Agreement Between the Government of the Independent State of Western Samoa and the Government of the Cook Islands For Air Services Between and Beyond their Respective Territories [1993] PITSE 12 (23 June 1993)

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AGREEMENT BETWEEN THE GOVERNMENT OF THE INDEPENDENT STATE OF WESTERN SAMOA AND THE GOVERNMENT OF THE COOK ISLANDS FOR AIR SERVICES BETWEEN AND BEYOND THEIR RESPECTIVE TERRITORIES

THE GOVERNMENT OF THE INDEPENDENT STATE OF WESTERN SAMOA, OF THE ONE PART, AND THE GOVERNMENT OF THE COOK ISLANDS, OF THE OTHER PART, (hereinafter referred to as the "Contracting Parties")

DESIRING to conclude an Agreement for the purpose of establishing air services between and beyond their respective territories

(a) the term "the Convention" means the Convention on International Civil Aviation, opened for signature at Chicago on the seventh day of December, 1944, and includes any Annex adopted under Article 90 of that Convention 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 both Contracting Parties;

(b) the term "aeronautical authorities" means, in the case of the Cook Islands, the Minister for the time being responsible for Civil Aviation and any person or body authorised to perform any functions at present exercisable by the said Minister of similar functions; and, in the case of Western Samoa, the Minister for the time being responsible for Civil Aviation and any person or body authorised to perform any functions at present exercisable by the said Minister of 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 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 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;

(i) the fare charged by a designated airline for the carriage of passengers and their baggage on scheduled air services and the charges and conditions for services ancillary to such carriage;

(ii) the freight rate charged by a designated airline for the carriage of cargo (excluding mail) on scheduled air services;

(iii) the conditions governing the availability or applicability of any such fare, freight rate or price, including any benefits attaching to it; and

(iv) the rate of remuneration paid by a designated airline to an intermediary in respect of tickets sold or air way-bills completed by that intermediary for carriage on scheduled air services;

(j) the term "diplomatic channel" means communication in writing addressed to each of the Contracting Parties and conveyed through the offices of the Ministry of Foreign Affairs of the Government of the Cook Islands and the Ministry of Foreign Affairs of the Government of the Independent State of Western Samoa.

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.

1. The provisions of this Agreement shall be subject to the provisions of the Convention and to the provisions of any other multilateral Convention that is binding on both Contracting Parties in so far as these provisions are applicable to international air services.

2. The Contracting Parties confirm their compliance with the Standards and Recommended Practices and Procedures contained in the Annexes to the Convention.

1. Each Contracting Party grants to the other Contracting Party the following rights i n respect of its scheduled international air services:

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 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 paragraphs (1) and (2) of this Article shall be deemed to confer on the designated 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.

1. Each Contracting Party shall have the right to designate in writing through the diplomatic channel 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 the diplomatic channel 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 pursuant to this Article, the other Contracting Party shall, subject to the provisions of this Article and Article 5 of this Agreement, without delay grant to the airline designated the appropriate operating authorisation.

4. Prior to granting the appropriate operating authorisation referred to in paragraph (3) of this Article, the aeronautical authorities of one Contracting Party may require the airline designated by the other Contracting Party to satisfy them that it is qualified to fulfill the conditions prescribed under the laws and regulations applied by them, in conformity with the international standards and recommended practices and procedures adopted by ICAO and contained in the Annexes to the Convention, in the operation of international air services.

5. When an airline has been so designated and authorised it may at any time operate an agreed service, provided that a tariff established in accordance with the provisions of Article 13 of-this Agreement is in force in respect of that service.

1. Each Contracting Party shall have the right to revoke an operating authorisation or to refuse 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 as it may deem necessary on the exercise of these rights in any case where:

(a) 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) that airline fails to comply with the laws or regulations of the Contracting Party granting these rights; or

2. Unless immediate revocation of an operating authorisation, suspension of the exercise of the rights referred to in Article 3 of this Agreement, or imposition of the conditions referred to in paragraph (1) of this Article is essential to prevent further infringements of laws or regulations of one Contracting Party, the right to revoke an operating authorisation, to suspend the exercise of the rights referred to in Article 3 of this Agreement or to impose conditions referred to in paragraph (1) of this Article shall be exercised only after consultation with the other Contracting Party.

