Introduction
I have just finished reading John Rawls’s book A Theory of Justice, and my curiosity got the better of me in wondering how Rawls’s “Veil of Ignorance” would serve the upcoming ICAO Air Transport Conference (ATConf/7) in November this year. This is particularly so in the context of fierce competition between States and airlines for market access.
The international civil aviation system presents a particularly compelling setting in which to examine the philosophical proposition advanced by John Rawls in his book: that principles governing a community should be chosen behind a hypothetical veil of ignorance, under which those making the rules do not know what position they will occupy once the rules take effect. The proposition acquires an added dimension when applied to the Convention on International Civil Aviation, signed at Chicago on 7 December 1944, a treaty which established the institutional and normative foundations of international civil aviation, and which continues to inform the development of the international air transport system.
The question is not merely whether Rawls’s theory offers an attractive ethical foundation for international cooperation. It is whether the veil of ignorance can meaningfully influence a legal and economic order in which market access is already structured by bilateral and multilateral air services agreements, the doctrine of national sovereignty over airspace, the commercial strategies of airlines, and the unequal economic and technological capacities of States. Can a theory premised on impartiality influence a system whose historical evolution has been characterized by competition, bargaining power and the pursuit of national advantage? Or would its application amount to an intellectually appealing exercise that leaves the underlying distribution of opportunities substantially undisturbed?
These questions are particularly pertinent in anticipation of ATConf/7. Its theme and agenda must be considered against the current official programme rather than presumed from earlier conferences; the precise agenda and adopted documentation should be verified against ICAO’s published material. Nevertheless, the fundamental questions confronting international air transport policy are already apparent: the liberalization of market access, fair competition, connectivity, consumer interests, sustainability, the interests of developing States, and the relationship between national regulatory authority and the increasingly global character of commercial aviation.
The central argument of this commentary is that Rawls’s veil of ignorance should be employed as a normative test in the development of international air transport policy, including the interpretation and possible evolution of the Chicago Convention’s underlying principles. It should not, however, be mistaken for an autonomous legal doctrine capable of displacing the treaty’s provisions or the established architecture of air services agreements. Its greatest value lies in exposing the difference between the equality of sovereign States in international law and the substantive equality of opportunity to participate in international air transport.
The official ICAO description of ATConf/7 identifies its theme as “Air Transport: Powering Global Connectivity, Economic Development and Resilience in a Dynamic World”. The Conference is scheduled for 16–20 November 2026 at ICAO Headquarters in Montréal. Its stated priorities include modernizing economic regulation, addressing market access and consumer protection, mobilizing infrastructure finance, strengthening institutional capacity and enabling sustainable, inclusive growth. The detailed programme remains subject to ICAO’s published conference documentation.
These priorities are not peripheral to the Rawlsian inquiry. They go directly to its central concern: whether the international air transport system provides a fair opportunity for States and their designated airlines to participate in a market whose commercial rewards are distributed through a combination of legal rights, capital, infrastructure, technology and political influence.
The Chicago Convention and Its Moral Architecture
The Convention’s Preamble is of particular significance because it articulates the purposes for which the international community agreed to establish a common legal framework. It recognizes that civil aviation can promote friendship and understanding among nations and peoples, while acknowledging that its abuse can threaten general security. It then expresses the intention that international civil aviation develop in a safe and orderly manner, and that international air transport services be established on the basis of equality of opportunity and operated soundly and economically.
There is a jurisprudential richness in this formulation. The Preamble does not merely introduce the substantive provisions of the treaty. It expresses a philosophy of international cooperation in which safety, orderly development, equality of opportunity and economic soundness are mutually relevant objectives.
The question is whether these objectives remain in meaningful equilibrium. A system that delivers economic efficiency while denying certain States a realistic opportunity to participate may fulfil one part of the Preamble’s purpose while frustrating another. Conversely, a system that pursues equality through indiscriminate protectionism, without regard to efficiency, safety or the interests of passengers, could undermine the very development it seeks to promote.
The difficulty lies in determining what equality of opportunity means in a market where the legal right to operate a service and the practical capacity to operate it are very different things.
