• J; t:-NL-A0 ~ Cvt / Av,~.Ji~ tJ&-4i;~~lvt
UN ARCHIVES PLEASE RETAIN SERIES 3-o.se y ORIGINAL ORDER BOX oc t:L FILE 0003 ACC. ~-15$~«13? ICAO I,, f
~ Form GS/11 1Junel9~6 (Rev,) TO
FOR ' j APPROVAL MORE OETAILS RE PLY PLEASE YOUR INFORMATION SEE ME, PLEASE RETURNED AS REQUESTED YOUR SIGNATURE INVESTIGATE ANO REPORT NOTE ANO FI LE FOR IMMEDIATE ACTION NOTE AND RETURN REPLY FOR MYS IGNATURE YOUR COMMENTS IN I Tl AL ANO FORWARD UNITED NATIONS • NATIONS UNIES
INTEROFFICE MEMORANDUM
TO : Dr. R.J. Bunche
FROM: Date. 8 April 191.i...8__
SUBJECT : . Second ICAO Assembly - 1 June 1948.
I can see nothing on the agenda for the Second ICAO Assembly that is of any interest to the Division of Trust eeship. Should the Joint Division of Coordination and Ll.aison ever wish to contact our. Division on any matter arising, I shall be pleased if you will nominate me as their contact.
AGTS/39 CR .hke Form GS/11 1 June 1946 (Rev.) ROUTING TO s~
FOR
APPROVAL MORE DETAILS
REPLY, PLEASE YOUR INFORMATION
SEE ME, PLEASE RETURNED AS REQUESTED
YOUR SIGNATURE INVESTIGATE AND REPORT
NOTE AND FILE FOR IMMEDIATE ACTION
NOTE AND RETURN REPLY FOR MY SIGNATURE
YOUR COMMENTS INITIAL AND FORWARD f
23 I-larch 1948 To: Off.ice of Assistant 0ecretarios-General
From: G. E. Yates, Acting Director, Division or Coordination and Liaison
Subject: Second ICAO Assembly
The United nations has received an 1.nrltation to send repre sentn.tivas to attend the Secom ICAO Assembly to be held 1n Geneva. beginning 1 June 1948 .. Copies of the letter of invitation and the provisional &Genda
of the Plenary and Commission rr.eetings are attached.
Uay- I be inf'o1"!lled soon a.s to the extent or your department• s
interest in this meeting,- and the pJrnon uith tihom tha Joint DivisiO?l. should deal. COPY IllTE~JATIONAL cmt A·JIA'i'IOH OIDJ\iJIZATI<.,1J RE£l'.. s 112 & I S 1./8/0K J.iontreal 12 l1arch 194!3
I hn.ve the honour to extend to your Organization. on behalf of the Council of the International. Civil Aviation Organization, an invitation to attend a.s an Observer the forthcoming f,econd Asserr.Jbly or this Organization to be held at, Genovo., S\rltzerla.nd, in the Pala.is dea llations. comrnencing 1st June 1948.. It is expected tl1at this meeting will not exceed three weeks :l.n duration.
There 1s enclosed tho general age:;1.da for the Assembly (DOC.5218, A2-l'/2) o.s appro"led by tho Council '\:!hich includes the agenda ot pleno.ry meetings and the detailad agendas or the f'our Camnissions which it is 1)l'Opoeed to estnbliah namely: The Administrative Camnission, The Technicru. Commission;; The Econor.1.1c Commission., The legal Commission. Tho Council report n.nd the supporting documentation for each item or this a:-;enda. will be f or.m.rded to you s.s soon as completed under the above r-~.f'erenea number.
I wo1i1d very mu.eh appreciato hen.ring from you at your early convenience as to whether your Organization w.Ul be represented and the number nnd names of the Observers who will attend and ,theth\3r they t-dll be accompanied by- relatives.
Requ.ests for hot.el and ottiee accamnodaticm should be directed, not later than 1 Hay 1948., to: Ur. W. t,1oderm1• Director or the United Nations European Of'£ice., Palaia des Nations, Geneva, Switzerland, and it would be helpful if such reouestn uere accompanied by the .f'ollowing general information: l. The approx:1.mte number and titles of members ot your delega tion i.e. (Observers and Secretaries) and relatives;
2. The proboble data of arrival o! your dalegatlon in Geneva;
3. The number or hotel roans necessary for the Chief' and Uembers of your delegation. 4. The nuni>or of office rooms to be reserved for your delegation.
I 't«>Uld appreciate also receivine a copy of these requests. Office space will be mde available at the rate of f'ive Si·dss Francs per 1,:r,1 per space unit.
Your attention is directed to the Rules of Procedure of the First ICAO Asoembly (on uhich those tor the Second Assembly will be based), with particular reference to the. submission of credentials/ for the members of your Delegatione A cop,v of t!leso rules it atto.chod hereto. Accept~ Sir, the assurances ot • hi._~est consideration. /s/ Fidward Warner President of the Council Secretary General United Nations Lake Success., N.Y. ;
INTimtIATiaai. crn:L AVIATION O.'.?GANIZNl'lON 5m01ID AS.'3J~1BLY "'(}
Rffised Provisional A39ftda. for Pltma17 1'Ieetings ' I
Opening ot the session ~1' ~3 Presidmt ot the Council. J
2 . Addresses ot trelcome ~ Swiss Aut.horities and reply theri3to by the Prenident or the Council. ·.
3. Addresses by Heads of Nation&l Delego.tions .
4o Adoption o! Provisional Rules or Procedure approved by the Council (subject to further examinn.tion by an a.p!)ropriate Committee of' the Assembl.3). DCC A2-P/).
5. Establishment ot the Executive Comnittee. 6. Establ ishment ot the Camittee on Thll.es of Procedure and ot t he Credentials CODIDittee.
7. Election of the Fresident and Vice-Presidents of tho Assembl y. 8. Adopt.ion of Acema. DCC A2-P/2. 9. Establishment ot the COEIDissions and of the Co-ordinating Comoittee. Election of Chaiz,iten of Commissions .
10. Confirmation ot invitations to non-Contracting States and intemational organizations to participate in t he work of the Assembly. OCC A2-P/4. lL Report of the Council to the Assembly and reference to Camnissions and Committees, as necessa~J. DOC A2-P/5o Suspension or voting power or Co!'.'":·.:..;;;'i.ing States ta.ilin3 to discha.:i:ge their financial obligatiom:i to the Or~nnizationo (Al-56) DOO A2-P/6.
13. Character and sco~ of future Assemblies including discussion of site and dnte of 1949 Assarnbl;t. (Al-21) DOC 11.2-P/7"
14., li.·_-plications for admission to membership ::\.:.1 ICP,.O. (A1.... 9) DCC A2··P/8.
15~ Chu!'n.cter or 1-epr-eocnto.t:ivo bodies in ICi\O (Council., Conmd.ttees, etcJ including structure of the Air IIavieaticn ::: 1YJ ,.:, r ·r:ransport Committees (.\rticle 54 (d), r;,4 (e) and 56 of the C:-,: 1~ e1, JJ.Ol,- ,. I ~.. ·•·n DCC A2.-?/9 a:mi .)v..; A:t-t!/10.
16~ l"l'lic~r uith rcsP3ct to amendmnts of the Convontion DOC A2-P/U.
17. f · 'r.cb:mts of Chapter XV ot the Convention (Al-65) 11(.:C l\2~ P/12~
1..- ;1.1,..n:-,.c."tmt of Article 94 ot the Convention. DCC 1\2 ·P/l3o
".E• >:>"t.B by Commissions and Coimd.ttees or the Assembly and action thereon.,
f: , 'MtL'- arid opening for si;~ture of a Conventio,.' o the Iritern..'),tional ., · ", 1itlon of l:ir,hts in Aircraft. -2-
RCVI~D OOVIflIOMAL AG:lmA F01t COI-J!IISSIONS rm·rn: The dpcumentation tor the first item on the a~enda of ea.ch COl!l!dssion - ,dll pe the relevant i:nrt or the Council~s report on the activities of the Organization since the First Assembly. U1ile the mtters in report may be discussed at the Assembly, the report is intended primarily for inf'or.ma.tion and no action by the Assembly is considered to be required at this time.
ADl-n:IITS'l'HA'fDIB cornasnIOIJ l,, P..eport by Council on the action taken in the field or organization. administration and finance including: DC£ A2-P/5~ (a) Organization (il Council and its Camd.ttees. (Al-7) (ii Secretariat - Structure and establishl!lents (Al-50) (lli Premises and housing accommodation (b) Personnel
1. Emoluments of the President
2. Per~nnel Policies and P..egula tions - The ICAO Service Code (1) Recruitment Policy (Al-51) (ii)Appointment and Promotion Policy (Al-S) (iii)Gra.ding and salaries (iv)star.r regulations, travel regulations and allowances (Al-51 and Al-52 ) (v)Sta.ff Provident Fund (Al-53) (vi)Associations or Employees (vil)Appointments ot PICAO staff to ICAO (illi)Relntions with United Nations on Personnel Polley
(c) Trainee Plan (i) Reporl on operation ot Trainee Plan (d) Library {i) Acquisitions (e) Intonna.tion and Publicationa (i) LTlf'ormation programme (Al-15) (ii) Production, distribu.tion and sale ot ICAO publications and documents (Al~54)
(.r) La.nguases (i) Report on action
{i) Report on action by Council :i.n the appoi.?1tr:ierrt. of Auditors. 2. Tielations with United nations (Al-.3,h) DOC A2-AD/l.
