Interpretation of Article 17 Bis of the US-EU Air Transport Agreement ( 2016 )

Interpretation of Article 17 Bis of the
US-EU Air Transport Agreement
Article 17 bis of the Air Transport Agreement Between the United States of America and the European
Community and Its Member States does not provide an independent basis upon which the United
States may deny a permit to an air carrier of a Party to the Agreement if that carrier is otherwise
qualified to receive such a permit.
April 14, 2016
MEMORANDUM OPINION FOR THE GENERAL COUNSEL
DEPARTMENT OF TRANSPORTATION
You have asked whether Article 17 bis of the Air Transport Agreement be-
tween the United States of America and the European Community and its Member
States, signed on April 25 and 30, 2007, as amended (the “Agreement”), provides
an independent basis upon which the United States may deny an air carrier of the
European Union a permit to provide foreign air transportation services to and from
the United States, assuming that the carrier is otherwise qualified to receive such a
permit under Department of Transportation (“DOT” or “Department”) authorities
and the Agreement.1 You have indicated that, in your view, Article 17 bis does not
provide such an independent basis for denying a permit. See Letter for Karl R.
Thompson, Principal Deputy Assistant Attorney General, Office of Legal Counsel,
from Kathryn B. Thomson, General Counsel, Department of Transportation, Re:
DOT Legal Analysis of Article 17 bis of the U.S.-EU Aviation Agreement (Mar. 17,
2016) (“DOT Legal Analysis”). And the Department of State (“State Department”
or “State”) has indicated that it agrees with your conclusion. See Letter for Karl
Thompson, Principal Deputy Assistant Attorney General, Office of Legal Counsel,
from Brian J. Egan, Legal Adviser, Department of State (Apr. 13, 2016) (“State
Legal Analysis”). Nonetheless, because this question is important to the Depart-
ment and likely to recur, the Secretary of Transportation asked you to solicit our
opinion. See Letter for Karl R. Thompson, Principal Deputy Assistant Attorney
General, Office of Legal Counsel, from Kathryn B. Thomson, General Counsel,
Department of Transportation, Re: Interpretation of Article 17 bis of the US-EU
Aviation Agreement at 1 (Mar. 11, 2016).
1
The agreement between the Parties was initially signed in 2007. See Air Transport Agreement
Between the United States of America and the European Community and Its Member States, Apr. 25–
30, 2007, 46 I.L.M. 470 (“2007 ATA”). In 2010, this agreement was amended by the Protocol to
Amend the Air Transport Agreement Between the United States of America and the European
Community and Its Member States, Signed on April 25 and 30, 2007, June 24, 2010, 2010 O.J.
(L 223) 3 (“2010 Protocol”). References in this opinion to the “Agreement” are to the 2007 ATA, as
amended by the 2010 Protocol. References to the 2007 ATA and the 2010 Protocol are to those specific
documents.
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Opinions of the Office of Legal Counsel in Volume 40
We note at the outset the limited nature of your question. You have not asked
for our views on the propriety of granting a permit to any particular foreign air
carrier, and we do not express any views on that subject. Although you have
advised us that there are ongoing permitting proceedings related to applications by
Norwegian Air International and Norwegian UK, two foreign air carriers that seek
to provide services under the Agreement, we express no view on whether the
Secretary should or should not grant those carriers any relevant permits. We are
also aware that DOT has various domestic authorities under which it evaluates
permit applications. See, e.g., 49 U.S.C. §§ 41301 et seq. You have asked us to
assume that the requirements for granting a permit under these authorities have
been satisfied, and we are not aware of any additional United States authorities
that would be relevant to granting such a permit. The question we address is thus
limited to interpreting the Agreement. That question is: assuming an air carrier
satisfies the relevant preconditions for a permit set forth elsewhere in the Agree-
ment, may the Department nonetheless deny a permit application because, in its
view, granting the permit would undermine the principles articulated in Article 17
bis? For the reasons set forth below, we agree with DOT and State that if an air
carrier of a Party to the Agreement is otherwise qualified to receive a permit,
Article 17 bis does not provide an independent basis upon which the United States
may deny the carrier’s application for a permit.
