Open skies
Encyclopedia
Open skies is an international policy concept which calls for the liberalization of rules and regulations on international aviation industry most specially commercial aviation - opening a free market for the airline industry. Its primary objectives are:
  • to liberalize the rules for international aviation markets and minimizes government intervention — the provisions apply to passenger, all-cargo and combination air transportation and encompass both scheduled and charter services; or
  • to adjust the regime under which military and other state-based flights may be permitted.


For open skies to effect, a bilateral
Bilateral Air Transport Agreement
A bilateral air transport agreement is an agreement which two nations sign to allow international commercial air transport services between their territories....

 (and sometimes multilateral) Air Transport Agreement
Bilateral Air Transport Agreement
A bilateral air transport agreement is an agreement which two nations sign to allow international commercial air transport services between their territories....

 has to be concluded between two or more nations.

Background

To achieve sovereignty
Sovereignty
Sovereignty is the quality of having supreme, independent authority over a geographic area, such as a territory. It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided...

, a state
Sovereign state
A sovereign state, or simply, state, is a state with a defined territory on which it exercises internal and external sovereignty, a permanent population, a government, and the capacity to enter into relations with other sovereign states. It is also normally understood to be a state which is neither...

 must be recognised as having both de facto
De facto
De facto is a Latin expression that means "concerning fact." In law, it often means "in practice but not necessarily ordained by law" or "in practice or actuality, but not officially established." It is commonly used in contrast to de jure when referring to matters of law, governance, or...

 and de jure
De jure
De jure is an expression that means "concerning law", as contrasted with de facto, which means "concerning fact".De jure = 'Legally', De facto = 'In fact'....

 control over all the land, sea and air space within defined territorial boundaries. Once a state comes into being, the concept of trespass
Trespass
Trespass is an area of tort law broadly divided into three groups: trespass to the person, trespass to chattels and trespass to land.Trespass to the person, historically involved six separate trespasses: threats, assault, battery, wounding, mayhem, and maiming...

 applies to any part of the state entered without permission. Hence, whether it is an individual wishing to cross a land border
Border
Borders define geographic boundaries of political entities or legal jurisdictions, such as governments, sovereign states, federated states and other subnational entities. Some borders—such as a state's internal administrative borders, or inter-state borders within the Schengen Area—are open and...

, a ship
Ship
Since the end of the age of sail a ship has been any large buoyant marine vessel. Ships are generally distinguished from boats based on size and cargo or passenger capacity. Ships are used on lakes, seas, and rivers for a variety of activities, such as the transport of people or goods, fishing,...

 aiming to enter or pass through territorial waters
Territorial waters
Territorial waters, or a territorial sea, as defined by the 1982 United Nations Convention on the Law of the Sea, is a belt of coastal waters extending at most from the baseline of a coastal state...

, or an aircraft
Aircraft
An aircraft is a vehicle that is able to fly by gaining support from the air, or, in general, the atmosphere of a planet. An aircraft counters the force of gravity by using either static lift or by using the dynamic lift of an airfoil, or in a few cases the downward thrust from jet engines.Although...

 seeking to overfly, prior consent is required. Those who do not seek permission will, at the very least, be liable to arrest and prosecution by the offended state. At worst, entry may be considered an act of war
War
War is a state of organized, armed, and often prolonged conflict carried on between states, nations, or other parties typified by extreme aggression, social disruption, and usually high mortality. War should be understood as an actual, intentional and widespread armed conflict between political...

. For example, in 1983, Korean Air Flight 007
Korean Air Flight 007
Korean Air Lines Flight 007 was a Korean Air Lines civilian airliner that was shot down by Soviet interceptors on 1 September 1983, over the Sea of Japan, near Moneron Island just west of Sakhalin island...

 strayed into Soviet
Soviet Union
The Soviet Union , officially the Union of Soviet Socialist Republics , was a constitutionally socialist state that existed in Eurasia between 1922 and 1991....

 air space and was shot down.

Since World War II
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...

