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Agreement between the Government of Canada and the Government of the Kingdom of Thailand on Air Services [1989] CATSer 16 (30 June 1989)

E100215 - CTS 1989 No. 16

AGREEMENT BETWEEN THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE KINGDOM OF THAILAND ON AIR SERVICES

The Government of Canada and the Government of the Kingdom of Thailand,

Considering that Canada and the Kingdom of Thailand are parties to the Convention on International Civil Aviation opened for signature at Chicago on the seventh day of December, 1944, and

Desiring to conclude an agreement, supplementary to the said Convention, for the purpose of establishing air services,

Have agreed as follows:

ARTICLE 1

1. For the purpose of this Agreement, unless the context otherwise requires:

(a) The term “aeronautical authorities” means, in the case of Canada, the Minister of Transport and the National Transportation Agency of Canada and, in the case of the Kingdom of Thailand, the Minister of Transport and Communications or in both cases any person or body, authorized to exercise the functions now assigned to the said authorities;

(b) 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 article 90 and 94 thereof so far as those annexes and amendments are applicable for both Contracting Parties;

(c) The term “designated airline” means an airline which has been designated and authorized in accordance with Article 6 of this Agreement, for the operation of the agreed air services;

(d) The term “tariff” means the prices to be paid for the carriage of passengers, baggage and cargo and the conditions under which these prices apply, excluding remuneration and conditions for the carriage of mail.

2. The Annex forms an integral part of this Agreement. All references to the Agreement shall include the Annex unless explicitly agreed otherwise.

ARTICLE 2

1. Each Contracting Party grants to the other Contracting Party the rights specified in the Agreement for the purpose of operating air services on the routes specified in the schedules of the Annex. Such services and routes are hereinafter called “agreed services” and “specified routes” respectively.

2. Subject to the provisions of the Agreement the airline designated by each Contracting Party shall enjoy, while operating international air services:

(a) the right to fly without landing across the territory of the other Contracting Party;

(b) the right to make stops in the said territory for non-traffic purposes;

(c) the right to embark and disembark in the said territory at the points specified in the Annex of the Agreement passengers, baggage, cargo and mail separately or in combination destined for or coming from points in the territory of the other Contracting Party;

(d) the right to embark and disembark in the territory of third countries at the points specified in the Annex of the Agreement passengers, baggage, cargo and mail separately or in combination destined for or coming from points in the territory of the other Contracting Party, specified in the Annex of the Agreement.

3. Nothing in paragraph 2 of this article shall be deemed to confer on the designated airline of one Contracting Party the privilege of embarking, in the territory of the other Contracting Party, passengers, baggage, cargo and mail carried for remuneration or hire and destined for another point in the territory of that Contracting Party.

4. If because of armed conflict, natural calamities, political disturbances or similar serious disruptive circumstances, the designated airline of one Contracting Party is unable to operate a service on its normal routing, the other Contracting Party shall use its best efforts to facilitate the continued operation of such service through appropriate rearrangements of such routes.

ARTICLE 3

1. The designated airline of each Contracting Party shall have fair and equal opportunity to carry on the agreed services traffic embarked in the territory of one Contracting Party and disembarked in the territory of the other Contracting Party or vice versa and shall regard as being of supplementary character traffic embarked or disembarked in the territory of the other Contracting Party to and from points en route. The designated airline of each Contracting Party in providing capacity for the carriage of traffic embarked in the territory of the other Contracting Party and disembarked at points on the specified routes or vice versa shall take into consideration the primary interest of the designated airline of the other Contracting Party in such traffic so as not to affect unduly that interest of the latter airline.

2. The agreed services provided by the designated airline of each Contracting Party shall be closely related to the requirements of the public for transportation on the specified routes, and each shall have as its primary objective the provision of capacity adequate to meet the demands to carry passengers, baggage, cargo and mail embarked or disembarked in the territory of the Contracting Party which has designated the airline.

