CONVENTION ON INTERNATIONAL CIVIL AVIATION

FRIDAY, FEBRUARY 23, 1945

UNITED STATES SENATE, COMMITTEE ON FOREIGN RELATIONS, Washington, D. C.

The committee met at 2 p. m., pursuant to adjournment from Tuesday, February 20, 1945, in the committee room, the Capitol, Senator Walter F. George presiding.

Present: Senators George (presiding), Green, Tunnell, Johnson of California, La Follette, Vandenberg, White, Austin, and Wiley. Also present: Senator Bailey.

Also present: Dean Acheson, Assistant Secretary of State; Stokeley W. Morgan, Chief, Aviation Division, Office of Transportation and Communications, State Department; L. Welch Pogue, Chairman, Civil Aeronautics Board; Edward Warner, Vice Chairman, Civil Aeronautics Board; and William A. M. Burden, Assistant Secretary of Commerce.

PROCEEDINGS

Senator GEORGE (presiding). Let the meeting come to order. (After preliminary discussion off the record, the hearing continued, on the record, as follows:)

Senator WHITE. I suggest we go on record as inviting the President to send that treaty down here at the earliest possible moment, and that we ask the State Department to take whatever steps are appropriate to get us back to the status quo.

Senator VANDENBERG. To what extent would ratification of the treaty wipe out the other three documents?

Mr. ACHESON. It would not, Senator. The treaty if ratified, and ratified by other countries, would superimpose or substitute a permanent organization in the aviation field for the purely temporary one which is set up by the interim agreement. The interim agreement sets up an organization to last at most 3 years or until the coming into effect of the permanent organization, so in that respect what the temporary organization does is organize the work and get it going pending a favorable action upon the treaty. If the nations do not accept the treaty then the temporary organization dies and that work ends.

The other agreements, the two and the five freedom agreements, are agreements which put into effect, subject to 1 year's cancellation, certain principles of reciprocity in flying. They are in the hands of all the agencies of the Government which are concerned with this matter, on the executive side, essentially to get our planes into the air and get them going pending the working out of more enduring

arrangements. Those are not dependent on these other considerations, although as I said the other day, if Congress should consider apart from these agreements they wish to have different legislation from the legislation which it now has, and enacted different legislation, then the action of the Executive would have to conform to that and anything which was contrary to the new legislation in these agreements would call for the denunciation of these agreements and they would go out of effect 12 months from the time that notice was given. That is the situation.

Now, if I might say one word about the motion which was made by this committee; Senator Wiley has my copy of it. The motion was as follows:

On the motion of Senator Vandenberg, of Michigan, the committee voted to request the executive department of the Government that papers, matters, and commitments of any nature relative to the International Civil Aviation Conference held recently at Chicago be held in abeyance until the committee could review and consider the subject at the new session of Congress, probably the early part of January.

Now, the State Department did not even propose to do anything until a month later than the period mentioned in this resolution. When Mr. Stettinius and I were before the committee in January and this question was brought up, and I was asked by him to report, I had not wished to talk about aviation matters and said that the Department was not taking any action and that as soon as the Department had decided what it thought was the appropriate course to take it would notify in advance the chairman of the committee so he could take whatever action was necessary.

We did make up our minds, we did notify the chairman, the chairman told me to pursue certain courses, which I did pursue, reported to him, and was given cause by him to go forward.

Now, I think that everybody has behaved in complete good faith and in accordance with the arrangements which were made.

Senator VANDENBERG. Well, I think they have proceeded, Mr. Secretary, in complete good faith, but also in complete misunderstanding; is that equally true, that the good faith is matched by the misunderstanding?

Mr. ACHESON. Well, I do not know. I should not think there is much misunderstanding.

Senator WHITE. Of course the result is that things have been done. that were not contemplated would be done when the committee passed this resolution. In other words, the United States proceeded to indicate its acceptance of the doctrine before that matter had been before this committee, and the committee had had its full opportunity to not only study the papers but to study the import of the papers. Now, I do not see how we could escape that fact.

