Petition for Writ of Certiorari — South African Airways v. Dole

Supreme Court brief1987

Ask Donna

What actually matters in this document.

Text

No. &7-

IN THE =

Supreme Court of the Gnited States

OCTOBER TERM, 1987

SoutTH AFRICAN AIRWAYS,

Petitioner.

ELIZABETH H. DoLE, SECRETARY

U.S. DEPARTMENT OF TRANSPORTATION,

Respond nf,

Petition for. a Writ of Certiorari

to the United States Court of

Appeals for the District of Columbia

Circuit

THOMAS J. WHALEN

Counsel for the Petitioner

South African Airways

1100 15th Street, N.W.

Washington, D.C. 20005

(202) 289-0500

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

QUESTIONS PRESENTED FOR REVIEW

1. Where an immediate revocation of the operating

rights of South African Airways would violate a pro-

vision of the Air Transport Services Agreement in

force between the United States and the Republic of

South Africa, did the Court of Appeals err in up-

holding the construction of the Secretary of Trans-

portation that §306(aX2) of the Anti-Apartheid Act

requires immediate revocation of the airline’s oper-

ating rights, even though the plain language of

§306(aX2) does not require immediate revocation.

2. In upholding the construction of §306(a\2) of the

Anti-Apartheid Act by the Secretary of Transporta-

tion, did the Court of Appeals err in failing to apply

the principle of construction that, for a statute to

supersede or nullify an international agreement in

force, there must be “‘positive repugnancy”’ between

the provisions of the statute and the pre-existing in-

ternational agreement and no possibility of harmony

between them.

LIST OF THE PARTIES TO THE

PROCEEDING IN THE COURT BELOW

The following persons and entities were parties be-

fore the United States Court of Appeals for the Dis-

trict of Columbia Circuit:

South African Airways was the Petitioner in the

court below and is the Petitioner before the Court.

South African Airways is not a corporation and has

no parent, subsidiary or affiliate whose listing is re-

quired. Sup. CT. R. 28.1. South African Airways is

an unincorporated operating entity of the Republic of

South Africa.

Elizabeth H. Dole, Secretary of the United States

Department of Transportation was the Respondent in

the court below and is the Respondent before the

Court.

Senators Edward M. Kennedy, Carl M. Levin, Low-

ell P. Weicker, and Representatives Richard A. Gep-

hardt, William Gray, Mickey Leland, Howard Wolpe,

and Transafrica, Inc. filed a Brief as Amici Curiae

supporting the position of the Secretary of Trans-

portation.

iil

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ........ i

LIST OF THE PARTIES TO THE PROCEEDING

Se TEE, MEMGEAIUP ccccccsscescsccossodsscesesosesaccess ii

ERE ES apn OOOO eT ORE 1

a sandnlasonnetns 2

STATUTORY PROVISIONS INVOLVED .............. 2

STATEMENT OF THE CASE. ...................ccccceeee 3

JURISDICTION OF AGENCY AND COURT BE-

EI IO a 12

REASONS FOR GRANTING THE WRIT ............. 12

ARGUMENT

The court below construed §306(aX2) of the

Anti-Apartheid Act as requiring immediate

revocation of SAA’s permit without consid-

eration of whether, under the rules of con-

struction established by the Court, §306(a\2)

and the Air Transport Services Agreement

can be construed in harmony, without

superseding or nullifying this international

agreement of the United States. In so doing,

the court below decided a federal question in

a manner which conflicts with the decisions

III alo, sn cuinlaneetensecavensabeens 13

I ei cihtaiidasinticinceaicisensedinentiaiantariancanionee 21

TABLE OF AUTHORITIES

CASES: Page

Chew Heong v. United States, 112 U.S. 536

SNINIE: seateslepsauantacinsanthnnientiddappandantonamameniens 13,14,15,19

Murray v. The Charming Betsy, 6 U.S. (2 Cranch)

ae MENON |) slackonoieaviaiscansheidenasedaniaciensessueeunconmenacs 12

South African Airways v. Dole,, ___U.S. App. D.C.

au» O17 F.2G 119 (D.C. Cir. 1987) .............. passim

United States v. Lee Yen Tai, 185 U.S. 213

EINES ssciaiansaistinascuddaclabinaccdassnanammannaidanenseesiebanek 12,14,18

Weinberger v. Rossi, 456 U.S. 25 (1982) «0.0.0.0... 14,18

STATUTES:

§306, Comprehensive Anti-Apartheid Act of 1986, Pub.

L. No. 99-440, 100 Stat. 1086, 1100-01

SNIP TRALat in iatchioishabbt adeuiineetgnaiancsapepsaiedeneGanaseedenmaabnnan passim

I a, a enaeecouaianin 2

§801(a), Federal Aviation Act, 49 U.S.C.A. §1461(a)

PU. TD isi dinsatinintnedunusinietsoniedonsees 9,12

§1006(a), Federal Aviation Act, 49 U.S.C.A.

§1486(a) (West Supp. 1987) ...........cceeeeeeeeeee 9,12

§1102(a), Federal Aviation Act, 49 U.S.C.A.

§1502(a) (West Supp. 1987) 0.0.00... eeeeees 2-3

EXECUTIVE AGREEMENT:

Agreement between the I'nited States of America

and the Republic of South Africa Relating to

Air Services between their Respective Terri-

tories, and the related Exchange of Notes, 61

Stat. 3057, T.I.A.S. 1639, 11 Bevans 501, 66

U.N.T.S. 233; amended 4 U.S.T. 2205, T.I.A.S.

2875, 206 U.N.T.S. 334; amended 19 U.S.T.

5193, T.1.A.S. 6512, 706 U.N.T.S. 287 ......... passim

RULES:

en-t, e e NE 13

Table of Authorities Continued

Page

Bam. COR. TR, TD |. ccnnctencnscsccnscocconsnesvacnnessancennccactocie 12

OTHER AUTHORITIES:

Exec. Order No. 12,576, 51 Fed. Reg. 39505 (1986)

senaebananéesadinnaabebameeseisdibighaaddaasenmndeacneaiiammamalnld 8

132 Conc. Rec. $11548 (daily “ Aug. 13,

BD ccescessccsoncenssasscccnccasessonbeetnnnssonevatansnsanensse 5,6

132 Conc. Rec. $11628-32 (daily ed. Aug. 14,

BEIT” ccceoncoissssncssnnsincnssensnessiinsucdasananiaasmeats 6

132 Conc. Rec. $11712-14 (daily ed. Aug. 14,

SED xccccsncccncsnsionsentantnisinnadiulaiiaaidinndaumdaisiemaiinamnise 6,7,8

1986 U.S. Cope Conc. & AD NEwS 2334 _........... 5

H.R. 4868, 99th Cong., 2d Sess. (1986) _...........0.. 5

S. 2701, 99th Cong., 2d Sess. (1986) ..............00e 5

S. Rep. No. 370, 99th Cong. 2d Sess. 13-14

CAGED cccvcranscrsinicssecimessaanssnsnatoincsaialdisuabalauhins 5

RESTATEMENT OF FOREIGN RELATIONS LAW OF THE

UNITED STATES (REVISED) §134 (Tent. Draft

BOO, ©, FD ccccccanscsconsciscncnnssascasnnssscncnsnesavesses 14

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

No. 87-

SouTH AFRICAN AIRWAYS,

Petitione -.

ELIZABETH H. DoLe, SECRETARY

U.S. DEPARTMENT OF TRANSPORTATION,

Respondent.

Petition for a Writ of Certiorari

to the United States Court of

Appeals for the District of Columbia

Circuit

OPINIONS BELOW

The Opinion of the United States Court of Appeals

for the District of Columbia Circuit denying the

Petition of South African Airways to set aside the

Final Order of the Department of Transportation

(DOT), Order No. 86-11-29, revoking the foreign air

carrier permit of South African Airways, is reported

at 817 F.2d 119 (D.C. Cir. 1987). The opinion of the

Court of Appeals is reprinted at pages la-l6a of the

Appendix to this Petition (hereinafter referred to as

af Ey |

The Final Order of the DOT, No. 86-11-29, is re-

printed at pages 17a-25a of the Appendix to this

Petition.

JURISDICTION

On April 24, 1987, the United States Court of

Appeals for the District of Columbia Circuit denied

the petition of South African Airways to set aside

DOT Final Order 86-11-29. App. 26a-27a. No petition

for reconsideration was filed in the Court of Appeals.

Jurisdiction of the Court is invoked pursuant to 28

U.S.C. §1254(1).

STATUTORY PROVISIONS INVOLVED

Section 306 of the Comprehensive Anti-Apartheid

Act of 1986, Pub. L. 99-440 (hereinafter Anti-Apart-

heid Act) is reprinted in the Appendix at App. 28a-

29a.

The Agreement between the United States of

America and the Republic of South Africa Relating

to Air Services Between their Respective Territories,

and related Exchange of Notes' is reprinted in the

Appendix at App. 33a-62a (hereinafter Agreement).

Section 1102(a) of the Federal Aviation Act pro-

vides:

In exercising and performing their powers

and duties under this Chapter, the Board and

' Agreement between The United States of America and The

Republic of South Africa Relating to Air Services Between Their

Respective Territories, and the related Exchange of Notes, 61

Stat. 3057, T.1.A.S. 1639, 11 Bevans 501, 66 U.N.T.S 233:

amended 4 U.S.T. 2205, T.LA.S. 2875, 206 U.N.T.S. 334:

amended 19 U.S.T. 5193, T.1.A.S. 6512, 706 U.N.T.S. 287.

the Secretary of Transportation shall do so

consistently with any obligation assumed by

the United States in any treaty, convention

or agreement that may be in force between

the United States and any foreign country

or foreign countries ....

49 U.S.C.A. §1502(axWest Supp. 1987).

STATEMENT OF THE CASE

This case involves the termination of air services

by South African Airways (SAA) to the United States

and the revocation of SAA’s operating permit by the

Secretary of Transportation.

On May 23, 1947, the Government of the United

States of America and the Government of the Union

of South Africa (now the Republic of South Africa)

entered into an Agreement governing air services be-

tween their respective territories. Although amended,

this Agreement was in force between the two coun-

tries during all relevant periods. This international

agreement granted to each Government the right to

establish international air services between the two

countries and to designate an airline to perform ser-

vices on the routes set forth in the Annex to the

Agreement. Agreement, App. 33a-62a.

The provisions of the Air Transport Services Agree-

ment which relate to the revocation of permits and

the termination of the Agreement are as follows:

ARTICLE VI

Each contracting party reserves the right

to withhold or revoke a certificate or permit

to an air carrier designated by the other con-

tracting party in the event that it is not sat-

isfied that substantial ownership and effective

control of such carrier are vested in nationals

of the other contracting party, or in case of

failure by that carrier to comply with the

laws and regulations referred to in Article V

hereof, or otherwise to fulfill the conditions

under which the rights are granted in ac-

cordance with this agreement and its annex.

* * * *

ARTICLE XI

(B) Either contracting party may at any

time request consultation with the other with

a view to initiating any amendments of this

agreement or its annex which may be desir-

able in the light of experience. . . .

(D) When the procedure for a consultation

provided for in paragraph (B) of the present

article has been initiated, either contracting

party may at any time give notice to the

other of its desire to terminate this agree-

mem. ...

This agreement shall terminate one year

after the date of receipt of the notice to ter-

minate by the other contracting party unless

the notice is withdrawn by agreement before

the expiration of this period. . . .”

Agreement, App. 36a-37a, 39a.

On October 2, 1986, Congress enacted the Anti-

Apartheid Act. This Act set forth a number of eco-

nomic sanctions against the Republic of South Africa.

Section 306 of the Anti-Apartheid Act dealt with

sanctions relating to air transportation. App. 28a-29a.

The bill which eventually became the Anti-Apart-

heid Act was H.R. 4868. H.R. 4868, 99th Cong., 2d

Sess. (1986). H.R. 4868 was ultimately amended to

contain the language of Senate Bill 2701. S$.2701, 99th

Cong., 2d Sess. (1986). See 1986 U.S. CODE Conc. &

AD. NEWS 2334.

Section 306(aX2) of S.2701 originally provided:

Upon termination of such agreement [Air

Transport Services Agreement], the Secre-

tary of Transportation shall prohibit any air-

craft of a foreign air carrier owned, directly

or indirectly, by the Government of South

Africa or by South African nationals from

engaging in air transportation with respect

to the United States.

§306(a\2), S.2701, 99th Cong., 2d Sess. (1986), 132

Conc. Rec. $11548 (daily ed. Aug. 13, 1986).

In adopting this language, the Senate sought to

avoid breach of the Air Transport Services Agree-

ment by banning air transportation between South

Africa and the United States only after the Agree-

ment is terminated according to its terms, one year

after notice of termination is given. See S. Rep. No.

370, 99th Cong., 2d Sess. 13-14 (1986).

In the final stages of the Senate debate on 8.2701,

the Senate passed a floor amendment introduced by

Senator Sarbanes to amend the proposed §306 by

adding a new §306(a) and redesignating the above

§306(aX2) as §306(b\2) of S.2701. 132 Conc. REC.

S11712 (daily ed. Aug. 14, 1986).?

The new proposed §306(a) provided as follows:

Sec. 306(aX1) The President shal] immedi-

ately notify the Government of South Africa

of his intention to suspend the rights of any

air carrier designated by the Government of

South Africa under the Agreement Between

the Government of the United States of

America and the Government of the Union

of South Africa Relating to Air Services Be-

tween their Respective Territories, signed

May 23, 1947, to service the routes provided

in the Agreement.

(2) Ten days after the date of enactment of

this Act, the President shall direct the Sec-

retary of Transportation to revoke the right

of any air carrier designated by the Govern-

ment of South Africa under the Agreement

to provide service pursuant to the Agree-

ment.

(3) Ten days after the date of enactment of

this Act, the President shall direct the Sec-

* Section 306 of S.2701 is set forth at 132 Conc. REc. $11548

(daily ed. Aug. 13, 1986). Senator Weicker introduced a floor

amendment to add a subsection (3) to §306(a) of S.2701. 132

Conc. REc. S11628-32 (daily ed. Aug. 14,1986). Thereafter, Sen-

ator Sarbanes introduced another floor amendment which passed,

with the effect that §306(a) (1), (2), (3), (b) and (c) became §306

(b) (1), (2), (3), (c) and (a), respectively, of the Anti-Apartheid

Act passed by the Congress. Senator Sarbanes’ amendment

added what ultimately became §306(a) (1), (2), and (3) of the

Act.

retary of Transportation not to permit or

otherwise designate any United States air

carrier to provide service between the United

States and South Africa pursuant to the

Agreement.

