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GOVERNMENTS have always shown special concern over the means of transportation and communication at their disposal. This is particularly true of nations that regard themselves as World Powers. Such states can assure their national and imperial unity, their economic progress and their military power only if they possess reliable and speedy methods of transportation and communication. For this reason highways, railroads, shipping, cables and radio are the objects of special solicitude, regulation and protection, even by governments which in other ways practice a high degree of laissez-faire toward the economic life of their countries. Air transport is no exception to this rule. Indeed, since aircraft have become one of the most powerful weapons in war, air transport is governed much more by political and military criteria than, for instance, are railroads and cables. Air transport is an instrument of national policy.
This being the case, what rules and policies have nations adopted to control the establishment and operation of international air lines? Does, for instance, commerce in the air possess the same legal rights as commerce on the sea, or do special rules prevail for aërial navigation? And what have been the practical consequences of the legal principles that have come to govern international air commerce? These are questions which have arisen only in the last few decades. Yet, though in some respects the law and usage of the air have not been clearly defined, certain broad legal principles can now be regarded as well fixed.
These principles may be stated as follows: (1) Each state has complete jurisdiction over the air space above its territory, including territorial waters. (2) Each state has complete discretion as to the admission of any aircraft to the air space under its jurisdiction. (3) The air space over the high seas, and over other parts of the earth's surface not subject to any state's jurisdiction, is free to the aircraft of all states. As one can readily see, these principles mean in effect that international air commerce is not free. They mean that a company can establish an air line between two or more countries only after specific flying and landing rights have been secured by special bargaining with each of them.
Although of recent origin, these principles are now among the least disputed in international law. Prior to the World War many learned societies passed resolutions in favor of the freedom of the air. The practice of nations, however, pointed the other way, and the experience of the war dispelled all doubt, for aircraft had already become, even in its embryonic forms, a potent weapon not only of reconnaissance and espionage, but of attack.
When the Paris Peace Conference undertook to prepare a general convention regulating international air navigation, there could be no doubt that each state possessed full sovereignty over the air space above it; the only subject of controversy was the extent to which the rigor of this sovereignty could be mitigated in favor of peaceful air commerce. The Convention of 1919 elaborated at the Conference, although it accorded limited freedom of passage to the occasional private flier of one contracting state through the air space of the others, gave no such freedom to the regular scheduled air carrier.[i] The latter remained at the mercy of each individual state. If any lingering doubts persisted on this point, they were dispelled at the extraordinary meeting in 1929 of the International Commission for Air Navigation (established by the Convention), when only four of the thirt-yone participants voted in favor of freedom for international air commerce. The majority voted to amplify the text of Article 15 of the 1919 Convention so as to leave no doubt that each contracting state had the right to bar regular international air lines from its air space, with or without good reason.[ii] The United States, however, although it signed the 1919 Convention and took part by special invitation in the 1929 meeting of the International Commission, has not ratified that instrument and is not bound by its provisions.
Although the United States, at the meeting of the International Commission in 1929, favored greater freedom for international air lines, it could not afford to practice such liberality on a unilateral basis. The Air Commerce Act of 1926, as amended by the Civil Aeronautics Act of 1938, declares that the United States has "complete and exclusive national sovereignty in the air space above the United States." Foreign air carriers are required to obtain special permits for operations into or within the United States. Prior to the enactment of the Civil Aeronautics Act of 1938, the power to grant or refuse authorization for foreign aircraft to navigate in the United States belonged to the Secretary of Commerce, who could exercise it without making public either the proceedings or the reasons for his decisions. Today the Civil Aeronautics Board exercises the power to issue permits if it finds that the foreign carrier is "fit, willing, and able properly to perform" the service proposed, and that such service "will be in the public interest." The Board is required to hold public hearings on all applications for such permits.
These provisions clearly contemplate special authorization in each particular case and can hardly be reconciled with a régime of general freedom of the air. In addition, the Board apparently must follow the rule prescribed in Section 6 of the Air Commerce Act of 1926, as amended:
(b). Foreign aircraft not a part of the armed forces of the foreign nation shall be navigated in the United States only if authorized as hereinafter in this section provided.
