by Matthew H. Ormsbee
I. Introduction
When Russia invaded Ukraine in February 2022, it learned that crimes of aggression have consequences – on the battlefield and in civil aviation.1 With each Russian offensive, States increasingly isolated Russia with economic sanctions, diplomatic condemnations, and a momentous vote removing Russia as a member of the International Civil Aviation Organization (“ICAO”) Council.2 Against this backdrop, on March 14, 2022, Russia enacted a law allowing Russian-based airlines to re-register foreign-owned aircraft on the Russian national registry.3 The law permitted Russian airlines to fly such aircraft domestically and internationally, even while they remain duly registered abroad, mainly in Ireland and Bermuda.4 Owners of the leased aircraft and aviation authorities had not consented to a de-registration of the subject aircraft from their nationality registries before the law was enacted.5
On the day the Russian re-registration bill became law, Ireland and Bermuda6 revoked airworthiness certificates for several leased aircraft in Russia under Article 31 of the Convention on International Civil Aviation (1944) (“Chicago Convention”).7 A civil aircraft flying internationally requires a valid certificate of airworthiness to operate.8 Irish and Bermudan authorities reportedly revoked the airworthiness certificates because they could no longer access the subject aircraft and ensure appropriate safety oversight.9 To date, Russia has re-registered more than 350 leased aircraft on its aircraft nationality register.10
The most significant problem in civil aviation today is Russia’s national re-registration law, which undermines the predictability, order, and safety upon which aircraft lessors, air carriers, and passengers rely. Russia is one of the largest global markets for leased aircraft, with Russian-based airlines operating more than 500 foreign-owned aircraft.11 Thus, Russia’s re-registration law creates significant confusion and disorder in the international aviation law regime anchored to the Chicago Convention.12 Importantly, the double-registration law amounts to State-sanctioned unlawful seizures of civil aircraft.
This essay does more than examine the legal problem and put forth solutions; it also views Russia in an inescapable conundrum under the old saying that “desperate times call for desperate measures.” Such a once-in-a-lifetime occurrence highlights how civil aviation is inextricably linked to politics, war, and diplomacy. This essay argues that Russia enacted its sui generis registration law because its war has left it with no other options. This does not make Russia’s actions legally defensible, but the context helps frame potential solutions carefully tailored to the problem. The essay will put forth proposals after examining the international aircraft registration regime and explaining the legal implications of Russia’s law for various parties.
II. Aircraft Registration Regime
The Paris Convention of 1919 is the earliest modern attempt at a multilateral civil aviation agreement.13 While this convention established several fundamental tenets of international civil aviation, States ultimately abandoned it in favor of the Chicago Convention. This convention remains the core international instrument for civil aviation and a remarkably successful treaty based on its longevity and near-universal ratification by almost every State in the world.14
The modern aircraft registration regime arises from the Chicago Convention. Specifically, Article 17 of the Convention requires that “[a]ircraft have the nationality of the State in which they are registered.”15 Next, Article 18 states that “aircraft cannot be validly registered in more than one State”,16 though an aircraft’s registration may change from State to State.17 The single-State registration regime is fundamental to international civil aviation, underpinning unique rights to aircraft based on registration.18 The nationality of an aircraft allows it to remain under the regulatory control of the State of registration, regardless of where the aircraft is located, subject to Article 11 of the Convention.19 Thus, the State of registration has quasi-territorial jurisdiction, and the aircraft maintains its nationality even when on the ground in another State.20
Any aircraft registration or transfer of a registration by a State must be “made in accordance with its laws and regulations” under Article 19 but subject to the consent of the de-registering State.21 As a general principle of international law, however, national laws about registration or re-registration shall not contravene treaty obligations to the contrary.22 Thus, under the Vienna Convention on the Law of Treaties (1969), Russia’s national legislation violating treaty provisions is unenforceable to the extent that it contravenes State Parties’ obligations under the Chicago Convention’s registration principles.23
III. Legal Implications
Russia’s re-registration law substantially affects several parties in international civil aviation. While each party is addressed individually, relationships and dependencies bind each relevant party, creating a tangled web of second-order effects that are not adequately addressed without repealing the re-registration law or taking steps outlined in Section IV below.