3. Provision for the carriage of passengers, baggage, cargo and mail embarked in the territory of the other Contracting Party and disembarked at points in third countries on the specified routes or vice versa shall be made in accordance with the general principle that capacity shall be related to:

(a) the requirements of traffic embarked or disembarked in the territory of the Contracting Party which has designated the airline;

(b) the requirements of traffic of the area through which the airline passes, after taking account of other air services established by airlines of the States situated in the area; and

(c) the requirements of economical through airline operation.

4. A designated airline of one Contracting Party may make a change of gauge at any point on the specified route only on the following conditions:

(i) that it is justified by reason of economy of operation;

(ii) that the aircraft used on the section of the route more distant from the territory of the Contracting Party designating the airline is not larger in capacity than that used on the nearer section;

(iii) that the aircraft of smaller capacity shall operate only in connection with the aircraft of larger capacity and shall be scheduled so to do; the former shall arrive at the point of change for the purpose of carrying traffic transferred from, or to be transferred into, the aircraft of larger capacity; and their capacity shall be determined with primary reference to this purpose;

(iv) that there is an adequate volume of through traffic;

(v) that the airline shall not hold itself out to the public by advertisement or otherwise as providing a service which originates at the point where the change of aircraft is made, unless otherwise permitted by the Annex;

(vi) that in connection with any one aircraft flight into the territory of the other Contracting Party, only one flight may be made out of that territory unless the airline is authorized by the aeronautical authorities of the other Contracting Party to operate more than one flight; and

(vii) that the provisions of this Article and Article 2 of the present Agreement shall govern all arrangements made with regard to change of gauge, as per paragraph (i) to (vi) above.

ARTICLE 4

1. The laws and regulations of one Contracting Party governing entry into and departure from its territory of aircraft engaged in international air navigation or flights of such aircraft over that territory shall apply to the designated airline of the other Contracting Party.

2. The laws and regulations of one Contracting Party governing entry into, sojourn in, and departure from its territory of passengers, crew, baggage, cargo or mail, such as formalities regarding entry, exit, emigration and immigration, as well as customs and sanitary measures shall apply to passengers, crew, baggage, cargo or mail carried by the aircraft of the designated airline of the other Contracting Party while they are within the said territory.

3. Neither Contracting Party may grant any preference to its own airline with regard to the designated airline of the other Contracting Party in the application of the laws and regulations provided for in this Article.

ARTICLE 5

1. The Contracting Parties agree to provide aid to each other as necessary with a view to preventing unlawful seizure of aircraft and other unlawful acts against the safety of aircraft, airports and air navigation facilities and any other threat to aviation security.

2. Each Contracting Party agrees to observe the security provisions required by the other Contracting Party for entry into the territory of the other Contracting Party and to take adequate measures to inspect passengers and their carry-on items. Each Contracting Party shall also give sympathetic consideration to any request from the other Contracting Party for special security measures for its aircraft or passengers to meet a particular threat.

3. The Contracting Parties shall act consistently with applicable aviation security provisions established by the International Civil Aviation Organization. Should a Contracting Party depart from such provisions, the aeronautical authorities of the other Contracting Party may request consultations with the aeronautical authorities of that Contracting Party in accordance with Article 17 of this Agreement.

4. The Contracting Parties shall act in conformity with the provisions of the Convention on Offences and Certain Other Acts Committed on Board Aircraft, signed at Tokyo on September 14, 1963, the Convention for the Suppression of Unlawful Seizure of Aircraft, signed at The Hague on December 16, 1970, and the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, signed at Montreal on September 23, 1971.

5. When an incident, or threat of an incident, of unlawful seizure of aircraft or other unlawful acts against the safety of aircraft, airports and air navigation facilities occurs, the Contracting Parties shall assist each other by facilitating communications intended to terminate rapidly and safely such incident or threat thereof.

ARTICLE 6

1. Each Contracting Party shall have the right to designate, by diplomatic note, one airline for the purpose of operating the agreed services.

2. The aeronautical authorities which have received the notification of designation shall, subject to the provisions of paragraphs 3 and 4 of this Article, grant without delay to the designated airline of the other Contracting Party the necessary operating authorization.

