Britain so that an agreement that will establish a monitoring system for measuring ozone levels in the stratosphere can be concluded among the three countries within three months. The data obtained from such monitoring shall be made public at least every six months. I shall also request the Secretary of State to initiate discussions through ICAO and the World Meteorological Organization on the development of international stratospheric standards for the SST.

The Secretary's decision was accompanied by a statement of his reasons, including the following discussion entitled "International Obligations":

The rapid development of the aviation industry made necessary a system of agreements to facilitate international travel. Å primary concern was that each nation be provided assurances of the safety of aircraft utilizing its airspace without having to conduct an extensive safety certification process for aircraft manufactured in other countries and owned by foreign airlines. In addition, a structure was needed to ensure a policy of nondiscrimination among nations and to promote fairness in granting particular routes. As a result, the United States and many other countries developed an international aviation structure designed to meet these and other objectives.

For purposes of the Concorde decision, the three most important international agreements are the Convention on International Civil Aviation (Chicago Convention) which was negotiated in 1944, and the two relevant bilateral air transport agreements. The Chicago Convention is concerned with ensuring the safety of international travel, through both the safety of the aircraft itself and the safety of the ground navigational and air traffic control systems. The Chicago Convention also established the International Civil Aviation Organization (ICAO), with multiple functions relating to the facilitation of international air travel.

Under the Chicago Convention, the aircraft of each contracting state which have been certified by such state as being airworthy are permitted to conduct nonscheduled, nonrevenue flights into the territory of any other contracting state without obtaining prior permission. Thus the United Kingdom and France have treaty rights to conduct such nonscheduled Concorde flights into the United States. However, no scheduled commercial services by a foreign carrier may be operated into any nation unless with the express permission of that nation.

Routes for scheduled international travel are fixed by agreement between individual nations rather than through a multilateral structure. The United States has negotiated bilateral air transport agreements with both the United Kingdom and France which precisely specify routes and the method of apportioning service on those routes among the flag carriers of the two nations. The bilaterals do not specify the type of equipment that may be used. Article 2 of the Bermuda Agreement [TIAS 1507; 60 Stat. 1499], the bilateral agreement between the United States and the United Kingdom, provides that:

[t]he designated air carrier or carriers may be required to satisfy the aeronautical authorities of the Contracting Party granting the rights that it or they is or are qualified to fulfill the conditions prescribed by or under the laws and regulations normally applied by those authorities to the operations of commercial air carriers.

Article II(b) of the bilateral agreement between the United States and France [TIAS 1679; 61 Stat. 3445] contains an identical provision. In addition, the Bermuda Agreement, in language similar to that found in the bilateral with France and the Chicago Convention, provides that:

[t]he laws and regulations of one Contracting Party relating to entry into 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 apply to aircraft of the designated air carrier or carriers of the other Contracting Party.

Pursuant to these reservations of authority, the Civil Aeronautics Board has certain authority to regulate foreign air carriers and in appropriate circumstances to suspend, reject or cancel unreasonable or discriminatory fares in foreign air transportation, and the FAA has authority to regulate aspects of aircraft operations that relate to safety. It is these provisions of the international agreements that also reserve to the United States the, authority to deny the Concorde permission to land altogether, or to place restrictions on Concorde operations, if unrestricted permission to operate would be inconsistent with the policies expressed in the environmental laws of the United States.

[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.]

These provisions, and a sense of justice as well, demand that the laws of this country be applied fairly and without discrimination. 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 II(b) of the bilateral agreements with France and the United Kingdom were also cited as "evidence" of “an intent to prohibit discrimination."

There are, as shall appear later, respects in which a total ban of the Concorde at this time, without giving it any chance to prove itself, could conceivably be attacked as discriminatory. However, I do not feel that the provisional and restricted order I issue today can justly be so attacked. It is true that this is the first time that NEPA has been applied to requests by foreign air carriers to conduct operations into this country, but this is the first such request to operate with equipment that was not already in operation before the enactment of that statute. The Concorde is sufficiently different from subsonic jet aircraft in its environmental characteristics that admission on a trial basis and the imposition of different operating requirements are amply justified.

See Dept. of Transportation publication, "The Secretary's Decision on Concorde Supersonic Transport," Washington, D.C., Feb. 4, 1976, including sections on the legal framework, the policy framework, the environmental consequences, the Concorde's benefits, conclusions, and two appendices: Secretary of Transportation's Comments on Safety, and the Federal Aviation Administrator's Safety Conclusions. 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:

The 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.

On April 7, 1976, the Civil Aeronautics Board, ruling on a motion filed by the Environmental Defense Fund, refused to ban the Concorde from the United States. It said it saw no need to hold its own hearings concerning the plane or to bar it by revising operating permits held by British Airways and Air France.

The New York Times, April 8, 1976.