J. Ilelaticns with other international. orianiza.tions (Al~-101 11) DCC A2.-AD/2 4. Privileees and Imunities
(a.) Convention on the Prirlleges and Imunities of the specialized agenci~s and drafting ot the t1na1 anoex to that Convention concerning ICAO {~1-18) DOO A2-MJ/3
(b) Privileges a.nd Imom1t1es granted 'bJ" Canadn by reason of ICAO Haa.druart.ers (Al-19) DOO A2-AD/4 · .
5. Deductions from salar7 in lieu ot income tax. (Al-52) DOC A2-AD/5 6. Sta.rt :-rovident Fund om Pension Plan (Al053) DOC A2-AD/6 7. Foreien exchange problems inclu~ng ICAO contributions and cost of attendance at meetings DOC A2-A 11
8. P.evieu ot accounts, 191/J-47. 1XX; .t\2-AD/8 9. ICAO Financial P.egulations - proposed ar:iendnmts: (Al-58) DOO A2-AD/9
10. Budget., 19/$-49. DOO A2-AD/10
11. Ap~ tionment or expenses ot ICAO among Contracting States (Al-62) DOO A2-AD/ll
12. Obligntions ot a Host state for an JCAO meeting. ncx; A2-AD/l2
13. Division ot expenses ot ICAO Re41,aa.al meetings among interested states. DOO A2-AD/lJ
SBNICAL COMI-lISSIOl'r L, Gene1"al review or the work or the Organization in the technical field, including: DOO A2-P/S
(a) Report. by Council
(i) Progress made by the Air Navigation Committee and its Teehnical Divisions (Al-25) (ii) Definition and stc.tus of International Stonda.rds nnd Recommended Practices (Al-31) (ill) Acticn ta.ken to adopt International s·ta..11dards and Recommended Practices (A1-l3,33) (iT) Progress made in establishing procedures for the reporting of breaches or non-compliance uith Intomational Dtandards and Reccmnended Practices (Al-30) ( v) Report on action taken to establish a uniform procedure tor the reporting or inadeouacies in air na.vi~ation facilities and services (Al-29) ,:!.) Action taken with other intemationr,l bodies ,-:ith regard to air navi~a.tion matters (Al-10) (vii} Report or action taken to i1.1plement rec(.)rn:lendations of Regional Air Na.vigo.tion meetings, particularly in respect to the provision of air nn.v:i.gation rncilities ood services (Al-36) (viii) The staffing ot ICAO Ropresent.:i.tives• offices. the scope of' Reproscnt.."tives' activitios and their relations uith Contracting St2.tcs in oir navigation ma.tt0rs (Al-16) (:ix) Action taken to further interru:i.tional collaboration on rosea.rch and devel.opaent work on teclmical subjects., (x) Action taken to f umish States with technical advice and assistance in the training of p.3rsonnel. (.rl) Action taken to promote the unif1CD.t1on of numbering and dincnsional. systems 1n international civil aviation (Al:35) (xii) Action taken to eive effect to the Resolution of' the First Assembly conceming the limitn.tion of runuey requireo.ents (Al-27) (xiii) Plans for technical. meetings, including divisional• regional and special metines (al-24,26) (xiv) I1en.sures to facilitate the recognition of cortificat,les and licenses (Article 33 o! the Convention) (xv) lleasures to facilitate the endorsement of certificfltes and licenses (Article 39 or the Convention)
(b) Reports by Contracting States (insof'.:i,r as States may idsh to present such reporlis either at the Assembly or prior thoreto)
(i) Progress made by Contracting States in implementing the Recommendations i'or Stando.rds, Practices and Procedures (Al-13, 14) (ii) Progress ma.de b7 Cent.meting States in the imple1:iention or recommandations of Ilog1cmal Air Navigation meetings, particularly 1n respect to the provision of air navigation facilities and senices.
2., Rcvie't'r of the procedure invol.ving a three mcoths' 1--eriod for review by Contracting States before Standards and Recamnended Proctices are adopted by the Comtcil (ll-32) D00 A2-TE,/J. 3. Eff'ect of the provision or the Convention upon air 1w.vi.r:;.::-.tion natters
(a.) !?.eporting of breaches or, or non-compliance i·.ri.th, applicable law and regulo.tions (Al-,30) DOC A2-TE/2
(b) Tiecognition of ex.istin~ standards of Airworthiness (Art,icle 41 of the Convention) DCC A2-TE/3
IDOMCtiIC COUlISSION
Part. I - AIR TRAHSPORT
1. Ga11eral review or tho trorit of the O?ganization in t.he Air Transport !ield including: DOO A2-P/5
(a) Report. By Council
(i) International Air llaU (A!J.4) (ii) International 0\1118rship and operation of intemat.iona.1 s.ir serdces on trmik routes (Al-3'1) (ill) Undue economic burdens cm l"tite:mational Air Transport - Double Taxation (Al-42) (iv) Study or the ecaiad.cs of air navigation facilities. (v) l•'acilito,tion ot !ntematicnal Air Transport. (Al-40)
(b) l~ports by Contracting States (insofar as States may wish to present such report.s either at the Assembly or prior thereto)
(1) Proeross rode by Conh"ac-l:,11tg States in secur:in~ their release frOOlg or term:-tnation ot, obligations arising from agreements inconsistent with the Convention
2 0 Reports or Comnission on Hultila.te:r-.J.l Agreement on Coomercial ~ts i International Civil Aviation (Al-38) DCC A.2-Fr,/l 3,. (a) Intemational movement or aircraf't not engaged in currl.age ot passengers, cargo or mail !or renmera.tion or hire. (Articl41 S of the Convention) (Al-39) DCC A2-~/3
(b) Undue economic burdens on International Air 'i'ronsport--lnsurance requirements (Al-41) Dre A2-'I£/4 5. Statistics: (il-43) (a) Statistical. programne ot the Organization DOO A2/u;/S
(b) Experience uith statistical 1"8porting on operational and .tirumcial results of Intema.tional Air Transport. DCC A2/Fi:,/6
6. Report on Filing ot Agreements am consideratiai ot Rules of Procedure for registration or at,'8ements · and ~ements with the Organization. (Articles 81 and 8:3 of the Convention) (Al-45) DOO A2-FJ:,/7 PART II - JOlNT SUPPORT
7. Report by Council on the work or the Organiza.tt on in. tho .field ot Joint; Support. or Air Navigation Services including: (DOO A2-P/5 and A2-lE/8)
(a) Request from Greece for financial and technical aid in respect to the RU inikm Airport
(b) Questions ( other than technical. ones) arising out of the Intemational Agreement on Ocean Heather Ste.tbs 1n the North Atlantic (c) Imple~tation or the Provisional Arrangement concerning financing or the Iceland Loran Station (d) Ueoucst trom Iceland tor financial and technical aid relating to the Icelandic Area Control Cantre, certain commu.nic~tions and mateorol~ca1 services.
8. Seco~ Report by the Secretary General on the study enM.tled "International Agency for Conmunica.tions Facilities and Ground Aids" (Al-66) ~ A2.-F£/9
llnAL COl-Jit.SSI0N
1. Report by Council on the wom of the Organization in the Legal Field DOC A2-P/5
2. Reports trom the legal Committee to the Assembly DCC A2 -LE/1
3. Revlew of comoonts received on a draft Convention on the International Recognition- of Rights in Aircraft and Re.Pol-t thereon. (Al-48) Dre A2-U/2~ A2-LE/3, P.2-IB/4 and J\2-LE/5 •
...... -- •
r -~ !. \ ' ! ·, ;-,
\ ."
INTERNATIONAL .... CIVIL AVIATION
' 1945 - 1.948 11
Report of the Representative of the United States of America to the International Civil Aviation Organization
•
'
THE DEPARTMENT OF STATE
UNITED STATES GOVERNMENT PRINTING OFFICE; WASHINGTON: 1948
r 41i
( . , ..J r.
