The Dilemma of State Air Sovereignty: Reconstructing International Air Law in the Implementation of the ASEAN Open Skies Policy

Abstract

The ASEAN Open Skies Policy aims to create a single aviation market, yet it presents a dilemma for Indonesia regarding the protection of absolute airspace sovereignty. This study aims to analyze the normative conflict arising from aviation liberalization and to formulate an adaptive legal reconstruction for Indonesia. A normative-juridical research method was employed, utilizing statutory, conceptual, and comparative approaches—specifically comparing the models of Singapore and Malaysia. The findings indicate that the implementation of this regional policy—reinforced by Presidential Regulation Number 100 of 2025—threatens to erode domestic economic jurisdiction due to market reciprocity imbalances. A normative conflict exists between the protectionist 1944 Chicago Convention and ASEAN instruments that mandate openness regarding fifth-freedom rights. As a solution, this study proposes a novel "Targeted Functional Sovereignty" model. This model reconstructs the legal framework through three pillars: the establishment of an Independent Aviation Economic Authority (IAEC), the implementation of strategic airspace zoning, and the codification of an automatic safeguard mechanism triggered by a critical market threshold of 55%. In conclusion, through this reconstruction, Indonesia can fulfill its regional commitments in an offensive-adaptive manner without compromising its national aerospace jurisdiction.