Russia’s Violations of Global Aviation Rules Could Leave the UN With Tough, Costly Choices

Dozens of planes and helicopters used by United Nations peacekeeping missions and humanitarian operations may soon be grounded as war-driven sanctions against Russia begin to bite, leaving UN officials scrambling to figure out how to keep critical air transport services running without compromising safety and falling afoul of international aviation law.

In an Aug. 2 memo sent to UN Secretary-General António Guterres, a copy of which was obtained by PassBlue, Atul Khare, the head of the UN Department of Operational Support (DOS), and David Beasley, director of the World Food Program (WFP), discussed what is called a Significant Security Concern, issued formally by the International Civil Aviation Organization (ICAO) on June 15, regarding an “unresolved” development involving Russia. The concern, Khare and Beasley write, warrants the secretary-general’s “immediate attention.”

So far, Guterres seems to be deflecting decisions on the matter to the UN aviation organization. The problem occurs as the secretary-general must keep the new deal to export grains from Ukraine’s ports going with Turkish and Russian cooperation while ensuring Russia’s fertilizers reach commercial markets.

The Montreal-based ICAO is a specialized agency that supports “diplomacy and cooperation in air transport” globally. When necessary, it issues a Significant Security Concern (SSC) — or bulletin — to alert member states of any action that may compromise international aviation safety standards. ICAO was established by the Convention on International Civil Aviation, known as the Chicago Convention.

Russia, the subject of ICAO’s June 15 bulletin, has side-stepped aviation-related sanctions imposed by the collective West in response to Moscow’s war in Ukraine, by passing a domestic law on March 14 allowing Russia to add foreign aircraft leased by its aviation industry to Russia’s own national registry. The move by Moscow violates provisions of the Chicago Convention. Western sanctions gave leasing companies until March 28, 2022, to terminate all Russian leasing contracts.

ICAO, in turn, has given Russia until Sept. 14 to resolve the warning. Meanwhile, it is not clear whether current use of Russian aircraft for UN peacekeeping missions and humanitarian-aid deliveries poses certain risks for the UN. According to ICAO’s website, “the identification of a Significant Safety Concern does not necessarily indicate a particular safety deficiency.” The Aug. 2 memo from Khare and Beasley, however, refers to the SSC bulletin on Russia as “indicative of a situation where it can be considered that the regulatory legitimacy of the State [Russia] to provide impartial and correct oversight, including safety oversight as well as ensuring the effective governance and implementation of all applicable ICAO standards has been compromised.”

PassBlue asked ICAO — the stewards of the Chicago Convention — if any of the Russian aircraft used by the UN’s Department of Operational Support and the World Food Program have been grounded in anticipation of the Sept. 14 deadline. In an email response, an ICAO spokesperson replied that “regulatory” questions cannot be answered by the agency but “need to be addressed to the relevant state regulator, with the exception of UN humanitarian operations . . . which would need to be addressed directly to the operator(s) of interest.”

Drafted in 1944, the Chicago Convention, agreed upon by 54 nations, including Russia (referred to then as the Union of Soviet Socialist Republics), now has 193 states parties. It was created to “establish the core principles permitting international transport by air.” Under the Convention, “aircraft cannot be validly registered in more than one state” at a time, but registration may be changed from one country to another.

The Convention also states, however, that “in case of war,” provisions of the treaty “shall not affect the freedom of action of any of the contracting States affected, whether as belligerents or as neutrals.” It also states: “The same principle shall apply in the case of any contracting State which declares a state of national emergency and notifies the fact to the Council” — the permanent body that convenes the assembly (member states) of ICAO.

Yet since Russia’s full-scale invasion of Ukraine began on Feb. 24, Russia has steadfastly avoided calling it a “war,” and instead refers to it as a “special military operation.” The Russian delegation to the UN in New York City has consistently followed this wording in public forums at the world body.

Donal Patrick Hanley, a professor and interim director of the Institute of Air and Space Law at McGill University in Montreal, told PassBlue that the Chicago Convention’s war clause has never been “tested.” He added that if Russia or any other country in a similar situation were to declare an emergency or war, no one would know how to implement the clause as it is written, so “nobody knows what this clause means.”

When PassBlue asked Stéphane Dujarric, the spokesperson for Guterres, to comment, his email response said, “As ICAO is the specialized agency of the United Nations charged with international air navigation and related matters, any questions regarding documents, bulletins and the like issued by them should be directed to them;”

He added: “The United Nations always remain ready to replace any contracts as needed, with a wide range of registered and participating air operators, if needed, depending on the global situation and changing market conditions, as well as field requirements with a constant awareness of budgets and best value of money procurement modalities. The Secretariat and WFP both rely on ICAO advise and guidance for applying stringent standards to international operations ensuring safety and value.”

Of the 980 passenger or commercial aircraft that Russia currently operates globally, more than 750 are leased from other countries — mainly from Ireland and Bermuda — where the aircraft are registered. By unilaterally reregistering — or  “double-registering” — the planes it leases, Russia has essentially issued its own seal of airworthiness to continue operating the planes. Yet in doing so, it compromises the aircrafts’ safety. According to the Chicago Convention, such safety can be determined and validated only by the country where the aircraft is lawfully registered, such as Ireland or Bermuda.

The Convention sets rules and standards for all international flights regardless of ownership, aiming for universally safe skies as planes criss-cross global borders. But it does not apply to domestic flights within Russia (or any other nation’s domestic flight operations).

According to the memo obtained by PassBlue, President Vladimir Putin’s new reregistering law “compromises” Russia’s “regulatory legitimacy,” and the writers warn that the “continuation of chartering or traveling on aircraft registered to the Russian Federation would potentially expose the Organization to significant liabilities — safety and legal.”

