26

Article 17 Bis of the Air Transport 

Agreement with the European Union

Article 17 bis of the Air Transport Agreement Between the United States of America and 

the European Community and Its Member States does not provide an independent basis upon which the United States may deny a permit to an air carrier of a Party to the 

Agreement if that carrier is otherwise qualified to receive such a permit.

April 14, 2016

MEMORANDUM OPINION FOR THE GENERAL COUNSEL 

DEPARTMENT OF TRANSPORTATION

You have asked whether Article 17 bis* of the Air Transport Agreement between the United States of America and the European Community 

and Its Member States, signed on April 25 and 30, 2007, as amended (the 

“Agreement”), provides an independent basis upon which the United 

States may deny an air carrier of the European Union a permit to provide 

foreign air transportation services to and from the United States, assuming 

that the carrier is otherwise qualified to receive such a permit under 

Department of Transportation (“DOT” or “Department”) authorities and 

the Agreement. 1 You have indicated that, in your view, Article 17 bis

does not provide such an independent basis for denying a permit. See

Letter for Karl R. Thompson, Principal Deputy Assistant Attorney General, Office of Legal Counsel, from Kathryn B. Thomson, General Counsel, Department of Transportation, Re: DOT Legal Analysis of Article 17 

bis of the U.S.-EU Aviation Agreement (Mar. 17, 2016) (“DOT Legal 

Analysis”). And the Department of State (“State Department” or “State”) 

 

* Editor’s Note: As used here, the term bis “indicates a second article with the same 

number in a convention,” as when “a treaty is amended and a new article on a subject 

already addressed is inserted next to the old article.” James R. Fox, Dictionary of International and Comparative Law 36 (3d ed. 2003).

1 The agreement between the Parties was initially signed in 2007. See Air Transport 

Agreement Between the United States of America and the European Community and Its 

Member States, Apr. 25–30, 2007, 46 I.L.M. 470 (“2007 ATA”). In 2010, this agreement 

was amended by the Protocol to Amend the Air Transport Agreement Between the United 

States of America and the European Community and Its Member States, Signed on 25 and 

30 April 2007, June 24, 2010, 2010 O.J. (L 223) 3 (“2010 Protocol”). References in this 

opinion to the “Agreement” are to the 2007 ATA, as amended by the 2010 Protocol.

References to the 2007 ATA and the 2010 Protocol are to those specific documents.
Article 17 Bis of the Air Transport Agreement with the European Union

27

has indicated that it agrees with your conclusion. See Letter for Karl 

Thompson, Principal Deputy Assistant Attorney General, Office of Legal 

Counsel, from Brian J. Egan, Legal Adviser, Department of State (Apr. 

13, 2016) (“State Legal Analysis”). Nonetheless, because this question is 

important to the Department of Transportation and likely to recur, the 

Secretary of Transportation asked you to solicit our opinion. See Letter 

for Karl R. Thompson, Principal Deputy Assistant Attorney General, 

Office of Legal Counsel, from Kathryn B. Thomson, General Counsel, 

Department of Transportation, Re: Interpretation of Article 17 bis of the 

US-EU Aviation Agreement at 1 (Mar. 11, 2016). 

We note at the outset the limited nature of your question. You have not 

asked for our views on the propriety of granting a permit to any particular 

foreign air carrier, and we do not express any views on that subject. 

Although you have advised us that there are ongoing permitting proceedings related to applications by Norwegian Air International and Norwegian UK, two foreign air carriers that seek to provide services under the 

Agreement, we express no view on whether the Secretary should or 

should not grant those carriers any relevant permits. We are also aware 

that DOT has various domestic authorities under which it evaluates permit 

applications. See, e.g., 49 U.S.C. § 41301 et seq. You have asked us to 

assume that the requirements for granting a permit under these authorities 

have been satisfied, and we are not aware of any additional United States 

authorities that would be relevant to granting such a permit. The question 

we address is thus limited to interpreting the Agreement. That question 

is: Assuming an air carrier satisfies the relevant preconditions for a 

permit set forth elsewhere in the Agreement, may the Department nonetheless deny a permit application because, in its view, granting the permit 

would undermine the principles articulated in Article 17 bis? For the 

reasons set forth below, we agree with DOT and State that if an air carrier of a Party to the Agreement is otherwise qualified to receive a permit, 

Article 17 bis does not provide an independent basis upon which the 

United States may deny the carrier’s application for a permit.

