The Secretary of State to the Chairman of the American Delegation (MacCracken)12

Sir: With respect to your designation as a delegate to represent the United States at an extraordinary session of the International Commission [Page 495] for Air Navigation to be held in Paris early in June, 1929, I may say that it is my understanding that the purpose of this meeting is to consider such changes in the text of the International Convention relative to the Regulation of Air Navigation of October 13, 1919, as may facilitate the adherence of States which are not parties to the Convention.

As you are aware, this convention was signed with certain reservations by representatives of the United States and was transmitted by the President to the Senate on June 16, 1926, with a report from the Secretary of State13 containing recommendations 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 October 27, 1922, and June 30, 1923, respectively, on the following conditions and understandings:

[Here follows the text of the reservations quoted in the letter to the President, printed on page 491.]

The Department considers that the foregoing conditions and understandings should still be adhered to by the United States and that an effort should be made by you to effect such changes in the text of the convention as may appear practicable in order to bring it into conformity thereto.

You are also aware that the convention in question is still pending before the Senate and that action thereon has been suspended pursuant to a recommendation of this Department made February 20, 1929, and based upon the statement that the Department of Commerce felt that it would be inadvisable for the Senate to take action on the convention before that department had had an opportunity to try out its own air regulations made under authority of the Air Commerce Act of 1926.14

In this relation it may be pointed out that the air regulations of the United States are much less complex and exhaustive than those included in the annexes to the international convention in question and that it may be doubted whether some of the latter regulations would be suitable to conditions existing on this continent. Therefore you will bear in mind that the simplification of the regulations contained in these annexes and their change in other respects so as to bring them into closer harmony with the air regulations of the United States would assist in rendering it advisable for this Government to ratify that convention.

In considering changes in the convention referred to you should bear in mind the provisions of the Pan American Air Convention of [Page 496] 1928 which was signed by representatives of this Government but has not yet been sent to the Senate. The provisions of the latter convention are in general satisfactory to this Department, and it would therefore be advisable for you to endeavor to bring about such changes in the first-named convention as will conform to the provisions of the Pan American Convention.

However, you will observe that the last paragraph of Article 30 of the Pan American Convention provides that “nothing contained in this convention shall affect the rights and obligations established by existing treaties”. This was intended to cover the peculiar relations existing between the United States and Panama and it may perhaps be rightly held to cover such situation as regards air navigation by reason of the provisions of the treaty of 1903 between the two countries15 and the inferences and implications to be drawn therefrom. Nevertheless that treaty does not specifically deal with the question of air navigation and therefore it was deemed advisable to insert in the convention between the two countries signed June 28, 1926,16 the following provisions:

Article X

“All aircraft and aviation centers in the Republic of Panama other than those pertaining to the defensive forces of the Canal and those owned and officially operated by the Government of Panama shall be subject to inspection by both the United States and the Panaman Governments to insure compliance with such rules and regulations as may hereafter be agreed upon.

“Aircraft owned and operated by the nationals of the United States or Panama may operate in the Republic of Panama, provided both the aircraft and the operators thereof hold a joint United States-Panama license issued by a board composed of representatives of the Governments of the United States and Panama and otherwise to conform to restrictions recommended in the Convention for the Regulation of Aerial Navigation signed at Paris, October 13, 1919, or such other restrictions as the two countries may from time to time jointly prescribe.

“All aircraft other than those pertaining to the defensive forces of the Canal and those owned and officially operated by the Government of Panama must follow routes prescribed jointly by the United States and Panama in flying over the Republic of Panama and must land at airports or airdromes designated jointly by the United States and Panama and must otherwise conform to such restrictions as the two countries may from time to time jointly prescribe.

“In applying and enforcing the rules and regulations regarding aircraft and aviation centers the two Governments shall regard as the deciding factor the safety of the Panama Canal.

[Page 497]

“The Republic of Panama agrees not to permit flying in Panaman territory over areas near the defenses of the Canal except in agreement with the United States.

“In time of war or threatened hostilities the provisions of Article XI of this Treaty shall be applied.”

