The Convention on International Civil Aviation (1944), known as the ‘Chicago Convention’, was held to promote peaceful co-operation between nations regarding the development of international civil aviation.The International Civil Aviation Organisation (ICAO) was established following the Convention to ensure that the aviation industry achieved the highest possible degree of uniformity in regulations, standards, procedures and organisation, “in the safest and orderly manner”. ICAO has since evolved to include more than 12,000 international standards and recommended practices in the aviation industry.Article 83bis is an amendment to the Chicago Convention that outlines a legal framework allowing for the transfer of duties and functions from the State of Registry of an aircraft to the state of operator; essentially Article 83bis is designed to assist in the management of airworthiness between the two States through the transfer of responsibilities from the State of Registry to the State of the operator.This framework guarantees that responsibility for regulations and oversight of air safety are transferred in accordance with the requirements of the State of registration to the State of the operator, ensuring better regulation in the case of international lease and charter of aircraft. The Convention includes the principal that an aircraft registered in a contracting state must comply with the laws and safety regulations that apply to aircraft in that state, irrespective of where the aircraft is operated.

What to consider before entering an agreement under Article 83bis

Before an aircraft is registered under an Article 83bis agreement, the aviation authority in the state of operation should determine whether it will have the capacity, capability, and competence to oversee the operation of the aircraft. The aviation authority in the state of registry might consider the perceived risk of the state of operation, analysing any political, legal, and social factors that might be relevant.The functions to be transferred from the aviation authority in the state of registry to the aviation authority in the state of operation must be clearly defined in the agreement summary, which will then be transmitted along with the Article 83bis Agreement for registration to the ICAO.Article 83bis does allow for an operator to have possession of both domestic and foreign registered aircraft, clearly in such circumstances strict protocols must be observed to ensure clarity as to which authority is responsible for airworthiness for the relevant aircraft.

Agreements in place in Ireland

Ireland has been an advocate of agreements of this kind and has successfully implemented over 20 to date. We have set out some details in relation to all other Article 83bis agreements to which Ireland is a party at Appendix A.

New arrangement with Kazakhstan

Diarmuid Ó Conghaile of the IAA recently confirmed that a new agreement between Ireland and Kazakhstan has come into effect since the 6 May 2021. The formal international agreement between the two States provides that these aircraft on the Irish register will be permitted to operate in Kazakhstan, with the IAA being responsible for the airworthiness of the aircraft, as per ICAO’s global aviation standards.Under this agreement, the aviation authority in Kazakhstan will be responsible for the operating rules of the aircraft. The agreement promotes international relations and co-operation between the parties to allow for prosperity and improved flight safety in the global aviation industry.

Summary of the Agreement with Kazakhstan

With reference to the Convention, the agreement allows for the transfer of responsibilities normally carried out by the ‘State of Registration Authority’ from the authorities in Ireland to authorities in the Republic of Kazakhstan.Based on Articles 33 and 83bis of the Convention, the parties have agreed that the Irish authorities will be relieved of responsibility in respect of the functions and duties transferred to the authorities in the Republic of Kazakhstan. The scope of the agreement is limited to aircraft on the register of civil aircraft of Ireland and operated under leasing arrangement by an operator in the Republic of Kazakhstan. The Irish Aviation Authority (“IAA”) will provide Certificates of Airworthiness to the Kazakh authorities after a review of the aircraft, as well as providing technical support which will aid the IAA in building on their position as a global aviation regulator. Under Article 30(b) and 32(a), the responsibilities for personnel licensing i.e. the issuance and validation of licenses, and radio operator licences will be transferred to the Kazakhstan authorities. Article 12 provides that each contracting state will ensure that “every aircraft flying over or manoeuvring within its territory or carrying its nationality mark will comply with the rules and regulations relating to the flight and manoeuvre of aircraft there in force.” Under Article 12 of the Chicago Convention, the Rules of the Air will now be the responsibility of the Kazakhstan authorities, which involves the enforcement of compliance with applicable rules and regulations relating to the flight and manoeuvre of aircrafts.The agreement also allows for meetings to take place between the parties to resolve any discrepancies and to review the current agreement, flight operations, airworthiness surveillance and aircraft maintenance, operator’s maintenance control manual, matters arising from inspections, safety documentation regarding the operator and incidents.

Conclusion

Over 40% of commercial aircraft are leased worldwide. The implementation of Article 83bis between Ireland and Kazakhstan will prove invaluable to lessors in Ireland, and their financiers, who are seeking to expand into the Asian market, using Kazakhstan as a base for operating their aircraft registered in Ireland.  In addition, as Article 83bis allows aircraft operators to maintain their aircraft to the same standards, regardless of the State of Operation, this agreement will prove beneficial to the maintenance staff of Kazakh airlines with aircraft registered in Ireland, as the safety measures on Irish-registered aircrafts will be of the same standard, whether the aircraft be operated in Ireland or in Kazakhstan.For more information please contact Claire McDermott, at email: clairemcdermott@fod.ie or phone +353 1 6424259; James Duggan, at email: jamesduggan@fod.ie or phone +353 1 6424252; or any member of the Flynn O’Driscoll Aviation Team.This note is for general information purposes. Legal advice must be obtained for all individual circumstances. Whilst every effort has been made to ensure the accuracy of this note, no liability is accepted by the author or Flynn O’Driscoll LLP for any inaccuracies.

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