711.5627/78
The Secretary of State to the Minister in the Netherlands (Emmet)
Sir: The Department has received your despatch No. 216 of May 13, 1935, in further relation to the proposed air navigation arrangement between the United States and the Netherlands.
You state that the Netherland authorities accept the amended Article 1 proposed by the Government of the United States, which excepts certain territories of this country from the scope of the arrangement, and that they also accept the new Article 16 proposed by the Government of the United States, which provides that either Government may extend the arrangement to territories under its jurisdiction not covered by the arrangement when it comes into force. You state further [Page 595] that the Netherland authorities would greatly have preferred an arrangement in the form of the pending draft, which applies to all territories and possessions of the two countries, and it is understood that you would like to be able to give the Netherland authorities assurances that the Government of the United States will pursue a liberal policy in the matter of extending the revised arrangement to territories under its jurisdiction not covered by the agreement when it comes into force.
Your attention is invited to the statements in instructions Nos. 3821 and 9622 of June 28, 1934, and January 9, 1935, respectively, that the Department was unable to give assurances that the arrangement would be applied to additional territories of the United States. For your confidential information it may be remarked that in pursuing a restrictive policy in the matter of applying air navigation arrangements to territories of the United States, the Department is doing so at the request of certain Departments of this Government which, this Department has reason to believe, would be opposed to giving the Netherland authorities the assurances suggested in your despatch.
In its note of May 10, 1935, the Ministry of Foreign Affairs refers to prohibited areas as provided for in Article 4 of the proposed air navigation arrangement and recalls the following statement made by the Department in the course of negotiations with the Netherland Government:
“As a matter of practice it has not been the policy of the aviation authorities of this Government to discriminate against foreign aircraft in favor of American aircraft with respect to flights over prohibited areas. Very few prohibited areas have been established by this Government.”
The Ministry of Foreign Affairs states that having this declaration in mind the Government of the Queen is under the impression that in case the Government of the United States does not grant permission to Netherland aircraft to fly over Guam and the Aleutian Islands, a similar measure will be taken with respect to American aircraft. In view of the fact that the proposed air navigation arrangement will not be applicable to Guam, the Netherland authorities obviously will not be in a position to assert any rights with respect to flights over that island, and the Government of the United States will necessarily reserve freedom of action with respect to flights over this territory. So far as concerns any other prohibited areas that may be in territories of the United States to which the arrangement will apply, attention is invited to the first paragraph of Article 4 of the proposed air navigation arrangement, which paragraph reads: [Page 596]
“Each of the Parties to this arrangement reserves the right to forbid flights over certain areas of its territories, which are or may hereafter be designated as prohibited areas.”
While the Department is not aware of any intention on the part of the authorities of this Government to adopt a policy of general discrimination against foreign aircraft with respect to the right of flight over prohibited areas, it is nevertheless understood that the provision in regard to prohibited areas in the proposed arrangement as quoted above leaves each country free to adopt such regulations in the future with regard to such areas as it may deem necessary. In the course of the negotiations with the Netherland Government the Department proposed the adoption of a provision regarding prohibited areas similar to one appearing in several aviation agreements to which the United States is a party, in which the undertaking of each party to make no distinction between its own aircraft and the aircraft of the other party with regard to the right of flight over prohibited areas applies only to aircraft of both parties engaged in international commerce. This proposal was not acceptable to the Netherland authorities who felt that its adoption might result in undue discrimination against Netherland aircraft, and they preferred a provision similar to one in air navigation agreements concluded by a number of European countries, in which there is an undertaking by each party to make no distinction whatever between its own aircraft and the aircraft of the other party with regard to the right to fly over prohibited areas.
