823.00 Revolutions/381

The Secretary of State to the Ambassador in Peru ( Dearing )

No. 423

Sir: With reference to the Department’s telegram No. 40 of August 9, 1932, and the Embassy’s despatch No. 2097 of September 10, 1932, concerning the requisitioning in Peru of American airplanes and the attempt of the Peruvian Government to compel American pilots to serve in connection with military operations in Peru, the Department encloses herewith, for your information, copies of memoranda prepared in the Office of the Legal Adviser, dated August 3 and August 4, 1932.8

You will perceive from a reading of these memoranda that in view of accepted principles of international law, the Department does not feel justified in protesting against the requisitioning by the Peruvian Government of foreign aircraft in time of war or domestic disturbances. [Page 963] The Department believes, however, should circumstances again arise which would render such a course of action desirable, the Embassy would be justified in urging the Peruvian Government not to interfere unnecessarily with the regular operation of air mail planes between the United States and South America. With regard to the impressment of American pilots to fly such planes, however, the Department has, as it informed you in its telegraphic instruction of August 9, made it clear that this Government cannot admit the right of any foreign government to impress American aviators into military service, regardless of any provisions which may be found in contracts between such government and the aviation companies by which those aviators may be employed.

In his reply to your representations on this subject, dated August 4, the Foreign Minister of Peru states that the Peruvian Government has not been informed of any objection to the enforcement of Article IX of the company’s contract, either on the part of the American company concerned or of its pilots. The Department would be glad to have the Embassy’s comment on this assertion. Meanwhile, you are authorized to transmit to the Peruvian Minister for Foreign Affairs, in answer to his note of August 4 above referred to, a note in the terms of the draft enclosed herewith.

Should another occasion similar to the Trujillo incident arise, the Embassy should inform such American pilots as apply to it for advice that this Government does not admit that private contractual stipulations, the intent of which is to compel them under certain circumstances to take foreign military service under a foreign government, can deprive them of their right of protection as American citizens. You may inform them, moreover, that this Government views with disfavor the participation of American citizens in foreign military enterprises, and point out that if they accept foreign military service, they must do so upon their own responsibility and at their own risk.

In connection with the suggestion contained on page eight of the Embassy’s despatch No. 1938 of July 18, 1932, that this Government might care to consider “the whole question of immunity of international air line planes from seizure by the countries through which they pass”, the statement is made that such immunity is recognized by European countries. The Department has not been informed of any such recognition and would appreciate whatever specific information the Embassy may have in this connection. Regarding the suggestion, however, and for your confidential information, the Department is not at all sure that an endeavor to persuade the Governments of Latin America to enter into an agreement depriving themselves of a right recognized by international law, in order [Page 964] to favor commercial air lines principally owned by citizens of the United States, would be successful, even on the ground of obviating interference with the regularity of air mail and communication, and is apprehensive lest an attempt to initiate such an agreement might have the opposite effect from that desired. However, the Department will be glad to consider any further suggestions you may see fit to submit in the matter.

Very truly yours,

For the Secretary of State:
Francis White

Draft of Note to the Peruvian Minister for Foreign Affairs

Excellency: I have the honor to acknowledge the receipt of Your Excellency’s courteous note No. 76 of August 29, 1932, with further reference to the use by Your Excellency’s Government during times of domestic disorder of pilots who are American citizens in the employ of the Panagra Company. A copy of this communication has been transmitted to my Government, which has taken due note thereof and instructs me to inform Your Excellency that as previously stated, it is unable to admit that immunity of American pilots from enforced military service is affected by provisions in any contract concluded between third parties (even though one of them be a foreign government) envisaging the compulsory piloting of planes by American citizens, since that immunity is derived from the status of such pilots as citizens of the United States and the right of the Government of the United States to protect its citizens cannot be contracted away.

Accept [etc.]

  1. Not printed.