International Civil Aviation Conference

THE POSITION OF THE GOVERNMENT OF THE UNITED STATES

By ADOLF A. BERLE, Jr., Assistant Secretary of State, Washington, D. C.

Delivered before the International Conference on Civil Aviation, Chicago, Ill., November 1, 1944

Vital Speeches of the Day, Vol. XI, pp. 124-128.

ON behalf of the American Delegation, I set forth the position of the Government of the United States.

I

The use of the air has this in common with the use of the sea: it is a highway given by nature to all men. It differs in this from the sea: that it is subject to the sovereignty of the nations over which it moves. Nations ought, therefore, to arrange among themselves for its use in that manner which will be of the greatest benefit to all humanity, wherever situated.

The United States believes in and asserts the rule that each country has a right to maintain sovereignty of the air which is over its lands and its territorial waters. There can be no question of alienating or qualifying this sovereignty.

Consistent with sovereignty, nations ought to subscribe to those rules of friendly intercourse which shall operate between friendly states in time of peace to the end that air navigation shall be encouraged, and that communication and commerce may be fostered between all peaceful states.

It is the position of the United States that this obligation rests upon nations because nations have a natural right to communicate and trade with each other in times of peace; and friendly nations do not have a right to burden or prevent this intercourse by discriminatory measures.

In this respect, there is a similarity between intercourse by air and intercourse by sea; for, as is well known, intercourse by sea between friendly nations in times of peace often requires the passage of ships through the waters of other countries so that voyages may be directly and safely made.

At sea, the custom of friendly permission for such transit has, after centuries, ripened into the right of innocent passage, but its beginning was in the customary permissions granted by friendly nations to each other.

It is the view of my Government that, in the matter of passage through the air, we are in a stage in which there should be developed established and settled customs of friendly permission as between friendly nations. Indeed, failure to establish such customs would burden many countries and would actually jeopardize the situation of most of the smaller nations of the world, especially those without seacoasts. For, if the custom of friends did not permit friendly communication and commerce and intercourse through the air, these countries could at any time, or at all times, be subjected, even in peace, to an air blockade.

Clearly this privilege of friendly passage accorded by nations can only be availed of or expected by nations which themselves are prepared to accord like privileges and permissions.

It is, therefore, the view of the United States that, without prejudice to full rights of sovereignty, we should work upon the basis of the exchange of needed privileges and permissions which friendly nations have a right to expect from each other.

II

No greater tragedy could befall the world than to repeat in the air the grim and bloody history which tormented theworld some centuries ago when the denial of equal opportunity for intercourse made the sea a battleground instead of a highway.

You will recall that for a time nations forgot the famous Roman observation that the law was lord of the sea, and endeavored to establish great closed zones, from which they attempted to exclude all intercourse except through their own ships, or to place any other nation permitted to enter these zones at a discriminatory disadvantage. At various times there were included in these zones a great part of the north Atlantic and the North Sea; the waters lying between North and South America which today we call the Caribbean and the Gulf of Mexico, together with much of the middle Atlantic; the Mediterranean; and great parts of the western Pacific and the waters surrounding the East Indies. These zones became fertile breeding grounds for commercial monopolies, which sought to levy tribute on the commerce of the world or to exclude or discriminate against the trade of other nations. Political complications followed which set neighbor against neighbor and friend against friend. War after war resulted from the attempts of bold pioneers, supported by extreme nationalist policy, to claim and exercise these special privileges. One result of one such controversy was the emergence of a young Dutch lawyer, by name Hugo Grotius, who, in a controversy over a Dutch ship, undertook to argue the case for the right of friendly intercourse, in a book addressed to the free and independent peoples of Christendom, and thereby began the long march of history toward the law of freedom of the sea in time of peace.

It is true that there are differences between closed zones upon the sea and closed zones in the air, arising from sovereign rights of nations affecting the air above them which they do not have in the open sea. Yet the dangers from closed air, where it lies across established or logical routes of commerce, are not dissimilar from the dangers which arose through the closing of the sea lanes. Indeed the base from which Grotius argued was not different from the base of our contention today, namely, that friendly nations in time of peace have the right to have intercourse each with the other, and, in friendliness, should make this intercourse possible to others.

Perhaps no greater misfortune could befall the world than to set up a scheme of things by which new, shadowy barriers are traced in the air, marking out for the future huge invisible frontiers, certain to become high future battlelines.

The United States accordingly will propose that there shall be an exchange of the needed privileges of intercourse between friendly nations, and that, in such exchanges, no exclusion or discrimination shall exist.