A. Implications for Leasing and Financing Aircraft
Russia’s re-registration law turns aircraft leasing and financing on its head. As a starting point, the Cape Town Convention and Aircraft Protocol of 2001 creates an international registry to record claims, establish priority, and provide notice regarding existing global interests.24 Under the Cape Town Convention, if a lessee defaults on its obligations, the lessor can recover the leased asset, make claims with respective insurers, and take other lawful recourse.25 However, in the case of Russia, aircraft may be unrecoverable when a default occurs if the aircraft remain in Russia for the near term or if Russian or other aviation authorities ground them indefinitely based on safety or compliance violations. This results in complications for insurers and flying customers when fewer aircraft are in the pool of available aircraft. The scarcity of aircraft may also result in more significant usage of fewer aircraft (meaning faster depreciation), higher costs of maintenance, and higher ticket prices for the public.
In response, creditors and lessors must re-evaluate their level of risk for re-registered aircraft in Russia. Shockingly, total loss of assets may occur if an aircraft in Russia is unrecoverable. On this basis, only a small number of companies may seek to lease to Russian operators, even after the war. Separately, if the re-registration of assets is considered an act of “illegality” under a given insurance agreement, it may trigger a default. Lease rates will surely skyrocket for those flying in Russia, and lawsuits will determine whether lessors are permanently deprived of stranded aircraft in Russia and whether they have truly exhausted all measures to avoid a total loss.26
This may kickstart domestic Russian aircraft production, assuming Russia can muster such an undertaking during the war. At the very least, Russia’s law will prompt a second look at insurance contracts for the unforeseen act of re-registration. This is a massive undertaking when Russia’s law is estimated at a $13.5 billion (CAD) exposure for Russia’s entire foreign-leased fleet.27 With more than 500 foreign-owned aircraft in Russian airspace, the ramifications for lessors and financiers – and thus airlines and customers – cannot be overstated.28
B. Implications for the Chicago Convention
The re-registration law shakes the foundation of modern aviation law. The Chicago Convention was intended to unify States in furtherance of safety, efficiency, security, international order, and peace.29 Russia’s law tests these core principles of international civil aviation with the stroke of a pen. Specifically, the re-registration regime strikes at one of the central tenets of aviation law under Article 18 of the Chicago Convention: the “single” nationality of aircraft.30 Russia’s re-registration law is unparalleled in scope and the intent to “disunify” State Parties to the Chicago Convention. No State has ever directly challenged an unambiguous mandate under the Chicago Convention in such a fashion.
Russia also violates the sovereign rights of Ireland and the United Kingdom (via Bermuda) by disregarding the Article 19 obligation that a transfer of aircraft registration shall be made subject to the lessor’s consent.31 Admittedly, Russia initially allowed the double-registered aircraft to be flown only within Russian airspace, thus not falling within the scope of the Chicago Convention, which encompasses only cross-border aviation and not domestic flights.32 However, this changed when Aeroflot flew one of its leased aircraft to Sri Lanka.33
The international flight to Sri Lanka symbolically marked the first blatant violation of the Chicago Convention. Russia’s flagrant and ongoing breach of this convention must be met with severe consequences linked to Russia’s lack of remorse and the extent of its unlawful international flights once final stock is taken. The Chicago Convention is the bedrock of stability and predictability in international civil aviation. Thus, Russia is playing a dangerous game in the case of a double-registered aircraft flown without a valid airworthiness certificate that, for example, is still under Irish nationality under the Chicago Convention.
C. Implications for the Rule of Law
Russia’s actions are an affront to the rule of law by flaunting long-standing tenets of the Chicago Convention and general legal principles. By doing so, Russia sets a dangerous precedent that other rogue States may follow. The rule of law means the equal application of the law without favoritism and that States are individually and jointly accountable for their actions that contravene international law.34 Questions about the rule of law are immediately raised when Russia – one of the most prominent parties in civil aviation – breaks with settled State practice in contravention of international law. Without the rule of law, other States will undoubtedly follow Russia’s example or exclude Russia’s double-registered aircraft from their respective airspace, as has occurred in Turkey and China.35
The ICAO Council has publicly denounced Russia’s actions, reporting the infractions to the ICAO Assembly and stating that such acts will not be tolerated.36 The Council’s denunciation is without precedent but is greatly needed to deter copycat States.37 If the single-State registration standard erodes, the civil aviation regime that has prevailed since 1944 will be less predictable with double or even triple registrations. States will find it much more challenging to verify that the safety measures for an aircraft have been met, and higher administrative costs will be passed on to consumers. Thus, double registration may encourage the willful breaking of international obligations and undermine ICAO’s core principles under Article 44 of the Convention.38
D. Implications for Third-Party States in Which the Concerned Aircraft are Flown
States owe a duty of diligence not only to their citizens but to other States as well. Specifically, States neighboring Russia are not to intervene in the affairs of other States or participate or aid in interfering with these rights.39 Thus, if a State accepts Russia’s double-registered aircraft into its sovereign airspace, it breaches this obligation under international law. Indeed, the standard of a single registration for civil aviation is likely an erga omnes obligation, such that each State owes a duty to all other States not to violate this international norm of civil aviation.40
Russia’s internal law also upends the core principle of uniformity of standards and recommended practices under the Chicago Convention. Article 12 of the Chicago Convention requires contracting States to keep their international regulations “uniform, to the greatest possible extent”, with those under the Convention.41 In this way, States strengthen predictability and cohesion across national borders by ensuring that State practice is unified to the maximum extent possible. Indeed, Article 33 of the Chicago Convention is premised on States recognizing other States’ certificates of airworthiness and licenses, so long as the issuing State has complied with “minimum standards” under the convention and its annexes.42
Perhaps most notably, Russia infringes on Ireland’s and Bermuda’s nationality rights and State sovereignty with the re-registration statute.43 Therefore, any other State that would recognize the Russian nationality of these aircraft and any purported certification and registration flowing from it would similarly risk infringing on the sovereign rights of Ireland and the U.K. (or at least abetting such infringement). Such States would be equally culpable for permitting an aircraft to fly without a valid airworthiness certificate and registration.
