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

579.6D1/318

The American Delegates (MacCracken and Baker) to the Secretary of State

Paris, June 28, 1929.
[Received July 13.]

Sir: Referring to your separate instructions to us of May 20, 1929, with regard to the action we should take as delegates representing the United States at an extraordinary session of the International Commission for Air Navigation to be held in Paris in June, 1929, we have the honor to submit the following report.

Delegate Baker arrived in Paris May 30 and Delegate MacCracken May 31, and during the time intervening between the last mentioned date and June 10, 1929, held consultations with the Technical Advisors to the Delegation and made the necessary preliminary arrangements.

It developed on our arrival that one of the rooms in the Office of the Automotive Trade Commissioner to Europe, could be made available for our use at the Chancellery of the American Embassy and that stenographic assistance could there be furnished. Consequently, it was determined to cancel the reservation which had been made for an office room at the Hotel d’Iena, and to employ no outside clerk-stenographer. Therefore, the only outside assistance employed has been that of a translator, and a considerable saving has been effected in the budget prepared by the Department.

The Conference met June 10, in a room of the Department of Foreign Affairs, and was attended by representatives of the following governments:—

Contracting States: Belgium, British Empire, Canada, Irish Free State, Union of South Africa and India, Bulgaria, Chile, Denmark, France, Greece, Italy, Japan, Netherlands, Poland, Portugal, Saar Territory, Kingdom of Serbs, Croats and Slovenes, Siam, Sweden, Czecho-Slovakia and Uruguay.

Non-Contracting States: Germany, Austria, Brazil, China, Colombia, Cuba, Spain, Esthonia, Finland, Haiti, Hungary, Luxembourg, Norway, Switzerland, Venezuela and the United States of America.

The Honorable Laurent Eynac, Air Minister of France, opened the Conference. Mr. Pierre-Etienne Flandin, head of the French delegation was chosen Chairman. He presided with the utmost fairness and his tactful efforts to compromise differences of opinion among the delegates, which arose frequently, were successful to such an extent that he earned the unqualified commendation of all. He was ably assisted in his efforts by Captain Albert Roper, Secretary General of the Commission Internationale de Navigation Aérienne. The proceedings were conducted in French and English, but the verbatim transcript of the debate was preserved only in French. It will be published later with an English translation. There were ten sessions of the Conference, and two sessions of the Drafting Committee. The delegates and technical advisors attended all the sessions of the Conference. Mr. John J. Ide was appointed as United States member of the Drafting Committee, because of his exceptional knowledge of the French language, but both delegates were permitted to and did attend the sessions of this Committee. The final session of the Conference was held Saturday morning June 15, at which the final resolutions were unanimously adopted and signed.²² The United States Delegation signed with permission to file reservations, copy of which is attached hereto.²³ There are also attached French and English copies of the minutes of the session, including the final resolutions, the May 1929 Edition of the Convention, a copy of the Documents in French and English used at the session, a statement of the preparation of the Convention, and a copy of the press release issued by the Secretary General.²⁴

On Saturday afternoon June 15, there was a regular session of the International Commission for-Air Navigation. The session unanimously adopted a protocol amending the convention in accordance with the final resolutions of the Conference. We are informed that eleven nations out of the twenty-six members of the Commission have signed this Protocol, and that others will undoubtedly do so in the course of the next two weeks.²⁵ Before these amendments become effective, they must be ratified in accordance with the provisions of the Convention. The following comment relative to the resolutions adopted by the Conference is respectfully submitted.

Article 3²⁶

The Conference adopted a recommendation that Article 3 be modified so as to provide that each contracting State is entitled for military reasons or in the interest of public safety, to prohibit the aircraft of other contracting States from flying over certain areas of its territory, subject to no distinction being made in this respect between the private aircraft of the contracting States, and as an exceptional measure and for public safety, to provide further that each contracting State might authorize flight over the areas in question by its national aircraft.

This appears to constitute some improvement over the present provisions of Article 3 of the Convention, although the improvement in question does not go so far as was contemplated in our instructions, since the Conference was disinclined to go to this extent.

As an additional provision of Article 3, the Conference recommended that there be incorporated in this article a right of reservation in each contracting State, under exceptional circumstances in time of peace, temporarily, to limit the flight over its territory or over part of its territory, of foreign aircraft.

This last mentioned addition was contained in the German proposal and approved in our instructions and we succeeded in having a further provision added to the effect that any such restriction or prohibition as should be imposed should be applicable without distinction of nationality to the aircraft of all the other States.

We proposed in this connection that an exception be made for postal aircraft, but it was explained by members of the Conference that the whole question of postal aircraft was to be considered at a Conference of the International Postal Union to be held at an early date, and in view of this situation, the Conference was unwilling to provide for an exception for postal aircraft.

