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13108 Ukraine - Air Transport Agreement


   
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TREATIES AND OTHER INTERNATIONAL ACTS SERIES 13108

 

 

AVIATION

Transport Services

 

 


Agreement Between the
UNITED STATES OF AMERICA
and UKRAINE

 

 

Signed at Kiev June 5, 2000

with

Annexes

 

 

 

 

NOTE BY THE DEPARTMENT OF STATE

Pursuant to Public Law 89—497, approved July 8, 1966
(80 Stat. 271; 1 U.S.C. 113)—

“. . .the Treaties and Other International Acts Series issued
under the authority of the Secretary of State shall be competent
evidence . . . of the treaties, international agreements other than
treaties, and proclamations by the President of such treaties and
international agreements other than treaties, as the case may be,
therein contained, in all the courts of law and equity and of maritime
jurisdiction, and in all the tribunals and public offices of the
United States, and of the several States, without any further proof
or authentication thereof.”

 

UKRAINE

Aviation: Transport Services

Agreement signed at Kiev June 5, 2000;
Entered into force June 5, 2000.
With annexes.

AIR TRANSPORT AGREEMENT
BETWEEN THE GOVERNMENT OF THE
UNITED STATES OF AMERICA
AND
THE GOVERNMENT OF UKRAINE
The Government of the United States of America and the Government of Ukraine,
hereinafter referred to as the Parties;
Desiring to facilitate the expansion of international air transport opportunities;
Desiring to make it possible for airlines to offer the traveling and shipping public
a variety of service options at the lowest prices that are not predatory or
discriminatory and do not represent abuse of a dominant position and wishing to
encourage individual airlines to develop and implement innovative and
competitive prices;
Desiring to ensure the highest degree of safety and security in international air
transport and reaffirming their grave concern about acts or threats against the
security of aircraft, which jeopardize the safety of persons or property, adversely
affect the operation of air transportation, and undermine public confidence in the
safety of civil aviation;
Being Parties to the Convention on International Civil Aviation, opened for
signature at Chicago on December 7, 1944; and
Desiring to conclude an Agreement for the purpose of establishing air services
between and beyond their respective territories;
Have agreed as follows:
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ARTICLE 1
Definitions
For the purposes of this Agreement, unless otherwise stated, the term:
a. "Aeronautical authorities" means, in the case of the United States, the
Department of Transportation, or its successor, and in the case of Ukraine, the
State Department of Aviation Transport, or its successor;
b. "Agreement" means this Agreement, its Annexes, and any amendments
thereto;
c. "Air transportation" means any operation performed by aircraft for the
public carriage of traffic in passengers, baggage, cargo and mail, separately or in
combination, for remuneration or hire;
d. "Convention" means the Convention on International Civil Aviation,
opened for signature at Chicago on December 7, 1944, and includes:
(1) any amendment which has entered into force under Article 94(a) of
the Convention and has been ratified by both Parties; and
(2) any Annex or any amendment thereto adopted under Article 90 of
the Convention, insofar as such Annex or amendment is at any given time
effective for both Parties.
e. "Designated airline" means an airline designated and authorized in
accordance with Article 3 of this Agreement;
f. "Full cost" means the cost of providing service plus a reasonable charge
for administrative overhead and reasonable return on assets after depreciation;
g. "International air transportation" means air transportation which passes
through the air space over the territory of more than one State;
h. "Price" means any fare, rate or charge for the carriage of passengers (and
their baggage) and/or cargo (excluding mail) in air transportation charged by
airlines, including their agents, and the conditions governing the availability of
such fare, rate or charge;
i. "Stop for non-traffic purposes" means a landing for any purpose other than
taking on or discharging passengers, baggage, cargo and/or mail in air
transportation;
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j. "User charge" means a charge imposed on airlines for the provision of
airport, air navigation or aviation security facilities and services, including related
services and facilities.
ARTICLE 2
Grant of Rights
1. Subject to the provisions of Annex V, each Party grants to the other Party
the following rights for the conduct of international air transportation by the
airlines of the other Party:
a. the right to fly across its territory without landing;
b. the right to make stops in its territory for non-traffic purposes; and
c. the rights otherwise specified in this Agreement.
2. The international air services which the designated airlines of the Parties
will be authorized to operate shall be specified in Annex I and Annex II.
3. Nothing in paragraph 1 of this Article shall be deemed to grant the right
for one Party's airlines to participate in air transportation between points in the
territory of the other Party (cabotage).
ARTICLE 3
Designation and Authorization
1. Subject to the provisions of Annex I and Annex II, each Party shall have
the right to designate airlines to conduct international air transportation in
accordance with this Agreement and to withdraw or alter such designations. Such
designations shall be transmitted to the other Party in writing through diplomatic
channels, and shall identify whether the airline is authorized to conduct the type of
air transportation specified in Annex I or in Annex II or both.
2. On receipt of such a designation, and of applications from the designated
airline, in the form and manner prescribed for operating authorizations and
technical permissions, the other Party shall grant appropriate authorizations and
permissions with minimum procedural delay, provided:
a. substantial ownership and effective control of that airline are
vested in the Party designating the airline, nationals of that Party, or both;
b. the designated airline is qualified to meet the conditions prescribed
under the laws and regulations normally applied to the operation of
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international air transportation by the Party considering the application or
applications; and
c. the Party designating the airline is maintaining and administering
the standards set forth in Article 6 (Safety) and Article 7 (Security).
ARTICLE 4
Revocation of Authorization
1. Each Party may revoke, suspend or limit the operating authorizations or