E. Legal Precedent
One precedent is particularly noteworthy in this context. The U.S. Court of Appeals for the Ninth Circuit in Air One Helicopters, Inc. v. F.A.A. held that the U.S. Federal Aviation Administration improperly refused to register a helicopter based on its prior aircraft registration in Spain.44 Though the Ninth Circuit ruled that the aircraft in question could lawfully be registered in the U.S. while still registered in Spain, this case is an anomaly that embodies the maxim that “hard facts make bad law.”45 The judges sympathized with the plaintiff’s lengthy regulatory struggle and found that proof of a lien discharge in Spain was impossible to deliver to Spanish authorities because the original lien-holding corporation was dissolved; in any case, the lien had been discharged.46 Thus, the Spanish registration was no longer “valid” per the language of Article 18 of the Convention.47 While still valid precedent, this case is premised on extraordinary facts, has not been followed in subsequent cases, and is easily distinguished from the facts of Russia’s national law.
Nevertheless, Air One Helicopters stands for the astonishing proposition that a foreign court can determine the validity of an aircraft registration in another State.48 Thus, based on non-binding but persuasive U.S. appellate-level precedent, a Russian court could rule that Ireland’s prior registration, for example, is now invalid and Russia’s registration is valid because it supersedes the earlier registration. Furthermore, the language of Article 19 of the Chicago Convention, based on a plain language reading, states that the domestic law of the registering or transferring State governs a transfer of registration. Thus, Russia could make a colorable argument that its domestic law justifies such a registration transfer to skirt an allegation of double registration.
In response, it must be noted that such a legal argument from Russia is unlikely because (1) the Air One Helicopters case is a non-binding anomalous case and (2) in real-world practice, the transfer of aircraft registration is a carefully choreographed dance between two States, where a de-registration statement from the prior State is virtually always required before processing a registration transfer.49 Absent a deregistration statement from a prior State, chaos would ensue in registration offices worldwide if parties could register aircraft without consent from the prior State of registration. As for Air One Helicopters, Russia may cite this case in support of such a claim, though the case is premised on singular facts, and ICAO and affected States should be prepared for such a possibility.
IV. Conclusions and Proposals
A. Public Statements and Demands
It is unlikely that Russia will repeal its re-registration law soon. Therefore, States must collectively condemn the Russian re-registration law and demand its repeal. The ICAO Council has formally called on Russia “to immediately cease its infractions” and “urgently remedy these violations.”50 Additionally, Canada and the United States have both condemned Russia’s actions. Still, these and other influential States must be more vocal about their disapproval through diplomatic channels and by lobbying for further denouncements on the floor of ICAO.
Beyond this, ICAO can publicly note infractions under Articles 54(j) and (k) of the Chicago Convention. These provisions authorize the ICAO Council to publicly report an infraction of the convention, a failure to carry out recommendations or determinations of the Council, or a failure to take appropriate action after a reasonable time following notice of the infraction.51 For their part, Ireland and Bermuda must demand that Russia cease flying double-registered aircraft, even purely within Russia. While international conventions like the Chicago Convention are a primary source of legal authority, customary international law may also hold Russia accountable.52 International custom is generally formed from the statements, actions, and beliefs (opinio juris) of States.53 Therefore, the civil aviation community needs urgent, consistent, and repeated denunciations to form norms and public beliefs against practices of double registration.
