The Panamanian Ambassador ( Guardia ) to the Secretary of State

No. D–165

Mr. Secretary: Pursuant to instructions from my Government, I present a formal protest to Your Excellency’s Government because of the surprising and inexplicable fact that, in the Canal Zone, there is under way at the present time the construction of a concrete building, the foundations of which already exist, intended as an airport for Pan American Airways, Inc., an enterprise of a private character which is devoted exclusively to commercial ends, and which has nothing to do, directly or indirectly, with the use, operation, or protection of the Panama Canal.

The construction referred to above is being carried out in a place immediately adjacent to the building which now serves as an airport for Pan American Airways, Inc., and in this same building is displayed a drawing, officially approved by the Panama Canal Construction Quartermaster, where it is indicated that such building has been [Page 620] especially designed for Pan American Airways, Inc. The building, the construction of which has already been begun, will constitute a first class airport in the event that it is completed, with all the characteristics of a permanent building and not an airport of a temporary nature as is the one which they now use.

The initiation and continuation of the construction of the building which will be intended as an airport for Pan American Airways, Inc., in the Canal Zone, is in open conflict with the principles which the Republic of Panama has always maintained and continues to maintain, that the only activities which can be carried on within the said Zone are those expressly authorized by existing treaties and which are directly and necessarily connected with the use, maintenance, sanitation, operation, or protection of the Panama Canal; that all other activities are prohibited; and that, with regard to them, the exclusive right to regulate or utilize them appertains to the Republic of Panama, which is the sovereign and which has granted the use of the lands which constitute the Canal Zone with the above-mentioned limitations.

Your Excellency’s Government must further take into account the fact that, if the construction of the building to which I am referring is not prevented the Republic of Panama will be unjustly injured, in express violation of the terms of the General Treaty of March 2, 1936,55 which provides, in its third article, that the Republic of Panama shall have the right to benefit by “the commercial opportunities inherent in its geographical situation.” Because of such conditions, it is logical and just to reach the conclusion that the construction of a building of this kind cannot be viewed by the Panamanian Government except as tending to destroy legitimate rights of the Government and to cause serious harm to the Republic of Panama with regard to the future development of commercial air traffic, which is destined to be one of the principal sources of wealth of the Republic and to counteract the serious disadvantage which my country has suffered for lack of sea ports in territory under its control.

The Government of Panama, in its sound intention of protecting the legitimate rights of the Republic of Panama, has formulated requests on previous occasions to Your Excellency’s Government in relation to the problems which the Canal Zone airdromes raise for my country, which requests have been disregarded for reasons which are still unknown. In fact, on June 3, 1941, Dr. Carlos N. Brin, who was then Ambassador of Panama in Washington, presented a formal protest56 to Your Excellency, in the name of the Government of Panama, because of the use which is being made of Canal Zone airdromes [Page 621] by certain civilian and commercial enterprises (i.e., Pan American Airways, Inc.) the purposes of which, I repeat, are foreign to the defense or protection of the Canal.

This protest was met by the reply of the Under Secretary of State of the United States, the Honorable Sumner Welles, on August 5, 1941, in which no other reason tending to justify this commercial use of that airdrome by private companies was given than that these activities had been carried on in the Canal Zone for some time.57 This reason, naturally, has not satisfied the Government of Panama, which does not admit that its tolerance or failure to protest previously can give rise to any right which might curtail the rights clearly acquired by the Republic of Panama according to existent treaties.

Subsequently, that is, on September 17, 1941, the Ambassador of Panama in Washington at that time addressed to Your Excellency Communication No. D–464,58 in which he again expressed the inconformity of Panama with this unlawful use of the Canal Zone airdromes. The following, among other things, was said in this note, which has not yet been answered:

“The tolerance of my Government in the face of the observance of this practice was due to the fact that the Republic of Panama did not have the resources necessary for the development of aviation at that time nor experts in the technics of that branch. It tolerated the said practice only in a provisional way and not as an obligation to suffer perpetually that limitation which might have an unfavorable influence in the future, when the causes ceased which gave rise to that situation which undoubtedly is an obstacle to our progress.

“The Republic of Panama due to its exceptional geographical position and by reason of the great possibilities of the development of its commercial aviation, considers today that such activity will constitute in the course of time a source of revenue and of trade with the other countries. Therefore, as it is now in a position to attend in a proper manner to the development of commercial aviation it cherishes the hope ‘that the United States, in view of the object expressed in Article III of the Treaty of 1936, relative to the benefit which Panama should obtain from the commercial advantages inherent in its geographical position, will also be keenly interested in contributing to the progress of Panama, in as much as both countries are united by very cordial relations and similar interests.’

“My Government deems that the commercial aviation companies established in fact in the Canal Zone do not justify the legality of their existence by their longer or shorter duration in that place but by the legality of their establishment subject to the clauses of the treaties between Panama and the United States. And as they have no legal basis in the Treaty of 190359 which specifies the uses to which the United States Government might destine the Canal Zone, nor are such private commercial aviation companies included in no. 5 of [Page 622] Article III of the General Treaty approved by the Republic of Panama and the United States in 1936, we must admit that their operation in the Canal Zone is contrary to the spirit and letter of both agreements.

“Panama has full confidence in the good desires and cordial interest which animates the Government of Your Excellency in its economic development and does not doubt that on this, as on other occasions, its great friend of the North will know how to receive the just protests of my country in a spirit of understanding, sincere international friendship and loyal cooperation thus making more practicable the plan of works which my Government proposes to carry out in the matter of aviation and which includes the establishment of a modern airport in the City of Panama to meet all the needs which this order of activities requires.

“It is obvious that the establishment of airports on territory under the jurisdiction of Panama is a factor of extreme importance in the commercial development of the whole of the Isthmus and the enlightened judgment of Your Excellency’s Government cannot fail to note the significance which this may acquire in unforeseen circumstances where situations might arise which would alter the state of peace which happily exists on this continent.”

For the reasons set forth, the Republic of Panama emphatically declares its inconformity with regard to the construction of the building which it is proposed to use as an airport of Pan American Airways, Inc., in the Canal Zone, and in an act of strictest justice requests the Government of the United States of America that the contractual rights of Panama be respected and that this new construction be suspended without delay, which construction, if terminated, would have the effect of prejudicing, indefinitely and permanently, vital interests of the Republic of Panama to which it has unquestionable rights because of its geographical situation and as a result of its condition as a Sovereign and Independent State.

Please accept [etc.]

E. Jaen Guardia
  1. Department of State Treaty Series No. 945, or 53 Stat. (pt. 3) 1807.
  2. Not printed.
  3. Mr. Welles reply indicated that the activities had been carried on for 12 years without any question from Panama (819.7962/51).
  4. Not printed.
  5. Signed November 18, 1903, Foreign Relations, 1904, p. 543.