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- Judicial Decisions
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- Copyright
- Copyright © American Society of International Law 1964
References
1 61 Stat. 3445, T.I.A.S., No. 1679, as amended, T.I.A.8., Nos. 2106, 2257, 2258, 4336, and 5135.
2 Digested and excerpted by Wm. W. Bishop, Jr., from mimeographed copy of decision. The full text of the decision appears in 3 Int. Legal Materials 668 (July, 1964).
3 The submission to arbitration was in conformity with Art. X of the Air Transport Services Agreement, as amended, which provided for an advisory opinion of three arbitrators; the Agreement provided that the contracting parties "will use their best efforts under the powers available to them to put into effect the opinion expressed in any such advisory report." By letters exchanged Dec. 8, 1962/Jan. 9, 1963, the governments agreed to consider the decision of the Arbitration Tribunal in this dispute as binding on the parties.
4 The arbitrators chosen by the parties being unable to agree on the third member, Prof. Ago was chosen by the President of the International Court of Justice after consultation with the President of the Council of ICAO.
5 Prof. Milton Katz was first designated by the United States, but had to resign due to other commitments; he was replaced by Prof. deVries prior to the oral arguments.
6 The Tribunal's decision states: "During their oral arguments both Parties expressed the opinion that the Tribunal should determine its jurisdiction on the basis of a broad interpretation of the Arbitration Agreement. In this connection, at the conclusion of the oral argument, the President asked the Agents, on behalf of the Tribunal, if the Parties were prepared formally to confirm their agreement on this point, and that if, consequently, the terms employed by the Arbitration Agreement to indicate the questions that the Tribunal had been requested to decide, should be interpreted to mean that the Tribunal would be free if it deemed proper to do so, to consider not only the terms of Eoute 1 of Schedule I I of the Annex, but also the Agreement and the Annex as a whole, as well as all the formal and informal understandings which followed, as well as the practice of the Parties. The question was also asked whether, with the agreement of the Parties, the Tribunal would be free, if it so deemed proper, either to give a single answer to the two questions appearing in the Arbitration Agreement or to reverse the order of the said questions. The replies of the Agents of the Parties were affirmative on both points."
7 The Annex further specified that: "One or more air carriers designated by each of the Contracting Parties under the conditions provided in this Agreement will enjoy, in the territory of the other Contracting Party, rights of transit, of stops for nontraffic purposes and of commercial entry and departure for international traffic in passengers, cargo and mail at the points enumerated and on each of the routes specified in the schedules attached at all airports open to international traffic."
8 Here the Tribunal referred to the Advisory Opinion of Aug. 12, 1922, regarding Competence of the International Labor Organization, P.C.I.J., Ser. B, Nos. 2 & 3, p. 22 ; and the Advisory Opinion of May 16, 1925, regarding Polish Postal Service in Danzig, ibid., No. 11, pp. 39-40.
9 Here the Tribunal discussed and quoted from the Case concerning Treatment of Polish Nationals in Danzig, P.C.I. J., Ser. A/B No. 44, p. 33 (1932); and the Lighthouses Case between France and Greece, ibid., No. 62, p. 13 (1934).
10 Here the Tribunal referred in a footnote to the 1929 Case relating to the Territorial Jurisdiction of the International Commission of the Eiver Oder, P.C.I.J., Ser. A, No. 23, p. 26; and the arbitral decision of July 18, 1932, between the United States and Sweden concerning the vessels "Kronprinz Gustaf Adolf" and "Pacific," 2 Int. Arb. Awards 1254.
11 The Tribunal discussed and quoted from the Advisory Opinion of Aug. 12, 1922, concerning Competence of the International Labor Office, P.C.I.J., Ser. B, Nos. 2 & 3, p. 39; Advisory Opinion of March 3, 1928, regarding Jurisdiction of the Courts of Danzig, ibid., No. 15, p. 18; and the Case concerning the Temple of Preah Vihear, [1962] I.C.J. Eep. 32-33.