B. Article 84 Settlement of Disputes
Next, Ireland and Bermuda must attempt to engage in meaningful consultations and negotiations with Russia. If these are not fruitful after good faith efforts, Ireland and Bermuda must seek ICAO Council intervention under Article 84 of the Convention.54 The aggrieved states must demand that the ICAO Council interpret the registration provisions of the Chicago Convention and declare that Russia’s double registration law contravenes the convention’s terms. The Council must also rule that Russia’s double-registration law cannot be justified because the Vienna Convention precludes reliance on national law that derogates treaty obligations.55 The ICAO Council is empowered to decide the meaning of Articles 17, 18, and 19 of the Chicago Convention in a dispute between two or more contracting States. While the ICAO Council’s quasi-judicial power is conciliatory during early negotiations, a final decision is binding upon the parties.56 Ultimately, the mere commencement of the Article 84 dispute settlement process would send a strong message to Russia.
C. Lessor Vigilance
Lessors must remain vigilant for their assets and move quickly to re-possess leased aircraft if they leave Russia. This will require patience from lessors and cooperation from partner States. Even if a Russian airline wishes to cooperate with a foreign owner or financing party for repossession, “the obstacles put in place by the Russian authorities, combined with Western sanctions”, make recovering aircraft in Russia “extremely challenging.”57 If a seizure is impossible, lessors must quickly revoke airworthiness certificates or other documents that qualify an aircraft to fly. Grounding an asset outside Russia would at least take the aircraft out of the Russian fleet, though it would soon render the aircraft valueless. This justifies the expediency of all other measures against Russia.
D. Passenger Concerns
The Chicago Convention concerns itself with the growth of the civil aviation industry while protecting the safety and security of operations. The convention’s chief concerns are passenger welfare and quick and efficient travel. Regrettably, Russia’s actions also appear to lead to longer travel times or canceled international flights. For example, because Turkey has closed its airspace to Russia’s double-registered aircraft, flights to Egypt now take up to 30 minutes longer from many departing locations.58
Additionally, Air Canada can no longer fly directly from Toronto or Montreal to destinations in China or India. Because Russia has closed its airspace to Air Canada out of retaliation, it is not cost-effective to bring passengers to China or India while adding substantially to the distance and time traveled. Worse still, Indian airlines, for example, can travel over Russian airspace currently, benefiting Indian carriers and leading to a substantial imbalance in international aviation commerce. Ultimately, in most cases, global passengers get the short end of the stick due to Russia’s double-registration law.
E. Lack of Legal Defenses
Russia cannot legally justify its double registration. Article 89 of the Chicago Convention could conceivably relax Russia’s obligations under the Convention in times of war or national emergency. Yet, Russia has adamantly denied a war declaration and has not declared a state of national emergency.59 In the absence of valid defenses under the Chicago Convention, Russia must cut its losses. Setting aside its domestic re-registration law is the only way for Russia to return to a state of relative normalcy.
Still, Russia is not without some counterplay. As a counterargument to double registration, Russia may have a good faith position that Article 18 does not envision double registration, but it does envision the handoff of registration from one State to another.60 Further, Article 19 states that the “transfer of registration of aircraft” will be made by the transferring State “in accordance with its laws and regulations.”61 Thus, Russia’s registration of the leased aircraft on the domestic register does not constitute a double registration but rather a transfer of registration from the preceding State to Russia, consistent with Russia’s laws and regulations.
While this is a colorable argument, it ignores the method in which registration transfers are uniformly accomplished on a global scale. In particular, such transfers typically consist of a contemporaneous de-registration and new registration in close conjunction between the two concerned States to ensure that an aircraft is never without a State registration but is also never registered by two competing States. Thus, even if the Chicago Convention does not detail the method of de-registering aircraft, it is implied that consent from the de-registering State must be acquired and coordinated before a new registration.
Absent such an understanding, acquiring States could predatorily usurp an aircraft registration from a prior State by simply effecting a new registration that supersedes an older one. This would create a chaotic registration system undermining the Chicago Convention’s goals of uniformity, predictability, and safety in aviation. In light of this argument and Russia’s lack of legal defenses for its double-registration law, Russia’s legal defenses are virtually non-existent.
F. End the War, Repeal the Law
Russia’s re-registration law amounts to State authorization for an unlawful seizure of civil aircraft. States and ICAO must pressure Russia from economic, political, diplomatic, and legal perspectives to repeal this law and end its war of aggression in Ukraine. The above proposals will help aggrieved States as the war drags on. However, in the meantime, diplomatic pressure will help end the war so that relations will normalize with Russia, and the re-registration law will no longer be viewed as necessary by Russia. Parties must send the strongest message possible to Russia that its double-registration law is a flagrant violation of law and a setback for safety and predictability in international civil aviation.
