Sovereignty Vs Open Skies: The Challenges Of Liberalizing Air Transport Legal Framework
- IJLLR Journal
- May 17
- 2 min read
Harsh Vardhan Singh, Law College Dehradun, Faculty of Uttaranchal University
Mr. Ujjwal Kumar Singh, Assistant Professor, Law College Dehradun, Faculty of Uttaranchal University
ABSTRACT
Contemporary aviation "Open Skies" agreements enhance market accessibility, bolster competitiveness, and facilitate governmental leniency in airline operations. A complex legal and political framework centered on national sovereignty governs airspace liberalization. National and international aviation authorities are at odds regarding the sovereignty of state airspace and the principle of free skies. This paper examines state sovereignty and Open Skies, concentrating on the legal, economic, and policy implications arising from the liberalization of air transport regulation across various jurisdictions. This analysis scrutinizes the evolving dynamics of international aviation law, the implications of liberalized airspace, and the challenges encountered by states, particularly developing and strategically significant nations such as India, in reconciling their sovereign interests with the global shift towards deregulated air transport. Article 1 of the 1944 Chicago Convention, grounded in the principle of sovereignty, grants states exclusive authority over their airspace. This facilitates bilateral air services agreements (ASAs), which precisely regulate air traffic rights, routes, frequency, and ownership. National carrier protection, geopolitics, and political dynamics significantly influence agreements. Under Open Skies treaties, certified airlines from signatory governments enjoy enhanced capacity, frequency, pricing, and, at times, foreign ownership flexibility.
The liberalization movement of the 1980s was initiated with the backing of the United States for the Open Skies accords in Europe and globally. Enhanced connectivity, diversified customer options, and equitable economic benefits are imperative. More than 130 nations have ratified bilateral or regional accords. The implementation ratings are influenced by state economic maturity, security priorities, and aviation capacity. Illustration: India. India faces peril from rapid economic expansion and robust civil aviation. It continues to be sensitive in terms of airspace, notwithstanding regulatory initiatives such as NCAP 2016. India's strategic positioning, apprehensions regarding foreign airlines—especially Gulf carriers—and the imperative to safeguard its flag carrier alongside local operators have prompted a prudent and often restrictive stance towards Open Skies agreements. India scrutinizes bilateral seat capacity, frequency, and call points to safeguard national interests. This research illustrates that establishing a legislative framework that protects state sovereignty while liberalizing markets constitutes the paramount challenge. Open Skies regulations jeopardize aviation security, undermine international airline investment, disrupt fair competition, and threaten the viability of domestic carriers. Liberalisation could enable international airlines to surpass local carriers, leveraging subsidies or economies of scale, thereby jeopardising the developmental objectives of nascent aviation markets.
