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Agreement between the Government of Solomon Islands and the Government of the Republic of Fiji for Air Services between and beyond their respective Territories [1990] PITSE 26 (10 July 1990)

AGREEMENT BETWEEN THE GOVERNMENT OF SOLOMON ISLANDS AND THE GOVERNMENT OF THE REPUBLIC OF FIJI FOR AIR SERVICES BETWEEN AND BEYOND THEIR RESPECTIVE TERRITORIES

(Honiara, 10 July 1990)

STATUS REPORT

PREAMBLE

THE GOVERNMENT o the Republic of Fiji and the Government of Solomon Islands (hereinafter referred to as "the Contracting Parties")

BEING parties to the Convention on International Civil Aviation opened for signature at Chicago on the seventh day of December 1944;

DESIRING to conclude a new Agreement, supplementary to the said Convention, for the purpose of establishing air services between and beyond their respective territories;

HAVE AGREED AS FOLLOWS:

Article 1

Definitions

1. For the purpose o this Agreement, unless the context other requires:

[a] the term "the Convention" means the Chicago Convention and includes any Annex adopted under Article 90 thereof and any amendment of the Annexes or Convention under Articles 90 and 94 thereof so far as those annexes and amendments have become effective for or been ratified by the contracting States;

[b] the term "aeronautical authorities" means, in the case of each of the contracting parties, the Minister for the time being responsible for civil aviation and any person or body authorised to perform any functions at present exercisable by him or similar functions;

[c] the term "designated airline" means an airline which has been designated and authorised in accordance with Article 4 of this Agreement;

[d] the term "territory" in relation to a state has the meaning assigned to it in Article 2 of the Chicago Convention;

[e] the terms "air service", 'international air service', "airline" and "stop for non-traffic purposes" have the meanings respectively assigned to them in Article 96 of the Chicago Convention;

[f] the term "agreed service" means any air service established by virtue of the rights specified in the Schedule to this agreement;

[g] the term "specified route" means any of the routes specified in the Schedule to this agreement;

[h] the term "IATA" means the International Air Transport Association;

[i] the term "ICAO" means the International Civil Aviation Organisation;

[j] the term "tariff" means the prices or charges to be paid for the carriage of passengers and cargo and the conditions under which those prices or charges apply, including prices or charges and conditions for agency and other auxiliary services excluding remuneration and conditions for the carriage of mail.

2. The Schedule to this Agreement (hereinafter referred to as "the Schedule") forms an integral part of this Agreement and all references to this Agreement shall be deemed to include references to the Schedule.

Article 2

The provisions of this Agreement shall be subject to the provisions of the Conventions and to the provisions of any other multi-lateral convention that is binding on both Contracting Parties in so far as those provisions are applicable to international air services.

Article 3

Grant of Rights

1. Each Contracting Party grants to the other contracting Party the following rights in respect of its scheduled air services:

(a) the right to fly across its territory without landing;

(b) the right to make stops in its territory for non-traffic purposes.

2. Each Contracting Party grants to the other Contracting Party the rights specified in this agreement for the purpose of establishing scheduled international air services on the routes specified in the appropriate Part of the Schedule annexed to this Agreement. Such services and routes are hereinafter called "the agreed services" and the "specified routes" respectively. While operating an agreed service on a specified route the airline designated by each Contracting Party shall enjoy in addition to the rights specified in paragraph 1 of this Article the right to make stops in the territory of the other Contracting Party at the points specified for that route in the Schedule to this Agreement for the purpose of taking on board and discharging passengers and cargo including mail, separately or in combination.

3. Nothing in paragraph (2) of this Article shall be deemed to confer on the airline of one Contracting Party the privilege of taking on board, in the territory of the other Contracting Party, passengers and cargo including mail carried for hire or reward to be set down at another point in the territory of the other Contracting Party.

Article 4

Designation of Airlines

[1] Each Contracting Party shall have the right to designate in writing through diplomatic channels to the other Contracting Party an airline for the purpose of operating the agreed services on the specified routes.