technical permissions of an airline designated by the other Party where:
a. substantial ownership and effective control of that airline are not
vested in the other Party, the other Party's nationals, or both;
b. that airline has failed to comply with the laws and regulations
referred to in Article 5 (Application of Laws) of this Agreement; or
c. the other Party is not maintaining and administering the standards
as set forth in Article 6 (Safety).
2. Unless immediate action is essential to prevent further non-compliance
with subparagraphs lb or 1c of this Article, the rights established by this Article
shall be exercised only after consultation with the other Party.
3. This Article does not limit the rights of either Party to suspend, limit or
condition air services in accordance with the provisions of Article 7 (Aviation
Security).
ARTICLE 5
Application of Laws
1. While entering, within or leaving the territory of one Party, its laws and
regulations relating to the operation and navigation of aircraft shall be complied
with by the other Party's airlines.
2. While entering, within or leaving the territory of one Party, its laws and
regulations relating to the admission to or departure from its territory of
passengers, crew or cargo on aircraft (including regulations relating to entry,
clearance, aviation security, immigration, passports, customs and quarantine or, in
the case of mail, postal regulations) shall be complied with by or on behalf of such
passengers, crew or cargo of the other Party's airlines.
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3. The Parties shall grant, without limitation, in advance, and with a validity
of at least twenty-four months, visas for all aircraft crews and cabin crews of each
designated airline operating the scheduled services. These visas shall be valid for
any number of flights into and out of the territory of the other Party during the
period of their validity.
4. The Parties shall grant in advance visas of appropriate duration and scope
for the aircraft crews and cabin crews of each designated airline operating charter
air services.
5. The Parties shall grant, without limitation, in advance, and with a validity
of at least twelve months, visas for airline personnel of designated airlines, and
the government officials of the other Party involved in civil aviation. These visas
shall be valid for any number of visits into and out of the territory of the other
Party during the period of their validity.
ARTICLE 6
Safety
1. The Parties shall take all necessary measures to ensure safe and effective
operation of the air transportation covered by this Agreement.
2. Each Party shall recognize as valid, for the purpose of operating the air
transportation provided for in this Agreement, certificates of airworthiness,
certificates of competency, and licenses issued or validated by the other Party and
still in force, provided that the requirements for such certificates or licenses at
least equal the minimum standards which may be established pursuant to the
Convention. Each Party may, however, refuse to recognize as valid for the
purpose of flight above its own territory, certificates of competency and licenses
granted to or validated for its own nationals by the other Party.
3. Each Party may request consultations concerning the safety standards
maintained by the other Party relating to aeronautical facilities, aircrew, aircraft,
and operation of the designated airlines. If, following such consultations, one
Party finds that the other Party does not effectively maintain and administer safety
standards and requirements in these areas that at least equal the minimum
standards which may be established pursuant to the Convention, the other Party
shall be notified of such findings and the steps considered necessary to conform
with these minimum standards; and the other Party shall take appropriate
corrective action. Each Party reserves the right to take action as provided in
Article 4 in the event the other Party does not take such appropriate corrective
action within a reasonable time.
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ARTICLE 7
Aviation Security
1. In accordance with their rights and obligations under international law, the
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.
2. The Parties shall provide upon request all necessary assistance to each
other to prevent acts of unlawful seizure of civil aircraft, acts of sabotage, and
other unlawful acts against the safety of such aircraft, its passengers and crew,
airports and air navigation facilities, and any other threat to the security of civil
aviation.
3. The Parties shall act in conformity with the provisions of the Convention
on Offenses 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. In addition, the Parties shall act in conformity
with the provisions of the Protocol for the Suppression of Unlawful Acts of
Violence at Airports Serving International Civil Aviation, Supplementary to the
1971 Montreal Convention, signed at Montreal on 24 February 1988, upon that
Protocol's entry into force for the Government of Ukraine.
4. The Parties shall act in conformity with all aviation security standards and
appropriate recommended practices established by the International Civil Aviation
Organization and designated as Annexes to the Convention; they shall require that
operators of aircraft of their registry or operators who have their principal place of
business or permanent residence in their territory and that operators of airports in
their territory act in conformity with such aviation security provisions.
5. Each Party agrees to observe the security provisions required by the other
Party for entry into, departure from, or while within the territory of that other
Party. Each 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, mail and aircraft stores prior to and during boarding or
loading. Each Party shall also give sympathetic consideration to any request from
the other Party for special security measures to meet a particular threat.
6. When an incident or threat of an incident of unlawful seizure of civil
aircraft or other unlawful acts against the safety of such aircraft, its passengers and
crew, airports and air navigation facilities occurs, the Parties shall assist each
other by facilitating communications and other appropriate measures, in
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accordance with Annex 17 of the Convention, which are intended to terminate
rapidly such incident or threat.
7. In order to ensure the highest level of aviation security, the aeronautical
authorities shall ensure cooperation and information exchange in the field of
aviation security to prevent unlawful interference with civil aviation and
strengthen security measures in place at existing airports and to be incorporated in