Endnotes
1 The Rome Statute (1998) and its amendment condemn an “act of aggression” as criminal and define it as “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State.”
5 Stefan-Michael Wedenig & Donal Patrick Hanley, “The Actions of the Russian Federation and their Impact on the Chicago and Cape Town Convention – An Analysis”, German Journal of Air and Space Law, October 7, 2022, at 388.
6 Bermuda acted through the U.K. Aviation Authority.
7 Convention on International Civil Aviation signed at Chicago on 7 December 1944, art 31 (“Chicago Convention”).
12 See
generally Chicago Convention,
supra note 7.
13 Convention Relating to the Regulation of Aerial Navigation, 13 October 1919, 11 LNTS 173, 1922 UKTS 2.
14 See John Cobb Cooper, “The Chicago Convention – After Twenty Years”, 19 U Miami L Rev 333 (1965), 333-34.
15 See Chicago Convention,
supra note 7, at art 17.
16 Ibid. at art 18 (emphasis added).
18 The State of Registration accrues certain rights of oversight and compliance of the subject aircraft, including the Certificate of Airworthiness under Article 31 of the Convention.
19 See Chicago Convention,
supra note 7, at art 11 (“the laws and regulations of a contracting State relating to the admission to or departure from its territory of aircraft engaged in international air navigation […] shall be applied to the aircraft of all contracting States without distinction as to nationality.”).
21 See Chicago Convention,
supra note 7, at art 19.
22 Vienna Convention on the Law of Treaties [“VCLT”] at art 36.
24 Convention on International Interests in Mobile Equipment, 16 November 2001, 2307 UNTS 285 (entered into force 1 March 2006) [Cape Town Convention];
see also Protocol to the Convention, 16 November 2001, UNTS 2367 (entered into force 1 March 2006).
28 See Carswell,
supra note 11.
29 See the Preamble of the Chicago Convention of 1944 as well as Article 44 of the Chicago Convention for its aims and objectives.
30 See
supra notes 15 and 16.
31 If the lessor’s consent was not required, any State could simply re-register an aircraft without input from the prior-registered State. In practice, two States coordinate closely to de-register and re-register simultaneously so that aircraft are never without registration or with double registration.
32 See Chicago Convention,
supra note 7, at arts 1 and 2 (relating to sovereignty and territory).
38 These include: (a) Ensuring the safe and orderly growth of international civil aviation; (d) meeting the needs of the peoples of the world for safe, regular, efficient, and economical air transport; (f) ensuring that the rights of contracting States are fully respected and that every contracting State has a fair opportunity to operate international airlines; and (h) promoting the safety of flight in international air navigation. Chicago Convention at Art 44.
39 Kindred/Saunders, eds, “International Law Chiefly as Interpreted and Applied in Canada”, 7
th ed (Toronto: Emond Montgomery Publications, 2006) at 33; see also UN Charter, art 2 paras 4, 7; Island of Palmas Case (Netherlands v United States) (1928), RIAA 829; JG Castel, International Law, 3
rd ed (Toronto: Butterworths, 1976) at 48-50.
40 Huang Jiefang, “Aviation Safety, ICAO and Obligations
Erga Omnes” (2009) 8:1 Chinese J of Intl Law 63.
41 See Chicago Convention,
supra note 7, at art 12.
43 Ibid. at art 1 (stating that “every State has complete and exclusive sovereignty over the airspace above its territory”).
44 86 F.3d 880 (9
th Cir., 1996) [“Air One Helicopters”].
49 Ibid. at 881 (noting U.S. Federal Aviation Administration regulations requiring a deregistration statement from the prior State before registering an aircraft in the U.S.) (citing Federal Aviation Act of 1958, s. 1006(a), as amended by 49 U.S.C. App. (1988 Ed.) § 1486(a)).
51 See Chicago Convention,
supra note 7, at arts 54(j) and 54(k).
52 See Statute of the International Court of Justice, at art 38(1)(a).
53 Ibid. at art 38(1)(b).
54 Article 84 of the Chicago Convention provides for settlement of disputes by the ICAO Council if two or more contracting States disagree as to the interpretation of application of any part of the convention or its annexes.
55 See VCLT,
supra note 22, at art 27 (stating that “[a] party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46.”).
56 See Chicago Convention,
supra note 7, at art 84.
59 Rather, Russia maintains that it is conducting a “special military operation.”
60 See Chicago Convention,
supra note 7, at art 18.