I.
We begin with the relevant background. In April 2007, the United States and
the European Community and its Member States signed an Air Transport Agree-
ment, which, among other things, sought “to build upon the framework of existing
agreements with the goal of opening access to markets and maximizing benefits
for consumers, airlines, labor, and communities on both sides of the Atlantic.” Air
Transport Agreement Between the United States of America and the European
Community and Its Member States pmbl. at 6, Apr. 25–30, 2007, 46 I.L.M. 470
(“2007 ATA”). Under the 2007 ATA, the Parties granted certain rights to each
other “for the conduct of international air transportation by the[ir] airlines.” 2007
ATA art. 3.2 These rights included “the right to fly across [the other Party’s]
territory without landing,” “the right to make stops in [the other Party’s] territory
for non-traffic purposes,” and, for airlines of the European Community and its
Member States, “the right to perform international air transportation . . . from
points behind the Member States via the Member States . . . to any point or points
in the United States and beyond.” Id. art. 3, ¶ 1(a), (b) & (c)(ii). Article 4 of the
2007 ATA, entitled “Authorization,” provided:
2
The 2007 ATA defined “Party” as “either the United States or the European Community and its
Member States.” 2007 ATA art. 1, ¶ 6.
2
Interpretation of Article 17 Bis of the US-EU Air Transport Agreement
On receipt of applications from an airline of one Party, in the form
and manner prescribed for operating authorizations and technical
permissions, the other Party shall grant appropriate authorizations
and permissions with minimum procedural delay, provided:
(a) for a U.S. airline, substantial ownership and effective control
of that airline are vested in the United States, U.S. nationals, or
both, and the airline is licensed as a U.S. airline and has its prin-
cipal place of business in U.S. territory;
(b) for a Community airline, substantial ownership and effective
control of that airline are vested in a Member State or States, na-
tionals of such a state or states, or both, and the airline is licensed
as a Community airline and has its principal place of business in
the territory of the European Community;
(c) the airline is qualified to meet the conditions prescribed under
the laws and regulations normally applied to the operation of in-
ternational air transportation by the Party considering the applica-
tion or applications; and
(d) the provisions set forth in Article 8 (Safety) and Article 9 (Se-
curity) are being maintained and administered.
Id. art. 4.
In order to further the “goal of continuing to open access to markets and to
maximise benefits for consumers, airlines, labor, and communities on both sides of
the Atlantic,” the 2007 ATA also required the Parties to start “Second Stage
Negotiations” after provisional application of the 2007 ATA began. See id. art. 21,
¶ 1. These Second Stage Negotiations resulted in a further agreement between the
United States and the European Union, signed on June 24, 2010, to amend the
2007 ATA agreement. See Protocol to Amend the Air Transport Agreement
Between the United States of America and the European Community and Its
Member States, Signed on April 25 and 30, 2007, June 24, 2010, 2010 O.J.
(L 223) 3 (“2010 Protocol”).3 Among other things, this 2010 Protocol added to the
Agreement Article 17 bis, entitled “Social Dimension,” which provided:
1. The Parties recognise the importance of the social dimension of
the Agreement and the benefits that arise when open markets are
3
The 2010 Protocol noted that “the European Union replaced and succeeded the European Com-
munity as a consequence of the entry into force on December 1, 2009 of the Treaty of Lisbon.” Id.
pmbl. at 4.
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Opinions of the Office of Legal Counsel in Volume 40
accompanied by high labour standards. The opportunities created
by the Agreement are not intended to undermine labour standards
or the labour-related rights and principles contained in the Parties’
respective laws.
2. The principles in paragraph 1 shall guide the Parties as they
implement the Agreement, including regular consideration by the
Joint Committee, pursuant to Article 18, of the social effects of
the Agreement and the development of appropriate responses to
concerns found to be legitimate.
2010 Protocol art. 4 (adding Agreement art. 17 bis).
The Joint Committee referenced in Article 17 bis is described in Article 18,
which was part of the 2007 ATA and was amended by Article 5 of the 2010
Protocol. The Committee is required to meet at least once a year “to conduct
consultations relating to this Agreement and to review its implementation.”