[2] Each Contracting Party shall have the right, on notification in writing through diplomatic channels to the other Contracting Party, to withdraw its designation of an airline in its place.

[3] On receipt of a designation the other Contracting Party shall, subject to the provisions of Article 5 of this Agreement, without delay grant to the airline designated the appropriate operating authorisations.

[4] When an airline has been so designated and authorised it may at any time operate the agreed services, provided that both an agreement between the aeronautical authorities on capacity in accordance with the provisions of Article 8 of this Agreement is in force in respect of the service in question.

Article 5

Withdrawal or Limitation of Rights

[1] Each Contracting Party shall have the right to revoke or to refuse an operating authorisation or to suspend the exercise of the rights specified in Article 3 of this Agreement by an airline designated by the other Contracting Party, or to impose such conditions on the exercise of these rights it may deem necessary;

(a) in any case where it is not satisfied that substantial ownership and effective control of that airline are vested in the Contracting Party designating the airline or in nationals of that Contracting Party; or

(b) in the case of failure by that airline to comply with the laws or regulations of the Contracting Party granting these rights; or

(c) in any case where the airline otherwise fails to operate in accordance with the conditions prescribed under this Agreement.

[2] Unless immediate revocation, refusal or suspension or imposition of the conditions mentioned in paragraph (1) of this Article is essential to prevent further infringements of laws or regulations, such right shall be exercised only after consultation with the other Contracting Party.

Article 6

Customs Regulations

[1] Aircraft operated on international air services by the designated airlines of either Contracting Party, as well as the regular equipment, supplies of fuel and lubricants and aircrafts stores (including food, beverages and tobacco) on board such aircraft and other items intended for use solely in connection with the operation or servicing of such aircraft, shall be exempt from all customs duties, import duties, turnover taxes, excise taxes, goods and services taxes, value added taxes, inspection fees, and similar duties and charges or imports of arriving in the territory of other Contracting Party the following conditions :-

(i) that such equipment and supplies remain on board the aircraft up to such time as they are re-exported or are used on the part of the journey performed over that territory; or

(ii) that such equipment and supplies may be unloaded, subject to compliance with the customs regulations of that territory, in which case they may be placed under the control of the customs authorities up to such time as they are re-exported or otherwise disposed of in accordance with those regulations.

[2] Each Contracting Party shall also exempt from the same duties, fees, taxes and charges, with the exception of charges corresponding to the service performed, the following items, whether or not they have been imported into its territory : -

(a) aircraft stores and other items intended for use solely in connection with the operation or servicing of aircraft, taken on board in its territory, within limits fixed by its authorities and for use on board an aircraft of a designated airline of the other Contracting Party;

(b) fuel and lubricants supplied in its territory to an aircraft of a designated airline of the other Contracting Party engaged in an international air service, even when these supplies are to be used on the part of the journey performed over the territory of the Contracting Party in which they are taken on board;

(c) spare parts intended for the maintenance or repair of aircraft of a designated airline of the other Contracting Party engaged in an international air service; and

(d) equipment (including specialised ground equipment), intended for incorporation in or use on aircraft of a designated airline of the other Contracting Party engaged on an international air service, or for use solely in connection with the operation or servicing of such aircraft.

The items referred to in this paragraph may be required to be kept under customs supervision or control.

Article 7

Transfer of Earnings

Each Contracting Party grants to the designated airline of the other Contracting Party the right of free transfer of the excess of the airline's receipts in its territory over the airline's expenditure therein. Such transfers shall be effected on the basis of the prevailing foreign exchange market rates for current payments.

Article 8

Principles Governing Operation of Agreed Services

[1] There shall be fair and equal opportunity for the designated airlines of both Contracting Parties to operate the agreed services on the specified routes between and beyond their respective territories.

[2] In operating the agreed services, the designated airline of each Contracting Party shall take into account the interests of the airlines of the other Contracting Party so as not to affect unduly the services which the latter provide on the whole or part of the same routes.