In Convention on International Civil Aviation: A Commentary (2014), I examine the Convention’s provisions as part of a wider functional and moral framework, emphasizing its teleological character and the relationship between its technical rules and the purposes expressed in its Preamble. His treatment provides a useful jurisprudential foundation for the present inquiry.
The Rawlsian veil offers a means of testing whether the Convention’s original aspirations have been adequately realized in the economic arrangements that have subsequently developed around it.
Equality of Opportunity: A Principle Without a Complete Market-Access Code
The first difficulty is that the Chicago Convention does not establish a comprehensive, generally applicable multilateral code granting every State’s airline unrestricted access to international markets.
Article 1 affirms the complete and exclusive sovereignty of each State over the airspace above its territory. Article 6 provides that no scheduled international air service may be operated over or into the territory of a contracting State except with that State’s special permission or other authorization, and in accordance with the terms of such permission. These provisions preserve the sovereign authority of States to determine access to their markets.
Consequently, the Preamble’s commitment to equality of opportunity does not itself confer an enforceable, general right upon an airline to enter another State’s market. The practical exercise of traffic rights depends substantially upon air services agreements, the permissions granted under them and the applicable regulatory arrangements.
Article 44 is nevertheless important. Among ICAO’s objectives are the promotion of the safe and orderly growth of international civil aviation, the prevention of economic waste caused by unreasonable competition, the full respect of contracting States’ rights, and the assurance that every contracting State has a fair opportunity to operate international airlines.
Article 44 therefore supplies an institutional objective against which the evolution of the international air transport system may be evaluated. Yet its formulation does not, by itself, abolish the sovereign authority preserved by Articles 1 and 6 or establish a universal entitlement to unrestricted market access.
This is the essential structural tension. The Convention articulates a principle of fair opportunity while leaving substantial economic access decisions to States. The bilateral air services agreement has become the principal instrument through which that tension is managed.
The resulting system is neither wholly liberal nor wholly protectionist. It accommodates different degrees of market opening, from restrictive bilateral arrangements to regional liberalisation and open-skies agreements. This flexibility has enabled States to proceed at different speeds, but it has also preserved a framework in which access may depend upon negotiating leverage rather than solely upon the intrinsic merits of an airline’s services.
The problem is not that bilateralism is inherently unjust. Bilateral agreements can reflect legitimate differences in market size, geography, connectivity and public policy. The problem arises when formal reciprocity conceals substantial differences in the ability of the parties to exploit the rights exchanged.
A State may secure traffic rights for its designated carrier yet lack the capital, fleet, airport infrastructure, skilled personnel or commercial network necessary to use them effectively. Another State may obtain identical rights and deploy them through a globally connected airline with extensive financial and operational resources. The treaty entitlement may be equal; the competitive opportunity may not be.
This is precisely the type of distinction that a Rawlsian analysis can illuminate.
The Veil of Ignorance in an Already Competitive Market
Rawls’s original position requires participants to choose principles without knowing their eventual social or economic position. Applied to international air transport, the negotiating States would be asked to consider market-access rules without knowing whether they would represent a dominant aviation economy, a small island State, a landlocked developing country, a major airline hub or a State whose national carrier has limited resources.
Would they agree that market access should depend principally upon bilateral reciprocity? Would they favour liberalization without safeguards against anti-competitive practices? Would they accept that a State could possess formal traffic rights but encounter practical obstacles in exercising them? Would they regard equality of opportunity as satisfied where competing airlines possess radically different access to finance, infrastructure and commercially valuable airport slots?
These are not merely theoretical questions. They concern the relationship between legal entitlement and effective participation in an international market.
In my article “Competition in Air Transport and Equality of Opportunity”, I identify the tension between the Preamble’s commitment to equality of opportunity, the sovereignty principle and Article 6’s requirement for State authorization of scheduled international services. He also examines how airlines have developed alliances, code-sharing arrangements and other commercial practices within this regulatory environment.
The veil would require States to confront that tension without knowing whether they would be beneficiaries of the existing order or parties whose competitive prospects are constrained by it.