,-., ,- LETTER OF TRANSMITTAL ~ ~
REPRESENTATIVE OF THE UNITED STATES OF AMERICA TO THE INTERNATIONAL CIVIL AVIATION ORGANIZATION
MONTREAL, Qm., CANADA April 10, 1948 DEPARTMENT OF STATE The Honorable Publication 3131 The Secretary 0£ State International Organization and MY DEAR MR. SECRETARY: Conference Series IV Over three years have passed since the Chicago conference laid the International Civil Aviation foundation for the International Civil Aviation Organization (lcAo), Organization 1 which came into being on April 4, 1947. In the interim period a R,uased May 1948 provisional organization, PrcAo, met many of the urgent problems which were raised by the rapid expansion of international civil avia- tion after the end of hostilities. • The accomplishments of the international organization are of such value to the world as a whole and to the United States in particular, and its further objectives are fraught with such importance that I have thought it opportune to submit at this time a report on its growth, past accomplishments, and future promise. Many 0£ the £acts included herein have been set forth in greater detail in the reports of the lcAo and PrcAO Councils to the Assemblies of the provisional and permanent organizations, in the reports of the United States Delegations to divisional and regional meetings, and in the annual reports of the Air Coordinating Committee. It is precisely because this material is spread through so many documents and is summarized in none that I have thought it desirable to tell the story here, unencumbered by detail, but emphasizing those matters which are of concern to everyone interested in international civil aviation and ' United States leadership in that field. I The Organization consists 0£ an annual Assembly, concerned with policy, in which each 0£ the forty-seven states that have ratified the Convention on International Civil Aviation is entitled to representa tion; a Council 0£ twenty-one elected states, which meets in nearly continuous session, and an international secretariat which includes DIVISION OF PUBLICATIONS experts on technical, economic, and legal matters. The seat 0£ the OFFICE OF PUBLIC AFFAIRS Organization is at Montreal. iii 4.\
, iv LETTER OF TRANSMITTAL . r. The Chicago convention sets forth the aims and objectives of the Organization. They include insuring the orderly growth of inter national civil aviation throughout the world; meeting the needs of h ,- the peoples of the world for safe, regular, efficient, and economical air CONTENTS transport; and, in general, promoting the development of all aspects .1. " of international civil aviation. The work has fallen naturally into Page two main divisions: technical matters concerning air navigation, air iii Letter of Transmittal • . • • • • • • • · · · · ...... worthiness, and the operation of aircraft; and economic matters re l. INTRODUCTION lating to the exchange of commercial operating rights between the · Development of Aviation During the War , • • • • • · · 1 . nations, the facilitation of air travel, and the operation of airlines. The Chicago Conference . . . . . , , • • . • • • · · · · 2 On the whole the outlook for lcAo is promising. Since it is an II. DEVELOPMENT OF THE INTERNATIONAL CIVIL AVIATION ORGANIZA- organization of states, its success must depend upon the degree of TION 4 support in both financial and administrative matters which it receives Organization of. PICAO . . . . • 5 Technical Annexes . . . . . from its members and upon the caliber of the men that are sent to 6 PICAO Assembly • ...... represent membe_r states on the Council, on the committees, and in 7 Dissolution of IcAN and CITEJA . 7 the divisional and regional conferences. Furthermore, these men Ratification of the Convention , 7 must have encouragement and support from their own governments if Relations With United Nations. 8 their tasks are to be well done. While there is room for improvement, First Assembly of IcAO • . . . • the record to date justifies a high degree of confidence for the future. III. Arn NAVIGATION AND TECHNICAL MATTERS 9 It is my hope that this report may serve not only to promote a Technical Experts . . . . . 10 Commission or Committee . . . . • • • • clearer understanding of the purposes, accomplishments, and future 11 Regional Meetings . • . . . . , • • • • . objectives of the International Civil Aviation Organization but also Divisional Meetings ...... , , • • • • • • • · · · · 12 to indicate the valuable services which it is rendering and, with the International Standards and Recommended Practices (SARPS) • 12 13 necessary support, can continue to render to international civil Current Activities ...... • • • 14 aviation. Conclusion ...... , • , • • • Sincerely yours, IV. Am TRANSPORT AND EcoNOMIC MATTERS 15 Multilateral Agreement . . . PAUL A. SMITH 15 Action by P1cAo Assembly . . . . . • . Representative of the United States of America 15 Attempt To Find a Formula . . . . • • to the International Civil Aviation Organization 16 Geneva Conference ...... • Facilitation of International Air Transport . . . • • . • • • 18 Various Economic Studies by the Air Transport Committee . 19 19 Statistical Data . .• . . . , . • . • • • Contracts and Agreements . . . . . • • 19 International Ownership . . . , . • • , 20 Scheduled and Nonscheduled Operations. 20 20 Economic Burdens 20 Air Mail ... 20 Airport Costs . . . 21 Conc;lusion ...... V. INTERNATIONAL SUPPORT OF Am NAVIGATION FACILITIES AND SERVICES 22 The Convention 22 First Steps by PrcAo V vi CONTENTS
Y. INTERNATIONAL SUPPORT OF AIR NAVIGATION FACILITIES AND SERVICES-Continued Page Request From Greece ...... 23 North Atlantic Weather Stations ...... 23 Air Coordinating Committee and Joint Support. 24 Action by Assemblies 24 Later Developments ...... 24 Aid to Iceland ...... 25 Current Situation Respecting Aid to Greece 25 Other Requests . 26 Conclusion 26 VI. LEGAL MATTERS Work of CITEJA. 27 Convention on Rights in Aircraft 27 Legal Committee of lcAo 27 Brussels Meeting . . . . • . . 28 Committee on International Convention 29 VII. ORGANIZATION AND ADMINISTRATION Council and Committees . 29 The Secretariat . 30 Languages ... 31 Public Relations 31 Income Tax .. 32 The Budget .. 32 VIII. UNITED STATES REPRESENTATION ON lcAO Duties and Responsibilities . 33 Air Coordinating Committee 34 Conclusion ...... 35 IX. RECORD AND OUTLOOK Technical Field . 36 Economic Field . . . . 36 Joint Support 37 Personnel and Personal Relationship 38 . . The Council 38 Voting ...... 38 Arbitration ...... 39 Role of lcAo as a Specialized Agency of the United Nations . 39
r UNITED NATIONS • NATIONS UNIES
INTEROFFICE MEMORANDUM
TO: Dr. R.J. Bunche
FROM, C. Rankin(il/_P1/,
SUBJECT, "United Nations Trusteeship" - in relation Date 24 March 1948 to International Civil Aviation.
Thank you for sending me the above-mentioned paper. I have been particularly interested in it, for at one time I used to know a good deal about most aspects of international civil aviation. The author has got hold of something, undoubtedly. But the question of air traffic rights is a complicated one. The issue is not whether the Administering Authorities do or do not accept the principle of 11 equal treatment" at ai rports i n Trust Terri tories, but to decide what must necessary flow as a consequence from that principle.
I trust that you will bear with my lengthy comments - to which the paper is attached.
AGTS/39 CR/hke UNITED NATIONS TRUSTEESHIPS
BY JoHN C. CooPER •
The creation of the "International Trusteeship System" under the Charter of the United Nations raises new and extremely difficult prob lems for international aviation. These problems include questions as to: ( 1) the extent to which the Administering Authority ( ordinarily one of the members of the United Nations) may control the transit through the trusteeship territory of aircraft flying flags other than that of the Administering Authority; (2) the terms under which such aircraft may enter the trusteeship territory to pick up or discharge pas sengers or cargo; and ( 3) the extent to which the Administering Authority may reserve to its own aircraft the handling of air traffic within trusteeship territory or between the trusteeship territory and the sovereign territory of the Administering Authority. This privilege of handling traffic within a sovereign nation's own territory or between separate parts of its territory is usually referred to as "cabotage." To understand the complexity of some of the questions involved it is necessary to examine first the confused situation that existed (and still exists) as to aviation under the League of Nations "mandates." It will be recalled that Article 22 of the Covenant of the League set up a system of mandates to be applied to certain colonies and territories which, as a consequence of World War I, had "ceased to be under the sovereignty of the States which formerly governed them," and which were "inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world." These territories were to be placed under the mandate of various members of the League of Nations acting for the League. The Covenant (Article 22) provided for three classes of mandates. These later came to be known as "A," "B," and "C" mandates. The language of the applicable parts of Article 22 is important: Class "A" M andates "Certain communities formerly belonging to the Turkish Empire have reached a stage of development where their existence as independent nations can be provisionally recognised subject to the rendering of administrative advice and assistance by a Manda tory until such time as they are able to stand alone. The wishes of these communities must be a principal consideration in the selection of the Mandatory."
