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Thus the above articles clearly recognize that a country has the right to impose nondiscriminatory requirements relating to the entry and operations of the aircraft of other parties into its territory.
.. the legal questions raised by noise regulations are novel and complex, and we approach the construction of the applicable provisions with extreme caution. However, we have concluded that noise regulation is legally permissible under the bilateral and other agreements. Many of the techniques used to limit aircraft noise relate to the manner of operation. For example, limitation of the amount of power at which engines are operated and the designation of flight paths into and away from airports located in urban areas are two techniques currently imposed on the operation of aircraft in order to control noise.
Somewhat more difficult questions are raised by noise regulation which would deal directly with the noise level produced by an aircraft's engines. This is not a matter which can be changed by the navigation or manner of flying the aircraft; it is inherent in the aircraft itself. However, our standard bilateral agreements permit regulation of "admission to" the country, as well as “operation” of the aircraft. Although the type of situation with which we are now confronted was not anticipated at the time these provisions were drafted, the purpose underlying them seems to have been to reserve national regulatory authority for the protection of various matters such as health. Thus a noise regulation imposed for the purpose of protecting the public health would fall within the scope of regulation expressly permitted by Article 5 of the standard bilateral agreements. We also believe that such a regulation would fall within the type of laws and regulations normally applied to the operations of air carriers which designated carriers are expressly required to comply with by the bilateral agreements. Furthermore, even if noise regulation were not construed to be within any of the express provisions of the bilateral agreements,... it still would not be prohibited by them. It would simply not be covered.
... the above ... provides a sound legal basis for noise and other environmental regulation ... the noise of subsonic aircraft has been the subject of such regulation in the past. While this type of regulation could not be so extensive or burdensome as to substantially impair the value of route rights conferred by bilateral agreements, a scheme of noise regulation which does not discriminate in violation of Article 11 of the Chicago Convention should not be regarded as prohibited by the applicable international agreements.
.. under Article 37 of the Chicago Convention, the International Civil Aviation Organization (ICAO) may adopt standards dealing with a wide variety of technical and operational matters. Article 38 of the Chicago Convention provides that any country which finds it impracticable to follow such standards must notify its differences to ICAO. Thus, if ICAO were to adopt SST noise standards we would be obligated to accept them unless we notified differences to ICAO.
Another matter which should be addressed is the relevance of the certificate of airworthiness which may be granted an aircraft. This . . . is frequently raised in the context of discussions relating to noise control. Article 33 of the Chicago Convention provides:
Certificates of airworthiness . . . issued ... by the contracting state in which the aircraft is registered, shall be recognized as valid by the other contracting states, provided that the requirements under which such certificates ... were issued ... are equal to or above the minimum standards which may be established from time to time pursuant to this Convention.
A similar provision is found in the bilateral agreements. The United States has also negotiated several other bilateral agreements relating to the reciprocal acceptance of airworthiness certifications. Because of these provisions, it may be argued that the noise level of an aircraft's engine should not be questioned, just as other inherent parts of an aircraft are not questioned, after it has received the certificate ... this argument attributes too wide a scope to the airworthiness certificate.
“Airworthiness" is not defined in the relevant agreements, but the dictionary meaning and common usage limit the scope of the term to safety matters. Furthermore, the standards contained in ICAO Annex 8, entitled "Airworthiness of Aircraft," adhere to this concept in that all the Annex 8 standards relate to safety in the design and operation of aircraft. Since it is apparent that the noise produced by an aircraft has no necessary relationship to its operational safety, it follows that a certificate of airworthiness should not be considered to preclude separate noise regulation.
Similarly, ICAO has recently adopted noise standards for subsonic aircraft. Significantly, these standards were not treated as airworthiness standards but instead were the subject of a new annex. All this ... illustrates the point that agree ments relating to the mutual recognition of certificates of airworthiness, including the provisions of the Chicago Convention, do not prescribe the imposition of national noise standards.
... I should like . . . to underscore one of the most important aspects of the Chicago Convention, ... the provision re lating to nondiscrimination. Although ... a nation retains the legal right to impose laws and regulations relating to noise standards applicable to aircraft within its territory, Article 11 makes it clear-along with Article 15 and other provisions—that these laws and regulations must be applied without distinction as to nationality, i.e., in a fair and nondiscriminatory fashion. For commercial operations, the same kind of concept is reflected in each bilateral agreement the United States has concluded which contains a provision to the effect that there shall be "fair
and equal opportunity" for the airlines of each contracting party to operate on any route covered by the agreement.
These provisions are a major reason for the success of international aviation today. The framers of these agreements wisely recognized the importance of fairness in the treatment of the significant air transportation interests of other countries. The Chicago Convention is intended to end discrimination on the basis of nationality, ultimately detrimental to the interest of all, in respect of aviation. And the same principle applies for commercial operations where we have established bilateral relations. The 1944 Chicago Convention on International Civil Aviation is at TIAS 1591; 61 Stat. 1180; 3 Bevans 944; entered into force for the United States Apr. 4, 1947. The 1944 International Air Services Transit Agreement is at EAS 487; 59 Stat. 1693; 3 Bevans 916 (entered into force for the United States, subject to a reservation, Feb. 8, 1945). Art. 5 of a standard bilateral air services transit agreement provides:
A. The laws and regulations of one Contracting Party relating to the admission to or departure from its territory of aircraft engaged in international air navigation, or to the operation and navigation of such aircraft while within its territory, shall be applied to the aircraft of the airline or airlines designated by the other Contracting Party and shall be complied with by such aircraft upon entrance into or departure from and while within the territory of the first Contracting Party.