the development of new airport and aircraft design. One goal of the information
exchange is to improve gun detection and deter the placement of plastic
explosives.
8. When a Party has reasonable grounds to believe that the other Party has
departed from the aviation security provisions of this Article, the aeronautical
authorities of that Party may request immediate consultations with aeronautical
authorities of the other Party. Failure to reach a satisfactory agreement within 15
days from the date of such request shall constitute grounds to withhold, revoke,
limit or impose conditions on the operating authorization or technical permission
of an airline or airlines of the other Party. When required by an emergency, a
Party may take interim action prior to the expiry of 15 days.
ARTICLE 8
Commercial Opportunities
1. Subject to Annex IV, the airlines of one Party may establish offices in the
territory of the other Party for the promotion and sale of air transportation.
2. Subject to Annex IV, the airlines of one Party may, in accordance with the
laws and regulations of the other Party relating to entry, residence and
employment, bring in and maintain in the territory of the other Party managerial,
sales, technical, operational and other specialist staff required for the provision of
air transportation.
3. Subject to Annex IV, each designated airline may perform its own ground
handling in the territory of the other Party ("self-handling") or, at its option, select
among competing agents for such services in whole or in part. These rights shall
be subject only to physical and technical constraints resulting from considerations
of airport safety. Where such considerations preclude self-handling, ground
services shall be available on a non-discriminatory and an equal basis to all
airlines; charges shall be based on the costs of services provided and such services
shall be comparable to the kind and quality of services as if self-handling were
possible.
4. Subject to Annex IV, each airline may engage in the sale of air
transportation in the territory of the other Party either directly or, at the airline's
discretion, through its agents, or both; in the case of charter operations, however,
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this right is subject to charter regulations of the country in which the charter
originates that relate to national security or to the protection of passenger funds
and passenger cancellation and refund rights. Subject to Annex IV, each airline
may sell such transportation, and any person shall be free to purchase such
transportation, in the currency of that territory or in freely convertible currency,
subject to applicable non-discriminatory licensing laws and regulations.
5. Each airline may convert and remit to its country, on demand, local
revenues in excess of sums locally disbursed. Conversion and remittance shall be
permitted promptly without restrictions or taxation in respect thereof at the rate of
exchange applicable to current transactions and remittance on the date the airline
makes the initial application for remittance.
6. The airlines of one Party shall be permitted to pay for local expenses,
including purchases of fuel, in the territory of the other Party in local currency. At
their discretion, the airlines of one Party may pay for such expenses in the territory
of the other Party in freely convertible currencies according to local currency
regulations.
7. The airlines of one Party shall be permitted to hold bank accounts in their
own names in the territory of the other Party, in currency of either Party, or in any
freely convertible currency, at the airline's option.
ARTICLE 9
Customs Duties and Charges
1. On arriving in the territory of one Party, aircraft operated in international
air transportation by the designated airlines of the other Party, their regular
equipment, ground equipment, fuel, lubricants, consumable technical supplies,
spare parts (including engines), aircraft stores (including but not limited to such
items as food, beverages and liquor, tobacco and other products destined for sale
to or use by passengers in limited quantities during flight) and other items
intended for or used solely in connection with the operation or servicing of aircraft
engaged in international air transportation shall be exempt, on the basis of
reciprocity, from all import restrictions, property taxes and capital levies, customs
duties, excise taxes, and similar fees and charges imposed by the national
authorities, and not based on the cost of services provided, provided such
equipment and supplies remain on board the aircraft.
2. There shall also be exempt, on the basis of reciprocity, from the taxes,
duties, fees and charges referred to in paragraph 1 of this Article, with the
exception of charges based on the cost of the service provided:
a. aircraft stores introduced into or supplied in the territory of one
Party and taken on board, within reasonable limits, for use on outbound
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aircraft of an airline of the other Party engaged in international air
transportation, even when these stores are to be used on a part of the
journey performed over the territory of the Party in which they are taken
on board;
b. ground equipment and spare parts including engines introduced
into the territory of a Party for the servicing, maintenance or repair of
aircraft of an airline of the other Party used in international air
transportation; and
c. fuel, lubricants and consumable technical supplies introduced into
or supplied in the territory of a Party for use in an aircraft of an airline of
the other Party engaged in international air transportation, even when these
supplies are to be used on a part of the journey performed over the territory
of the Party in which they are taken on board.
3. Equipment and supplies referred to in paragraphs 1 and 2 of this Article
may be required to be kept under the supervision or control of the appropriate
authorities.
4. The exemptions provided by this Article shall also be available where the
airlines of one Party have contracted with another airline, which similarly enjoys
such exemptions from the other Party, for the loan or transfer in the territory of the
other Party of the items specified in paragraphs 1 and 2 of this Article.
5. The designated airlines of one Party may, in accordance with the laws and
regulations of the other Party relating to customs and duties, bring in and maintain
at each of the points on the agreed routes within the territory of the other Party
material and equipment required by those airlines for the provision and promotion
of air services. Printed catalogues, price lists, trade notices or tourist or other
literature (including posters) shall be admitted duty free.
ARTICLE 10