Article 5

The present article 5 of the Convention provides that no contracting State shall, except by special or temporary authorization, permit the flight over its territory of aircraft which does not possess the nationality of any contracting State, unless it has made a special convention with the State in which the aircraft is registered and that the stipulations of such special conventions must not infringe the rights of the contracting parties and must conform to the rules laid down by the Convention and its annexes.

The recommendation made by the Conference as to article 5, states affirmatively that each contracting State is entitled to conclude special conventions with non-contracting States, and adds that the stipulations of such conventions shall not infringe the rights of the contracting parties to the present Convention. However, with regard to the question of conformity to the rules laid down by the present Convention, the recommendations provide that such special conventions “in so far as may be consistent with their object”, shall not be contrary to the “general principles” of the present Convention.

The provisions of the recommendations last mentioned were inserted with a view to meeting the wishes of the Delegation of the United States, and while the Conference did not go so far in this respect as was desired by our Delegation, it is our opinion that the recommendations, if adopted, will constitute a considerable improvement, from the standpoint of the United States, to the present provisions of Article 5 of the Convention.

Article 7

The recommendations of the Conference with respect to the provisions of Article 7 of the Convention, are to the effect that the registration of aircraft shall be made in accordance with the laws and special provisions of each contracting State. This provision corresponds to provisions in this respect contained in the Pan-American Convention²⁷ and apparently should be satisfactory to the United States.

Article 15

The Conference recommended in accordance with a proposal of the German Delegation, an additional paragraph in article 15, dealing with flights by pilotless aircraft which appears unobjectionable.

Referring to our instructions concerning paragraph 3 of Article 15, it may be said that the Conference took a vote upon the question of freedom of innocent passage and decisively defeated the proposal that this be recommended. Therefore, the Conference’s recommendation on the question of this paragraph is that 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 last mentioned provision seems to constitute a slight improvement over the existing provisions with regard to the freedom of innocent passage, but in any event, it represents the extent to which the Conference was willing to go on this point.

The Commission was authorized to recommend that the contracting states should not refuse such authorization except on reasonable grounds. (See Resolution No. 3, pages 5 and 6 of the Final Resolutions.)²⁸

Article 34

The Conference was unwilling substantially to change the wording of paragraph 1 of article 34, relative to the connection between the International Commission and the League of Nations. However, it was explained by reference to a document issued by the Commission (page 71 of Documents)²⁹ that such relations are in fact of an unsubstantial character and that in reality they are largely confined to keeping the League advised of the doings of the Commission, which apparently constitutes a body essentially independent of the League in other respects. In this relation, reference may be made to recommendation No. 4 of the Conference, as to the future relations between the Commission and the Pan-American Union, as indicating the sense of the Conference that such relations should be similar to those between the Commission and the League of Nations. It was apparently considered by the Conference that the last mentioned recommendation would be satisfactory to the United States.

The Conference recommended changes in paragraphs 2, 3 and 4 of Article 34, so as to place each State on an equality in the matter of representation on the Commission.

With respect to the provisions of Article 34 as to the modification of any of the annexes, the Conference recommended a change in the direction of equality of States by striking out the present provision as to the favored situation of certain States in making up a majority, and in the interest of the practicability of making changes, recommended that modifications need only be approved by three fourths of the total votes of the States represented at the session, and two thirds of the total possible votes which could be cast if all the states were represented.

On the question of the provisions of article 34, regarding the payment of expenses, the Conference recommended that such expenses should be borne by the contracting States in the proportion fixed by the Commission.

It seemed necessary to avoid a recommendation for a definite allocation of expenses, especially in view of the fact that a request made by the British Delegation that representation on the Commission with vote, be given each British Dominion and India, was informally agreed to by the representatives of the contracting States as presenting an appropriate matter to be considered at an early session of the Commission.

The Chairman ruled that this request of the British Delegation was not properly before this Conference for recommendation as the British Empire was already a party to the Convention and had not given advance notice of its intention to present this subject for discussion. However, this ruling was not made until after we had cabled request for instructions on this proposal.

Article 37, 1st Paragraph

The present Article 37, 1st Paragraph, provides that in case of a disagreement between two or more states relative to the interpretation of the Convention, the question in dispute shall be brought before the Permanent Court of International Justice.

A recommendation for a change in this respect was made to the effect that if one of the States concerned has not accepted the protocols relating to the Court, the question in dispute may, on the demand of such State, be settled by arbitration.

This recommendation, if accepted, would seem to render the Convention much more satisfactory to States not members of the Court.

The Conference recommended the amendment of Article 41 of the Convention, and the deletion of Article 42, so as to avoid any distinction between States which took part in the World War and those which did not.