[3] The agreed services provided by the designated airline of each Contracting Party shall bear a close relationship to the requirements of the public for transportation on the agreed routes and hall have as their primary objective the provision, at a reasonable load factor, of capacity adequate to carry the current and reasonably anticipated requirements for the carriage of passengers and cargo including mail originating from or destined for the territory of the Contracting Party which has designated the airline. Provision for the carriage of passengers and cargo including mail originating from and destined for points on the specified routes in the territories of States other than that designating the airline shall be made in accordance with the general principle that capacity shall be related to : -

(a) traffic requirements to and from the territory of the Contracting Party which has designated the airline;

(b) traffic requirements of the area through which the agreed service passes, after taking account of local and regional services;

(c) the requirements of through airline operations.

[4] The capacity that may be provided on the agreed routes by the Designated Airlines of each Contracting Party on an agreed service shall be such as is agreed between the aeronautical authorities of the Contracting parties before the commencement of the agreed service and from time to time thereafter.

Article 9

Change of Gauge

In operating any agreed service through the territory of one Contracting Party the designated airline of the other point in the territory of the first Contracting Party only on such terms as may be agreed upon between the aeronautical authorities.

Article 10

Tariffs

[1] Tariffs to be charged by the designated airline of one Contracting Party for carriage to or from the territory of the other Contracting Party shall be established at reasonable levels, due regard being paid to all relevant factors, including costs of operation reasonable profit and the tariffs of other airlines.

[2] Tariffs referred to in paragraph (1) of this Article shall, if possible, be agreed by the designated airlines of both Contracting Parties, after consultation with the airline operating over the whole or part of the routes. Such agreement shall, wherever possible, be reached by the use of the procedures of the International Air Transport Association for the working out of tariffs.

[3] Tariffs so agreed shall be submitted for approval of the aeronautical authorities of both Contracting Parties at least sixty (60) days before the proposed date of their introduction. In special cases, this period may be reduced, subject to the agreement of the said authorities.

[4] Approval of tariffs may be given expressly, or, if neither of the aeronautical authorities has expressed disapproval within thirty [30] days from the date of reception, in accordance with paragraph [3] of this Article, the tariffs shall be considered as approved. In the event of the period for submission being reduced, as provided for in paragraph [3], the aeronautical authorities may agree that the period within which any disapproval must be notified shall be less than thirty [30] days.

[5] If a tariff cannot be established in accordance with the provisions of paragraph 2 of this Article or if during the period applicable in accordance with Paragraph 4 of the of this Article a notice of dissatisfaction has been given, the aeronautical authorities of the Contracting Parties shall endeavour to determine the tariff by agreement between themselves. Consultations between the aeronautical authorities will be held in accordance with Article 13 of this Agreement.

[6] If the aeronautical authorities cannot agree on tariffs submitted to them under paragraph [3] of this Article, or on the determination of tariffs under paragraph [5] of this Article, the dispute shall be settled in accordance with the provisions of Article 14 of this Agreement.

[7] Tariffs established in accordance with the provisions of this Article shall remain in force until new tariffs have been established. Nevertheless, tariffs shall not be prolonged by virtue of this paragraph for more than twelve [12] months after the date on which they would otherwise have expired.

Article 11

Provision of Statistics

The aeronautical authorities of a Contracting Party shall supply to the aeronautical authorities of the other Contracting Party at their request such periodic or other statements of statistics as may be reasonably required for the purpose of reviewing the capacity provided on the agreed services by a designated airline of the Contracting Party referred to first in this Article. Such statements shall include all information required to determine the amount of traffic carried by the airline on the agreed services and the origins and destination of such traffic.

Article 12

Security

[1]. Consistent with their rights and obligations under international law, the Contracting Parties reaffirm that their obligation to each other to protect the security of Civil Aviation against acts of unlawful interference forms an integral part of this Agreement. Without limiting the international law, the contracting Parties shall in particular act in conformity with the provisions of the Convention on Offences and Certain Other Acts Committed on Board Aircraft, signed at Tokyo on 14 September 1963; the Convention for the Suppression of Unlawful Seizure of Aircraft, signed at the Hague on 16 December 1970; the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal on 23 September 1971 and the Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, Supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation signed at Montreal on 24th February 1988.