Reprinted from Autumn 1947 I ssu" of Am A FFAIRS.
r 116 AIR AFFAIRS TRUSTEESHIPS 117
Class "B" Mandates south routes through Africa cross Tanganyika; and the location of "Other peoples, especially those of Central Africa, are at such a stage that the certain of the Pacific islands, under the original Japanese mandate, may Mandatory must be responsible for the administration of the territory under conditions directly affect future air transport routes through that area. • which will guarantee freedom of conscienc~ and religion, subject only to the mainte To understand the background of the relation between international nance of public order and morals, the prohibition of abuses such as the slave trade, the aviation and the League mandatory system, it must not be forgotten arms traffic and the liquor traffic, and the prevention of the establishment of fortifica tions or military and naval bases and of military training of the natives for other than that the Paris Convention of 1919 ( the Convention Relating to the police purposes and the defence of territory, and will also secure equal opportunities Regulation of Aerial Navigation) was drafted and signed as part of the for the trade and commerce of other Members of the League." system of treaties which created the League of Nations during the Class "C" M anJatei Peace Conference following World War I. Also it must be remembered " There are territories, such as South West Africa and certain of the South Pacific that most of the members of the League of ·Nations became parties to Islands, which, owing to the sparseness of their population, or their small size, or their the Paris Convention and thus bound by its terms. The interrelation remoteness from the centres of civilisation, or their geographical contiguity to the territory of the Mandatory, and other circumstances, can be best administered under the between the Paris Convention and the League of Nations Covenant laws of the Mandatory as integral portions of its territory, subject to the safeguard.$ was stated in Article 40 of the Convention as follows: above mentioned in the interests of the indigenous population." "The territories and nationals of Protectorates or of Territories administered in the name of the League of Nations, shall, for the purposes of the present Convention, be Certain parts of the territories there described are still mandates. Cer assimilated to the territory and nationals of the Protecting or Mandatory States." . tain other parts of such territories have been transferred to the trustee As a result of this provision it was clear that the Mandatory could ship system of the United Nations. consider the territory in the mandate as part of its national territory for Included under Class "A" was (and still is) Palestine under the the purposes of international aviation administration under the terms mandate of Great Britain; in Class "B" were part of Togoland, part of the Convention, unless the terms of the mandate specifically pro of the Cameroons, and all of Tanganyika, also under the mandate of vided otherwise. The Paris Convention in Article 1 recognized that Great Britain; the remainder of T ogoland and the Cameroons under every Power has exclusive sovereignty over the airspace above its ter the mandate of France, and Ruanda-Urundi (adjoining the Belgian ritory; in Article 15 ( as amended in 192 9) it provided that every Congo) under the mandate of Belgium. Under Class "C" were South contracting State might make conditional on its prior authorization the West Africa under the mandate of the Union of South Africa; the creation and operation of regular international air navigation lines with Marianas, the Carolines, the Marshalls and certain other South Pacific or without landing on its territory; in Article 16 it accepted the prin islands under the mandate of Japan; New Guinea and adjoining islands ciple of cabotage. If these articles are construed with Article 40, it under the mandate of Australia; Western Samoa under the mandate of seems clear that each Mandatory was entitled to fix the terms under New Zealand. The Mandatories were, therefore, Great Britain, which aircraft of other States could operate commercial airlines across France, Belgium, Union of South Africa, Japan, Australia, and New or into the mandated territory, and could consider such mandated ter Zealand. ritory as part of its own territory for cabotage traffic, either within the Of the foregoing mandates, Palestine and South West Africa are mandate or between the mandate and other territory of the Mandatory_ still administered under the terms of the original mandates. The other -provided always that the terms of the mandate did not directly limit principal mandates have now been converted into trusteeships under ,these privileges. It has always been a primary rule in the construction the United Nations Charter. The United States has become the trustee of any instrument setting up a trusteeship that the trustee cannot con- for the territory under Japanese mandate. strue the instrument to the personal advantage of the trustee where Of the territories originally placed under League mandates, three rights and privileges are involved of those for whom the trust has been are of major importance for international air routes. These are Pales created. Under the League mandates, all members of the League had tine, Tanganyika, and the South Pacific islands included in the Japanese certain rights in mandated territories. mandate. Several of the routes between Europe and India (including The British mandate for Palestine, for example, contains the follow TTnitPrl St:itPc: :iir tranc:nort ooerations) oass through Palestine; north- mg prov1s1ons: 118 AIR AFFAIRS TRUSTEESHIPS 119 • "Article 18. The Mandatory shall see that there is no discrimination in Palestine the facts appear to be that in at least one existing agreement Palestine against the nationals of any State Member of the League of Nations (including com panies incorporated under its laws) as compared with those of the Mandatory or of any has been treated as part of British territory for the purpose of granting foreign State in matters concerning taxation, commerce or navigation, the exercise of commercial and transit rights. In the so-called "Bermuda Agreement" industries or professions, or in the treatment of merchant vessels or civil aircraft. Simi of February 11, 1946, between the United States and Great Britain larly, there shall be no discrimination in Palestine against goods originating in or des providing for the establishment of various air routes, two of the routes tined for any of the said States, and there shall be freedom of transit under equitable conditions across the mandated area." authorized to be served by the air carriers of the United States pass * * * * * through Europe and Palestine en route to India and the Far East. On "Article 19. The Mandatory shall adhere on behalf of the Administration of Pales- each of these routes Lydda ( the principal airport in Palestine) is listed tine to any general international conventions already existing, or which may be con cluded hereafter with the approval of the League of Nations, respecting the slave traffic, as an authorized stop in British territory. I do not mean to infer that the traffic in arms and ammunition, or the traffic in drugs, or relating to commercial Great Britain would have refused the entry of United States aircraft equality, freedom of transit and navigation, aerial navigation and postal, telegraphic' into Lydda under the provisions of the mandate and the treaty, but it is and wireless communication or literary, artistic or industrial property."1 interesting to note the lack of clarity existing in the status of aviation It is submitted that the terms of Article 18 definitely require the rights to and through Palestine as evidenced by the fact that Lydda is Mandatory to refrain from discrimination in Palestine against the other listed in the Bermuda Agreement as British territory and not as terri member States of the League of Nations in matters of commerce or tory under mandate. navigation or treatment of civil aircraft. This would appear to carry a In certain other mandates the obligation of the Mandatory towards definite prohibition against all types of discrimination against other international civil aviation was even less clear. Tanganyika was and is ) League members affecting the operation of commercial airlines to or of major importance in the development of major air routes because of through Palestine. These specific clauses against discrimination are, in its geographical location. An examin'ation of the map of Africa will my judgment, controlling, and the Mandatory could not, in the face disclose that .Tanganyika is bordered on the north by the British colo of these clauses, take advantage of the provisions of the Paris Conven nies of Uganda and Kenya, on the west by the Belgian Congo and Bel tion of 1919 which otherwise would have authorized the assimilation gian mandated territory, on the south by British Rhodesia and Nyasa of the mandatory territory with the other territory of the Mandatory, land, on the southeast by Portuguese Mozambique, and on the east by with the consequent right to control the entry of foreign aircraft and to the Indian Ocean. The principal north-south route between Cairo and reserve to aircraft of the Mandatory rights and privileges not granted the Union of South Africa passes through Tanganyika. Any French to aircraft of other members of the League. air transport operation from French Equatorial Africa to the French In 1925 the United , States entered into an agreement with Great colony of Madagascar would ordinarily cross Tanganyika. The location Britain in regard to the Palestine mandate which provides that the of Tanganyika might well affect other potentially important air routes. United States and its nationals shall enjoy all the rights and benefits Notwithstanding these facts, the international aviation terms of the secured under the terms of the mandate to members of the League and Tanganyika mandate were particularly confused. The anti-discrimina their nationals. From this agreement it would seem that the United tory clauses omit any direct reference to civil aircraft, but do provide States thereupon became entitled to the same transit and commercial generally for freedom of transit and navigation and commercial aviation privileges in Palestine which might be enjoyed by British air equality: craft.2 While I am not aware of any specific refusal by the Mandatory "Article 7. The Mandatory shall secure to all nationals of States Members of the League of Nations the same rights as are enjoyed in the territory by his own nationals (Great Britain) to permit the entry of foreign aircraft into Palestine, in respect of entry into and residence in the territory, the protection afforded to their person and property, the acquisition of property, movable and immovable, and the lText of Palestine mandate in: Hudson, Manly 0., ed. I nternational Legislation. Washington, exercise of their profession or trade, subject only to the requirements of public order, Carnegie Endowment for International Peace, 1931. v. I, p. 109-120. and on condition of compliance with the local law. 2"Convention between the United States of America and Great Britain, signed at London, Decem ber 3, 1924." Text in: U.S. Dept. of State. Papers Relating to the- Foreil{n Relations of the United "Further, the Mandatory shall ensure to all nationals of States Members of the States, 1924. Washington, U.S. Govt. Print. Off., 1939. v. 21, p. 212. League of Nations, on the same footing as to his own nationals, freedom of transit and 120 AIR AFFAIRS TRUSTEESHIPS 121