I.

We begin with the relevant background. In April 2007, the United 

States and the European Community and its Member States signed an Air 

Transport Agreement, which, among other things, sought “to build upon 
40 Op. O.L.C. 26 (2016)

28

the framework of existing agreements with the goal of opening access to 

markets and maximising benefits for consumers, airlines, labour, and 

communities on both sides of the Atlantic.” 2007 ATA pmbl. Under the 

2007 ATA, the Parties granted certain rights to each other “for the conduct of international air transportation by the[ir] airlines.” Id. art. 3, ¶ 1. 2

These rights included “the right to fly across [the other Party’s] territory 

without landing,” “the right to make stops in [the other Party’s] territory 

for non-traffic purposes,” and, for airlines of the European Community 

and its Member States, “the right to perform international air transportation . . . from points behind the Member States via the Member States . . .

to any point or points in the United States and beyond.” Id. art. 3, ¶ 1(a)–

(c). Article 4 of the 2007 ATA, entitled “Authorisation,” provided:

On receipt of applications from an airline of one Party, in the form 

and manner prescribed for operating authorisations and technical 

permissions, the other Party shall grant appropriate authorisations 

and permissions with minimum procedural delay, provided[:]

(a) for a US airline, substantial ownership and effective control 

of that airline are vested in the United States, US nationals, or 

both, and the airline is licensed[] as a US airline and has its principal place of business in US territory;

(b) for a Community airline, substantial ownership and effective control of that airline are vested in a Member State or States, 

nationals of such a State or States, or both, and the airline is licensed as a Community airline and has its principal place of business in the territory of the European [Community];

(c) the airline is qualified to meet the conditions prescribed under the laws and regulations normally applied to the operation of 

international air transportation by the Party considering the application or applications; 

and

(d) the provisions set forth in Article 8 (Safety) and Article 9 

(Security) ar[e] being maintained, and administered.

Id. art. 4.

 2 The 2007 ATA defined “Party” as “either the United States or the European Community and its Member States.” 2007 ATA art. 1, ¶ 6.
Article 17 Bis of the Air Transport Agreement with the European Union

29

In order to further the “goal of continuing to open access to markets 

and to maximise benefits for consumers, airlines, labour, and communities 

on both sides of the Atlantic,” the 2007 ATA also required the Parties to 

start “[s]econd stage negotiations” after provisional application of the 

2007 ATA began. Id. art. 21, ¶ 1. These second stage negotiations resulted 

in a further agreement between the United States and the European Union, 

signed on June 24, 2010, to amend the 2007 ATA agreement. See 2010 

Protocol. 3 Among other things, this 2010 Protocol added to the Agreement Article 17 bis, entitled “Social Dimension,” which provided:

1. The Parties recognise the importance of the social dimension of 

the Agreement and the benefits that arise when open markets are accompanied by high labour standards. The opportunities created by

the Agreement are not intended to undermine labour standards or the 

labour-related rights and principles contained in the Parties’ respective laws.

2. The principles in paragraph 1 shall guide the Parties as they implement the Agreement, including regular consideration by the Joint 

Committee, pursuant to Article 18, of the social effects of the 

Agreement and the development of appropriate responses to concerns found to be legitimate.

2010 Protocol art. 4 (adding Agreement art. 17 bis).

The Joint Committee referenced in Article 17 bisis described in Article 

18, which was part of the 2007 ATA and was amended by Article 5 of the 

2010 Protocol. The Committee is required to meet at least once a year “to 

conduct consultations relating to this Agreement and to review its implementation.” Agreement art. 18, ¶ 1. A Party may also request a meeting of 

the Joint Committee “to seek to resolve questions relating to the interpretation or application of th[e] Agreement.” Id. ¶ 2. The Joint Committee is 

tasked with reviewing “the overall implementation of the Agreement, 

including . . . any social effects of the implementation of the Agreement,” 

id. ¶ 3, and “develop[ing] cooperation” among the Parties by, among other 

things, “considering the social effects of the Agreement as it is imple-

 3 The 2010 Protocol noted that “the European Union replaced and succeeded the European Community as a consequence of the entry into force on December 1, 2009 of the 

Treaty of Lisbon.” Id. pmbl. at 4.
40 Op. O.L.C. 26 (2016)

30

mented and developing appropriate responses to concerns found to be 

legitimate,” id. ¶ 4.