User Charges
1. User charges which may be imposed by the competent charging authorities
or bodies of each Party on the airlines of the other Party shall be just, reasonable,
not unjustly discriminatory and equitably apportioned among categories of users.
In any event, user charges shall be assessed on all airlines of each Party on terms
not less favorable than the most favorable terms available to any other airline
operating similar air transportation at the same time the charges are assessed.
2. User charges imposed on the airlines of the other Party may reflect, but
shall not exceed, an equitable portion of the full cost to the competent charging
authorities or bodies providing the appropriate airport, airport environmental, air
10
navigation, and aviation security facilities and services at the airport and within
the airport system. These charges may provide for a reasonable rate of return on
assets, after depreciation. Facilities and services for which charges are made shall
be provided on an efficient and economic basis. Reasonable notice shall be given
prior to changes in user charges.
3. Each Party shall encourage consultations between the competent charging
authorities or bodies in its territory and airlines using the services and facilities,
and shall encourage the competent charging authorities or bodies and the airlines
to exchange such information as may be necessary for an accurate review of the
reasonableness of the charges.
4. Neither Party shall be held, in dispute resolution procedures pursuant to
Article 14, to be in breach of a provision of this Article unless (a) it fails to
undertake a review of a charge or practice that is the subject of complaint by the
other Party within a reasonable time period; or (b) following such a review, it fails
to take all steps within its power to remedy any charge or practice that is
inconsistent with this Article.
ARTICLE 11
Fair Competition
1. Each Party shall allow a fair and equal opportunity for the designated
airlines of both Parties to compete in the international air transportation covered
by this Agreement.
2. Each Party shall take all appropriate action within its jurisdiction to
eliminate all forms of discrimination or unfair competitive practices adversely
affecting the competitive position of the airlines of the other Party.
3. Subject to Annexes I and II, each Party shall allow each designated airline
to determine the frequency and capacity of the international transportation it offers
based upon commercial considerations in the market place; consistent with this
right, neither Party shall unilaterally limit the volume of traffic, frequency or
regularity of service, or the aircraft type or types operated by the designated
airlines of the other Party, except as provided for in Article 4 of this Agreement or
as may be stated in any applicable Annex, or required for customs, technical,
operational or environmental reasons under uniform conditions consistent with
Article 15 of the Convention.
4. Neither Party shall impose, nor shall it allow its designated airlines to
impose, on the other Party's designated airlines a first refusal requirement, uplift
ratio, no-objection fee, or any other requirement with respect to the capacity,
frequency or traffic which would be inconsistent with the purposes of this
Agreement.
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5. Neither Party shall require the filing of schedules, programs for charter
flights, or operational plans by airlines of the other Party for approval, except as
may be required on a non-discriminatory basis to enforce uniform conditions as
foreseen by paragraph 3 of this Article or as may be specifically authorized in an
Annex to this Agreement. If a Party requires filings for information purposes, it
shall minimize the administrative burdens of filing requirements and procedures
on air transportation intermediaries and on designated airlines of the other Party.
ARTICLE 12
Pricing
1. Each Party shall allow prices for air transportation to be established by
each designated airline based upon commercial considerations in the marketplace.
Intervention by the Parties shall be limited to:
a. prevention of unreasonably discriminatory prices or practices;
b. protection of consumers from prices that are unreasonably high or
restrictive due to the abuse of a dominant position;
c. protection of airlines from prices that are artificially low because of
direct or indirect governmental subsidy or support; and
d. protection of airlines from prices that are artificially low and
offered with the intent of eliminating competition.
2. Each Party may require notification to or filing with its aeronautical
authorities of prices proposed to be charged to or from its territory by airlines of
the other Party. Notification or filing by the airlines of both Parties may be
required no more than 30 days before the proposed date of effectiveness. In
individual cases, notification or filing may be permitted on shorter notice than
normally required.
3. Neither Party shall take unilateral action to prevent the inauguration or
continuation of a price proposed to be charged or charged by (a) an airline of
either Party for international air transportation between the territories of the
Parties, or (b) an airline of one Party for international air transportation between
the territory of the other Party and any other country, including in both cases
transportation on an interline or intraline basis. If either Party believes that any
such price is inconsistent with the considerations set forth in paragraph 1 of this
Article, it shall request consultations and notify the other Party of the reasons for
its dissatisfaction as soon as possible. These consultations shall be held not later
than 30 days after receipt of the request, and the Parties shall cooperate in
securing information necessary for reasoned resolution of the issue. If the Parties
12
reach agreement with respect to a price for which a notice of dissatisfaction has
been given, each Party shall use its best efforts to put that agreement into effect.
Without such mutual agreement, the price shall go into effect or continue in
effect. In the event that, after an initial consultation, the Parties do not reach
agreement with respect to the price at issue, a second consultation may be held if
the Parties agree that it is necessary.
ARTICLE 13
Consultations
Either Party may, at any time, request consultations relating to this Agreement.
Such consultations shall begin at the earliest possible date, but not later than 60
days from the date the other Party receives the request unless otherwise agreed.
ARTICLE 14
Settlement of Disputes
1. Any dispute arising under this Agreement which is not resolved by a first
round of formal consultations, except those which may arise under paragraph 3 of