, most states have invested national pride in the creation and defence of airline
Airline
An airline provides air transport services for traveling passengers and freight. Airlines lease or own their aircraft with which to supply these services and may form partnerships or alliances with other airlines for mutual benefit...

s (sometimes called flag carrier
Flag carrier
A flag carrier is a transportation company, such as an airline or shipping company, that, being locally registered in a given country, enjoys preferential rights or privileges, accorded by the government, for international operations. It may be a state-run, state-owned or private but...

s
or legacy airlines). Air transportation differs from many other forms of commerce
Commerce
While business refers to the value-creating activities of an organization for profit, commerce means the whole system of an economy that constitutes an environment for business. The system includes legal, economic, political, social, cultural, and technological systems that are in operation in any...

, not only because it has a major international component, but also because many of these airlines were wholly or partly government owned. Thus, as international competition
Competition
Competition is a contest between individuals, groups, animals, etc. for territory, a niche, or a location of resources. It arises whenever two and only two strive for a goal which cannot be shared. Competition occurs naturally between living organisms which co-exist in the same environment. For...

 grew, various degrees of protectionism
Protectionism
Protectionism is the economic policy of restraining trade between states through methods such as tariffs on imported goods, restrictive quotas, and a variety of other government regulations designed to allow "fair competition" between imports and goods and services produced domestically.This...

 were imposed.

Bilateral Air Transport Agreement

A bilateral air transport agreement is a contract to liberalize aviation services, usually commercial civil aviation, between two contracting states. A bilateral air services agreement allows the airlines of both states to launch commercial flights that covers the transport of passengers and cargoes of both countries. A bilateral agreement may sometimes include the transport of military personnel of the contracting states.

In a bilateral agreement, the contracting states may allow the airlines of the contracting parties to bring passengers and cargoes to a third country or pick up passengers and cargoes from the host country to the home country of the airline or to a third country in which the contracting states has existing open skies agreement.

Multilateral Air Transport Agreement

A multilateral air services agreement is the same as bilateral agreement, the only difference is that it involves more than two contracting states.

First step towards a civil transport regime

The Convention on International Civil Aviation
Convention on International Civil Aviation
The Convention on International Civil Aviation, also known as the Chicago Convention, established the International Civil Aviation Organization , a specialized agency of the United Nations charged with coordinating and regulating international air travel...

 (1944), signed at Chicago
Chicago
Chicago is the largest city in the US state of Illinois. With nearly 2.7 million residents, it is the most populous city in the Midwestern United States and the third most populous in the US, after New York City and Los Angeles...

 (Also called the Chicago Convention), was intended to prepare a framework within which civil air transport could develop (not military or other state activities whether in a piloted or drone craft). It introduced nine freedoms of the air
Freedoms of the air
The freedoms of the air are a set of commercial aviation rights granting a country's airline the privilege to enter and land in another country's airspace...

for those states that have adopted the Convention and enter into bilateral treaties that may grant any of the following rights or privileges for scheduled international air services:
  1. To fly across the territory of either state without landing.
  2. To land in either state for non-traffic purposes, e.g. refueling without boarding or disembarking passengers.
  3. To land in the territory of the first state and disembark passengers coming from the home state of the airline.
  4. To land in the territory of the first state and board passengers travelling to the home state of the airline.
  5. To land in the territory of the first state and board passengers travelling on to a third state where the passengers disembark, e.g. a scheduled flight from the U.S. to France could pick up traffic in the UK and take all to France (sometimes termed beyond rights).
  6. To transport passengers moving between two other states via the home state of the airline, e.g. a scheduled flight on an American airline from the United Kingdom lands in the U.S. and then goes on to Canada on the same aircraft.
  7. To transport passengers between the territory of the granting State and any third State state without going through the home state of the airline, e.g. a scheduled flight on an American airline from the UK to Canada that does not connect to or extend any service to/from the U.S..
  8. To transport cabotage
    Cabotage
    Cabotage is the transport of goods or passengers between two points in the same country by a vessel or an aircraft registered in another country. Originally starting with shipping, cabotage now also covers aviation, railways and road transport...

     traffic between two points in the territory of the granting State on a service which originates or terminates in the home state of the foreign carrier or (in connection with the so-called Seventh Freedom) outside the territory of the granting State (also known as consecutive cabotage), e.g. an American airline flies from the U.S., lands passengers in London and then boards passengers to fly to Manchester.
  9. To transport cabotage traffic of the granting State on a service performed entirely within the territory of the granting State (also known as stand alone cabotage), e.g. a British airline operates a service between Perth and Sydney in Australia).

