Sources of Private International Aviation Law

Ask which law governs an aircraft lease, a code-share, or a carrier’s liability cover, and the honest answer is that no single instrument does. The rules sit in national statutes, in treaties, in foreign legislation that reaches Ukrainian operators anyway, and in the output of bodies that are not legislatures at all — ICAO, IATA, the OECD.

This paper maps those sources. It matters commercially because several of them bind Ukrainian carriers and lessors without ever having been enacted in Ukraine. Published in Yurydychna Ukraina, No. 6, 2012, pp. 56–61.

In short: several sources that govern aviation deals bind Ukrainian carriers and lessors without ever having been enacted in Ukraine. EC Regulation 785/2004 sets a 250,000 SDR passenger floor for flights to, from or within the EU, and a code-share that ignores ICAO Circular 269-AT/110 may not be approved by the regulator. Since the 2012 paper, the Cape Town Convention, in force for Ukraine from 1 November 2012, has become the most consequential source for aircraft finance.

Private international air law is a sub-branch of private international law, and the paper treats it in three aspects: as a field of social relations, as a direction of scholarship, and as a taught discipline. The practical payoff is the catalogue of sources:

• Domestic legislation — which, as a rule, is itself shaped by the international layer;
• International treaties, including the bilateral legal assistance treaties that supply the conflict rules for delictual claims;
• Custom;
• Court practice;
• Foreign legislation that reaches Ukrainian operators;
• Acts of international organisations — ICAO, IATA, the OECD.

The last two are the ones counsel most often overlooks, and they are where the paper earns its keep.

ECAC Resolution 25/1 (13 December 2000) set minimum liability insurance for carriers licensed in ECAC member states: 250,000 SDR per passenger for death, injury or other bodily harm sustained in an accident.

EC Regulation 785/2004 followed the European Commission’s post-11 September review of those minimums. It applies to commercial carriers and to operators flying non-commercially to, from or within the EU — Ukrainian carriers included, and sets the same 250,000 SDR floor per passenger; baggage has a separate, much lower minimum.

The point is structural: a Ukrainian operator’s insurance programme is priced against a European instrument that Ukraine never enacted. The obligation arrives through the route flown, not through the flag.

ICAO. Ukraine’s State Aviation Service treats all forms of cooperation covered by ICAO documents as code-sharing, including Circular 269-AT/110 on the consequences of code-sharing. Because Ukrainian legislation carries no clear rules on code-share agreements, operators are best advised to follow the Circular — otherwise the agreement they sign may simply not be approved by the regulator. That is a filing risk hiding inside a commercial negotiation.

IATA. Tariffs developed by IATA — tariff zones and fares between every pair of points inside each zone. Within IATA sits the Prorate Agency, administering the Multilateral Proration Agreement for passengers (ed. 1 September 2008) and for cargo (ed. 1 December 2008) on behalf of members. Over 200 airlines are signatories.

OECD. Ukraine is not a member, and the OECD still governs how a Ukrainian carrier buys a new aircraft with export credit agency support. The Arrangement on Officially Supported Export Credits unifies the terms on which the manufacturer’s country ECA may finance a sale; the 2011 edition replaced that of 2007. Its Annex III — the Sector Understanding on Export Credits for Civil Aircraft, known in the market as ASU — is the instrument that actually shapes the financing terms available on a widebody purchase.

The paper was published in 2012 and one major source arrived months later.

The Cape Town Convention and its Aircraft Protocol entered into force for Ukraine on 1 November 2012 — Ukraine ratified by Law No. 4904-VI of 6 June 2012. That added the International Registry, the priority regime for international interests, and the deregistration and export request authorisation to the catalogue. For aircraft finance it is now the single most consequential source in the list.

On the carriage side, the Montreal Convention liability limits were revised twice after publication, most recently on 28 December 2024 — the largest increase since the Convention entered into force. Current figures are in our note on carrier liability.

The structural argument of the paper is unaffected. If anything the Cape Town accession proves it: the decisive source for a Ukrainian aircraft transaction was, once again, an international instrument rather than a domestic statute.

Tsirat A. Sources of International Private Air Law // Yurydychna Ukraina. — 2012. — No. 6. — pp. 56–61. UDC 341.9:[341.226+347.82](045). 35 sources cited.

In the journal the author is listed as Candidate of Legal Sciences, Associate Professor at the University of Modern Knowledge — the doctorate came later. Full text in Ukrainian (PDF, 6 pp.).