navigation, and complete economic, commercial and industrial equality; provided that of transit and commercial air traffic to non-scheduled aircraft of con the Mandatory shall be free to organise essential public works and services on such tracting States; provides, in Article 6, that no scheduled international terms and conditions as he thinks just. * * * air service may be operated over or into the territory of a contr~ting But this article may perhaps be governed as to international aviation State except with the special permission of such State; in Article 7 gives by the following provision: to eac~ contrac_tin_g ~tate t~e right to reserve cabotage privileges to its own aircr~ft withm its terntory. It would seem from these provisions "Article 9. The Mandatory shall apply to the territory any general international conventions already existing, or which may be concluded hereafter, with the approval that transit, traffic and cabotage commercial air privileges in the man- ( of the League of Nations, respecting the slave trade, the traffic in arms and ammuni dates were left by the Chicago Convention in precisely the same legal tion, the liquor traffic, and the traffic in drugs, or relating to commercial equality, status as under the Paris Convention of 1919. These transit traffic and freedom of transit and navigation, aerial navigation, railways, postal, telegraphic, and cabotage privileges could be controlled by the Mandatory o; the theory wireless communication, and industrial, literary and artistic property." * * *3 that the mandated territory was part of its territory, unless the terms 0 { By taking advantage of this Article 9 and making applicable to the the mandate itself provided to the contrary. - Tanganyika mandate the Paris Convention of 1919, the Mandatory . The re~l difficulty arises from a~other source. The Chicago Conven could perhaps insist on controlling the entry of non-British commercial tion was signed December 7, 1944. Some months later the United Na airlines into the mandate, and the reservation to British aircraft of tions Conference on International Organization was held at San Fran cabotage privileges within the mandate and between the mandate and cisco, where, on June 26, 1945, the "Charter of the United Nations" the adjoining British colonies to the north and south. On the other was. signed. In the Charter, the mandatory system of the League of hand, it might well be argued that this application of the Paris Conven Nations was abandoned and an entirely new "International Trustee tion under Article 9 of the Tanganyika mandate was in contravention ship System" was adopted. In Article 77 of the Charter it is provided with the general anti-discriminatory clauses in Article 7 which ensured that: to other League members "freedom of transit and navigation, and com plete economic, commercial and industrial equality." While I am not "l. The trusteeship system shall apply to such territories in the following categories aware of any specific decisions as to which of these clauses of the man as may be placed thereunder by means of trusteeship agreements: a. territories now held under mandate; date was determined to be controlling, it must be noted that in the b. territories which may be detached from enemy states as a result of the agreement of February 28, 1946, between Great Britain and France, Second World War; and under which air transport routes and privileges were exchanged, French c. territories voluntarily placed under the system by states responsible for their I coi:n~ercial ai_r s:rvic~s ~ere a~thorized to_ engage in international civil administration. aviat10n at Lmdi (an airport m Tanganyika) and that Lindi is there "2. It will be a matter for subsequent agreement as to which territories in the fore going categories will be brought under the trusteeship system and upon what described as being in British territory. terms." The confused status of international aviation in the League mandates was not changed by the adoption of the Chicago Convention on Inter It see;11s clear from the foregoing that territory under a trusteeship national Civil Aviation of 1944. In that Convention Article 1 states and terntory under a mandate are entirely different legal entities. Un that the "contracting States recognize that every State has complete and fortunately the Chicago Convention, adopted before the United Na exclusive sovereignty over the airspace above its territory." Article 2 tions Charter, contains no provision authorizing the automatic inclusion provides that for the purposes of the Convention the territory of a State of trus~eeship territory as part of the territory of the Administering shall be deemed to be the land areas and territorial waters adjacent Authonty for the purpose of the Convention. The applicability to the ' thereto under the sovereignty, suzerainty, protection or mandate of trusteeship territory of the whole Chicago Convention with its techni , such State. Proceeding from this definition of territory as including cal and air navigation controls through the International Civil Aviation areas under mandate, the Convention, in Article 5, gives certain rights Organization ( at Montreal) is therefore in doubt. Also the language of the Charter and of the new United Nations trusteeship agreements themselves has added grave difficl}lties. The 3Text of Tanganyika mandate in: Hudson. Op. cit., v. I, p. 84-92. 122 AIR AFFAIRS TRUSTEESHIPS 123 objectives of the trusteeship system as stated in the Charter are: all Members of the United Nations. The rights conferred by this Article on nationals of Members of the United Nations "Article 76. The basic objectives of the trusteeship system, in accordance with the apply equally to companies and associations controlled by such nationals and organized Purposes of the United Nations laid down in Article 1 of the present Charter, shall be: in accordance with the law of any Member of the United Nations." a. to further international peace and security; b. to promote the political, economic, social, and educational advancement of the An examination of these provisions together with Article 7 6 ( d) of inhabitants of the trust territories, and their progressive development towards self the Charter would appear to demonstrate that the right of the Adminis government or independence as may be appropriate to the particular circumstances of tering Authority over international civil aviation in Tanganyika is now each territory and its peoples and the freely expressed wishes of the peoples concerned, and as may be provided by the terms of each trusteeship agreement; much less clear than had been the case under the mandate over the same c. to encourage respect for human rights and for fundamental freedoms for all with territory. I am personally of the opinion that even had the Chicago out distinction as to race, sex, language, or religion, and to encourage recognition of Convention purported to cover trusteeships, or if the word "mandate" the interdependence of the peoples of the world; and d. to ensure equal treatment in social, economic, and commercial matters for all in Article 2 of the Chicago Convention could now be given a broad in Members of the United Nations and their nationals, and also equal treatment for the terpretation so as to be continually applicable to trusteeships, neverthe latter in the administration of justice, without prejudice to the attainment of the fore l less the specific provisions of Article 7 6 ( d) of the Charter and Article going objectives and subject to the provisions of Article 80." 9 of the trusteeship agreement would govern. Nor do I think that the Under the provisions of the Charter trusteeship agreements have situation is changed by Article 7 of the Tanganyika agreement provid been approved under which Togoland, the Cameroons, Tanganyika, ing that the Administering Authority undertakes to apply to Tan New Guinea, Ruanda Urundi, and Western Samoa (formerly man ganyika the provisions of any international conventions which may be dated territories) have been placed under the international trusteeship appropriate to the particular circumstances of the territory and which system as non-strategic areas. The former Mandatories have become would conduce to the achievement of the basic objectives of the inter in each case the Administering Authority. [United Nations Document: national trusteeship system. This provision would not, in my judgment, Trusteeship T/8, March 25, 1947.] give to the Administering Authority the right to apply to the trustee The status of international civil aviation under these trusteeships can ship territory those provisions of the Chicago Convention which might be best understood by considering the language of the agreements. lim~t the broad commercial and air navigation anti-discriminatory pro Under Article 3 of the Tanganyika agreement, for example, the Ad vsions of A~cle 7 6 ( d) of the Charter and Article 9 of the trusteeship ministering Authority, Great Britain, undertakes to administer Tan agreement. It seems fairly clear that the Administering Authority is ganyika "in such a manner as to achieve the basic objectives of the in now obligated to give to aircraft of all members of the United Nations ternational trusteeship system laid down in Article 76 of the United the same commercial transit and traffic privileges in Tanganyika as may Nations Charter." Then the anti-discriminatory provisions of the be enjoyed by the aircraft of the Administering Authority, although the agreement are stated as follows: situation under the mandate may have been quite different. _ 1 The scope of this article will not permit a detailed examination of "Article 9. Subject to the provisions of Article 10 of this agreement, the Adminis each of the trusteeship agreements mentioned above. They are far from tering Authority shall take all necessary steps to ensure equal treatment in social, eco nomic, industrial and commercial matters for all Members of the United Nations and uniform and must be examined separately to determine their effect upon their nationals and to this end: international civil aviation. For example, the agreement under which a. shall ensure the same rights to all nationals of Members of the United Nations as New Guinea is placed under the trusteeship of the government of to his own nationals in respect of entry into and residence in Tanganyika, freedom of Australia is quite different in many respects from the Tanganyika transit and navigation, including freedom of transit and navigation by air, acquisition of property both movable and immovable, the protection of person and property, and agreement. The New Guinea agreement contains in Article 3 the gen the exercise of professions and trades; eral provision that the Administering Authority undertakes to admin b. shall not discriminate on grounds of nationality against nationals of any Member · ister the territory in accordance with the provisions of the Charter and of the United Nations in matters relating to the grant of concessions for the develop ment of the natural resources of Tanganyika and shall not grant concessions having the in such manner as to achieve the basic objectives of the international character of a general monopoly; trusteeship system set forth in Article 7 6 of the Charter (including, of c. shall ensure equal treatment in the administration of justice to the nationals of course, the non-discriminatory commercial provisions). No other gen- 124 AIR AFFAIRS TRUSTEESHIPS 125 eral anti-discriminatory provision is included in the trusteeship agree particular consideration: ment. In Article 4 the Administering Authority is made responsible for the peace, order, good government and defense of the territory "and "Article 4. The administering authority, in discharging the obligations of trustee 'ship in the trust territory, shall act in accordance with the Charter of the United Na for this purpose will have the same powers of legislation, administra tions, and the provisions of this agreement, and shall, as specified in Article 83 (2) of tion, and jurisdiction in and over the territory as if it were an integral the Charter, apply the objectives of the international trusteeship system, as set forth in part of Australia, and will be entitled to apply to the territory, subject Article 76 of the Charter, to the people of the trust territory." to such modifications as it deems desirable such laws of the Common "Article 8. l. In discharging its obligations under