Agreement art. 18, ¶ 1. A Party may also request a meeting of the Joint Committee
“to seek to resolve questions relating to the interpretation or application of th[e]
Agreement.” Id. ¶ 2. The Joint Committee is tasked with reviewing “the overall
implementation of the Agreement, including . . . any social effects of the imple-
mentation of the Agreement,” id. ¶ 3, and “develop[ing] cooperation” among the
Parties by, among other things, “considering the social effects of the Agreement as
it is implemented and developing appropriate responses to concerns found to be
legitimate,” id. ¶ 4(b).
The 2010 Protocol also added (again among other provisions) Article 6 bis,
which provides that “[u]pon receipt of an application for operating authorisation,
pursuant to Article 4, from an air carrier of one Party, the aeronautical authorities
of the other Party shall recognise any fitness and/or citizenship determination
made by the aeronautical authorities of the first Party . . . as if such a determina-
tion had been made by its own aeronautical authorities and not enquire further into
such matters,” absent “a specific reason for concern that, despite the determination
made by the aeronautical authorities of the other Party, the conditions prescribed
in Article 4 of this Agreement for the grant of appropriate authorisations or
permissions have not been met.” 2010 Protocol art. 2. The 2010 Protocol clarified
that a “Citizenship determination” is “a finding that an air carrier . . . satisfies the
requirements of Article 4 regarding its ownership, effective control, and principal
place of business,” and that a “Fitness determination” is “a finding that an air
carrier . . . has satisfactory financial capability and adequate managerial expertise
to operate such services and is disposed to comply with the laws, regulations, and
requirements that govern the operation of such services.” Id. art. 1 (adding
Agreement art. 1, ¶¶ 2 bis & 3 bis).
The United States, the European Union and its Member States, Iceland, and
Norway later signed an agreement incorporating the provisions of the 2007 ATA
4
Interpretation of Article 17 Bis of the US-EU Air Transport Agreement
and the 2010 Protocol and applying them to Iceland and Norway as if they were
members of the European Union. See Air Transport Agreement Between the
United States, European Union and Its Member States, Iceland, and Norway arts.
1–2, June 16–21, 2011, 2011 O.J. (L 283) 3.
II.
In our view, the text of the Agreement, reinforced by its purpose, makes clear
that Article 17 bis does not provide an independent basis on which to deny an air
carrier’s application for a permit where the applicant is otherwise qualified to
receive one under the Agreement. The interpretation of an international agreement
begins with its text. See Abbott v. Abbott, 560 U.S. 1, 10 (2010) (“The interpreta-
tion of a treaty . . . begins with its text.” (internal quotation marks omitted)); Bank
Melli Iran v. Pahlavi, 58 F.3d 1406, 1408 (9th Cir. 1995) (“Executive agree-
ments . . . are interpreted in the same manner as treaties. . . .”); Air Canada v. U.S.
Dep’t of Transp., 843 F.2d 1483, 1486 (D.C. Cir. 1988) (“[We interpret] an
international executive agreement . . . according to the principles applicable to
treaties.”); see also Vienna Convention on the Law of Treaties art. 31(1), opened
for signature May 23, 1969, 1155 U.N.T.S. 331, 340 (“A treaty shall be interpret-
ed in good faith in accordance with the ordinary meaning to be given to the terms
of the treaty in their context and in the light of its object and purpose.”) (“Vienna
Convention”); Restatement (Third) of Foreign Relations Law § 325(1) (1987)
(“An international agreement is to be interpreted in good faith in accordance with
the ordinary meaning to be given to its terms in their context and in the light of its
object and purpose.”).
As noted above, Article 4 of the Agreement, entitled “Authorization,” sets forth
the standards under which the Parties to the Agreement grant the authorizations
and permissions necessary to enable carriers of another Party to operate in their
jurisdictions. Article 4 provides that “[o]n receipt of applications from an airline of
one Party, in the form and manner prescribed for operating authorizations and
technical permissions, the other Party shall grant appropriate authorizations and
permissions with minimum procedural delay, provided” that three conditions are
satisfied: first, the airline must be a citizen of an appropriate state; second, the
airline must be “qualified to meet the conditions prescribed under the laws and
regulations normally applied to the operation of international air transportation by
the Party considering the application or applications”; and third, the “provisions
set forth in Article 8 (Safety) and Article 9 (Security)” must be “maintained and
administered.” Agreement art. 4. Assuming these conditions are met (as we do for
purposes of this opinion), the plain terms of Article 4 require the United States to
grant the “appropriate authorizations and permissions” to the requesting carrier.