§306(a) of the Anti-Apartheid Act, App. 28a. See 132

Conc. Rec. §11712 (daily ed. Aug. 14, 1986).

Senator Lugar opposed the amendment of Senator

Sarbanes and argued in debate that immediate sus-

pension of the permit of South African Airways would

be a violation of the Agreement. 132 Conc. REC.

S11713 (daily ed. Aug. 14, 1986).

Senator Dodd apparently was unaware of the pos-

sible breach by the United States presented by the

Sarbanes amendment. On that point, Senator Lugar

stated:

I would just say to the distinguished Senator

[Dodd] he probably will not argue that we

ought to unilaterally go about violating in-

ternational agreements, nor do I, nor does

the Senator from Maryland [Sarbanes].

Id. Senator Dodd responded:

I must say to my good friend he reads my

mind. Of course, he would not argue that at

all.

Id.

At no time, in the succeeding debate, did any sen-

ator voice an intent to violate the terms of the Air

Transport Services Agreement. Senator Sarbanes

himself stated that “‘it is my contention that we are

not unilaterally abrogating the Agreement.” Jd. at

S11713-14. He argued that the Republic of South Af-

rica had breached an “objective” of the Agreement

stated in Section IV of the Annex to the Agreement

on the basis of which the United States could suspend

services under Article VI. 132 Conc. REc. $11712-

14 (daily ed. Aug. 14, 1986).

While the senators indicated a desire for “imme-

diate suspension” of South African Airways, they also

expressly did not intend to breach the Air Transport

Services Agreement.

The Anti-Apartheid Act passed with the Sarbanes

Amendment. The President vetoed the Act, but the

Congress overrode the President’s veto, and the Anti-

Apartheid Act was enacted into law on October 2,

1986.

On October 10, 1986, the Department of State of

the United States delivered a note to the South Af.

rican Embassy requesting consultation pursuant to

paragraph (B) of Article XI of the Agreement and

giving notice of termination of the Agreement in one

year pursuant to paragraph (D) of Article XI of the

Agreement. App. 39a. This was done in compliance

with §306(b\1) of the Anti-Apartheid Act.

The President never “immediately” notified ‘the

Government of South Africa of his intention to sus-

pend the rights” of South African Airways under

§306(a)(1) of the Anti-Apartheid Act.

However, on October 27, 1986, President Reagan

issued Executive Order No. 12,576 which stated that

“‘[t]he Secretary of Transportation shall take the steps

specified in Section 306(a\2) and (3) of the Act.’”’ Exec.

Order No. 12,576, 51 Fed. Reg. 39505 (1986), App.

3la.

On October 28, 1986, the Department of Trans-

portation (DOT) issued an Order To Show Cause, Or-

der 86-10-60, requesting comments by October 30,

1986, as to why the permit of South African Airways

should not be revoked. On October 30, 1986, SAA

filed a response opposing the revocation.

On November 5, 1986, DOT released the text of

an order dated October 31 which it had submitted to

the President pursuant to §801 of the Federal Avia-

tion Act, 49 U.S.C.A. §1461 (West Supp. 1987). On

November 13, 1986, stating that it had ‘‘received no-

tification that the President did not intend to dis-

approve the Department’s order,’’ DOT issued DOT

Final Order 86-11-29 revoking the permit of SAA

effective November 16, 1986. Final Order, App. 17a.

The DOT also denied SAA’s request for a stay of the

revocation order pending judicial review.

On November 14, 1986, SAA filed a Petition For

Review of the DOT Final Order in the United States

Court of Appeals for the District of Columbia Circuit

pursuant to §1006(a) of the Federal Aviation Act, 49

U.S.C.A. §1486(a) and an emergency motion for a

stay of the final DOT Order. Also on November 14,

1986, following the denial by the Court of Appeals

of SAA’s motion for a stay, SAA moved Chief Justice

William Rehnquist, Circuit Justice for the District of

Columbia Circuit, for a stay pending review on the

merits by the Court of Appeals. On November 15,

1986, Chief Justice Rehnquist denied the motion.

The review proceeded on the merits and on April

24, 1987, the Court of Appeals issued its opinion de-

nying SAA’s Petition to set aside the DOT Final Or-

der revoking the SAA foreign air carrier permit.

The Court of Appeals stated:

Petitioner argues that although section

306(aX2) required the President ten days

after the Act’s enactment to direct the Sec-

retary to revoke SAA’s permit, the section

is silent as to when such revocation is to take

place. Therefore, the Secretary could have

timed the actual suspension of the permit to

coincide with the termination of the Agree-

ment. While this is true in the litera] sense,

it is impossible to reconcile such a construc-

tion with other provisions of Section 306 that

compel the conclusion that Congress intended

to terminate air service to the United States

by South African carriers without regard to

the one-year notice required for the termi-

nation of the Agreement.

Opinion, 817 F.2d at 124, App. 9a.

The reason the Court stated that “it was impossible

to reconcile’ SAA’s construction of §306(a\2) in har-

mony with the Agreement was the following:

Subsection 306(a)1) required the President to

“ummediately notify” (emphasis added) the

South African Government of his intention

to suspend such service, and_ subsection

306(a)(2) called for him to direct the Secre-

tary ten days later to revoke the right of

any carrier designated by the government of

South Africa to provide air service pursuant

to the Agreement. Given the evident urgency

of those instructions, it is hard to believe that

Congress intended the Secretary to wait an-

other 365 days before actually suspending

petitioner’s permit.

Id.

Apart from the statutory language of §306(a), the

Court of Appeals also found that “both the circum-

stances of the enactment of section 306(a) and the

accompanying debate make it impossible to reach any

conclusion other than that Congress intended the ex-

peditious suspension of SAA’s permit.” Id.

The court concluded ‘‘that the clear meaning of the

amendment coupled with the absence of any contrary

view in the legislative record requires the conclusion

that Congress intended the Secretary to give imme-

diate effect to its mandate.” Jd. at 124, App. 10a.

In its ruling, however, the court below declined to

decide whether §306(a), as construed by the court

below, in fact violated any provision of the Air Trans-

port Services Agreement. The Court of Appeals said:

Whatever the merits of this exchange be-

tween Senators Lugar and Sarbanes, there

is no indication in the legislative history to

suggest that in adopting the Anti-Apartheid

Act as amended, Congress intended to ab-

rogate any provision of the Agreement. Nor

must we decide whether section 306(a) in fact

violates any such provision.

Opinion, 817 F.2d at 125, App. lla.

Accordingly, the Court of Appeals denied the

petition of SAA to set aside the DOT Final Order

revoking the SAA foreign air carrier permit.

SAA herein petitions the Court to review that de-

cision.

JURISDICTION OF AGENCY AND COURT BELOW

The DOT had jurisdiction to issue orders in respect

to the revocation of foreign air carrier permits subject

to disapproval by the President. 49 U.S.C.A. §1461(a)

(West Supp. 1987). When the President did not dis-

approve the action of the Secretary, the revocation

order took “effect as an action of [DOT], not of the

President,” and as such was subject to judicial review

by the Court of Appeals as provided in 49 U.S.C.

§1486. 49 U.S.C.A. §1461(a) (West Supp. 1987).

The court below so held. Opinion, 817 F.2d at 122-

23, App. 5a-6a. Both the DOT and the Court of

Appeals had jurisdiction respectively to rule upon and

review the revocation of SAA’s foreign air carrier

permit. Sup. CT. R. 21(i).

REASONS FOR GRANTING THE WRIT

Since the decision in Murray v. The Charming

Betsy, 6 U.S. (2 Cranch) 64 (1804), it has been a rule

of statutory construction established by the Court that

‘‘an act of Congress ought never to be construed to

violate the law of nations, if any other possible con-

struction remains.”’ 6 U.S. (2 Cranch) at 118.

“[T]he purpose by statute to abrogate a treaty or

any designated part of a treaty .... must not be lightly

assumed, but must appear clearly and distinctly from

the words used in the statute....”” United States v. Lee

Yen Tai, 185 U.S. 213, 221 (1902). “{T]here must be

positive repugnancy between the provisions of the new

laws and those of the old; .... and that ‘if harmony

is impossible, and only in that event, the former law

is repealed, in part or wholly, as the case may be.’”

Id. at 221-22 (citations omitted).

These rules of construction applicable to the con-

struction of a statute which might affect an inter-

national agreement in force should have been applied

by the court below in construing §306(aX2) of the

Anti-Apartheid Act.

In failing to follow principles of construction es-

tablished by the Court in the above-cited cases, the

Court of Appeals has decided a federal question in a

way in conflict with applicable decisions of the Court.

Sup. Cr. R. 17.1(c).

ARGUMENT

The court below construed §306(a)(2) of the Anti-

Apartheid Act as requiring immediate revocation

of SAA’s permit without consideration of whether,

under the rules of construction established by the

Court, §306(a)(2) and the Air Transport Services

Agreement can be construed in harmony, without

superseding or nullifying this international agree-

ment of the United States. In so doing, the court

below decided a federal question in a manner which

conflicts with the decisions of the Court.

Without exception, the Court has sought to uphold

the international commitments of the United States.

‘Aside from the duty imposed by the Constitution to

respect treaty stipulations when they becoine the sub-

ject of judicial proceedings, the Court cannot be un-

mindful of the fact, that the honor of the Government

and people of the United States is involved in every

inquiry whether rights secured by such stipulations

shall be recognized and protected.” Chew Heong v.

United States, 112 U.S. 536, 540 (1884).

These international commitments, whether by treaty

or executive agreement, cannot be abrogated or

superseded except by congressional act in which ‘‘po-

sitive repugnancy”’ exists between provisions of the

later-enacted statute and the provisions of the treaty

or international agreement in force. United States v.

Lee Yen Tai, 185 U.S. 213 (1902).

[T]he purpose by statute to abrogate a treaty

or any designated part of a treaty, or the

purpose by treaty to supersede the whole or

a part of an act of Congress, must not be

lightly assumed, but must appear clearly and

distinctly from the words used in the statute

or in the treaty.

In the case of statutes alleged to be in-

consistent with each other in whole or in

part, the rule is well established that effect

must be given to both, if by any reasonable

interpretation that can be done; that “there

must be positive repugnancy between the

provisions of the new laws and those of the

old; . . . and that “if harmony is impossible,

and only in that event, the former law is

repealed, in part or wholly, as the case may

arene

The same rules have been applied where

the claim was that an act of Congress had

abrogated some of the provisions of a prior

treaty between the United States and China.

Chew Heong v. United States, 112 U.S. 536,

550.

Id. at 221-22 (citations omitted).

“[A]ffirmative congressional expression” is neces-

sary to abrogate provisions in an international agree-

ment. Weinberger v. Rossi, 456 U.S. 25, 35 (1982).

See RESTATEMENT OF FOREIGN RELATIONS LAW OF

THE UNITED STATES (REVISED) §134 (Tent. Draft No.

6, 1985).

Therefore, under these cases, the language of the

statute alone is controlling on the issue whether a

stipulation or provision in an international agreement

of the United States is nullified or superseded by an

act of Congress.

Where the court below erred was to construe the

statute as if an international agreement was not af-

fected. The court below construed the various pro-

visions of §306 of the Anti-Apartheid Act to determine

Congress’ intention and purpose, for which it found

support in the legislative history. Then, satisfied that

it had ferreted out the construction Congress in-

tended, the court held that it did not need to reach

the question whether §306(a\2) in fact violated any

provision of the Agreement.

Where, as in this case, South African Airways

placed the Air Transport Services Agreement in issue

and claimed that the Secretary’s construction was in-

consistent with the Agreement, the court below, un-

der the holdings of the Court, was required to

construe the statute in light of the international

agreement, look at its language and determine

whether, by any reasonable construction, the statrte

and international agreement can stand together. For

the statute to supersede an international agreement,

under the rulings of the Court, “it must appear that

the later provision is certainly and clearly in hostility

to the former.”” Chew Heong v. United States, 112

U.S. at 549-550 (citations omitted).

Looking at the language of §306 alone, the court

below conceded that §306(a), in a literal sense, was

silent as to when such revocation (of SAA’s permit)

was to take place, and that the Secretary could have

timed the actual suspension of the permit to coincide

with the termination of the Agreement. Opinion, 817

F.2d at 124, App. 9a.

Nevertheless, the court below found an “urgency”

in §306(aX1) which required that the President ‘‘im-

mediately”’ notify the South African Government of

his intention to suspend and in §306(aX2) which re-

quired him to direct the Secretary within ten days to

revoke the operating rights of SAA. Based upon this

‘“urgency,’’ the court below concluded that “‘it is hard

to believe that Congress intended the Secretary to

wait another 365 days before actually suspending

petitioner’s permit.”” Opinion, 817 F.2d at 124, App.

9a.

However reasonable the court below may be in

drawing this conclusion from the language of the stat-

ute, the statute in its plain language did not, as the

court below acknowledged, direct the Secretary to

revoke “immediately.”

In construing a statute such as §306(aX2), which is

silent or unclear on the timing of the revocation, it

is not unreasonable to speculate, as the court below

did, that ‘‘it is hard to believe that Congress intended

the Secretary to wait another 365 days before actually

suspending petitioner’s permit.” Opinion, 817 F.2d at

125, App. 9a. In such case, it is also appropriate in

construing a statute to look to the legislative history

to determine what Congress intended.

These aids to statutory construction, under the de-

cisions of the Court, simply do not apply where such

a construction would result in a breach by the United

States of an international agreement. The rules of

construction which do apply are that if the statute,

specifically § 306(aX2), can be read in harmony with

the stipulation of an international agreement, the

court must do so.

Section 306(aX2) is silent as to when the Secretary

is to revoke the operating rights of SAA. In light of

the terms of the Air Transport Services Agreement,

§306(aX2) can be construed in harmony with §306(b\2)

and the other provisions of §306, namely, that the

operating rights of SAA are to be revoked upon ter-

mination of the Agreement, or, if SAA violated Ar-

ticle VI of the Agreement or its permit conditions

before termination.

Termination of the Agreement in § 306(bX2) of the

Anti-Apartheid Act and revocation of operating rights

in §306(aX2) are distinct acts. After termination of

the Agreement, revocation usually follows. However,

a carrier’s violation of its permit (see SAA’s Permit,

App.63a) or a earrier’s violation of Article V1 of the

Agreement could, consistent with the Agreement, be

the basis for permit revocation, without the termi-

nation of the Agreement.

Neither the Secretary of Transportation nor the

court below found that South African Airways vio-

lated Article VI of the Agreement or any condition

of its permit. SAA’s permit was revoked only because

of an erroneous construction of §306(a2) by the Sec-

retary, upheld by the court below. The erroneous con-

struction was created by the Secretary’s failure to

follow the rules of construction established by the

Court where violation of a treaty or international

agreement would result from such a construction.