It should be pointed out that the German Delegation failed to press a number of their proposals, including the following:

Under Article 1

1. The proposal that the word “colonies” be defined more clearly in article 1 of the Convention.

2. The proposal that the Convention deal with flight over Straits.

3. The proposal that the Convention apply to private aircraft only.

Under Article 6

The proposal that the Conference consider the question of the word “nationality” in connection with aircraft.

Under Article 7

Paragraphs 1 and 2. The proposals that the registration of aircraft depend upon the domicile of the owner, whether an individual or a corporation.

Under Article 9

The proposal that the Conference consider the requirement for the monthly exchange among the contracting States of copies of registrations and cancellations thereof.

Under Article 18

The proposal of applying to aircraft immunity from seizure and the proposal that an attempt be made to settle the question of conflicting laws.

Under Article 19

The proposal that the expression “Bill of Lading” be replaced by “Air Consignment Note”.

Under Article 23

The proposal that the Conference consider whether the principle of maritime law should apply in the absence of any agreement to the contrary in the case of salvage of aircraft wrecked at sea.

Under Article 31

The proposal that the word “detailed” is used in this article to be made more clear. The German Delegation also submitted a definition of the term “Military Aircraft” which was referred for further study.

Under Article 32

The proposal that consideration should be given to amending this article with respect to the extension to maritime aircraft of the privileges customarily accorded to foreign ships of war.

Under Article 34

The proposal that the sphere of activities of the International Air Commission be extended so as to include so far as possible all questions of sovereignty requiring international regulation, including the incorporation into the commission of the committee of air law experts instituted by the Paris International Private Air Law Conference of 1926 [1925].

The question of the necessity of the International Commission.

Finally, the Conference recommended the remission to the Commission, for further study at an early date, of certain questions which it did not seem practicable to deal with definitely at the Conference, including the question of the languages to be used in the documentation of the Commission, which last question aroused a lengthy argument at the Conference, as well as the further question of the simplification and betterment of the stipulations of Annex H to the Convention relating to customs matters. These recommendations for further study may be found on pages 5 and 6 of the Final Resolutions enclosed, and reference has been made above to the provisions of recommendation No. 4 concerning the possible future relations between the Commission and the Pan American Union.

The Air Minister gave a luncheon to the American Delegation on Monday June 10, also a dinner to the entire conference on Thursday June 13. The French Delegation entertained the conference at dinner on Friday June 14. The United States Delegation returned these courtesies at a luncheon on June 19. Though the reservations on behalf of the United States are dated June 15, the final draft was not filed with the Commission until June 27. In the meantime, delegate Baker left for Berlin on other business for the Department of State, and delegate MacCracken remained in Paris to conclude matters pertaining to these reservations and this report. He also participated in official ceremonies in connection with the reception to Messrs. Assollant, Lefevre and Lotti, the Frenchmen who flew from the United States to Paris, France.

Before concluding, the delegates desire to express their appreciation of the valuable assistance rendered by the Technical Advisors, Major B. K. Yount, Lieut. Commander Wm. B. Thomas, and John J. Ide, also by Mr. Norman Armour, Chargé d’Affaires at the Embassy, Mr. Williamson S. Howell and the members of the Embassy Staff, and Mr. D. J. Reagan, Acting Commercial Attaché, his assistant Mr. H. R. Buckley, Automotive Trade Commissioner to Europe, and the members of their Staff.

While it was not possible to prevail upon the Conference to adopt all the amendments proposed in our instructions, we believe that the amendments set forth in the Protocol adopted by the Commission in accordance with recommendations of the Conference, when they become effective, will constitute a substantial improvement in the Convention. However, we believe that the question of ratification by the United States should be the subject of further study by all departments concerned before reaching any definite conclusions.

Respectfully submitted,

• William P. MacCracken, Jr.
• Joseph R. Baker

22. The final resolutions were signed by all the delegates without engagement for their respective Governments.—Commission’s Official Bulletin No. 16, November 1929, pp. 33–35.
23. Embodied in the letter to the Secretary of Commerce, infra.
24. Not printed; see publications cited in footnote 1, p. 489.
25. The protocol was signed only by states parties to the convention of October 13, 1919; for text of the protocol, see Commission’s Official Bulletin No. 16, November 1929, p. 49.
26. The article references are to the text of the convention of October 13, 1919; see Foreign Relations, 1926, vol. i, p. 152.
27. Foreign Relations, 1928, vol. i, p. 585.
28. Commission’s Official Bulletin No. 16, p. 34.
29. Note of June 7, 1929, by the Secretary General of the Commission on the relations between the International Commission for Air Navigation and the League of Nations, Extraordinary Session of June 1929, Documents (579.6D1/318).