all attempts to establish just, enforceable world law and to effect foolproof disarmament; (2) grave obstacles probably would be raised to settlement of our international disputes by arbitration or judicial proceedings; (3) if international negotiations were not completely frustrated, the Executive would be seriously handicapped in negotiating agreements for the adequate defense of America and the West; and (4) such a change in our Constitution might preclude any possibility that the United Nations could be strengthened and improved in a U. N. Charter Revision Conference if held in 1955-56. Had those proposals then been incorporated in the Constitution of the United States, it is very doubtful whether this country could have sponsored the North Atlantic Treaty Organization or proposed the American plan for the international control of atomic energy. Dated: March 23, 1953. PHILIP W. AMRAM, Guggenheimer, Untermyer, Goodrich & Amrum, Washington, D. C. Dean of Law School, University of North Carolina, Chapel Hill, N. C. Doherty, Rumble, Butler & Michell, St. Paul, Minn. HENRY B. Cabot, Boston, Mass. THOMAS H. MAHONY, Mahony, Bryer, Coffin & Willis, Boston, Mass. A. J. G. PRIEST, Professor of Law, University of Virginia; Reid & Priest, New York, N. Y. ABRAHAM WILSON, General Counsel, United World Federalists, Inc., Mr. SMITHEY. The statement of the Air Transport Association of America. Senator KEFAUVER. It will be received and made a part of the record. (The statement is as follows:) Hon. WILLIAM LANGER, AIR TRANSPORT ASSOCIATION OF AMERICA, Chairman, Senate Committee on the Judiciary, United States Senate, Washington, D. C. MY DEAR MR. CHAIRMAN: The Air Transport Association represents all of the scheduled international air carriers, who operate into 80 jurisdictions. The Association's interest in Senate Joint Resolution 1 stems from the fact that only by virtue of dozens of treaties and agreements now in effect can many of our members operate today, and only if these are maintained, and others entered into, can they grow tomorrow. Since each state has sovereignty over its air space, American aircraft can fly in air space of a foreign country only as treaties or agreements admit them. The range of international understandings under which American carriers operate are as wide and varied as this new and changing enterprise requires. Basic treaties are needed to define the broad rights in the air. Treaties of commerce and friendship are essential to give rights to American personnel in foreign states. Bilateral air agreements are needed to permit scheduled commercial operations between two states. Binding technical agreements are essential to govern aircraft movements in traffic patterns, channels of communication be tween pilots and traffic controllers and airport traffic directors, and other agre ments are needed to establish common alphabets, units of measure, barometrie pressure settings, radio frequencies, maps, and literally hundreds of other operating procedures to be used by pilots and traffic controllers speaking a dozen different languages. Some of these understandings are subject to change on notice of a few hours. We know of no way that air transport could be conducted internationally without first, a countless number of agreements, and second, and equally important, a constant readiness to change some of them on short notice as conditions require. Our opposition to Senate Joint Resolution 1 is based on a belief that this legislation would make far more difficult, if not impossible, the negotiation, adoption, and amendment of these essential agreements. To support our conclusion, we will discuss illustrative agreements and show how they would be harmed by this resolution. One pillar of international air transportation is the International Civil Aviation Convention, adopted at Chicago in 1944 and ratified by the United States in 1946, by which more than 50 states agreed to the rights each has in the air space of the other and on the high seas. These states agreed to the basic conditions governing flight over each other's territory, to requirements as to registration of aircraft and nationality of aircraft, to recognize the licenses of crew competency and certificates of airworthiness of aircraft issued by contracting states, and the measures to be taken to facilitate air navigation. This convention established the International Civil Aviation Organization as a continuing international agency which could establish standards of operations and procedures to which the states must conform or state specific deviations. Under that convention, so many standards and procedures have been agreed to that it requires more than 1,000 pages to print them, and to keep them current has required hundreds of amendments since their adoption. When this treaty was completed, it was hailed as advancing international freedom of the air to a point reached in the maritime law only over a period of 200 years, and a half-dozen major wars. The treaty was prepared by a conference called by our Government. Our Government played a leading role in the deliberations, and our Senate ratified it unanimously. Fifty-eight countries have ratified or have adhered to it, and today, when international air commerce has advanced beyond what was then anticipated, there