The court below was aware of the Court’s rulings

in United States v. Lee Yen Tai, 185 U.S. 213 (1902),

and Weinberger v. Rossi, 456 U.S. 25 (1982). The

court below attempted to distinguish these cases, stat-

ing ‘‘in neither case did the Court face an unambig-

uous congressional mandate to do something which in

turn might abrogate U.S. international obligations.’’

Opinion, 817 F.2d at 125 n.2., App. 12a. However,

no such “unambiguous congressional mandate’’ ap-

pears in §306. While the court below stated that a

construction consistent with the Agreement was “‘im-

possible to reconcile. . . with other provisions of

§306,”’ Opinion, 817 F.2d at 124, App. 9a, the court

below actually found only “‘it is hard to believe that

Congress intended” the Secretary to act consistently

with the Agreement. Jd.

When the court draws such a conclusion of pre-

sumed congressional intent, it fails to find in the lan-

guage of the statute itself an affirmative congressional

expression to abrogate an international agreement.

Thus when the Court of Appeals later refers to an

“unambiguous congressional mandate” or ‘“‘unambig-

uous statutory mandate,”’ Opinion, 817 F.2d at 125

n.2., App. 12a n.2., it refers not to the statutory

language itself, but to the court’s conclusion based

upon its application of general rules of statutory con-

struction.

The court below erred in failing even to consider

whether its construction would breach the Air Trans-

port Services Agreement, and whether language of

the statute lent itself to a construction in harmony

with the Agreement.

The court below stated that

there is no indication in the legislative history

to suggest that in adopting the Anti-Aparth-

eid Act as amended, Congress intended to

abrogate any provision of the Agreement... .

If petitioner’s construction of Section

306(aX2) were permissible, the lack of an ex-

press congressional intent to abrogate the

permit revocation provision of the Agree-

ment would lend support to SAA’s position.

Opinion, 817 F.2d at 125, App. 1la-12a.

In so holding, the court below misreads Chew Heong

vy. United States, 112 U.S. 536 (1884), and its progeny.

Those decisions do not rely on the presence or ab-

sence of legislative intent to abrogate or not to ab-

rogate an international agreement in force. Those

holdings establish rules of construction when an out-

standing international agreement is to be deemed ab-

rogated by an act of Congress. In effect, the Court

has held where several constructions of a statute are

possible, the construction which should be placed upon

a statute is one in harmony with the international

agreement. In this case, the construction chosen by

the Secretary and the court below was adduced with-

out consideration of whether a construction of §306

was possible which would be in harmony with the

Agreement. See §1102(a) of the Federal Aviation Act,

49 U.S.C. §1502(a) (West Supp. 1987).

The issue in this case concerns a solemn commit-

ment made by the United States with another nation

and when, as a matter of the domestic law, an in-

ternational agreement entered into by the President

is to be abrogated by an act of Congress. This issue

affects not only the Air Transport Services Agree-

ment in this case. The issue affects all treaties and

executive agreements of the United States. The issue

affects Congress’ involvement in the conduct of for-

eign affairs and the powers of the President to make

agreements with foreign sovereigns binding upon the

United States.

The Court’s holdings in the past have honored the

international commitments of the United States,

wherever possible, when such commitments were

brought into conflict by a construction of a later act

of Congress. While upholding Congress’ constitutional

power to bring about a breach of such commitments,

the Court has required the Congress to do so explic-

itly in language in the statute itself which is plainly

contrary to the stipulation of the treaty or interna-

tional agreement. Nothing less will do.

The plain language of §306(a)2) fell short of that

standard. Read in light of the stipulations in the Air

Transport Services Agreement, the language of

§306(aX2) did not .equire ‘‘immediate”’ revocation of

SAA’s permit. Consistent with the Agreement,

§306(aX2) should have been construed as providing

that the Secretary was to revoke the permit of SAA

upon termination of the Agreement, or otherwise con-

sistently with the Agreement.

ake ——

CONCLUSION

For the reasons set forth above, petitioner South

African Airways urges that this petition for a writ

of certiorari be granted.

Thomas J. Whalen

Counsel for Petitioner

SOUTH AFRICAN AIRWAYS

1100 15th Street, N.W.

Washington, D.C. 20005

(202) 289-0500

Dated: July 22, 1987

Of Counsel:

VANCE, JOYCE, CARBAUGH,

FIELD & CROMMELIN

William R. Joyce, Jr.

CONDON & FORSYTH

Moffett B. Roller

Robert P. Silverberg

Robert W. Ludwig, Jr.

APPENDIX

TABLE OF CONTENTS OF APPENDIX

Opinion below, South African Airways v. Dole, 817

SE Te Gs GS REED. cccoscccrsececcessesoceceseee

Department of Transportation Final Order-86-11-29

Judgment Denying the Petition for Review ........

Section 306 of the Comprehensive Anti-Apartheid

ETE

Executive Order, October 27, 1986 ............. eee

Agreement between the Government of the United

States of America and the Government of the

Union of South Africa Relating to Air Services

Between their Respective Territories _...........

Foreign Air Carrier Permit, South African

is a

United States Court of Apprals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 86-1620

SouTH AFRICAN AIRWAYS, PETITIONER

Vv.

ELIZABETH H. DOLE, Secretary,

U.S. Department of Transportation, RESPONDENT

Petition for Review of an Order of the

U.S. Department of Transportation

Argued January 12, 1987

Decided April 24, 1987

Thomas J. Whalen, with whom Moffett B. Roller,

Robert P. Silberberg, and Quentin Crommelin, Jr. were

on the brief, for petitioner.

Kenneth N. Weinstein, Deputy Assistant General

Counsel for Litigation, U.S. Department of Transporta-

tion, with whom Thomas L. Ray, Senior Trial Attorney,

U.S. Department of Transportation, and Robert B.

Nicholson and David Seidman, Attorneys, U.S. Depart-

ment of Justice, were on the brief, for respondent.

William L. Robinson and Goler T. Butcher were on

the brief for amici curiae Senator Edward Kennedy, et

al., urging affirmance.

Before EDWARDS, SILBERMAN, and BUCKLEY, Circuit

Judges.

Opinion for the court filed by Circuit Judge BUCKLEY.

BUCKLEY, Circuit Judge: Petitioner South African

Airways (“SAA”) asks this court to set aside an order

issued on October 31, 1986 by the Secretary of Transpor-

tation revoking its permit to provide air service between

the United States and South Africa. The order was is-

sued pursuant to section 306(a) of the Comprehensive

Anti-Apartheid Act of 1986, which directed the revoca-

tion of the right of any designee of the South African

government to provide air service pursuant to the terms

of an executive agreement between the United States and

South Africa dated May 23, 1947 (“Agreement”).

Petitioner challenges the Secretary of Transportation’s

order on the principal grounds that as the immediate

revocation of its permit was neither allowed by the

Agreement (which remains in effect at least until Oc-

tober 1987) nor required by the Anti-Apartheid Act, the

order violates both a provision of the Federal Aviation

Act directing the Secretary of Transportation to observe

international agreements and Supreme Court precedent

requiring that statutes and executive agreements be in-

terpreted, where possible, so as to give effect to both.

? Agreement between the Government of the United States

of America and the Government of the Union of South Africa

Relating to Air Services Between Their Respective Territories,

May 23, 1947, 61 Stat. 3057, T.I.A.S. No. 1639, as amended by

Agreement between the United States of America and the

Union of South Africa, Nov. 2, 1953, 4 U.S.T. 2205, T.LA-S.

No. 2870, and Air Transport Services Agreement, June 28,

1968, United States-South Africa, 19 U.S.T. 5193, T.LA-S.

No. 6512 (substituting “Republic” for “Union” throughout

Agreement, as amended).

We reject these arguments because we conclude that

Congress intended the immediate suspension of the rights

enjoyed by SAA pursuant to the Agreement. As Con-

gress has authority to “regulate Commerce with foreign

Nations” and to “make all Laws which shall be neces-

sary” for the exercise of that authority, section 306 (a)

of the Act overrides any provision of the Agreement or

of the Federal Aviation Act with which it may be incon-

sistent.

I. FACTUAL BACKGROUND

In October 1986, Congress enacted the Comprehensive

Anti-Apartheid Act of 1986, Pub. L. No. 99-440, 100

Stat. 1086 (“Anti-Apartheid Act” or “Act”). Section

306(b) (1) of the Act directs the Secretary of State to

“terminate the Agreement Between the Government of

the United States of America and the Government of

the Union of South Africa Relating to Air Services Be-

tween Their Respective Territories, signed May 23, 1947,

in accordance with the provisions of that agreement.”

Article XI of the Agreement provides for its termination

upon one year’s notice given by either party. Agree-

ment, 61 Stat. at 3061. The Agreement also specifies

limited conditions under which permits issued pursuaiit

to the Agreement may be revoked. Agreement, art. VI,

61 Stat. at 3059-60. Section 306(a) (2) of the Act, which

was offered in the Senate as a floor amendment, provides:

Ten days after the enactment of this Act, the Presi-

dent shall direct the Secretary of Transportation to

revoke the right of any air carrier designated by

the Government of South Africa under the Agree-

ment to provide service pursuant to the Agreement.

On October 10, 1986, the Secretary of State delivered

the one-year termination notice to the South African Am-

bassador, and seventeen days later the President issued

Executive Order 12,571 directing the Secretary of Trans-

portation (“Secretary”) to take the steps specified in

section 306(a)(2) of the Act. Exec. Order No. 12,571,

51 Fed. Reg. 39,505 (1986). The Secretary thereupon

issued Department of Transportation (“DOT”) Final

Order 86-11-29 (“Final Order”) in which she initiated

the steps required to effect an immediate revocation of

South African Airways’ permit. As required by section

801(a) of the Federal Aviation Act of 1958 (“Aviation

Act”), 49 U.S.C. app. § 1461(a) (1982), the Final Order

was transmitted to the President for review, at which

point he could have exercised his prerogative under that

section to disapprove the Final Order on foreign policy

or national security grounds. He declined to do so, and

SAA’s permit was accordingly revoked effective Novem-

ber 16, 1986.

SAA challenges the Secretary’s action as not required

by the Act, as in violation of the Agreement, and conse-

quently, both in conflict with Supreme Court precedent

and illegal under section 1102(a) of the Aviation Act,

which provides:

In exercising and performing their powers and

duties under this chapter, the [Civil Aeronautics]

Board and the Secretary of Transportation shall do

so consistently with any obligation assumed by the

United States in any treaty, convention, or agree-

ment that may be in force between the United States

and any foreign country ....

49 U.S.C. app. § 1502(a) (1982).

In response, the Secretary challenges the statutory ju-

risdiction of this court to review the Final Order, ques-

tions the propriety of such a review under the “political

question” doctrine, and asserts the correctness of her de-

termination that section 306(a) (2) required her to ter-

minate SAA’s permit authority promptly without await-

ing the expiration of the Agreement.

II. ANALYSIS

A. Jurisdiction

1. Statutory

This court has jurisdiction to review the Final Order

under section 1006 of the Aviation Act, 49 U.S.C. app.

£ 1486 (1982). Section 1006, as codified, provides:

Any order, affirmative or negative, issued by the

Board or Secretary of Transportation under this

chapter, except any order in respect of any foreign

air carrier subject to the approval of the President

as provided in section 1461 of this Appendix, shall

be subject to review by the courts of appeals of the

United States or the United States Court of Appeals

for the District of Columbia ....

49 U.S.C. app. § 1486(a) (1982).

The applicable language of section 1461, as amended

by section 34 of the Airline Deregulation Act of 1978,

Pub. L. No. 95-504, 92 Stat. 1705, 1740 (“Deregulation

Act”), in turn provides:

[Revocation of . . . any permit issuable to any

foreign air carrier . . . shall be presented to the

President for review. The President shall have the

right to disapprove any such [DOT] action concern-

ing such ... permits solely upon the basis of foreign

relations or national defense considerations which are

within the President’s jurisdiction, but not upon the

basis of economic or carrier selection considerations.

... Any such [DOT] action not disapproved ...

shall take effect as action of the [DOT], not the

President, and as such shall be subject to judicial

review as provided in section 1486 of this Appendix.

49 U.S.C. app. § 1461(a) (1982).

In the Deregulation Act, Congress amended section

1461(a) in such a way as to make clear its intention that

decisions of the Civil Aeronautics Board (and now the

Secretary of Transportation) are not to be subject to the

affirmative approval of the President as they previously

had been under section 1461 prior to its amendment. See

H.R. Rep. No. 1211, 95th Cong., 2d Sess. 61 (1978)

(showing both the original and amended versions of

section 1461). Whereas the original text provided that

“any permit issuable to any foreign air carrier. . . shall

be subject to the approval of the President,” with no

restriction on the President’s discretion, the new scheme

allocates a much narrower role to the President. See id.

at 19. The President may still disapprove such decisions,

but only “upon the basis of foreign relations or national

defense considerations which are within the President’s

jurisdiction.” 49 U.S.C. app. §1461(a) (1982) (as

amended by the Deregulation Act).

Thus when the Secretary forwarded the Final Order

to the White House, she was submitting it not for “the

approval of the President as provided in section 1461,”

49 U.S.C. app. § 1486(a) (1982), but for his review and

possible disapproval for foreign policy and/or national

defense considerations. Consequently, as the Final Order

was not “subject to the approval of the President as pro-

vided in section 1461,” it is subject to review by this

court. Furthermore, even if we were to equate “subject

to approval” with “subject to disapproval,” the order

would still be reviewable by this court because section

1461(a) stipulates that if a DOT action is not disap-

proved, it “shall take effect as action of [DOT], not of

the President, and as such shall be subject to judicial

review as provided in section 1486 of this Appendix.” 49

U.S.C. app. § 1461{a) (1982).

2. Political Question

The Secretary reminds us that “matters ‘vitally and

intricately interwoven with contemporaneous policies in

regard to the conduct of foreign relations . . . are so

exclusively entrusted to the political branches of govern-

eae

ment as to be largely immune from judicial inquiry or

interference.’” Holmes v. Laird, 459 F.2d 1211, 1215

(D.C. Cir.), cert. denied, 409 U.S. 869 (1972) (quoting

Harisiades v. Shaughnessy, 342 U.S. 580, 588-89 (1952) ).

Nevertheless, the Supreme Court has also noted that “it

is error to suppose that every case or controversy which

touches foreign relations lies beyond judicial cognizance.”