The last-mentioned convention has not yet come into force and consequently it is believed that in addition to endeavoring to have incorporated in the international convention a provision similar to the one above quoted as contained in the Pan American Convention you should also try to have this provision supplemented by a clause reading somewhat as follows:

“or such rights and obligations as may later be established through the substantial coming into force of provisions already agreed upon by representatives of two or more countries and embodied in signed treaties.”

It is needless to remind you that for the purposes of the maintenance and protection of the Panama Canal this Government attaches great importance to the matter of the regulation of the operation of aircraft in the Republic of Panama. In fact, this Government would not consider it advisable to enter into treaty arrangements which might tend to diminish its rights either inchoate or in being regarding this matter.

The Department has been informed by the Secretary General of the International Commission for Air Navigation that the forthcoming conference will be assembled for the purpose of examining proposals of modifications in the convention made by Dr. Wegerdt, Ministerial Counselor of the Ministry of Communications of the German Reich, and approved by the German Government. Therefore it seems advisable to consider these proposals in detail and they are taken up below with reference to the particular articles of the convention to which they respectively relate.

Article 1

It is provided in Article 1 of the convention that for the purposes of the convention the territory of the state shall be understood as including … “the colonies”.

The German suggestion is that the word “colonies” might be defined more clearly.

This Government would have no objection to an appropriate definition of “colonies” which would make more clear the meaning of that word.

The German proposals point out that the convention does not deal with flight over Straits and that this question might perhaps be dealt [Page 498] with in accordance with the Treaty of Lausanne of July 24, 1923,17 relating to “straits” in the sense of freedom of the air space over straits.

The treaty referred to deals with the Strait of Dardanelles, the Sea of Marmora and the Bosporus.

Before consenting to an agreement with respect to straits this Government would desire to know exactly what bodies of water are understood to be comprehended under the term “straits” and the relation of such agreement to the present provision of Article 1 of the convention that each state has complete and exclusive sovereignty over its territorial waters.

The German proposals suggest that it would perhaps be advisable, as did the Inter-American Air Convention, to provide that the convention under consideration applies to private aircraft only. On the other hand the German proposals recognize that State aircraft will have to observe the same regulations concerning navigation, etc., as to private aircraft.

The Department would have no objection to the amendment of the convention so as to make it applicable to private aircraft only, but does not consider that this matter is of great importance.

Article 3

It is provided in Article 3 of the convention that each state is entitled to establish certain prohibited areas as against aircraft of the other contracting states “subject to no distinction being made in this respect between its private aircraft and those of the other states”.

The German suggestion is that it be considered whether this article should be supplemented so as to provide that national aircraft employed for special services in the service of the state should be permitted to fly over such areas and it is asked whether this principle is expressed in the provision of the Inter-American Air Convention restricting the equal treatment to be accorded to national and foreign aircraft with reference to prohibited zones, to aircraft engaged in international commercial air traffic.

The Department is of the opinion that such a provision might well be incorporated in the convention and considers that the provision of the Inter-American Air Convention referred to expresses such a principle.

The German proposals further point out that the convention does not provide for the right of the contracting parties in exceptional circumstances temporarily to restrict or prohibit air traffic above their territory wholly or in part and with immediate effect, and that [Page 499] such provision seems necessary as otherwise traffic by foreign aircraft can not be prohibited in times of internal unrest.

The Department is inclined to the opinion that it might be well to incorporate such a provision in the convention.

Article 5

With respect to the provision of Article 5 of the convention that no contracting state shall, except by special and temporary authorization, permit the flight above its territory of an aircraft which does not possess the nationality of a contracting state unless it has concluded a special convention with the state in which the aircraft is registered, the German proposals point out that there is a “certain justification” for such provisions if they are to be understood as representing an incentive to adhere to the convention, but that otherwise such provisions should be deleted as a “contracting state should not be restricted from determining its relations with non-contracting states as it may think necessary” and that this article “contains an obligation not customary in international agreements”.