[2]. The Contracting Parties shall provide upon request all necessary assistance to each other to prevent acts of unlawful seizure of civil aircraft and other unlawful acts against the safety of such aircraft, their passengers and crew, airports and air navigation facilities, and any other threat to the security of civil aviation.

[3]. The Contracting Parties shall, in their mutual relations, act in conformity with the aviation security provisions and established by the International Civil Aviation Organisation and designated as Annexes to the Convention on International Aviation to the extent that such security provisions are applicable to the Parties; they shall require that such operators of aircraft of their registry or aircraft operating under an Operators Certificate issued by the contracting party and the operators of airports in their territory act in conformity with such aviation security provisions.

[4]. Each contracting party agrees that such operators of aircraft may be required to observe the aviation security provisions referred to in paragraph (3) above required by the other contracting Party for entry into, departure from, or while within, the territory of that other contracting party. Each contracting party shall ensure that adequate measures are effectively applied within its territory to protect the aircraft and to inspect passengers, crew, carry-on items, baggage, cargo and aircraft stores prior to and during boarding or loading. Each contracting party shall give sympathetic consideration to any request from the other contracting party for reasonable special security measures to meet a particular threat.

Article 13

Consultation

[1] In a spirit of close co-operation, the aeronautical authorities of the Contracting Parties shall consult each other from time to time with a view to ensuring the implementation of and satisfactory compliance with, the provisions of this Agreement and the annexed Schedule and shall consult when necessary to provide for modifications thereof.

[2] Either Contracting Party may request consultations, which may be either oral or in writing and shall begin within a period of sixty (60) days of the date of receipt of the request, unless both Contracting Parties agree to an extension of this period.

Article 14

Settlement of Disputes

[1] If any dispute arises between the Contracting Parties relating to the interpretation or application of this Agreement, the Contracting parties shall in the first place endeavour to settle it by negotiation.

[2] If the Contracting Parties fail to reach a settlement by negotiation, they may agree to refer the dispute for decision to some person or body, of they do not so agree, the dispute shall at the request of either Contracting Party be submitted for decision to a tribunal of three arbitrators, one to be appointed by the two so nominated. Each of the Contracting Parties shall nominate an arbitrator within a period of sixty (60) days from the date of receipt by either Contracting Party from the other of a notice through diplomatic channels requesting arbitration of the dispute by such a tribunal, and the third arbitrator shall be appointed within a period of sixty (60) days from the appointment of the arbitrator last nominated. If either of the Contracting Parties failed to nominate an arbitrator within the period specified, or if the third arbitrator within the period specified, or if the third arbitrator within the period specified, or if the third arbitrator is not appointed within the period specified, the President of the Council of the International Civil Aviation Organisation may at the request of either Contracting party appoint an arbitrator or arbitrators as the case requires. In such cases the third arbitrator shall be a national of a third State and shall act as President of the arbitral tribunal.

[3] The Contracting Parties shall comply with any decisions given under paragraph (2) of this Article.

[4] The expenses of the national arbitrators shall be born by the respective Contracting Parties. All other expenses of the third arbitrators shall be shared equally.

Article 15

Amendment

If either of the Contracting Parties considers it desirable to modify any provisions of this Agreement including the annexed Schedule, such modification, if agreed between the Contracting Parties and if necessary after consultation in accordance with Article 13 of this Agreement, shall come into effect when confirmed by an exchange of Notes through diplomatic channel.

Article 16

Termination

Either Contracting Party may at any time give notice to other Contracting Party of its decision to terminate this Agreement. Such notice shall be simultaneously communicated to ICAO. In such case the Agreement shall terminate twelve (12) months after the date of receipt of the notice by the other Contracting Party, unless the notice to terminate is withdrawn by agreement before the expiry of this period. In the absence of acknowledgement of receipt by the other Contracting Party, notice shall be deemed to have been received fourteen (14) days after the Contracting Party giving the notice has despatched it through normal diplomatic channels in the other Contracting Party.

Article 17

Entry into Force

The Agreement and be Schedule hereto shall enter into force on the date of signature thereof.

