The Secretary of State to the Chargé in Guatemala (Lawton)
Sir: The Department has received your Legation’s despatch No. 971 of June 22, 1933, in further relation to the right of entry of aircraft under Article IV of the Habana Convention on Commercial Aviation. Your Legation reports that the Guatemalan authorities do not agree with the interpretation of this Government to the effect that Article IV accords to aircraft of a contracting state the right to enter territory of other contracting states, subject to the conditions laid down in the Convention, without the necessity of obtaining an authorization for each flight.
The Department desires to have you assure the Government of Guatemala that this Government has no intention of insisting upon any procedure that would render it difficult for the Government of Guatemala to maintain a check upon the entry of foreign aircraft. It would seem that the requirements as to entry and clearance would afford an opportunity to maintain a check on the movements of foreign aircraft within its territory. You may add that it is hoped that the two Governments will be able to agree upon a solution of this matter that will be satisfactory to both Governments.
With reference to the points raised by the Guatemalan Government, the Department makes the following observations:
In support of their position the Guatemalan authorities make reference to Article I of the Habana Convention which 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. This principle is now well recognized whether it appears in international conventions or is omitted therefrom. It is found in the International Convention for the Regulation of Aerial Navigation, signed at Paris on October 13, 1919.13 However, under the terms of that Convention, the parties thereto consent to a limited derogation of sovereignty and accord liberty of innocent passage over their territories to aircraft of other contracting states. In Article IV of the Habana Convention the parties to the Convention mutually consent to a limited derogation of sovereignty by providing that each contracting state shall undertake in time of peace to accord freedom of innocent passage above its territory to the private aircraft of other contracting states.
A declaration that the Government of the United States of America has complete sovereignty over the air space above its territory is contained [Page 621]in Section 6 of the Air Commerce Act of the United States.14 Nevertheless, this Government has taken the position that as soon as the United States enters into an air navigation agreement with a foreign country the aircraft of the foreign country concerned may enter the United States subject to compliance with the regulations in force in this country without the necessity of obtaining authorization for each flight. This Government has such agreements with Canada and several European countries.
The Guatemalan Bureau of Civil Aviation, in its report to the Ministry of Fomento, approved by that Ministry, states that the provision of Article XII of the Convention which affirms the principle that the aircraft of each contracting state shall have the liberty of engaging in air commerce with the other contracting states without being subjected to their licensing system refers to aircraft engaged in “aerial commerce” and not to private or tourist aircraft on special flights.
All international air navigation agreements of which the Department is aware provide that aircraft duly licensed in a contracting state shall be permitted to enter the territory of another contracting state without being subjected to the licensing system of the state entered and the Habana Convention constitutes no exception, except to the very limited extent hereinafter mentioned. It is not seen why such a provision is not just as applicable to non-commercial civil aircraft as it would be to aircraft engaged in aerial commerce. It would appear that one of the main purposes of such agreements is to facilitate international air navigation by exempting the aircraft of each party from the licensing requirements of the other party. On the other hand, if the aircraft of one country may not enter another on this basis, the carrying on of international air navigation would seemingly be greatly hampered.
As the Department reads it, the Habana Convention does not require that aircraft of one of the parties entering territory of another party shall be subjected to the licensing system of the latter, except to the very limited extent provided for in exceptional circumstances in the fifth paragraph of Article XII. That paragraph accords to a contracting state the right to refuse to recognize as valid certificates of airworthiness of a foreign aircraft, if inspection by a duly authorized commission of such state shows that the foreign aircraft is not at the time of inspection reasonably airworthy in accordance with the normal requirements of the state making the inspection. Such airworthiness requirements would presumably be part of the licensing system of the state making the inspection.[Page 622]
Under Article IV of the Convention, each contracting state accords freedom of innocent passage over its territory to the private aircraft of other contracting states, subject to the conditions laid down in the Convention. This, of course, means aircraft having the nationality of any one of the other contracting states.
Article VII provides that aircraft shall have the nationality of the state in which they are registered.
Article VIII provides that the registration of aircraft referred to in Article VII shall be made in accordance with the laws and special provisions of each contracting state. In connection with Article VIII, attention is invited to Section 7 of the Air Commerce Regulations of the United States, effective as amended January 1, 1932, which defines the meaning of the term “registration”. Section 7 reads:
“Registration means entry of licensed aircraft in an official license registry of the Secretary of Commerce as aircraft of the United States. Unlicensed aircraft, though entered of record for purposes of identification as required by law, are not registered aircraft within the meaning of these regulations.”
Licenses, as referred to in Section 7 of the Air Commerce Regulations of this Government, are issued by the Department of Commerce not only for aircraft engaged in air commerce but for aircraft operating for non-commercial purposes, such as pleasure aircraft.
Article X of the Habana Convention provides in part that every aircraft engaged in international navigation shall carry with it in the custody of the aircraft commander a certificate of registration, duly certified to according to the laws of the state in which the aircraft is registered.
Considering Article IV of the Convention, in connection with the other articles referred to above, it seems clear to the Department that the framers of the Convention intended that a contracting state should permit the entry of both commercial and non-commercial aircraft of the other contracting states, subject to the right of inspection provided for in the fifth paragraph of Article XII, without subjecting the aircraft to the licensing requirements of the state entered.