III

The privilege of communication by air with friendly countries, in the view of this Government, is not a right to wander at will throughout the world. In this respect traffic by air differs materially from traffic by sea, where commerce need have no direct connection with the country from which the ship may come. In air commerce, there appears at present to be little place for tramp trade.

In point of fact, the great air routes are not as yet sources of profit to the carriers, or indeed to nations fostering them, but rather have been developed at large expense by subsidies and other assistance. It would seem neither equitable nor just that routes so developed should be claimed by other countries not for the purpose of maintaining their own communications but merely for the purpose of speculating in the possible profits of a commerce worked up by others among themselves. In this respect the air routes of the world are more like railroad lines than like free shipping; and, indeed, the right of air intercourse is primarily a right to connect the country in which the line starts with other countries, from which, to which, or through which there flows a normal stream of traffic to and from the country which establishes the line.

These problems may well be left for later conferences. It is probably best not to try to see too far into the unknowable future. The business we have in hand now is the business of establishing the means by which communications can be established between each country and another, by reasonably direct economic routes, with reasonably convenient landing points connecting the chief basins of traffic. So far as this country is concerned, the United States has made public the routes which it will endeavor to obtain by the friendly exchange of permissions of transit and landing between it and the countries concerned. It is prepared to discuss like permissions with other countries seeking intercourse with the United States, and it hopes that similar agreements may be worked out between the other countries here present to take care of their own needs for communication.

In respect of establishment of routes which do not affect the United States, this Government disclaims any desire to intervene; and it does not believe that countries not interested in the routes sought by the United States will wish to intervene.

Rather, by common counsel, we should work out the general form of the friendly permissions here to be exchanged on a provisional basis and then avail ourselves of the opportunity here presented to bring together all the countries interested in any route which may be proposed at this time for the purpose of reaching, now, the relevant arrangements.

As the United States conceives it, this will be the work of the Committee on Provisional Routes. If its work is well done, I hope that we shall be able at the close of the Conference to report a great number of agreements between the interested countries, which, taken together, shall thus establish a provisional-route pattern capable of serving the immediate needs of the world and ready to be put in effect where and when the military interruptions of war shall have ceased.

Thus handled, no existing route or rights will be prejudiced or need come into discussion. The desire of any nation to obtain routes in the future, which it may not presently be able to use, will not be foreclosed. The pressing necessities of the situation will be taken care of, and the customs and practices will have ample room in which to grow as experience makes us wiser.

IV

There is, in the view of the United States, a basis for attempting now, in addition to the route agreements proposed, an air-navigation agreement which shall modernize and make effective the rules of aerial navigation.

This task was attempted in Paris in 1910 without success, was carried forward with more success by the drafting of the Paris Convention of 1919*. Another effort was made in the Habana Convention of 1928,† and there were other agreements, among which must be cited the Warsaw Convention.

Yet the fierce developments compelled by five years of war have vastly changed and advanced the art of aviation, andat the same time have vastly increased the division between military aviation and civil air transport. According to experts, it is not possible to convert a peaceful transport plane into an effective instrument of war despite wide-spread popular misconception to the contrary; and it is very nearly impossible to convert a warplane into an economically available instrument of commerce. Twenty-five years of experience since the Paris Convention have taught us many things about the needs of travel and commerce by air. It is the hope that we shall here be able to agree upon a draft of an air-navigation convention.

The customs affecting friendly intercourse in the air between nations, giving effect to the natural right of communication, have been far developed. So far as possible, it is hoped that they can be embodied in a document which will set out in these respects the fundamental law of the air.

Should this prove impossible, the Government of the United States believes that in any case we shall be able to agree upon a number of guiding principles which may serve, at least in part, as terms of reference and instructions for an interim drafting committee which can complete the work, should we be unable to finish it here, and submit the result for ratification by all nations.

This task is a challenge to a noble piece of work. To the extent that intercourse by air can be brought within accepted rules of orderly development, we shall have removed great areas of controversy from future generations. If we are successful, we shall have rendered a real service to mankind.

V

Intimately connected with the problem of routes and that of rules of the air is the problem of international organization, designed to make more effective that friendly cooperation which is essential if airplanes are not to be locked within their national borders.

The preparatory conversations for this Conference have revealed two schools of thought on this subject, both of which are entitled to be examined with respect.

All agree that an effective form of world organization for air purposes is necessary. This does not exclude regional organizations having primary interest in the problems of their particular areas; but no regional organization or group of regional organizations can effectively deal with the new problems resulting from interoceanic and intercontinental flying. This development, tentatively begun before the outbreak of the present World War, has now achieved a vast development, so that planes span oceans and continents on regular schedule with less difficulty than was involved in crossing the English Channel a few years ago.

