Written by: Nishka Prajapati
The world is in the midst of a global pandemic which
has caused a blow to the world economy. The Covid19 pandemic began from China
thereby spreading to other parts of the world resulting in the closing of
international borders by most of the countries of the world to prevent the
spread of covid19 at a global stage whilst battling it in their own countries.
The international airlines have suffered huge losses due to the closure of
international borders.
In India, the Directorate General of Civil Aviation
(DGCA) had announced on March 19th that no international commercial
passenger flight operation would take place from 23rd March and that
order is extended till 30th June. However to bring home the Indian
nationals who were stranded abroad due to the Covid19 pandemic, the Indian
Government initiated the Vande Bharat Mission. India significantly ramped up
flights to the US and Canada in the second and third phases of Vande Bharat
Mission to bring back stranded citizens, including students and professionals
who lost their jobs because of the economic fallout of the pandemic.[1]
But recently, U.S. has threatened to ban Air India services under Vande Bharat
Mission.
The U.S. administration has passed an order stating
that Air India will be required to obtain prior approval of U.S. department of
transport before operating any Third and/or Fourth Freedom charter flights to
or from the United States. The order also directed Air India to file
applications for authorisation for repatriation flights at least 30 days before
the date of the proposed flight.
The U.S. alleges that Indian Government has engaged
in discriminatory treatment to American airlines by not allowing similar
repatriation flights to be operated in India thereby putting American flights
at a competitive disadvantage. The U.S. also stated that the Vande Bharat
Mission was putting American airlines at a competitive disadvantage and it also
allegedly amounted to violation of Air Services Agreement of 2005 signed
between India and U.S.
®
A look at the ‘Air Transport Agreement 2005’:
The ‘Air Transport Agreement’ also known as ‘Air
Services Agreement’ was signed between the Governments of India and U.S. on 14th
April 2005. The agreement focused on the rights of the parties and limits of
operation with respect to air travel between them.
Article 2 of the agreement states,
“Grant
of Rights:
1.
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
. Nothing in this Article shall be deemed to confer on the airline or airlines
of one Party the rights to take on board, in the territory of the other Party,
passengers, their baggage, cargo, or mail carried for compensation and destined
for another point in the territory of that other Party.”
Article 5 of the agreement with respect to
application of laws states,
“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.”
Article 8 of the agreement provides with respect to
commercial opportunities as follows,
“1.
The airlines of each Party shall have the right to establish offices in the
territory of the other Party for the promotion and sale of air transportation.
2.
The designated airlines of each Party shall be entitled, in accordance with the
laws and regulations of the other Party relating to entry, residence, and
employment, to 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.
Each designated airline shall have the right to 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.
The rights shall be subject only to physical constraints resulting from
considerations of airport safety. Where such considerations preclude self-handling,
ground services shall be available on 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.
Any airline of each Party may engage in the sale of air transportation in the
territory of the other Party directly and, at the airline's discretion, through
its agents, except as may be specifically provided by the charter regulations
of the country in which the charter originates that relate to the protection of
passenger funds, and passenger cancellation and refund rights . 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.
5.
Each airline shall have the right to 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 carrier makes the initial application for
remittance.
6.
The airlines of each 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 each Party may pay for such
expenses in the territory of the other Party in freely convertible currencies
according to local currency regulation.
7.
In operating or holding out the authorized services on the agreed routes, any
designated airline of one Party may enter into cooperative marketing
arrangements such as blocked space, code-sharing or leasing arrangements, with
a) an airline or airlines of either Party ; b) an airline or airlines of a
third country ; and c) a surface transportation provider of any country ;
provided that all participants in such arrangements (i) hold the appropriate
authority and (ii) meet the requirements normally applied to such arrangements.
8.
Notwithstanding any other provision of this Agreement, airlines and indirect
providers of cargo transportation 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 laws 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 air 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.”
Article 11 of the agreement provides for fair
competition as under:
“1.
Each Party shall allow a fair and equal opportunity for the designated airlines
of both Parties to compete in providing the international air transportation
governed by this Agreement.
2.
Each Party shall allow each designated airline to determine the frequency and
capacity of the international air transportation it offers based upon
commercial considerations in the marketplace. 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 may be required for customs, technical,
operational, or environmental reasons under uniform conditions consistent with
Article 15 of the Convention.
3.
Neither Party shall impose on the other Party's designated airlines a
first-refusal requirement, uplift ratio, 13 no-objection fee, or any other
requirement with respect to capacity, frequency or traffic that would be
inconsistent with the purposes of this Agreement.
4.
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 the uniform
conditions foreseen by paragraph 2 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.”
Section 1 of Annex II titled ‘Charter Air
Transportation’ provides the right of the parties t 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), between any point or points in the territory of the Party that has
designated the airline and any point or points in the territory of the other
Party.
The U.S. alleges that India has acted in violation
of Article 11 of the Agreement which provides for fair competition stating that
not allowing American airlines to operate repatriation flights in India is
discriminatory and puts the American airlines at a competitive disadvantage.
®
The way forward:
Amidst
this, a spokesperson of the Ministry of Civil Aviation said, “As we contemplate
further opening up in response to demands, we are looking at the prospect of
establishing individual bilateral bubbles — India-U.S., India-France,
India-Germany, India-U.K. These are all destinations where demand for travel
has not diminished. Final decisions pursuant to negotiations are expected to be
taken soon”. India is likely to enter into bilateral agreements with the U.S.,
U.K., France and Germany to restart international air travel. The government is
discussing a template known as “travel bubble”, which permits relatively
unrestricted and risk-free travel between two countries positioned
similarly vis a vis the spread of Covid19.[2]
As
soon as international travel is resumed with U.S., the restriction laid on
Vande Bharat mission would no longer hold validity as commercial international
travel would be in accordance to the agreement in relation to the ‘travel
bubble’ template signed with U.S. So efforts should be made to reopen international
travel so as soon as possible.
® Conclusion:
The
world is facing a difficult time amidst the Covid19 pandemic and there is a
need to stabilize the world economy as soon as possible. The United Nations
chief has correctly criticised the total lack of international coordination in
tackling the Covid19 pandemic and warned that the go-it-alone policy
of many countries will not defeat the coronavirus. I agree with the view of Mr.
Guterres that it’s important to use that fact to make countries understand that
bringing them together, putting together their capacities, not only in fighting
the pandemic in a coordinated way but in working together to have the
treatments, testing mechanisms, the vaccines accessible to everybody, that this
is the way we defeat the pandemic.[3]
The world needs to join forces and fight this pandemic together. India and U.S.
needs to solve its differences relating to international travel and focus on
resuming commercial international flights subject to conditions and
restrictions to prevent the spread of the virus.
[1] ‘US imposes restrictions on
Vande Bharat Mission repatriation flights’, 23rd June 2020,
Hindustan Times
[2] India plans international
flights, The Hindu, 24th June 2020
https://www.thehindu.com/news/national/india-plans-international-flights/article31901009.ece
[3] UN chief criticises lack of
global cooperation on tackling COVID-19, The Hindu, 24th June 2020 https://www.thehindu.com/news/international/un-chief-criticises-lack-of-global-cooperation-on-tackling- covid-19/article31902717.ece
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