The Russian authorities' decision to ban Ukrainian transit flights through Russian airspace has finally triggered a response from Ukraine. It should be recalled that this ban has forced Ukrainian airlines to change their routes to certain destinations. For example, it affects the flights of Ukraine International Airlines (UIA) from Kiev to Kazakhstan, Georgia, Armenia, and Azerbaijan.

"This will lead to a 15-20% increase in operating costs and flight delays, with the result that passengers will experience significant inconvenience," UIA said in a statement. “According to information from Russia’s Main Air Traffic Management Centre, the Russian authorities are refusing to consider UIA’s application to perform flights from Kiev to Kazakhstan, Georgia, Armenia, and Azerbaijan through authorized points of entry into the Russian airspace.”

Flights to Georgia are performed by the Wizz Air Ukraine low-cost airline, which flies to Kutaisi. However, today's decision by the aviation authorities does not affect the low-cost airlines’ operations because it stopped flying through Russia’s Rostov region even before the outbreak of hostilities after encountering certain difficulties. After the closure of the sky above the war in zone in eastern Ukraine, the airline began flying to Kutaisi through Odessa and Turkish airspace. The Yanair airline will soon begin operating flights on the Kiev-Tbilisi route, and it will probably also have to choose an alternative corridor with all the attendant costs.

In response to these restrictions, the Ukrainian authorities officially announced that the State Aviation Service was introducing special requirements for some of the Russian airlines that fly on transit through Ukrainian airspace from 20:00 on 14 August. “This applies to the carriers Transaero and Aeroflot, which fly through Ukrainian airspace from Russia to Bulgaria, Israel, Turkey, Egypt, and Greece. These airlines can fly through Ukraine’s airspace only by obtaining permission from the State Aviation Service for each individual flight," the regulator said in a statement.

The State Aviation Service did not say how this mechanism would work. For example, the period during which applications for flights need to be filed is unclear. In addition, the criteria for determining whether an airline can fly or not have not yet been announced. Experts believe that the Ukrainian authorities should have acted much tougher in this case. "It is necessary to select all. For example, if we fly to an occupied territory now, Ukraine - as the country that allows its carrier to perform such a flight - will immediately find itself on a so-called black list. That is, the entire country and not only the airline involved will suffer,” the Stil Avia company’s Director Yevhen Khainatskyi told the Center for Transport Strategies.

Long-haul aircraft like Boeing 747 fly through Ukraine on transit, and they will have to increase their kerosene consumption by about 5-6 tons

“Practically all the major Russian carriers - except Aeroflot and Transaero - currently fly to Simferopol despite the ban. It is necessary to notify them that the appropriate measures will be taken against them if they continue to operate in the Crimea. It is also necessary to send the relevant notification to Russia’s Federal Air Transport Agency (Rosaviatsiya). A selective approach makes no sense, especially considering the fact that Aeroflot already bypasses Ukrainian airspace. For Transaero, there is no strict prohibition. A decision will be made for each individual flight. However, the criteria will be used, who will apply them, what technology will be used, and how the process will be regulated are unclear."

According to him, if the restraint on the part of the authorities is attributable partly to a reluctance to lose revenue from overflight fees, then the restrictions should be applied to the airlines that operate no more than 2-3 flights a week rather than daily flights. "At the end of the tourist season (most flights to Bulgaria, Greece, Turkey, Tunisia, etc. end in September-October), the financial losses from overflight fees will reduce seasonally. Our country will lose revenue by extending the sanctions to such holiday flights. This will have no significant effect on the aviation industry but carriers will have difficulty operating flights via an alternative route. Regarding Transaero, they will be able to wiggle out and the sanctions will not to be critical for them," the expert said. However, it will be quite expensive for the company to wiggle out of it. Long-haul aircraft like Boeing 747 fly through Ukraine on transit, and they will have to increase their kerosene consumption by about 5-6 tons, increase the volume and cost of air navigation services, and incur costs associated with the working hours of their flight crews. Aeroflot, which is already using alternative routes, has estimated its loss at USD 20 million annually.

Lawyers believe that the restrictions that Russia imposed on UIA’s flights will have negative consequences for the airline. "Closure of the Russian airspace to carriers from Ukraine or the EU is a very difficult decision for Russia. Firstly, there are bilateral intergovernmental agreements on air services that should be implemented. Secondly, there are international agreements and conventions, as well as ICAO procedures. Unjustified closure of its entire airspace will cause substantial losses not only to airlines from Ukraine and the EU, but also to Russia itself. Besides, such a move would violate Russia’s international obligations and have negative consequences for Russia (either similar decisions by EU countries to close their airspaces to Russian airlines or restrictions by ICAO). Specifically, the ban on Ukrainian airlines’ transit flights does not apply to flights operated under an intergovernmental agreement. Simply put, the Ukrainian airline is forced to take account of the need to bypass the territory of Russia when planning Kiev-Astana flights and perform Kiev-Moscow flights as before," said Andrii Huk, a senior lawyer with the Marchenko-Danevych law firm.

However, as the CFTS found out, the legal side of the issue is a bit confusing. Nobody has received notification of an official ban on Ukrainian airlines’ transit flights through Russian airspace. As it turned out, UIA’s applications were rejected for technical reasons. Rosaviatsiya notified the airline on August 8 that the two points of entry into the Russian airspace in the southeast had been closed and asked the airline to use three points of entry in the north. However, the airline was later informed that its application to use these points of entry could not be considered for technical reasons. This means that if there are objections from the ICAO, Rosaviatsiya will only make a helpless gesture, saying that it is simply unable to accommodate a Ukrainian plane at the specific time. Meanwhile, the relevant telegrams do not exist: no documents, no problem.

Rosaviatsiya rejected Ukrainian companies’ applications for "technical reasons"

Consequently, the Ukrainian authorities formally have the right to impose sanctions only for violations of their ban on flights to the Crimea. Lawyers explain that international law provides for the so-called principle of reciprocity, which derives from the sovereign equality of states and which can briefly be described as states granting each other similar rights on their territories and assuming similar obligations. Therefore, if the EU imposes some kind of sanctions against subjects of the Russian Federation, the latter has the right to impose symmetrical restrictions or obligations.

"In this case, Ukraine closed the airspace over the Crimea, initially restricted the airspace over the zone of the anti-terrorist operation, and later closed it. Moreover, these restrictions applied to all carriers, not just Russian carriers. Thus, Russia's actions should not be seen not as a symmetrical response to the actions of Ukraine, but as a unilateral change to the rights and obligations of subjects of Ukraine, which gives Ukraine the right to take similar measures in response. In particular, Ukraine has the right to ban Russian transit flights from Russia to certain countries through its airspace," said Huk.

However, it currently difficult to say how this mechanism will work. Yes, airlines need to request permission for every flight, but the criteria based on which they will or will not be admitted into the airspace of Ukraine are unclear. In connection with this, one can assume that the measure may be purely declarative in nature or it may create room for certain manipulations.