3. The aeronautical authorities of one Contracting Party may require the airline designated by the other Contracting Party to prove that it is qualified to fulfil the conditions prescribed under the laws and regulations normally applied to the operation of international air services by the said authorities in conformity with the provisions of the Convention.

4. Each Contracting Party shall have the right to refuse to accept the designation of an airline and its aeronautical authority shall have the right to refuse to grant the operating authorization referred to in paragraphs 1 and 2 of this Article, or to impose such conditions as may be deemed necessary for the exercise of the rights specified in Article 2 of the Agreement, whenever proof has not been provided that a preponderant part of the ownership and effective control of that airline are vested in the Contracting Party designating the airline or in its nationals.

5. Having received the operating authorization, provided for under paragraph 2 of this Article, the designated airline may at any time operate the agreed services, provided that tariffs established in accordance with the provisions of Article 14 of the Agreement are in force.

ARTICLE 7

1. Each aeronautical authority shall have the right to revoke an operating authorization or to suspend an operating authorization of the designated airline of the other Contracting Party or to impose such conditions (temporarily or permanently) as it may deem necessary, if:

(a) the said airline cannot prove that a preponderant part of its ownership and effective control are vested in the Contracting Party designating the airline or in its nationals, or

(b) the said airline fails to comply with or has infringed the laws or regulations of the Contracting Party granting these rights, or

(c) the said airline fails to operate the agreed services in accordance with the conditions prescribed under the Agreement.

2. Such a right shall be exercised only after consultation with the other Contracting Party, unless immediate revocation, suspension or imposition of the conditions provided for under paragraph 1 of this Article is essential to prevent further infringements of laws and regulations.

ARTICLE 8

1. Certificates of airworthiness, certificates of competency and licences issued or rendered valid by one of the Contracting Parties shall, during the period of their validity, be recognized as valid by the other Contracting Party, provided that the requirements under which such certificates or licences were issued or rendered valid are equal to or above the minimum standards which may be established pursuant to the Convention.

2. Each Contracting Party reserves the right, however, to refuse to recognize as valid, for the purpose of flights over its own territory, certificates of competency and licences granted to or rendered valid for its own nationals by the other Contracting Party or by any other State.

3. If the privileges or conditions of the licences or certificates referred to in paragraphs 1 and 2 above, issued by the aeronautical authorities of one Contracting Party to any person or designated airline or in respect of an aircraft operating the agreed services on the routes specified in the Annex, should permit a difference from the standards established under the Convention, and which difference has been filed with the International Civil Aviation Organization, the aeronautical authorities of the other Contracting Party may request consultations in accordance with Article 17 of this Agreement with the aeronautical authorities of that Contracting Party with a view to satisfying themselves that the practice in question is acceptable to them. Failure to reach a satisfactory agreement in matters regarding flight safety will constitute grounds for the application of Article 7 of this Agreement.

ARTICLE 9

1. Aircraft operated on international services by the designated airline of one Contracting Party, as well as their normal on-board equipment, supplies of fuel and lubricants and aircraft stores including food, beverages, tobacco and other products destined for sale to passengers in limited quantities during the flight carried on board such aircraft, shall, on entering into the territory of the other Contracting Party, be exempt to the fullest extent possible from all duties or taxes, provided such equipment, supplies and stores remain on board the aircraft until they are re-exported.

2. There shall also be exempt from the same duties and taxes:

(a) aircraft stores intended for use on board the aircraft including liquor, tobacco and other products destined for sale to passengers in limited quantities during the flight taken on board in the territory of one Contracting Party, within the limits fixed by the competent authorities of the said Contracting Party, and intended for use on board the aircraft operated on an international service by the designated airline of the other Contracting Party;

(b) aircraft spare parts and normal on-board equipment imported into the territory of one Contracting Party for the maintenance or repair of aircraft operated on international services;

(c) fuel and lubricants destined for the designated airline of one Contracting Party to supply aircraft operated on international services, 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 have been taken on board.

3. The normal on-board equipment, as well as the materials and supplies retained on board the aircraft operated by the designated airline of one Contracting Party may be unloaded in the territory of the other Contracting Party only with the approval of the customs authorities of that territory. In such a case, they may be placed under the supervision of the said authorities until they are re-exported or otherwise disposed of in accordance with customs regulations.

