in these agreements are compared and differences are pointed out.

The Chapter Five is a summary of the work. It enumerated the findings and recommendations made in the research and ended with a conclusion to the work.

[1] Havel, B: „In Search of Open Skies: Law and Policy for a New Era in International Aviation.‟ (1997), Kluwer Law International, The Hague.     p.31. See also Article 1 of the Convention on Regulation of Aerial Navigation of 1919 (herein after referred to as the „Paris      Convention‟), 11 L.N.T.S. 152.

[2] The Convention on International Civil Aviation of 1944 (hereinafter referred to as the „Chicago Convention‟). Article 1 of the      Chicago Convention states that “every state has complete and exclusive sovereignty over the airspace above its territory.” Traceable       to the Roman axiom cujus est solum, ejus est usquam ad coelom et ad inferos– whoever owns the land, owns the space above up to infinity    and the space below. See Havel, Ibid.

[3] Cooper, J.C: „Background of International Public Air Law‟.1 Yearbook of Air & Space Law 3, (1967). See also Orwell, G. (2007)    Multilateral Conventions, Public International Air Law Journal, 1 Institute of Air and Space Law, McGill University p. 19.

[4] Milde, M: „The Chicago Convention- Are Major Amendments Necessary or Desirable 50 Years Later?‟  19:1 Ann. Air & Space Law (1994) p.    401, 402-03.

[5] Article 3(c) of Chicago Convention.

[6] Article 8, Ibid.

[7] Article 35(a), Ibid. 8 Article 5, Ibid.

[8] Omotoba, B: „The Aviation Sector.‟ At the Ministerial Press Briefing held in National Press Centre, Radio House, Abuja, 26    January, 2010.

 

[9] Aboki, Y: „Introduction to Legal Research Methodology‟, (2009) Tamaza Publishing Co. Ltd, Zaria, p.3.  11Ibid

[10] Ozoka, A.I: „Aviation System Planning and Operations: Blending Theory with Professional Practice,‟ (2009) Ahmadu Bello Press Ltd., Zaria,       Nigeria, p. 1.

[11] Mild, M: „International Air Law and ICAO,‟ (2008) Eleven International Publishing, Utrecht, the Netherlands.

[12] Azzle, R: „Some Specific Problems Solved by the Negotiations of Bilateral Air Agreement,‟ (1967), McGill Law Journal 13.

[13] Zylics M: International Air Transport Law, (1992) Martinus Nijhoff Publishers, the Netherlands.

[14] Hamilton, J. S: „Practical Aviation Law‟ (2011), Fifth Edition, Aviation Supplies and Academics Inc., Newcastle, England. 21 Haanappel, P.P.C: „Bilateral Air Transport Agreements: 1913-1980‟ 5 International Trade Law Journal (1978-1980).

[15] Pablo Mendes de Leon: „Cabotage in Air Transport Regulations‟ (1992), Martinus Nijhoff Publisher, The Netherland. 23 Dempsey, P. S. and Gosell L. E: „Air Commerce and the Law‟ (2004), Coast Aire Publications, Arizona, USA.

[16] Dempsey, P. S: „Aviation Liability Law‟ (2013), Second Edition, Lexis Nexis, Canada.

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