DALLAS – International flights are commonplace today, but ensuring airlines can fly into other countries’ sovereign airspace means having international accords.
The first binding international agreement to secure air travel rights was signed in 1944: the Convention on International Civil Aviation, or the Chicago Convention, for short.
As per the agreement, every state has complete and exclusive sovereignty over airspace above its borders, according to the first article. If an airline wants to offer a route from its home country to another country, it must obtain additional approvals from the states involved.
The Chicago Convention established a multilateral agreement in which all signatories could benefit from the first two freedoms, known as the International Air Services Transit Agreement (IASTA) or “Two Freedoms Agreement.” The treaty was ratified by 133 nations at the end of 2017.
The first and second freedoms grant ‘transit rights,’ which allow passage through a country without carrying traffic that originates or concludes there. A government that grants transit rights may charge a fee for the privilege. The reasonableness of such payments has sparked debate in the past.
In total, there are nine “freedoms of the air” that ensure peaceful international aviation transportation in such situations. We’ll first delve into the first two Transit Rights, continue with the Traffic Rights, pause on the contentious Beyond Rights, and end with a quick look at the Cabotage Rights.
First Freedom of the Air – the right or privilege, in respect of scheduled international air services, granted by one State to another State or States to fly across its territory without landing (also known as a First Freedom Right).
Since the end of the Cold War, first freedom rights are almost completely universal. Most countries require prior notification before an overflight and charge fees, which can sometimes be substantial.
Such fees are frequently imposed simply for the privilege of flying over a country’s national territory without using an airport (although overflights may still use the services of a country’s air traffic control centers). For example, the Federal Aviation Administration (FAA) of the United States, an IASTA signatory, charges US$61.75 every 100 nautical miles (190 km; 120 mi) of great circle distance between the point of entry of an aircraft into U.S.-controlled airspace and the point of exit.
Overflight fees are also charged by countries that are not signatories to the IASTA; among them, Russia is noted for charging large tolls, particularly on trans-Arctic routes that pass Siberia between North America and Asia. Due to “delayed payments for its flyover rights,” Russia temporarily denied Lufthansa Cargo (LH) permission to overfly Russian airspace with cargo in 2008. Pre-COVID, flyover rights cost Europe’s airlines €300m each year.
Second Freedom of the Air – the right or privilege, in respect of scheduled international air services, granted by one State to another State or States to land in its territory for non-traffic purposes (also known as a Second Freedom Right).
The second freedom allows for technical stops without passengers or goods embarking or disembarking. On the journey to another country, it is legal to stop in one country merely for refueling or other maintenance.
Second freedom rights are fairly infrequently exercised by passenger carriers today due to the extended range of modern airliners, but they are widely used by air freight carriers and are more or less universal between countries.
Shannon Airport (Ireland), which was used as a stopping place for most transatlantic flights until the 1960s because it was the closest European airport to the United States, is the most renowned example of the second freedom. Similarly, until the conclusion of the Cold War, Anchorage was utilized for flights between Western Europe and East Asia, circumventing Soviet airspace.
‘Traffic rights,’ in contrast to transit rights, allow commercial international services between, through, and, in some cases, within countries that have signed air services agreements or other treaties.
While the third to fifth freedoms would be discussed between governments, the International Air Transport Agreement (or “Five Freedoms Agreement”), which encompassed the first five freedoms, was also open for signatures. Some air services agreements enable the additional four freedoms, although they are not ‘legally’ recognized because they are not included in the Chicago Convention.
The third and fourth freedoms allow two countries to exchange basic international services. Even when reciprocal third and fourth freedom rights are granted, air services agreements (such as the Bermuda Agreements) may nevertheless limit various aspects of traffic, such as aircraft capacity, flight frequency, carriers allowed to fly, and airports allowed to serve.
Third Freedom of The Air – the right or privilege, in respect of scheduled international air services, granted by one State to another State to put down, in the territory of the first State, traffic coming from the home State of the carrier (also known as a Third Freedom Right).
