Freedoms of the air: how traffic rights are negotiated

A legacy of the Chicago conference

In December 1944, with the war not yet over, delegations from around the world met in Chicago to prepare for post-war civil aviation. According to the International Civil Aviation Organization (ICAO), the Convention on International Civil Aviation was concluded there on 7 December 1944 and signed by 52 States. It gave birth to ICAO, which officially came into being on 4 April 1947.

One founding principle runs through the text: every State has complete and exclusive sovereignty over the airspace above its territory. The direct consequence is that a foreign airline cannot simply serve a country as it pleases. It needs rights granted by that State, usually through bilateral air services agreements. To describe those rights in a standard way, the industry uses the grid known as the "freedoms of the air".

The two "technical" freedoms

In its Manual on the Regulation of International Air Transport (Doc 9626), ICAO describes nine freedoms. The first two are not about commercial carriage as such:

• First freedom: flying across the territory of another State without landing.
• Second freedom: landing in another State for non-traffic purposes, such as a technical stop to refuel.

These two rights are widely exchanged on a multilateral basis, which allows long-haul flights to cross many airspaces without case-by-case negotiation.

The basic commercial freedoms

The next freedoms concern picking up and setting down passengers, cargo or mail:

• Third freedom: setting down, in a foreign country, traffic coming from the airline's home State.
• Fourth freedom: picking up, in a foreign country, traffic bound for the airline's home State.
• Fifth freedom: on a flight that starts or ends in its home country, carrying traffic between two foreign countries, for example at an intermediate stop.

A standard return flight between Paris and Montreal operated by a French airline therefore combines the third and fourth freedoms. The fifth freedom, which is more commercially sensitive, is subject to tough negotiation because it puts the foreign airline in direct competition on a market that is not its own.

The additional "so-called" freedoms

Beyond the fifth, ICAO refers to "so-called" freedoms, because only the first five have been officially recognised by international treaty. They are nevertheless used in negotiations:

• Sixth freedom: carrying traffic between two foreign countries via the airline's home country, as large connecting carriers based at a hub do.
• Seventh freedom: linking two foreign countries directly, with no connection to the airline's home country.
• Eighth freedom: carrying domestic traffic within a foreign country on a flight that starts or ends in the airline's home country, known as "consecutive cabotage".
• Ninth freedom: operating domestic flights entirely within a foreign country, known as "stand-alone" cabotage.

Why the vocabulary still matters

These freedoms are not automatic rights: they are granted, limited or refused through agreements between States. An agreement may, for instance, allow a fixed number of weekly frequencies, designate which airlines may fly or restrict fifth-freedom rights.

The European Union is a special case. Within the internal market, an airline holding an EU operating licence may fly between two Member States and even within another Member State, which in practice removes cabotage restrictions between EU countries. For relations with the rest of the world, bilateral agreements and agreements negotiated at EU level still apply.

Understanding this grid offers a different way of reading aviation news: a new route between two third countries, a compulsory stopover or the absence of domestic flights by a foreign airline can often be explained by the traffic rights available, as much as by passenger demand.