Because only the first five "freedoms" have been officially recognised by international treaties, the ICAO considers the remaining "freedoms" "so-called".

Civil transport open skies

The last twenty-five years have seen significant changes in airline regulation. The U.S.
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...

 began pursuing Open Skies agreements in 1979 and, by 1982, it had signed twenty-three bilateral air service agreements worldwide, mainly with smaller nations. That was followed in the 1990s by agreements with some individual European states.

A huge step was taken in 1992 when the Netherlands
Netherlands
The Netherlands is a constituent country of the Kingdom of the Netherlands, located mainly in North-West Europe and with several islands in the Caribbean. Mainland Netherlands borders the North Sea to the north and west, Belgium to the south, and Germany to the east, and shares maritime borders...

 signed the first open skies agreement with the United States, in spite of objections posited by European Union
European Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...

 authorities. The agreement gave both countries unrestricted landing rights on each others' soil. Normally landing rights are granted for a fixed number of flights per week to a fixed destination. Each adjustment takes a lot of negotiating, often between governments rather than between the companies involved. The United States was so pleased with the independent position that the Dutch took versus the EU that it granted anti-trust immunity to the alliance between Northwest Airlines and KLM Royal Dutch Airlines which started in 1989 (when Northwest and KLM agreed to code sharing on a large scale) and which actually is the first large alliance still functioning. Other alliances would struggle for years to overcome transnational barriers or still do so.

In 2001 the United States signed the Multilateral Agreement on the Liberalization of International Air Transportation (MALIAT) with Brunei
Brunei
Brunei , officially the State of Brunei Darussalam or the Nation of Brunei, the Abode of Peace , is a sovereign state located on the north coast of the island of Borneo, in Southeast Asia...

, Chile
Chile
Chile ,officially the Republic of Chile , is a country in South America occupying a long, narrow coastal strip between the Andes mountains to the east and the Pacific Ocean to the west. It borders Peru to the north, Bolivia to the northeast, Argentina to the east, and the Drake Passage in the far...

, New Zealand
New Zealand
New Zealand is an island country in the south-western Pacific Ocean comprising two main landmasses and numerous smaller islands. The country is situated some east of Australia across the Tasman Sea, and roughly south of the Pacific island nations of New Caledonia, Fiji, and Tonga...

, and Singapore
Singapore
Singapore , officially the Republic of Singapore, is a Southeast Asian city-state off the southern tip of the Malay Peninsula, north of the equator. An island country made up of 63 islands, it is separated from Malaysia by the Straits of Johor to its north and from Indonesia's Riau Islands by the...

. The U.S. has enjoyed a powerful negotiating position but the European Commission
European Commission
The European Commission is the executive body of the European Union. The body is responsible for proposing legislation, implementing decisions, upholding the Union's treaties and the general day-to-day running of the Union....

, as a supranational body, negotiated with the United States government on a community Air Service Agreement. These negotiations led to the text of an agreement being initialed on 2 March 2007. Contending issues are
  • cabotage — opening up the hub and spoke networks on both sides of the Atlantic would be contentious;
  • the U.S. rules on foreign ownership. These are partly designed to protect their own carriers but also to satisfy the U.S. military which maintains the Civil Reserve Air Fleet
    Civil Reserve Air Fleet
    The Civil Reserve Air Fleet is part of the United States's mobility resources. Selected aircraft from U.S. airlines, contractually committed to Civil Reserve Air Fleet, support United States Department of Defense airlift requirements in emergencies when the need for airlift exceeds the capability...

     by drawing on commercial fleets for airlift during national emergencies. The airlines, as a quid pro quo
    Quid pro quo
    Quid pro quo most often means a more-or-less equal exchange or substitution of goods or services. English speakers often use the term to mean "a favour for a favour" and the phrases with almost identical meaning include: "give and take", "tit for tat", "this for that", and "you scratch my back,...