1. Aircraft operated on international air services by the designated airline 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 on the basis of reciprocity from all Customs duties, excise taxes, turnover taxes, inspection fees and
similar duties, fees and charges not based on the cost of services provided, on arriving in the territory of the other Contracting Party on the following conditions:

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

(b) that such equipment and supplies may be unloaded, subject to compliance with the Customs regulations of that Contracting Party, 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, tees and charges, with the exception of charges based on the cost of services provided, 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 the designated airline of the other Contracting Party;

(b) fuel and lubricants supplied in its territory to an aircraft of the 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 the designated airline of the other Contracting Party engaged in an international air service; and equipment (including specialised ground equipment), intended for incorporation in or use on aircraft of the 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.

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. The transfer of funds shall not be subject to any charges except those normally collected by banks for such operations.

1. There shall be fair and equal opportunity for the designated airline of each Contracting Party 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 specified 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 both taken on board and discharged at 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 airline services; and

4. The capacity that may be provided on the specified 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.

1. The designated airline of one Contracting Party shall be entitled, in accordance with the laws and regulations relating to entry, residence and employment of the other Contracting Party, to bring in and maintain in the territory of the other Contracting Party those of their own managerial, technical, operational and other specialist staff who are required for the provision of air services.

2. Each Contracting Party agrees to use its best efforts to ensure that the designated airline of the other Contracting Party is offered the choice, subject to reasonable limitations which may be imposed by airport authorities, of providing their own services for ground-handling operations, of having such operations performed entirely or in part by another airline, an organisation controlled by another airline, or a servicing agent, as authorised by the airport authority, or of having such operations performed by the airport authority.

3. Each Contracting Party grants to the designated airline of the other Contracting Party the right to engage in the sale of air transportation in its territory directly and, at the airline's discretion, through its agents. Each airline shall have the right to sell such transportation, and any person shall be free to purchase such transportation in the currency of that territory or in freely convertible currencies of other countries.

1. Neither Contracting Party shall impose or permit to be imposed on the designated airline of the other Contracting Party user charges higher than those imposed on its own designated airline operating similar international air services.

2. Each Contracting Party shall use its best efforts to ensure that user charges imposed or permitted to be imposed by its competent charging authorities on the designated airline of the other Contracting Party are just and reasonable.

3. Each Contracting Party shall encourage consultation between its competent charging authorities and airlines using the services and facilities, where practicable through the airlines' representative organisations. Reasonable notice should be given to users of any proposals for changes in user charges to enable them to express their views before changes are made. Each Contracting Party shall further encourage the competent charging authorities and the airlines to exchange appropriate information concerning user charges.

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

In operating any agreed service on any specified route the designated airline of each Contracting Party shall give the other Contracting Party 60 days notice i n writing of any intention to lease, charter, hire or otherwise use or operate on a continuing basis any aircraft not owned by the designated airlines of the Contracting Parties.

1. Tariffs to be charged by the designated airline of one Contracting Party for carriage to and 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, the interests of users, characteristics of service (such as standards of speed and accommodation), commission rates, reasonable profit and the tariffs of other airlines. Each designated airline shall be responsible only to its aeronautical authorities for the justification and reasonableness of the tariffs so proposed.

2. Tariffs referred to in paragraph (1) of this Article shall, if possible, be agreed to by the designated airlines of both Contracting Parties, after consultation. Such agreement shall, wherever possible, be reached by the use of the rate-fixing procedures of IATA for the working out of tariffs.

3. Tariffs so agreed shall be submitted for approval to the aeronautical-authorities of both Contracting Parties in such form as they may require 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 of the tariff submission 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 aeronautical authorities of both Contracting Parties may agree that the period within which any disapproval must be notified shall also be reduced accordingly.

5. If tariffs cannot be agreed in accordance with paragraph (2) of this Article, or if, during the period applicable in accordance with paragraph (4) of this Article, one aeronautical authority gives the other aeronautical authority notice of its disapproval of tariffs agreed in accordance with the provisions of paragraph (2) of this Article, the aeronautical authorities of the Contracting Parties shall endeavour to determine the tariffs by agreement between themselves. Consultations between the aeronautical authorities of both Contracting Parties will be held in accordance with Article 16 of this Agreement.

6. If the aeronautical authorities cannot agree on the determination of tariffs under paragraph (5) of this Article, the dispute shall be settled in accordance with the provisions of Article 17 of this Agreement far the settlement of disputes.

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.

