It is not necessary to obtain confirmation of this interpretation of the 1946 agreement by verifying the respective positions and interests of the contracting parties at the time of the conclusion of this agreement. At the time, there were strong differences between the United States, which aspired to maximum “flexibility” in air services, in accordance with its interests, and some European countries that were not able (and have not been able to use) such flexibility since. In terms of long-distance transport of services and capacity principles, France had even stricter requirements than the United Kingdom. These requirements are reflected in the exchange of letters on 28 and 29 December 1945 establishing a provisional regime between the United States and France; this bond exchange, which preceded the 1946 agreement, is fully cited by the arbitration award of 22 December 1963 in the context of the air arbitration procedure between the United States and France15.  Given these competing interests, the absence of a “transshipment” agreement in third countries is of great importance. An interpretation that would not be such an agreement would not only be unjustified, but would include an element of imbalance in the interpretation of the agreement; International law, established in this regard by the common law, demonstrates, in the context of another problem, that it does not promote such imbalances in treaty law (Article 44, paragraph 3, under c), of the Vienna Convention on Treaty Law of 23 May 1969). Indeed, the practice as a whole, particularly with regard to air routes, interpreted the 1946 agreement in a restrictive manner77, while other provisions of the agreement would be interpreted in a comprehensive manner, which would be unfavourable to the party that is not actually in a position to use that interpretation. 8 14 C.F.R. pt. Part 213, originally proposed in 1961 by the Civil Aeronautics Board to create a means of controlling the capacity of foreign airlines when foreign governments controlled the capacity of U.S. carriers, was adopted in a slightly different form in 1970.
The version that came into force at the time of the dispute between the United States and France authorized the Board of Directors to require foreign airlines to submit flight plans if it was determined that the public interest required it. In the case of transactions by foreign airlines subject to an air transport agreement between the United States and a foreign government, the Board of Directors could only require the filing of flight plans if it found that the airline`s government had affected, reduced, terminated or denied the operating rights of the United States under the agreement. , or otherwise did not prevent them from denying fair and equal opportunities to exercise those rights. By seizing a later order, subject to the President`s stay or refusal, the Board of Directors could prevent the introduction of proposed timetables or require the termination of existing timetables. In 1979, Congress amended Section 402 (f) of the Federal Aviation Act and introduced a specific legislative provision modelled on Part 213. International Air Transportation Competition Act of 1979, Pub. L. 96-192, 9, 94 Stat.
35. Under the new provision, retaliatory measures can be taken summarily and without being heard, subject to the President`s agreement. The report of the Senate Commerce Committee explains the rule as follows: The experience of Part 213 shows that effective retaliatory force can and demonstrates a convincing deterrent against restrictions imposed by foreign governments. In addition, the right of the United States to take proportionate counter-measures in response to restrictive measures taken by a foreign government in violation of a bilateral agreement (even though such counter-measures would constitute a violation of the agreement in the absence of a violation by the foreign government) was recently found compatible by an international arbitration tribunal as being consistent with the recognized principles of international law.