Article 12 (Pricing), may be referred by agreement of the Parties for decision to
some person or body. If the Parties do not so agree, the dispute shall at the
request of either Party be submitted to arbitration in accordance with the
procedures set forth below.
2. Arbitration shall be by a tribunal of three arbitrators to be constituted in
accordance with the following subparagraphs:
a. within 30 days after the receipt of a request for arbitration, each
Party shall name one arbitrator. Within 60 days after these two arbitrators
have been named, they shall by agreement appoint a third arbitrator, who
shall act as President of the arbitral tribunal;
b. if either Party fails to name an arbitrator, or if the third arbitrator is
not appointed in accordance with subparagraph (a) of this paragraph, either
Party may request the President of the Council of the International Civil
Aviation Organization to appoint the necessary arbitrator or arbitrators
within 30 days. If the President of the Council is of the same nationality
as one of the Parties, the most senior Vice President who is not
disqualified on that ground shall make the appointment.
3. Except as otherwise agreed, the arbitral tribunal shall determine the limits
of its jurisdiction in accordance with this Agreement and shall establish its own
procedures. The tribunal, once formed, shall have the jurisdiction to grant interim
relief pending its final determination. At the direction of the tribunal or at the
13
request of either of the Parties, a conference to determine the precise issues to be
arbitrated and the specific procedures to be followed shall be held no later than 15
days after the tribunal is fully constituted.
4. Except as otherwise agreed, each Party shall submit a memorandum within
45 days from the date that the tribunal is fully constituted. Replies shall be due 60
days later. The tribunal shall hold a hearing at the request of either Party or at its
discretion within 15 days after replies are due.
5. The tribunal shall attempt to render a written decision within 30 days after
completion of the hearing or, if no hearing is held, after the date both replies are
submitted. The decision of the majority of the tribunal shall prevail.
6. The Parties may submit requests for clarification of the decision within 15
days after it is rendered and any clarification given shall be issued within 15 days
of such request.
7. Each Party shall, consistent with its national law, give full effect to any
decision or award of the arbitral tribunal.
8. The expenses of the arbitral tribunal, including the fees and expenses of
the arbitrators, shall be shared equally by the Parties. Any expenses incurred by
the President of the Council of the International Civil Aviation Organization in
connection with the procedures of paragraph 2b of this Article shall be considered
to be part of the expenses of the arbitral tribunal.
ARTICLE 15
Termination
Either Party may, at any time, give notice in writing to the other Party of its
decision to terminate this Agreement. Such notice shall be sent simultaneously to
the International Civil Aviation Organization. This Agreement shall terminate at
midnight (at the place of receipt of the notice to the other Party) immediately
before the first anniversary of the date of receipt of the notice by the other Party,
unless the notice is withdrawn by agreement of the Parties before the end of this
period.
ARTICLE 16
Registration with ICAO
This Agreement and all amendments thereto shall be registered with the
International Civil Aviation Organization.
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ARTICLE 17
Entry into Force
This Agreement shall enter into force on the date of signature.
Upon entry into force, this Agreement shall supersede, in relations between the
United States of America and Ukraine, the June 1, 1990 Air Transport Agreement
between the Government of the United States of America and the Government of
the Union of Soviet Socialist Republics, with Annexes, as extended and amended
by the May 10, 1995 Protocol Between the Government of the United States of
America and the Government of Ukraine and the Supplementary Agreement of
November 4, 1966, as amended.
IN WITNESS WHEREOF, the undersigned, being duly authorized by their
respective Governments, have signed the present Agreement.
DONE at Kiev, in duplicate, in the English and the Ukrainian languages, this fifth
day of June, 2000, both texts being equally authentic.
FOR THE GOVERNMENT OF
THE UNITED STATES OF AMERICA: FOR THE GOVERNMENT OF UKRAINE:
ANNEX I
Scheduled Air Service
Section 1
A. Notwithstanding the first sentence of Article 3, Paragraph 1, each Party
shall have the right to designate up to four airlines to operate combination
(passenger/cargo) services and two airlines to operate all-cargo services on the
routes specified in Section 2 of this Annex.
B. Airlines operating services between the territories of the Parties
exclusively under code-share arrangements, with airlines of the other Party, or
with airlines of a third country, shall be designated in accordance with Article 3 of
this Agreement, and shall be counted against the limits on designations stated
above.
Section 2
Airlines of one Party designated under this Annex shall, in accordance with the
terms of their designation, be entitled to perform scheduled international air
transportation (1) between points on the following routes, and (2) between points
on such routes and points in third countries through points in the territory of the
Party which has designated the airlines.
A. Routes for the airline or airlines designated by the Government of
the United States:
From the United States:
1. via four European intermediate points1 to Kiev and Odessa
with full traffic rights for non code-share services and without local
traffic rights for code-share services with third-country airlines;
and
2. to Kiev, Odessa, Lvov, Dnipropetrovsk, and three
Ukrainian points to be mutually agreed, and ten Ukrainian points
for code-share services with national airlines without local traffic
rights.
1 The intermediate points are to be selected by the Government of the United States and may be
changed on one month's written notice transmitted through diplomatic channels.
2
B. Routes for the airline or airlines designated by the Government of
Ukraine:
From Ukraine:
1. for code-share services only, via four European
intermediate points2 to two U.S. points of Ukraine's choice3
without local traffic rights; and
2. to New York, Chicago, Washington, D.C., Los Angeles,
Bangor, three U.S. points to be mutually agreed, and ten U.S.
points for code-share services with national airlines without local
traffic rights and beyond to three points with full traffic rights.
Section 3
A. Notwithstanding Article 11, paragraph 3, the airlines of each Party