It would seem that this Government might well support heartily a proposal for the deletion of the provision in question. In a sense this provision probably represents an incentive to adhere to the convention, but conceivably it may also represent an incentive to refrain from adhering in order to retain freedom of action. Deletion of the provisions in question would apparently be beneficial to the United States in its relations with Latin American States, few of which now adhere to the convention, and particularly with Panama in the event of nonadherence on the part either of the United States or Panama, but not of both. Deletion would also apparently remove the necessity of a reservation by the United States to this article which otherwise, as above indicated, it would be obliged to make.

Article 6

In connection with Article 6 the German proposals raise the question whether the word “nationality” can properly be used in connection with an aircraft or whether this term should be reserved for persons alone.

No reason is perceived why this question should be raised. We speak of the “nationality” of a vessel and it would seem entirely appropriate to speak of the nationality of an aircraft. Furthermore, it might be difficult to conceive of an appropriate substitute for this word.

[Page 500]

Article 7, Paragraph 1

Article 7 of the convention requires that no aircraft shall be entered on the registry of one of the contracting states unless it belongs wholly to the nationals of such state.

The German suggestion is that this article be amended so as to provide that the owner of an aircraft must be domiciled in the country in which the aircraft is to be registered.

In support of this proposal it is argued that with the article as it stands it would be impossible for a foreigner living abroad to keep an aircraft of which he is the registered owner in his country of residence, as he does not possess the nationality of that country and that consequently if he wishes to fly his own aircraft he can only do so with an aircraft registered in his home country, which means that in case of damage to any essential part of the aircraft whereby its airworthiness is affected a new certificate issued in his own country is required by the regulations.

Article 7, Paragraph 2

This paragraph provides that no incorporated company can be registered as the owner of an aircraft unless it possesses the nationality of the state in which the aircraft is registered and unless the president or chairman of the company and at least two-thirds of the directors possess such nationality.

With regard to these provisions the German proposals suggest that they be amended by providing that aircraft may only be entered in the register of a contracting state if the owner is domiciled in that state irrespective of whether the owner is an individual or a company. In this relation the German proposals refer to Article 8 of the Inter-American Air Convention which provides that the registration of aircraft shall be governed by the laws and special regulations of each contracting state (similar provisions being contained in Article 8 of the Pan American Convention), but state that in order to prevent the continued validity of the principle derived from the present provisions of Article 7, paragraph 2 of the International Convention, now adopted in the municipal legislation of most countries, it would be necessary to insert in the article a clause forbidding the contracting states to make registration dependent upon the nationality of the owner.

With relation to the German proposals for the amendment of paragraphs 1 and 2 of Article 7 it may be observed that Section 3 of the Air Commerce Act of 1926 provides that no aircraft shall be eligible for registration unless it is a civil aircraft owned by a citizen of the United States and not registered under the laws of any foreign country or unless it is a public aircraft of the Federal Government [Page 501] or of a state, territory, or possession or of a political subdivision thereof. In view of this provision of the laws of the United States, it is believed that you should not favor the German proposals for amendment of Article 7. However, it would appear to be practicable to arrange that in case of damage to an aircraft, a certificate as to its airworthiness, after repairs, could be issued in the country where the aircraft is situated. Moreover, it is believed that the provision of Article 8 of the Pan American Convention that the registration of aircraft shall be made in accordance with the laws of each State is preferable to either the German proposal or the present article of the International Convention, and that its adoption would render the Convention much more acceptable to the States of the Western Hemisphere.

Article 9

Article 9 of the convention provides for the monthly exchange among the contracting states of copies of registrations and cancellations thereof.

The German proposals query whether such requirement is really necessary in view of the considerable administrative labor involved.

With reference to this proposal it would seem that it might perhaps be advisable to provide for such exchange of information at longer intervals, or that the information merely concern[s] planes to be used in international service and licensed for that purpose.

Article 13

This article provides that airworthiness certificates must be recognized as valid by the other contracting states.

The German proposal is that the “expansion of air navigation would be helped if it were laid down that airworthiness certificates were to be recognized not only in the case of aircraft entering the country under a foreign nationality mark, but also in the case of imported aircraft, unless the national legislation sets higher standards of airworthiness than the minimum requirements of the ‘international convention’”.