Article 76 (d) of the Charter, as defined by Article 83 (2) of the Charter, the administering authority, subject to the wealth of Australia as it deems appropriate to the needs and conditions requirements of security, and the obligation to promote the advancement of the in of the territory." Obviously, these two articles might be in direct con habitants, shall accord to nationals of each Member of the United Nations and to com flict. An airline of another member of the United Nations might desire panies and associations organized in conformity with the laws of such ~ember,. treat ment in the trust territory no less favourable than that accorded therem to nationals, to operate international service into or through New Guinea or between companies and associations of any other United Nation except the administering New Guinea and Australia, insisting on an implied authority under authority. Article 76 ( d) of the Charter. Australia, at the same time, might insist 2. The administering authority shall ensure equal treatment to the Members of the on applying provisions of its own laws to New Guinea, under which it United Nations and their nationals in the administration of justice. , might have the right to control the entry of such foreign aircraft into 3. Nothing in this Article shall be so construed as to accord traffic rights to aircraft flying into and out of the trust territory. Such rights shall be .subj:ct to agre;ment New Guinea if New Guinea is considered as "an integral part of Aus between the administering authority and the state whose nationality such aircraft tralia." The answer to such a dispute is most difficult to find. possesses." A further set of problems has been created by the trusteeship agree These articles of the United States agreement illustrate a basic dif ment under which the United States is made trustee for the islands in ference between the general trusteeships and the strategic area trustee the South Pacific covered by the former Japanese mandate in which the ships. As to the latter it appears that the Charter has been so construed entire trusteeship territory is designated as a strategic area. [Security as to authorize discriminatory commercial treatment in favor of the Council Document S/318, April 2, 194 7.] Article 82 of the Charter nationals, companies, and associations of the ~dminis~ering A1;1thority provides that there may be designated in any trusteeship agreement ':a as against those of other members of the Umted Nations. With par strategic area or areas which may include part or all of the trust terri ticular reference to international civil aviation, it is evident from Article tory to which the agreement applies." Article 83, including the follow 8 ( 3) that aircraft of other members of the Unit~d Nations may fly ing important sub-paragraphs, is then applicable: into the trusteeship territory to engage in commercial traffic only when "1. All functions of the United Nations relating to strategic areas, including the accorded specific permission by the United States. approval of the terms of the trusteeship agreements and of their alteration or amend Article 3 of the trusteeship agreement must also be considered. This ment, shall be exercised by the Security Council. "2. The basic objectives set forth in Article 76 shall be applicable to the people of gives to the United States, as the Administering Auth.ority, the right to each strategic area.'' apply to the trust territory such of the laws of the Umted .states as may be appropriate to local conditions and requirements. This m~ans that It will be noted that under Article 83 (2) the basic objectives, so far the United States can, without doubt, apply to the trust territory the as these strategic area trusteeships are concerned, is limited to those provisions of those statutes under which foreign airc.raft are 1!-o~ allowed "applicable to the people of each strategic area." This leaves in a most to enter United States territory except under special permission from uncertain state the applicability of Article 7 6 ( d) of the Charter de the United States Government, and are not permitted in any event to signed to ensure equality of commercial treatment in the trusteeship engage in commerce between points in United States t~rritory. ~he territory between members of the United Nations. United States apparently holds complete control of the right of foreign One of the interesting results of this difference is demonstrated by aircraft (including the aircraft of other membe:5 o~ the Uruted N~ the United States Pacific islands trusteeship agreement mentioned tions) to fly into, over or away from the Pacific island trusteeship above. Article 4 and the first three sub-paragraphs of Article 8 require territory, whether for transit or traffic purposes. 126 AIR AFFAIRS TRUSTEESHIPS 127 • Nor do I think that the terms of the "International Air Services ble to trusteeship territory even though the Administering Authority Transit Agreement" are applicable to this trusteeship territory. This is is otherwise a party to the Convention. Doubt also exists as to the the agreement signed at Chicago in 1944 under which States which applicability of the important "two freedoms agreement" in the trus accept the agreement mutually grant to each other the so-called first teeship territory. It certainly does not seem to be applicable to the and second "freedoms," namely, the privilege to fly across the territory United States strategic trusteeship over the Pacific islands included in the former Japanese mandate. Doubt also exists as to the extent of of a contracting State without landing, and the privilege to land for control which the Administering Authority of other trusteeships has as non-traffic purposes. The United States and many other nations are to transit, traffic, and cabotage rights irrespective of the Chicago Con now parties to this agreement. Under its terms and without any special vention-that is to say, to what extent the, trusteeship agreements provision, the aircraft of other contracting States may enter United themselves, without further negotiation, give to members of the United States territory for the non-traffic purposes mentioned above. But the Nations transit and traffic rights in trusteeship territories other than Tra_nsit Agreement, in Article 5, provides that "for the purpose of this strategic areas. These matters should be clarified. Important present Agreement, 'territory' shall be defined as in Article 2 of the above and potential air routes are involved. The great objective of the pres mentioned Convention." The Convention referred to is the Chicago ent day of international civil aviation is that all doubt should be Convntion of 1944 which includes in its provisions the definition of removed as to where, how and in what manner international air com "territory" set out earlier in this article, namely, that for the purposes merce may flow between the nations of the world. of the Convention the "territory" of a State shall be deemed to be the land a:eas and terr~torial waters adjacent thereto under the sovereignty, suzerainty, protect10n or mandate of such State. As I have also stated earlier in this article, I believe that the terms of the United Nations Charter itself indicate that the term "mandate" does not include a United Nations trusteeship. The International Air Services Transit Agreement, through its definition of "territory," would not in conse quence ~pply to trusteeships. This construction of the language in volved 1s further supported by the fact that in the bilateral agreement between the United States and France of December 28, 1945, it was provided that the term "territory" as applied to each contracting party should be deemed to be the "land areas and territorial waters adjacent thereto under the sovereignty, suzerainty, protection, mandate or trus teeship of such contracting party" [italics supplied]. A similar distinc tion between mandate and trusteeship appears in the bilateral agree ment between the United States and Belgium of April 8 1946 in the agreement with. New Zea1 and of December 3, 1946, and the' agreement' with the Union of South Africa of May 23, 1947. A mandate and a trusteeship seem never to have been considered synonymous. The situation created by the United Nations trusteeships as to inter nat~onal civil aviation requires the most thoughtful consideration by the various govern!Ilents concerned and by the International Civil Aviation Organization. Grave doubt seems to exist as to the extent to which the Chicago Convention of 1944 and the powers of the International Civil Aviation Organization (ICAO) created by that Convention is applica- ...
EDITORIAL ADVISORY BOARD OF AIR AFFAIRS
ORVIL A. ANDERSON, Major General, United States Air Forces DANIEL F. RumN DE L A BoRBOLA, Director, National Museum of Mexico WILLIAM A. M. BURDEN, of Smith, Barney & Co., New York City JoHN C. CooPER, Institute for Advanced Study, Princeton, New Jersey A. FERRIER, Member, Canadian Air Tt·ansport Board JAMES M. LANDIS, Chairman, U. S. Civil Aeronautics Board PETER G. MASEFIELD, Ministry of Civil Aviation, London WILLIAM F. OGBURN, Professor of Sociology, University of Chkago A. W. R ADFORD, Vice Admiral, United States Navy EDWARD WARNER, President of the Council, International Civil Aviation Organization DERWENT S. WHITTLESEY, Professor of Geography, Harvard University QUINCY WRIGHT, Professor of International Law, University of Chicago
ADDITIONS TO THE BOARD OF TRU STEES Of INTERNATIONAL SOCIETY OF AIR AFFAIRS Received since publication of the Summer, 1947 issue of Air Affairs. The name of Air l\ffairs, Inc., on June 2, 1947, was changed to International Society of Air Affairs.
B. N. ASHTON, President, Electrol, Incorporated H. A. BRUNO, H. A. Bruno and Associates V. E. CARBONARA, Vice President, Square D Company A. T. CoLWELL, Vice President, Thompson Products, Inc. ALI FuAo, Representative of Iraq to !CAO (Montreal) E. E. MENTEN, of Held1·ing and Pierson, The Hague FRANCIS S. MURPHY, Publi1her of The Hartford Times MuNDY I. PEALE, Pre1ident, Republic Aviation Corporation E. E. W1LS0N, Chairman, Airc,·aft Industries Ass'n of America
r An .... . International · - AIR AFFAIRS Ouorterly Journal AITUM I 1947 Orvil A. Anderson and J . F. Rodenhauser______Military Aircraft in Time of Peace 17 Harry Elmer Barnes______Cultural Lag 26 Ellsworth Huntington ______Geography and Aviation 46 Arnold W. Knauth ______J nternational Private Law 61 B. Groesbeck ______Aviation Medicine 68 John H. Frederick______American Air Cargo Developments 79 James T. Lowe______Classical Origins of Military Aviation 101 John C. Cooper ______United Natio11s Trusteeships 115 Livingston Hartley ______Atomic Dilemma: Third W ay Out 128 Quincy Wright ______Atomic Dilemma: Comment 136 Paul R. Hanna ______Education and Air A ffairs: The Next Issue 141 International Society of Air Affairs ______10 Fellows of the Society ___ _ _ 12 Financial Contributors to Air Affairs ______16 The Authors of this Issue ______. ______8 Editorial Advisory Board ____ 4 Additions to The Board of Trustees------ 4 ,. T he Next Issue ------6
WILLIAM D. PARDRIDGE . Editor
JAMES T. LowE Editorial Con1ultant
ELIZABETH KUNKEL Edit01'ial A11i1tant
CLARIBEL R oBE Executive A 11i1tant
Published quarterly by International Society of Air Affairs: William D. Pardridge, PrnkUfll; Stuart S. Ogilvie, Treasurer; Wayne Kendrick & Company, Certified Public Accountants, Washin& ton, D. C., .duditors. Editorial and business offices at 4926 Battery Lane, Washington 14, D. C., U. S. A. Cable address: Airalfairs, w~·shington. Subscriptions, $5 .00 per year postfree throughoat the world. Single copies, $2.00 each. P rinted at Monumental Printing Company, Baltimore 11 , Maryland, U. S. A. Volume II, Number I : Autumn 1947. World copyright, 1947, International Society of Air Affairs, all rights reserved. Eot-e,-ed as second-clan matter August 19, 1946, at the poot office at Washington, D. C., U. S. A., under the Act of March 3, 1879. Internatioaal Society of Air Affain is a non-profit corporation in law and was formerly named Air Allain, Inc.