is no major demand for its abrogation. But if Senate Joint Resolution 1 is adopted, it will be impossible for the United States to enter such a treaty. The provision which would prevent the United States from entering such a treaty is section 2 of the resolution, which prohibits the United States from entering treaties which authorize "any international organization to supervise, control, or adjudicate rights of citizens of the United States within the United States enumerated in this Constitution or any other matter essentially within the domestic jurisdiction of the United States." The Chicago convention not only authorizes arbitration of disputes between states by ICAO in article 84, but it also provides, in article 87, for the enforcement of such decisions by providing that each contracting state "undertake not to allow the operation of an airline of a contracting state through the air space above its territory if the council has decided that the airline concerned is not conforming to a final decision of ICAO. Such a yielding of sovereignty is a serious matter-one not taken lightly and one with possible crushing impact on United States airlines in the future, but one which weeks of negotiation proved to be essential "give" if we were to get the desirable "take". * Another treaty which was initiated by the United States Government is the Convention on International Recognition of Rights in Aircraft, commonly referred to as the Mortgage Convention. This convention was devised to secure international recognition of the complicated legal status of aircraft when operated by one person but owned by another person in a second country and levied on for debt in the second or a third country. This status develops when title of aircraft is pledged as security to finance expensive modern aircraft which operate internationally. The lender is justifiably concerned that when the aircraft is outside the country where his mortgage is recorded, a foreign creditor of the borrower might seize the aircraft and leave the lender without security. To protect the American lender and thereby make it easier for the operator to finance new purchases of equipment, it was necessary to get agreements as binding as possible that foreign courts would recognize liens or mortgages on airplanes which are recorded in the United States. This amounts virtually to getting foreign states to adopt many of the features of our law and to recognize legal rights which are valid here, although strange to them. That treaty, which was eagerly sought by and for the benefit of American interests, was no small victory for our negotiators. It too was unanimously ratified by our Senate. But the proposed Senate Joint Resolution 1 would prohibit the United States from entering such a treaty. To effect the aims of that treaty, it provides that if a creditor in the United States tries to seize a foreign airplane to enforce payment of a debt, the rights of the United States creditor are subjected in some instances to the law or the courts of the country where the aircraft is registered. No longer will the creditor's rights against the airplane which are rights in the United States-be decided solely by the law of the United States; because under the convention they may be decided by the laws or courts of foreign states. This is prohibited by the provision in section 2 of the resolution, which bars treaties which authorize or permit "any foreign power*** to supervise, control, or adjudicate rights of citizens in the United States." Another international air transport problem on which international agreement has been sought is the liability of aircraft of one country for damage on the surface in another. Some airline operators fear that the crash of an aircraft into an area of inflammable, crowded dwellings could result in liabilities of so many millions of dollars as to bankrupt a carrier. On the other hand, the persons on the ground are concerned that aircraft of foreign countries could do such damage and the operators have no assets to reimburse the losses. To protect both of these interests, the ICAO legal committee prepared the Rome Convention which, on the one hand, regulates insurance requirements to provide protection for the persons on the ground, and on the other, sets a maximum liability to protect the operator. To make these provisions effective, the convention provides that lawsuits may be brought only in the courts of the country where the accident occurred. Thus, if an American-flag aircraft destroyed American property in Paris, the American claimant could sue only in France, and subjects his rights to the adjudication of a foreign power in forbidden conflict with section 2 of Senate Joint Resolution 1. We do not here assert that this treaty is a desirable one in all its aspects, or that the United States should become a party. In fact, the United States has not signed it, and we have not decided whether to urge adherence. Our point is, however, that in order to draft a treaty which will deal with the international problems this country faces, it is often necessary to deal with rights which now, for the first time, have international significance. Our ability to deal with them in treaties should not be hamstrung at the threshold of negotiations by the blanket prohibitions