Implementation of International Civil Aviation Agreements
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Implementation of International Civil Aviation Agreements If a valid reciprocal arrangement has been entered into between the United States and a foreign country, the Civil Aeronautics Authority is authorized under existing law to grant to a foreign aircraft a permit to fly across the United States without landing or a permit to land for non-traffic purposes. February 6, 1945 MEMORANDUM OPINION FOR THE ATTORNEY GENERAL* The State Department has requested the informal advice of the Attorney Gen- eral on a question that has arisen in connection with the International Air Services Transit Agreement, commonly called the “Two Freedoms Agreement,” and the International Air Transport Agreement, frequently referred to as the “Five Freedoms Agreement,” drawn up at the International Civil Aviation Conference held in Chicago in the fall of 1944. These agreements grant to the signatory powers certain privileges with respect to “scheduled international air services.” It is in connection with these privileges that the following question has risen: Assuming that reciprocal rights have been granted by some valid arrangement between the United States and a foreign country, is the Civil Aeronautics Authori- ty authorized under existing law to grant to aircraft of the foreign country a license or certificate (1) to fly across United States territory without landing; and (2) to land in the United States for non-traffic purposes (e.g., refueling)? The State Department has not asked this Department to examine the details of these agreements, or to comment on the Convention on Civil Aviation or the Interim Agreement on Civil Aviation drawn up at Chicago. The State Department has not asked us to consider whether the agreements require ratification by the Senate or may be executed as executive agreements. The only question that has been put to us relates to the construction of the statutes regulating civil aviation and we shall confine the discussion in this memorandum to that point. The question of statutory construction, however, does have a bearing on the question whether the agreements may properly be executed as executive agreements for the following reason: If the agreements required or contemplated action by the Civil Aeronautics Authority or any other agency of the government that was unauthor- * Editor’s Note: The cover memorandum attached to this memorandum opinion states that “Mr. Acheson [presumably Dean Acheson, then Assistant Secretary of State, later Secretary of State under President Truman] is very eager to get our views on this; he has called me twice in the past week. It may be that you will wish to submit a copy of my memorandum to Mr. Acheson for his comments before you decide whether you agree with the conclusion reached in the memorandum.” The cover memorandum states further: “The State Department has not asked us for a formal opinion, and you will recall that in his conference with us Mr. Acheson said he was not sure that the State Department would make this request.” 106 Implementation of International Civil Aviation Agreements ized or forbidden by domestic law, a serious question might arise as to whether the agreements could be consummated as executive agreements. If it is concluded that the Civil Aeronautics Authority is authorized by existing law to grant to foreign aircraft a license or certificate to fly across United States territory without landing or to land in the United States for non-traffic purposes, the problem of the agreements contemplating action not authorized by existing law does not arise. I. Statutes Involved Section 6 of the Air Commerce Act of 1926, Pub. L. No. 69-254, 44 Stat. 568, 572, as amended by the Civil Aeronautics Act of 1938, Pub. L. No. 75-706, 52 Stat. 973,1 provides in part as follows: (a) The United States of America is hereby declared to possess and exercise complete and exclusive national sovereignty in the air space above the United States . (b) Foreign aircraft not a part of the armed forces of the foreign na- tion shall be navigated in the United States only if authorized as hereinafter in this section provided. (c) If a foreign nation grants a similar privilege in respect of aircraft of the United States, and/or airmen serving in connection therewith, the Civil Aeronautics Board may authorize aircraft registered under the law of the foreign nation and not a part of the armed forces thereof to be navigated in the United States. No foreign aircraft shall engage in air commerce otherwise than between any State, Territory, 1 Section 1107(i) of the Civil Aeronautics Act of 1938 amended section 6 of the Air Commerce Act of 1926. Among other things, section 1107(i) struck out the last part of section 6(a) and added the last sentence of section 6(c) as quoted in the text. In its original form, section 6(c) contained