It was made clear to the Netherland authorities in the course of negotiations for an air navigation arrangement that while as a matter of practice it had not been the policy of the aviation authorities in the United States to discriminate against foreign aircraft in the matter of flights over prohibited areas, this Government did not desire to go so far as to agree to the incorporation of a provision in air navigation agreements in which there would be an outright undertaking to accord to foreign aircraft the same treatment that may be accorded to American aircraft with respect to the right of flight over such areas. In view of the difficulty of reaching an agreement with the Netherland Government on the question of prohibited areas it was suggested by this Department that the two governments adopt a provision in which there would merely be a recognition of the right of each Government to forbid flights over certain areas. The Netherland Government accepted this provision which now appears in Article 4 of the pending draft arrangement.
It is of interest to note that a recent amendment23 to Article 3 of the International Convention for the Regulation of Aerial Navigation, [Page 597] signed at Paris on October 13, 1919,24 to which the Netherland Government is a party, provides with regard to prohibited areas that each contracting State may, as an exceptional measure and in the interest of public safety, authorize flights over such areas by its national aircraft. The United States signed but has not ratified the Paris Convention.
The question of the right of flight over prohibited areas should also be considered in connection with the provisions of Article 2 of the proposed air navigation arrangement between the United States and the Netherlands. It is stipulated in the second paragraph of that article that the establishment and operation of regular air routes by an air transport company of one of the parties within or across the territory of the other party shall be subject to the prior consent of such other party. Although in the course of the negotiations for the proposed arrangement this Government agreed to incorporate in Article 2 a declaration in favor of the freedom of international air navigation, to the effect that consent by either party for operations over its territories by air transport companies of the other party may not be refused on unreasonable or arbitrary grounds, it was made clear in the Department’s instruction No. 104 of March 7, 1932,25 to your Legation that this Government was not in favor of incorporating in Article 2 any provision that would appear to make it practically mandatory to permit the establishment of regular air transport lines.
The Department considers it to be important that you make known to the Netherland authorities the position of this Government as stated herein concerning prohibited areas as authorized in the proposed air navigation arrangement and referred to in the note of May 10, 1935, from the Ministry of Foreign Affairs.
Paragraphs two, three and four of the pending draft air navigation arrangement are as follows:
(2) It is, however, agreed that the establishment and operation of regular air routes by an air transport company of one of the Parties within the territory of the other Party or across the said territory, with or without intermediary landing, shall be subject to the prior consent of the other Party given on condition of reciprocity and at the request of the Party whose nationality the air transport company possesses.
(3) Each Party to this arrangement agrees that its consent for operations over its territory by air transport companies of the other Party may not be refused on unreasonable or arbitrary grounds. The consent can be made subject to special regulations relating to aerial safety and public order.
(4) Each of the Parties to this arrangement may reserve to its own aircraft, air commerce between any two points neither of which is in [Page 598] a foreign country. Each Party may also reserve to its own aircraft pleasure or touring flights starting from an aerodrome in its territory and returning to the same aerodrome, for which a transportation charge would be made.
Nevertheless the aircraft of either Party may proceed from any aerodrome in the territory of the other Party which they are entitled to use to any other such aerodrome either for the purpose of landing the whole or part of their cargoes or passengers or of taking on board the whole or part of their cargoes or passengers, provided that such cargoes are covered by through bills of lading and such passengers hold through tickets issued respectively for a journey whose starting place and destination both are not points between which air commerce has been duly so reserved, and such aircraft, while proceeding as aforesaid, from one aerodrome to another, shall, notwithstanding that such aerodromes are points between which air commerce has been duly reserved, enjoy all the privileges of this arrangement.
The Department desires to have you propose that paragraph three of Article 2 be omitted; that paragraph number four be renumbered three; and that the new paragraphs two and three read as follows:
(2) It is, however, agreed that the establishment and operation of regular air routes by an air transport company of one of the Parties within or across the territory of the other Party, with or without an intermediary landing, shall be subject to the prior consent of such other Party.
