Papers relating to the foreign relations of the United States, 1929, Volume I

579.6D1/293

The Secretary of State to President Hoover

Washington, April 25, 1929.

My Dear Mr. President: I have the honor to inform you that the Department has received a communication dated February 15, 1929, from the Secretary General of the International Commission for Air Navigation in Paris, inviting this Government to take part in an extraordinary session of the Commission to be held in Paris early in June, 1929, for the purpose of considering such changes in the text of the International Convention relating to the Regulation of Air Navigation, of October 13, 1919, as may facilitate the adherence of states which are not parties to the Convention.

Accompanying the communication from the Secretary General is a memorandum entitled “Memorandum by the Secretary General on the Origin of the Air Convention of October 13, 1919, and its Progressive Extension from 1922 to 1928 and the Problem of its Revision,” together with an article by Doctor Wegerdt, Ministerial Counselor of the Ministry of Communications of the Reich,³ in which he states further the reasons why the German Government has not adhered to the Convention in its present form. Doctor Wegerdt also discusses the development of an aerial law, and makes reference to the Paris Convention of October 13, 1929 [1919], the Ibero–American Convention on Air Navigation concluded on November 1, 1926,⁴ and the Convention on Commercial Aviation adopted at the Sixth International Conference of American States, held at Habana, Cuba, from January 16 to February 20, 1928.⁵ The Secretary General’s communication of February 15 further indicates that his memorandum and Doctor Wegerdt’s article will afford the basis of discussion at the June meeting of the International Commission for Air Navigation.

The International Convention Relating to the Regulation of Air Navigation was signed on behalf of this Government, with reservations, on May 1 [31], 1920. On October 27, 1922, the International Commission for Air Navigation approved a protocol of amendment of Article 5 of the Convention, and on June 30, 1923, the Commission approved a protocol of amendment of Article 34. The amendments came into force on December 14, 1926, after ratification by the states which were parties to the Convention at the time of the approval of the protocols by the Commission.

The International Convention Relating to the Regulation of Air Navigation was transmitted by the President to the Senate on June 16, 1926,⁶ with a report from the Secretary of State⁷ recommending that the Senate be requested to take suitable action advising and consenting to the ratification of the Convention with Articles 5 and 34 amended as recommended by the International Commission for Air Navigation in the protocols of amendment approved by the Commission on October 27, 1922, and June 30, 1923, respectively, on the following conditions and understandings.

• “1. The United States expressly reserves, with regard to article 3, the right to permit its private aircraft to fly over areas over which private aircraft of other contracting States may be forbidden to fly by the laws of the United States, any provision of said article 3 to the contrary notwithstanding.
• “2. The United States reserves the right to enter into special treaties, conventions, and agreements regarding aerial navigation with any country in the Western Hemisphere if such country be not a party to this convention, without conforming to the provisions of article 5 of the Convention.
• “3. The United States reserves complete freedom of action as to customs matters and does not consider itself bound by the provisions of Annex H or any articles of the convention affecting the enforcement of its customs laws.
• “4. Ratification of the present convention shall not be taken to involve any legal relation on the part of the United States to the League of Nations or the assumption of any obligation by the United States under the Covenant of the League of Nations constituting Part I of the treaty of Versailles.⁸
• “5. The United States reserves its freedom of action under article 37 with respect to the submission to the Permanent Court of International Justice of any disagreement that may arise between the United States and any other State regarding the interpretation of the convention.”

The Convention is still pending in the Senate, action on it having been suspended at the request of this Department which acted at the instigation of the Department of Commerce. This Government is not a signatory of the Ibero-American Convention on Air Navigation concluded November 1, 1926. The Convention on Commercial Aviation adopted at the Sixth International Conference of American States, though signed by the delegates of the United States, has not yet been sent to the Senate for approval.

The proposed extraordinary session of the International Commission for Air Navigation which this Government is invited to attend will, it appears probable, consider the Convention of 1919, as amended, in its entirety. The result may be the adoption of such amendments as to constitute a thorough-going revision. The opportunity is presented, accordingly, to modify such provisions of the Convention as may have been in conflict with other conventions dealing with air navigation or with national laws and regulations on the subject. The possibility of reconciling these conflicts and of laying a firmer foundation for a code of air law that may commend itself for universal adoption is of practical interest to the United States. It appears that the Conference will be attended by representatives of all the nations party to the International Air Navigation Convention of 1919, as well as by Germany and other nations which have not as yet adhered to that Convention, and, accordingly, in view of the rapidly increasing development of aviation activities in general and of American aviation interests in particular, I am of the opinion that it would be appropriate and advantageous for the United States to participate in this Conference.

