“General Bureau of Civil Aviation, Guatemala, eighth of
June of Nineteen hundred and thirty-three.
Mr. Secretary:
In compliance with the foregoing decision I have the
honor to report as follows:
With reference to the data requested by the Legation of
the United States of America and in order to decide with
respect to them this Bureau considers it pertinent to
give certain explanations based on the Habana Convention
on Commercial Aviation and on the Aviation Regulations
of Guatemala.
The above inserted note contains three points to be
decided.
- 1.
- The Government of the United States of America
wishes to ascertain specifically whether the
Government of Guatemala concurs in the
interpretation which the American Government gives
to the Habana Convention, to the effect that private
aircraft of a contracting state may make flights
over any territory they may desire without the
necessity of requesting of the Government concerned
its official permission to make them.
- 2.
- In accordance with the provisions of Article 55 of
the Aviation Regulations of Guatemala, the
Government of the United States of America desires
to be informed in greater detail as to the
formalities which must be fulfilled in order to
comply properly with that article.
- 3.
- The above information is desired in order to
regulate the conditions to which must be subjected
special or tourist flights undertaken by American
aircraft with respect to their entry into countries
which are contracting parties to the Habana
Convention on Commercial Aviation.
Referring to each one of the above three points, I have
to state the following.
First point: The Habana Convention on Commercial Aviation
establishes, in its Article XII, that the states affirm
the principle that the aircraft of each one of the
contracting states are free to carry on aerial commerce
among themselves without being subject to the special
licensing system of the state with which they are
carrying on such commerce …;12 but, this, as is fixed by the
article in question, is for aerial commerce, and not for
private and tourist aircraft on special flights; this is
the judgment of this Bureau.
Compliance with the system of special permits applies to
aircraft already authorized to take part in aerial
commerce; but these always and in every case must
comply, as they are required to do by the aviation
regulations of many countries including those of the
United States of America, with notification by the pilot
sufficiently in advance and before departing from
whatever point in a foreign country for another country
to the customs authority of the port of entry,
specifying the type of aircraft, its special marks or
signs, the name of the pilot or owner and the
approximate hour of its arrival; and there are states
which require in addition the purposes for which the
flight is made.
Second point: Article 55 of the Aviation Regulations of
Guatemala supposes two categories or cases: the first
for any civilian aircraft desiring
[Page 619]
to fly over Guatemalan
territory, without specifying whether it is tourist or
commercial; and the second for aircraft of companies
that are in service on regular lines which are duly
supervised.
The first category or case supposes an agreement
established between the Guatemalan Consul or the
competent authority in Guatemala and the pilot of the
aircraft which is undertaking the flight or the person
who is in charge of any civilian aircraft as its owner
or for any other reason.
This agreement to which Article 55 refers, and which is
to be presumed made ahead of time, gives the right to
undertake any flight in the form prescribed in the
article, and in no other manner. And such procedure is
thereby justified for each case by the right held by
every country, including Guatemala to grant or deny
authorization to fly over its territory, to land or
descend on waters within its jurisdictional limits to
private aircraft, whether of Guatemalan or foreign
nationality. Such a right is guaranteed to her and
sanctioned by Article I of the Habana Convention, when
it states that: “The High Contracting Parties recognize
that every state has complete and exclusive sovereignty
over the air space above its territory and territorial
waters.” The agreement to which I refer may give the
necessary authorization to fly, land, or descend on
water within the territory subject to the agreement
itself and to the Regulations on Civil Aviation, in a
general manner, to the aircraft of any particular nation
or, especially, to one or more aircraft.
Such is the interpretation which this Bureau gives to the
above-mentioned Article 55, and that, based on it, it is
impossible to lose sight of that which it itself
provides, until such time as the law in question is
reformed, or at least the article under reference
modified, amplified or added to, in the sense of
providing for or setting forth in more detail other
formalities designed to give due effect to Article 55 in
the manner requested.
Third Point: In order to carry out practically the desire
to regulate the conditions to which must be subjected
special or tourist flights undertaken by American
aircraft, it is the opinion of this Bureau that, for the
Guatemalan Government to cooperate with that of the
United States in the desired regulation, it is possible
to add to Article 55 in accordance with the suggestions
which this Bureau makes in its reference to points one
and two or in the form which is considered most
convenient.
I assure you of my high consideration and respect.
(signed) Victor M. Mejia”
Ministry of Fomento: Guatemala, June eight of nineteen hundred
and thirty-three.
The preceding opinion of the General Bureau of Civil Aeronautics,
with which this office is in accord, is to be returned to the
Ministry of Foreign Affairs for whatever may be necessary.
(signed) H. Aparicio I