(3) Each of the Parties to this arrangement may reserve to its own aircraft, air commerce constituting (a) navigation of aircraft from one place to another both within the same or different territories under its jurisdiction, in the conduct or in furtherance of a business, (b) pleasure or touring flights starting from an aerodrome in any of these territories and returning to the same aerodrome for which a transportation charge would be made, and (c) the commercial transport of passengers or goods between any two points both within such territories.
Nevertheless the aircraft of either Party may proceed from any aerodrome in the territory of the other Party which they are entitled to use to any other such aerodrome either for the purpose of landing the whole or part of their cargoes or passengers or of taking on board the whole or part of their cargoes or passengers, provided that such cargoes are covered by through bills of lading and such passengers hold through tickets issued respectively for a journey whose starting place and destination both are not points between which air commerce has been so duly reserved, and such aircraft, while proceeding as aforesaid, from one aerodrome to another, shall, notwithstanding that such aerodromes are points between which air commerce has been duly reserved, enjoy all the privileges of this arrangement.
So far as the second and third paragraphs of Article 2 of the pending draft are concerned, it is believed that the better plan is merely to provide that the establishment and operation of a regular air route over the territory of either party shall be subject to its prior consent. When application is made to the government of any country for permission [Page 599] to establish a regular air transport line in its territory, that government is, of course, free to give consideration to the conditions under which it is disposed to permit the establishment of the line. It is now believed that to include in the proposed arrangement a statement of the conditions under which consent for the establishment of such lines may be given or refused might result in difficulties of interpretation. For instance, with respect to the third paragraph of Article 2 of the pending draft, it might be difficult to determine what would constitute an unreasonable or arbitrary refusal to permit the establishment of a regular air transport line in the territory of either party.
The proposed amendment of the fourth paragraph of Article 2 of the pending draft is designed to make it clear as to what constitutes air commerce within the territories of either party that may be reserved to national aircraft. In proposing an amendment of the fourth paragraph the Department has been guided by the definition of air commerce as reserved to American aircraft in the Air Commerce Act of the United States of America, approved May 20, 1926.26 This Government could not agree to permit any commercial operations by foreign aircraft in American territory forbidden by the terms of the Air Commerce Act.
In proposing a revision of the provisions of Article 2 of the pending draft air navigation arrangement the Department feels that it should offer an explanation as to its reason for having agreed in the course of the negotiations to the provision relating to the establishment of air routes incorporated in the third paragraph of Article 2 of the pending draft. The Department refers to the attitude heretofore assumed by representatives of this Government in the matter of the establishment of international air transport lines, and invites attention in this connection to the position taken on this question by the American delegation at the Extraordinary Session of the International Commission for Air Navigation held at Paris in June, 1929, for the purpose of considering amendments to the International Convention for the Regulation of Aerial Navigation, signed at Paris on October 13, 1919. The third paragraph of Article 15 of the Convention as adopted at Paris on October 13, 1919, read:
“The establishment of international airways shall be subject to the consent of the States flown over.”
This paragraph was considered by the delegates to the conference held in Paris in June, 1929. Prior to the holding of this conference a marked tendency had developed among the European powers to make the establishment of international airways dependent upon the consent of the State in which the air line was to operate. Certain [Page 600] delegations at the conference in Paris in June, 1929, were desirous of permitting international air navigation lines to develop freely, while certain others were in favor of making the existence of such lines dependent upon the authorization of the States flown over. The choice of these two principles having been put to a vote, the result was that twenty-seven delegations considered that none of these lines should be established without the authorization of the States over whose territory the lines would operate. The delegations of the United States of America, Great Britain, the Netherlands, and Sweden voted in favor of the principle of freedom in the development of international air lines. These four delegations having declared that they would not oppose the adoption of a text which would be more precise than the text of the third paragraph of Article 15 of the Paris Convention, but not prevent the application of the principle of freedom in the establishment of air transport lines, the conference unanimously approved the following text to replace the then existing provisions of the third paragraph of Article 15 of the Paris Convention:
“Every contracting State may make conditional on its prior authorization the establishment of international airways and the creation and operation of regular international air navigation lines, with or without landing, on its territory.”