The DOS and the WFP currently charter a total of 62 aircraft — including, most crucially, helicopters — from Russia. As PassBlue previously reported, Russia has a decades-long procurement relationship providing goods and services to the UN in open bids to provide vital medical equipment, food and air-transport services to UN peacekeeping and humanitarian operations. Procurement remains a critical area in which the UN is still doing business with Russia despite its illegal invasion of Ukraine.

Yet according to UN aviation procurement rules, prerequisites for doing business with the UN requires that the “state of registry of aircraft” has no “unresolved ICAO Significant Safety Concern.”

To cite the latest figures, from 2014, the year Russia annexed the Crimea region of Ukraine, through 2020, the UN has spent more than $2.3 billion on Russian goods and services. However, Russia’s breaching of the Chicago Convention now forces the UN to consider replacing its fleets with “non-Russian aviation providers,” as the Aug. 2 memo states.

In recommending the suspension of the current contracts of Russian-registered chartered aircraft, the memo also notes that such a step would affect approximately 45 aircraft/helicopters chartered by DOS and 17 aircraft/helicopters chartered by the World Food Program.

According to the UN Humanitarian Air Service (Unhas), which is managed by the World Food Program to deliver food and other essentials, in 2021, approximately 23 percent of its charters were Russian; for DOS, the percentage was about the same, as of 2017. A major portion of the UN peacekeeping’s budget goes to transportation with the largest recipient being the mission in Mali.

The financial burden for dropping Russian services could be difficult for the UN to absorb. According to the memo, Khare and Beasley write that contracting with non-Russia aviation companies will result in “major increases in costs” that could be “three to four times” the price of “currently deployed aviation services,” leaving the UN with few affordable choices. But this isn’t the first time that the UN doing business with Russia has been raised since it started attacking Ukraine in early February.

In a confidential memo sent to Guterres on March 8, 2022, a copy of which was also seen by PassBlue, Khare of DOS acknowledged several informal requests made by a Ukrainian delegation at the UN to “stop contracting aircraft from the Russian Federation,” in light of its invasion of Ukraine, but he said in the memo that doing so would “halt” the UN’s global peace operations. He added that he was not “hopeful” that the UN would “be able to fill such a large void” within “a reasonable amount of time.”

Khare appears to be the primary manager of relations with the Russian aviation industry executives for DOS, which handles the helicopter (and other aircraft) contracts for UN peacekeeping. In 2019, according to UN peacekeeping operations, it used 133 helicopters from a range of providers to support 10 peacekeeping operations, six special political missions and the African Union mission in Somalia.

Moreover, the Siberian-based UTAir Group is the top provider of UN peacekeeping helicopters — 30 — followed by Ukraine at 10. UTAir Group said that it had annually provided the highest number of helicopters for UN operations since 2001.

In remarks Khare made at the 2021 MAKS International Aviation and Space Salon conference, a forum to promote Russian aircraft and held in Zhukovsky, outside Moscow, Khare praised the “work done by Russian air carriers, the UNs partners in medical evacuation” and noted that “long-term contracts” between Russia and the UN had been signed to ensure their continued “cooperation.”

The Beasley and Khare memo reiterates that ICAO has given Russia until Sept. 14 to resolve the SSC, which gives UN aviation experts a small window of time to plan for the “worst case scenario” or “fleet replacement.” The latter appears to be the UN’s most viable option beyond “considering possible exceptions” to the law, “implementing local mitigation measures” to address “transportation shortfalls” and asking UN field entities to “prioritize and sequence” their needs if Russia does not remedy the ICAO warning.

The agency’s response to Russia, however, is more straightforward. If by Sept. 14 the situation is unresolved, then ICAO, according to the Aug. 2 memo, will publish the SSC on its website, making Moscow’s failure to comply public and sending a message to the international aviation community that standards for safe air operations and oversight have been compromised.

What Russia will do about the ICAO warning is unclear. One way for Moscow to return to compliance with the agency would be to try to negotiate the status of the original registrations of the plane.

A spokesperson for the Russian mission to the UN said in a message that the 24-hour “deadline” for a comment for PassBlue on the situation “is too tough.” He added, “We will not be able to make a comment anyway.”

In a text message to PassBlue, a source close to the matter who asked for anonymity, given the sensitivity of the situation, said that negotiations in the UN among the relevant parties have hit a wall. According to the source, pressure from Khare to continue business with Russia is making it difficult for UN aviation experts to proceed on finding an alternative solution.

The WFP, led by Beasley, however, has taken a “much stricter” stance, the source said, wanting to replace Russian aircraft it uses for its work. PassBlue was unable to verify any of this information. But a response for comment by the WFP said that “your best bet is to go to directly to ICAO.”

Beasley has headed the food program since 2017, when he was recommended for the post by the United States ambassador at the time, Nikki Haley. Under his leadership, the agency was awarded a Nobel Peace Prize, in 2020. Before working for the UN, Beasley had been a governor of South Carolina, as was Haley, from 2011-2017.

Khare, who did not respond to PassBlue’s request for comment, has led DOS since Jan. 1, 2019, as an under secretary-general. He previously held that title for UN field support operations. He has also served as an assistant secretary-general for peacekeeping operations. He began life as a diplomat with the Indian foreign service.

Russia’s position on the ICAO warning may be clear by Sept. 14, but the burning question is how will Guterres, Khare and Beasley respond? As the Aug. 2 memo says, the choices are critical, given that the UN aviation program relies on countries to be “in good standing with ICAO” and in accordance with the Chicago Convention to ensure “regulatory legitimacy . . . safe air operations and the security of United Nations staff.”