Senator VANDENBERG. I think that is so. I have the greatest sympathy with the State Department's reluctance to appear to be "on again, off again, and then gone again, and back again," on matters of this nature; and I would like to avoid if possible the embarrassment which would be involved in the course suggested by Senator White, because I think it has real hazard to our general international contacts at this moment. On the other hand it seems to me that at least one of these agreements which you have promulgated takes out of the hands of Congress a very fundamental question of postwar air policy,

and in which two Senate delegates to your Chicago Conference find themselves at variance with the State Department.

Senator WHITE. I would like to add to that, I share the feelings of Senator Vandenberg. I regret the situation which has developed, and I can appreciate what it must be of embarrassment to the State Department in it; and I would not question the good faith of anybody in the State Department on any account; but here we are in a situation where two Senators of the United States that were representing the United States at this Chicago Conference, as far I believe, as the record goes find themselves holding the views contrary to the views held by the Department itself; and here we are with the United States having indicated its acceptance of the interim agreement while we all supposed, many of us at least, that the matter was coming back here before acceptance of any part of these arrangements or these documents was indicated by the Department.

Now, I do not know what to do in the circumstances. My interest is a sort of reflected one. My colleague is not on the committee, and I am trying in my feeble way to represent his interests in this whole subject matter much more than I am trying to represent my own, because I know very little about it.

Senator WILEY. Mr. Chairman, I would like to ask a question of Senator Bailey. This particular communication relates to "matters and commitments of any nature relative to the International Civil Aviation Conference." Do these agreements come in your opinion within that clause, "matters and commitments of any nature"? Senator BAILEY. Oh, I think so. I think that is right.

Mr. ACHESON. I think there is no question that it referred to these four.

Senator WILEY. Have you seen these agreements?

Senator BAILEY. I do not care to go into the merits of it, but you gentlemen have only one question that I can see. Your question is, Does the interim agreement fall within the law? If it does, your jurisdiction is ousted. If it does not fall within the law, it is a treaty and your jurisdiction attaches. You just settle that question.

Senator VANDENBERG. And your testimony is that it does not fall within the law?

Senator BAILEY. To the extent that I stated the other day. I did not know that at first. I came to that gradually. I came to that gradually. My presumptions were all in favor of the interim agreement. I wished to go along, and the question that was raised in my mind was not raised until this conference in the Commerce Committee room. Senator Brewster and somebody put forth some questions, and I began thinking for the first time of the effect of the interim agreement upon the jurisdiction and the rights of the Civil Aeronautics Board, if under the law, and as it appeared to me and I am driven to the conclusion-that you substitute a system of permit to foreign-flag lines to come into the interior of this country, taking up traffic, going on down south, in a straight line, and returning, you substitute that right for a procedure that is prescribed in the statute, and that procedure is that they shall apply for the route, and if the Civil Aeronautics Board finds that it is in the public interest to award the route, they can do it, with the approval of the President. Now, that is the law; but if the interim. agreement goes into effect first in the matter, they would come in,

not by way of the Civil Aeronautics Board but would come in by way of an agreement made by the State Department.

Now, that is the whole question in my mind. Mr. Acheson takes the other view. I stated my reasons for my view. I do not care to go into that, but if I were you gentlemen I would make up my mind about that. You do not need to take my view. You do not need to take Mr. Acheson's. You have got your own capacity to make up your mind. Investigate it and if you find the interim agreement is within the law, then I think you are out of court; if you find the interim agreement is not within the law, then you are in court, you have got something to say about the treaty; and that is the whole question, in my mind.

The CHAIRMAN. Is there anything else that any member of this committee wishes to say? Mr. Acheson?

Mr. ACHESON. At our last meeting, Senator, this legal question was discussed.

Senator BAILEY. Mr. Acheson, will you excuse me? I am bound to make this engagement; I have been waiting so long. Excuse me. Senator GEORGE. Well, thank you for coming even that long, Senator Bailey.