designated for combination service may operate up to eighteen (18) round trip
frequencies per week and airlines of each Party designated for all-cargo service
may operate up to four (4) round trip frequencies per week, over the Routes in
Section 2.
B. The frequencies mentioned above may be increased in accordance with
Article 13 of this Agreement. Extra sections operated by designated airlines of
one Party shall not be counted as a frequency, but must be approved in advance by
the aeronautical authorities of the other Party.
Section 4
Each designated airline may, on any or all flights and at its option:
1. operate flights in either or both directions;
2. combine different flight numbers within one aircraft operation;
3. serve points on the routes in any combination and in any order
(which may include serving intermediate points as beyond points and
beyond points as intermediate points),
4. omit stops at any point or points;
2 The intermediate points are to be selected by the Government of Ukraine and may be changed on
one month's prior written notification through diplomatic channels.
3 Two U.S. points to be selected among those on Ukraine's route B(2).
3
5. serve any intermediate point or beyond point not designated on the
routes in Section 2 above on a blind-sector basis; and
6. transfer traffic from any of its aircraft to any of its other aircraft at
any point on the routes;
without directional or geographic limitation and without loss of any right to carry
traffic otherwise permissible under this Agreement; provided, that the service
begins or terminates in the territory of the Party designating the airline.
Section 5
On any segment or segments of the routes above, a designated airline may
perform international air transportation without any limitation as to change, at any
point on the route, in type or number of aircraft operated, provided that in the
outbound direction the transportation beyond such point is a continuation of the
transportation from the territory of the Party that has designated the airline and, in
the inbound direction, the transportation to the territory of the Party that has
designated the airline is a continuation of the transportation beyond such point.
Section 6
In operating or holding out the authorized services on the agreed routes, any
designated airline or airlines of either Party, which holds appropriate authority to
provide such service, may, on the basis of reciprocity, and subject to the
requirements normally applied to such agreements, enter into cooperative
marketing arrangements such as blocked-space, code-sharing or leasing
agreements with other airlines (including third-country airlines) that also hold
appropriate authority, provided that these arrangements do not include cabotage or
revenue pooling.
Section 7
A. The designated airlines of each Party may operate a total of four (4) code-
share opportunities pursuant to code-sharing arrangements (which may include
blocked-space arrangements) between an airline of one Party and an airline of a
third country over the intermediate points and to the destinations specified in
Sections 2(A)(1) and 2(B)(1). For purposes of this paragraph, a "code-share
opportunity" is one combination of one pair of code-share partners and one city-
pair, defined as follows:
1. a pair of code-share partners is an airline of one Party and an
airline of a third country, and
2. a city-pair is the final segment between a third-country
intermediate point and the destination in the territory of the other Party.
4
The four code-share opportunities may include more than one city-pair and more
than one pair of code-share partners.4
B. Frequencies operated under code-share services shall be counted as
follows:
1. Scheduled air transportation operated under code-share
arrangements between airlines of the Parties shall not be counted against
the frequency limitation stated in Section 3.
2. Scheduled air transportation between the territories of the Parties
operated under third-country code-share arrangements where the airline of
the Party does not operate the aircraft into and out of the territory of the
other Party, shall be counted as one-half of one frequency for the first
Party pursuant to the frequency limitation stated in Section 3.
Section 8
Notwithstanding any other provision of this Agreement, airlines of both Parties
shall be permitted, without restriction, to employ in connection with international
air transportation any surface transportation for cargo to or from any points in the
territories of the Parties or in third countries, including transport to and from all
airports with customs facilities, and including, where applicable, the right to
transport cargo in bond under applicable law and regulations. Such cargo,
whether moving by surface or by air, shall have access to airport customs
processing and facilities. Airlines may elect to perform their own surface
transportation or to provide it through arrangements with other surface carriers,
including surface transportation operated by other airlines and indirect providers
of cargo transportation. Such intermodal cargo services may be offered at a single
through price for the air and surface transportation combined, provided that
shippers are not misled as to the facts concerning such transportation.
Section 9
Unless otherwise agreed prior to that date, this Annex shall expire on
December 31, 2001. The Parties agree to consult six months in advance of the
expiration date to determine whether the provisions of this Annex should be
continued or modified. This Section does not modify any other provision of
this Agreement regarding consultations and termination.
4 The city pairs for each code-share opportunity may be changed with one month's prior written
notice transmitted through diplomatic channels.
ANNEX II
Charter Air Services
Section I
Airlines designated under this Annex shall, in accordance with the terms of their
designation, have the right to carry international charter traffic of passengers (and
their accompanying baggage) and/or cargo (including, but not limited to freight
forwarder, split and combination (passenger/cargo) charters):
a. between any point or points in the territory of the Party which has
designated the airline and any point or points in the territory of the other
Party; and
b. between any point or points in the territory of the other Party and
any point or points in a third country or countries, provided that such
traffic is carried via the carrier's homeland and makes a stopover in the
homeland for at least two consecutive nights.
In the performance of services covered by this Annex, airlines of one Party
designated under this Annex shall also have the right: (1) to make stopovers at
any points whether within or outside of the territory of either Party; and (2) to