(c). If a foreign nation grants a similar privilege in respect of aircraft of the United States,[iii] and/or airmen serving in connection therewith, the Civil Aeronautics Board may authorize aircraft registered under the law of the foreign nation and not a part of the armed forces thereof to be navigated in the United States. No foreign aircraft shall engage in air commerce otherwise than between any State, Territory, or possession of the United States (including the Philippine Islands) or the District of Columbia, and a foreign country.
This provision lays down in very general terms the principle of reciprocity for the granting of air navigation privileges. The term "a similar privilege" has in practice been interpreted to mean some privilege, specific or general, granted by the other party and deemed by the competent United States authority to be a substantial equivalent for the privilege requested of the United States. It does not necessarily mean that in each case the reciprocal privileges must be identical in all respects. The prohibition against foreign aircraft engaging in domestic trade within the United States corresponds to the legislation reserving American coastwise water-borne commerce to American vessels.
In practice the policy of the United States toward foreign applicants for air transport privileges depends on the location and the type of services involved. A rather liberal attitude prevails toward air commerce between the United States and Canada. On the Seattle-Vancouver route, for instance, a Canadian air carrier is permitted to operate on a more frequent schedule than the United States carrier whose schedule is restricted by the Canadian authorities. On the great intercontinental routes, however, the policy of the United States seems to be "that there shall be no regular commercial operation into the United States under a foreign flag without simultaneous provision for an equal amount of American flying on the same route."[iv] The American Government has not looked with much favor upon foreign efforts to compete with Pan American Airways in the Caribbean: in 1937 the Secretary of Commerce turned down an application of K. L. M., the Dutch air transport company, for landing privileges in Miami when it desired to extend its West Indian services to the United States. In 1938, British and Dutch companies were denied landing privileges at Hawaii for military reasons.
When two governments negotiate over flying or landing rights, considerations of national prestige usually demand that the privileges they grant be substantially reciprocal, at least in cases where the termini of the proposed route are located in the two states; where mere transit rights are desired, reciprocity is not always required. Often when such privileges are obtained by small states, they remain unused; in some cases they may even provide a means for the interests of a third nation to slip in. Article 7 of the 1919 Convention sought to control such situations by providing that the head and at least two-thirds of the directors of any air navigation corporation must be of the same nationality as the company. This limitation was designed principally to prevent German interests from obtaining a foothold in international air navigation under a non-German guise. In 1929, largely at Germany's insistence, this limitation was removed.
In negotiations between a government and an air transport operator of another nationality, the latter is rarely if ever in a position to commit his own government to a grant of reciprocal privileges. However, some agreements which embody the results of such negotiations contain clauses empowering the government granting the privileges to cancel them if a company of its own nationality is denied reciprocal privileges by the operator's government. The agreement between Pan American Airways and Argentina contains a clause of this type. The characteristic of such a clause is that, while it may place the operator in an embarrassing position, it leaves the operator's government free of commitments. Some governments, notably the French, have as a general rule insisted that all applications for air transport rights be made to them directly through diplomatic channels rather than by the foreign operators. Even France, however, has admitted exceptions to this policy, as in 1939 when Pan American Airways directly applied for and received permission to land at Nouméa, New Caledonia, on its Honolulu-Auckland route.
In this matter the United States Government has wisely followed a flexible policy. It has permitted and encouraged Pan American Airways to negotiate for its own privileges in Latin America and the Pacific, although on occasion the State Department has exerted its influence to smooth Pan American's way.[v] This policy has enabled the company to compete successfully with European companies for privileges in South America. Moreover, this policy has not committed the American Government to grant reciprocal privileges -- privileges that might be used, for instance, by companies organized under South American laws but controlled by German interests.