r STATEMENT OF THE GENERAL PURPOSE OF AIR AFFAIRS The basis of AIR AFFAIRS rests in sociology, New legal questions raised by private and in technology and social change, and in the commercial flying, the position of aviation in hopes of its editors and administrators that this over-all war power, municipal planning, a Journal may encourage people throughout the possible areal expansion of population centers world to consider the impact of aviation upon with consequent family and person reactions, the several social institutions. the effects of rapid transport of business and Of all the forces of social evolution since the government representatives, the air-borne Ice Ages, technology and its correlative, ap atom bomb, etc., are studied so that we may plied science, have a strong claim to being have some expectation of, and planning basis foremost. The aircraft is a product of tech for, future social change. nology; so is the atom bomb. Together they AIR AFFAIRS is not a popular magazine in will have a more marked and lasting effect the accepted sense of the term but more a upon society than the steamship or gunpowder. platform for men of experience and judgment Scientific study of such forces is indispensable to relate their views and researches pertinent to healthy social progress. to this subject.
Selected Titles from Volume I William F. Ogburn Aviation and Society Harold C. Urey Atomic Energy, Aviation, and Society Quincy Wright . Aviation and World Politics H. H. Arnold Science and Air Power Sir William P. Hildred International Air Transport Association Stuart A. Rice . World Aviation Statistics Lewis Mumford Social Effects of the Atom Bomb Sir Frederick Tymms Aviation in India Francis A. Callery Review of American Aircraft Finance • Paul R. Hanna Education Eugene E. Wilson Air Power and Peace C.R. Smith Airline Outlook
RYE DOI.LARS AIR A YEAR Postfree Througl,out tlrt World AFFAIRS .An International Quarterly Journal 49 8 6 BATT ER Y LA NE , WA SH I N6 T O N 14 , D. C. , U. S. A.
r I
lllJNITED NATIONS TRUSTEESHIPS" - BY JOHN C. COOPER
(Reprinted from Autumn 1947 Issue of "Air Affairs")
The author of this article raises some nice points concerning the interpretation of Article 76(d) of the Charter and the "equal treatment" clauses in the Trusteeship Agreements in relation to aerial navigation in Trust Territories. He even casts doubt on the applicability to Trust Territories of the whole of the Chicago Con vention and the mutual undertakings derived therefrom (pages 121 and 126). He concludes (pages 126 and 127) that the several matters in doubt should be clarified by-the various governments concerned (pre sumably the six Administering Authorities) and by ICAO.
One consideration is clear, 'Which is that the situation disclosed further ,.,, by the author will hardly be resolved by/scholarly investigation.
Different Administering Authorities may hold differing views, and a persistent cleavage of opinion between any one of them and another State* as to the extent of the civil aviation privileges which the latter should be accorded in a Trust Territory, could only be resolved either as a result of acceptance by the Administering Authority con cerned of a recommendation by the General Assembly or the Trusteeship Council, or by refer~ce to the International Court of Justice. Hitherto, / it would appear from the article, there has been no such persistent cleavage of opinion; in the Bermuda Agreement between the United States and the United Kingdom, the question was begged by scheduling Lydda as a traffic stop in "United Kingdom territory" (page 119); and, in the United States - France agreement, Trust Territories under French administration were specifically included (page 126). ' .
* 11 State11 is used throughout to denote a Member of the United Nations, in r elation to a Trust Territory; and a Member of \ . the League of Nations (together 'With the U.S.A.), in relation to Palestine:
y • t
- 2 -
To understand clearly what is in practical issue, and to place the issue in its proper perspective, it may be worth recalling that, in relation to the territory of another state, there are six things that one _may, or may not, do with an aircraft operating scheduled , international services: 1. Fly through its airspace without landing (First Freedom). 2. Land for non-traffic purposes - i.e., for refuelling or in emergency (Second Freedom) • • J. Discharge passengers who embarked in one's country of origin (Third Freedom). 4. Embark passengers destined for one's country of origin (Fourth Freedom). 5. Discharge, or embark, passengers embarked or destined, respectively, for the territory of a third state. (Fifth Freedom). 6. Discharge and embark passengers between two points in the
territory (Cabotage). 1 In its crudest fonn, the issue made plain in Mr. Cooper's article is the issue between those who hold that, for the purposes of civil aviation, a Trust Territory is part of the metropolitan territory of the Administering Authority, and those who hold that a Trust Territory is a separate international entity in which the aircraft of all States must enjoy exactly the same treatment as those of the Administering Authority. For the purposes of this i ·ssue, the First Two Freedoms (Nos. 1 and 2 above) have no practical significance, since the overwhelm ing majority of States have subscribed to t he Two Freedoms Agreement. It is in conneetion with the Third, Fourth and Fifth Freedoms and with Cabotage (Nos. 3 - 6 above) that the issue has practical significance and, since it will be simpler to illustrate by reference to particular
• States, the United States and the United Kingdom will be selected
/Moreover, ...
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Moreover, since Lydda is an airport of some international importance, Palestine can be selected as a good example of a "Trust Territory" (for this particular purpose).
A United States airline operating eastwards between New York and
Manila may wish to exercise the Third, Fourth and Fifth Freedoms at points in intervening British territory. Under Article 2 of the
Chicago Convention, 11 British territory" will include not only the United Kingdom, but territories such as Palestine (Lydda), Ceylon* (Colombo) and Malaya (Singapore) -. The grant of the Third Freedom will, if the Bermuda agreement so provides, enable the airline to set down in London, Lydda, Colombo and Singapore passengers embarked in America. The grant of the Fourth Freedom will, on the same assumption, permit the carriage to the U.S.A. of passengers embarking in any one of the four places. Negotiation of an agreement governing the Third and Fourth Freedoms is usually easy - since, if two States are willing to enter into a
bilateral air transit agreement, these two Freedoms are usually the \ ,. minimum that can be mutually accorded. It is in connection with the grant of Fifth Freedom rights that negotiations· are liable to become
difficult. In the case of the example selected, it might be that the U.S.A. wished to pick up in France passengers destihed for London, Lydda, Colombo or Singapore. The difficulty arises because, in the strong competitive spirit dominating present-day international civil \ aviation, the United Kingdom will claim that traffic between French and British territories belongs in the first instance to France and the United Kingdom, and that its division is for bilateral agreement between those two States. Such a claim, however, must yield partially to the economics of air-line operation: this was recognized at Bermuda,
where a complicated fonnula was worked out between the United States I and the United Kingdom to govern Fifth Freedom operation.
/ If a British
Until recently. The position may be different under Ceylon's * latest constitution. • t ' . ' - 4 -
If a British airline operated between London and San Francisco,
it wJuld not be permitted to pick up passengers at La Guardia Field
11 11 C and discharge them at San Francisco. This would be Cabotage , and is never permitted by any State - save for most exceptional reasons. Similarly, under the definition in Article 2 of the Chicago Convention, the carriage by the United States airline instanced above of traffic between London, Lydda, Colombo and Singapore would be Cabotage, and would not be permitted. To sum up, therefore, those who maintain that Palestine is part
of United Kingdom territory, for civil aviation purposes, regard all
air traffie rights at Lydda as something which cannot be secured except by agreement with the United Kingdom, and that (save in most
exceptional circumstances) a non-British airline w.i.11 never secure the right to cart traffic between Lydda and any other place in British
territory. The oppdsite reading derives from Article 7 of the Mandate quoted on pages 119 and 120. It can be held that the United Kingdom is obliged to accord in Palestine to all "Members of the League" (and for this
purpose the expression includes the U.S.A. - see page 118) the same rights as she enjoys there herself. To quote Mr. Cooper's -words on
• page 123:
11 It seems fairly clear that the Administering Authority is now obligated to give to aircraft of all members of the United Nations the same commercial transit and traffic privileges in Tanganyika as may be enjoyed by the aircraft of the Administering Authority, although the situation under the mandate may have been quite different."
