1

hension of danger to the person and property of claimant; 1 removing the family of a loyal citizen surrounded by contending armies to a place of safety, though within the Confederate lines; 2 compulsory detention of the person and property of a loyal citizen in an insurrectionary state, his subsequent sale of property (horses) and the investment of the proceeds in cotton; 3 entering a Confederate arsenal as a workman without pay to avoid conscription, in fact, payment for the appointment, where the loyalty otherwise was established; yielding passive obedience to the de facto Confederate government in civil and local matters; 5 purchase by a non-resident alien of cotton in the disloyal states for ordinary business purposes through a commercial house within the enemy's lines and the acceptance and payment of drafts for the purchase price of the cotton; 6 writing an unsent letter to the head of the Confederate government offering the service of the writer, an alien resident; bribing a Confederate officer by giving him cotton to prevent the confiscation or destruction of the balance; 8 joining in a proposed blockade running enterprise which was not to be operated until the United States gave their sanction, such sanction not having been given; purchase of cotton by a non-resident alien through an agent in the enemy's territory, though he was engaged in blockade running; 10 subscribing money to a blockade running enterprise where it does not appear that the blockade was run or attempted to be run.11

9

1 Ayres v. The United States, 4 Ct. Cl. 422.

2 Hayden v. The United States, 4 Ct. Cl. 475.

3 Foster v. The United States, 5 Ct. Cl. 412. See also Spain v. The United States,

5 Ct. Cl. 598, these transactions not being in violation of the non-intercourse laws.

4 Koester v. The United States, 5 Ct. Cl. 642. Price v. The United States, 5 Ct. Cl. 706. Harrison v. The United States, 6 Ct. Cl. 323. 7 Medway v. The United States, 6 Ct. Cl. 421.

8 Coogan v. The United States, 7 Ct. Cl. 510. This transaction though invalid under the laws of the Confederacy was not thereby invalid under the laws of the United States.

9 Austell v. The United States, 7 Ct. Cl. 599.

10 Collie v. The United States, 9 Ct. Cl. 431; 94 U. S. 258. Blockade running in munitions of war intended for the Confederates would, however, be voluntary aid and comfort. Young v. U. S. (1877), 97 U. S. 39.

11 Hill v. The United States, 8 Ct. Cl. 470.

CHAPTER IV

FORFEITURE OF PROTECTION BY ACT OF CITIZEN-Continued. RENUNCIATION OF PROTECTION

EXPRESS RENUNCIATION BY CONTRACT

§ 371. The So-called Calvo Clause.

Naturalization abroad is perhaps the most binding form of contractual renunciation of citizenship and protection. A more subtle form of renouncing protection consists in the incorporation in contracts between the local government and a foreigner of a stipulation by which the foreigner agrees to bring his disputes and differences arising out of the contract before the local courts exclusively, with the further express or implied agreement that he renounces his right to call upon his own government for protection in all matters arising out of the contract. This form of contractual renunciation of diplomatic protection arises out of a doctrine advanced by the celebrated South American publicist, Calvo, and in its broadest sense it posits the principle that no nation ought to intervene, diplomatically or otherwise, against another, to enforce its citizen's private claims of a pecuniary naturea principle which has been resorted to frequently by the South American countries as a preventive measure of defense against the insistent demands of foreign countries for the payment of private claims due their citizens. In Calvo's work on international law, these principles are expressed as follows:

"America as well as Europe is inhabited today by free and independent nations, whose sovereign existence has the right to the same respect, and whose internal public law does not admit of intervention of any sort on the part of foreign peoples, whoever they may be." (5th ed., I, § 204, p. 350.)

He condemns armed and diplomatic intervention with equal severity (I, § 110, p. 267),

"Aside from political motives these interventions have nearly always had as apparent pretexts, injuries to private interests, claims and demands for pecuniary indemnities in behalf of subjects.... According to strict international law, the recovery of debts and the pursuit of private claims does not justify de plano the armed intervention of governments, and, since European states invariably follow this rule in their reciprocal relations, there is no reason why they should not also impose it upon themselves in their relations with nations of the new world." (I, § 205, pp. 350-351.)

"It is certain that aliens who establish themselves in a country have the same right to protection as nationals, but they ought not to lay claim to a protection more extended. If they suffer any wrong, they ought to count on the government of the country prosecuting the delinquents, and not claim from the state to which the authors of the violence belong any pecuniary indemnity." (VI, § 256, p. 231.)

"The rule that in more than one case it has been attempted to impose on American states is that foreigners merit more regard and privileges more marked and extended than those accorded even to the nationals of the country where they reside." (III, § 1278, p. 140.)

While the last two propositions were made with specific reference to redress for injuries arising out of civil war and acts of violence, the inference drawn from the whole text, read together with the general principle that foreigners are subject to the local law and must submit their disputes to local courts, has given the Spanish-American countries a basis to assert the doctrine that in his private litigation the alien must exhaust his local remedies before invoking diplomatic interposition and that in his claims against the state he must make the local courts his final forum. These states do generally, though not always, admit the rule that where there is a denial of justice, recourse to diplomatic interposition is permissible. They have written these principles into their constitutions, statutes and treaties, and in this form they will receive more critical attention in Chapter VII, in which we shall deal with the attempts by municipal legislation and by treaty to limit diplomatic interposition.