The 2010 Protocol also added (again among other provisions) Article 6 

bis, which provides that “[u]pon receipt of an application for operating 

authorisation, pursuant to Article 4, from an air carrier of one Party, the 

aeronautical authorities of the other Party shall recognise any fitness and/

or citizenship determination made by the aeronautical authorities of the 

first Party . . . as if such a determination had been made by its own aeronautical authorities and not enquire further into such matters,” absent “a 

specific reason for concern that, despite the determination made by the 

aeronautical authorities of the other Party, the conditions prescribed in 

Article 4 of this Agreement for the grant of appropriate authorisations or 

permissions have not been met.” 2010 Protocol art. 2. The 2010 Protocol 

clarified that a “[c]itizenship determination” is “a finding that an air 

carrier . . . satisfies the requirements of Article 4 regarding its ownership, 

effective control, and principal place of business,” and that a “[f]itness 

determination” is “a finding that an air carrier . . . has satisfactory financial capability and adequate managerial expertise to operate such services 

and is disposed to comply with the laws, regulations, and requirements 

that govern the operation of such services.” Id. art. 1 (adding Agreement 

art. 1, ¶¶ 2 bis, 3 bis).

The United States, the European Union and its Member States, Iceland, and Norway later signed an agreement incorporating the provisions 

of the 2007 ATA and the 2010 Protocol and applying them to Iceland 

and Norway as if they were members of the European Union. See Air 

Transport Agreement Between the United States, European Union and 

Its Member States, Iceland, and Norway arts. 1–2, June 16–21, 2011, 

2011 O.J. (L 283) 3.

II.

In our view, the text of the Agreement, reinforced by its purpose, 

makes clear that Article 17 bis does not provide an independent basis on 

which to deny an air carrier’s application for a permit where the applicant 

is otherwise qualified to receive one under the Agreement. The interpretation of an international agreement begins with its text. See Abbott v. 

Abbott, 560 U.S. 1, 10 (2010) (“The interpretation of a treaty . . . begins 

with its text.” (internal quotation marks omitted)); Bank Melli Iran v. 
Article 17 Bis of the Air Transport Agreement with the European Union

31

Pahlavi, 58 F.3d 1406, 1408 (9th Cir. 1995) (“Executive agreements . . .

are interpreted in the same manner as treaties[.]”); Air Can. v. U.S. Dep’t 

of Transp., 843 F.2d 1483, 1486 (D.C. Cir. 1988) (“[We interpret] an 

international executive agreement . . . according to the principles applicable to treaties.”); see also Vienna Convention on the Law of Treaties art. 

31(1), opened for signature May 23, 1969, 1155 U.N.T.S. 331, 340 (“Vienna Convention”) (“A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in 

their context and in the light of its object and purpose.”); Restatement 

(Third) of Foreign Relations Law § 325(1) (1987) (“An international 

agreement is to be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its 

object and purpose.”). 

As noted above, Article 4 of the Agreement, entitled “Authorisation,” 

sets forth the standards under which the Parties to the Agreement grant 

the authorizations and permissions necessary to enable carriers of another 

Party to operate in their jurisdictions. Article 4 provides that “[o]n receipt 

of applications from an airline of one Party, in the form and manner 

prescribed for operating authorisations and technical permissions, the 

other Party shall grant appropriate authorisations and permissions with 

minimum procedural delay, provided” that three conditions are satisfied: 

first, the airline must be a citizen of an appropriate state; second, the 

airline must be “qualified to meet the conditions prescribed under the laws 

and regulations normally applied to the operation of international air 

transportation by the Party considering the application or applications”; 

and third, the “provisions set forth in Article 8 (Safety) and Article 9 

(Security)” must be “maintained, and administered.” Agreement art. 4. 

