The Directorate General of Civil Aviation (“DGCA”), the civil aviation regulator in India, announced the suspension[1] of scheduled international passenger operations on the 19^th March 2020. This unprecedented suspension to curtail the spread of COVID19, came into force on 22^nd March 2020. This suspension was to last for a brief period of seven days only. However, shortly after the suspension was enforced, India implemented one of the world’s strictest lockdowns in the hope that COVID19 may be contained. Despite the lockdown, COVID19 cases continued to grow at a rapid pace and considering this, the DGCA has over the last five months, issued multiple extensions to the initial suspension of scheduled international passenger operation. As of date, scheduled international passenger operations remain suspended[2] till 2359 hrs of 30^th September 2020.

The Evolution of the International Air Travel Framework

In order to understand the rationale behind the continued suspension of scheduled international passenger flights by the DGCA, one must first get to know the rules that govern international air travel.

It was during the closing stages of World War II, when fifty-four countries came together in Chicago, to discuss the future of international aviation. The conference resulted in the signing of the Convention on International Civil Aviation, 1944, also known as the Chicago Convention. This convention established principles and rules under which international aviation operates till date. It also established the International Civil Aviation Organization (“ICAO”).

ICAO is the United Nations organisation responsible for fostering the planning and development of international air transport. Over the years, ICAO developed a series of traffic rights, known as freedoms of the air.

When countries negotiate bilateral air services agreements (“BASA’s”) to allow international commercial air transport services between their territories, they grant traffic rights to airlines as per these predetermined freedoms of the air. These freedoms continue to form the basis of rights exchanged under BASA’s till date.

BASA’s are concluded to promote international air links which support and enable movement of people and cargo while encouraging trade and tourism – all extremely important for any economy to grow and flourish. These bilateral agreements provide the framework under which identified airlines from the two countries fly into designated points in each other’s country.

As COVID19 spread, unilateral travel restrictions and lockdowns were imposed by various countries including India in order to curb its spread. As the vast majority of people on the planet were restricted from flying overseas in one way or another, airlines globally had little choice but to ground the vast majority of their fleet. The storage, maintenance and subsequent return to service of these aircraft posed a significant challenge. We detailed this in our article titled ‘Lockdown Woes: Storage and return to service of grounded aircraft’.

Hence, it would not be inappropriate to conclude that COVID19 managed to rewrite the international air travel rulebook where BASA’s, which have formed the backbone of global air travel, remain largely suspended and ad-hoc bilateral air arrangements, also sometimes called air bubbles, enabling limited resumption of air travel between two countries are the new order of the day.

Repatriating citizens and ferrying lifesaving supplies

As countries the world over grappled with the consequences of the pandemic and emerged from their respective lockdowns, it became evident that restoring travel and trade links, which were snapped at short notice, was essential to strengthen the recovery of the global economy.

Lockdowns and travel restrictions imposed by countries resulted in thousands of citizens stranded the world over. The repatriation of these stranded nationals left governments with little choice but to selectively reopen borders and permit airlines, often contracted by various countries to operate non-scheduled repatriation flights. The Ministry of Civil Aviation (“MoCA”) engaged India’s national carrier, Air India, to operate repatriation flights as part of the Vande Bharat Mission (“VBM”), which has facilitated international travel for over sixteen lakh forty thousand people since 6^th May 2020, making this one of the largest mission of its kind in recent times.

While this was happening, the government of India quickly realised that the suspension of scheduled commercial flights had adversely impacted air cargo operations as almost 40% of the annual global air cargo is typically transported in the belly of passenger aircraft. The need for transport of essential lifesaving supplies during the pandemic necessitated the opening up of air cargo operations using passenger aircraft.

With majority of their fleets grounded, airlines jumped at this opportunity to bring in much needed cash. It is estimated that a Boeing 777 can carry as much as twenty tonnes of cargo in the belly of passenger aircraft. Record low fuel prices and a significant jump in cargo yields ensured airlines quickly added cargo flights using passenger aircraft to and from India. These were in addition to freighter operations which continued uninterrupted.

Air Bubbles – BASA’s reincarnated

India reported its first COVID19 case on 30^th January 2020. The infected individual was a student from the state of Kerala, who was studying in a University in China and had travelled back to India. Shortly after, a barrage of such cases came to light and it became evident that suspending international air travel to and from the country was the only way to ensure India does not continue to import any more COVID19 cases than it already had. The Indian government took various measures to combat the spread of COVID19 in the run up to the suspension of scheduled international air travel. These were detailed by us in a special edition of the Air and Space Jaw Journal dedicated to COVID19. Despite these, India added ninety-seven thousand eight hundred and fifty nine COVID19 cases yesterday to its ever-growing tally.

As India selectively reopened its borders, initially only for Indian nationals to return to the country, it instituted a fourteen-day quarantine for all international arrivals. Further, as it is impossible to track and ensure that all arriving passengers are indeed following home quarantine guidelines, especially in a country like India, the Government of India mandated a period of institutional quarantine upon arrival too.