Id.; see id. (if enumerated conditions are met, Parties “shall grant” authorizations
to carriers of other Parties).
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Opinions of the Office of Legal Counsel in Volume 40
Notably, in contrast to its express references to Articles 8 and 9, Article 4 does
not mention Article 17 bis, or make compliance with that article a precondition for
grant of an authorization. The fact that Article 4 explicitly conditions the grant of
the relevant authorizations or permissions on “the provisions set forth” in Articles
8 and 9 “being maintained and administered” suggests that the drafters did not
intend to condition a grant of authorization under Article 4 on the satisfaction of
Article 17 bis or other unnamed articles. Cf., e.g., 1 Oppenheim’s International
Law § 633, at 1279 (9th ed. 1992) (“The maxim expressio unius est exclusio
alterius has been followed in the interpretation of treaties by international
tribunals in a number of cases . . . .”). Article 4 also does not refer to the “social
dimension” or “labour standards” discussed in Article 17 bis, or suggest that either
of these factors may be considered independently of Article 4’s enumerated
requirements in granting an authorization.4 Thus, on its face, Article 4 mandates
that Parties issue appropriate authorizations and permissions to air carriers of other
Parties once the three specific conditions enumerated in Article 4 are satisfied, and
none of these conditions references Article 17 bis or the factors it describes. This
straightforward reading of Article 4 strongly suggests that Article 17 bis does not
provide an independent basis for denying an air carrier’s application for a permit
where the carrier is otherwise qualified to receive one under the Agreement.
It is true that the Agreement does not expressly define the “appropriate authori-
zations and permissions” that must be granted. Agreement art. 4. In context,
however, we think it clear that this phrase refers to the authorizations and permis-
sions necessary to enable a foreign air carrier to operate within a particular
jurisdiction—in the case of the United States, a permit issued by DOT. See 49
U.S.C. § 41301 (providing that foreign air carrier may provide foreign air
transportation only if it holds a relevant permit); id. § 41302 (providing Secretary
of Transportation authority to issue such permits); see also State Legal Analysis
at 3 (“Article 4 imposes an obligation to issue a permit provided that the criteria in
Article 4 are met.”); DOT Legal Analysis at 5 (once fitness and safety criteria
under Agreement are satisfied, “DOT is legally required to grant” a carrier’s
application to provide services in the United States). The phrase “authorizations
and permissions” is naturally read to refer back to the “operating authorizations
and technical permissions” mentioned earlier in the same sentence; i.e., the kinds
of authorizations and permissions necessary to “operat[e]” an airline in the
relevant jurisdiction. See Agreement art. 4 (“On receipt of applications from an
airline of one Party, in the form and manner prescribed for operating authoriza-
tions and technical permissions, the other Party shall grant appropriate authoriza-
tions and permissions with minimum procedural delay . . . .”).
4
Because we assume that Article 4’s enumerated requirements are satisfied, we do not consider
whether the principles discussed in Article 17 bis could ever be relevant in determining whether those
requirements are met.
6
Interpretation of Article 17 Bis of the US-EU Air Transport Agreement
The term “appropriate,” considered in isolation, might be taken to indicate that
the Parties retain the discretion to deny authorizations or permissions if they
conclude that issuing them would be “[in]appropriate,” a reading that might
suggest that the considerations set forth in Article 17 bis could independently be
taken into account in deciding whether to issue a permit. In context, however, this
is an implausible reading of that term. E. Airlines, Inc. v. Floyd, 499 U.S. 530, 534
(1991) (“[W]e begin with the text of the treaty and the context in which the written
words are used.” (internal quotation marks omitted)). As noted above, Article 4
mandates that authorizations and permissions be granted “with minimum proce-
dural delay, provided” that certain conditions are satisfied. Agreement art. 4. It
then enumerates and describes each condition, and subsequent articles discuss in
great detail the specific requirements and procedures related to safety (Article 8)
and security (Article 9). It would be fundamentally at odds with this explicit
enumeration for the Parties to have indicated, with a single open-ended adjective
inserted outside the enumerated list of conditions, that the Parties were also free to
deny permits as not “appropriate” for other unspecified reasons. Cf. Whitman v.