Assuming these conditions are met (as we do for purposes of this opinion), the plain terms of Article 4 require the United States to grant the 

“appropriate authorisations and permissions” to the requesting carrier. Id.; 

see id. (if enumerated conditions are met, Parties “shall grant” authorizations to carriers of other Parties).

Notably, in contrast to its express references to Articles 8 and 9, Article 4 does not mention Article 17 bis, or make compliance with that 

article a precondition for grant of an authorization. The fact that Article 4 

explicitly conditions the grant of the relevant authorizations or permissions on “the provisions set forth” in Articles 8 and 9 “being maintained 
40 Op. O.L.C. 26 (2016)

32

and administered” suggests that the drafters did not intend to condition a 

grant of authorization under Article 4 on the satisfaction of Article 17 bis

or other unnamed articles. Cf., e.g., 1 Oppenheim’s International Law

§ 633, at 1279 (Robert Jennings & Arthur Watts eds., 9th ed. 1992) (“The 

maxim expressio unius est exclusio alterius has been followed in the 

interpretation of treaties by international tribunals in a number of cases[.]”). Article 4 also does not refer to the “social dimension” or “labour 

standards” discussed in Article 17 bis, or suggest that either of these 

factors may be considered independently of Article 4’s enumerated requirements in granting an authorization. 4 Thus, on its face, Article 4 

mandates that Parties issue appropriate authorizations and permissions to 

air carriers of other Parties once the three specific conditions enumerated 

in Article 4 are satisfied, and none of these conditions references Article 

17 bis or the factors it describes. This straightforward reading of Article 4 

strongly suggests that Article 17 bis does not provide an independent 

basis for denying an air carrier’s application for a permit where the carrier 

is otherwise qualified to receive one under the Agreement. 

It is true that the Agreement does not expressly define the “appropriate

authorisations and permissions” that must be granted. Agreement art. 4. In

context, however, we think it clear that this phrase refers to the authorizations and permissions necessary to enable a foreign air carrier to operate 

within a particular jurisdiction—in the case of the United States, a permit 

issued by DOT. See 49 U.S.C. § 41301 (providing that a foreign air carrier may provide foreign air transportation only if it holds a relevant permit); id. § 41302 (providing the Secretary of Transportation authority to 

issue such permits); see also State Legal Analysis at 3 (“Article 4 imposes 

an obligation to issue a permit provided that the criteria in Article 4 are 

met.”); DOT Legal Analysis at 5 (once fitness and safety criteria under 

the Agreement are satisfied, “DOT is legally required to grant” a carrier’s 

application to provide services in the United States). The phrase “authorisations and permissions” is naturally read to refer back to the “operating 

authorisations and technical permissions” mentioned earlier in the same 

sentence; i.e., the kinds of authorizations and permissions necessary to 

“operat[e]” an airline in the relevant jurisdiction. See Agreement art. 4 

 4 Because we assume that Article 4’s enumerated requirements are satisfied, we do not 

consider whether the principles discussed in Article 17 bis could ever be relevant in 

determining whether those requirements are met.
Article 17 Bis of the Air Transport Agreement with the European Union

33

(“On receipt of applications from an airline of one Party, in the form and 

manner prescribed for operating authorisations and technical permissions, 

the other Party shall grant appropriate authorisations and permissions with 

minimum procedural delay[.]”).

The term “appropriate,” considered in isolation, might be taken to indicate that the Parties retain the discretion to deny authorizations or permissions if they conclude that issuing them would be “[in]appropriate,” a 

reading that might suggest that the considerations set forth in Article 17 

bis could independently be taken into account in deciding whether to issue 

a permit. In context, however, this is an implausible reading of that term. 

See E. Airlines, Inc. v. Floyd, 499 U.S. 530, 534 (1991) (“[W]e begin with 

the text of the treaty and the context in which the written words are used.” 

