Freedoms of the sky

By Svetlana Surnikova

International air transport has, until recently, been one of the most restrictive and highly regulated industries in the world. The Chicago Convention of 1944 laid the foundation that established the international bilateral air services agreements (BASAs) system, which presently continues to govern most of the world’s trade in aviation. In essence, BASAs or bilaterals are the building blocks of the bilateral framework that specify market access provisions. Typically, BASAs stipulate which airlines may operate between two countries, the routes they may serve, traffic rights, frequency and capacity (seats) limitations, and they often place controls over airline pricing.

While many air transport markets between Africa and outside of Africa have been liberalised to a significant extent, intra-African air transport market, to-date, remains largely closed and has been primarily governed by restrictive BASAs hampering its expansion and livelihood. This has affected air connectivity within Africa and has limited the potential of air transport as an engine of economic growth and development in line with the frameworks of the Yamoussoukro Decision and the Solemn Commitment towards the Single African Air Transport Market.

One of the essential market access features of any air services agreement is the “freedoms of the air” or “air traffic rights”, which are often misunderstood or misinterpreted not only by the general public, but by professionals working in the air transport industry. The concept of “freedoms of the skies” or “the degrees of freedom" or “freedoms of the air” was initiated at the Chicago Convention, and essentially means air traffic rights, which is a set of commercial aviation rights granting a country’s airline(s) the privilege of entering and landing in another country’s airspace. The degrees of freedom have since been the basis of the amount of freedom a country has in operating over another country’s airspace, encompassing eight different freedoms which may be negotiated.

The first freedom is the right of an airline A of country A to fly and carry traffic over the territory of country B without landing, as illustrated in figure 1.1

Figure 1.1: First Freedom

The second freedom is the right of an airline A of country A to land in country B for non-traffic reasons, such as maintenance or refuelling while en route to another country, as illustrated in figure 1.2. For example, before the development of long range aircraft this would apply to transatlantic traffic that needed to make a refuelling stop in country B. First and second freedom rights are also known as transit rights.

Figure 1.2: Second Freedom

The third freedom is the right of an airline A of country A to carry traffic to country B. This is shown in figure 1.3. For example, TAAG Angola Airlines carries passengers from Angola to Portugal.

Figure 1.3: Third Freedom

The fourth freedom is the right of an airline A of country A to carry traffic from country B to country A. The third and fourth freedoms are usually granted on a bilateral basis. An example of this, is the right for TAAG Angola Airlines to carry passengers from Portugal to Angola as depicted in Figure 1.4.

Figure 1.4: Fourth Freedom

The fifth freedom is the right of an airline A from country A to carry traffic between two countries (country B and country C) outside of its own country of registry, as long as the flight originates or terminates in its own country of registry, as illustrated in figure 1.5. For example, Emirates Airlines flies from Dubai, UAE to Brisbane, Australia, then picks up passengers and continues to Auckland, New Zealand. This freedom cannot be used unless country C also agrees. ICAO characterises all “freedoms” beyond the fifth freedom as “so-called” as only the first five “freedoms” have been officially recognised by international treaty.

Figure 1.5: Fifth Freedom

The sixth freedom is the right of an airline A of country A to carry traffic between two foreign countries (country B and country C) via its own country of registry (country A). This is a combination of the third and fourth freedoms and was not specified as such at the 1944 Chicago Convention. Sixth freedom rights are rarely dealt with explicitly in air services agreements but may be referred to implicitly in a MOU attached to the agreement. In the application of many bilaterals there is also de facto acceptance of such rights. Sixth freedom flights from country B to country C are illustrated in figure 1.6 below. Qatar Airways, for example, carries sixth freedom traffic between Johannesburg, South Africa and Moscow, the Russian Federation, which means passengers travel from Johannesburg to Doha for a connecting flight from Doha to Moscow.

Figure 1.6: Sixth Freedom

Two further freedoms are granted in very rare cases, one example of which can be seen in the 1991 US-UK bilateral, whereby the USA granted UK airlines seventh freedom rights from several European countries to the USA. They have never been used nor were they included in the 1944 Chicago agreement.

The seventh freedom is the right of an airline to operate between points in two countries on services which lie entirely outside its own home country, as illustrated in Figure 1.7. The European Union-United States “Open Skies” agreement entails the unilateral granting by the United States to a number of non-EU countries of so-called “seventh freedom rights for passengers” to fly to the EU, which comprises the right for non-EU airlines to operate flights between a city in the US and a city in the EU. Another example is an agreement between the United Kingdom and Singapore, signed in 2007, which allowed unlimited seventh freedom rights from 30 March 2008, along with a full exchange of other freedoms of the air.

Figure 1.7: Seventh Freedom

The eighth freedom, which is also referred to as “domestic cabotage”[1], is the right of an airline of one country to carry traffic between two points within the territory of a foreign country. Such rights have on occasion been granted when a country experiences a shortage of aircraft capacity. The main example is the European Union, which has granted such rights to all its member states. Other examples, inter alia, include the Single Aviation Market (SAM) established between Australia and New Zealand in 1996; the 2001 Protocol to the Multilateral Agreement on the Liberalization of International Air Transportation (MALIAT) between Brunei, Chile, New Zealand and Singapore.

In the context of Africa, the air transport framework based on the Yamoussoukro Decision and the Solemn Commitment towards Single African Air Transport Market allows for “free exchange of traffic rights including third, fourth and fifth freedom rights on both scheduled and non-scheduled passenger and air services performed by an eligible airline (as defined under Article 3 of the YD)”.

[1] EIGHTH FREEDOM OR CABOTAGE is the right to carry passengers within a country by an airline of another country on a route with origin/destination in its home country. TRUE DOMESTIC OR NINTH FREEDOM is the right to carry passengers within a foreign country with no connection with the home country.