711.1427/2

The Minister in Guatemala (Whitehouse) to the Secretary of State

No. 971

Sir: With reference to your instruction No. 276 of May 2, 1933, I have the honor to transmit herewith copy and translation of Note No. 5771 from the Guatemalan Foreign Office containing the report of the General Bureau of Civil Aeronautics on the points raised in the Department’s note.

The Department will see that the replies to its questions are not at all clear and the reason for it was explained to me by the Minister of Foreign Affairs as follows: Regardless of what may be the intention of the Habana Convention, the Guatemalan Government with four neighbors cannot allow planes to enter their country without being notified beforehand and, therefore, any airship, except those of regularly established lines like the Pan American, cannot enter Guatemala without permission having been previously obtained from the Ministry of Foreign Affairs since neither the Legation in Washington nor the Guatemalan Consulates in the United States have authority to grant this permission. …

Respectfully yours,

Sheldon Whitehouse
[Enclosure—Translation]

The Guatemalan Minister for Foreign Affairs (Skinner Klée) to the American Minister (Whitehouse)

Mr. Minister: For your information and other uses I have the honor to transcribe for Your Excellency the opinion which was rendered to the Minister of Fomento by the General Bureau of Civil Aviation and the decision pronounced by that Ministry. These are as follows: [Page 618]

“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

(signed) Avelino Mariscal

I take [etc.]

A. Skinner Klée
  1. Omission indicated in the original.