Baker v. Carr, 369 U.S. 186, 211 (1962). “[T]he courts

have the authority to construe treaties and executive

agreements, and it goes without saying that interpreting

congressional legislation is a recurring and accepted task

for the federal courts.” Japan Whaling Ass’n v. Ameri-

can Cetacean Soc’y, 106 S. Ct. 2860, 2866 (1986) (con-

struing Baker v. Carr).

It is clear that we have the competence to interpret

the meaning of section 306(a) (2) of the Anti-Apartheid

Act and to assess its intended impact on the permit

granted SAA pursuant to the Agreement. The question

we must consider, therefore, is whether in doing so we

would trespass on territory reserved to the political

branches for constitutional or prudential reasons. For

guidance in this matter, we look to Baker v. Carr:

Prominent on the surface of any case held to involve

a political question is found a textually demonstra-

ble constitutional commitment of the issue to a co-

ordinate political department; or a lack of judicially

discoverable and manageable standards for resolving

it; or the impossibility of deciding without an initial

policy determination of a kind clearly for nonju-

dicial discretion; or the impossibility of a court’s

undertaking independent resolution without express-

ing lack of the respect due coordinate branches of

government; or an unusual need for unquestioning

adherence to a political decision already made; or

the potentiality of embarrassment from multifarious

pronouncements by various departments on one

question.

396 U.S. at 217. On applying these factors to the case

before us, we see no reason to conclude it is nonjustici-

able. The text of the Constitution does not commit the sub-

ject matter to a political department, nor is there a lack

of judicially discoverable and manageable standards for re-

solving the narrow issues before us. Our decision does

not require an initial policy determination of a kind

clearly reserved for nonjudicial discretion; it need not

express a lack of the respect due coordinate branches of

government; and in reaching the issues before us, we

are not bound by a political decision already made. Fi-

nally, we see no risk that we will cause embarrassment

through a proliferation of pronouncements on a sensitive

matter of foreign policy.

As Justice White stated in Japan Whaling Ass’n, “un-

der the Constitution, one of the judiciary’s characteristic

roles is to interpret statutes, and we cannot shirk this

responsibility merely because our decision may have sig-

nificant political overtones.” 106 S. Ct. at 2866. As we

find no constitutional or prudential bar to our construc-

tion of section 306(a), we conclude that this case pre-

sents a justiciable controversy.

B. Interpretation and Application of Section 306(a) (2)

We now address petitioner’s principal argument;

namely, that because section 306(a) (2) does not require

the immediate revocation of SAA’s permit, and because

such a revocation violates provisions of the Agreement,

the Secretary is required both by Supreme Court prece-

dent, Murray v. The Schooner Charming Betsy, 6 U.S.

(2 Cranch) 64, 118 (1804) (“[AJn act of congress ought

never to be construed to violate the law of nations if

any other possible construction remains. .. .”), and by

section 1102(a) of the Aviation Act to adopt an inter-

pretation of section 306(a) that does not conflict with

the provisions of the Agreement. Petitioner’s argument

may be broken down into three distinct claims: (1) im-

mediate revocation is not required by the Act; (2) as

immediate revocation entails a violation of the Agree-

Sgebewas Tr aekedes “

eh Taisen wa teed © wipes? Cease ap ate ee Ye ee ete ee tT ey

ment, such a revocation is impermissible under the ap-

plicable principle of statutory construction; and (3) the

Secretary is bound by section 1102 of the Aviation Act

to construe section 306(a) (2) consistently with the per-

mit revocation provisions of the Agreement.

1. Timing of Revocation

Petitioner argues that although section 306(a) (2) re-

quired the President ten days after the Act’s enactment

to direct the Secretary to revoke SAA’s permit, the sec-

tion is silent as to when such revocation is to take place.

Therefore, the Secretary could have timed the actual sus-

pension of the permit to coincide with the termination of

the Agreement. While this is true in the literal sense, it

is impossible to reconcile such a construction with other

provisions of section 306 that compel the conclusion that

Congress intended to terminate air service to the United

States by South African carriers without regard to the

one-year notice required for termination of the Agree-

ment. Subsection 306(a)(1) required the President to

“immediately notify” (emphasis added) the South Afri-

can government of his intention to suspend such service,

and subsection 306(a) (2) called for him to direct the

Secretary ten days later to revoke the right of any car-

rier designated by the government of South Africa to

provide air service pursuant to the Agreement. Given

the evident urgency of those instructions, it is hard to

believe that Congress intended the Secretary to wait an-

other 365 days before actually suspending petitioner’s

permit.

Furthermore, both the circumstances of the enactment

of section 306(a) and the accompanying debate make it

impossible to reach any conclusion other than that Con-

gress intended the expeditious suspension of SAA’s per-

mit. In its original form, section 306 went no further

than to direct termination of the Agreement on its own

terms. Therefore, the actual suspension of SAA’s land-

ing rights would not have occurred for another year. It

10a

was fm the express purpose of accelerating that suspen-

sion that Senators Sarbanes and Kassebaum introduced

section 306(a) as an amendment to the version of the

Anti-Apartheid Act submitted by the Senate Foreign Re-

lations Committee. In presenting the amendment, Sena-

tor Sarbanes stated:

The amendment that the Senator from Kansas and

I have offered would bring a suspension of air serv-

ice 10 days after the enactment of the legislation.

It would have the President notify South African

authorities of his intention to suspend and 10 days

later, the suspension would take effect.

132 Cong. Rec. $11,712 (daily ed. Aug. 14, 1986).

Although senators spoke both in favor of and against

the amendment, none questioned that its effect would be

immediate. Committee Chairman Lugar, for example,

strongly opposed the amendment on the explicit ground

that in his judgment the revocation would violate the

Agreement. At the same time, he reiterated his approval

of the Act’s original provision, in what is now section

306(b), that would have limited the sanction to giving

South Africa the one year’s notice of termination re-

quired by the Agreement. 132 Cong. Rec. $11,714. Thus

his subsequent vote to table the amendment could only

have confirmed his understanding of the immediacy of

its effect.

We conclude that the clear meaning of the amendment

coupled with the absence of any contrary view in the

legislative record requires the conclusion that Congress

intended the Secretary to give immediate effect to its

mandate.

2. Reconciliation of Section 306(a) and the Agree-

ment

SAA argues that notwithstanding the evident meaning

of section 306 and its legislative history, Supreme Court

te ot BRS

VN ta Te aN iets «Nie ttn BY aE ct

lla

precedent nevertheless requires that it be construed in a

manner that will not require the United States to violate

its obligations under an executive agreement. SAA points

out that Article VI of the Agreement specifies the cir-

cumstances under which a permit may be revoked and

contends that this court must construe section 306 in a

manner consistent with the permit revocation provision

of the Agreement.

In debate Senator Lugar asserted that the Sarbanes

amendment would require this country to violate the

Agreement, and based his opposition to its adoption on

this interpretation. Senator Sarbanes, on the other hand,

argued that his amendment would not breach the Agree-

ment: “[{I]t is my contention that we are not unilater-

ally abrogating the agreement. On the contrary we are

working within the parameters of the agreement.” 132

Cong. Rec. S$11,713-14. Senator Sarbanes argued that

South Africa had failed to implement an “objective” ex-

pressed in the Agreement, namely, “to ‘foster and en-

courage the widest possible distribution of the benefits

of air travel for the [sic] good of mankind . . . and to

stimulate international [sic] travel as a means of pro-

moting friendly understanding and good will among peo-

ples [sic].’” 182 Cong. Rec. $11,712 (quoting Agree-

ment Annex § IV(A), 61 Stat. at 3062).

Whatever the merits of this exchange between Sena-

tors Lugar and Sarbanes, there is no indication in the

legislative history to suggest that in adopting the Anti-

Apartheid Act as amended, Congress intended to abro-

gate any provision of the Agreement. Nor must we de

cide whether section 306(a) in fact violates any such

provision. Cf. Whitney v. Robertson, 124 U.S. 190, 195

(1888) (“[W]hen a law is clear in its provisions, its

validity cannot be assailed before the courts for want of

conformity to stipulations of a previous treaty not al-

ready executed. ... The duty of the courts is to con-

strue and give effect to the latest expression of the sover-

12a

eign will.”). Nevertheless, for the narrow purpose of

addressing petitioner’s reliance on a principle of statu-

tory construction, we will assume, arguendo, that the

mandate in section 306(a) (2) does in fact violate the

Agreement.

If petitioner’s construction of section 306(a) (2) were

permissible, the lack of an express congressional] intent to

abrogate the permit revocation provision of the Agree-

ment would lend support to SAA’s position.? Since the

days of Chief Justice Marshall, the Supreme Court has

consistently held that congressional statutes must be con-

strued wherever possible in a manner that will not re-

quire the United States “to violate the law of nations.”

The Schooner Charming Betsy, 6 U.S. (2 Cranch) at 118

(quoted in Weinberger v. Rossi, 456 U.S. 25, 32 (1982) ).

The Court’s extreme reluctance to find a conflict between

an act of Congress and a pre-existing international agree-

ment of the United States finds eloquent expression in

Chew Heong v. United States, 112 U.S. 5386 (1884):

“There would no longer be any security,” says Vattel,

“no longer any commerce between mankind, if [na-

tions] did not think themselves obliged to keep faith

2 Petitioner relies heavily on the Court’s reasoning in United

States v. Lee Yen Tai, 185 U.S. 213, 221 (1902) (“the purpose

by statute to abrogate a treaty or any designated part of a

treaty ... must not be lightly assumed, but must appear clearly

and distinctly from the words used in the statute’), and Wein-

berger v. Rossi, 456 U.S. 25, 35 (1982) (“affirmative congres-

sional expression [is] necessary to evidence an intent to abro-

gate provisions in 13 international agreements”). Both of

these cases can be distinguished; in neither case did the Court

face an unambiguous congressional mandate to do something

which in turn might abrogate U.S. international obligations.

As we mentioned earlier, we do not decide whether the Anti-

Apartheid Act does in fact abrogate terms of the Agreement.

Furthermore, even if the Act did effect an abrogation, the

Court’s reasoning in Lee Yen Tai and Weinberger v. Rossi

cannot defeat the unambiguous statutory mandate before us

now.

i i a all ate

13a

with each other, and to perform their promises.”

Vattel, Book 2, ch. 12. And as sovereign nations, ac-

knowledging no superior, cannot be compelled to ac-

cept any interpretation, however just and reasonable,

“the faith of treaties constitutes in this respect all

the security of contracting powers.” Ib. ch. 17....

Aside from the duty imposed by the Constitution

to respect treaty stipulations when they become the

subject of judicial proceedings, the court cannot be

unmindful of the fact, that the honor of the govern-

ment and people of the United States is involved in

every inquiry whether rights secured by such stipula-

tions shall be recognized and protected.

Id. at 539-40.

The Court in Chew Heong compared the abrogation of

a treaty through an act of Congress to the repeal of one

statute by another, noting that even in the case of stat-

utes “whose repeal or modification involves no question of

good faith with the government or people of other coun-

tries, the rule is well settled that repeals by implication

are not favored, and are never admitted where the for-

mer can stand with the new act.” Jd. at 549. The Court

went on to suggest the circumstances that will permit

such implied repeal:

“[T]here must be a positive repugnancy between

the provisions of the new laws and those of the old,

and even then the old law is repealed by implica-

tion only pro tanto, to the extent of the repugnancy.’

“{I]t must appear that the later provision is

certainly and clearly in hostility to the former. If, by

any reasonable construction, the two statutes can

stand together, they must so stand. If harmony is

impossible, and only in that event, the former law is

repealed in part, [sic] or wholly, as the case may

be.”

Id. at 549-50 (quoting Wood v. United States, 41 US.

(16 Pet.) 342, 362-63 (1842), and State v. Stoll, 84 U.S.

(17 Wall.) 425, 431 (1873) ).

l4a

As we have noted, however, the purpose of Congress

in adopting the Sarbanes amendment was unambiguous.

Therefore, if there is in fact “a positive repugnancy”

between section 306(a) of the Anti-Apartheid Act and

Article VI of the Agreement, the latter must yield.

“(S]o far as the provisions of [an] act [of Congress

are] in conflict with any treaty, they must prevail in all

courts of this country ....” Whitney v. Robertson, 124

U.S. at 195. Furthermore, “it is wholly immaterial! to

inquire whether by the act . . . [Congress] has departed

from the [Agreement] or not, or whether such departure

was by accident or design ....” Id. (emphasis added).

Congress has express constitutional powers to “regu-

late Commerce with foreign Nations” and to “make all

Laws which shall be necessary and proper for carry-

ing into Execution [such] Powers.” U.S. Const. art. I,

§ 8. As this court has noted, “Under our constitutional

scheme, Congress can denounce treaties if it sees fit to

do so, and there is nothing the other branches of govern-

ment can do about it.” Diggs v. Shultz, 470 F.2d 461,

466 (D.C. Cir. 1972), cert. denied, 411 U.S. 931 (1973).

3. The Aviation Act’s General Prohibition

As we conclude that section 306(a)(2) supersedes

whatever provisions of the Agreement may be in con-

flict with that section, so must it supersede, to the degree

required, the Secretary’s general duty under section 1102

of the Aviation Act, 49 U.S.C. § 1502(a) (1982), to ex-

ercise her powers “consistently with any obligations as-

sumed by the United States in any treaty, convention, or

agreement that may be in force between the United

States and any foreign country.” Section 306(a) (2) of

the Anti-Apartheid Act is a very specific congressional

directive. “Where there is no clear intention otherwise,

a specific statute will not be controlled or nullified by a

general one, regardless of the priority of enactment.”

15a

Morton v. Mancari, 417 U.S. 535, 550-51 (1974) (cita-

tions omitted). Petitioner’s argument that the Secretary

was bound by section 1102 of the Aviation Act to con-

strue section 306(a) (2) consistently with the permit

revocation provisions of the Agreement is therefore with-

out merit.

4. Remaining Argument

We have also considered, but found without merit,

petitioner’s argument that, by its own terms, section 306

of the Anti-Apartheid Act does not apply to SAA. Sec-

tion 306(a) (2) directs the revocation of “the right of

any air carrier designated by the Government of South

Africa under the Agreement to provide service pursuant

to the Agreement.” Section 306(d), as amended by the

Act of November 7, 1986, Pub. L. No. 99-631, 100 Stat.

3516, provides that the term “air carrier” in section 306

is to be given the meaning of that term in section 101 of

the Aviation Act, 49 U.S.C. § 1801 (1982). Section 101,

in turn, defines “air carrier” as “any citizen of the United

States who undertakes, whether directly or indirectly or by

a lease or any other arrangement, to engage in air trans-

portation... .” 49 U.S.C. app. § 1301(3) (1982). Ac-

cordingly, petitioner claims that SAA is not subject to

the terms of section 306(a) (2) because it is not a “citi-

zen of the United States”; and therefore, that it should

not have been the object of the Final Order implementing

that section. We reject this ingenious interpretation of

the Act because in context it is clear that the words “air

carrier” apply explicitly to a South African carrier.