In the case of trans-Atlantic services, however, the United States adopted a different policy. The authorities in Washington "decided, after consultations between this Department [of State] and members of the Civil Aeronautics Authority, that the question of obtaining transatlantic operating rights for American air transport companies should be a matter of negotiations between the Government of the United States and the foreign Government concerned." [vi] The reasons for this decision have not been made public, but they may be surmised to include the following: (1) some European states insist that applications for air navigation privileges be made to them through the government of the foreign operator; (2) important European nations are not likely to grant landing rights to an American operator without being assured of receiving reciprocal rights in the United States; (3) an American company, if permitted to negotiate for itself, might be able to obtain a virtual monopoly of the trans-Atlantic air service under the American flag. Pan American Airways did in fact obtain a temporary monopoly, as against other American operators, of landing rights in Portugal by its agreement of April 27, 1937, with the Portuguese Government. Yet the United States Government has not been willing to see any one American operator monopolize the commercially promising trans-Atlantic air routes, a fact underlined in July 1940 when it issued a certificate authorizing American Export Airlines to establish services to Europe in direct competition with Pan American. On the other hand, the United States may find it embarrassing to have two or more American companies vying for favors from foreign governments. Such rivalry might enable the latter to drive hard bargains and impose terms harmful to American interests as a whole. All these difficulties can be avoided if the negotiations for privileges are conducted by the United States Government. Such landing rights as it obtains may then be apportioned among various American companies. The United States may so apportion, for instance, its landing rights in France under the agreement of July 15, 1939, with that nation.
The development of the world's air commerce has been undoubtedly retarded by the international law of the air which imposes on operators, or their governments, the necessity to bargain for landing rights. Routes which are technically feasible and commercially promising have remained unopened. The present map of international air lines therefore reflects political as well as commercial considerations. One of the best examples of this is the lack of direct air communication between the United States and Japan, in spite of the fact that the volume of trade and communication between these two countries is much larger than, for instance, that between the United States and New Zealand. The distance between Guam and Yokohama is actually shorter than that between Guam and Manila, regularly flown today by Pan American's clippers. Only political and strategic considerations have prevented the opening of this route. There are also no air ties between Japan and Siberia. China for a long time refused to grant any foreign company landing rights at Canton because she feared that Japan would demand similar privileges. There is no air service between Batavia and Manila, though the Dutch have long been anxious to establish one. Negotiations for such a service have been proceeding in Washington in deep secrecy. It is known, however, that the consent of the Philippine Commonwealth Government for the operation of this route is deemed necessary in view of the expected independence of the Islands.
Some of the smaller countries have at times taken advantage of their geographical position to exact, in return for the grant of landing rights, conditions that are financially burdensome to the foreign carriers involved.[vii] Italy, at a time when Italian air transport was weak and highly unprofitable, refused to grant landing rights to Imperial Airways on its route to the East unless the British company's receipts on a certain run were divided equally with the Italian company, which had much less traffic. Turkey bars all foreign airlines from passing over its territory in an eastwest direction, primarily for military reasons; as a result, European services to Southern Asia are unable to use the shortest route. Turkey's attitude redounds to the advantage of Greece, which is reported to require all foreign airliners passing over her territory to land at Athens and to coördinate their schedules with those of the internal Greek air services. Similar illustrations could be multiplied almost indefinitely.
Very frequently air transport relations between two or more nations depend upon the state of their political relations. For several years after the World War, Germany was barred from signing the Convention of 1919 (to which in fact she did not adhere after the bar had been lifted) and from establishing air services into the territories of her erstwhile enemies. France, on the other hand, developed an extensive system of air services to the Little Entente countries and to Poland, with the aid of subsidies from all those states. But in recent years the general eclipse of the prestige and power of France has handicapped French air transport in Southeast Europe. In 1939, for instance, Jugoslavia refused to renew her air convention with Air France. The Polish-German rapprochement of 1934 was accompanied by the ratification of an air transport agreement made in 1929. The establishment of an airline from Prague to Moscow across Rumania but avoiding Poland was agreed upon when Czechoslovakia and Russia had reached a political entente. More recently, with the improvement of Soviet-Bulgarian relations, a Soviet airline from Odessa to Sofia was inaugurated under a special convention. In Nationalist Spain, Italian and German air transport enjoys wide privileges, while the French, British and Dutch airlines cannot enter the country. Report has it that Spain's refusal to grant landing rights to the Dutch was in retaliation for the alleged refusal of their government to turn over to Franco certain funds deposited in Amsterdam for the account of the Spanish Republican Government. If this is so, it is a good illustration of how the power to deny air transport privileges is sometimes used as a weapon for gaining ends which have nothing to do with air transport.