Am. Trucking Ass’n, 531 U.S. 457, 468 (2001) (“Congress . . . does not, one might
say, hide elephants in mouseholes.”). It is far more natural in context—and far
more consistent with the text of Article 4 and the rest of the Agreement—to read
the phrase “appropriate authorizations and permissions” to refer to those particu-
lar authorizations and permissions a carrier needs to operate in a specific jurisdic-
tion. Agreement art. 4 (emphasis added). The Agreement gives qualified carriers
of each Party the opportunity to offer services in the jurisdiction of any other
Party, provided the listed conditions are met. Id. The specific authorizations and
permissions necessary for them to do so may vary according to each Party’s
relevant laws and regulations. Referring to “appropriate authorizations and
permissions” is a convenient way to capture, in a single phrase, whatever authori-
zations and permissions a carrier needs in a given jurisdiction to enable it to
provide services consistent with the Agreement. Cf. United Sav. Ass’n of Tex. v.
Timbers of Inwood Forest Assocs., 484 U.S. 365, 371 (1988) (“A provision that
may seem ambiguous in isolation is often clarified by the remainder of the
statutory scheme . . . because only one of the permissible meanings produces a
substantive effect that is compatible with the rest of the law.”).
The text of Article 17 bis likewise fails to suggest that it provides a basis for
denying a permit if the requirements referenced in Article 4 are satisfied. Para-
graph 1 of Article 17 bis provides that the Parties “recognise” the importance of
the social dimension of the Agreement “and the benefits that arise when open
markets are accompanied by high labour standards,” and then states that “[t]he
opportunities created by the Agreement are not intended to undermine labour
standards or the labour-related rights and principles contained in the Parties’
respective laws.” Agreement art. 17 bis, ¶ 1. Paragraph 1 is thus, on its face,
simply a statement of the Parties’ recognitions and intentions, and does not create
any affirmative rights, obligations, or authorities. Paragraph 2 explains that the
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Opinions of the Office of Legal Counsel in Volume 40
“principles in paragraph 1 shall guide the Parties as they implement the Agree-
ment, including regular consideration by the Joint Committee, pursuant to Article
18, of the social effects of the Agreement and the development of appropriate
responses to concerns found to be legitimate.” Id. ¶ 2. DOT suggests that this
provision is “essentially hortatory,” and that the statement that the principles in
paragraph 1 “shall guide” the Parties’ implementation of the Agreement does not
impose any obligation on the Parties. DOT Legal Analysis at 5. The State
Department suggests that, under paragraph 2, if a Party had “concerns about some
aspect of labor rights regarding its own implementation or the implementation of
the Agreement by another Party,” the Party “could consider on its own what, if
any, action is appropriate (and consistent with the Agreement) or could potentially
raise the issue with some or all other Parties.” Id. But, in State’s view, paragraph 2
“does not authorize actions that would run counter to express legal obligations of
the Parties under other provisions of the Agreement—such as the obligation at
issue here, to grant a permit where Article 4’s requirements are satisfied.” Id. “In
that context,” State explains, “[p]aragraph (2) at most provides for the Joint
Committee to consider labor-related concerns raised by the Parties . . . .” Id. We
need not attempt to determine the precise meaning of paragraph 2, because in our
view, no plausible reading of that provision would provide a basis for denying a
permit to an air carrier otherwise qualified under Article 4. As explained above,
once the requirements enumerated in Article 4 are satisfied, Article 4 does not
leave the Parties with any discretion to deny a permit, or to condition the grant of a
permit on requirements that are not enumerated or referenced in Article 4 itself.