ARTICLE 10

Passengers, baggage and cargo in direct transit across the territory of one Contracting party and not leaving the area of the airport reserved for such purpose shall at the utmost be subject to a very simplified control. Baggage and cargo in direct transit shall be exempt from duties and taxes, customs duties included.

ARTICLE11

1. Each Contracting Party shall use its best efforts to ensure that user charges imposed or permitted to be imposed by its competent authorities on the designated airline of the other Contracting Party are just and reasonable. They shall be based on sound economic principles.

2. Charges for the use of airport and air navigation facilities and services offered by one Contracting Party to the designated airline of the other Contracting Party shall not be higher than those which have to be paid by national aircraft operating on similar scheduled international services.

3. Each Contracting Party shall encourage consultations between its competent charging authorities and the designated airlines using the services and facilities, and where practicable, through the airlines representative organizations.

4. Neither of the Contracting Parties shall give preference to its own or any other airline over an airline engaged in similar international air services of the other Contracting Party in the use of airports, airways, air traffic services and associated facilities under its control.

ARTICLE 12

1. The designated airline of one Contracting Party may, in accordance with the laws and regulations of the other Contracting Party relating to entry, residence and employment, bring in and maintain in the territory of the other Contracting Party managerial, sales, technical, operational and other specialist staff required for the operation of the agreed services.

2. For the commercial activities the principle of reciprocity shall apply. The competent authorities of each Contracting Party will take all necessary steps to ensure that the representatives of the airline designated by the other Contracting Party are able to exercise their activities in an orderly manner.

3. In particular, 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, subject to the national laws and regulations, in freely convertible currencies of other countries.

ARTICLE 13

Each Contracting Party shall grant to the designated airline of the other Contracting Party the right to convert and remit to any country the excess of receipts over expenditure earned by that airline in the territory of the first Contracting Party in connection with the carriage of passengers, baggage, mail and cargo. Such transfer shall be at the official rate of exchange, where such a rate exists or otherwise at the rate applicable at the time of submission of the request for transfer. If such transfers are regulated by a special agreement between the Contracting Parties, this special agreement shall apply.

ARTICLE 14

1. The tariffs to be applied by each designated airline in connexion with any transportation 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 cost of operation, reasonable profit, the characteristics of each service and the tariffs charged by other airlines.

2. The tariffs referred to in paragraph 1 of this Article shall, if possible, be established by mutual agreement by the designated airlines of both Contracting Parties, and if necessary taking into account the tariffs applied by the other airlines operating over the whole or part of the same route. Such agreement shall, where possible, be guided by such decisions as are applicable under the tariff conference procedure of the international body which formulates proposals in this matter. Unless otherwise determined in the application of paragraph 4 of this Article, each designated airline shall be responsible only to its aeronautical authorities for the justification and reasonableness of the tariffs so agreed.

3. The tariffs so agreed shall be submitted for approval to the aeronautical authorities of the Contracting Parties at least sixty days before the proposed date of their introduction. In special cases, this time limit may be reduced, subject to the agreement of the said authorities. Upon receipt of the submission of the tariffs, the aeronautical authorities shall consider such tariffs without undue delay. The aeronautical authorities may notify the other aeronautical authorities of an extension of the proposed date of tariffs introduction. No tariff shall come into force if the aeronautical authorities of either Contracting Party are dissatisfied with it, except under the provisions of paragraph 3 of Article 18 of this Agreement.

4. If the designated airlines cannot agree, or if the tariffs are not accepted by the aeronautical authorities of one Contracting Party, the aeronautical authorities of both Contracting Parties shall endeavour to determine the tariffs by mutual agreement. Unless otherwise agreed such negotiations shall begin within thirty days from the date when it is ascertained that the designated airlines cannot agree upon the tariffs or the aeronautical authorities of one Contracting Party have notified the aeronautical authorities of the other Contracting Party of their disapproval of the tariffs.

