862S.01/10–1446
The First Secretary of the British Embassy (Middleton) to the Director of the Office of Special Political Affairs (Hiss)
confidential
My Dear Hiss: May I refer to Mr. Clayton’s secret note of the 20th September to Lord Inverchapel suggesting the following clause for inclusion as the final paragraph of Article 9 of the draft trusteeship agreements: “Nothing in this article shall be so construed as to accord traffic rights to aircraft flying into and out of the trust territory. Such rights shall be subject to agreement between the administering authority and the state whose nationality such aircraft possess”.
The Foreign Office assume that your proposal is designed to limit the granting of all five freedoms, implicit in the preamble to Article 9, to granting of non-traffic rights, (i.e. first and second freedoms) only, [Page 643] and that the granting of the third, fourth and fifth freedoms could therefore be made only by bilateral agreements between the States concerned.27
If this interpretation is correct, the Foreign Office consider that there would seem some doubt whether the suggested amendment is in accordance with the provisions of Article 76(d) of the Charter, from which Article 9 of the draft terms of trusteeship derives. They are not convinced that the amendment would be justifiable under the proviso to Article 76(d) contained in the words “without prejudice to the attainment of the foregoing objectives and subject to the provisions of Article 80”. In consequence though it is appreciated that the United Kingdom might obtain considerable material advantages from accepting the proposed amendment, His Majesty’s Government do not feel able at this stage to incorporate it in their draft terms of trusteeship or to take the lead in proposing in the Assembly such an amendment, which might expose them to criticism of attempting to strain the provisions of the Charter.
In explaining the difficulties of His Majesty’s Government as outlined above, we have however been instructed to let you know informally that should the United States Government still desire to propose the inclusion of this or a similar amendment, in the Assembly, His Majesty’s Government would have no objection to their doing so; and if the general view of the Assembly was that the provision is reconcilable with the Charter, they would be willing to accept a recommendation to incorporate it in the draft terms of trusteeship, subject to the concurrence of the States recognised by His Majesty’s Government as directly concerned.
Yours sincerely,