(internal quotation marks omitted)). As noted above, Article 4 mandates 

that authorizations and permissions be granted “with minimum procedural 

delay, provided” that certain conditions are satisfied. Agreement art. 4. It 

then enumerates and describes each condition, and subsequent articles 

discuss in great detail the specific requirements and procedures related to 

safety (Article 8) and security (Article 9). It would be fundamentally at 

odds with this explicit enumeration for the Parties to have indicated, with 

a single open-ended adjective inserted outside the enumerated list of 

conditions, that the Parties were also free to deny permits as not “appropriate” for other unspecified reasons. Cf. Whitman v. Am. Trucking

Ass’ns, 531 U.S. 457, 468 (2001) (“Congress . . . does not, one might say, 

hide elephants in mouseholes.”). It is far more natural in context—and far 

more consistent with the text of Article 4 and the rest of the Agreement—

to read the phrase “appropriate authorisations and permissions” to refer to 

those particular authorizations and permissions a carrier needs to operate 

in a specific jurisdiction. Agreement art. 4 (emphasis added). The Agreement gives qualified carriers of each Party the opportunity to offer services in the jurisdiction of any other Party, provided the listed conditions 

are met. Id. The specific authorizations and permissions necessary for 

them to do so may vary according to each Party’s relevant laws and regulations. Referring to “appropriate authorisations and permissions” is a 

convenient way to capture, in a single phrase, whatever authorizations and 

permissions a carrier needs in a given jurisdiction to enable it to provide 

services consistent with the Agreement. Cf. United Sav. Ass’n of Tex. v. 

Timbers of Inwood Forest Assocs., 484 U.S. 365, 371 (1988) (“A provi-
40 Op. O.L.C. 26 (2016)

34

sion that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme . . . because only one of the permissible 

meanings produces a substantive effect that is compatible with the rest of 

the law.”).

The text of Article 17 bis likewise fails to suggest that it provides a basis for denying a permit if the requirements referenced in Article 4 are 

satisfied. Paragraph 1 of Article 17 bis provides that the Parties “recognise” the importance of the social dimension of the Agreement “and the 

benefits that arise when open markets are accompanied by high labour 

standards,” and then states that “[t]he opportunities created by the Agreement are not intended to undermine labour standards or the labour-related 

rights and principles contained in the Parties’ respective laws.” Agreement art. 17 bis, ¶ 1. Paragraph 1 is thus, on its face, simply a statement of 

the Parties’ recognitions and intentions, and does not create any affirmative rights, obligations, or authorities. Paragraph 2 explains that the “principles in paragraph 1 shall guide the Parties as they implement the 

Agreement, including regular consideration by the Joint Committee, 

pursuant to Article 18, of the social effects of the Agreement and the 

development of appropriate responses to concerns found to be legitimate.” 

Id. ¶ 2. DOT suggests that this provision is “essentially hortatory,” and 

that the statement that the principles in paragraph 1 “shall guide” the 

Parties’ implementation of the Agreement does not impose any obligation 

on the Parties. DOT Legal Analysis at 5. The State Department suggests 

that, under paragraph 2, if a Party had “concerns about some aspect of 

labor rights regarding its own implementation or the implementation of 

the Agreement by another Party,” the Party “could consider on its own 

what, if any, action is appropriate (and consistent with the Agreement) or 

could potentially raise the issue with some or all other Parties.” State 

Legal Analysis at 3. But, in State’s view, paragraph 2 “does not authorize actions that would run counter to express legal obligations of the 

Parties under other provisions of the Agreement—such as the obligation 

at issue here, to grant a permit where Article 4’s requirements are satisfied.” Id. “In that context,” State explains, “[p]aragraph (2) at most provides for the Joint Committee to consider labor-related concerns raised by 

the Parties.” Id. We need not attempt to determine the precise meaning of 

paragraph 2, because in our view, no plausible reading of that provision 

would provide a basis for denying a permit to an air carrier otherwise 
Article 17 Bis of the Air Transport Agreement with the European Union

35

qualified under Article 4. As explained above, once the requirements 

enumerated in Article 4 are satisfied, Article 4 does not leave the Parties 

with any discretion to deny a permit, or to condition the grant of a permit 

on requirements that are not enumerated or referenced in Article 4 itself. 