The Ministry of External Affairs (“MoEA”), the Ministry of Home Affairs (“MoHA”), the MoCA, the DGCA in coordination with the various India’s missions overseas and most importantly the relevant state where the flight would arrive, put in place a robust system of issuing approvals for these repatriation flights.

Anyone intending to travel back to India was initially required to register with their respective Indian missions overseas. The overseas mission would then, depending on the urgency of the individual to return to the country, offer them a seat on the next available flight back to India. Once flight manifests were finalized and approvals received from the MHA, the concerned state authorities, where the flight would arrive, were informed ensuring suitable accommodation for institutional quarantine of passengers could be arranged. This is possibly the single largest challenge faced by the MoCA when it comes to resuming scheduled commercial passenger operations as local authorities do not have the resources and bandwidth to cope with the unregulated influx of international travellers.

Despite India relaxing norms around institutional quarantine and exempting passengers from institutional quarantine [3]upon the production of a negative RT-PCR COVID19 test conducted not before ninety-six hours from departure, there is still significant demand for facilities for institutional quarantine. Especially from migrant labourers returning from various Gulf nations after having lost their employment. A large majority of these workers do not have the resources to get produce a negative COVID19 test to skip institutional quarantine or indeed pay for institutional quarantine. Hence, the government of India has little choice but to regulate international travel and stagger the arrival of air travellers.

Shortly after commencing repatriation flights under the VBM, Air India began selling seats on flights from India to the various countries it was operating to in order to facilitate the return of Indian nationals to their places of work abroad. As these were technically repatriation flights, airlines from the United States, Europe and Germany, to name a few, quickly reached out to the MoCA and requested for permission to operate similar “repatriation” flights. In response, the MoCA proposed the formation of bilateral air bubbles between India and various other nations. These were to replace BASA’s which remain suspended due to the pandemic and were to be the basis for the limited resumption of international air travel between the two nations.

Despite adding record number of COVID19 positive cases daily, India has established such air bubbles arrangements with the US, UK, France, Germany, Canada, Qatar, UAE, Maldives and Afghanistan. Even though the air bubble arrangements do no eliminate quarantine requirements for passengers, they have certainly helped re-establish air links. More importantly, these arrangements give India complete control over the frequency of flights, the routes to be operated and the freedoms of air granted to the various nations.

Much needed protection for Indian airlines

The COVID19 pandemic has brought with it, unique challenges for the Indian airline industry. It has created an uneven playing field, thereby making it difficult for Indian airlines to compete fairly without intervention by the regulator. In light of this, the MoCA put in place various measures to create a level playing field for the domestic airlines in the country. These were detailed by us in our article titled ‘Regulating Domestic Air Travel in India During COVID19’.

Similarly, the unparalleled quarantine restrictions and border closures have severely impaired the volume of passengers travelling to and from the country. Considering this, the MoCA has used the current air bubble arrangements to limit foreign airlines to ferrying only O&D (origin and destination) traffic. This move has created an opportunity for Indian airlines as they have fewer airlines to compete with when mounting flights to destinations overseas. Particularly impacted are airlines which rely largely on 6^th freedom traffic to and from India to feed their hubs. Case in point are airlines from the UAE and Qatar. Airlines from these countries are restricted from carrying passengers beyond their hubs.

Vistara, a joint venture airline between the Tata Group and Singapore Airlines is a direct beneficiary of this arrangement. The airline recently launched flights from its hub in New Delhi to London Heathrow. SpiceJet, an Indian low-cost airline, too used this opportunity to charter aircraft from Hi-Fly, to operate multiple repatriation flights.

Conclusion

In our opinion, it is unlikely that India will revoke the current suspension on scheduled commercial air travel anytime soon and will continue to use air bubble arrangements as the only way to permit international air travel for the foreseeable future. Unlike BASA’s, which grant sweeping rights to countries to operate multiple flights a day to various cities in the country and permit them to carry 6^th freedom traffic, air bubble arrangements are restrictive and can be, if required, scaled up or scaled back quickly depending on how India or the respective nation is doing in their fight against the virus.

Further, these arrangements ensure states within the country are prepared to receive these passengers and have suitable quarantine facilities available for them.

In an ideal world, these restrictive arrangements would be hotly contested by various nations and India would have little choice but to adhere to its international treaty obligations. However, the pandemic ridden world today is far from ideal and air bubbles are undoubtedly the new normal for international air travel.

[1] Circular No. 4/1/2020-IR dated 19^th March 2020 – https://sarinlaw.com/wp-content/uploads/2020/09/DGCA-Circular-19.3.2020-II.pdf

[2]  Circular No. 4/1/2020-IR dated 31^st August 2020 – https://sarinlaw.com/wp-content/uploads/2020/09/DGCA-Circular-31.08.2020.pdf

[3] Ministry of Health and Family Welfare, India guidelines for international arrivals – https://sarinlaw.com/wp-content/uploads/2020/09/RevisedguidelinesforInternationalArrivals02082020.pdf.pdf