(For the purpose of what follows, it w.i.11 be assumed that any argument .. the author draws from consideration of the International Trusteeship System applies with equal force to the Mandates System. The only
reason why Pales~ine has• been chosen as the illustrative example is
that Lydda airport is of international importance.)
.. /The
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The significant words in the passage just quoted are "in Tanganyika", . but, as Mr. Cooper does not, anywhere in his article, proceed to
demonstrate what might be the practical implications of the obligation
~dduced in the quotation, it is not clear whether he has appreciated the full significance of the words.
Let it be assumed for simplicity that, when the Uaj.ted Kingdom entered into the Trusteeship Agreement for Tanganyika, she had entered into no bilateral air transit agreements, and that she was operating a London - Salisbury service w.i.th a traffic stop at Dar-es-Salaam. What rights was she enjoying in Tanganyika? She was enjoying the right
to embark or discharge in Tanganyika passengers destined for or embarked in British territory - e.g. United Kingdom, Uganda, Kenya or Northern or Southern Rhodesia. Literally to fulfil the undertaking in Article
9(a) of the Trusteeship Agreement,.i.e. to"•·• ensure the same rights to all ••• as to his own ••• in respect of ••• transit and navigation
by air ••• 11 , would entail no more than Britain• s permitting a United States airline to embark or discharge in Tanganyika passengers destined for or embarked in British territories in Africa; but, having fulfilled the undertaking!£ Tanganyika, she would be at liberty to nullify it by preventing the United States airline from embarking or discharging ' in British territories in Africa passengers destined for or arriving
from Tanganyika. In short, the author may not have fully appreciated that apparently useful traffic rights secured in one territory are useless unless they can be exercised somewhere else along the route. ' A claim, under Article 9(a) of the Trusteeship Agreement, for more than has been suggested in the preceding paragraph, would be more difficult to sustain. In the instance given, it might be stated that
what the United Kingdom was doing was enjoying traffic rights between
her own territory and Tanganyika. Therefore, the U.S.A. might argue
that she also had the right to enjoy traffic rights between her territory
/and Tanganyika
\ \.
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and Tanganyika - or, better still, as bei11g more in the range of practical possibility, Lydda. Some measure of the dubiety of such a
claim may perhaps be seen in the fact that the U.S.A. 1 s use of Lydda for such purposes has been made the subject of agreement (see page 119).
Such a claim, if unequivocally and universally recognized, would ' amount to opening up Lydda to Third and Fourth Freedom traffic between L it and any State. Coupd the claim be exterided to cover the exercise of the Fifth Freedom? That is to say, could it be claimed that a Swedish airline operating from Stockholm to Lydda, via Prague, would .. be entitled to carry passengers between Lydda and Prague (subject, of course, to agreement between Sweden and Czechoslovakia)? It would
be a complicated task to argue that to _do this would be to enjoy the same rights as the Mandatory Power - unless the latter had actually
secured the same rights. But, if he had secured them, it would have
been by bilateral agreements with Sweden and Czechoslovakia - in which case the rights to be enjoyed at Lydda would have been already settled. As for Cabotage, see what was remarked 'two paragraphs above. To pursue Mr. Cooper's arguments further might lead tb some interesting speculation, but would not be likely to lead to any broader
freedom in international civil aviation. The cure for the ills in that field lie in a multilateral convention to replace the present system
of bilateral agreements. Under such a convention, any practical signi- fi.cance attaching to the "equal treatment" clauses in the Trusteeship Agreements would disappear (so far as civil aviation were concerned).
\ The foregoing arguments have been confined, like Mr. Cooper's, to the operation of scheduled international air services, but it may be worth while to consider the extent to which nationals of states
other than the United Kingdom would be at liberty to operate air
services within Tanganyika. The Territory is not, as Mr. Cooper asserts / on page 119, "of major importance in the development of major air routes".
/The main • • • - 7 -
• · The main tra.ns-Afric,an North-South route is from Cairo to Johannesburg with one main stop half way at Nairobi (kenya). At two points, each half way between the three ma.in airports, are refuelling points, and
the point half way between Nairobi and Johannesburg lies in Northern Rhodesia. Tanganyika, therefore, has no importance on this route, and it is served by feeder lines operating from the main route. Under Article 9(a) of the Trusteeship Agreement, the Administering Authority • would be bound to give equal consideration of tenders to operate such .air services, irrespective of the nationality of the tenderer. Having selected the operator, however, the Administering Authority would then be at liberty to give him a monopoly under Article lO(c). (In , ' practice, the selected operator is a non-profit-making public corporation, and has been given a monopoly. )
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I I To:Depa ,:::c•r:q ,.- if; c1' ~O(!i a.1 fi?lL~. Zc,morill ~ Af!~·rtil':!: ,,. I/, • ,, \• .. ) ' ... "~ ..... y
0 1 • :.1 ~ ""·"." :ix~·ol""' ,:itton to: Pu\:)ll.c I~!,,,raa... ,ionr Legal, ,md ~ -,~ ,L,._t,·:i. lor-16,i: ,11:..e'c,.,,,.,,)
1 Ag:,:·eement bstwaen t.he Unit®d Natio!ls a.rd thll'l Intarrat:i.crull Civil Aviation Organization I as being in f'er-c©, in ecnaequence or acU.on ta.km by the current As~embly of ICM) in Montreal. The Agreems:.'lt ls ecnta.inro 111 prlnuid fom :i.i.1 Doeumt'Jnt A/10.iS. Your atteL,
ti.on is cal led particularly to Articlt,s III, IV 1 'H , VIII., XI".J c.,.:nd I'ITII.
f'ut'I.U-.1:} UN meetings which ICAO are entitled to attend uoo,eir this J..::..-ticle; . stating that
$ notH'h~ations of the dates am places of th~ m.e~tings \rl.11 be ~un~wtlcat fro1'a time to time, as they a.r\3 scha::hil{rl; ar:d asking ICJ.O to ir-J"cr:m thl"I UH of' the n.noa of sui:h representativeo;~'5.i.h:,i1t fm:1:.h!Dl" :!11p&cif.ic invita.tion3. Aa regards notices or 1ie ot:lng.s of the Economie am Socfal Counr.il, H,s CoJ.1.arl.ssions, Sub--Con,ruissions, and 3t,ar,d.lng Co:ir·.-ti:.tees, the !CAO wlll recwive the requisit@ notices on the ordinary dis= tributioti list of E/ docWiants. No filrther a.ct.ion as regards the1,0 ilwitatioms is required in pursuance of the Agreffltttmt. Where for any spscial reason it iB desiNd 1'c.o erurure the presence of a. Nprosenta.tiTe of ICAO at one of the ab01Te meetings, the . .:..-:t:._.:;n :J ... l-;;er.1 $hould hav~ L'Cg-:1:t'd to t.. hii: gS;ner&.l iu1tit.:..t.i.c.u .il.H,~:, .,t:i.~.:. in w: •.,. ve.,;.1.•<&- t~_y-Gmera.Ps letter. Such action cculd, for instance, take the form ot referring to the notic/8 or the at>atings, and stating that th.-, Secretary-General lliOul.d be glad to know the nne or tht1 representative wham ICAO would sem to t.hi., meeting in question,., i:mch ea.set!, of course, :!!Uppl@mlentary action will more &Dpropriately be of an m .thdrawal of the reprcsen·tative~ of ·the Gc,"ll'@l'rura.mt of Franeo Sptii.n, &1d ti, exprae'1 ~ great pl~aeu..""e that tm agreeroont r.a0 now eom.:i into effect,, I am 13-ure that co-= operation betwaen th0 United Nations and the In~mational Civil Avitrtion Qr-garriz&-= tion -arlll be full and fruit.tulo I 'Jfill e-.!nd you shortly a draft of a declaratory protocol on the ent1j7 into fore@ of the agreement, for your cotmll8nts and obae!'Vationec In pur~uanee of A:t'ticle !I of the Ag:r-~e1211t, I have the hoiiour to 1.nv:lte the Org&nization to send :representati:ves to tt'J!l~tings of' the Genaral .f-1.~ t)r-mbly and itrs msin Committees, of the Economic and Social Comcil and its Co•.asioos ru1.d Cornm:!.tt~e~. and of too Trusteership Council, in accordance with the provia:lona cf that, Articl.t!i., Notifi= eatlont-s of tr~ dat...-aei and placee of tha meetings v.tll ba sent to you fl"O!ll tii'!u.9 to ti:mei, furtlwl" 5:plSCifie :l.nvitatitm8o I have the hooom• to be, 'l'ry~ Lie Secret&u·•y~ner:~J. Mr.., Ednrd Wilmar, PNeident ot tm, lnterlm Council, Intt}:mational Ciir:U Aviation Organization, Dom.:'mion Sque.l"(! Building., Dominion Square, !~rnitzreal~ P" Q.. , Canada