The Pan American Convention provides that the contracting states reserve the right to refuse to recognize as valid the certificates of airworthiness of any foreign aircraft where inspection shows the aircraft is not reasonably airworthy in accordance with normal requirements of the inspecting state. (Article 12).

Section 3 (b) of the Air Commerce Act of 1926 gives wide regulatory powers to the Secretary of Commerce with respect to the landing of foreign aircraft in the United States as to their airworthiness.

[Page 502]

It would seem that the United States might agree to the German suggestion. If this suggestion were adopted then should the minimum requirements of the Commission for Air Navigation not be up to the standards prescribed by the Secretary of Commerce, the United States would not be obligated to recognize airworthiness certificates issued by other states.

Article 15, Paragraph 3

This paragraph provides that “the establishment of international airways shall be subject to the consent of the states flown over.”

The German suggestion respecting this paragraph is that its meaning should be made clear and it is stated that Germany would be glad if it could be modified so as to provide as do her own air agreements that “the institution and operation of regular air lines from one contracting state into or over the territory of another contracting state, with or without intermediary landing, is subject to a special agreement between the two states in question.” This paragraph of the Convention and the German proposal are contrary to the spirit of the Pan American Convention and seriously limit the declaration for freedom of innocent passage contained in Article 2 of the International Convention, and it would seem preferable to eliminate the paragraph in question.

Article 18

It is proposed in Article 18 of the convention that every aircraft of one contracting state passing through the territory of another contracting state, including landings and stoppages reasonably necessary for the purpose of such transit, shall be exempt from any seizure on the ground of infringement of patent, design or model, subject to the deposit of security.

The German suggestion is that in view of the rapid development of regular air traffic it is worth while considering, to avoid interruption, the advisability of applying to aircraft the principle recognized to a certain extent, of the immunity from seizure of railroad transport material.

In view of the system of government obtaining in the United States it would seem inadvisable for this Government to agree to the German suggestion and thus assume to bind the several states upon the matters indicated.

The German proposals further suggest that it might be desirable by a clause to be inserted after Article 18 to attempt to settle the question of conflicting laws but points out in this relation that the Pan American Convention is restricted in this matter to a provision that the regulations as to entering and leaving the country, customs, [Page 503] police and public health, are to be observed, and to a regulation that reparation for damages caused to persons or property in the subjacent state shall be governed by the laws of such state.

It is believed that this Government would desire to adhere to the principles thus laid down in the Pan American Convention and in this relation reference is made to the reservation recommended to the Senate of the United States on the subject of customs regulations as dealt with in the International Convention.

Article 19

This article provides that an aircraft engaged in international navigation shall be provided, if it carries freight, with a bill of lading.

The German proposals state that the expression bill of lading “which is a term of maritime law, should be replaced by ‘air consignment note’”.

While this is apparently purely a matter of nomenclature it may be said that the term “bill of lading” as known in the United States is not only a term of maritime law but also a term generally used in commercial transfers and that it would seem to be preferable for use in the convention to the term proposed by the Germans, which, so far as the Department is aware, is not used in this country.

Article 23

This article provides that the principles of maritime law apply in the absence of any agreement to the contrary in the case of salvage of aircraft wrecked at sea.

With regard to this the German proposals state that the regulation is burdensome to air navigation companies as they have to pay heavy salvage charges while the shipping companies find the maximum charge possible insufficient to cover the cost of salvage.

Respecting this proposal it may be said that it would seem to be difficult to remedy the situation said to exist so as to satisfy both interests involved and that perhaps the present provision is as fair to both parties as could well be arranged. In the absence of a definite proposal of substitution the Department is not prepared to sanction a change in the provisions of the convention on this point.

Article 31

This article provides that every aircraft commanded by a person in military service detailed for the purpose shall be deemed to be a military aircraft.

The German proposals state that the word detailed used in this article seems not altogether clear.

[Page 504]

The Department suggests that after the word “purpose” there be added the words “by authority of his Government.”