IN WITNESS WHEREOF the undersigned duly authorised by their respective Governments, have signed this Agreement.

DONE in two originals at in the English language on 10 July 1990.

SCHEDULE

PART I

Routes to be operated in both directions by the designated airline of Fiji.

______________________________________________________________________

PART II

Routes to be operated in both direction by the designated airline of Solomon Islands.
______________________________________________________________________

Article 4

Designation of Airlines

[1] Each Contracting Party shall have the right to designate in writing through diplomatic channels to the other Contracting Party an airline for the purpose of operating the agreed services on the specified routes.

[2] Each Contracting Party shall have the right, on notification in writing through diplomatic channels to the other Contracting Party, to withdraw its designation of an airline and to designate another airline in its place.

[3] On receipt of a designation the other Contracting Party shall, subject to the provisions of Article 5 of this Agreement, without delay grant to the airline designated the appropriate operating authorisations.

[4] When an airline has been so designated and authorised it may at any time operate the agreed services, provided that both an agreement between the aeronautical authorities on capacity in accordance with the provisions of Article 8 of this Agreement is in force in respect of the service in question.

Article 5

Withdrawal or Limitation of Rights

[1] Each Contracting Party shall have the right to revoke or to refuse an operating authorisation or to suspend the exercise of the rights specified in Article 3 of this Agreement by an airline designated by the other Contracting Party, or to impose such conditions on the exercise of these rights it may deem necessary;

(a) in any case where it is not satisfied that substantial ownership and effective control of that airline are vested in the Contracting Party designating the airline or in nationals of that Contracting Party; or

(b) in the case of failure by that airline to comply with the laws in accordance with the conditions prescribed under this Agreement.

[2] Unless immediate revocation, refusal or suspension or imposition of the conditions mentioned in paragraph [1] of this Article is essential to prevent further infringement of laws or regulations, such right shall be exercised only after consultation with the other Contracting Party.

Article 6

Customs Regulations

[1] Aircraft operated on international air services by the designated airlines of either Contracting Party, as well as the regular equipment, supplies of fuel and lubricants and aircraft stores (including food, beverages and tobacco) on board such aircraft and other items intended for use solely in connection with the operation or servicing of such aircraft, shall be exempt from all customs duties, import taxes, valued added taxes, excise taxes, goods and services taxes, value added taxes, inspection fees, and similar duties and charges or imports of arriving in the territory of other Contracting Party the following conditions:-

(i) that such equipment and supplies remain on board the aircraft up to such time as they are re-exported or are used on the part of the journey performed over that territory; or

(ii) that such equipment and supplies may be unloaded, subject to compliance with the customs regulations of that territory, in which case they may be placed under the control of the customs authorities up to such time as they are re-exported or otherwise disposed off in accordance with those regulations.

[2] Each Contracting Party shall also exempt from the same duties, fees, taxes and charges, with the exception of charges corresponding to the service performed, the following items, whether or not they have been imported into its territory:-

(a) aircraft stores and other items intended for use solely in connection with the operation or servicing of aircraft, taken on board in its territory, within limits fixed by its authorities and for use on board an aircraft of a designated airline of the other Contracting Party;

(b) fuel and lubricants supplied in its territory to an aircraft of a designated airline of the other Contracting Party engaged in an international air service, even when these supplies are to be used on the part of the journey performed over the territory of the Contracting Party in which they are taken on board;

(c) spare parts intended for the maintenance or repair of aircraft of a designated airline of the other Contracting Party engaged in an international air service; and

(d) equipment (including specialised ground equipment), intended for incorporation in or use on aircraft of a designated airline of the other Contracting Party engaged on an international air service, or for use solely in connection with the operation or servicing of such aircraft.

The items referred to in this paragraph may be required to be kept under customs supervision or control.

Article 7

Transfer of Earnings

Each Contracting Party grants to the designated airline of the other Contracting Party the right of free transfer of the excess of the airline's receipts in its territory over the airline's expenditure receipts in its territory over the airline's expenditure therein. Such transfers shall be effected on the basis of the prevailing foreign exchange market rates for current payments.

