force.
In these circumstances the safest course of action would be to negotiate the continuance of existing overflight rights through an appropriate treaty provision.
4. As you point out Article 2 of the Uzbek draft confers overflight rights only on the designated airlines which in a UK/Uzbekistan agreement will not include Cathay Pacific. We should therefore consider submitting an alternative draft to the Uzbeks, along the lines of our standard Article 3 in CMB 10. Indeed, it might be tactically correct to submit an entire counter-draft to the Uzbeks based on CMB 10, as many other points in their draft are unsatisfactory (see below), and many others are unclear or just not drafted in proper English. There will also be a tactical question to consider, ie at what stage should we explicitly tell the Uzbeks that we believe that Article 3 (1)(a) of CMB 10 reflects the existing legal position which we will insist on retaining? could be done in initial comments on the draft, or later across the table.
This
5. I do not think that a new agreement with the Uzbeks will prejudice our position as regards the other new republics which British airlines currently overfly. The fact that existing rights in relation to Uzbekistan are being replaced by new rights does not affect the continued existence of rights enjoyed in relation to Kazakhstan, etc.
6.
Apart from the over flight issue my initial comments on the Uzbek draft are as follows. The Articles I do not mention seem all right in principle though the drafting of them all leaves much to be desired
Preamble and Article 1 Reference is made to the Chicago Convention but without saying that Uzbekistan regards itself as a party to that Convention. In general we regard the new republics as continuing the Soviet Union's participation in treaties but this general principle does not automatically apply to treaties establishing international organisations, and as you know Part II of the Chicago Convention is the constituent document of ICAO. The position of Uzbekistan as regards the Convention and ICAO will need to be clarified
Article 2 This contains nothing akin to Article 3(4) of CMB 10 on temporary routings, and contains provisions on local laws and regulations which duplicate other provisions (eg Uzbek Article 3(2)).
Article 3 Paragraph (4) contains an extended definition of ownership and control, which we do not generally regard as essential.
Article 5 This confers only limited MFN treatment, rather than national treatment, in relation to user charges. It allows Uzbekistan to discriminate in favour of Uzbek airlines or airlines of other members of the CIS
Article 7-9 These set out separately provisions equivalent to those in Article 6 of CMB 10. While Article 7 and 8 seem fine Article 9
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