Fourth Freedom of The Air – the right or privilege, in respect of scheduled international air services, granted by one State to another State to take on, in the territory of the first State, traffic destined for the home State of the carrier (also known as a Fourth Freedom Right).
Beyond rights allow airlines to transport passengers between (and occasionally within) countries where they are not based. The fifth freedom rights are the most contentious of these today. Sixth freedom rights are less controversial but nonetheless restricted at times, despite being more common.
Beyond rights also includes international flights with a foreign intermediate stop, on which passengers may only board and disembark at the intermediate point on the leg of the flight that serves the airline’s origin. It also includes ‘stopover’ traffic, in which passengers board or depart at an intermediate stop on their way to or from the endpoints of a multi-leg flight or connecting flights.
The fifth freedom allows an airline to transport revenue traffic between foreign countries as part of services connecting its own country. It is the right to transport passengers from one’s home country to a second country and then to a third country (and so on).
Fifth freedom traffic rights are meant to improve the economic viability of an airline’s long-haul routes, but they are often considered as potentially unfair competition by local airlines and governments. Because the consent of at least three separate countries is required in practice, talks for fifth freedom traffic rights might take a long time.
Until the early 1980s, when breakthroughs in technology and greater passenger numbers enabled the operation of more non-stop flights, fifth freedom traffic rights were critical to the economic viability of long-haul travel. Picking up and dropping off passengers along the way could help fill the spare capacity on multi-sector routes. Carriers frequently schedule stops in one or more foreign countries on route to a flight’s final destination.
Airlines seeking to explore unserved or underserved routes, or airlines whose flights already make technical stops at a site allowed by the second freedom, apply for fifth freedom traffic rights.
Governments (for example, Thailand) may occasionally encourage fifth freedom traffic to promote tourism by increasing the number of seats available. However, in order to protect a flag carrier’s business interests, there may be reactive pressure to resist too liberalizing traffic rights.
Fifth Freedom of The Air – the right or privilege, in respect of scheduled international air services, granted by one State to another State to put down and to take on, in the territory of the first State, traffic coming from or destined to a third State (also known as a Fifth Freedom Right). ICAO characterizes all “freedoms” beyond the Fifth as “so-called” because only the first five “freedoms” have been officially recognized as such by international treaty.
Sixth Freedom of The Air – the right or privilege, in respect of scheduled international air services, of transporting, via the home State of the carrier, traffic moving between two other States (also known as a Sixth Freedom Right). The so-called Sixth Freedom of the Air, unlike the first five freedoms, is not incorporated as such into any widely recognized air service agreements such as the “Five Freedoms Agreement.”
Seventh Freedom of The Air – the right or privilege, in respect of scheduled international air services, granted by one State to another State, of transporting traffic between the territory of the granting State and any third State with no requirement to include on such operation any point in the territory of the recipient State, i.e the service need not connect to or be an extension of any service to/from the home State of the carrier.
Cabotage is the transfer of goods or persons by a vessel or aircraft registered in another country between two sites inside the same country. Cabotage, which was originally a seafaring term, now encompasses airplanes, trains, and road travel. It is basically the exclusive right of a country to operate air traffic within its territory, or trade or navigation in coastal seas.
Eighth Freedom of The Air – the right or privilege, in respect of scheduled international air services, of transporting cabotage traffic between two points in the territory of the granting State on a service which originates or terminates in the home country of the foreign carrier or (in connection with the so-called Seventh Freedom of the Air) outside the territory of the granting State (also known as the Eighth Freedom Right or “consecutive cabotage“).
Ninth Freedom of The Air – the right or privilege of transporting cabotage traffic of the granting State on service performed entirely within the territory of the granting State (also known as a Ninth Freedom Right or “stand-alone” cabotage).
Featured image: Qantas VH-OQH Airbus A380-842. Photo: Andrew Henderson/Airways. Article sources: ICAO; Manual on the Regulation of International Air Transport (Doc 9626, Part 4); The Use of Air & Outer Space Cooperation & Competition.