    , benefit through a priority over the carriage of military and government personnel.
  • (tackling of) the tax free position of EU-U.S. aviation.
  • the provisions of the Fly America Act.
  • there might also be problems in harmonising the framework of antitrust
    Antitrust
    The United States antitrust law is a body of laws that prohibits anti-competitive behavior and unfair business practices. Antitrust laws are intended to encourage competition in the marketplace. These competition laws make illegal certain practices deemed to hurt businesses or consumers or both,...

     policy (e.g. to protect against predatory behavior).


The EU-US Open Skies Agreement
EU-US Open Skies Agreement
The EU–US Open Skies Agreement is an air transport agreement between the European Union and the United States. The agreement allows any airline of the European Union and any airline of the United States to fly between any point in the European Union and any point in the United States. Airlines of...

 was amongst one of the most significant open skies agreements concluded in recent years, covering civil aviation traffic between two of the world's three biggest markets. The Asian market, considered one of the fastest growing, remains relatively regulated at present, although the phased introduction of the ASEAN
Association of Southeast Asian Nations
The Association of Southeast Asian Nations, commonly abbreviated ASEAN rarely ), is a geo-political and economic organization of ten countries located in Southeast Asia, which was formed on 8 August 1967 by Indonesia, Malaysia, the Philippines, Singapore and Thailand. Since then, membership has...

 open skies agreement covering ten countries in Southeast Asia
Southeast Asia
Southeast Asia, South-East Asia, South East Asia or Southeastern Asia is a subregion of Asia, consisting of the countries that are geographically south of China, east of India, west of New Guinea and north of Australia. The region lies on the intersection of geological plates, with heavy seismic...

 from 2008 has prompted major Asian markets (including Japan, China and India) to consider similar initiatives.

The ASEAN Multilateral Agreement on Air Services and the ASEAN Multilateral Agreement on the Full Liberalisation of Air Freight Services which were simultaneously approved on May 20, 2009 in Manila, Philippines, are multilateral air transport agreements among the 10-member Association of Southeast Asian Nations
Association of Southeast Asian Nations
The Association of Southeast Asian Nations, commonly abbreviated ASEAN rarely ), is a geo-political and economic organization of ten countries located in Southeast Asia, which was formed on 8 August 1967 by Indonesia, Malaysia, the Philippines, Singapore and Thailand. Since then, membership has...

. These two agreements which took effect January 1, 2010, call for a calibrated and gradual implementation in each contracting state, to allow countries with less developed airline industry to cope up with more developed ones. It is part of the broader ASEAN Air Transport Integration and Liberalization Plan.

Key open skies provisions

Most of the existing civil agreements include:
  1. Free market
    Free market
    A free market is a competitive market where prices are determined by supply and demand. However, the term is also commonly used for markets in which economic intervention and regulation by the state is limited to tax collection, and enforcement of private ownership and contracts...

     competition:
    No restrictions on international route rights; number of designated airlines; capacity; frequencies; and types of aircraft.
  2. Pricing determined by market forces:
    A fare can be disallowed only if both governments concur — "double-disapproval pricing" — and only for certain, specified reasons intended to ensure competition.
  3. Fair and equal opportunity to compete:
    For example:
    • All carriers — designated and non-designated — of both countries may establish sales offices in the other country, and convert earnings and remit them in hard currency promptly and without restrictions. Designated carriers are free to provide their own ground-handling services — "self-handling" — or choose among competing providers. Airlines and cargo consolidators may arrange ground transport of air cargo and are guaranteed access to customs services.
    • User charges are non-discriminatory and based on costs; computer reservation system displays are transparent and non-discriminatory.
  4. Cooperative marketing arrangements
    Designated airlines may enter into code-sharing or leasing arrangements with airlines of either country, or with those of third countries, subject to usual regulations. An optional provision authorizes code-sharing between airlines and surface transportation companies.
  5. Provisions for dispute settlement and consultation
    Model text includes procedures for resolving differences that arise under the agreement.
  6. Liberal charter arrangements
    Carriers may choose to operate under the charter regulations of either country.
  7. Safety and security
    Each government agrees to observe high standards of aviation safety and security, and to render assistance to the other in certain circumstances.
  8. Optional seventh freedom all-cargo rights
    Provide authority for an airline of one country to operate all-cargo services between the other country and a third country, via flights that are not linked to its homeland.