I have consulted the Departments of Commerce, War, Navy, Post Office, Treasury and Labor, and the National Advisory Committee for Aeronautics, all of which have concurred in the view that recommendation should be made to you favoring the acceptance by the United States of the invitation to attend this Conference and suggesting the appointment of official delegates for this purpose.

Accordingly, I have the honor to making formal recommendation that the United States accept this invitation and that a delegation be sent to represent the United States at this Conference to be composed as follows:

Delegates:

• William P. MacCracken, Junior, Assistant Secretary, Department of Commerce, Chairman;
• Joseph R. Baker, Assistant to the Solicitor, Department of State;

Technical Advisors:

• John J. Ide, European Representative of the National Advisory Committee for Aeronautics;
• Major Barton K. Yount, Assistant Military Attaché, American Embassy, Paris;
• Lieutenant-Commander William D. Thomas, Assistant Naval Attaché, American Embassy, Paris.

It is possible that I shall later recommend that an additional delegate be added.⁹

In the event that this recommendation meets with your approval, appropriate instructions for the guidance of the delegation will be prepared in the Department. Such instructions would be based upon principles embodied in the Pan-American Air Convention of 1928 and would authorize the American delegation to use its influence with a view to effecting the amendment of the International Air Navigation Convention of 1919 in a manner which would make it acceptable to all the conferring governments and which would at the same time accord adequate recognition to American rights and interests in international air navigation.

If you should approve of American participation in this Conference upon the basis set forth above, the question of meeting the expenses of the delegation would then arise. It is estimated that the cost of participation would not exceed $5,000 as there will be no expenses in connection with the attendance of the technical advisors. One of two courses would appear to be open with a view to providing this amount. Normally the appropriate course to follow would be to ask the Congress for an appropriation to cover the cost of participation in the Conference. The probable intention of the Congress to consider only a limited number of questions at the present Special Session makes it doubtful whether favorable Congressional action could be had before June 4, next, the date on which the Conference is expected to meet. The other course would be to meet the expenses of the delegation from the appropriation for Emergencies Arising in the Diplomatic and Consular Service, in which there is an unobligated balance sufficient for the purpose. In connection with this suggestion, however, there are certain other facts which appear to me to require your consideration. The Deficiency Appropriation Act approved March 4, 1913,¹⁰ contained the following provision:

“Hereafter the Executive shall not extend or accept any invitation to participate in any international congress, conference, or like event, without first having specific authority of law to do so.”

The question of the effect of the provision upon the prerogatives of the President in the conduct of the foreign relations was discussed between President Wilson and Secretary Lansing in 1917, and on February 20, 1917, President Wilson addressed a letter to Mr. Lansing in which he made the following statement:¹¹

“This is an utterly futile provision. The Congress has no power to limit the Executive in this way. It can, of course, refuse the appropriations necessary to pay for this Government’s part in a conference but that is the most it can do.

“I do not mean that I intend to join a conference notwithstanding this futile provision. I mean only that such a provision is entirely without constitutional validity and that we are free to consider the matter on its merits.”

The Department has consistently acted in accordance with this view, and delegates have been sent to international conferences from time to time without prior authorization of Congress, notwithstanding the provision of law which I have quoted. I concur in the position taken by President Wilson to the effect that the provision under the Appropriation Act of March 4, 1913, was an encroachment upon the prerogatives of the Executive. I think the present practice, however, of having the expense of such conferences fall constantly upon the Emergency Appropriation is not desirable and that at an appropriate season it may be well to take up with Congress the provision of some other regular appropriation for the expenses of the scientific and technical conferences to which this government is being constantly invited, leaving the emergency appropriation for its original purposes. In the present situation however, inasmuch as I understand that you deem it desirable that the matters taken up by the present Special Session of Congress be restricted in scope as much as possible, I am willing to recommend that the expenses of the delegates of this conference be taken from the Emergency Appropriation. Upon receiving notification of your wishes in respect to the approval of these delegates and of my other recommendations herein I shall take appropriate action.

I am [etc.]

Henry L. Stimson

3. Neither printed.
4. Published in Gaceta de Madrid, April 23, 1927, p. 562.
5. Foreign Relations, 1928, vol. i, p. 585.
6. See Foreign Relations, 1926, vol. i, p. 152.
7. Ibid., p. 145.
8. Malloy, Treaties, 1910–1923, vol. iii, p. 3329.
9. The delegation as finally determined was identical with the above list.
10. 37 Stat. 912, 913.
11. The two paragraphs quoted constitute the entire text of the letter.