On November 15, 1976, the U.S. Supreme Court denied certiorari in Board of Supervisors of Fairfax County v. Coleman, No. 76–231, 45 U.S. Law Week 3364. The Court thus left standing a decision by the U.S. Court of Appeals for the District of Columbia that Secretary

Coleman had acted within his authority in permitting the Concorde to operate on a trial basis.

A statement of U.S. policy on aviation noise abatement issued by the Department of Transportation on November 18, 1976, with the support of the Federal Aviation Administration (FAA), was applicable to subsonic aircraft, but contained the following statement concerning supersonic aircraft:

Using information that is now available on a continuing basis from the Concorde demonstration, the FAA, not later than thirty days after the conclusion of the sixteen-month demonstration periods, will act to promulgate a noise rule applicable to supersonic aircraft that is necessary to protect the public health and welfare and that is consistent with the statutory requirement that the Administrator consider technological practicability, economic reasonableness, and appropriateness to aircraft type.

Dept. of Transportation, Aviation Noise Abatement Policy, Nov. 18, 1976, p. 8. See ante, p. 415, regarding noise abatement policy on subsonic aircraft in international service.

Preference for U.S. Air Carriers

The Department of State responded, by notes dated July 6, 1976, to notes from the Embassies of Denmark, Norway, and Sweden, stating their Governments' objections to measures taken by the U.S. Government in implementation of the "Fly U.S. Flag" program, constituting a part of the Federal Action Plan for Improved Profitability in International Air Carrier Operations proposed by the Department of Transportation on October 2, 1974. In particular, the Scandinavian countries objected to letters from the Secretary of Transportation of October 2, 1974, to American travel agents and shippers of air cargo, and October 17, 1974, to chief executives of U.S. scheduled airlines, appealing for a shift to American carriers with regard to transport of passengers as well as cargo, and the amendment of the Federal Procurement Regulations on preference for U.S. flag carriers for all Federal agencies and Government contractors and subcontractors, which became effective on October 21, 1974. They stated the opinion that these measures were inconsistent with Article 10 and 11 of the air transport agreements between the United States and each of the three countries, and noted, in addition, that the Scandinavian countries do not discriminate in government-procured transportation.

The Department's reply note in each case stated:

The Department fully appreciates the fact that the Scandinavian countries do not limit government-procured transportation to the national airline whenever possible. It is nevertheless true that most

governments agree that regulations placing such a limitation do not constitute violations of the fair and equal opportunity provisions of air transport agreements. In the light of this prevailing international interpretation, the United States cannot accept the contention that its own regulations on this subject are contrary to article 10 of the Air Transport Agreement between the United States and Sweden, as amended.

Article 11 of the Agreement does not appear pertinent to the question at hand. It relates to the effect of the operations of one party's airlines on those of the other, not to the effect of government actions.

It is true that the United States Government also tries to make its citizens aware of the important role played by U.S. flag carriers in providing them with safe, efficient and inexpensive international air services. These efforts have no legal force whatsoever, and are no more contrary to the Agreement than airline advertising is. The choice of carriers for private sector travel remains, and should remain, an individual decision.

The United States does not propose to depart from its longstanding policy that the public interest and the national interest are best served by a mutual exchange under bilateral air transport agreements based on a fair and equal opportunity to compete. As a consequence of this policy, the Department is confident that the U.S. market will continue to offer foreign airlines a hospitable environment such as the designated carrier of the Scandinavian countries has enjoyed for many years.

Dept. of State File Nos. P76 0101-232, P76 0101-228, and P76 0101-223. For a discussion on the “Fly U.S. Flag" program, the International Air Transportation Fair Competitive Practices Act of 1974 (88 Stat. 2102; 49 U.S.C. 1159 et seq.), and the Federal Procurement Regulations of Oct. 21, 1974, see the 1974 Digest, pp. 391-397. For prior objections by the United Kingdom and the Federal Republic of Germany, see the 1975 Digest, pp. 462-464. The air transport services agreements between the United States and Denmark, Norway, and Sweden, respectively, were amended on Aug. 6, 1954 (TIAS 3013, 3014, 3015; 5 UST 1411, 1422, 1433) to add, inter alia, articles 10 and 11, which read as follows:

Article 10

There shall be a fair and equal opportunity for the airlines of each contracting party to operate on any route covered by this Agreement.

Article 11

In the operation by the airlines of either contracting party of the trunk services described in this Agreement, the interest of the airlines of the other contracting party shall be taken into consideration so as not to affect unduly the services which the latter provides on all or part of the same routes.

§ 6

Outer Space

Registration Convention

The Convention on Registration of Objects Launched into Outer Space, which was opened for signature on January 14, 1975, came into force on September 15, 1976, with the deposit of the U.S. instrument of ratification (TIAS 8480, 28 UST). Countries which had previously deposited instruments of ratification, and for which