The Secretary of State to the Minister in Guatemala (Hanna)
Sir: The Department is in receipt of your despatch No. 292, of August 11, 1934,11 in further relation to the interpretation of Article 4 of the Habana Convention on Commercial Aviation.
In note No. 7509 of August 8, 1934, from the Foreign Office,12 transmitted with your despatch, reference is made to the conditions under which commercial aircraft operated by companies may enter Guatemalan territory. The Department desires to have you make it clear that in taking up with the Guatemalan Government the matter of obtaining an interpretation of Article 4 of the Habana Convention on Commercial Aviation, the Department had in mind the necessity of reaching an understanding with the Guatemalan Government with respect to rights of entry so far as pleasure or touring aircraft are concerned. This Government has no desire at this time to go into the question as to what may be the status of aircraft engaged in international commerce, and so far as it can see, nothing has arisen to require consideration of this point. It is believed that any discussion of commercial aircraft would only tend to confuse the issue and complicate the discussion now under way in an effort to reach an understanding concerning the right of entry of pleasure or tourist aircraft.
The Department understands from the note which you have received from the Foreign Office that the Guatemalan Government now agrees that it is not necessary for an aviator to request formal authorization for permission to enter Guatemalan territory under the terms of the Habana Convention on Commercial Aviation. While the Department is pleased to note that progress has been made in efforts to reach an understanding with Guatemalan authorities, it regrets that the Guatemalan Government has stipulated that advance notice of each flight must be given by air mail ten days prior to making the flight and by radiogram five days prior to the date of the flight. It is believed that a requirement that Guatemalan consular officers must be notified ten days in advance of the flight would work a considerable hardship on the aviator as it might mean a serious delay in his plans for a flight over Guatemalan territory. Leaving the aviator uncertain during this period as to the attitude of the Guatemalan authorities concerning the flight might even be found to be tantamount to requiring him to obtain special authorization for the flight, which is not required under the Convention. The object of the Convention was to facilitate air traffic [Page 503] among the contracting states, and it would therefore be unfortunate if the Guatemalan Government should insist upon a requirement that may to a great extent impede such traffic.
The requirement proposed by the Guatemalan Government would seem to be especially onerous so far as the aviator is concerned, for the reason that he would be required to send two separate notices to the Guatemalan consular officer, and by a form of communication which the aviator may find to a great extent to be impracticable. It is suggested in this connection that as the aviator would probably be desirous of leaving on his trip as soon as possible, the Guatemalan Government would not be inconvenienced should it leave the method of communication with the consular officer to the judgment of the aviator.
It is the apparent desire of the Guatemalan authorities to guard against the entry of undesirable persons. It is suggested that this might be considered an immigration question. You may, in your discretion, state informally that the Convention, while according a general right of entry, does not interfere with the right of a contracting party to enforce its immigration requirements. You may in this connection call attention to the last paragraph of Article 18 of the Convention, which reads:
“… the aircraft, aircraft commander, crew, passengers and cargo shall be subject to such immigration, emigration, customs, police, quarantine or sanitary inspection as the duly authorized representatives of the subjacent state may make in accordance with its laws.”
The paragraph quoted would seem to relate to aircraft that have entered the territory of a contracting state. However, as indicated in its instruction No. 296 of August 25, 1933,13 the Department is not disposed to raise any question with respect to any reasonable requirement of the Guatemalan Government that the aviator get in touch with a Guatemalan consular officer prior to departure for Guatemalan territory. It is understood that under the Guatemalan regulations, a passport and visa are not required for a stay of one month or less in Guatemala and that instead, a tourist card is issued without fee by a Guatemalan consul. You may, in this connection, suggest informally in your discussions with the Guatemalan authorities that they may desire to consider the adoption of a form of tourist or identification card applicable to aviators entering Guatemala on tourist or pleasure flights under the Habana Convention on Commercial Aviation. Such a card, it is suggested, might contain data supplied by the aviator and be signed by the Guatemalan consular officer. Such a document should not, however, be regarded as an entry permit in the sense that the aviator would be considered to be obtaining special authorization to enter Guatemala and should not place a limitation on the length of stay of [Page 504] the airplane in Guatemala in view of the fact that the Habana Convention on Commercial Aviation provides for the entry of aircraft without imposing any limitation on the period in which the aircraft is to remain in the country entered. If the tourist or identification card should not be issued by the Guatemalan consul to the aviator as soon as the consul received the data from the aviator and there should be unnecessary delay in the matter, such delay would, in the Department’s opinion, be apt to cause serious interference with the plans of the aviator and tend to impede international air navigation, particularly in view of the fact that there would doubtless be many cases where the aviator would be residing at a considerable distance from the place where the Guatemalan consular officer is stationed. It is suggested, in this connection, that the Guatemalan Government may be willing to consider that a telegram sent by the Guatemalan consul to the aviator would answer the purpose of a tourist or identification card when the aviator desires to enter Guatemala on short notice.
With reference to the statements of the Foreign Office concerning commercial flights by companies under the terms of the Habana Convention on Commercial Aviation, the Department is glad to make the following comment for the information of the Legation but not for communication to the Guatemalan Government.
The International Convention for the Regulation of Aerial Navigation, signed at Paris on October 13, 1919,14 which is a multilateral agreement, provides in effect that the establishment of regular air transport lines shall be subject to the consent of the state or states in which the lines are to be operated. A similar provision has generally been incorporated in bilateral air navigation agreements.
It is not stated in the Habana Convention on Commercial Aviation, also a multilateral agreement, that permission must be obtained by a contracting state for its air transport companies to operate regular air routes over the territory of other contracting states. It was undoubtedly the intention of the framers of the Convention to encourage and facilitate as much as possible the establishment and operation of international air transport lines over the territories of the contracting states, and it seems to be reasonable to consider that the Habana Convention was designed to further a general international obligation to admit such enterprises. However, from a practical standpoint, each country flown over can exercise an important influence on the establishment of international air lines through the enforcement of its regulations relating to the organization of air routes, establishment of aerodromes and other matters having a vital bearing on the establishment and operation of a regular air transport line.[Page 505]
The Department would not desire to make any definite commitments with respect to the status of international commercial air transport lines under the Habana Convention on Commercial Aviation, unless a concrete case should arise requiring consideration by the Department and it should be in possession of all the facts of the case.
Very truly yours,