The vicissitudes of the political relations between Germany and Russia have been reflected in their air transport policies towards each other. Deruluft, an air transport enterprise in which German interests and the Soviet Government held equal shares, was organized in 1921, even before the German-Soviet friendship was solemnized by the Treaty of Rapallo. Deruluft began regular operations between Berlin and Moscow in 1922. But when Hitler took power, German-Soviet friendship cooled off. This led among other things to Moscow's rebuffing a German plan for the creation of an overland air service to China. Early in 1937 Deruluft service was indefinitely suspended. However, after the diplomatic revolution of August 1939, a new German-Soviet air transport understanding was reached, and in February 1940 a new air service between Berlin and Moscow was established, operated jointly by the German Lufthansa and the Soviet Aeroflot.
Trans-Atlantic air routes have been the object of particularly intricate diplomacy. An understanding between the United States, Great Britain, Canada and the Irish Free State for transoceanic services was reached as early as 1935. Pan American Airways was apparently ready to inaugurate services on this route before Imperial Airways, for technical reasons, was able to participate in them. In accordance with the understanding of 1935, Great Britain in 1937 gave Pan American a permit to land in Newfoundland, England and Bermuda; similar permits were also obtained from Canada and Eire.[viii] The British permit was conditioned, however, upon the simultaneous start of trans-Atlantic operations to the United States by the British company. In view of Imperial Airways' tardiness, Washington asked London to waive this condition; but the British long remained deaf, probably being reluctant for reasons of prestige to see the American company be the first to operate across the Atlantic.
In January 1939, after very brief negotiations, the United States obtained temporary landing rights in France, rights which were made more permanent by an air transport agreement between the two governments on July 15, 1939. Pan American already held landing rights in Portugal, and it was therefore now in a position to open a trans-Atlantic service along the southern route, regardless of the British attitude. Great Britain, perhaps realizing the futility of her stand, in February 1939 waived the requirement of simultaneity; on May 20, 1939, Pan American inaugurated a regular service on the northern route, to be followed a few months later by Imperial Airways. In the meantime, the German Lufthansa, which had conducted over fifty successful experimental flights across the Atlantic, had been loud in insisting that it could begin regular operations to the United States if it obtained landing rights on both sides of the ocean. Unfortunately for Germany, she had nothing to offer in return for such rights; nor did her general policies endear her to the democratic nations. It is clear that the international bargaining involved in contemporary air transport diplomacy was responsible for delaying, perhaps by several years, the establishment of regular intercontinental air service across the Atlantic.
Comparison is often made between the many restrictions under which international air commerce labors and the freedom enjoyed by ocean shipping. No special diplomatic negotiations are required to enable a merchant ship to put in at a foreign port. Furthermore, merchant ships enjoy the right of "innocent passage" through foreign territorial waters. As the law now stands, the sovereignty of a state over the air space above its territorial waters is more complete than its sovereignty over the territorial waters themselves, since the former is not limited by any right of innocent passage. For example, an American vessel on a voyage from Seattle to Alaska may pass through Canadian territorial waters without asking anybody's permission, but an American airliner flying over the same waters would have to obtain special authorization from Ottawa. As a result, the recently opened airline from Seattle to Juneau, Alaska, follows a somewhat circuitous route along the ocean side of Vancouver Island which adds some hundred miles to the length of the flight.
In other respects the fundamental status of aircraft in international law is not different from that of ocean vessels. The air space above the high seas is as free as the sea itself. States are technically entitled, in the absence of treaty obligations to the contrary, to close their ports and their internal waterways to foreign vessels, unless they are in distress. In practice, however, the qualification stated -- "in the absence of treaty obligations to the contrary" -- has been of enormous importance. Most countries are today linked by general treaties of navigation and commerce which provide for mutual freedom of entrance into ports without discrimination. In air transport, on the contrary, such general permission is uncommon, and agreements must, as already pointed out, be made for particular services. In the case of maritime traffic it is unusual for a state, even in the absence of a treaty obligation, to forbid ships of any other nation merely to enter its ports, although restrictions upon foreign vessels carrying certain exports or imports are somewhat more common. The actual difference between the status of water-borne shipping and that of air transport is thus more a matter of tradition than of law. The freedom enjoyed by shipping is peculiar to it and is not shared by any other means of transportation or communication.
