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

No. 180

Sir: The Department has received your despatch No. 544 of February 23, 1935, in further relation to the interpretation of Article 4 of the Habana Convention on Commercial Aviation, which article accords to private 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.

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The procedure outlined above is satisfactory to the Government of the United States and it will not be necessary for you to make mention of the suggested tourist or identification card discussed on page four of the Department’s instruction No. 78 of August 29, 1934.5

However, while the procedure referred to in the communication from the Foreign Office quoted above is satisfactory, this Government cannot agree with the views of the General Bureau of Civil Aeronautics that this is a matter that should appropriately be made the subject of a special agreement between the United States and Guatemala under the terms of Article 30 of the Habana Convention on Commercial Aviation. Article 30 recognizes the right of any contracting state to enter into a Convention or special agreement with any other state concerning international air navigation, subject to the conditions stipulated in the Article. As a general right for aircraft of a contracting state to fly over the territory of another contracting state is definitely accorded by Article 4 of the Convention, the negotiation of a special agreement on the subject is not required.

In its opinion the General Bureau of Civil Aeronautics discusses Article 12 of the Convention, in which the states affirm 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 the licensing system of any state with which such [Page 225] commerce is carried on, subject, however, to the right of the state with which the commerce is conducted to refuse to recognize certificates of airworthiness of the foreign aircraft where it is shown that the aircraft are not reasonably airworthy in accordance with its own requirements. This article was also discussed by the General Bureau of Civil Aeronautics in a communication embodied in a note from the Foreign Office of June 12, 1933, transmitted with the Legation’s despatch No. 971 of June 22, 1933.6 The Department’s reply to the points raised by the Bureau at that time are set forth at some length in the Department’s instruction No. 296 of August 25, 1933.7

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The Government of the United States and the Government of Guatemala are now willing that the private aircraft of either country shall be permitted to enter the other country without the necessity of obtaining special authorization for each flight. However, while the Government of Guatemala considers that such procedure would constitute a special agreement under Article 30 of the Habana Convention, the Government of the United States considers that the procedure is already authorized under Article 4 of the Convention. If you have reason to believe that the Guatemalan authorities will not recede from the position they have taken in the matter of the interpretation of the Convention, you may endeavor to reach an understanding whereby the procedure agreed upon by the two Governments with regard to the entry of pleasure or tourist aircraft may be given effect without the necessity of entering into a further discussion as to the interpretation of the articles of the Convention. Under this plan each Government would reserve its position as to what it considers to be the proper interpretation of these articles, and a further discussion of the matter could be deferred to some time in the future when some occasion may arise requiring a review of the subject.

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With the exception of Mexico8 and Guatemala all the Latin American countries that have ratified the Habana Convention on Commercial Aviation have agreed to this Government’s interpretation of Article 4. The Department would much prefer to have a uniform understanding regarding this article but, as stated above, is not disposed to press the matter with the Guatemalan Government if you deem such course to be inadvisable, so long as a satisfactory procedure for the entry of pleasure or tourist aircraft can be agreed upon between this Government and the Government of Guatemala.

Very truly yours,

For the Secretary of State:
R. Walton Moore