Open Skies At Mattala Some Points

To Consider

by Dr. Ruwantissa Abeyratne, FRAeS, FCILT

( June 17, 2015, Montreal, Sri Lanka Guardian) On 23 April of this year, The Civil
Aviation Authority of Sri Lanka issued in the public domain a statement to the effect
that The Government of Sri Lanka has decided to adopt, with immediate effect, a full
open skies policy for commercial aircraft operating into and out of Mattala Rajapaksa
International Airport using all 9 freedoms of air traffic rights. To those uninitiated in air
transport jargon, this may sound arcane and sweeping in scope, and they would be
correct. Unlike any other mode of international transport be it rail, maritime or road
air transport is strictly regulated with a provision in the Chicago Convention (the
multilateral treaty which regulates air transport and air navigation) that no scheduled

international air service may be operated into the territory of a country without
permission from that country. This gave rise to what we call bilateral air services
agreements between countries which accord specific access rights to national airlines,
upon agreement between their States of nationality. This anomaly also gave rise to
the freedoms of the air and there are nine of them. The only exception to this
principle of international law is open skies where a country can dispense with the
requirement of permission required by the Chicago Convention and enter into bilateral
or multilateral agreements giving certain freedoms of the air mainly the right for
commercial air carriers bearing the nationality of a State to bring persons and freight
into its territory and carry them out of its territory.
Open skies is a common practice in the commercial air transport world today (The
United States has signed more than a hundred open skies agreements) and it mostly
serves as a progressive measure towards ensuring liberalization of air transport.
However, the writer is not aware of any country which has more than one international
airport that has surrendered all of market access into and within the country in the
manner in which the Mattala airport open skies regime has been defined. The
problem starts with the 7th, 8th and 9th freedoms of the air out of the 9 freedoms Sri
Lanka has granted to any national carrier, or for that matter any local or foreign airline.
Firstly, one must appreciate that air traffic rights are granted on a territorial basis and
are not granted to specific airports that carriers can operate into and out of. Once
traffic rights are granted, the grantor State can designate an airport for the carrier to
land. Therefore, one could ask the question as to why only Mattala International
airport has been opened unrestrictedly, while the airport at Katunayake has not (or has
it?). Furthermore one could demand that the Government of Sri Lanka grants open
skies into all its territory (into all airports situated in the country), particularly in terms of
the 7th 8thand 9th freedoms. Open skies and all 9 freedoms do not usually go
together. The skies are usually opened to their national carriers by two or more
countries on the basis of reciprocity regarding 3rd, 4th and 5th freedoms. Arguably,
the granting of 7th, 8th and 9th freedoms carte blanche to any and all local and
foreign carriers, will give any carrier (not necessarily designated by a country as its
national carrier) or any business operating aircraft the right to operate air services
under these three freedoms.
The 7th freedom allows a carrier to operate between two States that are away from its
home base. Therefore any airline which has its established operations away from its
headquarters can operate commercial air services between a third country and Sri
Lanka (Mattala). The 8th freedom, commonly called cabotage is where an airline
can carry passenger traffic and cargo between two points in the same country. Article
7 of the Chicago Convention says: Each contracting State shall have the right to
refuse permission to the aircraft of other contracting States to take on in its territory
passengers, mail and cargo carried for remuneration or hire and destined for another
point within its territory. Each contracting State undertakes not to enter into any
arrangements which specifically grant any such privilege on an exclusive basis to any
other State or an airline of any other State, and not to obtain any such exclusive

privilege from any other State.

In other words, the so-called 8th freedom of the air is 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 territory of the foreign carrier or (in connection with the so-called Seventh
Freedom of the Air) outside the territory of the granting State (also knownas anEighth
Freedom Right or consecutive cabotage. Does this mean that airlines can freely
pick up commercial traffic between any points in the territory of Sri Lanka (not
necessarily from Mattala to Katunayake and vice versa)?. A cabotage right or
cabotage privilege is a right or privilege, granted to a foreign State or a foreign carrier,
to transport otherwise prohibited cabotage traffic. Petit cabotage involves traffic
movements between two ports on the same coast of the same country (in maritime
usage)and, by extension to air transport, between two airports in the same contiguous
territory of a State. Grand cabotage involves traffic movements beginning and ending
on differ-ent coasts of the same country (in maritime usage) and, by extension to air
transport, movements between a State and a non-contiguous territory of that State.
No decision has been taken either by the Assembly or the Council of the International
Civil Aviation Organization on this provision. It is recorded that Sweden had made
proposals both at the Sixteenth and Eighteenth Sessions of the Assembly ( in 1968
and 1971 respectively) that the second sentence of Article, which was excessively
restrictive, should be deleted since in practicality no State would leave itself open to
granting cabotage rights to all airlines just because they wished to grant the right to
one carrier. Sweden also anchored itself on Article 1 and the sovereignty of States
over their airspace which was at variance with the untrammelled flexibility in Article 7.
The Swedish proposal was never adopted by the Assembly.
Coming to the 9th freedom, where an airline can establish its main business in a point
in Sri Lanka and operate air services between points in Sri Lanka, the conclusion
would be that one could freely operate helicopters or skyplanes between tourist spots
in Sri Lanka.
On its face, the measure of open skies may augur well for tourism, employment and
the economic growth of Sri Lanka. However, opening the skies only at Mattala brings
to bear nuances at treaty law for Sri Lanka (Sri Lanka deposited its instrument of
ratification of the Chicago Convention on 1 June 1948) which have to be carefully
thought through. For instance, what are the legal effects of opening up to any local or
foreign airline the 7th, 8th and 9th freedoms and what effect does it have on the main
international air port and air traffic destined for Colombo? Is the open skies decision
supported by local legislation that has been adopted by Parliament? What did the
business case which led to this decision reveal in terms of benefits to Sri Lanka? Has
a safety study been done on the ramification of opening the skies to any business that
operates an air transport enterprise in the country?
The author has complete faith in the foresight that would have gone into this decision,
given Sri Lankas excellent reputation in the international aviation communityso far.

The author is an aviation consultant and former Senior Legal Officer at the
International Civil Aviation Organization. Prior to joining ICAO, he was Head,
International Relations and Insurance at Airlanka.
Posted by Thavam