The diplomacy of air transport has an analogy in the history of international bargaining over cable-landing rights. The early days of the cable business -- before it had begun to feel the competition of the radio and air mail -- were marked by an intricate and often fiercely fought "cable diplomacy." There never existed any "freedom of cables" except under the high seas. Nations jealously guarded their right to bar foreign cables from being landed on their shores, and many a hard bargain was driven by the fortunate possessor of a piece of territory essential for a cable station. In 1875 President Grant formulated the cable policy of the United States as one under which we refused cable-landing rights to a foreign company which enjoyed in any country a monopoly that excluded American cables. Here in embryonic form was a reciprocity policy similar to that later enunciated for air transport.
Companies subsidized by the British Government long exercised a virtual monopoly over cable communication with certain parts of South America, and at times discriminated against American interests. Shortly after the World War an acrimonious diplomatic controversy occurred when the United States endeavored to break this British monopoly. Britain replied by putting pressure on the Portuguese Government to prevent it from granting landing rights in the Azores to American companies until they had agreed, in effect, to respect the British monopoly of cable communication between Europe and South America. Air transport diplomacy is thus not without precedent.
There are many reasons why nations have been reluctant to accord general freedom to international air lines. One argument has been that too much freedom of international air navigation would make it difficult for individual nations to enforce traffic and safety rules. Today a state may attach any condition it sees fit to the privileges it grants to a foreign air transport enterprise, and it is free to bar an enterprise unable or unwilling to coöperate in insuring a safe and smooth flow of air traffic. Congestion at certain airports, such as La Guardia Field in New York and on certain air traffic lanes is already becoming serious. Some experts argue that a state would be hampered in enforcing traffic and safety standards if it had to admit all the foreign commercial aircraft wishing to enter its territory, especially if they failed to give a reasonable advance notice of their arrival. Yet this problem is surely not insoluble. Regular air transport operates on definite schedules. An international code of safety and traffic rules, supplemented by permission for each state to make and enforce such additional regulations as may be required by its particular circumstances, would probably overcome this difficulty.
One obstacle to greater freedom of the air is the attitude of certain states lying across important world air routes. Such states, many of which are small and of little importance in the air, may use their geographical position to exact a stiff price for flying and landing rights. Even if they do not always take advantage of this opportunity, they naturally enough see no reason why they should give up an asset bestowed upon them by nature. Their nuisance value, however, may diminish as the cruising range of commercial aircraft increases. Today, for instance, American Export Airlines plans eventually to operate a trans-Atlantic service omitting the Azores as a landing point.
Military considerations also play a part in the restriction of the freedom of international air commerce. Army and navy authorities are always afraid that their fortifications, bases and other military preparations will be observed from the air, or that foreigners will make surreptitious aërial surveys of the country. When in 1938 the United States denied landing privileges in Hawaii to British and Dutch companies, "the major reason for refusal was this Government's unwillingness to expose its Hawaiian defenses to view from foreign-flag airliners over which it would have little control." [ix] Yet it should be noted that the occasional private flier, who has greater freedom under the 1919 Convention and many bilateral agreements (to some of which the United States is a party) than the regular airliner, has just as many, if not more, opportunities for observation from above, and is no easier to control. Furthermore, the military authorities of many a country fear that foreign pilots flying regular services over it will become so accustomed to the route and so familiar with the country's weather, terrain and local ground facilities that an aërial invasion will be made much easier. One story has it that when an Englishman asked why he had been refused permission to fly in a certain country the answer was -- "You will know the country when you come again." It is reported that the German aërial invasions of Poland and Norway were aided by the presence among the squadron leaders of airmen who had been pilots on the commercial routes operated by Lufthansa over those countries. Yet the question again arises whether the same objections would not equally apply to the occasional flier, who indeed would not be necessarily restricted to the air routes used by regular commercial liners. Perhaps after all, military considerations of this type are not as insuperable an obstacle to freedom of the air as they are often alleged to be.
