At the beginning of February, a Venezuelan plane from the state-owned company Emtrasur that had been detained for a year and a half in Argentina was seized by the United States and taken to Florida. Experts consulted by Brazil in fact state that all stages of the seizure, from the accusations, to the measures taken by the Argentine and US governments, violate the norms of international law.

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The flight to the USA was just one episode of diplomatic tension that could turn into a legal dispute in the coming months. The Boeing 747 was detained at Ezeiza airport in Buenos Aires in June 2022 because of a judicial cooperation treaty between Argentina and the USA.

The plane was prevented from refueling and returning to Venezuela. Needing fuel, the crew tried to go to Uruguay, but was denied landing in the country. At that time it was the first violation of the International Civil Aviation Convention, which regulates air transport. To leave Buenos Aires and go to Montevideo, the plane had its flight plan authorized by the Fixed Aeronautical Telecommunications Network (AFTN), the international system for aeronautical communication.

According to Annex 11 of the convention, communication and approval of the flight plan must be complied with by the parties. The aircraft then returned to Buenos Aires and was held there until it was seized by the United States.

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For Jorge Alvarez Mendez, professor of international law at the Andrés Bello Catholic University and former airline pilot, the plane was in good standing and had all the conditions to receive fuel and leave Argentina.

“The plane complied with all the required standards. He requested his flight plan, he followed his flight plan, the merchandise was as described in the cargo manifests, the crew had their licenses authorized by the Venezuelan aeronautical authority. So how do we explain the conduct that followed with the plane? How can we understand that the international civil aviation agreement is a set of dead laws? No. Safety is respected. We are always guided by international standards,” he said.

Iranian crew

The first argument for the seizure of the aircraft was that the 5 Iranians who were members of the plane’s crew had participated in an attack on the building of the Associação Mutual Israelita Argentina that occurred in Buenos Aires, in 1994, and killed 85 people. They were trapped in a hotel near Ezeiza airport. The accusation was not proven and they were released with the other 14 crew members.

Another alleged reason for the retention of the aircraft is because the Boeing 747 was manufactured in the USA, sold to France, resold to Iran and then to Venezuela. According to lawyer and specialist in international law Ana Cristina Bracho, the US does not recognize the sale of Iran to Venezuela because they are two sanctioned countries, which is important to understand this dispute. The aircraft, however, is registered with the International Civil Aviation Association.

“Venezuela has already demonstrated on several occasions that it owns this aircraft and that the transactions were made. He has also explained that the presence of Iranians in the crew is due to the fact that the transaction was made recently and that there was a technological transfer, a know how, because Venezuela did not have a plane using this technology. The USA in fact mentioned that they will turn (the plane) into scrap, and said that for them it is an exemplary action of how countries that they consider enemies cannot benefit from technologies or objects that were created by them”, explains the lawyer.

Agreements and treaties

A crucial element in this story is judicial cooperation between Argentina and the USA. Venezuela is not part of the agreement between these countries, which creates another legal problem.

According to the Vienna Convention on the Law of Treaties, “a treaty does not create obligations or rights for a third State without its consent”. The text signed in 1969 that regulates the procedures for international agreements and treaties,

Bracho also emphasizes that article 13 of the Universal Declaration of Human Rights ensures the movement of people to leave and return to their own country.

“When I generate this type of measure on civil aviation, I am conditioning a country’s right to trade, but also its population, its population’s ability to travel. This is perhaps the difference in relation to other cases that have precedents in which the USA has already seized an oil tanker of another flag”, he told the Brazil in fact.

Diplomatic crisis

The conflict accentuated the diplomatic crisis between Venezuela and the USA. Venezuelan Foreign Minister Yván Gil called the US decision a “theft” of the plane. He said it was an act of “international piracy” and reinforced that there was no legal justification.

The relationship between Argentina and Venezuela was also shaken by this episode. For Ana Cristina Bracho, there was no conflict between the two countries, which were cultivating good diplomatic relations. According to her, the only thing that led to tension between the countries was Buenos Aires’ refusal to refuel the plane. As a result, the US requested the opening of an investigation at the Columbia court into the aircraft.

“There was no specific US measure on the aircraft before. One of the measures that the US has been imposing on Venezuela was applied. This helps to understand how modern blockades work through unilateral coercive measures. They do not work in the sense that the country that imposes them denies or restricts something to the sanctioned country. They also guarantee that the country that sanctions will be the only country that will have commercial relations or any other nature with the sanctioned country”, stated Bracho.

To try to get the plane back, Venezuela can file a lawsuit at the International Court of Justice. Until now, the country has adopted the strategy of filing a complaint with the Group of Friends in Defense of the UN Charter – a collective of 17 countries led by China that defends United Nations resolutions.

For Ana Cristina Bracho, the seizure of the plane serves as a message from the United States to the sanctioned countries.

“No element of crime was ever found on this flight. What was achieved is a lesson from the USA to affirm that sanctions cannot be left aside and the message that there cannot be relations over goods that they do not authorize”, said Bracho.

Editing: Rodrigo Durão Coelho


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