included in Senate Joint Resolution 1. Another type of agreement vital to international air commerce is the bilateral agreement between states which prescribes the rights to carry international air traffic. These agreements exchange operating rights, designate cities which may be served, contain provisions prescribing standards for determining whether service is excessive, and prescribe procedures for settling rate or other disputes. These agreements represent the keenest international commercial bargaining; access to the lucrative United States travel market is exchanged for access to foreign points. The United States has made more than 45 such bilateral agree ments, and on these rest our commercial operations in the airlanes of the world. These commercial operating arrangements are executive agreements which would receive, we believe, several mortal blows from this proposed legislation. First, the resolution, by prohibiting agreements relating to arbitration of disputes. removes an important bargaining token otherwise available to help reach agreement. Almost all of the bilaterals now in effect authorize reference of disputes to international bodies for settlement, which is directly contrary to the probabition in section 2 of the contemplated legislation. Already the executive branch is hampered in these negotiations by its hesitancy to agree to enforce such arbitral decisions, but this blanket prohibition puts our negotiators in the untenable position of saying that under no circumstances can disputes be referred to an international body for arbitration. An attitude of conciliation and fairmindedness, essential to friendly negotiations, is precluded from the beginning. Second, the new procedure provided in the resolution would make it extremely difficult, if not impossible, to negotiate executive agreements. Such agreements could, under section 4 of the resolution, "be made only in the manner and to the extent to be prescribed by law." This presumably would require advance legislation as to the routes which could be exchanged and the conditions to be attached. At present, these views are formulated by our Government in strictest secrecy to reveal no information which would be of aid to the foreign negotiators. But under this new law, in order to secure the blueprint legislation for the negotiations, all these matters would have to be laid before Congress--and the competing negotiators. If the authorizing legislation failed to cover a detail which might arise during the negotiations, the foreign state could question the authority of the executive branch to bind our Government. Such obstacles are advantages to be used by the hands of foreign states to cause delay. Delays abound in these discussions; more should not be added. Would this section bar an agreement to consult on short notice? Since more of the bilaterals permit one party to call for consultation on 60 days' notice. presumably new legislation would be necessary during the 60-day period authorizing further negotiations involving amendments to the agreement. If that is what is meant by section 4 of the resolution, such consultation provisions would be impractical, and the provisions of existing agreements opened to question. Another procedural restriction the Senate Joint Resolution 1 would impose is the requirement that these agreements be subject "to the limitations imposed on treaties or the making of treaties." Presumably they must be enacted by Congress before becoming effective as internal law. If this were the case our Government could not make a firm agreement without substantial delay, since the agreement would have to take its place on an already crowded legislative calendar. Another type of agreement, also of far-reaching importance to air navigation, would presumably come within the scope of the resolution by virtue of the language in section 4, which includes "executive and other agreements." These agreements are technical agreements made on short notice for the loan of aeronautical equipment. These arise out of the current competition between the United States and foreign states to secure the widest use by foreign countries of their equipment for air navigation. The United States favors the use of the common system, which calls for specified radio transmission and receiving equipment on the ground and in aircraft. If the American system is adopted, it will permit the American-flag airlines to equip themselves with one system to be used around the world. If a foreign system is adopted, American airlines will find it necessary to duplicate and maintain equipment in their aircraft for both systems, at enormous expense of purchase, maintenance, and training. Our border airports would have to acquire duplicate equipment of the competing system to serve foreign aircraft operating to the United States. To foster the adoption of the American system, our Government offers to lend the equipment for immediate use to permit training and familiarization pending ultimate purchase. Such loans require agreements covering details, such as the responsibility of the respective Governments for the technicians' pay, transportation, office equipment, clerical assistance, civil liability for damages resulting from the activities of the mission, issuance of identification