And in fact, political and financial considerations are probably more important today than those of a purely military character. All but one of the great international airlines are now flown at the expense of some government. The one exception is the trans-Atlantic service of Pan American Airways. Indeed, since December 1939 this line may be regarded as financially profitable to the United States Government since air mail revenues it derives from this route have exceeded its mail payments to the carrier. But the European War has probably been responsible for much of the exceptionally heavy air mail traffic now carried over the Atlantic. As a rule, international air commerce is still dependent for its existence upon governmental assistance -- either in the form of direct subsidies, or of heavy air mail payments, or both. Those who oppose a régime of freedom for all companies regardless of nationality argue that such a policy would bring about further division of the available traffic and would require still heavier subsidies to keep the carriers from bankruptcy. They point out that most of the important ocean shipping lines today are not self-supporting, and that this situation results in part from the traditional freedom of shipping which permits the existence of an almost unlimited number of subsidized and competing lines of different nationalities. Governments, according to this reasoning, thus have a financial interest in restricting air commerce.
Yet it is possible to argue that freedom of the air might in the long run hasten rather than postpone the day when subsidies would become unnecessary. Free competition would oblige the weaker and less efficient operators to choose between going out of business, amalgamating with some stronger foreign enterprise, or obtaining much higher subsidies. Many of the smaller states might be unwilling, or unable, to grant the latter. As a result, there would ensue a struggle ending in the survival of the fittest. The stronger, more efficient concerns would eventually eliminate their hot-house rivals, develop more routes and more traffic, and become self-supporting. To those whose interests lie primarily in encouraging international commerce, such a result might be welcome. It should, for instance, occasion no surprise that such a theory has been advocated by a Dutchman, since the Dutch air transport company -- K. L. M. -- is one of the most efficient and least politically-minded in the world. But most nations are too much interested in possessing their own air transport enterprises, however inefficient, to be willing to risk their fate by throwing the contest open to all comers on a laissez-faire basis.
The possession of rapid means of communication such as air transport may be an important competitive asset in international trade. The United States, for instance, could not afford to remain fifteen days away from a city in South America, such as Rio de Janeiro, if the latter were only four days by air from Europe. Rapid air mail communication between North and South America has had important consequences in speeding up business between the two continents. Shipping documents, notices of dishonor, letters of credit, drafts, various instructions and explanations, credit inquiries and replies, as well as specifications, samples and emergency shipments, may be sent by air with a great saving of time and a frequent saving of cable or storage expenses. The use of air mail for business correspondence eliminates cable charges that might be prohibitive in small transactions.
Politically, the possession of a well-developed air transport network, especially in international traffic, is a factor enhancing the prestige of a nation -- at home, in its colonies and abroad. The very fact that a nation has extensively developed its air transport facilities is taken to indicate that it is progressive, efficient, highly civilized and entitled to respect. Such prestige has both economic and military value. It is good publicity for the nation's industries; it is also good publicity for the nation's military power. Air transport also serves to bring overseas colonies more closely in touch with the homeland. It aids Great Powers to penetrate politically and economically into weaker and more backward countries. And not to be overlooked is the fact that the possession of a rapid means of communication is a decided asset in the eternal diplomatic competition among nations.
The development of commercial air transport has, of course, a very close connection with a nation's military air power. The most important military advantage derived from air transport probably lies in the development of airways, of air navigation aids and of ground organization -- all of which enormously facilitate the rapid movement of military aircraft. Furthermore, the existence of airlines makes it possible in emergencies to transport essential war materials and personnel rapidly. This factor is especially important on the great world routes, such as the British routes to Australia and South Africa, and the American routes in South America and the Pacific. For instance, the new line from Hawaii to New Zealand makes it possible to shift units of the American air force to Australasia along a surveyed route already supplied with facilities for refuelling, repairs and rest. And once the force has been shifted, it can be supplied with spare parts, ground crews, replacements of personnel, etc. It is hardly necessary to point out the similar value to hemisphere defense of Pan American's routes in Latin America.