As “air carrier” is immediately followed by “desig-

nated by the Government of South Africa under the

Agreement,” it is clear that we are not dealing with U.S.

citizens. The Agreement requires that designated air car-

riers be owned or controlled by nationals of the designat-

ing country or else the permit issued by the other country

may be revoked:

l6a

Each contracting party reserves the right to with-

hold or revoke a certificate or permit to an air car-

rier designated by the other contracting party in the

event that it is net satisfied that substantial owner-

ship and effective control of such carrier are vested

in nationals of the other contracting party ....

Agreement, art. VI, 61 Stat. at 3059. Accordingly, we

read “air carrier designated by the Government of South

Africa under the Agreement” as clearly distinguishable

from “air carrier” standing alone.

III. CONCLUSION

The Secretary correctly interpreted section 306(a) (2)

of the Anti-Apartheid Act. Section 306(a) (2) unambig-

uously calls for expedited revocation of any permit issued

to a South African air carrier pursuant to the Agreement

whether or not the revocation may later be found to con-

stitute a breach of the Agreement. The petition to set

aside DOT Final Order 86-11-29 is therefore

Denied.

17a

Order 86-11-29

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

Issued by the Department of Transportation

on the 3lst day of October, 1986

Docket 44454

IN RE:

TERMINATION OF AIR CARRIER OPERATIONS BETWEEN THE

UNITED STATES AND SOUTH AFRICA

FINAL ORDER

By Order 86-10-60, issued and served October 28, 1986,

the Department directed all interested persons to show

cause why it should not 1) revoke the section 402 permit

of South African Airways (SAA), 2) condition the operating

authority of all U.S. air carriers to prohibit service be-

tween the United States and South Africa and 3) condition

the operating authority of all U.S. air carriers to prohibit

the take off and landing of their aircraft in South Africa.

The Order noted that section 306 of the Comprehensive

Anti-Apartheid Act of 1986 (Act) required the President

to direct the Secretary of Transportation to take these

first two steps and that, by Executive Order dated October

27, the President issued that directive. Order 86-10-60 pro-

posed that the revocation of SAA’s section 402 permit be

effective on the third day following the effective date of

the final order. It further required that comments be filed

not later than 5:00 pm, October 30, 1986.

18a

On October 30, SAA filed comments in opposition to Order

86-10-60, arguing that: immediate revocation of SAA’s per-

mit is not required by the Act or the Executive Order,

but would violate the Air Transport Services Agreement

(Agreement) and constitute an incorrect construction of

the Act; the order provides insufficient response time for

SAA to have an adequate hearing and that the proposed

final order should provide sufficient time for SAA to cease

its U.S. operations in an orderly fashion; the effective date

of the final order should be stayed pending final judicial

determination of its legality.

Southern Air Transport also filed a comment to Order 86-

10-60, requesting an exemption so that its L-100 Hercules

aircraft can land and take off from the SAFAIR main-

tenance facility in South Africa solely for maintenance

work.

As fully discussed below, we reject South African Airways’

arguments and deny its request for a stay as well as the

exemption request of Southern Air Transport. Therefore,

subject to the disapproval of the President pursuant to

section 80l(a) of the Federal Aviation Act, we are final-

izing the actions proposed in Order 86-10-60.

We are taking this action to implement Congress’ deter-

mination that the United States should impose sanctions

on the South African government to encourage that gov-

ernment to adopt reforms leading to the establishment of

a non-racial democracy. Section 101 of the Act. Congress,

moreover, wanted immediate implementation of its policy.

Senator Kasten expressed the sense of the Congress that

“fwje must make it clear to the South African Government

that this policy must be abolished, and that real movement

toward an egalitarian society must be made, and made

now.” 132 Cong. Rec. S11876 (daily ed., August 15, 1986).

We reject SAA’s argument that immediate revocation is

not required by the Act or the Executive Order. Section

306(aX2) of the Act states that:

eye ayes ae

oot: \ ella A OT nce elt, <p aaa theatres dit Rareisd sills ,

19a

Ten days after the date of enactment of this Act, the

President shall direct the Secretary of Transportation

to revoke the right of any air carrier designated by

the Government of South Africa under the Agreement

to provide service pursuant to the Agreement.

The meaning of the words is clear. The South African

carrier’s rights to serve pursuant to the Agreement are

to be revoked as quickly as possible. SAA’s argument that

this section does not call for action before termination of

the Agreement are not convincing, since it calls for the

revocation of rights to provide “service pursuant to the

Agreement.”” Congress could not have intended that we

wait until after the Agreement had been terminated be-

cause, by that time, there would be no existing agreement

under which a South African carrier would be designated

or have rights. Such an interpretation would render section

306(aX2) a nullity. Thus, SAA’s interpretation would ren-

der this statute meaningless, contrary to the canons of

statutory construction. See, e.g., Griffin v. Oceanie Con-

tractors, Inc., 458 U.S. 564 (1982); see also American To-

bacco Co. v. Patterson, 456 U.S. 63 (1982). SAA’s argument

that immediate revocation is not required because section

306(aX2) specifies no time constraint is equally unconvinc-

ing. The requirement that, in 10 days, ‘‘the President shall

direct the Secretary ...’’, clearly indicates that Congress

desired haste. Had it expected DOT to wait the year that

it takes to terminate the Agreement, there would have

been no point in instructing the President to direct the

Secretary in ten days.

The Executive Order similarly supports immediate revo-

cation by stating:

The Secretary of Transportation shall take the steps

specified in Sections 306(aX2) and (3).

20a

This is a simple endorsement of the steps which Congress

has decided should be taken: immediate revocation of Op-

erating rights.

SAA’s argument that our interpretation of section 306(a)2)

is inconsistent with section 306(b\2) (which does not take

effect until after the Agreement is terminated) is also in-

consistent with the legislative history of this statute; that

legislative history makes it clear that Congress wanted

section 306(aX2) to be implemented immediately.

Section 306, as it was reported out of the Senate Foreign

Relations Committee on August 6, 1986, provides that

aviation sanctions would occur after the Agreement had

been terminated in accordance with the terms of the

Agreement. What this meant was that the sanction would

not be in place for a year because Article IX of the Agree-

ment provides for one year’s notice before termination.

On August 14, 1986, the Senate considered Amendment

No. 2741, which was introduced by Senators Sarbanes and

Kassebaum, both members of the Senate Foreign Relations

Committee. This amendment proposed to add to the bill

what is now paragraph (a) of section 306 which includes

the immediate revocation provisions. In offering the

amendment, Senator Sarbanes said he was doing so to

correct a drafting error in the legislation. He stated:

When the committee considered immediate sanctions

and future sanctions to express our opposition to

apartheid, the termination of air transportation was

included among those that would be imposed imme-

diately. . .

I think most members assumed that in acting with

respect to air travel, the committee was acting in a

manner to ensure that the ban would take effect, if

not immediately, at least in the very near future and

not a year down the road. In fact, the bill itself con-

tains in a different section a list of other sanctions

————————

2la

which would be put into place a year from now if

there were not significant progress toward disman-

tling apartheid.

Congressional Record, S 11712 (daily ed. August 14, 1986).

Senator Pell, also a member of the Foreign Relations Com-

mittee, then noted his own understanding of what the

Committee had intended:

I think it [the Amendment] fills a gap in the bill as

reported by the committee. My own recollection is

that the committee’s intention was to impose this

sanction immediately. Adoption of this measure will

ensure that.

Congressional Record, S 11713 (daily ed. August 14, 1986).

When the Senate approved the ainendment after floor de-

bate, it was clear that it knew it had voted for immediate

sanctions. Although the Senate did not completely rec-

oncile the Amendment’s provisions and the Foreign Re-

lations Committee’s provisions, the Senate’s intent was

clear.

Given the clarity of the Congressional intent and the spec-

ificity of the legislation, there is not need to reconcile it

with section 1102(a) of the Federal Aviation Act, which

requires the Secretary to act consistently with any agree-

ment in force between the United States and another coun-

try. To the extent that there exists an inconsistency

between this section and the Comprehensive Anti-Aparth-

eid Act, the more specific statutory provisions of the latter

prevail over the more general one. See Morton v. Mancart,

417 U.S. 535 (1974).'

! SAA also argues that section 306(a\2) does not apply to the permit

issued to South African Airways because that provision revokes the

right of a South African-designated “air carrier’. As section 306(d)

provides that the term ‘‘air carrier” has the same meaning as it does

in the Federal Aviation Act, i.e., a citizen of the United States, SAA

states that section 306(aX2) does not apply to SAA because it is a legal

22a

SAA also argues that revocation would constitute a breach

of the Agreement because it is not justified by any vio-

lation of the Agreement or of any of the conditions in

SAA’s permit. This argument ignores the extraordinary

context within which this order is being issued. The Con-

gress has enacted a broad spectrum of sanctions, including

aviation sanctions, to be taken against the Government of

South Africa. The President is carrying out these sanc-

tions, including the revocation of the rights of South Af-

rican-designated air carriers to operate to the U.S. Under

such circumstances, the President has sufficient authority

to take actions which may be contrary to Executive Agree-

ments. Similarly, it is established that Congress may act

in a manner that is inconsistent with Executive Agree-

ments. See Whitney v. Robertson, 124 U.S. 190 (1888), and

Goldwater v. Carter, 617 F.2d 697 (D.C. Cir. 1979).

SAA also argues that it has been afforded insufficient time

in which to respond to the show cause order, asserting

that two day’s notice denies it its due process right to a

fair hearing. It now requests an additional 10 days in

which to respond. Previously, SAA had filed a motion re-

questing that the date for responses be extended until

November 7, 1986. As we stated in denying that motion

in Order 86-10-62, SAA has had almost a month to prepare

its response. With enactment of the Act on October 2,

1986, SAA knew precisely the actions which the Depart-

citizen of the Republic of South Africa. We reject this argument as an

attempt to use a technical distinction to obliterate the plain meaning

of section 306(aX2). Section 306(aX2) revokes the right of air carriers

designated by the Government of South Africa under the Agreement.

Its language tracks the use of the term “air carrier” as used in Section

I of the Agreement Annex, where the U.S. grants to South Africa

“the right to conduct air transport services by one or more air carriers

of South African nationality designated by the latter country.” Clearly,

SAA is that designated “air carrier.”’ In fact, Section 306(aX2) can

only have meaning if it is directed to SAA. SAA acknowledges as much

at page 15 of its Response when it states that ‘“‘South African Airways

remains the only designated carrier of the Republic of South Africa.”

2) te FP Cred bb Pdf ehie~

23a

ment would be taking. Furthermore, at a meeting held at

the State Department at the request of the South African

Government on October 8, 1986, the U.S. Government ex-

plained to SAA officials that the Department of Trans-

portation would shortly be issuing a show cause order with

comments due in two working days. In view of this lead

time, which is in fact more than for many DOT show cause

orders, SAA has had adequate time to prepare its re-

sponse. In analogous situations, we have granted foreign

air carriers far less response time. See, Order 81-12-171,

December 29, 1981, suspending LOT’s air carrier permit

in 1981 after two days’ notice to respond. SAA has filed

a full response and has not been prejudiced by the response

period in the show cause order. We also see no reason to

provide SAA an opportunity for oral argument, since it

has had an adequate opportunity to present its case.

SAA also argues that the revocation of its permit, three

days after the effective date of the final order, does not

provide it with sufficient time to terminate its U.S. op-

erations in an orderly manner. We disagree. As noted

above, SAA has had notice since October 2, 1986, of the

Congressional action requiring sanctions. In fact it appears

that SAA has already begun the process of terminating

its operations. Shortly after enactment of the Act, it re-

duced its service from four to two roundtrips per week.

In addition, routine inquiries made by the Department re-

veal that SAA has been informing the public that it does

not know beyond ti#“immediate week whether it will be

conducting operations the following week. We do not be-

lieve that it would either be in the public interest or con-

sistent with Congressional intent to grant SAA the

additional 90 days it has requested to close down its U.S.

operations.

Finally, SAA requests that the effective date of the final

order be stayed pending final judicial review. SAA has

failed to provide any basis for receiving a stay under the

established standards for obtaining a stay of agency action.

24a

In any event, Congress’ determination that the public in-

terest requires the prompt implementation of the sanctions

legislation in itself requires the denial of SAA’s stay re-

quest.

With regard to the request of Southern Air Transport for

an exemption to allow it to land and takeoff in South

Africa solely for maintenance work, we will not grant it

the blanket exemption it requests. Section 306(c) provides

that exceptions can be made by the Secretary to handle

“emergencies in which the safety of an aircraft or its crew

or passengers is threatened.’ Carriers may, consistent with

section 306(c), apply on a case by case basis for an ex-

emption from the condition imposed by this order.

ACCORDINGLY,

1. We find that it is in the public interest and required

by the public convenience and necessity to revoke the per-

mit issued to South African Airways by Order 73-10-2,

and to condition the operating authority of all U.S. air

carriers to prohibit service between the United States and

South Africa and to prohibit the takeoff and landing of

their aircraft in South Africa;

2. We make final the tentative findings and conclusions

in Order 86-10-60;

3. We deny all requests for relief filed by South African

Airways and Southern Air Transport in Docket 44454;

4. On the third day following the effective date of this

order, we revoke the foreign air carrier permit issued to

South African Airways by Order 73-10-2;

5. We amend the certificates of public convenience and

necessity and exemption authority of all U.S. air carriers

to add the following condition:

Notwithstanding the provisions of this [certificate/ex-

emption] or any other Department regulation, effec-

tive immediately, the holder shall not provide service

25a

between the United States and South Africa, nor shall

any of its aircraft take off or land in South Africa.

6. Unless disapproved by the President of the United States

under section 801(a) of the Federal Aviation Act, this order

shall become effective on the 61st day after its submission

to the President, or upon receipt of advice from the Pres-

ident that he does not intend to disapprove the Depart-

ment’s order under section 801(a), which ever occurs

earlier; ”

7. We will serve a copy of this order on all certificated

air carriers, South African Airways, the Ambassador of

South Africa and the U.S. Department of State.

By:

/s/ ELIZABETH HANFORD DOLE

ELIZABETH HANFORD DOLE

Secretary of Transportation

(SEAL)

2 This order was transmitted to the President on November 3, 1986.

On November 13, 1986, we received notification that the President did

not intend to disapprove the Department’s order. The third day referred

to in ordering paragraph 4 is November 16, 1986.