With reference to Article XII of the Convention, it may be stated that in construing the words “air commerce” appearing in the fifth paragraph of the article, the meaning intended by the entire article should be taken into consideration. The entire article relates to airworthiness requirements in connection with aircraft engaged in “international navigation” as the term is used in the first paragraph of this article. It seems clear that the term “air commerce” appearing in the fifth paragraph was intended to have the same meaning as “international navigation” which appears in the first paragraph and covers both commercial and non-commercial aircraft. The fifth paragraph [Page 623]of Article XII relates to a possible situation where aircraft of a contracting state engaged in international navigation are found not to be reasonably airworthy.
The fact that Article XII is the only article of the Convention that deals specifically with airworthiness requirements and that it is the general practice in the adoption of air navigation agreements to provide that all classes of aircraft covered by the agreement must carry certificates of airworthiness would appear to be a further indication that the term “air commerce” in the fifth paragraph of Article XII was intended to be used in the sense of “international navigation”.
It is of interest to note in this connection that airworthiness requirements and licenses are dealt with in Article 20 of the Guatemalan Air Navigation Regulations and that no distinction is made in the article between commercial and non-commercial civil aircraft. The article reads:
“Certificates of airworthiness and licenses, issued or approved in the country of origin of the aircraft or crew, shall be recognized as valid, as well as the same documents issued or approved in Guatemala but as to the certificates and the licenses of the crew, they shall be only for the service of aircraft registered in their own country. In order to make exceptions to this general rule, an authorization from the Bureau of Aeronautics shall be necessary.”
Article 13 of the Civil Aviation Regulations of Guatemala contains a declaration of principle in favor of the freedom of air navigation similar to Article IV of the Habana Convention, since Article 13 of the Regulations provides that in time of peace airships of any nationality that are duly licensed shall have free passage above national territory, provided that they observe the rules laid down in the Regulations.
However, Article 55 of the Regulations apparently contemplates that, with respect to entry into Guatemalan territory, a distinction shall be made between aircraft of a country that has a treaty with Guatemala and aircraft of a country that does not have such a treaty. If, under the Guatemalan regulations, the aircraft is of a country that has a treaty with Guatemala on the subject of air navigation, the aviator must obtain a clearance from a Guatemalan consular officer while such clearance would not be necessary if the aircraft should be of a country that does not have such a treaty and in the latter case the aircraft would merely have to comply with the requirements as to entry on entering Guatemalan territory. It would seem that the practical effect of Article 55 would be to discriminate against aircraft of countries parties to the Convention, notwithstanding the fact that the purpose of the Convention is to facilitate and encourage the development of civil aviation among the countries which are parties thereto.[Page 624]
If, in the case of aircraft of countries parties to the Habana Convention, authorization must be obtained in advance from the Guatemalan Government before the aircraft can enter Guatemalan territory, there would seem to be little advantage in entering into the Convention so far as flights over Guatemala are concerned and possibly a disadvantage, since the Convention imposes upon the countries parties thereto a number of duties and obligations which would not be applicable to countries not parties whose aircraft enter Guatemalan territory. This disadvantage would be emphasized if there should be imposed upon aircraft of the parties requirements as to entry more onerous than those imposed upon aircraft of countries that are not parties. The Convention was designed to permit international air navigation between the countries parties thereto, subject to the regulations in force in these countries not inconsistent with the terms of the Convention, without the necessity of seeking special authorization for each flight.
If, under the Guatemalan regulations, the operators of aircraft must, within a reasonable period before entering Guatemala, notify the appropriate customs authority in that country of the intended arrival, this Government would not be disposed to raise any question concerning the matter. However, it is considered that the giving of a notice should not imply that the aviator should be subject to the delay and uncertainty of being required to have the entry of the aircraft depend upon the receipt of the formal authorization from the Guatemalan Government.
If the requirements of Article 26 of the Guatemalan Regulations in regard to entering at customs airports have to be complied with by all aircraft entering the country, it is not clear why there should, in addition to this custom requirement, be the additional requirement that the operator of the foreign aircraft must obtain “clearance” from a Guatemalan consular officer before proceeding to Guatemala if the aircraft is of a country that has a treaty with Guatemala on the subject of air navigation. This Government would not be disposed to raise any question with respect to a requirement of Guatemala that in the case of all civil aircraft entering Guatemala the aviator must obtain clearance from a Guatemalan consular officer in the country from which the aircraft starts. However, it is believed that in the case of aircraft of a country that is a party to the Habana Convention such clearance should be limited to the observance of such formalities not inconsistent with the terms of the Convention as would be intended to facilitate entry, and that the aviator should not be required to obtain through the Consul a special authorization from the Government of Guatemala for American registered aircraft to enter Guatemalan territory.[Page 625]
A considerable burden is placed upon the Department of Commerce, the Department of State and American diplomatic missions abroad on account of the necessity of handling correspondence in obtaining special authorizations for flights abroad by American aircraft. It is the desire of this Government to eliminate this procedure which is considered to be unnecessary in cases where the United States has an air navigation agreement with a foreign country establishing the general right of aircraft of each country to enter territory of the other. Taking Canada as an illustration, it may be noted that numerous flights are being made by Canadian aircraft into the United States and by American aircraft into Canada in accordance with the terms of the air navigation agreement in force between the two countries.15 If a special authorization had to be obtained for each flight a very heavy burden would be imposed upon this Government and the Canadian Government.
Very truly yours,