SOVEREIGNTY OF THE STATE OVER ITS AIRSPACE

1.0 INTRODUCTION
As defined by Civil Air Navigation Services Organization, sovereignty in terms of aviation has been associated with ownership of airspace. It was further viewed as the exclusive competence of a state to exercise its legislative, administrative and judicial powers within its airspace. In another perspective, the Chicago Convention 1944, went further to state the extent of sovereignty granted the state as regards the airspace when it states thus ‘Every State has complete and exclusive sovereignty over the airspace above its territory’.
From the foregoing, it can be inferred that the state sovereignty over it airspace is complete and unfettered. Upon this basic principle of sovereignty of airspace is founded virtually all about air law, as it is premised on the fact that any flight in international aviation requires the prior consent of the state overflown, which is generally granted by treaty.
It is important to note that irrespective of whether the airspace can be regarded as a part of a state’s territory, it is generally recognized that it is a sovereign right over the airspace above its land and territorial waters.
A State’s territorial airspace includes the area above its territorial waters. Thus, there exists no right of innocent passage and scheduled international air services are only allowed with special permission of the contracting States.
Accordingly, the international law rules protecting sovereignty of states apply to the airspace as they do to the land below. As the International Court noted in the Nicaragua case, ‘The principle of respect for territorial sovereignty is also directly infringed by the unauthorized overflight of a state’s territory by aircraft belonging to or under the control of the government of another state.’  The Court noted in the Benin/Niger case that ‘a boundary represents the line of separation between areas of state sovereignty, not only on the earth’s surface but also in the subsoil and in the superjacent column of air’.

2.0: Theories of Airspace Sovereignty
Efforts to ascertain the breadth of the layer of air comprised within the air territory so as to establish a consensus and acceptable principle of sovereignty over the air space had generated a lot of controversy amongst jurists. This controversy had given rise to theories propounded on a stage by stage basis which subsequently led to the birth of the principle of sovereignty over the air space. The theories of airspace sovereignty are as follows:
a) Theory of the Unlimited Freedom: this theory is supported by those who, having seen the advantages that the absolute freedom of the seas have brought to the International community, thought that the same criteria could be applied to the air navigation.
b) Theory of the Absolute Sovereignty: completely opposed to the previous one: it refused the principle of freedom and conversely claimed the State sovereignty over the atmosphere. It also inherited the idea that the Roman Law had applied to the land property in order to define its unconditional character and to reject any claim from the other States (the already mentioned principle dominus soli est dominus usque ad sidera et usque ad inferos).
c) Intermediate Theories: it tried to combine the States‟ claims with the creation of an efficient International air navigation system. One of the most famous theories was formulated in 1901 by the French jurist Paul Fauchille, who claimed that the air is free, and its freedom may only be limited by strictly defined rights belonging to the State underneath. According to this scholar the sovereignty of the land owner over the air space was limited to the maximum height of the buildings it could build; beyond this limit the atmosphere was free and freely exploitable.
d) Theory Of The Limited Sovereignty: it stemmed from the principle that the atmosphere is subject to the State power, but it introduced some limitations in favour of the air traffic of adequate means whose airworthiness could be proved by specific international certifications. This theory anticipated the following regime which was based upon a functional and not just spatial idea of the air navigation