But there is a crucial qualification. Rawls’s veil is a method of choosing principles under conditions of uncertainty; it is not a mechanism for making existing competitors equal after the market has already developed. Once airlines established extensive networks, accumulated capital, secured airport slots and developed powerful brands, a newly negotiated rule of formal equality cannot erase those accumulated advantages.
The veil can influence the terms on which future competition takes place. It cannot, by itself, reconstruct the history of the market.
This distinction is particularly important at ATConf/7. The Conference will not be negotiating in an institutional vacuum. It will be considering reforms within a system whose commercial structures, bilateral agreements and patterns of connectivity have evolved over decades. States have different interests in maintaining or changing those arrangements, and the airlines they designate have different capacities to respond to new opportunities.
The question, therefore, is not whether the veil can produce a perfectly impartial market. It is whether it can make the existing system more defensible by identifying and correcting barriers that have no adequate justification in safety, efficiency or legitimate public policy.
The Difference Between Equality of Opportunity and Equality of Outcome
A Rawlsian approach must not be confused with a demand that every airline achieve the same commercial outcome. Airlines differ in efficiency, business models, service quality, management, investment and consumer appeal. Such differences are not inherently unjust.
A fair system need not guarantee that a small carrier will defeat a large network airline, or that every State will develop an equally profitable aviation industry. Nor does Rawls’s theory establish that economic inequalities must be eliminated in international markets.
The appropriate inquiry is whether the rules governing competition are fair and whether disadvantages arise from legitimate differences in performance or from avoidable structural barriers.
For example, a carrier may be less competitive because it operates an inefficient fleet or has failed to respond to consumer demand. The veil would not justify insulating it indefinitely from competition. But a carrier may also be disadvantaged because a foreign airport has no practicably available slots, because discriminatory charges are imposed, because access to essential facilities is restricted, or because one State’s regulatory practices systematically favour its own designated airline.
These situations are materially different. The former concerns the consequences of commercial performance; the latter may concern the fairness of the conditions under which performance is judged.
In my book Competition and Investment in Air Transport: Legal and Economic Issues (2016) I examine the interaction between competition, subsidies, liberalisation, safety, environmental protection and innovation. It also considers market access and subsidies in the context of the United States–United Arab Emirates debate. These issues demonstrate why competitive fairness cannot be reduced to a simple choice between open markets and State intervention.
The Rawlsian question is whether the rules governing these interventions could be accepted without knowing which State or airline would benefit from them.
Practical Obstacles to Fair Access
The distinction between nominal and effective access deserves particular attention. Market access is not exhausted by the exchange of traffic rights. It also depends upon the conditions under which those rights can be exercised.
Airport capacity is an obvious example. A State may have negotiated the right for its designated airline to operate services to a major international hub. If commercially useful slots are unavailable, or if the system of allocation systematically favours incumbent operators without adequate justification, the traffic right may possess limited practical value.
This issue has already been brought into ICAO’s deliberations. A working paper submitted by India to the 42nd ICAO Assembly in 2025 argued that slot allocation practices and other non-tariff barriers can undermine the equality-of-opportunity principle, particularly to the detriment of carriers from developing States. It called for guidance on transparent slot allocation, the review of grandfather rights and non-discriminatory operating conditions. These are proposals advanced in a working paper, not a declaration that every incumbent slot entitlement is unlawful.
The relevance to the veil is immediate. If negotiators did not know whether they would represent an incumbent carrier with historically valuable slots or a new entrant seeking access, would they agree to the same allocation rules? Would they support a system in which historical possession is decisive, regardless of present use, or one that balances continuity with transparency, efficiency and reasonable opportunities for new entrants?
A defensible framework would not necessarily abolish grandfather rights. Historical continuity can support reliable scheduling, investment and consumer expectations. But a Rawlsian assessment would require the justification for such privileges to be tested against their effect on access, rather than accepted merely because they have become entrenched.
Other barriers require similar scrutiny: discriminatory airport and ground-handling charges, restrictive commercial arrangements, opaque administrative requirements and the unequal availability of aviation finance. The veil would not automatically classify every such difference as unjust. It would require a demonstration that the difference serves a legitimate purpose and does not impose disproportionate burdens upon particular participants.
