The Calvo Clause

The Calvo Clause: A Problem of Inter-American and International Law and Diplomacy

Donald R. Shea
Copyright Date: 1955
Edition: NED - New edition
Pages: 340
https://www.jstor.org/stable/10.5749/j.ctttt1ms
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  • Book Info
    The Calvo Clause
    Book Description:

    The Calvo Clause was first published in 1955. The Calvo Clause and the Calvo Doctrine from which it stems concern a controversial issue in Latin American relations. This account, therefore, is of particular significance to diplomatic personnel, political scientists, students of Latin American history, and specialists in international law. Businesspeople conducting enterprises in Latin American countries will find the book of practical value. The Calvo Doctrine is based on the theories of Carlos Calvo, a nineteenth-century Argentinian, who sought to establish the principles that sovereign states enjoy the right to freedom from interference by other states and that aliens are not entitled to rights or privileges not accorded to nationals, and that they may therefore seek redress for grievances only from local authorities. Although Calvo’s concepts failed to win acceptance by international lawyers in the United States or Europe, they were enthusiastically received in Latin America. Many contracts executed in Latin American countries with aliens contain the Calvo Clause, binding the alien to local redress and obliging him or her to forgo the right of appeal for diplomatic protection in case of dispute arising from the contractual relationship. Professor Shea outlines the origins of the Calvo Clause, presents the attitudes of the various governments, discusses the views aired at inter-American conferences, presents the legal issues, analyzes in detail the arbitral decisions, and predicts future developments. He is the first writer on the subject who makes full use of source materials in Spanish as well as in English, thus presenting both United States and Latin American viewpoints.

    eISBN: 978-0-8166-6444-3
    Subjects: Political Science

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Preface
    (pp. vii-x)
    D. R. S.
  3. List of Abbreviations
    (pp. xi-xii)
  4. Table of Cases
    (pp. xiii-xiv)
  5. Table of Contents
    (pp. xv-2)
  6. I Introduction
    (pp. 3-8)

    International law, like all systems of law, evolves to meet conflicts of interest. In few areas of relations on the international level is there a more real clash of interests than in the relations between the state and citizens of foreign states. Although the international law governing the settlement of conflicts of interest in this area is one of the most highly developed branches of that law, it is, paradoxically, also one of the most highly controversial.

    When a citizen of a state resides and does business in a foreign country, he becomes subject to a conflict of jurisdictions. Under...

  7. II The Origins of the Calvo Clause
    (pp. 9-32)

    An understanding of the Calvo Clause controversy in its contemporary manifestations is dependent upon a knowledge of the historical conditions surrounding its inception and evolution.

    The Calvo Clause has existed as a legal and diplomatic problem for about eighty years. It is closely related to, and a result of, the development and exploitation of the natural resources in the underdeveloped regions of the world that occurred in the latter part of the nineteenth century and the early part of the twentieth. In some areas of the world this exploitation took the form of outright colonization in various forms and degrees....

  8. III Governmental Attitudes toward the Calvo Clause Controversy
    (pp. 33-61)

    In the investigation of an international law problem, it is imperative to give ample attention to the official attitudes of the governments of the world. Since there is no international legislature to formulate the basic rules governing relations in the world community, these rules are determined, in the first instance, by the positions taken by the various foreign offices.

    As indicated earlier, the Calvo Clause controversy has figured in a relatively large amount of diplomatic correspondence and international negotiations. Including the Latin American republics and the United States, some forty-one governments have had occasion in the past few decades to...

  9. IV The Calvo Clause before Inter-American Conferences
    (pp. 62-105)

    An important aspect of the Calvo Clause controversy is the major role that the Clause and its underlying principles have played in inter-American diplomacy. As was noted previously, the controversy over the validity of this concept has been rather uniquely American, in that the United States on the one hand and the Latin American republics on the other have been the principal disputants. It is not surprising, then, that the Latin Americans have exerted their greatest efforts through inter-American diplomacy in their struggle to restrict, or if possible eliminate, the institution of diplomatic protection. The Latin American states are, quite...

  10. V The Legal Issues Involved
    (pp. 106-120)

    The present status of the Calvo Clause and its underlying principles in inter-American diplomacy has been detailed in the previous chapter. There remains the task of determining the precise status of the Calvo Clause under the rules of international law as generally recognized and practiced. In this investigation, primary attention will be devoted to an analysis of the international decisional law that has involved this concept. However, in order properly to understand and interpret the complex role that the Clause has played in international jurisprudence, it is necessary first to examine briefly the legal issues involved in this controversy.

    Charles...

  11. VI Arbitral Decisions Involving the Calvo Clause up to 1926
    (pp. 121-193)

    Although the international law governing the responsibility of states for injuries to aliens is one of the most highly developed branches of that law,¹ neither the Permanent Court of International Justice, nor the International Court of Justice has had occasion to rule on the validity of the Calvo Clause.² However, the practice of setting up mixed claims commissions for the adjudication of claims presented by states for injuries to their nationals in other states — a practice that has become very frequent in the course of the last century and a half — has provided an abundant body of case...

  12. VII The North American Dredging Company Case
    (pp. 194-230)

    The period between 1923 and 1934 saw the creation and functioning of the various Mexican claims commissions. The creation of these commissions between Mexico and some six other nations represented, in a way, the climax of Mexico’s long history of being involved in international reclamations. The history of Mexico is, in the words of a famous Mexican scholar, “the history of the foreign claims brought against our country.”¹

    A. H. Feller, who has given special study to this subject, has stated:

    The subject of the claims of foreign nationals plays a more important part in the history of the foreign...

  13. VIII Arbitral Decisions Involving the Calvo Clause since 1926
    (pp. 231-257)

    The true significance and impact of theDredgingcase is evidenced by the marked influence that it has had on subsequent adjudications that have involved the Calvo Clause. The Clause has figured in seven international arbitrations since the 1926 decision, all coming before the various Mexican claims commissions in the second and third decades of this century.

    The approach in analyzing this decisional law will be the same method used previously. In each case, the objective will be to determine the precise degree of effectiveness accorded to the Calvo Clause, and also the rule formulated as the basis for the...

  14. IX The Future of the Calvo Clause
    (pp. 258-288)

    The basic objective of this study has been to determine the rule of law on the Calvo Clause. In order to achieve this objective, attention was directed toward the three chief law-determining agencies — governments, courts, and publicists. This has involved an examination of the diplomacy, jurisprudence, and legal publications that have dealt with this problem. Since the Calvo Clause has been peculiarly an American problem, with the Latin American nations the chief advocates of this principle and the United States the chief protagonist of the opposition, major emphasis has been placed on evidence adduced from the law-determining agencies in...

  15. Select Bibliography
    (pp. 291-306)
  16. Index
    (pp. 307-323)