See supra pp. 5–7. Thus, even if Article 17 bis were read more expansively than
DOT or State suggests, as not simply authorizing but also requiring the Parties to
take all possible actions consistent with the Agreement to respond to labor
concerns whenever feasible, such actions could not include denying a permit when
the requirements of Article 4 are met, because the Agreement does not allow the
Parties to take such an action.5
This conclusion is reinforced by the amendment history of the Agreement.
Article 17 bis was added to the Agreement in 2010. If the drafters had intended
Article 17 bis to affect the permitting process described in Article 4, they could
have said so expressly. Indeed, they included precisely such a clarification in
Article 6 bis, which was also added in 2010. Article 6 bis sought to streamline the
permit approval process in Article 4 by providing that, in many circumstances,
Parties are required to accept the fitness and citizenship determinations made by
the aeronautical authorities of other Parties. Consistent with this purpose, Article 6
bis expressly references Article 4 and makes clear that it is intended to affect the
way applications under Article 4 are reviewed. See Agreement art. 6 bis (“Upon
5
To be clear, we express no view on whether Article 17 bis can be interpreted in this more expan-
sive manner.
8
Interpretation of Article 17 Bis of the US-EU Air Transport Agreement
receipt of an application for operating authorisation, pursuant to Article 4, from an
air carrier of one Party, the aeronautical authorities of the other Party shall
recognise any fitness and/or citizenship determination made by the aeronautical
authorities of the first Party . . . as if such a determination had been made by its
own aeronautical authorities and not enquire further into such matters,” with
certain limited exceptions.). This express reference to Article 4 suggests that when
the drafters of the 2010 amendments intended the new provisions in the Agree-
ment to affect the implementation of Article 4, they said so explicitly. Article 17
bis, however, does not mention Article 4. Nor does it expressly indicate—as other
articles do—that it is intended to override other provisions in the Agreement. Cf.
Agreement art. 6 (“Notwithstanding any other provision in this Agreement, the
Parties shall implement the provisions of Annex 4 in their decisions under their
respective laws and regulations concerning ownership, investment and control.”);
id. art. 10, ¶ 10 (“Notwithstanding any other provision of this Agreement . . . .”);
id. annex 1, § 3 (“Notwithstanding Article 3 of this Agreement . . . .”). Thus, like
the text of Article 4, the text of Article 17 bis fails to indicate that it provides any
basis for denying a permit if the requirements in Article 4 are satisfied.
This conclusion is also consistent with the general purposes of the Agreement.
See, e.g., Abbott, 560 U.S. at 9–10 (noting that treaty interpretation inquiry is
shaped by, inter alia, the text and purposes of the treaty); id. at 28–29, 46
(Stevens, J., dissenting) (interpreting treaty by looking to treaty’s text and
purpose); Application of the Federal Water Pollution Control Act to the Former
Panama Canal Zone, 5 Op. O.L.C. 80, 81 (1981) (“Panama Canal Opinion”)
(noting that “[t]reaties are to be construed with the highest good faith with an eye
to the manifest meaning of the whole treaty,” and construing provisions “consist-
ently and in keeping with the purpose of the Treaty” (internal quotation marks
omitted)); Vienna Convention art. 31(1), 1155 U.N.T.S. at 340. The State
Department, which led the negotiation of the Agreement on behalf of the United
States, has indicated that “[t]he central purpose of the Agreement was to increase
opportunities to provide air services between the Parties.” State Legal Analysis
at 4; see also Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 184–85 (1982)
(negotiating agency’s views get “great weight”); Panama Canal Opinion, 5 Op.