the following language limiting the authority to permit foreign aircraft to be navigated in the United States: “but no foreign aircraft shall engage in interstate or intrastate air commerce.” Pub. L. No. 69-254, 44 Stat. at 572. The Air Commerce Act of 1926 contains the following definitions: That as used in this Act, the term “air commerce” means transportation in whole or in part by aircraft of persons or property for hire, navigation of aircraft in furtherance of a business, or navigation of aircraft from one place to another for operation in the conduct of a business. As used in this Act, the term “interstate or foreign air com- merce” means air commerce between any State, Territory, or possession, or the Dis- trict of Columbia, and any place outside thereof; or between points within the same State, Territory, or possession, or the District of Columbia, but through the airspace over any place outside thereof; or wholly within the airspace over any Territory or possession or the District of Columbia. Pub. L. No. 69-254, § 1, 44 Stat. at 568, codified at 49 U.S.C. § 171 (1940). As defined in the 1926 statute, the term “United States” includes the overlying airspace. Id. § 9(b), 44 Stat. at 573, codified at 49 U.S.C. § 179(b) (1940). 107 Supplemental Opinions of the Office of Legal Counsel in Volume 1 or possession of the United States (including the Philippine Islands) or the District of Columbia, and a foreign country. 49 U.S.C. § 176 (1940).2 Section 1 of the Civil Aeronautics Act of 1938 contains the following defini- tions: (3) “Air commerce” means interstate, overseas, or foreign air com- merce or the transportation of mail by aircraft or any operation or navigation of aircraft within the limits of any civil airway or any op- eration or navigation of aircraft which directly affects, or which may endanger safety in, interstate, overseas, or foreign air commerce. (16) “Civil airway” means a path through the navigable air space of the United States, identified by an area on the surface of the earth, designated or approved by the Administrator as suitable for inter- state, overseas, or foreign air commerce. (25) “Navigation of aircraft” or “navigate aircraft” includes the pilot- ing of aircraft. (31) “United States” means the several States, the District of Colum- bia, and the several Territories and possessions of the United States, including the Territorial waters and the overlying air space thereof. Pub. L. No. 75-706, 52 Stat. at 977–80, codified at 49 U.S.C. § 401 (1940). 2 The authority conferred by this section was originally vested in the Secretary of Commerce. Pub. L. No. 69-254, § 6(c), 44 Stat. at 572. As amended by the Civil Aeronautics Act of 1938, § 1107(i)(1), 52 Stat. at 1028, subsection (c) referred to the Civil Aeronautics Authority. Section 7(b) of Reorganization Plan 4 changed the title of the Civil Aeronautics Authority to “Civil Aeronautics Board” and made other changes not relevant here. 5 Fed. Reg. 2421, 2422 (June 29, 1940). The term “Civil Aeronautics Authority” is now used to refer to the Civil Aeronautics Board and the Administra- tor of Civil Aeronautics considered together. In this memorandum we shall use the title “Civil Aeronautics Authority” without discussing whether the authority given by section 6(c) of the Air Commerce Act may be exercised by the Civil Aeronautics Board or by the Administrator or by both. See Permits for Flight of Foreign Aircraft into the United States, 40 Op. Att’y Gen. 136 (Sept. 12, 1941). 108 Implementation of International Civil Aviation Agreements II. Text In section 6 of the Air Commerce Act, the Congress asserted sovereignty over the airspace above the territory of the United States and reserved to American aircraft all rights of “cabotage” (e.g, air traffic between points within a single state, between two states or between the United States and any of its possessions or territories). The section, however, authorizes the Civil Aeronautics Authority to grant certain flight privileges to foreign aircraft. The only question discussed in this memorandum is whether foreign aircraft may be authorized to make non-stop flights over the United States or to land for non-traffic purposes in the United States. In neither case would the foreign aircraft be authorized to pick up passen- gers or freight at any point in the United States, its territories or possessions destined for any other point in the United States, its territories or possessions. The first sentence of section 6(c) authorizes the Civil Aeronautics Authority to permit foreign aircraft “to be navigated in the United States.” In its ordinary meaning and as defined in the act, “navigation” includes any flight by aircraft whether or not a landing is made; both non-stop flight and transit flight with the privilege of landing for non-commercial purposes necessarily involve the naviga- tion of aircraft in the airspace over the United States.