Military regulation

The Treaty on Open Skies
Treaty on Open Skies
The Treaty on Open Skies entered into force on January 1, 2002, and currently has 34 States Parties. It establishes a program of unarmed aerial surveillance flights over the entire territory of its participants...

, signed in Helsinki
Helsinki
Helsinki is the capital and largest city in Finland. It is in the region of Uusimaa, located in southern Finland, on the shore of the Gulf of Finland, an arm of the Baltic Sea. The population of the city of Helsinki is , making it by far the most populous municipality in Finland. Helsinki is...

 (1992), is a multinational sacrifice of air sovereignty to enhance military transparency and build confidence by permitting observation flights over almost the full territory of each signatory state:
  • except for areas of hazardous airspace and a ten kilometer zone along the state borders of non-state parties; and
  • subject to a maximum flight distance.
  • Each aircraft is fitted with a sensor suite including optical panoramic and framing cameras, video cameras with real-time display, thermal infrared imaging sensors, and imaging radar (SAR). To ensure that each suite conforms to the Treaty specifications, there is an initial seven-day certification of each Open Skies aircraft by a short demonstration flight, and by analysis of the imagery recorded during that flight.
  • Each state to be overflown has the choice of either certifying the aircraft of the observing state or of providing an aircraft with full sensor equipment of its own for the observing state (the so-called taxi option);
  • the flights are undertaken by joint teams; and
  • the image data can be shared among all signatories to support the monitoring of compliance with existing or future arms control treaties.

To illustrate the scope of the Treaty, Germany
Germany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...

 and Italy
Italy
Italy , officially the Italian Republic languages]] under the European Charter for Regional or Minority Languages. In each of these, Italy's official name is as follows:;;;;;;;;), is a unitary parliamentary republic in South-Central Europe. To the north it borders France, Switzerland, Austria and...

 have to accept 12 overflights per year, while Russia
Russia
Russia or , officially known as both Russia and the Russian Federation , is a country in northern Eurasia. It is a federal semi-presidential republic, comprising 83 federal subjects...

 (including Belarus
Belarus
Belarus , officially the Republic of Belarus, is a landlocked country in Eastern Europe, bordered clockwise by Russia to the northeast, Ukraine to the south, Poland to the west, and Lithuania and Latvia to the northwest. Its capital is Minsk; other major cities include Brest, Grodno , Gomel ,...

) and the U.S. must permit 42 overflights each.

There is also a bilateral Open Skies Agreement between Hungary and Romania. In a tacit but persistent way, the United States has been promoting the idea of bilateral or trilateral Open Skies arrangements between states in South America. Similarly, there are many bilateral treaties and Memoranda of Understanding that permit military aircraft mutually to train in or transit through their airspace. For example, Singapore
Singapore
Singapore , officially the Republic of Singapore, is a Southeast Asian city-state off the southern tip of the Malay Peninsula, north of the equator. An island country made up of 63 islands, it is separated from Malaysia by the Straits of Johor to its north and from Indonesia's Riau Islands by the...

 has such arrangements with the U.S., France
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...

 and Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...

.

See also

  • Bilateral Air Transport Agreement
    Bilateral Air Transport Agreement
    A bilateral air transport agreement is an agreement which two nations sign to allow international commercial air transport services between their territories....

  • Freedoms of the air
    Freedoms of the air
    The freedoms of the air are a set of commercial aviation rights granting a country's airline the privilege to enter and land in another country's airspace...

  • Treaty on Open Skies
    Treaty on Open Skies
    The Treaty on Open Skies entered into force on January 1, 2002, and currently has 34 States Parties. It establishes a program of unarmed aerial surveillance flights over the entire territory of its participants...


External links

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