Article 8

Principles Governing Operation of Agreed Services

[1] There shall be fair and equal opportunity for the designated airlines of both Contracting Parties to operate the agreed services on the specified routes between and beyond their respective territories.

[2] In operating the agreed services, the designated airline off each Contracting Party shall take into account the interests of the airlines of the other Contracting Party so as not to affect unduly the services which the latter provide on the whole or part of the same routes.

[3] The agreed services provided by the designated airline of each Contracting Party shall bear a close relationship to the requirements of the public for transportation on the agreed routes and shall have as their primary objective the provision, at a reasonable load factor, of capacity adequate to carry the current and reasonably anticipated requirements for the carriage of passengers and cargo including mail originating from or destined for the territory of the Contracting Party which has designated the airline. Provision for the carriage of passengers and cargo including mail originating from and destined for points on the specified routes in the territories of States other than that designating the airline shall be made in accordance with the general principle that capacity shall be related to:-

(a) traffic requirements to and from the territory of the Contracting Party which has designated the airline;

(b) traffic requirements of the area through which the agreed service passes, after taking account of local and regional services;

(c) the requirements of through airline operations.

[4] The capacity that may be provided on the agreed routes by the Designated Airlines of each Contracting Party on an agreed service shall be such as is agreed between the aeronautical authorities of the Contracting Parties before the commencement of the agreed service and from time to time thereafter.

Article 9

Change of Gauge

In operating any agreed service through the territory of one Contracting Party the designated airline of the other point in the territory of the first Contracting Party only on such terms as may be agreed upon between the aeronautical authorities.

Article 10

Tariffs

[1] Tariffs to be charged by the designated airline of one Contracting Party for carriage to or from the territory of the other Contracting Party shall be established at reasonable levels, due regard paid to all relevant factors, including costs of operation reasonable profit and the tariffs of other airlines.

[2] Tariffs referred to in paragraph [1] of this Article shall, if possible, be agreed by the designated airlines of both Contracting Parties, after consultation with the airline operation over the whole or part of the routes. Such agreement shall, wherever possible, be reached by the use of the procedures of the International Air Transport Association for the working out of tariffs.

[3] Tariffs so agreed shall be submitted for approval of the aeronautical authorities of both Contracting Parties at least sixty (60) days before the proposed date of their introduction. In special cases, this period may be reduced, subject to the agreement of the said authorities.

[4] Approval of tariff, may be given expressly, or, if neither of the aeronautical authorities has expressed disapproval within thirty (30) days from the date of reception, in accordance with paragraph [3] of this Article, the tariffs shall be considered as approved. In the event of the period for submission being reduced, as provided for in paragraph [3] of this Article, the tariffs shall be considered as approved. In the event of the period for submission being reduced, as provided for in paragraph [3] , the aeronautical authorities may agreed that the period within which any disapproval must be notified shall be less than thirty (30) days.

[5] If a tariff cannot be established in accordance with the provisions of paragraph 2 of this Article or if during the period applicable in accordance with paragraph 4 of this Article a notice of dissatisfaction has been given, the aeronautical authorities of the Contracting Parties shall endeavour to determine the tariff by agreement between themselves. Consultations between the aeronautical authorities will be held in accordance with Article 13 of this Agreement.

[6] If the aeronautical authorities cannot agree on tariffs submitted to them under paragraph [3] of this Article, or on the determination of tariffs under paragraph [5] of this Article, the dispute shall be settled in accordance with the provisions of Article 14 of the Agreement.

[7] Tariffs established in accordance with the provisions of this Article shall remain in force until new tariffs have been established. Nevertheless, tariffs shall not be prolonged by virtue of this paragraph for more than twelve (12) months after the date on which they would otherwise have expired.

Article 11

Provision of Statistics

The aeronautical authorities of a Contracting Party shall supply to the aeronautical authorities of the other Contracting Party at their request such periodic or other statements of statistics as may be reasonably required for the purpose of reviewing the capacity provided on the agreed referred to first in this Article. Such statements shall include all information required on the agreed services and the origins and destinations of such traffic.