The Member States of the Association of Southeast Asian Nations – ASEAN – have in place a liberalized ‘open skies’ regime for air travel, pursuant to a single aviation market project for the region. In principle, the Member States’ airlines now enjoy unlimited third, fourth and fifth freedom operations across the region. However, the market is far from ‘single’ or complete given that seventh freedom and domestic rights – the backbones of a truly single aviation market – have yet to be negotiated. At the same time, even the modest third, fourth and fifth freedom rights have been qualified by some Member States. In particular, unlimited fifth freedom rights for passenger services have been denied in relation to operations that do not lie geographically in a more-or-less linear or straight line. The assertion here is that such ‘backtracking’ fifth freedom flights effectively introduce the seventh freedom right through the back door. Given that the ASEAN ‘open skies’ agreements explicitly permit unlimited fifth freedom operations regardless of directionality, qualifying these rights in such manner represents a major setback for the liberalization movement. Indeed, it represents a literal backtracking on the entire single market project. The article concludes with an assessment of how fifth freedom rights remain controversial and thus curtailed, principally in the recent multilateral agreements that ASEAN has concluded with China, the European Union (EU) and New Zealand.
Air and Space Law