carry transit traffic through the other Party's territory.
Section 2
Notwithstanding Article 11, paragraph 3, the annual total number of round-trip
charter flights for the airlines of each Party shall not exceed:
a. one hundred and fifty (150) passenger and combination charters
which may only carry traffic originating in the homeland of the airline; and
b. seventy-five (75) cargo charters which may carry traffic originating
in the territory of either Party.
Each Party shall extend favorable consideration to applications by airlines of the
other Party to carry traffic not covered by this Annex and charter flights above the
number mentioned above on the basis of comity and reciprocity. The above quota
may be changed by agreement of the Parties.
Humanitarian charters, approved by the Parties as such, shall not be included in
the numerical limitation set forth above.
2
Section 3
Charter flights shall be operated in accordance with the charter rules of the
country in which the charter traffic originates. If a Party applies different rules,
regulations, terms, conditions or limitations to one or more of its airlines, or to
airlines of different countries, each designated airline shall be subject to the least
restrictive of such criteria.
However, nothing contained in the above paragraph shall limit the rights of one
Party to require the designated airline or airlines of the other Party to adhere to
requirements relating to the protection of passenger funds and passenger
cancellation and refund rights.
Section 4
Except with respect to the consumer protection rules referred to above, neither
Party shall require a designated airline of the other Party, in respect of the carriage
of authorized charter traffic on a one-way or round-trip basis, to submit more than
a declaration of conformity with the applicable laws, regulations and rules referred
to under section 3 of this Annex or of a waiver of these regulations or rules
granted by the applicable aeronautical authorities.
Section 5
Unless otherwise agreed prior to that date, this Annex shall expire on
December 31, 2001. The Parties agree to consult six months in advance of the
expiration date to determine whether the provisions of this Annex should be
continued or modified. This Section does not modify any other provision of
this Agreement regarding consultations and termination.
ANNEX III
Principles of Non-Discrimination Within and
Competition Among Computer Reservation Systems
Recognizing that Article 11 (Fair Competition) of the U.S.-Ukraine Air Transport
Agreement guarantees to the airlines of both Parties "a fair and equal opportunity
to compete,"
Considering that one of the most important aspects of the ability of an airline to
compete is its ability to inform the public of its services in a fair and impartial
manner, and that, therefore, the quality of information about airline services
available to travel agents who directly distribute such information to the traveling
public and the ability of an airline to offer those agents competitive computer
reservations systems (CRSs) represent the foundation for an airline's competitive
opportunities,
Considering that it is equally necessary to ensure that the interests of the
consumers of air transport products are protected from any misuse of such
information and its misleading presentation and that airlines and travel agents
have access to effectively competitive computer reservations systems,
Have reached the following understandings with respect to the agreed
international scheduled passenger services under this Agreement:
(1) The Parties agree with respect to CRSs with integrated primary displays
that:
a. Information regarding international air services, including the
construction of connections on those services, shall be edited and
displayed based on non-discriminatory and objective criteria that are not
influenced, directly or indirectly, by airline or market identity. Such
criteria shall apply uniformly to all participating airlines.
b. CRS data bases shall be as comprehensive as possible.
c. CRS vendors shall not delete information submitted by
participating airlines; such information shall be accurate and transparent;
for example, code-shared and change-of-gauge flights and flights with
stops should be clearly identified as having those characteristics.
d. All CRSs which are available to travel agents who directly
distribute information about airline services to the traveling public in
either Party's territory shall not only be obliged to but shall also be entitled
to operate in conformance with the CRS rules that apply in the territory
where the CRS is being operated.
2
e. Travel agents shall be allowed to use any of the secondary displays
available through the CRS so long as the travel agent makes a specific
request for that display.
(2) A Party which allows a multi-access CRS to be operated in its territory
without a fully functional neutral, integrated display shall require that the partition
of an airline which owns such a CRS, and/or the airline offering the most
scheduled services in that Party's territory, shall include at least one display that
processes information on international airline services in compliance with the
requirements of paragraph (1). This display must be as easy to access and as fully
functional as any display maintained by the airline based on airline identity, and
its data base shall contain accurate information, be as comprehensive as possible,
and not favor the services of the airline whose partition is being accessed. This
display shall be presented to the travel agent accessing the airline's partition unless
the agent specifically calls up a different display for each individual transaction.
(3) A Party shall require that each CRS vendor operating in its territory allows
all airlines willing to pay any applicable non-discriminatory fee to participate in
its CRS. A Party shall require that all distribution facilities which a system
vendor provides shall be offered on a non-discriminatory basis to participating
airlines. A Party shall require that CRS vendors display, on a non-discriminatory,
objective, airline-neutral and market-neutral basis, the international air services of
participating airlines in all markets in which they wish to sell those services.
Upon request, a CRS vendor shall disclose details of its data base update and
storage procedures, its criteria for editing and ranking information, the weight
given to such criteria, and the criteria used for selection of connect points and
inclusion of connecting flights.
(4) CRS vendors operating in the territory of one Party shall be entitled to
bring in, maintain and make freely available their CRSs to travel agencies or
travel companies whose principal business is the distribution of travel-related