There is also the problem of public support for airlines. A government may provide assistance to a carrier for reasons connected with connectivity, employment, emergency preparedness or the maintenance of essential services. Yet subsidies can also distort competition, particularly when their scale and terms are opaque.
The Rawlsian inquiry would ask whether States would accept the same rules on financial assistance if they did not know whether their own carrier would be receiving support or competing against a subsidised foreign airline. The likely result would not be a prohibition on every form of public support. It would be a stronger case for transparency, proportionate safeguards and a distinction between legitimate public-service objectives and measures designed principally to suppress competition.
The purpose of impartiality is not to condemn State involvement in the market. It is to make that involvement answerable to principles that do not change according to the identity of the beneficiary.
Safe and Orderly Transport: The Necessary Qualification
A discussion of equality of opportunity under the Chicago Convention would be incomplete without considering the Preamble’s commitment to safe and orderly development. The pursuit of market access must not become an end in itself, detached from the public interest that gives international civil aviation its legitimacy.
The Convention’s structure recognizes the importance of uniformity and cooperation in matters affecting aviation safety. Article 37 requires contracting States to collaborate in securing the highest practicable degree of uniformity in regulations, standards, procedures and organization concerning aircraft, personnel, airways and auxiliary services where uniformity facilitates and improves air navigation. Article 44 likewise identifies safe and orderly growth as a central objective of ICAO.
These provisions are relevant to the Rawlsian inquiry because safety is not simply another commercial variable to be traded against market access. It is a public interest that places legitimate constraints upon liberalization.
Imagine States negotiating aviation market-access rules without knowing whether they will possess highly developed regulatory institutions or struggle to maintain adequate safety oversight. They would have reason to agree that market access should be accompanied by credible safety requirements, transparent certification processes and effective oversight. They would also have reason to resist arrangements under which safety standards become disguised instruments of economic protectionism.
This is the subtle distinction. A State must retain the ability to address genuine safety risks, but safety concerns should not be invoked arbitrarily to exclude competitors whose operations satisfy the applicable international and domestic requirements.
The veil would encourage a common standard of justification: restrictions should be supported by legitimate safety evidence, applied consistently and proportionate to the risk addressed. The same principle should apply to requirements affecting certification, operational approvals and the recognition of regulatory oversight.
A similar analysis applies to emerging aviation technologies, including advanced air mobility and autonomous systems. If States negotiate market-access rules for these technologies without knowing whether they will be technology producers or technology importers, they may be more willing to support common safety criteria, cooperation in certification and access to relevant technical information. At the same time, the need for regulatory capacity-building should not be ignored.
The purpose is not to subordinate safety to competition or competition to safety. It is to establish conditions in which safety is protected without becoming a pretext for arbitrary exclusion, and in which liberalization proceeds without undermining the integrity of the aviation system.
Other Treaty Provisions and The Substance of Equal Opportunity
Three provisions deserve particular consideration alongside Articles 1, 6, 37 and 44.
Article 11 addresses the applicability of national laws and regulations relating to the admission to, departure from and operation of aircraft in the territory of a contracting State. Its general principle is that such laws and regulations are to be applied to the aircraft of all contracting States without distinction as to nationality, subject to the Convention’s terms. Article 15 addresses airport and similar charges and the availability of airport and air navigation facilities, including important requirements concerning non-discrimination and the conditions under which charges are levied.
These provisions offer more concrete points of reference for evaluating fairness than the Preamble’s general language alone. They help establish that equal opportunity is not merely a philosophical aspiration: the Convention contains operative rules that constrain how States treat foreign aircraft and how certain charges and facilities are administered.
Nevertheless, their scope must not be overstated. Article 11 does not itself create unrestricted traffic rights, and Article 15 does not guarantee that every airport will have unlimited capacity or that every airline will secure its preferred slots. The existence of non-discrimination obligations does not remove the need to examine the precise legal provision, its application and the relevant facts.
A Rawlsian approach can nevertheless help determine whether national practices are consistent with the wider purposes of the Convention. Where States retain regulatory discretion, it encourages them to exercise that discretion in ways that can be justified to parties whose economic and political position is unknown.
