The Acting Secretary of State to the Embassy in Argentina
338. For Landis and Bell from Merchant and CAB. Embtel 454 Apr 22. Re sixth freedom. Dept believes strict Bermuda capacity language includes so-called sixth freedom in definition of fifth freedom.52 Thus additional capacity entitlement cannot be secured for sixth freedom traffic. Discussion 1946 PICAO Assembly indicated fifth freedom language might cover sixth freedom and that special language raised many problems both of draftsmanship and enforcement. See Doc. 2089 Report Commission No. 3 First Interim Assembly53 which, although not completely indicative position to which US wishes to be bound, is indicative of general thinking. Therefore, Dept and CAB do not favor special agreement in any form with Argentina re sixth freedom. Any such action would raise question construction earlier agreements. Position should be sixth freedom included in fifth freedom and legitimate to extent fifth freedom is proper but no further. Enforcement against double ticketing would lie under general disputes clause as would provision against extra capacity for sixth freedom traffic, with deliberate double ticketing being considered unfair practice as attempt to indirectly do that which is forbidden to be done directly. See Montreal Doc. 2866 page 24. Crocker should have copy.
Dept anxiously awaits word re use new arbitration clause. As interim agreement no longer effective Council ICAO has no express or implied authority act as arbitral body. Approval new clause urgently needed use in other pending agreements. [Merchant and CAB.]