3.0: Sovereignty in the Air and the provision of Air Navigation Services
Under Article 28 (a) of the Chicago Convention,
Each contracting State undertakes, so far as it may find practicable, to: provide, in its territory, airports, radio services, meteorological services and other air navigation facilities to facilitate international air navigation, in accordance with the standards and practices recommended or established from time to time, pursuant to this Convention.
Under Article 28 of Chicago Convention, it was provided that Air Navigation Services is   a state responsibility emanating from the concept of sovereignty in the air. On this premise, it was further enunciated that the State can fulfil its obligation either directly or elects to delegate this task to a private body that may be established within its territory or in a neighboring state. The delegation of these services is allowed and even encouraged by ICAO because of international cooperation. Nevertheless, the government is statutorily certified to retain the supervisory authority with respect to Navigation Services. It is important to note that if for any reason the state should delegate her functions, it should be for technical and operational reasons.
4.0: The Nigeria Air Space Management Agency
In Nigeria in line with Article 28 of Chicago Convention, the Nigeria Airspace Management Agency is the air navigation service provider saddled with responsibilities of air traffic management services, provision of communication, navigation, and surveillance services, and in some cases, aeronautical meteorological services used by aircraft during flight.  The agency is established to ensure safe, efficient, expeditious and economic flight operations. In its bid to comply with this mandate, it has a vision on making Nigerian Airspace rank amongst the safest airspace in the Africa-Indian Ocean Region and indeed, the world over. The Nigerian Airspace Management Agency (NAMA) was established by the Act of Parliament No. 48 of 29th May 1999 but operationally commenced duties on January 2000.
NAMA provides services to airspace users such as providing Aeronautical information and communication services, Aeronautical maps and charts, terrain obstacle survey at airports, and aeronautical statistics database for aviation planners and researcher.
In Nigeria, any person who wants to fly in an aircraft into the Nigeria Airspace has to start by filing the application to the Nigerian Civil Aviation Authority which issues a checklist of safety and operational conditions to be met. When the safety and operational conditions are met, NAMA is contacted with evidence of the NCAA Authorization.
Thereafter, upon meeting some safety, operational and commercial terms, the applicant obtains a joint NAMA/NCAA clearance to enter, or overfly into the Nigerian Airspace.
5.0: Nigeria Civil Aviation Authority(NCAA)
For the purposes of this discourse, it is important to examine the powers of Nigeria Civil Aviation Authority. Nigerian Civil Aviation was established by decree 49 of 1999, with the statutory responsibilities of ensuring, regulating, monitoring and promotion of safety, security, economic and reliability of air navigation oversight in line with International Civil Aviation Organization (ICAO) Standard and Recommended Practices. It is pertinent to note that this agency being the apex aviation regulator has the responsibility of regulating the whole industry, including the airlines and the service providers such as the Nigerian Airspace Management Agency and Federal Airport Authority of Nigeria. It also regulates method of entry and conduct of air transport business and setting of aviation training standards and approval of training institutions in Nigeria.
6.0: Bilateral Air Service Agreements
Bilateral Air Service agreements (BASA) are treaties signed between countries to allow international commercial air transport services between territories. On the premise that a country has exclusive and complete sovereignty over its airspace as earlier established, hence, she has unfettered right to refuse or permit another country to fly on its airspace. Article 6 of the Chicago Convention is instructive and it provides that
no scheduled international air service may be operated over or into the territory of a contracting State, except with the special permission or authorisation of that State, and in accordance with the terms of such permission or authorisation.
In other words, this provision means that the airspace of all contracting States is closed de jure, until States decide to open it de facto.
Thus, if a country is to be granted permission, a Bilateral Air Service Agreement is one of the fundamental conditions to be concluded to enable a contracting country have access to enter or overfly into another company’s airspace. It is pertinent to note that BASAs promote international air links between countries which support and enable movement of persons, cargo, trade and tourism. These agreements provide the framework under which identified airlines from the two countries fly into designated ports in each other’s country.  It usually covers issues regarding traffic rights, use of intermediate routes, types of aircraft, safety standards, competition policy on ownership, design and control of airlines, etc in order for both countries to benefit from the agreement, fares and tax issues.
It is must be noted that negotiations to enter into BASAs are usually spearheaded by the ministry of aviation after extensive consultation with Aviation regulatory authorities and concerned institutions, for example immigration authorities. At a press conference, the Director General of Civil Aviation Authority revealed that as at December 2016, Nigeria  had executed Bilateral Air Service Agreement with 90 countries but only thirty one of these executed agreement are active.
However, BASAs are negotiated based on the five freedoms prescribed under the International Air Transport Agreement (IATA) which states are follows:
The privilege to fly across a state’s territory without landing.
The privilege to land for non-traffic purposes, for example for refueling, repairs and maintenance.
The privilege of an airline from one country to carry traffic from its own country to another.
The privilege of an airline from one country to carry traffic from another country to its own country and
The privilege of an airline from one country to carry traffic between two other countries provided that the flight originates and terminates in its own country.
It has been noted that the first two freedoms are considered technical rights while the last three are considered economic and commercial traffic rights. In Nigeria, it has been noted that negotiations are conducted based on economic consideration and reciprocity under the last 3 freedoms mentioned above.
7.0: Outer Space
Nowadays technological advances enable aircrafts to fly higher and higher, the maximum limit of aerodynamic lift being constantly challenged. Article 28 of the Chicago Convention imposes obligation on states to provide air navigation services in the airspace above their territory as previously seen. However this obligation does not extend to the outer space. This question was neither dealt with by the Outer Space Treaty of 1967. Furthermore, it is still undefined where the airspace ends and where the outer space begins because the international legal community could not agree on a fixed boundary between these contiguous zones until now. States were only able to concur on the fact that the outer space is the common heritage of mankind and no sovereignty claims can be made in respect of it. Naveau states that the movements within the sovereign airspace above the territory of a State is largely controlled by satellites located in the outer space which is not subject to the sovereignty of any State. Furthermore, these modern equipments located in the outer space are able to photography infrastructures and buildings in any country without asking for the permission of the relevant State. Naveau opines that the flights operated by the hybrid category of spaceships also challenge the traditional concept of sovereignty in the air. According to him, the landing rights of such crafts remain subject to the provision of the Chicago Convention and international air law in general whereas overflight rights do not fall within the scope of such legal instruments (because the overflight takes place within the outer space). For him, it is urgent to redefine the concept of sovereignty in order to efficiently address the legal, economic and security issues deriving from such new activities.

8.0: Conclusion
The concept of state sovereignty is a fundamental concept that cannot be dispensed with in aviation law because it cut across all its aspects. On this note, it has been stated that a country has exclusive and complete sovereignty over its airspace and no other country has the unfettered discretion to fly over the airspace of another country without prior consent sought and obtained. Hence, it is important to state that there exists no right of innocent passage through the airspace of a state. Thus, Aircrafts are only permitted to pass through the airspace of states based on concrete agreement with those states, and where this is has not been obtained an illegal intrusion will be involved which will justify interception.
However, some states might suggest these treaties under examination especially the Chicago Convention are not binding on them, by virtue of not being party to it or domesticating same in their national laws. It is important to note that these rules also fall under the provisions of customary international law, and as such, are binding on all states, breach of which constitutes a breach of international law. Thus, it behooves on every state that own or run the services of airline to comply strictly with these rules in order not to face the consequences of its disobedience thereof.

Rufus AdeoluwaOlodude LP
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References

1. Tang Ut Fong, Air Law
2. Ezeanya Ann Ugonna and Eno-Obong Peter Augustine, Scope and Limit of the Air Space, University of Ibadan
3. E.V.D Steinen, National Interest and International Aviation(2006)
4. www.nama.gov.ng
5.http://ncaa.gov.ng
6. George Etomi & Partners, Review of the Bilateral Air Service Agreement within the Nigeria Civil Aviation
7. Naveau, Air and Space Law(2008)