5. In the absence of agreement, the dispute shall be submitted to the procedure provided for in Article 18 hereafter.

6. The tariffs established in accordance with the provisions of this Article shall remain in force until new tariffs have been established in accordance with the provisions of this Article.

7. The aeronautical authorities of each Contracting Party shall exercise their best efforts to ensure that the designated airlines conform to the agreed tariffs filed with the aeronautical authorities of the Contracting Parties as well as to the laws or regulations in this regard.

ARTICLE 15

1. As long in advance as practicable, but not less than thirty days, before the introduction of an agreed service or any modification thereof, or within thirty days after receipt of a request from the aeronautical authorities, the designated airline of one Contracting Party shall provide to the aeronautical authorities of the other Contracting Party information regarding the nature of service, time-tables, types of aircraft including the capacity provided on each of the specified routes and any further information as may reasonably be required to satisfy the aeronautical authorities of the other Contracting Party that the requirements of this Agreement are being duly observed.

2. For supplementary flights which the designated airline of one Contracting Party wishes to operate on the agreed services outside the approved time-table it has to request prior permission from the aeronautical authorities of the other Contracting Party.

ARTICLE 16

1. The aeronautical authorities of both Contracting Parties shall supply each other, on request, with periodic statistics or other similar information relating to the traffic carried on the agreed services.

2. The details of the methods by which such statistics shall be provided shall be agreed upon between the aeronautical authorities and implemented without delay after the designated airline of one or both Contracting Parties commenced operation, in whole or in part of the agreed services.

ARTICLE 17

1. In a spirit of close co-operation, the aeronautical authorities of the Contracting Parties may 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 of its Annex. Either Contracting Party may at any time request consultations on any problem related to this Agreement or on possible modifications to the Agreement.

2. Such consultations shall begin within a period of sixty (60) days of the date of receipt of such a request, unless otherwise agreed.

ARTICLE 18

1. If any dispute arises between the Contracting Parties relating to the interpretation or application of the present Agreement, the Contracting Parties shall in the first place endeavour to settle it by consultation between themselves.

2. If the Contracting Parties fail to reach a settlement by consultation they may agree to refer the dispute for decision to some person or body, or the dispute may 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 days from the date of receipt by either Contracting Party from the other of a notice through the diplomatic channel requesting arbitration of the dispute, and the third arbitrator shall be appointed within a further period of thirty days. If either of the Contracting Parties fails to nominate an arbitrator within the period specified, or if the third arbitrator is not appointed within the specified period, the President of the Council of the International Civil Aviation Organization may be requested by either Contracting Party to appoint an arbitrator or arbitrators as the case requires. Where the President possesses the nationality of one of the two Contracting Parties or is otherwise prevented from carrying out this function, his deputy in office shall make the necessary appointments. The third arbitrator shall be a national of a third State and shall act as president of the arbitral body.

3. The Contracting Parties undertake to comply with any decision given under paragraph 2 of this Article.

4. If and so long as either Contracting Party or the designated airline of either Contracting Party fails to comply with a decision given under paragraph 2 of this Article, the other Contracting Party may limit, withhold or revoke any rights or privileges which it has granted by virtue of the present Agreement to the Contracting Party in default or to the designated airline in default as the case may be.

ARTICLE 19

1. If either of the Contracting Parties considers it desirable to modify any provision of the present Agreement, such modification, if agreed between the Contracting Parties, shall come into force when confirmed by an Exchange of Diplomatic Notes.

2. In the event of the conclusion of any general multilateral convention concerning air transport by which both Contracting Parties become bound, the present Agreement shall be so modified as to conform with the provisions of such convention.

ARTICLE 20

1. Each Contracting Party may at any time give notice in writing to the other Contracting Party of its decision to terminate the present Agreement. Such notice shall simultaneously be communicated to the International Civil Aviation Organization.

2. If notice of termination is received during an International Air Transport Association (IATA) time-table period, the Agreement shall terminate one year from the date on which such time-table period ends, unless the notice is withdrawn by mutual agreement before the expiry of this period.

3. In default of acknowledgement of receipt by the other Contracting Party, the notice shall be deemed to have been received fourteen days after the date on which the International Civil Aviation Organization will have received communication thereof.