Article 32

This article provides that military aircraft especially authorized to fly over the territory of another contracting state shall enjoy in principle the privileges which are customarily accorded to foreign ships of war.

The German proposals question whether such privileges should be accorded and express a doubt whether the mere transference to air navigation of the rules and customs of maritime navigation is advisable.

In the absence of any concrete proposal for a change in the provisions of this article the Department is disposed to await a recommendation by the Delegation.

Article 34

Paragraph 1 of this article states that the International Commission for Air Navigation shall be “placed under the direction of the League of Nations.”

The German proposal on this point is that it might be advisable to make a clearer definition of the position of the Commission with regard to the League.

The Department is in accord with the German proposal, assuming that the clearer definition suggested would not indicate a greater subordination of the Commission to the League than is inferable from the present provisions. Bearing in mind the reservation before referred to on this point, as recommended by the President of the United States to the Senate, the Department would be glad to have the matter defined so as to render the Commission independent of the League.

Article 34 further provides that the Commission shall be composed of two representatives each from the United States, France, Italy, and Japan; one representative of Great Britain, and one from each of the British Dominions, and one representative from each of the other contracting states.

The German proposals state that if certain states have two representatives Germany would have to demand the same privilege, but would not object to an amendment providing that each state should have only one representative.

In this relation it is observed that Article 34 also provides that the expenses of the Commission shall be payable in the proportion of two shares each for the United States, British Empire, France, Italy and Japan and one share each for all the other states.

[Page 505]

Assuming that the last mentioned provision shall remain in force and that Germany shall be placed in the same category as the United States therein, the Department would have no objection to allotting to Germany two representatives on the Commission. In this relation, the inquiry suggests itself whether it would not be equitable, in view of the representation of the British Dominions on the Commission, for the British Empire to pay a larger share of the expenses.

On the other hand, if each state is to pay an equal share of the expenses, this Government would presumably have no objection to giving each state but one representative on the Commission.

With respect to other provisions of Article 34 the German proposals suggest that the sphere of activities of the International Air Commission be extended so as to include, so far as possible, “all questions of sovereignty which require international regulation so that no international conferences of representatives of the states need be held other than those of the Commission.”

If this suggestion is intended merely to enlarge the Commission’s activities in the line of the collection of information and the making of recommendations to the contracting states, the suggestion would appear meritorious. However, if it is designed to give the Commission further authority to promulgate rules and regulations of a wide scope which would be binding on the contracting states, it may be said that this Government could not well agree thereto.

In connection with his suggestion to enlarge the activities of the Commission the German expert suggests that consideration be given to the question of incorporating into the Commission the Committee of Air Law Experts instituted by the Paris International Private Air Law Conference of 1926 [1925]18 for the purpose of drafting conventions on international private air law.

This Government did not participate in the Private Air Law Conference of 1926 [1925]. However, no objection is perceived in principle to the suggested incorporation.

A further statement by the German expert with reference to Article 34 is that it would not be possible to ignore the question whether the International Commission is necessary at all and in this relation he calls attention to the fact that the Inter-American Convention makes no provision for such a body. However, he concludes that the Commission’s continued existence is highly desirable.

It seems very improbable that at the forthcoming conference called by the Commission there will be a serious effort made to amend the convention so as to abolish the Commission and this Government, [Page 506] as at present advised, is not prepared to support any such step. It is recognized that the Commission apparently serves a useful purpose and its continued existence would seem desirable as a clearinghouse for information, but not as a regulatory body.

Articles 41 and 42

These articles make a distinction with respect to adhesion to the convention between states which took part in the World War and those which did not, and the German expert states that this distinction should be eliminated, which would result in the amendment of Article 41 and the deletion of Article 42.

There would seem to be no good reason for failing to agree with the German view in this respect.

Annex H

The German expert suggests that this Annex might be amended so as to “do more justice to traffic requirements.”

Referring to the before-mentioned reservation as to this article recommended by the President to the Senate it is to be observed that this Government would not desire to agree to provisions for the regulation of customs procedure, which appears to be the whole purpose of this Annex, and therefore is interested not in the amendment of this Annex but in its deletion.

