611.9194/12–2854: Telegram
The Chargé in India (Kennedy) to the Department of State
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882. Re: Civil Air Agreement. Jha and Jain out of town but will be back 29th. We hope get some indication GOI position latest suggestions by close of business 30th. Assume technician to participate January negotiations, referred to Deptel 791,1 standing by for immediate departure.
I am very concerned over general tone and certain omissions proposed note (Deptel 799).2 Believe if offered as presently drafted, there will be unfortunate reaction with loss of what I have felt has been increasing degree of confidence in our desire to work out a solution permitting continuation of 1946 civil air agreement. Consequently, suggest consideration following:
- 1.
- A–1243 and Deptel 7164 use word “immediately” re consultation on establishment new service, and this has been conveyed to Jha as sense of our approach this problem. Tone of note gives impression of relaxation on beginning consultation by use of word “promptly”. At minimum, I believe “immediately” should be substituted so that there would be firm basis for GOI believing consultation will have proceeded for some period of time, such as a week, before new service goes into effect (Deptel 716 speaks of negotiator getting on first, or possibly second, plane after receipt of notice).
- 2.
- Note omits reference to use of traffic experience derived on basis of operations as existing at time of notice, rather than after new service had been in effect for some time (Deptel 716).
- 3.
- One of the very difficult points with Jha has been his view that language of Article IX did not permit unilateral selection with regard to frequencies. I believe he may accept agreement by both sides that by interpretation Article IX may be used to cover unilateral action in this respect, but he will wish, I am sure, to have it in writing. Hence, reference to action under Article IX, without stating that such action includes unilateral restriction of frequencies, will not be acceptable. I assume department wishes keep out of note reference to unilateral restriction because of danger of note becoming public, but this will not meet Indian attitude which now has in it a background of suspicion and is based on desire to have full basis of agreement specified. In this connection, I have already mentioned that Jha has raised question of interpretation of Article IV to provide for clearer and more definite agreed principles or, as he put it, “rules of the game”. In absence of something specific in this regard, Jha, I am sure, will consider that India will be in losing position because, in case of a dispute which would be referred to ICAO or arbitration board, those who sat in judgement would look to Articles IX and IV as they stand. I believe [Page 1811] at a minimum that the right on India’s part to exercise unilateral restrictions over frequencies will have to be spelled out in the note.
- 4.
- Provisions for consultation on existing frequencies is inadequate since it omits any reference to action to impose unilateral restrictions on frequencies in absence of agreement between parties. Deptel 7275 specifically stated that in case of consultation on existing schedules, they continue until agreement to contrary is reached or, if no agreement, until GOI imposes restrictions. As Dept will note from Embtel 864,6 this language has been conveyed to GOI.
Would appreciate further instruction re above. In meantime have not presented draft text.