products in the territory of the other Party, if the CRS complies with these
principles.
(5) Neither Party shall, in its territory, impose or permit to be imposed on the
CRS vendors of the other Party more stringent requirements with respect to access
to and use of communication facilities, selection and use of technical CRS
hardware and software, and the technical installation of CRS hardware, than those
imposed on its own CRS vendors.
(6) Neither Party shall, in its territory, impose or permit to be imposed on the
CRS vendors of the other Party more restrictive requirements with respect to CRS
displays (including edit and display parameters), operation, or sale than those
imposed on its own CRS vendors.
3
(7) CRSs in use in the territory of one Party, which comply with these
principles and other relevant non-discriminatory regulatory, technical, and security
standards, shall be entitled to effective and unimpaired access in the territory of
the other Party. One aspect of this is that a designated airline shall participate in
such a system as fully in its homeland territory as it does in any system offered to
travel agents in the territory of the other Party. Owners/operators of CRSs of one
Party shall have the same opportunity to own/operate CRSs, which conform to
these principles, within the territory of the other Party as do owners/operators of
that Party. Each Party shall ensure that its airlines and its CRS vendors do not
discriminate against travel agents in their homeland territory because of their use
or possession of a CRS also operated in the territory of the other Party.
ANNEX IV
Commercial Opportunities
Section 1
A. Combination Services
Until December 31, 2001, notwithstanding Article 8(1) and (4):
1. Designated airlines of one Party engaged in combination services
in the territory of the other Party through code-share operations with third-
country carriers may, through either their code-share partners or through
the offices of a General Sales Agent, engage in the sale of air
transportation only at points on the applicable route in Annex I. Such a
General Sales Agent may perform all functions generally performed by a
General Sales Agent, which would be subject to applicable non-
discriminatory licensing laws and regulations.
2. Non-designated airlines of one Party engaged in combination
services that do not serve the other Party either directly or through code-
share operations may not establish offices or engage in the sale of air
transportation directly in the territory of the other Party.
B. All-cargo services
Until December 31, 2001, notwithstanding Article 8(1) and (4):
1. Airlines of one Party, designated for operation of all-cargo
services, which serve the territory of the other Party only through code-
share arrangements with third-country airlines, may:
a. engage in the sale of air transportation: (i) only through
their code-share partners or through the offices of agents selected by such
designated airlines and duly authorized by the competent authorities of the
other Party pursuant to generally applicable non-discriminatory licensing
laws and regulations; and (ii) only at points on the applicable route in
Annex I.
b. enter into agreements with their code-share partners or
agents selected by such designated airlines and authorized in the manner
set forth in paragraph B(1)(a) of this Section, whereby these partners or
agents operate facilities for drop-off, pick-up, delivery or consolidation of
those airlines' cargo in the territory of the other Party consistent with these
agreements and with applicable non-discriminatory licensing laws and
regulations.
2
2. Airlines of one Party, not designated for operation of all-cargo
services, which do not serve the territory of the other Party either directly
or through code-share arrangements, may not engage directly in the sale of
air transportation or establish offices in the territory of the other Party.
C. Nothing in this section shall limit the ability of airlines to sell air
transportation through other agents.
Section 2
A. Subject to the limitations in the preceding Section, each Party will
endeavor to ensure that there are available to the designated airlines of the other
Party offices for the administration, sale, and promotion of air transportation,
including facilities of a quality, accessibility, size, location, and cost not less
favorable than that available to its airlines or any other airline engaged in
international air transportation.
B. Designated airlines, as well as appropriate authorities, agencies, or
departments of both Parties will cooperate in facilitating marketing programs, as
well as carrying out measures aimed at securing priority in hotel reservations and
other ground arrangements or requirements for travel, for passengers traveling on
flights of the designated airlines of both Parties to the extent necessary to assure
that the opportunities for such marketing programs, hotel reservations and other
ground arrangements or requirements of travel shall be no less favorable for the
services of one Party than for the services of the other Party, or for the services of
the airlines of any third party.
Section 3
Notwithstanding the provisions of Article 8(3):
1. until such time as Kiev's Borispol Airport has repaid its loan from the
European Bank for Reconstruction and Development, the U.S. designated airlines
shall be required to obtain a special permission from Borispol Airport to provide
self-handling; and
2. without any discrimination, rights to self-handling shall be subject to
physical constraints resulting from considerations of airport safety and from the
limitations of existing airport facilities, and shall be conducted on the basis of an
agreement concluded between the airlines and the airport authorities.
3
Section 4
Unless otherwise agreed prior to that date, this Annex will expire on
December 31, 2001. The Parties agree to consult six months in advance of the
expiration date to determine whether the provisions of this Annex should be
continued or modified. This Section does not modify any other provision of
this Agreement regarding consultations or termination.
ANNEX V
Flight Routes
Section 1
Notwithstanding the provisions of Article 2 of the Agreement, the flight routes of
aircraft on the agreed services and the points for crossing national boundaries
shall be established by each Party within its territory.
Section 2
Unless otherwise agreed prior to that date, this Annex will expire on
December 31, 2001. The Parties agree to consult six months in advance of the
expiration date to determine whether the provisions of this Annex should be
continued or modified. This Section does not modify any other provision of
this Agreement regarding consultations or termination.



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