26a

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA

No. 86-1620

September Term, 1986

SOUTH AFRICAN AIRWAYS,

Petitioner

¥;

ELIZABETH H. DOLE, SECRETARY,

U.S. DEPARTMENT OF TRANSPORTATION,

Respondent

FILED APR 24 1987

PETITION FOR REVIEW OF AN ORDER OF THE U.S.

DEPARTMENT OF TRANSPORTATION

Before: EDWARDS, SILBERMAN, and BUCKLEY,

Circuit Judges.

JUDGMENT

This cause came on to be heard on the petition for

review of an order of the U.S. Department of Transpor-

tation, and was argued by counsel. On consideration

thereof, it is

ORDERED and ADJUDGED, by this Court, that the

petition for review herein is hereby denied, in accordance

with the Opinion for the Court filed herein this date.

27a

Per Curiam

For The Court

/s/ George A. Fisher

George A. Fisher

Clerk

Date: April 24, 1987

Opinion for the Court filed by Circuit Judge Buckley

28a

SECTION 306 OF THE COMPREHENSIVE ANTI-

APARTHEID ACT OF 1986

PROHIBITION ON AIR TRANSPORTATION WITH

SOUTH AFRICA

Sec. 306. (aX1) The President shall immediately notify

the Government cf South Africa of his intention to suspend

the rights of any air carrier designated by the Government

of South Africa under the Agreement Between the Gov-

ernment of the United States of America and the Gov-

ernment of the Union of South Africa Relating to Air

Services Between Their Respective Territories, signed May

23, 1947, to service the routes provided in the Agreement.

(2) Ten days after the date of enactment of this Act,

the President shall direct the Secretary of Transportation

to revoke the right of any air carrier designated by the

Government of South Africa under the Agreement to pro-

vide service pursuant to the Agreement.

(3) Ten days after the date of enactment of this Act,

the President shall direct the Secretary of Transportation

not to permit or otherwise designate any United States

air carrier to provide service between the United States

and South Africa pursuant to the Agreement.

(bX1) The Secretary of State shall terminate the Agree-

ment Between the Government of the United States of

America and the Government of the Union of South Africa

Relating to Air Services Between Their Respective Ter-

ritories, signed May 23, 1947, in accordance with the pro-

visions of that agreement.

(2) Upon termination of such agreement, the Secretary

of Transportation shall prohibit any aircraft of a foreign

air carrier owned, directly or indirectly, by the Govern-

ment of South Africa or by South African nationals from

engaging in air transportation with respect to the United

States.

29a

(3) The Secretary of Transportation shall prohibit the

takeoff and landing in South Africa of any aircraft by an

air carrier owned, directly or indirectly, or controlled by

a national of the United States or by any corporation or

other entity organized under the laws of the United States

or of any State.

such exceptions from the prohibition contained in subsec-

tion (a) or (b) as the Secretary considers necessary to

provide for emergencies in which the safety of an aircraft

or its crew or passengers is threatened.

(d) For purposes of this section, the terms “‘aircraft’”’,

“air transportation’, and “foreign air carrier’ have the

meanings given those terms in section 101 of the Federal

Aviation Act of 1958 (49 U.S.C. 1301).

30a

THE WHITE HOUSE

Office of the Press Secretary

For Immediate Release October 27, 1986

EXECUTIVE ORDER

IMPLEMENTATION OF THE COMPREHENSIVE

ANTI-APARTHEID ACT

By the authority vested in me as President of the Con-

stitution and statutes of the United States of America,

including the Comprehensive Anti-Apartheid Act of 1986

(Public Law 99-440) (‘the Act’’), and section 301 of Title

3 of the United States Code, it is hereby ordered as fol-

lows:

Section 1. Implementation of the Act. All affected Ex-

ecutive departments and agencies shall take all steps nec-

essary, consistent with the Constitution, to implement the

requirements of the Act.

Sec. 2. Functions of the Department of State. The Sec-

retary of State shall be responsible for implementing Sec-

tions 208, 302 (to the extent it relates to temporary

imports), 303(b), 307(aX2), 317, 318, 401(b\X2), 501(b), 504,

506, and 508 of the Act. Responsibility for transmitting

the report required by Section 509 of the Act is delegated

to the Secretary of State.

Sec. 3. Functions of the Department of the Treasury.

The Secretary of the Treasury shall be responsible for

implementing Sections 301, 302 (to the extent it relates

to permanent imports), 303, 305, 308, 309, 310, 319, 320,

323(aX1), and 510 of the Act.

Sec. 4. Functions of the Department of Commerce. The

Secretary of Commerce shall be responsible for imple-

menting Sections 304, 321, and 502(b) of the Act.

3la

Sec. 5. Functions of the Department of Defense. The Sec-

retary of Defense shall be responsible for implementing

Section 322 of the Act.

Sec. 6. Functions of the United States Trade Represent-

ative. The United States Trade Representative shall be

responsible for implementing Sections 323(aX2) and (b) of

the Act and Section 402 (except for the imposition of

import restrictions).

Sec. 7. Functions of the Agency for International De-

velopment. The Administrator of the Agency for Interna-

tional Development shall be responsible for implementing

Sections 210 (to the extent of determining the existence

of food shortages only) and 505 of the Act.

Sec. 8. Functions of the Department of Transportation.

The Secretary of Transportation shall take the steps spec-

ified in Sections 306(aX2) and (3).

Sec. 9. Definition of Strategic Minerals. The Secretary

of State shall be responsible, in consultation with the Sec-

retary of Commerce and the Secretary of Defense, for

determining which articles are strategic minerals within

the meaning of the Act.

Sec. 10. Regulatory and Enforcement Authority. The head

of each agency assigned functions by this Order is dele-

gated authority under Sections 601 and 603 of the Act to

the extent that they relate to functions delegated by this

Order or conferred by the Act.

Sec. 11. Coordination and Policy Guidance. The Secre-

tary of State is responsible for ensuring that implemen-

tation of the Act is effectively integrated with and is

supportive of the foreign policy of the United States. In

carrying out their respective functions and responsibilities,

the head of each agency assigned responsibility under this

Order shall consult with the heads of other affected agen-

cies.

32a

Sec. 12. Inter-Agency Coordinating Committee. An Inter-

Agency Coordinating Committee on South Africa is hereby

established, under the Chairmanship of the Secretary of

State. The Committee shall also include the Secretary of

the Treasury, Secretary of Defense, Attorney General,

Secretary of Commerce, Secretary of Transportation, Sec-

retary of Agriculture, the United States Trade Repre-

sentative, and other members as appropriate. The

Committee shall serve as a forum for consultations on

United States policy concerning South Africa and shall

monitor implementation of the Act to ensure consistency

with United States policy objectives.

Sec. 13. Reservations of Functions. All authority not ex-

pressly delegated or granted herein is retained by the

President. The President retains the authority to exercise

any of the authority delegated or granted in this Order.

Sec. 14. Effective Date. This Order shall be effective

immediately.

/s/ RONALD REAGAN

THE WHITE HOUSE,

October 27, 1986.

R##A#HRAAH

33a

Agreement between the United States of American and the

Union of South Africa respecting air transp. services.

Signed at Cape Town, May 28, 1947; entered into force

May 28, 1947. And agreement effected by exchange of notes

signed at Cape Town May 28, 1947; entered into force

May 28, 1947.

AGREEMENT

BETWEEN

THE GOVERNMENT OF THE UNITED STATES

OF AMERICA

AND

THE GOVERNMENT OF THE UNION OF

SOUTH AFRICA

RELATING TO

AIR SERVICES BETWEEN THEIR RESPECTIVE

TERRITORIES.

34a

AGREEMENT BETWEEN THE GOVERNMENT OF

THE UNITED STATES OF AMERICA AND THE

GOVERNMENT OF THE UNION OF SOUTH AFRICA

RELATING TO AIR SERVICES BETWEEN THEIR

RESPECTIVE TERRITORIES.

The Government of the United States of America and the

Government of the Union of South Africa, considering—

that the possibilities of commercial aviation as a means

of transport have greatly increased, and

that it is desirable to organize the international air ser-

vices in a safe and orderly manner and to further as much

as possible the development of international co-operation

in this field,

have appointed their representatives, who duly author-

ized have agreed upon the following:

ARTICLE I.

The contracting parties grant to each other the rights

specified in the annex hereto for the establishment of the

international air services set forth in that annex, (here-

inafter referred to as the ‘‘agreed services’’).

ARTICLE II.

(A) The agreed services may be inaugurated immediately

or at a later date at the option of the contracting party

to whom the rights are granted, on condition that—

(1) the contracting party to whom the rights have

been granted shall have designated an air carrier

or carriers for the specified route or routes

(2) the contracting party which grants the rights shall

have given the appropriate operating permission

to the air carrier or carriers concerned pursuant

35a

to paragraph (B) of this article which (subject to

the provisions of Article VI) it shall do with the

least possible delay.

(B) The designated air carrier or carriers may be re-

quired to satisfy the aeronautical authorities of the con-

tracting party granting the rights that it or they is or are

qualified to fulfil the conditions prescribed by or under the

laws and regulations normally applied by those authorities

to the operations of commercial air carriers.

ARTICLE III.

(A) The charges which either contracting party may im-

pose or permit to be imposed on the designated air carrier

or carriers of the other contracting party for the use of

airports and other facilities shall not be higher than would

be paid for the use of such airports and facilities by its

national aircraft employed in similar international air ser-

vices.

(B) Fuel, lubricating oils and spare parts introduced into,

or taken on board aircraft in the territory of one con-

tracting party by, or on behalf of, any designated air car-

rier of the other contracting party and intended solely for

use by the aircraft of such carrier shall be accorded, with

respect to customs duties, inspection fees and other charges

imposed by the former contracting party, treatment not

less favourable than that granted to national air carriers

engaged in international air services or such carriers of

the most favoured nation.

party operating on the agreed services on a flight to, from

or across the territory of the other contracting party shall

be admitted temporarily free from customs duties subject

otherwise to the customs regulations of such other con-

tracting party. Supplies of fuel, lubricating oils, spare parts,

regular equipment and aircraft stores retained on board

36a

aircraft of any designated air carrier of one contracting

party shall be exempt in the territory of the other con-

tracting party from customs duties, inspection fees or sim-

ilar duties or charges, even though such supplies be used

by such aircraft on flights within that territory.

ARTICLE IV.

Certificates of airworthiness, certificates of competency

and licences issued or rendered valid by one contracting

party and still in force shall be recognized as valid by the

other contracting party for the purpose of operation of

the agreed services. Each contracting party reserves the

right, however, to refuse to recognize for the purpose of

flight above its own territory, certificates of competency

and licences granted to its own nationals by another state.

ARTICLE V.

(A) The laws and regulations of one contracting party

relating to the admission to 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 be applied to the aircraft of the other

contracting party, and shall be complied with by such air-

craft upon entering or departing from or while within the

territory of the first party.

(F) The laws and regulations of each contracting party

as to the admission to sojourn in and departure from its

territory of passengers, crew and cargo of aircraft, such

as regulations relating to entry, clearance, immigration,

passports, customs and quarantine, shall be observed.

ARTICLE VI.

Each contracting party reserves the right to withhold

or revoke a certificate or permit to an air carrier desig-

nated by the other contracting party in the event that it

37a

is not satisfied that substantial ownership and effective

control of such carrier are vested in nationals of the other

contracting party, or in case of failure by that carrier to

comply with the laws and regulations referred to in Article

V hereof, or otherwise to fulfil the conditions under which

the rights are granted in accord.nce with this agreement

and its annex.

ARTICLE VII.

(A) In a spirit of close collaboration, the aeronautical

authorities of the two contracting parties will consult reg-

ularly with a view to assuring the observance of the prin-

ciples and the implementation of the provisions outlines in

this the present agreement and its annex.

(B) In the event of the aeronautical authorities of either

contracting party failing or ceasing to publish information

in relation to the agreed services on lines similar to that

included in the Airline Traffic Surveys (Station to Station

and Origination and Destination) now published by the Civil

Aeronautics Board and failing or ceasing to supply such

data of this character as may be required by the Inter-

national Civil Aviation Organization, the aeronautical

authorities of such contracting party shall supply, on the

request of the aeronautical authorities of the other con-

tracting party, such information of that nature as may be

requested.

ARTICLE VIII.

For the purpose of the present agreement and its an-

nex—

(A) the term “territory” as applied to each contracting

party shall be deemed to be the land areas and territorial

waters adjacent thereto under the sovereignty, suzerainty,

protection, mandate, or trusteeship of such contracting

party;

38a

(B) the term “aeronautical authorities’ shall mean in

the case of the Union of South Africa the Minister in

Charge of Civil Aviation, and in the case of the United

States the Civil Aeronautics Board, and in both cases any

person or body authorized to perform the functions pres-

ently exercised by the aeronautical authorities as defined

herein;

meaning specified in Article 96 of the Convention on In-

ternational Civil Aviation signed at Chicago on December

7, 1944.

ARTICLE IX.

Except as otherwise provided in this agreement or its

annex, any dispute between the contracting parties relative

to the interpretation or application of this agreement or

its annex, which cannot be settled through consultation,

shall be submitted for an advisory report to a tribunal of

three arbitrators, one to be named by each contracting

party, and the third to be agreed upon by the two arbi-

trators so chosen provided that such third arbitrator shall

not be a national of either contracting party. Each of the

contracting parties shall designate an arbitrator within two

months of the date of delivery by either party to the other

party of a diplomatic note requesting arbitration of a dis-

pute; and the third arbitrator shall be agreed upon within

one month after such period of two months. If the third

arbitrator is not agreed upon, within the time limitation

indicated, the vacancy thereby created shall be filled by

the appointment of a person, designated by the president

of the council of ICAO, from a panel of arbitral personnel

maintained in accordance with the practice of ICAO. The

executive authorities of 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. A moiety of the expenses of the arbitral tribunal

shall be borne by each party.

a emma

39a

ARTICLE X.

This agreement and all relative contracts shall be reg-

istered with the International Civil Aviation Organization.

ARTICLE XI.

(A) This agreement, including the provisions of the an-

nex thereof, will come into force on the day it is signed.

(B) Either contracting party may at any time request

consultation with the other with a view to initiating any

amendments of this agreement or its annex which may be

desirable in the light of experience. If a multilateral air

convention enters into force in relation to both contracting

parties, such consultation shall take place with a view to

amending the present agreement or its annex so as to

conform to the provisions of such a convention.

its annex, if either of the contracting parties considers it

desirable to modify the terms of the annex to this agree-

ment it may request consultation between the aeronautical

authorities of both contracting parties, such consultation

to begin within a period of sixty days from the date of

the request. Any modification in the annex agreed to by

said aeronautical authorities shall come into effect when

it has been confirmed by an exchange of diplomatic notes.