The whole doctrine of the final jurisdiction of the local courts over the claims of aliens, with a denial of the right to diplomatic recourse, has received the name of the Calvo doctrine. The so-called Drago

1 Calvo, Le droit international, §§ 204-5. On the Calvo Doctrine, see Amos S. Hershey, in 1 A. J. I. L. (1907), pp. 26-45; Percy Bordwell in 18 Green Bag (1906),

Doctrine and the Porter proposition adopted at the Hague Conference of 1907 have been examined under the general subject of contract claims.1

§ 372. Its Incorporation in Concession-Contracts in Latin-America.

Of the three principal classes of claims in which Latin-American States have sought to limit the diplomatic protection of foreigners, namely: first, claims arising out of injuries received in civil wars; secondly, claims based upon acts of violence and oppression, such as false arrest, imprisonment, and expulsion; and, thirdly, claims arising out of concession-contracts concluded with aliens, the subject of our present inquiry-the contractual renunciation of diplomatic protection arises generally in connection with concession-contracts granted by governments to foreigners, although there have occasionally been cases of personal injury or other forms of contract in which there has been an express waiver of the alien's right to national protection.

The European states having for the most part been unwilling to conclude treaties stipulating for the complete surrender of private claims of their citizens to the local courts, the Latin-American states, on the authority of Calvo and the general international law applied in Europe, have sought other means to attain their end and secure freedom from the constant employment of diplomatic measures of coercion to which they find themselves subject.2

This they have done by establishing certain limitations upon protection in their constitutions, laws, treaties and contracts with foreigners. They assert the right to do this on the legal grounds of independence, sovereignty, complete territorial jurisdiction and the principle, generally recognized, that individuals who establish them377-382; Edgington, T. B., The Monroe doctrine, Boston, 1904, pp. 218-260; Crichfield, G. W., American supremacy, New York, 1908, Vol. II, 39 et seq.

1 Supra, §§ 119 et seq.

2 Pradier-Fodéré, I, §§ 204–5; Calvo, I, §§ 204-5; Despagnet, Cours de droit international public, 2d ed., 1899, p. 197; 2 R. G. D. I. P. (1895), 341.

As early as 1852 the Venezuelan Government had endeavored to obtain an agreement among the Latin-American states not to recognize any of the claims presented by foreign governments in matters of private interest. Mr. Leocardio Guzman was charged at Lima and other capitals with a mission whose object was, it was said, to prepare an entente of the American states on this point. Annuaire des deux mondes, Vol. 3, 1852-3, p. 749, cited in 4 R. G. D. I. P. (1897), 227–228.

ITS INCORPORATION IN CONCESSION-CONTRACTS IN LATIN-AMERICA

795

selves in a foreign state must submit to the local law. In this contention they are supported by some well-known publicists, particularly Calvo,1 Pradier-Fodéré,2 Bluntschli,3 Seijas, and Fiore.5

Since 1886 many of these states have incorporated into their constitutions and laws a provision that every contract concluded between the government and an alien shall bear the clause that the foreigner renounces all right to prefer a diplomatic claim in regard to rights and obligations derived from the contract," or else that "all doubts and disputes" arising under it "shall be submitted to the local courts without right to claim [the] diplomatic interposition of the alien's government." 6

1 Calvo, I, §§ 204–5, pp. 350-351, § 1278 et seq., III, 140 et seq., VI, § 256, p. 231. 2 Pradier-Fodéré, §§ 204-205; §§ 402-403, § 1363 et seq. "But in regard to the duty of protecting its nationals, we must posit certain rules. We must remember that when individuals establish themselves in a foreign country, they submit tacitly to its laws, and must make use of the means of redress open to the inhabitants, without being placed in a better position than natives of the country. . . . When the local courts have decided a case, the alien and his government cannot complain, if the alien has not been the victim of violations of international law, of arbitrary procedure or denial of justice on the part of the local authorities, of odious discriminations, of penalties harsher than those inflicted on nationals . . . and finally, if there has been no violation of the provisions of public treaties in force between the two governments. (§ 403.)

3 Bluntschli, Le droit international codifié, 5th ed., by C. Lardy, Paris, 1895, §§ 380, 386, 388.

Seijas, El derecho international, III, p. 308 et seq.; IV, pp. 507–514 and opinions there cited.

5 Fiore, P., Nouveau droit international public, Paris, 1885, Antoines' translation, §§ 648-657.

Fiore believes that protection is unjustifiable when its object is to obtain for subjects abroad a privileged position. He holds that if, for reasons of State, the constituted authorities of a country enact measures applying to the whole population, but which may seem harsh to foreigners, foreign governments have no right to endeavor to relieve their subjects in such cases from burdens which all the inhabitants must bear (§ 648). He justifies protection of the interests of an individual only where the foreign government acts arbitrarily towards the alien in violating a principle of law, i. e., only when it deprives aliens of the enjoyment of civil rights, etc. (§ 649).

Antoine, Fiore's translator, believes that when a state treats aliens in a prejudicial manner by laws which are in derogation of the usage of civilized countries of our time, intervention is legitimate. He thus justifies the intervention of France in 1838 in Buenos Ayres and Mexico.

• Ecuador, constitution, Art. 38, Rodriguez, American Constitutions, II, 283,