Mr. ACHESON. At the last meeting of the committee on this subject, Senator, this question of law as to whether this was an Executive agreement or was not was discussed at considerable length. The committee wanted to hear from Mr. Pogue further on a legal opinion which he had given in the past as general counsel of the CAB; and the desire was expressed by many members of the committee, including Senator Brewster, to hear something about the merits, because it had been stated that up to that point the committee had confined itself to the question which Senator Bailey has just posed.

We are prepared to go into the merits if the committee wishes that, and to that end we have the gentlemen here who know all about the merits; Mr. Morgan, from the State Department; Mr. Warner and Mr. Pogue, from the CAB, and the Assistant Secretary of Commerce, Mr. Burden, in charge of aviation. If the committee would like to hear the merits we would be glad to do it. If the committee wishes to hear further discussion on this question of law, I should like very much to do that because one always feels that ones view must be right, but I am completely convinced that this is a clear matter, Senator, and I am not saying that as an advocate, I am saying that because I am convinced of it, and that there are here two very clear conceptions under this law as to how a foreign aviation line comes into the United States. Both are provided for in the statute and both lead up to a final decision by the President.

The first one is a civil aviation company of a foreign nation which wishes to come in when there has been no agreement whatever between the United States and his country; that line comes in as an applicant before the CAB and it takes certain procedural steps; it builds a record, it has a hearing, and the CAB then makes its recommendation to the President; the President decides. He need not decide the way he has been advised by the CAB; he may reverse the CAB and decide the other way if his judgment is persuaded in that direction. Now the other method is the method by which the line comes in following an agreement between the United States and a foreign country to grant reciprocal rights; that is provided for twice in the statute;

and when that situation occurs the law provides that the State Department which advises the President must consult with and be guided by the CAB; so the CAB in both cases advises the President and in both cases the President decides.

It seems to me that there is no question but what this idea of an agreement between the United States and other nations is provided for in the law; there is no doubt that it has been done in the past; there is no question that no objection has ever been raised to that in the past when the agreement has been between the United States and one other nation. The only objection is now raised because the agreement is between the United States and a group of other nations. It makes no difference under the statute whether you take nations one by one or take them by groups; again the question of law is the same; the provisions of the statute are the same.

It seems to me just as clear as anything could be that the Congress itself has set up this procedure in both cases, leaving it to the President; in both cases, advised by the CAB as to whether or not he shall grant the reciprocal routes; and if the other nation gives us reciprocity on the right, the President is entitled under the statute to give the same rights to that nation.

Now that, Senator George, seems to be the statutory situation, and within that statutory situation the President has acted.

Now we can go into the merits if you wish, and I should be delighted to do that the merits of the policy as distinct from the merits of the legal question.

Senator GEORGE. What is the pleasure of the committee?

Senator WHITE. Mr. Chairman, it occurs to me that it would be the part of wisdom to postpone the discussion of the merits, perhaps to postpone any discussion of the matter, until Senator Brewster can be here; and not only be here but also participate in the discussion. He is prepared to do it; I am not. I do not know what we can do. I have just assumed the committee would want to hear Senator Brewster, and I cannot believe the committee would proceed to a conclusion without giving him the opportunity to put forth his views. Senator GEORGE. What is the pleasure of the committee as to proceeding to a discussion of the merits of the agreement? I was here at the beginning of the meeting the other day, and I came in at the end. I had another committee meeting which I was obliged to attend.

Will you give just briefly the status of these so-called "interim agreements," "ad interim agreements," or whatever they are called? I mean the factual statement.

Mr. ACHESON. You mean as to what they provide, Senator?

Senator GEORGE. No, sir; not going into them, but how they came into being, I would just like to know. I would like to have that. Mr. ACHESON. I think I understand what you wish.

Senator GEORGE. Yes, sir-how they came into existence. Were they brought about by this conference at Chicago?

Mr. ACHESON. Yes, Senator; at the conference.

Senator GEORGE. Or as a matter of procedure under the law as it exists, before the Commission? I do not know that I understand it at all. I would like information on that feature of it.

Mr. ACHESON. I think perhaps I can make that clear, sir.