(D) When the procedure for a consultation provided for

in paragraph (B) of the present article has been initiated,

either contracting party may at any time give notice to

the other of its desire to terminate this agreement. Such

notice shall be simultaneously communicated to the Inter-

national Civil Aviation Organization.

This agreement shall terminate one year after the date

of receipt of the notice to terminate by the other con-

tracting party unless the notice is withdrawn by agreement

before the expiration of this period. In the absence of

40a

acknowledgment of receipt by the other contracting party,

notice shall be deemed to have been received fourteen days

after the receipt of the notice by the International Civil

Aviation Organization.

Done at Cape Town this 23rd day of May, 1947, in

duplicate in the English and Afrikaans languages, each of

which shall be of equal authenticity.

T HoLCcoMB

For the Government of the United States of America:

J C Smuts

For the Government of the Union of South Africa:

ANNEX.

SECTION I.

The Government of the United States of America grants

to the Government of the Union of South Africa the right

to conduct air transport services by one or more air car-

riers of South African nationality designated by the latter

country on the routes, specified in Schedule I attached,

which transit or serve commercially the territory of the

United States of America.

SECTION II.

The Government of the Union of South Africa grants

to the Government of the United States of America the

right to conduct air transport services by one or more

carriers of United States nationality designated by the

latter country on the routes, specified in Schedule II at-

tached, which transit or serve commercially territory of

the Union of South Africa.

4la

SECTION III.

One or more air carriers designated by each of the con-

tracting parties under the conditions provided in this

agreement will enjoy, in the territory of the other con-

tracting party, rights of transit of stops for non-traffic

purposes and of commercial entry and departure for in-

ternational 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.

SECTION IV.

It is agreed between the contracting parties—

(A) that the two governments desire to foster and en-

courage the widest possible distribution of the benefits of

air travel for the general good of mankind at the cheapest

rates consistent with sound economic principles; and to

stimulate international air travel as a means of promoting

friendly understanding and good will among peoples and

ensuring as well the many indirect benefits of this new

form of tran: vortation to the common welfare of both

countries;

(B) that the designated airlines of the two contracting

parties operating on the routes described in this annex

shall enjoy fair and equal opportunity for the operation of

the agreed services. If the designated airiine of one con-

tracting party is temporarily unable, as a result of the

war to take advantage of such opportunity, the contracting

parties shall review the situation with the object of as-

sisting the said airline to take full advantage of the fair

and equal opportunity to participate in the agreed services;

contracting party of international services described in the

present annex, the interests of the air carriers of the other

country shall, however, be taken into consideration so as

42a

not to affect unduly the services which the latter provide

on all or part of the same route;

(D) that the total air transport services offered by the

carriers of both countries should bear a close relationship

to the requirements of the public for such services;

(E) that the services provided by a designated air carrier

under this agreement and its annex shall retain as their

primary objective the provision of capacity adequate to the

traffic demands between the country of which such air

carrier is a national and the country of ultimate destination

of the traffic;

(F) that the right of the air carriers of either country

to embark and to disembark at points in the territory of

the other country international traffic destined for or com-

ing from third countries at a point or points on the routes

specified in the schedules attached shall be applied in ac-

cordance with the general principles of orderly develop-

ment to which both governmenis subscribe and shall be

subject to the general principle that capacity shall be re-

lated—

(1) to traffic requirements between the country of or-

igin and the countries of destination:

(2) to the requirements of through airline operation;

and

(3) to the traffic requirements of the area through

which the airline passes after taking account of

local and regional services.

SECTION V.

(A) The determination of rates in accordance with the

following paragraphs shall be made at reasonable levels,

due regard being said to all relevant factors, such as cost

of operation, reasonable profit, and the rates charged by

aii

43a

any other carriers, as well as the characteristics of each

service.

(B) The rates to be charged by the air carriers of either

contracting party between points in the territory of the

United States and points in the territory of the Union of

South Africa referred to in this annex shall, consistent

with the provisions of the present agreement and its an-

nex, be subject to the approval of the aeronautical

authorities of the contracting parties, who shall act in

accordance with their obligations under the present annex,

within the limits of their legal powers.

having approved the traffic conference machinery of the

International Air Transport Association (hereinafter called

“TATA’’), for a period of one year beginning in February,

1947, any rate agreements conclaided through this ma-

chinery during this period and involving United States air

carriers will be subject to approval by the Board.

(D) Any rate proposed by the air carrier or carriers of

either contracting party shall be filed with the aeronautical

authorities of both contracting parties at least thirty days

before the proposed date of introduction; provided that

this period of thirty days may be reduced in particular

cases if so agreed by the aeronautical authorities of both

contracting parties.

(E) The contracting parties agree that the procedure

described in paragraphs (F), (G) and (H) of this section

shall apply—

(1) if, during the period of the Civil Aeronautics

Board’s approval of the IATA traffic conference

machinery, either any specific rate agreement is

not approved within a reasonable time Dy either

contracting party or a conference of IATA is un-

able to agree on a rate; or

44a

(2) if at any time no IATA machinery is applicable;

(3) if either contracting party at any time withdraws

or fails to renew its approval of that part of the

IATA traffic conference machinery relevant to this

section.

(F) In the event that power is conferred by law upon

the aeronautical authorities of the United States to its fair

and economic rates for the transport of persons and prop-

erty by air on international services and to suspend pro-

posed rates in a manner comparable to that in which the

Civil Aeronautics Board at present is empowered to act

with respect to such rates for the transport of persons

and property by air within the United States, each of the

contracting parties shall thereafter exercise its authority

in such manner as to prevent any rate or rates proposed

by one of its carriers for services from the territory’ f

the other contracting party from becoming effective » .

the judgment of the aeronautical authorities of th: con-

tracting party whose air carrier or carriers is or a.* pro-

posing such rate, that rate is unfair or uneconomic. [f one

of the contracting parties on receipt of the notification

referred to in paragraph (D) above is dissatisfied with the

rate proposed by the air carrier or carriers of the other

contracting party, it shall so notify the other contracting

party prior to the expiry of the first fifteen of the thirty

days referred to, and the contracting parties shall endea-

vour to reach agreement on the appropriate rate.

In the even that such agreement is reached, each con-

tracting party will exercise its statutory powers to give

effect to such agreement.

If agreement has not been reached at the end of the

thirty day period referred to in paragraph (D) above, the

proposed rate may, unless the aeronautical authorities of

the country of the air carrier concerned see fit to suspend

its application, go into effeet provisionally pending the set-

45a

tlement of any dispute in accordance with the procedure

outlined in paragraph (H) below.

(G) Prior to the time when such power may be conferred

by law upon the aeronautical authorities of the United

States, if one of the contracting parties is dissatisfied with

any rate proposed by the air carrier or carriers of either

contracting party for services from the territory of one

contracting party to a point or points in the territory of

the other contracting party, it shall so notify the other

prior to the expiry of the first fifteen of the thirty day

period referred to in paragraph (D) above, and the con-

tracting parties shall endeavour to reach agreement on the

appropriate rate.

In the event that such agreement is reached each con-

tracting party will use its best efforts to cause such agreed

rate to be put into effect by its air carrier or carriers.

It is recognized that if no such agreement can be reached

prior to the expiry of such thirty days, the contracting

party raising the objection to the rate may take such steps

as it may consider necessary to prevent the inauguration

or continuation of the service in question at the rate com-

plained of.

(H) When in any case under paragraphs (F) and (G)

above the aeronautical authorities of the two contracting

parties cannot agree within a reasonable time upon the

appropriate rate after consultation initiated by the com-

plaint of one contracting party concerning the proposed

rate or an existing rate of the air carrier or carriers of

the other contracting party, upon the request of either,

both contracting parties shall submit the question to ar-

bitration in the manner prescribed in Article [X of the

Agreement.

(I) The Executive Branch of the Government of the

United States agrees to use its best efforts to secure leg-

islation empowering the aeronautical authorities of the

46a

United States to fix fair and economic rates for the trans-

port of persons and property by air on international ser-

vices, and to suspend proposed rates in a manner

comparable to that in which the Civil Aeronautics Board

at present is empowered to act with respect to such rates

for the transport of persons and property by air within

the United States.

SECTION VI.

It is recognized that the determination of tariffs to be

applied by an air carrier of one contracting party between

the territory of the other contracting party and a third

country is a complex question, the overall solution of which

cannot be sought through consultation between only two

countries. It is noted, furthermore, that the method of

determining such tariffs is now being studied by ICAO. It

is understood under these circumstances—

(A) that, pending the acceptance by both parties of

any recommendations which ICAO may make

after its study of this matter, such tariffs shall

be subject to consideration under the provisions

of Section IV (C) of the annex to the agreement.

(B) that in case ICAO fails to establish a means of

determining such rates satisfactory to both con-

tracting parties, the consultation provided for in

Article XI (B) of the agreement shall be in order.

SECTION VII.

Changes made by either contracting party in the routes

described in the schedules attached except those which

change the points served by airlines of one contracting

party in the territory of the other contracting party shall

not be considered as modifications of the annex. The aer-

onautical authorities of either contracting party may there-

fore proceed unilaterally to make such changes, provided,

47a

however, that notice of any change is given without delay

to the aeronautical authorities of the other contracting

party.

If such other aeronautical authorities find that, having

regard to the principles set forth in Section IV of the

present annex, interests of their air carrier or carriers are

prejudiced by the carriage by the air carrier or carriers

of the first contracting party of traffic between the ter-

ritory of the second contracting party and the new point

in the territory of a third country, the authorities of the

two contracting parties shall consult with a view to ar-

riving at a satisfactory agreement.

Section VIII.

After the present agreement comes into force, the aer-

onautical authorities of both contracting parties will ex-

change information as promptly as possible concerning the

authorizations extended to their respective designated air

carriers to render service to, through and from the ter-

ritory of the other contracting party. This will include

copies of current certificates and authorizations for service

on the routes which are the subject of this agreement and,

for the future, such new authorizations as may be issued

together with amendments, exemption orders and author-

ized service patterns.

SCHEDULE I.

Airlines of the Union of South Africa authorized under

the present agreement are accorded in the territory of the

United States or a service or services between the Union

of South Africa and New York rights of tiansit and non-

traffic stop, as well as the right to pick up and discharge

international traffic in passengers, cargo and mail at such

points and over such routes as may be determined at a

later date.

48a

SCHEDULE II.

Airlines of the United States of America authorized un-

der the present agreement are accorded rights of transit

and non-traffic stop in the territory of the Union of South

Africa, as well as the right to pick up and discharge in-

ternational traffic in passengers, cargo and mail at Jo-

hannesburg and Cape Town on the following routes in both

directions. On each of the routes described below the air-

line or airlines designated to operate such route may op-

erate non-stop flights between any of the points on such

route omitting stops at one or more of the other points

on such route.

(1) United States via the North Atlantic and Africa

to Johannesburg.

(2) United States via the Caribbean, South America,

the South Atlantic and Africa to Cape Town.

49a

The American Minister to the Minister of External

Affairs to the Union of South Africa

LEGATION OF THE

UNITED STATES OF AMERICA

Cape Town

May 28, 1947

SIR:

I have the honor to refer to the Bi-lateral Air Transport

Agreement concluded today between the Governments of

the United States and the Union of South Africa at Cape

Town and in regard to Article IX of this Agreement to

state that it is the understanding of my Government that

in the event either contracting party should find itself

unable to carry out the terms of an advisory report which

recommends rectifying action on the part of both con-

tracting parties, the contracting party which finds itself

unable to carry out the terms of such an advisory report

shall so notify the other contracting party which, upon

receipt of such notification, will not necessarily be bound

to carry out the terms in such an advisory report.

This note and your confirmatory reply thereto will be

regarded as constituting an agreement between the two

Governments in the matter.

Please accept, Sir, the renewed assurance of my highest

consideration.

T. HOLCOMB

Field Marshal

The Right Honorable J. C. Smuts, O.M., P.C., C.H.,

Bin, tebe B+

Minister of External Affairs,

Cape Town.

50a

The Minister of External Affairs of the Union of South

Africa to the American Minister

UNION OF SOUTH AFRICA.

UNIE VAN SUID-AFRIKA.

DEPARTMENT OF EXTERNAL AFFAIRS.

DEPARTMENT VAN BUITELANDSE SAKE.

Cape Town,

23 May 1947

Mr. MINISTER,

I have the honour to acknowledge your note of today’s

date, which reads as follows:—

“Sir,

I have the honor to refer to the Bi-lateral Air Transport

Agreement concluded today between the Governments of

the United States and the Union of South Africa at Cape

Town and in regard to Article IX of this Agreement to

state that it is the understanding of my Government that

in the event either contracting party should find itself

unable to carry out the terms of an advisory report which

recommends rectifying action on the part of both con-

tracting parties, the contracting party which finds itself

unable to carry out the terms of such an advisory report

shall so notify the other contracting party which, upon

receipt of such notification, will not necessarily be bound

to carry out the terms of such an advisory report.

This note and your confirmatory reply thereto will be

regarded as constituting an agreement between the two

Governments in the matter.

Please accept, Sir, the renewed assurance of my highest

consideration.

(Signed) T. HoLcoms.”

I confirm that your note and this reply will be regarded

as constituting an agreement to this effect between the

two Governments.

5la

Please accept, Mr. Minister, the renewed assurance of

my highest consideration.

J C Smuts

Minister of External Affairs.

GENERAL THOMAS HOLCOMB,

Envoy Extraordinary and

Minister Plenipotentiary of

the United States of America,

Cape Town.

52a

AIR TRANSPORT SERVICES

Agreement between the

UNITED STATES OF AMERICA

and the UNION oF SOUTH AFRICA

Amending Agreement of May 23, 1947

e Effected by Exchange of Notes

Signed at Washington July 21 and

November 2, 1953

e Entered into force November 2, 1953

53a

The Secretary of State to the Ambassador of the

Union of South Africa

DEPARTMENT OF STATE

WASHINGTON

July 21 1958

EXCELLENCY:

I have the honor to refer to your note of March 24,

1953! concerning a request of the Government of the Union

of South Africa to amend paragraph (2) of Schedule II of

the Annex to the Air Transport Agreement between the

Government of the United States of America and the Union

of South Africa signed on May 23, 1947.”

The Government of the Union of South Africa has re-

quested that the Annex to the Agreement be amended by

(a) the deletion in Schedule II of the words ‘‘and Cape-

town” after the word ‘‘Johannesburg’”’ where the latter

occurs for the first time, and (b) the substitution in par-

agraph (2) of Schedule II for the word “Capetown” of the

word ‘Johannesburg’.