8. The Contracting Parties shall endeavour to ensure that machinery exists within their jurisdictions to investigate violations by any airline, passenger or freight agent, tour organizer or freight forwarder of tariffs established in accordance with this Article. They shall furthermore ensure that the violation of such tariffs is punishable by deterrent measures on a consistent and non-discriminatory basis.

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 the 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 destinations of such traffic.

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 generality of their rights and obligations under 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 24 February 1988.

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.

The Contracting Parties shall, in their mutual relations, act in conformity with the aviation security standards and recommended practices and procedures established by the International Civil Aviation Organisation and designated as Annexes to the Convention to the extent that such security standards and recommended practices and procedures are applicable to the Contracting Parties, and they shall require that 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 standards and recommended practices and procedures.

Each Contracting Party agrees that operators of aircraft may be required to observe the aviation security standards and recommended practices and procedures referred to in paragraph (3) of this Article required by the other Contracting Party for entry into, departure from, or while within, the territory of the other Contracting Party.

Each Contracting Party shall ensure that adequate measures are effectively applied within its territory to protect the aircraft, passengers and crew, airports and air navigation facilities, 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.

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 shall consult when necessary to provide for modification thereof.

2. Either Contracting Party may request consultations, which may be either oral or in writing, on those matters stated in paragraph (1) of this Article. Those consultations, which may be between aeronautical authorities, shall begin within a period of sixty (60) days of the date of receipt of the request by the other Contracting Party, unless both Contracting Parties agree to an extension of this period.

1. I f 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. If 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 nominated by each Contracting Party and the third 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 in writing through the diplomatic channel 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 fails to nominate an arbitrator within the period specified, or if their 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 Patties shall comply with any decision given under paragraph (2) of this Article.

4. The expenses of the national arbitrators shall be borne by the respective Contracting Parties. All other expenses of the arbitral tribunal, including the fees and expenses of the third arbitrator shall be shared equally by both Contracting Parties.

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 1 6 of this Agreement, shall come into effect when confirmed by an Exchange of Notes through the diplomatic channel.

1. The laws and regulations of one Contracting Party relating to the admission to or departure from its territory of aircraft engaged in international air navigation, or to the operation and navigation of such aircraft while within its territory shall be applied to the aircraft of the airline designated by the other Contracting Party, and shall be complied with by such aircraft upon entrance into and departure from, and while within the territory of the first Contracting Party.

2. The laws and regulations of one Contracting Party relating to the admission to or departure from its territory of passengers, crew, or cargo of aircraft, such as regulations relating to entry, clearance, immigration, passports, customs and quarantine, shall be complied with by or on behalf of such passengers, crew or cargo of the other Contracting Party upon entrance into or departure from, and while within the territory of the first Contracting Party.

This Agreement and any amendment thereto shall be registered with the International Civil Aviation Organisation.

Either Contracting Party may at any time give notice in writing through the diplomatic channel to the other Contracting Party of its intention to terminate this Agreement; a copy of the notice being simultaneously communicated to the International Civil Aviation Organisation by the Contracting Party giving notice. 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 between the Contracting Parties before the expiry of this period.
In the absence of acknowledgement of receipt by the other Contracting Party, the notice shall be deemed to have been received fourteen (14) days after the receipt of a copy of the notice by the International Civil Aviation Organisation.

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

DONE in three originals at Apia this 23^rd day of June 1993 in the English language

FOR THE GOVERNMENT OF THE INDEPENDENT STATE OF SAMOA

[Signed]:

Hon. J.O.J. Netzler
MINISTER OF CIVIL AVIATION

FOR THE GOVERNMENT OF THE COOK ISLANDS

[Signed]:

Hon. Vaine Tairea
MINISTER OF CIVIL AVIATION

Route to be operated in both directions by the designated airline of the Cook Islands

Points of Origin	Intermediate Points	Points in Western Samoa	Points Beyond

Rarotonga International Airport, Rarotonga	Niue Tonga American Samoa	Faleolo International Airport	-

Route to be operated in both directions by the designated airline of` Western Samoa

Points of Origin	Intermediate Points	Points in Western Samoa	Points Beyond

Faleolo International Airport	Niue Tonga American Samoa	Rarotonga International Airport, Rarotonga	-

Pacific Islands Treaty Series

Agreement Between the Government of the Independent State of Western Samoa and the Government of the Cook Islands For Air Services Between and Beyond their Respective Territories [1993] PITSE 12 (23 June 1993)