Article 44 is particularly important because it links the rights of States to the opportunity to operate international airlines. The provision is not a guarantee of equal commercial success, but it gives ICAO a clear institutional objective in considering whether the economic framework of international air transport enables meaningful participation.
There is a further point. The Preamble speaks of international air transport services being operated “soundly and economically”. This language invites consideration of the entire system, including the sustainability of services, the efficient use of infrastructure and the economic conditions under which connectivity is provided.
An arrangement that permits unrestricted competition but produces the disappearance of essential regional connectivity may raise different public-policy concerns from one that opens a large, commercially attractive market. Equally, protection of an incumbent carrier cannot automatically be justified by invoking national connectivity if the measure unnecessarily excludes efficient competitors or imposes excessive costs upon passengers.
A veil-based analysis would therefore require attention to the interests of passengers, cargo users, workers, airports, airlines and communities dependent upon aviation. The question would not be simply which carrier wins, but whether the regulatory framework advances the Convention’s broader purposes.
ATConf/7: From Philosophical Principle to Regulatory Agenda
The Seventh Worldwide Air Transport Conference offers an appropriate opportunity to apply this reasoning to concrete policy questions. Its published theme emphasises global connectivity, economic development and resilience, while its stated priorities include market access, consumer protection, infrastructure finance, institutional capacity and inclusive growth.
The Conference should not be expected to adopt Rawlsian philosophy as a new source of international legal obligation. A more realistic and productive objective would be to use the veil as a method of evaluating policy proposals within the existing legal framework.
First, ICAO could encourage States to assess whether their air services agreements provide reciprocal rights that are meaningful in practice. Such an assessment could consider capacity constraints, airport access, commercial operating conditions and the administrative requirements that designated airlines must satisfy.
Secondly, States could strengthen transparency concerning subsidies and other forms of public support. This would permit more informed evaluation of whether such measures serve legitimate public purposes or distort competition in ways inconsistent with fair opportunity.
Thirdly, ICAO could promote guidance on non-discriminatory airport access, slot allocation and ground-handling arrangements, while recognizing legitimate capacity constraints and the need for operational reliability.
Fourthly, market liberalization should be considered alongside the institutional and financial capacity of developing States. If the purpose of international aviation is to advance global connectivity and economic development, opening a market without addressing the infrastructure and regulatory constraints that prevent some States from participating may produce only limited benefits.
Finally, the Conference should consider how fair competition can coexist with consumer protection, labour standards, safety and environmental objectives. A system that evaluates success solely through traffic growth or airline profitability would provide an incomplete account of the Convention’s purposes.
The preceding ICAO Air Transport Conferences offer useful institutional context. ATConf/5 in 2003 supported continued liberalization while recognizing the flexibility of bilateral, regional and multilateral approaches. ATConf/6 in 2013 addressed sustainability, market access, ownership and control, consumer protection and fair competition, and encouraged further work on the long-term liberalization of international air transport.
The lesson is that liberalization has long been recognized as a policy objective, but the international community has also acknowledged the need for safeguards and a regulatory framework capable of responding to the consequences of increased competition.
ATConf/7 should build upon that experience rather than assume that either unrestricted liberalization or continued reliance on bilateral bargaining is a complete answer.
The Limits of The Veil in an Established Competitive Order
There remains, however, a more fundamental difficulty. Rawls’s theory is designed to help participants select fair principles under conditions of uncertainty. International air transport already operates under established rules, vested commercial interests and a distribution of market power that cannot be made to disappear through a hypothetical exercise in impartiality.
A State whose airlines possess extensive networks may accept the language of fair competition while resisting measures that would diminish its existing advantages. A State whose airline industry is less developed may support more liberal access in the hope of attracting foreign investment, while simultaneously fearing that its own carriers will be unable to survive competition. Both positions may be rational from the perspective of national interest.
The veil does not eliminate these interests. Nor does it resolve the problem of how to move from a principle of impartiality to a binding international agreement.
Indeed, there is a risk that the veil will be employed rhetorically. Negotiators might declare a commitment to equality of opportunity while preserving the very arrangements that frustrate it. In such circumstances, the exercise would have little practical value.
