Law as Globalization's Gatekeeper: A Legal History of Fifth Freedom Rights

Should an American airline flying from New York to London be permitted to also fly from London to Paris? Such a simple question is – and was – the most hotly contested issue both today and in 1944 when the foundational legal framework of international commercial aviation was being negotiated at the Chicago Convention. The Fifth Freedom of the Air permits an airline to fly between two foreign countries on a flight originating or ending in its home country. In 1944, some countries, such as the United States, argued that an American airline should be permitted to fly the London-Paris route citing both economic and humanitarian reasons in support. Other more protectionist-minded countries, such as the United Kingdom in 1944, were hesitant and thought only British and French airlines should be able to operate flights between London and Paris.
While fifth freedom rights were not widely adopted at the Chicago Convention, countries such as the United Kingdom soon after began to acquiesce to agreements that did permit fifth freedom rights. Why would these protectionist-minded nations make such a concession? The central argument of this paper is that these nations perceived the law as being able to function effectively as a gatekeeper of globalization. That is to say, the United Kingdom – and other nations for that matter, including the United States – viewed the law as not only necessary to permit globalization, but more importantly, as strong enough to effectively limit, or if necessary, reverse its effects. The debate over fifth freedom rights at the Chicago Convention and in the years immediately following offers insights into how government officials understood the power of law in controlling the effects of globalization, World War II’s impact on international commercial aviation, and the original purpose and intended effects of fifth freedom rights.