The problems resulting from this development fall roughly into two great categories: The commercial and economic problems occasioned by competition between different transit lines and streams of commerce, private or governmental; and the technical problems involved in establishing a system of air routes so handled and so standardized that planes may safely fly from any point in the world to any other point in the world under reasonably uniform standards of practice and regulation. Of this last, a separate word will be said later.

But while there is general agreement on the need of organization, there is difference as to the extent of powers to be accorded a world authority or commission such as has been forecast.

It is generally agreed that, in the purely technical field, a considerable measure of power can be exercised by, and indeed must be granted to, a world body. In these matters, there are few international controversies which are not susceptible of ready solution through the counsel of experts. For example, it is essential that the signal arrangements and landing practice at the Chicago airport for an intercontinental plane shall be so similar to the landing practice at Croydon or LeBourget or Prague or Cairo or Chungking that a plane arriving at any of these points, whatever its country of origin, will be able to recognize established and uniform signals and to proceed securely according to settled practice.

A number of other technical fields can thus be covered, and, happily, here we are in a field in which science and technical practice provide common ground for everyone.

Some brave spirits have proposed that like powers be granted to an international body in the economic and commercial fields as well. One cannot but respect the boldness of this conception and the brilliance and sincerity with which it has been urged. But—and this, to the Government of the United States, is the cardinal difficulty—there has not as yet been seriously proposed, let alone generally accepted, any set of rules or principles of law by which these powers would be guided. Thus it is proposed that an international body should allocate routes and divide traffic, but a great silence prevails when it is asked on what basis shall routes be allocated or traffic divided, or even, what is "equitable" in these matters. Shall an international body be authorized to say, "We do not like Lusitania at present; therefore we deny her carriers routes; we favor for the moment the aspirations of Shangri-la; therefore we give her license to fly"? Shall it be empowered to say, "We wish to preserve a Scythian route from competition, and accordingly divide traffic so that Numidia shall have little or none"? Shall the first flying line in the field be protected against newcomers, or shall there be a policy of fostering newcomers to the end that aviation may be encouraged? Shall the members of such a board represent their national interest, or shall they be denationalized, uncontrolled arbiters? On the political side, can any nation delegate at this time, in the absence of such established law, the power to any international group to say, "You are entitled to access to the air; but we deny it to your neighbor"? Under these circumstances, imprecise formulae mean in reality arbitrary power, or petty deals to exclude competitors where one can and to divide traffic and profits where one must.

For this reason, the opposite school of thought, which is shared by the United States, believes that international organization at this time in economic and political fields must be primarily consultative, fact-gathering, and fact-finding, with power to bring together the interested states when friction develops; with power to suggest to the countries possible measures as problems existing and unforeseen come up; and designed to set up a system of periodic conferences which may lay out and agree upon and continuously develop the necessary rules as experience and prudence shall indicate their possibility and gathering custom shall make them feasible.

After a reasonable period of experience, and the development of ever-growing areas of agreement through processes of consultation and mutual agreement, we may then reexamine the possibilities of entrusting such an organization with such added powers as experience may have shown wise, and as prudence and well-being may dictate.

No one in the English-speaking world is unfamiliar with the real and poignant hopes which lie behind the position of our friends from New Zealand and from Canada, who have been most active in propounding the doctrine of an organization with power as a solution. Most of us are familiar with the hopes expressed by the great, imaginative English

writer, Mr. H. G. Wells, that an aerial-transport board might come to regulate the airways of the world untrammelled by these blundering things called government, and thereby minimize the danger of struggles like that through which we .are now passing. All of us have read the brief, disguised as a piece of brilliant fiction, by Mr. Rudyard Kipling called With the Night Mail in which, under cover of a description of an airship crossing the Atlantic in a heavy storm, he developed his theory of an aerial-transport authority, regulating the affairs of the world. Many of us are not too old to remember that it was Alfred Lord Tennyson who connected the hope of a lasting world federation for peace with the coming of air commerce, in passionate lines showing the wonders of the world yet to come which he never saw but part of which have proved marvelously and terribly true:

Saw the heavens fill with commerce, argosies of magic sails,
Pilots of the purple twilight, dropping down with costly bales;
Heard the heavens fill with shouting, and there rain'd a ghastly dew
From the nations' airy navies grappling in the central blue. . . .
Till the war drum throbbed no longer and the battle flags were furled
In the Parliament of Man, the Federation of the world.