The Government of the United States of America is

agreeable to amending the Air Transport Agreement in

accordance with the foregoing proposal. It is understood

that the Government of the Union of South Africa is de-

sirous of reserving the right to operate the air service to

Capetown to air carriers of South African nationality.

I have the honor to suggest that the present note and

your reply to that effect shall be regarded as placing on

record the understanding arrived at between the two Gov-

ernments in this matter and as amending the said Agree-

ment accordingly.

‘ Not printed.

2 Treaties and Other International Acts Series 1639; 61 Stat., pt. 3,

p. 3066.

54a

Accept, Excellency, the renewed assurances of my high-

est consideration.

For the Secretary of State:

SAMUEL C WauGH

His Excellency

G. P. JOOSTE,

Ambassador of the Union of South Africa.

55a

The Ambassador of the Union of South Africa to the

Secretary of State

EMBASSY OF THE UNION OF SOUTH AFRICA

AMBASSADE VAN DIE UNIE VAN SULD AFRIKA

WASHINGTON, D.C.

2nd November, 1953.

Sir,

I have the honour to acknowledge the receipt of your

note of the 21st July, 1953 reading as follows:

“T have the honour to refer to your note of March

24, 19538, concerning a request of the Government of

the Union of South Africa to amend paragraph (2) of

Schedule II of the Annex to the Air Transport Agree-

ment between the Government of the United States

of America and the Union of South Africa signed on

May 23, 1947.

“The Government of the Union of South Africa has

requested that the Annex to the Agreement be

amended by (a) the deletion in Schedule II of the

words “and Capetown’”’ after the word ‘Johannes-

burg’’ where the latter occurs for the first time, and

(b) the substitution in paragraph (2) of Schedule I]

for the word ‘‘Capetown’”’ of the word ‘Johannes-

burg”’.

“The Government of the United States of America is

agreeable to amending the Air Transport Agreement

in accordance with the foregoing proposal. It is under-

stood that the Government of the Union of South

Africa is desirous of reserving the mght to operate

the air service to Cape Town to air carriers of South

African nationality.

“T have the honour to suggest that the present note

and your reply to that effect shall be regarded as

placing on record the understanding arrived at be-

00a

tween the two Governments in this matter and as

amending the said Agreement accordingly.”

I have the honour to inform you that the Government

of the Union of South Africa are in agreement with the

foregoing and that your note and the present reply shal]

be regarded as placing on record the understanding arrived

at between the two Governments in this matter and as

amending the said Agreement accordingly.

Please accept, Sir, the renewed assurance of my highest

consideration.

s/G.P. JoostE

Ambassador.

THE HONOURABLE JOHN FosTER DULLEs,

Secretary of State,

Department of State,

Washington, D.C.

57a

SOUTH AFRICA

Air Transport Services

Agreement amending the agreement of May 23, 1947, as

amended.

Effected by exchange of notes

Signed at Washington June 28, 1968;

Entered into force June 28, 1968.

The Secretary of State to the Ambassador of South Africa

DEPARTMENT OF STATE

WASHINGTON

June 28, 1968

EXCELLENCY:

I have the honor to refer to the consultations which

took place in Washington in December 1967 in accordance

with the United States—South Africa Air Transport

Agreement signed on May 23, 1947, as amended,' and to

propose, on behalf of my Government, that this agreement

be further amended as follows:

1. Substitute for the words “Union” and “Unie”,

wherever they appear in the English and Afrikaans

texts of the agreement, the words ‘Republic’ and

‘““Republick’’.

2. Delete Section VII of the Annex to the agree-

ment.

3. Delete Schedule 1 and Schedule II of the Annex

to the agreement and substitute therefore Schedule I

and Schedule II as attached to this note, in both the

English and Afrikaans languages.

If these proposals are acceptable to the Government of

the Republic of South Africa, I have the honor to propose

TIAS 1639, 2870; 61 Stat. (3) 3057; 4 UST 2205.

58a

that this note and your reply thereto constitute an agree-

ment between our two Governments, further amending the

Air Transport Agreement, which will enter into force on

the date of your reply.

I should also appreciate receiving confirmation, as agreed

during the consultations, that the Government of the Re-

public of South Africa will consider at a later stage the

grant to the Government of the United States of America

of traffic rights at Capetown and traffic rights to points

beyond South Africa.

Accept, Excellency, the renewed assurances of my high-

est consideration.

For the Secretary of State:

ANTHONY M. SoLomMoNn

His Excellency

H.L.T. TASWELL,

Ambassador of the

Republic of South Africa.

Enclosure: Schedules I and II of Annex.

SCHEDULE I

Airlines of the Republic of South Africa authorized un-

der the present Agreement are accorded rights of transit

and non-traffic stop in the territory of the United States

of America, as well as the right to pick up and discharge

international traffic in passengers, cargo and mail at New

York on the following routes in both directions. On each

of the routes described below, the airline or airlines des-

ignated to operate such route may serve the points on

such route in any order on any flight and may operate

non-stop flights between any of the points on such route,

omitting stops at one or more of the other points on such

route.

59a

1. South Africa via points in Africa south of the equa-

tor, the Cape Verde Islands, the Canary Islands,

Spain*, and Portugal* to New York.

2. South Africa via points in Africa south of the equa-

tor and South America to New York.

SCHEDULE II

Airlines of the United States of America authorized un-

der the present Agreement are accorded rights of transit

and non-traffic stop in the territory of the Republic of

South Africa, as well as the right to pick up and discharge

international traffic in passengers, cargo and mail at Jo-

hannesburg on the following routes in both directions. On

each of the routes described below, the airline or airlines

designated to operate such route may serve the points on

such route in any order on any flight and may operate

non-stop flights between any of the points on such route,

omitting stops at one or more of the other points on such

route.

1. United States via points in the Azores, the Canary

Islands, the Cape Verde Islands, Portugal**,

Spain**, Germany**, Italy**, Greece**, and Africa

to Johannesburg.

2. United States via points in the Carribbean, South

America, and Africa to Johannesburg.

BYLAE I.

Aan lugeksploitante van die Republik van Suid-Afrika

wat ingevolge die onderhawige ooreenkoms angewys is,

* Without traffic rights between points in these countries and New

York.

** Without traffic rights between more than one point among these

countries and Johannesburg on the same flight.

60a

word die reg verleen om die gebied van die Verenigde

State van Amerika oor te vlieg en vir nie-verkeersdoe-

leindes daarin te land, asook die reg om internasionale

verkeer bestaande uit passasiers, vrag en posstukke by

New York oor die volgende roetes in beide rigtings op en

af te laai; oor elk van die ondervermelde rotes kan die

lugeksploitant of eksploitante wat aangewys is om so’n

roete te eksploiteer, die punte op sodanige roete in enige

volgorde op enige vlug bedien en ononderbroke vlugte tus-

sen enige plekke laugs daardie route onderneem en een

of meer van die ander aandoenplekke langs daardie roete

verbysteek:—

1. Suide-Afrika oor punte in Afrika suid van die ew-

enaar, die Kaap-Verdiese Eilande, die Kanariese

Eilande, Spanje* en Portugal* na New York.

2. Suid-Afrika oor punte in Afrika suid van die ew-

enaar en Suid-Amerika na New York.

BYLAE II.

Aan lugeksploitante van die Verenigde State van Amer-

ika wat ingevolge die onderhawige ooreenkoms aangewys

is, word die reg verleen om die gebied van die Republiek

van Suid-Afrika oor te vlieg en vir nie-verkeersdoeleindes

daarin te land, asook die reg om internasionale verkeer

bestaande uit passaiers, vrag en posstukke by Johannes-

burg oor die volgende rostes in beide rigtings op en af te

laai; oor elk van die ondervermelde roetes kan die lubek-

sploitant of-eksploitante wat aangewys is om so’n route te

eksploiteer, die punte op sodanige roete in enige volgorde

op enige viug bedien en ononderbroke vlugte tussen enige

plekke langs daardie roete onderneem en een of meer van

die ander aandoenpleek langs daardie roete verbysteek:—

* Sonder verkeersregie tussen stilhouplekke in hierdie lande en New

York.

6la

1. Verenigde State oor punte in die Azores, die Kan-

ariese Eilande, die Kaap-Verdiese Eilande, Portu-

gal**, Spanje**, Duitsland**, Italie**, Griekeland**

en Afrika na Johannesburg.

2. Verenigde State oor punte in die Karibiese Ki-

lande, Suid-Amerika en Afrika na Jonannesburg.

The Ambassador of South Africa to the Secretary of State

EMBASSY OF SOUTH AFRICA

AMBASSADE VAN SUID-AFRIKA

WASHINGTON, D.C. 20008

June 28, 1968

EXCELLENCY,

I have the honour to acknowledge receipt of Your Ex-

. cellency’s note, with enclosure, of Jure 28, 1968, referring

to the consultations which took place in Washington in

December, 1967, in accordance with the United States-

South Africa Air Transport Agreement signed on May 23,

1947, as amended, and proposing that this agreement be

further amended.

I have the honour to inform Your Excellency that the

Government of the Republic of South Africa accepts the

proposals contained in Your Excellency’s note which, with

this reply, constitutes an agreement between our two Gov-

ernments, further amending the Air Transport Agreement,

which enters into force on this date.

I also have the honour to inform Your Excellency that

the Government of the Republic of South Africa will con-

sider at a later stage the grant to the Government of the

United States of America of traffic rights at Capetown

and traffic rights to points beyond South Africa.

** Sonder verkeersregie tussen meer as een punt tussen hierdie lande

en Johannesburg op dieselfde vlug.

pre ES oe Ce ree rE

62a

Accept, Excellency, the renewed assurances of my high-

est consideration.

/s/ H L TASWELL

H.L.T. Taswell,

Ambassabor.

His Excellency

DEAN RUSK,

Secretary of State,

Washington

63a

UNITED STATES GF AMERICA

CIVIL AERONAUTICS BOARD

WASHINGTON, D. C.

PERMIT TO FOREIGN AIR CARRIER

(as amended)

SOUTH AFRICAN AIRWAYS

is hereby authorized, subject to the provisions hereinafter

set forth, the provisions of the Federal Aviation Act of

1958, and the orders, rules, and regulations issued there-

under, to engage in foreign air transportation with respect

to persons, property, and mail, as follows:

1. Between a point or points in the Republic of South

Africa, the intermediate point Rio de Janeiro, Brazil,

and the terminal point New York, New York.

2. Between Johannesburg, South Africa, the interme-

diate points Sal Island and Las Palmas, and the ter-

minal point New York, New York.

The holder hereof shall be authorized to engage in

charter trips in foreign air transportation, subject to the

terms, conditions, and limitations prescribed by Part 212

of the Board’s Economic Regulations.

The holder shall conform to the airworthiness and air-

man competency requirements prescribed by the Govern-

ment of the Republic of South Africa for South African

international air service.

This permit shall be subject to all applicable provisions

of any treaty, convention, or agreement affecting inter-

national air transportation now in effect, or that may be-

nisi.

64a

come effective during the period this permit remains in

effect, to which the United States and the Republic of

South Africa shali be parties.

By accepting this permit, the holder waives any right

it may possess to assert any defense of sovereign immunity

from suit in any action or proceeding instituted against

the holder in any court or other tribunal in the United

States (or its territories or possessions) based upon any

claim arising out of operations by the holder under this

permit.

The holder shall keep on deposit with the Board a signed

counterpart of C.A.B. Agreement 18900, an agreement

relating to liability limitations of the Warsaw Convention

and the Hague Protocol approved by Board Order E-23680,

May 13, 1966, and a signed counterpart of any amendment

or amendments to such agreement which may be approved

by the Board and to which the holder becomes a party.

The holder (1) shall not provide foreign air transpor-

tation under this permit unless there is in effect third-

party liability insurance in the amount of $1,000,000 or

more to meet potential liability claims which may arise in

connection with its operations under this permit, and un-

less there is on file with the Docket Section of the Board

a statement showing the name and address of the insur-

ance carrier and the amounts and liability limits of the

third-party liability insurance provided, and (2) shall not

provide foreign air transportation with respect to persons

unless there is in effect liability insurance sufficient to

cover the obligations assumed in Agreement C.A.B. 18900,

and unless there is on file with the Docket Section of the

Board a statement showing the name and address of the

insurance carrier and the amounts and liability limits of

the passenger liability insurance provided. Upon request,

the Board may authorize the holder to supply the name

and address of the insurance syndicate in lieu of the names

and addresses of the member insurers.

65a

The holder may not, without prior Board approval, per-

form charter transportation between New York, on the

one hand, and Las Palmas, on the other hand: Provided,

however, That this condition shall not prevent the holder

from serving Las Palmas on charter flights operated be-

tween New York and Johannesburg. Applications for such

authority shall conform to the procedures, to the extent

applicable, for issuance of “Statements of Authorization”

under Part 212 of the Board’s Economic Regulations, or

any amendments or modifications of such Regulation.

The exercise of the privileges granted hereby shall be

subject to such other reasonable terms, conditions, and

limitations required by the public interest as may from

time to time be prescribed by the Board.

This permit shall be effective on September 28, 1973.

Unless otherwise terminated at an earlier date pursuant

to the terms of any applicable treaty, convention, or agree-

ment, this permit shall terminate (1) upon the effective

date of any treaty, convention, or agreement, or amend-

ment thereto, which shall have the effect of eliminating

the route hereby authorized from the routes which may

be operated by airlines designated by the Government of

the Republic of South Africa, or (2) upon the effective

date of any permit granted by the Board to any other

carrier designated by the Government of the Republic of

South Africa in lieu of the holder thereof, or (3) upon the

termination or expiration of the Air Transport Agreement

between the Government of the United States and the

Government of the Republic of South Africa, effective,

May 23, 1947, as amended by exchange of notes, effective

May 238, 1947, and June 28, 1968: Provided, however, That

if prior to the occurrence of the event specified in clause

(3) of this paragraph, the operation of the foreign air trans-

portation herein authorized becomes the subject of any

treaty, convention, or agreement to which the United

States and the Republic of South Africa are or shall be-

come parties, then and in that event this permit is con-

66a

tinued in effect during the period provided in such treaty,

convention, or agreement.

IN WITNESS WHEREOF, the Civil Aeronautics Board

has caused this permit to be executed by the Secretary

of the Board, and the seal of the Board to be affixed

hereto, on the 5th day of September, 1973.

/s/ EDWIN Z. HOLLAND

Secretary

(SEAL)

Issuance of this permit to

the holder approved by the

President of the United States

on September 28, 1973,

in Order 73-10-2.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.