Though the value of air transport as a reservoir of equipment and personnel for military aviation can be easily overestimated, it is nevertheless real. The number of planes in use as airliners is small in comparison with the number of military planes possessed by the Great Powers. The comparison should properly be made, however, with the number of military planes of the larger types only, such as bombers and transports. In 1938, aircraft in possession of American scheduled air carriers, domestic and international, numbered 345; while at the same time the number of military bombing and transport planes in the United States forces probably did not exceed 1,200. Although civilian models are said to be diverging more and more from the military, it is still possible to convert many of the modern airliners into fairly efficient bombers; a number of such conversions have been reported during the present war. Civilian aircraft can also be used for military training purposes. Even more important, however, is the potential use of airliners for the transportation of troops and supplies. The Germans, for instance, are understood to have used Junkers commercial planes to "ferry" troops to Norway and elsewhere. Commercial airlines also provide an opportunity for reserve pilots to familiarize themselves with flying conditions on many important routes abroad. In the United States, airline pilots, who number about 1,300, "are constantly kept at the very peak of training on large equipment which is comparable to Army Air Corps bombing equipment and capable of flying both day and night through all sorts of weather." [x]
It may be well to note that the distinction between economic, political and military considerations, while convenient, is in a sense artificial. The sum-total of a nation's power, however hard to define, is never based on any one or two of these factors to the exclusion of the others. In the constant flux of history, specific aims and objectives change as well as methods. Military power may be used for the promotion of commercial as well as political interests; in turn, economic power may be used for political and military ends. Since air transport is an instrument of national policy, it would be idle to expect nations to bow before some commercially efficient foreign air transport company and give up their own enterprises.
If the present war eliminates the smaller independent states, it may simplify air transport diplomacy by removing one of the obstacles to greater freedom of the air. On the other hand, if the world of tomorrow is to be one in which a few states of continental dimensions struggle to maintain, or upset, a precarious balance of world power, the political and military aspects of air transport will increasingly overshadow its commercial significance. In such a world, freedom of the air can hardly thrive.
[i] The third paragraph of Article 15 read: "The establishment of international airways shall be subject to the consent of the States flown over."
[ii] The new text reads: "Every contracting State may make conditional on its prior authorization the establishment of international airways and the creation and operation of regular international air navigation lines, with or without landing, on its territory."
[iii] Italics ours.
[iv] Edward P. Warner, "Atlantic Airways," Foreign Affairs, April, 1938, 482.
[v] As an exception, the United States negotiated in 1929 an air transport agreement with Colombia providing for reciprocal flying and landing privileges.
[vi] Letter of R. Walton Moore, Counselor of the Department of State, to Wm. H. Coverdale, President of American Export Lines, Inc., January 23, 1939. Civil Aeronautics Authority, Docket No. 238, Exhibit 19, 34. Apparently this policy is itself subject to exceptions, for after the decision just quoted, American Export Airlines, with the knowledge and assistance of the State Department, obtained landing rights in Italy through direct negotiations with the Italian Government.
[vii] For a description of various types of such conditions, see L. H. Slotemaker, Freedom of Passage or International Air Services, Leiden, n.d. (1932?), 44-57. See also Warner, op. cit., p. 470.
[viii] At the same time a reciprocal permit was issued by the United States to Imperial Airways. The assets of Imperial Airways were acquired early in 1940 by the new British Overseas Airways Corporation, which has organized a subsidiary, Airways Atlantic, Ltd., to operate the trans-Atlantic service.
[ix] Washington News, March 10, 1938, as quoted by Clinton M. Hester, Assistant General Counsel, Treasury Department, appearing for the Interdepartmental Committee on Civil Aviation, in his testimony before the House Committee on Interstate and Foreign Commerce, March 23, 1938. Hearings on H.R. 9738, 75th Congress, 3d session, 1938, p. 148.
[x] Testimony of David L. Behncke, President of Air Line Pilots Association, March 29, 1938. Hearings on H.R. 9738, op. cit., p. 245.