This provision is now a part of the Paris Convention.
A proposal was made at the Paris conference of 1929 to add the following provision to the new text which the conference recommended be substituted for the third paragraph of Article 15 of the Paris Convention of 1919:
“Such authorization may be refused only on reasonable grounds.”
Nineteen delegations voted against this additional provision. Eleven delegations, including those of the United States and the Netherlands, voted in favor of it. The final resolutions adopted by the delegates to the Extraordinary Session of the International Commission for Air Navigaton held in Paris in June, 1929, provided that this Commission should recommend to the countries which are parties to the Paris Convention of 1919 that authorizations to establish air transport lines over their territories be not refused except on reasonable grounds. As stated above, the Paris Convention of 1919 was signed on behalf of the United States but has not been ratified by this Government which, nevertheless, accepted an invitation to participate in the sessions of the International Commission for Air Navigation held in Paris in June, 1929.
Having in view the attitude of the American and Netherland delegations at the conference in Paris in June 1929, this Government submitted [Page 601] to the Netherland authorities a proposal that Article 2 of the proposed air navigation arrangement include a declaration of principle in favor of the freedom of international air navigation and such a declaration to the effect that there would be no arbitrary or unreasonable refusal by either party to permit the establishment of air transport lines on its territory was included in paragraph three of Article 2 of the pending draft arrangement. This provision was desired by this Government in preference to one proposed by the Netherland authorities in which it was provided in effect that a refusal on the part of either country to permit the establishment of a regular air route over its territory by an air transport enterprise of the other country might be referred to a court of arbitration.
So far as the Department has observed there has been no tendency to depart from the principle that the establishment of a regular air route over the territory of any country shall be subject to its prior consent, and this may now be regarded as an established principle in the negotiation of international air navigation agreements. The new paragraph two of Article 2 of the proposed air navigation arrangement, relating to the establishment of regular air transport lines, conforms substantially to the provisions on the same subject in the air navigation agreements concluded between the European countries, except that a number of these countries have included an additional provision that the establishment of regular air routes over their territories shall be made the subject of a special agreement relating specifically to this subject. The Government of the United States has never concluded an agreement relating specifically to the operation of regular air transport lines, and does not consider that in concluding air navigation arrangements such as the one under negotiation with the Netherlands it is necessary to make reference to the procedure that would be followed in the event that either party should authorize the establishment in its territory of an air transport line by an air transport company of the other party.
It is not now believed to be necessary or advisable to include in any air navigation arrangement to which the United States becomes a party any provisions regarding the establishment of air transport lines that would constitute a departure from the principle generally observed in international practice that the establishment and operation of regular air routes shall be subject to the consent of the country over which the lines would operate, and it is hoped that the Netherland authorities will accept this view of the matter.
In view of your statement that the Netherland authorities would prefer an arrangement along the lines of the pending draft, it is realized that you may be somewhat embarrassed in presenting a further proposal for its amendment However the negotiations have extended [Page 602] over a long period and it is not unreasonable for either Government to take the position that the reasons for the original proposals may not apply in all particulars to present conditions. The Department greatly appreciates the efforts you have already made to reach an agreement with the Netherland authorities and hopes that you will be successful in further negotiations with them.
There is enclosed a copy, in duplicate, of Article 228 of the proposed air navigation arrangement prepared in accordance with the proposals in this instruction. You may deliver the original to the Netherland Government, retaining the carbon copy for your files.
Very truly yours,
- Foreign Relations, 1934, vol. ii, p. 636.↩
- Not printed.↩
- See Foreign Relations, 1929, vol. i, pp. 489 ff.↩
- Foreign Relations, 1926, vol. i, p. 152.↩
- Not printed.↩
- 44 Stat. 568.↩
- Not printed.↩