O.L.C. at 82 (“In interpreting a treaty and other international agreements, the
construction placed upon it by the Department charged with supervision of our
foreign relations should be given much weight.”). This view is confirmed by the
preamble of the Agreement, which states that, in entering into the Agreement, the
Parties desired “to promote an international aviation system based on competition
among airlines in the marketplace with minimum government interference and
regulation,” and intended to “open[] access to markets and maximiz[e] benefits for
consumers, airlines, labor, and communities on both sides of the Atlantic.” 2007
ATA pmbl. at 4–6; see also 2010 Protocol pmbl. at 4 (noting that Parties intended
“to build upon the framework established by [the 2007 ATA], with the goal of
opening access to markets and maximising benefits for consumers, airlines,
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Opinions of the Office of Legal Counsel in Volume 40
labour, and communities on both sides of the Atlantic”). The purpose of promoting
open access by airlines of one Party to the markets of the other Parties is served by
the clear procedures set forth in Article 4, which limit each Party’s discretion to
deny permits to carriers of the other Parties, thereby ensuring that government
interference with competition is “minim[ized].” To be sure, benefits to labor were
relevant to the Parties and explicitly mentioned in the preamble, but these
references, read in light of the preamble as a whole, suggest only that the Parties
believed benefits to labor were among the benefits that flowed from open access to
markets. See generally Agreement pmbl.; see also 2010 Protocol art. 6 (“The
Parties commit to the shared goal of continuing to remove market access barriers
in order to maximise benefits for consumers, airlines, labour, and communities on
both sides of the Atlantic . . . .” (emphasis added)).6
Finally, we also considered whether a provision concerning Article 17 bis in
the current DOT appropriations bill, which is identical to a provision in the
previous year’s bill, alters our analysis. See Consolidated Appropriations Act,
2016, Pub. L. No. 114-113, div. L, § 413, 129 Stat. 2242 (Dec. 18, 2015);
Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113-
235, div. K, § 415, 128 Stat. 2130, 2765 (2014). That provision states that “[n]one
of the funds made available by this Act may be used to approve a new foreign air
carrier permit . . . or exemption application . . . of an air carrier already holding an
air operators certificate issued by a country that is party to the [Agreement] where
such approval would contravene United States law or Article 17 bis” of the
Agreement. Pub. L. No. 114-113, § 413(a). It then clarifies that “[n]othing in this
section shall prohibit, restrict or otherwise preclude the Secretary of Transporta-
tion from granting a foreign air carrier permit or an exemption to such an air
carrier where such authorization is consistent with the [Agreement] and United
States law.” Id. § 413(b). Whatever the meaning or effect of this provision as a
matter of domestic law, it does not affect our interpretation of the Agreement
itself. As discussed above, the text of the Agreement is clear. The Departments of
State and Transportation—the principal government entities involved in negotiat-
ing and implementing the Agreement on behalf of the United States—agree that
Article 17 bis does not provide an independent basis upon which a Party to the
Agreement may deny an application for a permit from an otherwise qualified
6
Because we conclude that the text of the Agreement is clear, and consistent with the central
purpose of the Agreement, we need not inquire into the negotiating history. Cf. Chan v. Korean Air
Lines, Ltd., 490 U.S. 122, 134 (1989) (“We must . . . be governed by the text . . . whatever conclusions
might be drawn from the intricate drafting history . . . . The latter may of course be consulted to
elucidate a text that is ambiguous. But where the text is clear, as it is here, we have no power to insert
an amendment.” (citations omitted)); see also Vienna Convention art. 32, 1155 U.N.T.S. at 340.
Nevertheless, the State Department has informed us that it “believes that the negotiating history of the
treaty confirms the conclusion that Article 17 bis does not constitute a basis for a Party to unilaterally
deny a permit to an otherwise qualified carrier of another Party.” State Legal Analysis at 4.
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Interpretation of Article 17 Bis of the US-EU Air Transport Agreement
carrier, and those views are entitled to great weight. See Avagliano, 457 U.S. at
184–85 (“Although not conclusive, the meaning attributed to treaty provisions by
the Government agencies charged with their negotiation and enforcement is
entitled to great weight.”); Kolovrat v. Oregon, 366 U.S. 187, 194 (1961) (“[T]he
meaning given to [treaties] by the departments of government particularly charged
with their negotiation and enforcement is given great weight.”). And in any event,
we do not read the DOT appropriations provision as purporting to alter the
meaning of the Agreement itself.
III.
For the foregoing reasons, we conclude that Article 17 bis does not provide an
independent basis upon which the United States may deny a permit to an air
carrier of a Party to the Agreement if that carrier is otherwise qualified to receive
such a permit.
KARL R. THOMPSON
Principal Deputy Assistant Attorney General
Office of Legal Counsel
11