See supra pp. 31–34. Thus, even if Article 17 bis were read more expansively than DOT or State suggests, as not simply authorizing but also 

requiring the Parties to take all possible actions consistent with the 

Agreement to respond to labor concerns whenever feasible, such actions 

could not include denying a permit when the requirements of Article 4 are 

met, because the Agreement does not allow the Parties to take such an 

action. 5

This conclusion is reinforced by the amendment history of the Agreement. Article 17 bis was added to the Agreement in 2010. If the drafters 

had intended Article 17 bis to affect the permitting process described in 

Article 4, they could have said so expressly. Indeed, they included precisely such a clarification in Article 6 bis, which was also added in 2010. 

Article 6 bis sought to streamline the permit approval process in Article 4 

by providing that, in many circumstances, Parties are required to accept 

the fitness and citizenship determinations made by the aeronautical authorities of other Parties. Consistent with this purpose, Article 6 bis expressly references Article 4 and makes clear that it is intended to affect 

the way applications under Article 4 are reviewed. See Agreement art. 6 

bis (“Upon receipt of an application for operating authorisation, pursuant 

to Article 4, from an air carrier of one Party, the aeronautical authorities 

of the other Party shall recognise any fitness and/or citizenship determination made by the aeronautical authorities of the first Party . . . as if such a 

determination had been made by its own aeronautical authorities and not 

enquire further into such matters,” with certain limited exceptions). This 

express reference to Article 4 suggests that when the drafters of the 2010 

amendments intended the new provisions in the Agreement to affect the 

implementation of Article 4, they said so explicitly. Article 17 bis, however, does not mention Article 4. Nor does it expressly indicate—as other 

articles do—that it is intended to override other provisions in the Agreement. Cf. Agreement art. 6 (“Notwithstanding any other provision in this 

 5 To be clear, we express no view on whether Article 17 bis can be interpreted in this 

more expansive manner.
40 Op. O.L.C. 26 (2016)

36

Agreement, the Parties shall implement the provisions of Annex 4 in their 

decisions under their respective laws and regulations concerning ownership, investment and control.”); id. art. 10, ¶ 10 (“Notwithstanding any 

other provision of this Agreement . . . .”); id. annex 1, § 3 (“Notwithstanding Article 3 of this Agreement . . . .”). Thus, like the text of Article 4, the 

text of Article 17 bis fails to indicate that it provides any basis for denying a permit if the requirements in Article 4 are satisfied.

This conclusion is also consistent with the general purposes of the 

Agreement. See, e.g., Abbott, 560 U.S. at 9–10 (noting that a treaty interpretation inquiry is shaped by, inter alia, the text and purposes of the 

treaty); id. at 28–29, 46 (Stevens, J., dissenting) (interpreting a treaty by 

looking to the treaty’s text and purpose); Application of the Federal Water 

Pollution Control Act to the Former Panama Canal Zone, 5 Op. O.L.C. 

80, 81 (1981) (“Panama Canal Opinion”) (noting that “[t]reaties are to be 

construed with the highest good faith with an eye to the manifest meaning 

of the whole treaty,” and construing provisions “consistently and in keeping with the purpose of the Treaty” (internal quotation marks omitted)); 

Vienna Convention art. 31(1), 1155 U.N.T.S. at 340. The State Department, which led the negotiation of the Agreement on behalf of the United 

States, has indicated that “[t]he central purpose of the Agreement was to 

increase opportunities to provide air services between the Parties.” State 

Legal Analysis at 4; see also Sumitomo Shoji Am., Inc. v. Avagliano, 457 

U.S. 176, 184–85 (1982) (negotiating agency’s views get “great weight”); 

Panama Canal Opinion, 5 Op. O.L.C. at 82 (“In interpreting a treaty and 

other international agreements, the construction placed upon it by the 

Department charged with supervision of our foreign relations should be 

given much weight.”). This view is confirmed by the preamble of the 

Agreement, which states that, in entering into the Agreement, the Parties 

desired “to promote an international aviation system based on competition 

among airlines in the marketplace with minimum government interference 

and regulation,” and intended to “open[] access to markets and maximis[e] benefits for consumers, airlines, labour, and communities on both 

sides of the Atlantic[.]” 2007 ATA pmbl.; see also 2010 Protocol pmbl. 