Its effectiveness therefore depends upon institutional consequences. A Rawlsian assessment must be translated into evidence, transparent decision-making, reviewable standards and, where States agree, mechanisms for monitoring implementation.
This is especially important because the Chicago Convention does not provide a comprehensive international competition-law regime for airlines. ICAO has developed policy guidance and model provisions, but the principal economic regulation of scheduled international air services remains substantially dependent upon States and their agreements. The absence of a comprehensive multilateral framework for fair competition has been identified as a continuing difficulty in the international aviation system.
The answer is not necessarily to replace bilateralism with a single, compulsory global market-access regime. States have legitimate reasons to retain flexibility in determining the pace and form of liberalization. The more defensible approach is to develop common principles that constrain arbitrary discrimination, improve transparency and encourage States to explain restrictions by reference to legitimate objectives.
The veil may assist in formulating those principles, but it cannot supply the political will required to implement them.
My Take
Drawing upon the jurisprudential and economic concerns explored in my books Convention on International Civil Aviation: A Commentary, and Competition and Investment in Air Transport: Legal and Economic Issues, together with his article on competition and equality of opportunity, I would argue that the Rawlsian veil should be applied to the economic evolution of the Chicago Convention, but with a clear understanding of its limits.
The Chicago Convention was conceived in a world emerging from the devastation of war. Its Preamble expressed an aspiration that international civil aviation should contribute to friendship, understanding and peace, and that air transport should develop safely, orderly and on the basis of equality of opportunity. The Convention’s enduring significance lies partly in its capacity to accommodate technological and commercial change without abandoning those foundational purposes.
Yet the economic architecture that developed around the Convention has left market access substantially dependent upon State consent and bilateral bargaining. This arrangement has preserved national sovereignty, but it has also permitted the practical value of market-access rights to vary according to the economic strength of States and their designated airlines.
The Rawlsian question is therefore not whether all airlines should be made equal. It is whether the rules governing their competition could be accepted by States that did not know whether they would possess dominant airlines, limited aviation infrastructure, substantial financial resources or a compelling dependence upon international connectivity.
My answer is that they could, provided the veil is used to examine the conditions of competition rather than to guarantee commercial outcomes. It should encourage a distinction between disadvantages arising from legitimate commercial performance and disadvantages arising from unjustified regulatory barriers, discriminatory access to essential facilities or opaque public support.
At ATConf/7, this distinction should be given practical expression. ICAO should encourage measurable examination of market-access barriers, greater transparency in subsidies and operating conditions, fairer access to airport infrastructure, and stronger institutional support for States whose aviation development is constrained by limited resources. Liberalization should proceed alongside safeguards for safety, consumers, workers and essential connectivity.
Above all, the Preamble’s commitment to equality of opportunity should not be treated as an ornamental statement of aspiration, nor should it be misconstrued as an automatic entitlement to unrestricted traffic rights. Its value lies in informing the development of a system in which sovereign authority is exercised consistently with the Convention’s wider purposes.
The veil cannot undo the competitive advantages accumulated over eight decades. It cannot compel States to surrender national interests, nor can it substitute for treaty amendments, negotiated agreements or effective implementation. What it can do is expose the inadequacy of a system that equates formal equality with meaningful opportunity.
The ultimate test is whether the international aviation community is prepared to move beyond declarations of fairness and examine the actual conditions under which States and airlines participate in the global market.
The principle I would place before ATConf/7 is this: equality of opportunity in international air transport should mean neither equality of commercial outcome nor the indiscriminate opening of every market. It should mean that access to the opportunities created by international aviation is governed by rules that are transparent, non-discriminatory, proportionate and defensible irrespective of the identity of their beneficiaries.
That is where Rawls’s veil has its greatest value. It does not provide a new traffic right. It provides a demanding test of the justice of the rules through which traffic rights are negotiated, exercised and protected.
If ICAO can translate that test into practical guidance and measurable commitments, the veil of ignorance may become more than a philosophical metaphor. It may help restore a substantive meaning to the equality of opportunity expressed in the Chicago Convention’s Preamble and give renewed purpose to the Convention’s enduring vision of safe, orderly and economically sound international civil aviation.