B. The laws and regulations of one Contracting Party relating to the admission to or departure from its territory of passengers, crew, cargo or mail of aircraft, including regulations, relating to entry, clearance, immigration, passports, customs, and quarantine, shall be complied with by or on behalf of such passengers, crew, cargo or mail of the airline of the other Contracting Party upon entrance into or departure from and while within the territory of the first Contracting Party.
Supersonic Transport The Civil Aeronautics Board announced on December 16, 1975, that it would defer action on a petition asking the Board to amend the foreign air carrier permits of British Airways and Air France to forbid the use of the Concorde supersonic transport pending final decision by the Secretary of the Department of Transportation on environmental issues. The petition was filed on September 24, 1975, by the Environmental Defense Fund requesting the Board to amend the carriers' foreign air carrier permits to forbid the use of the Concorde on grounds that it would deplete the stratospheric zone shield; that it could not carry the fuel reserves normally required for safety on transatlantic flights; that it would exceed tolerable noise levels; that it would waste fuel; and that it would not comply with Environmental Protection Agency emission standards.
The Secretary of the Department of Transportation announced that a final public hearing on the issues raised by the applications of Air France and British Airways filed with the Federal Aviation Administration would be held on January 5, 1976, with final decision no later than February 4, 1976.
CAB Order 75–12-71; CAB Press Release 75–190, Dec. 16, 1975. On Feb. 4, 1976, William T. Coleman Secretary of the Dept. of Transportation ruled that France
and the United Kingdom could operate limited service by the Concorde to New York and Washington on a 16-month trial basis. For the text of his statement, see The New York Times, Feb. 5, 1976, p. 16.
On September 29, 1975, the Department of Justice announced that it had filed a 190-count criminal information together with a consent decree terminating a civil suit against 19 international air carriers in connection with rebating in trans-Atlantic scheduled air service. The criminal information and injunction were filed in U.S. District Court in Brooklyn, New York. Seventeen foreign airlines and two United States airlines pleaded nolo contendere to the criminal information and agreed to a consent decree which would enjoin similar practices in the future.
A grand jury had been impanelled in September 1974 to conduct an investigation of such rebating as would constitute criminal offenses in violation of 49 U.S.C. 1472(d), a statutory criminal provision which had never previously been enforced. By agreement with the U.S. Attorney in Brooklyn, the 19 international air carriers entered a plea of nolo contendere to a criminal information charging ten counts of rebating, and each signed a civil consent decree prohibiting future violations subject to penalties which may be imposed for contempt of court. In return, there were to be no further civil or criminal proceedings against the air carriers arising out of rebating practices occurring prior to the entry of the criminal convictions and civil consent decree.
The decree contains a self-policing and reporting provision under which each air carrier is obligated to conduct reasonable inquiries to determine whether it has been in compliance with the injunction and to assure such compliance. In addition, each carrier is required to report annually to the U.S. Attorney concerning such inquiry and actions taken, and whether the air carrier has committed certain violations of the statute prohibiting rebating. A further provision requires each carrier to provide actual notice of the judgment to all its travel agents in the United States, thus making the travel agents subject to any penalties imposed for contempt of court for future rebating violations. 49 U.S.C. 1472(d) provides:
(d) Offering, granting, or giving rebates or concessions.
Any air carrier, foreign air carrier, or ticket agent, or any officer, agent, employee, or representative thereof, who shall, knowingly and willfully, offer, grant, or give, or cause to be offered, granted, or given, any rebate or other concession in violation of the provisions of this chapter, or who, by any device or means, shall, knowingly and willfully, assist, or shall willingly suffer or permit, any person to obtain transportation or services subject to this chapter at less than the rates, fares, or charges lawfully in effect, shall be deemed
guilty of a misdemeanor and, upon conviction thereof, shall be subject for each offense to a fine of not less than $100 and not more than $5,000.
Secretary of State Kissinger, on August 11, 1975, in an address to the annual convention of the American Bar Association at Montreal, expressed U.S. readiness to engage in a cooperative search for agreed international ground rules in outer space. The relevant excerpt from his address follows:
The oceans are not the only area in which technology drives man in directions he has not foreseen and toward solutions unprecedented in history. No dimension of our modern experience is more a source of wonder than the exploration of space. Here, too, the extension of man's reach has come up against national sensitivities and concerns for sovereignty. Here, too, we confront the potential for conflict or the possibility for legal order. Here, too, we have an opportunity to substitute law for power in the formative stage of an international activity.
Space technologies are directly relevant to the well-being of all nations. Earth-sensing satellites, for example, can dramatically help nations to assess their resources and to develop their potential. In the Sahel region of Africa we have seen the tremendous potential of this technology in dealing with natural disasters. The United States has urged in the United Nations that the new knowledge be made freely and widely available.
The use of satellites for broadcasting has a great potential to spread educational opportunities, and to foster the exchange of ideas.
In the nearly two decades since the first artificial satellite, remarkable progress has been made in extending the reach of law to outer space. The Outer Space Treaty of 1967 placed space beyond national sovereignty and banned weapons of mass destruction from Earth orbit. The treaty also established the principle that the benefits of space exploration should be shared. Supplementary agreements have provided for the registry of objects placed in space, for liability for damage caused by their return to Earth, and for international assistance to astronauts in emergencies. Efforts are underway to develop further international law governing man's activities on the Moon and other celestial bodies.
Earth-sensing and broadcasting satellites, and conditions of their use, are a fresh challenge to international agreement. The U.N. Committee on the Peaceful Uses of Outer Space is seized with the issue, and the United States will cooperate actively with it. We are committed to the wider exchange of communication and ideas. But we recognize that there must be full consultation among the countries directly concerned. While we