credentials, security measures, tax and customs duties, etc. The requirement that Congress authorize these in detail prior to their negotiation and approve them before they are effective would impose on Congress myriad details, and could inject sufficient delay in a competitive race to prevent the United States from securing the adoption of a system essential for economic international air operations. This resolution, by restricting the matters which may be agreed to and by elaborating the procedures for reaching agreements, would harmfully restrain the powers needed by our Government to make aviation agreements without adding to the existing power of Congress to control them. Objectionable provisions in treaties can be reviewed by the Senate in the process of ratification. If the objections outweigh the advantages, the treaty can be rejected or crippled through reservation or through subsequent legislation. Since almost all executive agreements are now negotiated on the basis of legislation, these can be controlled either by the authorizing legislation or by further legislation. These matters are further controlled by the sustaining or terminating power of appropriation. The proposed Joint Resolution 1 is unnecessary. But in recasting the existing power with blanket prohibitions and cumbersome procedures, the Congress would cripple the ability of our Government to come to terms with the world we live-and fly-in today. The previous comments relate to Senate Joint Resolution 1. We now have Senate Joint Resolution 43 under examination. At the present time it appears that many of the problems that we raised would be met by the adoption of Senate Joint Resolution 43 rather than Senate Joint Resolution 1. However, we will delay our final comments on the latter resolution for a few days, pending further study. Very truly yours, S. G. TIPTON, General Counsel. Mr. SMITHEY. The statement of the Steuben Society of America, National Council. Senator KEFAUVER. It will be received and made a part of the record. (The statement is as follows:) STEUBEN SOCIETY OF AMERICA, STATEMENT OF THE STEUBEN SOCIETY OF AMERICA IN SUPPORT OF SENATE JOINT RESOLUTION 1, 83D CONGRESS, 1ST SESSION POINT I The Steuben Society of America, after due consideration at a meeting of its National Public Affairs Committee, resolved to support the efforts being made to amend the Constitution of the United States relative to the making of treaties and executive agreements. POINT II The position of the society enunciated in point I is based upon the knowledge that there are before the United Nations for consideration certain proposed international covenants some of which might have the effect of internally legis lating with respect to the rights of American citizens, should they be ratified under the present treaty-making power of the Constitution or under the executive power to enter into executive agreements. It is the understanding of this society that the Supreme Court of the United States has interpreted the Constitution to mean that the ratification of a treaty in accordance with the provisions of our Constitution as presently existing, makes such treaty part of the supreme law of the land; so that while our Constitution provides a definite method of amending it, which method takes into account the voice of the population at large instead of merely its legislative representatives, the ratification of a treaty is in effect a circumvention of that plan making it possible to legislate internal affairs and restrict established rights by a method simpler than that involved in the process of amending the Constitution by vote of the people. One can readily see that with the greater collaboration between nations, opportunity, whether intentional or not, is afforded to wipe out and supersede State and Federal law, statutory and otherwise with a possible detriment to those directly affected thereby, the people of the United States. It is for the reason that this possibility exists, the Steuben Society of America takes the position that the Constitution of the United States should be clarified to eliminate any such happening. POINT III Our society supports the joint resolution as mentioned in point I for the reason that it appears to answer the problem involved briefly and directly in that it: (a) provides that the provision of a treaty which denies or abridges any right enumerated in the Constitution of the United States shall be of no force or effect; (b) bars internal legislation through agreements made with other countries; (c) limits the effectiveness of treaties by giving Congress the power to enact enabling legislation; (d) limits the effectiveness of executive agreements, in the same manner as treaties are limited. POINT IV It is respectfully submitted that the said resolution is one proposed in the best interests of the United States of America as the same pertains to the internal affairs of the people of this Nation and makes more definite the nationwide understanding that only by vote of the people may the Constitution be amended. Respectfully submitted. STEUBEN SOCIETY OF AMERICA, Mr. SMITHEY. The statement of Mr. Hugh Schwartzberg, National Chairman of the Collegiate Council for the United Nations. Senator KEFAUVER. It will be received and made a part of the record. |