Language in Which the Commission’s Publications Are Issued

The German expert points out that the convention’s publications are now issued in French, English and Italian, and says that Germany and Spain will demand equal recognition in this respect. However, he adds, that in view of the expense involved Germany would agree to publication in French only.

The Department considers that you should endeavor to arrange for an agreement to publish in English and French only, but, if such an agreement can not be reached, that you should favor the continuance of the present plan, so far as concerns publication in English.

Present German Disabilities

Finally, the German expert calls attention to the disabilities under which Germany labors with respect to the establishment of airdromes and traffic landings in the occupied area and the so-called evacuated area and the so-called demilitarized neutral area as the result of the provisions of Articles 42 and 43 of the Treaty of Versailles;19 the limitations imposed upon Germany as to the construction and operation [Page 507] of aircraft as result of the provisions of Article 198 of that treaty;20 the requirements of Article 200 of the treaty that until the complete evacuation of German territory the occupying powers shall enjoy in Germany freedom of passage through the air, freedom of transit and landing;21 and the existing requirement that the German occupied area may not be flown over except upon authority of the Rhineland High Commission.

The German proposals point out that these disabilities and limitations might interfere with German cooperation in the Air Navigation Convention and intimate that the bodies having authority in the matter should grant Germany a “measure of equality with the other states in the matter of civil aviation.” With the exception below mentioned the views of the German Government last set forth will apparently not fall within the scope of the conference, and, moreover, the United States, as having refused to ratify the Versailles Treaty, is not directly concerned with such matters. Therefore you need not interest yourself therein.

Calling attention to the fact that under Section 198 of the Versailles Treaty Germany has been obliged to agree to the prohibition of the construction, importation or use of aircraft armored or arranged to take any weapon of war, the German expert seems to be of the opinion that under Article 2 of the Air Navigation Convention Germany will be obliged to permit flight over her territory of aircraft of the other contracting states even though armored or arranged to take weapons of war and that if Germany undertook to guard herself against this by national legislation she would act in opposition to Article 31 of the convention which prescribes as military aircraft only those commanded by a person in military service detailed for that purpose. Hence he argues that Germany might have to demand that if a certain definition of military aircraft remains in force for her, the definition of such aircraft in the convention be altered to correspond therewith.

In principle this German suggestion seems, on its face, to be equitable. However, it is desired that you consult the technical assistants to your delegation with reference to this matter. In any event, this would seem to be primarily a question to be dealt with by the parties to the Versailles Treaty.

It appears that the International Commission for Air Navigation desires to prepare a protocol of amendments to the text of the Convention of 1919, and the Department is informed that the representatives of the United States should be authorized to represent it “without involving the Government.” Therefore, full powers will be issued to you, for use if necessary. However, the Department does not [Page 508] desire you to sign any act of agreement without specific authority from it so to do, which you may request, if advisable, by telegraph. Presumably, an arrangement can be made for deferring to the future the question of the signing on behalf of this Government, of such agreement as may be reached, and may contemplate that it be signed on the part of the interested governments.

I am [etc.]

Henry L. Stimson
  1. An identic instruction was sent to Mr. Baker.
  2. Foreign Relations, 1926, vol. i, p. 145.
  3. 44 Stat. 568.
  4. Convention signed November 18, 1903; Foreign Relations, 1904, p. 543.
  5. Ibid., 1926, vol. ii, p. 846.
  6. Convention between Turkey and other powers relating to the Régime of the Straits, League of Nations Treaty Series, vol. xxviii, p. 115.
  7. The United States was represented at the Conference by Lieutenant Commander Burg and Major Yount in the capacity of observers without power to sign any of the acts of the Conference.—Ministère des Affaires Etrangères, Confèrence Internationale de Droit Prvé Aérien, 27 octobre–6 novembre 1925 (Paris, Imprimerie Nationale, 1926).
  8. Malloy, Treaties, 1910–1923, vol. iii, pp. 3329, 3351, 3352.
  9. Ibid., p. 3411.
  10. Ibid., p. 3412.