at 4 (noting that Parties intended “to build upon the framework established by [the 2007 ATA], with the goal of opening access to markets and 

maximising benefits for consumers, airlines, labour, and communities on 

both sides of the Atlantic”). The purpose of promoting open access by 
Article 17 Bis of the Air Transport Agreement with the European Union

37

airlines of one Party to the markets of the other Parties is served by the 

clear procedures set forth in Article 4, which limit each Party’s discretion 

to deny permits to carriers of the other Parties, thereby ensuring that 

government interference with competition is “minim[ized].” To be sure, 

benefits to labor were relevant to the Parties and explicitly mentioned in 

the preamble, but these references, read in light of the preamble as a 

whole, suggest only that the Parties believed benefits to labor were among 

the benefits that flowed from open access to markets. See generally 

Agreement pmbl.; see also 2010 Protocol art. 6 (“The Parties commit to 

the shared goal of continuing to remove market access barriers in order to

maximise benefits for consumers, airlines, labour, and communities on 

both sides of the Atlantic[.]” (emphasis added)). 6

Finally, we also considered whether a provision concerning Article 17 

bis in the current DOT appropriations bill, which is identical to a provision in the previous year’s bill, alters our analysis. See Consolidated 

Appropriations Act, 2016, Pub. L. No. 114-113, div. L, § 413, 129 Stat. 

2242, 2906 (2015); Consolidated and Further Continuing Appropriations 

Act, 2015, Pub. L. No. 113-235, div. K, § 415, 128 Stat. 2130, 2765 

(2014). That provision states that “[n]one of the funds made available by 

this Act may be used to approve a new foreign air carrier permit . . . or 

exemption application . . . of an air carrier already holding an air operators certificate issued by a country that is party to the [Agreement] where 

such approval would contravene United States law or Article 17 bis” of 

the Agreement. Pub. L. No. 114-113, div. L, § 413(a), 129 Stat. at 2906. 

It then clarifies that “[n]othing in this section shall prohibit, restrict or 

otherwise preclude the Secretary of Transportation from granting a foreign air carrier permit or an exemption to such an air carrier where such 

 6 Because we conclude that the text of the Agreement is clear, and consistent with the 

central purpose of the Agreement, we need not inquire into the negotiating history. Cf.

Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 134 (1989) (“We must . . . be governed by 

the text . . . whatever conclusions might be drawn from the intricate drafting history . . . .

The latter may of course be consulted to elucidate a text that is ambiguous. But where the 

text is clear, as it is here, we have no power to insert an amendment.” (citations omitted)); 

see also Vienna Convention art. 32, 1155 U.N.T.S. at 340. Nevertheless, the State Department has informed us that it “believes that the negotiating history of the treaty confirms the conclusion that Article 17 bis does not constitute a basis for a Party to unilaterally deny a permit to an otherwise qualified carrier of another Party.” State Legal 

Analysis at 4.
40 Op. O.L.C. 26 (2016)

38

authorization is consistent with the [Agreement] and United States law.” 

Id. § 413(b). Whatever the meaning or effect of this provision as a matter 

of domestic law, it does not affect our interpretation of the Agreement 

itself. As discussed above, the text of the Agreement is clear. The Departments of State and Transportation—the principal government entities 

involved in negotiating and implementing the Agreement on behalf of the 

United States—agree that Article 17 bis does not provide an independent 

basis upon which a Party to the Agreement may deny an application for a 

permit from an otherwise qualified carrier, and those views are entitled to 

great weight. See Avagliano, 457 U.S. at 184–85 (“Although not conclusive, the meaning attributed to treaty provisions by the Government 

agencies charged with their negotiation and enforcement is entitled to 

great weight.”); Kolovrat v. Oregon, 366 U.S. 187, 194 (1961) (“[T]he 

meaning given to [treaties] by the departments of government particularly 

charged with their negotiation and enforcement is given great weight.”).

And in any event, we do not read the DOT appropriations provision as 

purporting to alter the meaning of the Agreement itself.

III.

For the foregoing reasons, we conclude that Article 17 bis does not 

provide an independent basis upon which the United States may deny a 

permit to an air carrier of a Party to the Agreement if that carrier is otherwise qualified to receive such a permit. 

KARL R. THOMPSON

Principal Deputy Assistant Attorney General

Office of Legal Counsel