ARTICLE 21

The present Agreement and all amendments thereto shall be registered with the International Civil Aviation Organization.

ARTICLE 22

This Agreement shall be approved by each Contracting Party in compliance with its legal procedure and shall enter into force on the day of the Exchange of Diplomatic Notes confirming such approval.

IN WITNESS WHEREOF the plenipotentiaries of the two Contracting Parties have signed the Agreement.

DONE at Bangkok this 24th date of May 1989, in duplicate, in the Thai, French and English languages, all three texts being equally authentic.

L. A. H. Smith

FOR THE GOVERNMENT OF CANADA

Siddhi Savetsila

FOR THE GOVERNMENT OF THE KINGDOM OF THAILAND

ANNEX

Section 1

Routes to be operated by the airline designated by Thailand, in each direction:

Route 1

Notes:

(a) Any point or points specified in columns (2) and (4) may be omitted provided services originate or terminate in Thailand. Either one point or both points in column (3) may be served on any service.

(b) Points in columns (2) and (4) may be changed upon sixty days’ notice to the aeronautical authorities of Canada.

(c) Service at Toronto shall be at times of the day and at a terminal building acceptable to airport management.

(d) The point selected in column (4) may be served either as an intermediate or beyond point.

(e) The designated airline may combine Route 1 and Route 2 to provide round-the-world services, provided such services commence and terminate in Thailand.

(f) The designated airline shall be entitled to operate three return flights weekly using B747 or equivalent aircraft or four return flights weekly using DC10 or equivalent aircraft. Increases in the number of weekly flights shall be subject to the approval of the aeronautical authorities of the Contracting Parties.

ANNEX

Section 1

Route 2

Notes:

(a) Any point or points selected in column (2) may be omitted provided services originate or terminate in Thailand. Intermediate points may be served as points beyond destinations in Canada. Either one point or both points in column (3) may be served on any service.

(b) Points in column (2) may be changed upon sixty days’ notice to the aeronautical authorities of Canada.

(c) Service at Toronto shall be at times of the day and at a terminal building acceptable to airport management.

(d) The designated airline may combine Route 1 and Route 2 to provide round-the-world services, provided such services commence and terminate in Thailand.

(e) The designated airline shall be entitled to operate three return flights weekly using B747 or equivalent aircraft or four return flights weekly using DC10 or equivalent aircraft. Increases in the number of weekly flights shall be subject to the approval of the aeronautical authorities of the Contracting Parties.

ANNEX

Section 2

Routes to be operated by the airline designated by Canada, in each direction:

Route 1

Notes:

(a) Any point or points specified in columns (2) and (4) may be omitted provided services originate or terminate in Canada.

(b) Points in columns (2) and (4) may be changed upon sixty days’ notice to the aeronautical authorities of Thailand.

(c) Service at Bangkok shall be at times of the day and at a terminal building acceptable to airport management.

(d) The point selected in column (4) may be served either as an intermediate or beyond point.

(e) The designated airline may combine Route 1 and Route 2 to provide round-the-world services, provided such services commence and terminate in Canada.

(f) The designated airline shall be entitled to operate three return flights weekly using B747 or equivalent aircraft or four return flights weekly using DC10 or equivalent aircraft. Increases in the number of weekly flights shall be subject to the approval of the aeronautical authorities of the Contracting Parties.

ANNEX

Section 2

Route 2

Notes:

(a) Any point or points selected in column (2) may be omitted provided services originate or terminate in Canada. Intermediate points may be served as points beyond destinations in Thailand.

(b) Points in column (2) may be changed upon sixty days’ notice to the aeronautical authorities of Thailand.

(c) Service at Bangkok shall be at times of the day and at a terminal building acceptable to airport management.

(d) The designated airline may combine Route 1 and Route 2 to provide round-the-world services, provided such services commence and terminate in Canada.

(e) The designated airline shall be entitled to operate three return flights weekly using B747 or equivalent aircraft or four return flights weekly using DC10 or equivalent aircraft. Increases in the number of weekly flights shall be subject to the approval of the aeronautical authorities of the Contracting Parties.