I would not willingly close any door to the ultimate realization of that splendid dream, and I believe that, painfully and point by point, we are perhaps beginning to approach an era in which it may be realized. But it would be neither statesmanship nor practical to pretend that that situation has presently arrived. It would be unworthy not to go as far, at present, as we can. But the process must be one of evolution, for world peace must be world law and not world dictatorship. You solve no problem of peace merely by delegation of naked power.

For that reason, the United States will support an international organization in the realm of air commerce having power in technical matters and having consultative functions in economic matters and the political questions which may be directly connected with them under a plan by which continuing and collected experience, widening custom, and the growing maturity of its counsel may establish such added base as circumstances may warrant for the future consideration of enlarging the functions of the consultative group.

VI

Certain specific matters remain to be dealt with. It is the view of the United States that each country should, so far as possible, come to control and direct its own internal air lines. In the long view, no country will wish to have its essential internal air communications under the domination of any save their own nationals. This, of course, does not exclude arrangements by which assistance can be obtained from other countries in the form of capital, or technical assistance, but suggests recognition of the principle that the people of each country must have the dominant voice in their own transport systems. If air transport is not to become an instrument of attempted domination, recognition of this principle seems to be essential.

For this reason, this country reserves, and believes that every country will insist on the right to reserve to itself, the internal traffic known as cabotage, so that, if it chooses, traffic between points within its borders may be carried by its own national lines. Clearly, the right of reserved cabotage can be exercised by one country only, for if a number of countries were to combine to pool their cabotage as between each other, the result would be merely to exclude nations not parties to the pool; and it is the firm conviction of this Government that discriminatory or exclusive agreements are raw material for future conflict.

Partly as a result of the turn which has been taken by war production, the United States has, at the moment, substantially the only supply of transport planes and of immediate productive facilities to manufacture the newer types of such planes.

The Government of the United States does not consider that this situation is permanent—or, indeed, that it should be permanent. It knows very well that other countries are quite as capable of manufacturing planes as we are; that their engineers are as good, and their science as far-reaching. Far from using this temporary position of monopoly as a means of securing permanent advantage, we feel that it is against our national interest and, we think, against the interests of the world to try to use this as a means of preventing others from flying.

Consequently, this Government is prepared to make available, on non-discriminatory terms, civil air-transport planes, when they can be released from military work, to those countries which recognize, as do we, the right of friendly intercourse and grant permission for friendly intercourse to others.

This means that no country desiring to enter the air is barred from the air because it may have suffered under the heavy hand of enemy invasion or because we may have played a leading part in the task of manufacturing and developing long-range commercial planes.

A by-product of war has been the development of a great range of aids to navigation and flying which should vastly increase the safety and speed and comfort of air commerce. We are prepared to encourage the exchange of technical information between ourselves and other countries, to the end that the best of the art of aviation may become a part of the general fund of the world's resources.

There has been fear, a fear widely spread in this country, that devices such as subsidies would be used by us or by other nations so that the rates and charges in air commerce might reach such levels as would be designed to drive other planes out of the air. We have no such intent ourselves, and we would oppose any such policy if practiced by others. No country can expect at present to have wide-flung aviation lines without subsidies, as matters now stand; but while a subsidy is legitimate and useful to keep needed planes in the air, it is certainly noxious if designed to knock the planes of others out of the air. For this reason, the United States is prepared to discuss ways and means by which minimum rates can be agreed upon and by which the subsidies which are involved in all transport trade shall be used for the purpose of legitimate air communication but not for the purpose of assisting rate wars or uneconomic competition.

In this way, we believe there can be achieved a rule of equal opportunity from which no nation at this table shall be excluded.

VII

All of us here assembled are in some sense trustees of the present, and what we do will also influence the future in ways which we can hardly calculate. Science has vouchsafed us a great tool of international relationships, and custom is beginning to teach us its use. But science leaves human values to men; and this tool may serve or injure, unite or

divide, kill or save, as men use it. If we are able, now and later, to bring the experience and the knowledge gained in the laboratory, on the battlefield, and in peaceful flying within the range of sound and effective rules and of gracious practices, excluding none and conceived on a basis of worldwide equality of opportunity, we may open a new and statelier chapter in the history of the conquest of the air.

Oppressing none, considering all, establishing law where we can, and taking common counsel where the law has yet to emerge through custom and experience, liberating the wings whose line goes out to the ends of the earth, we shall succeed if our decisions are informed by that honor and vision and common kindness which, now and always, are the great content of wisdom.