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Contemporary Practice of the United States Relating to International Law

  • Eleanor C. McDowell (a1)

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1 90 Stat. 263, 48 U.S.C. §1681 note. 15 ILM 651 (1976).

2 The text of the Covenant can be found in 14 ILM 344 (1975). The contents are summarized at 1975 U.S. DIGEST 97.

3 See H.R. Rep. No. 364, 94th Cong., 1st Sess. (1975); S. Rep. No. 433, 94th Cong., 1st Sess. (1975); and S. Rep. No. 596, 94th Cong., 2d Sess. (1976).

4 61 Stat. 3301; TIAS No. 1665.

5 For the full text of the statement, see 12 Weekly Compilation of Presidential Documents, Mar. 29, 1976, at 482–83.

1 Text in 12 ILM 916 (1973). See also the “Understanding” concerning the treaty in exchange of notes dated December 23, 1975, 15 ILM 283 (1976).

2 74 Dept. State Bull. 495 (1976); S. EXEC. DOC. F., 94th Cong., 2d Sess. (1976).

1 TIAS No. 8233; 15 ILM 278 (1976).

2 Dept. of State File No. P76 0055–0002.

1 74 Deft. State Buul. 539 (1976); Dept. State Press Release No. 162, April 8, 1976. On April 13, 1976, President Ford signed P.L. 94–265. It establishes, effective March 1, 1977, a 200-mile fishery conservation zone in which the United States will exercise exclusive fishery management. For text, see Official Documents section infra p. 624. Also in 15 ILM 635 (1976).

1 See Dept. of Transportation publication, “The Secretary’s Decision on Concorde Supersonic Transport,” Washington, D.C., Feb. 4, 1976. The publication contains sections on the legal framework, the policy framework, the environmental consequences, the Concorde’s benefits, and conclusions, as well as two appendices: (i) Secretary of Transportation’s Comments on Safety and (ii) the Federal Aviation Administrator’s Safety Conclusions.

2 See Dept. of State File No. P76 0001–1498. See also 1975 U.S. Digest.

3 Agreement between the United States of America and the United Kingdom of Great Britain and Northern Ireland relating to Certificates of Airworthiness for Imported Aircraft, effected by an exchange of notes signed at London, Dec. 28, 1972, 23UST 4309, TIAS No. 7537. Agreement between the United States and France, effected by an exchange of notes signed at Paris, Aug. 29 and Sept. 26, 1973, 24 UST 2142, TIAS No. 7728.

4 Convention on International Civil Aviation, done at Chicago, Dec. 7, 1944, 61 Stat. 1180, TIAS No. 1591, 15 UNTS 295.

5 Air Services Agreement with France, signed at Paris, Mar. 27, 1946, 61 Stat. 3445, TIAS No. 1679, 139 UNTS 114.

6 Air Services Agreement with the United Kingdom, signed at Bermuda, 60 Stat. 1499, TIAS No. 1507, 3 UNTS 253. For further comment on the relevance of the Chicago Convention and the two bilateral agreements, see excerpts from Secretary Coleman’s statement, infra pp. 568–69.

7 Quoted infra p. 569.

8 Quoted infra note 16.

9 42 U.S.C. 4321 et seq., as amended by the Noise Control Act of 1972, 49 U.S.C. 1431.

10 Supra note 1.

11 In a footnote to the statement (note 2), Secretary Coleman noted that the FAA is the proprietor of Dulles and that he was therefore directing the Administrator to permit the flights under the conditions noted. Regarding Kennedy airport, he stated

he situation with respect to JFK may be complicated by the fact that under Federal policy that has hitherto prevailed a local airport proprietor has had authority under certain circumstances to refuse landing rights. If for any legitimate and legally binding reason it should turn out that the JFK part of the demonstration could not go forward … that would obviously be extremely unfortunate and would greatly diminish, but in my opinion it would not destroy, the validity of the demonstration.

Subsequently, the Port Authority of New York and New Jersey banned the Concorde from New York.

12 The statement contained the following footnote (note 4) to this paragraph.

It is not contemplated that another EIS would be required to permit continuation beyond 16 months of the six flights for which provisional permission is now being granted. It is most definitely contemplated—indeed, this is the whole point of today’s decision—that the Secretary of Transportation, in deciding whether to permit continuation of the six flights, will give serious attention to the various data collected during the first twelve months, and assembled and analyzed during the demonstration’s final four months, and approach the question of continuation of permission for the six flights beyond the 16th month without any presumption either way being created by today’s decision. The data and analysis will be made public.

13 Footnote 3 to the statement.

14 See supra notes 4, 5, and 6.

15 The following footnote (note 1) accompanied the statement at this point:

The United States could conceivably be bound by international standards relating to environmental characteristics under certain circumstances, but those circumstances do not prevail here. Under Article 37 of the Chicago Convention, ICAO may promulgate international standards on a wide variety of subjects, including the airworthiness of aircraft. Nations which agree to be bound by those standards must then accept them as definitive regulations with respect to aircraft in international service. Contracting nations may, however, under Article 38, notify ICAO that they will refuse to be bound by particular international standards or that they will require observance of more stringent standards, and those standards will then not be binding on aircraft operating in that country. If, under these provisions, ICAO promulgated noise and pollution standards for supersonic transport aircraft, and if the United States did not except itself from those standards, then this nation would not be able to impose more stringent standards on foreign aircraft operating into this country. ICAO has not promulgated international noise or pollution standards for SST’s, however, and the United States is therefore free to regulate unilaterally the operations of the Concorde in this country, or to ban it altogether, for environmental reasons.

16 The accompanying footnote quotes Article 11 of the Chicago Convention: “the laws and regulations of a contracting State … shall be applied to the aircraft of all contracting States, without distinction as to nationality.” As “further guidance on what constitutes nondiscrimination,” the note quotes from the proceedings from which the article evolved:

[N]o Contracting State shall require any aircraft of another Contracting State to obey regulations relating to flight procedures, traffic control, safety requirements, and the like, or relating to public safety and order, which are more restrictive than those imposed on its own aircraft engaged in international navigation (emphasis added). Proceedings of the International Civil Aviation Conference, Dept. of State Pub. 2820, at 558–59 (1948, 1949). Article 15 of the Chicago Convention is also quoted: Every airport in a contracting State which is open to public use by its national aircraft shall likewise … be open under uniform conditions to the aircraft of all other contracting States (emphasis added).

Articles II and 11(b) of the bilateral agreements with France and the United Kingdom (supra p. 569 and notes 5 and 6) were also cited as “evidence” of “an intent to prohibit discrimination.“

17 But see action by the Port Authority of New York and New Jersey, supra note 11.

18 New York Times, April 8, 1976.

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