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The Calvo and Drago Doctrines

Published online by Cambridge University Press:  04 May 2017

Amos S. Hershey
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Extract

Among the subjects scheduled for discussion at the third Pan-American conference, which met at Rio de Janeiro during July and August, 1906, was a resolution that the second peace conference at the Hague be requested to

consider whether and, if at all, to what extent, the use of force for the collection of public debts is admissible.

Type
Research Article
Information
American Journal of International Law , Volume 1 , Issue 1 , January 1907 , pp. 26 - 45
Copyright
Copyright © American Society of International Law 1907

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References

1 L. S. Rowe in the Independent for October 5, 1906. Dr. Rowe adds: “This feeling was strengthened by the fact that, prior to the meeting of the conference, the European press had exploited to the utmost the dangers incident to the enunciation of any such doctrine.”

2 From President Roosevelt’s recent message to Congress of December 4, 1906.

3 Of course there is no express or implied endorsement of the Calvo Doctrine contained in the above resolution. But in view of political and economic conditions and the teachings of publicists coupled with those of experience, there can be little question as to the state of public opinion on this subject in Latin America.

4 Calvo does not distinguish between armed and diplomatic or pacific intervention except as a matter of form. He condemns the latter as well as the former. See Le Droit International (5th ed.), i, §110, p. 267.

5 T. i, liv, iii. See especially §§185–206.

6 Op. cit., §205, pp. 350–351.

7 T. iii, liv, xv.

8 Op. cit., §1280, p. 142. A few pages above (§1278, p. 140), Calvo speaks of the frequent attempts to impose upon American states the rule that “foreigners merit more consideration, and regards and privileges more marked and extended, than those accorded even to the nationals of the country where they reside.” Elsewhere (t. vi, §256, p. 231), he observes: “It is certain that foreigners who establish themselves in a country have the same protection as nationals, but they can not lay claim to a protection more extended. If they suffer any ‘wrong they ought to expect the government of the country to pursue the delinquents, but they should not claim from the state to which the authors of the violence belong any indemnity whatever.”

9 Ibid., §§1281–1296.

10 Ibid., §1297, pp. 155–156.

11 T. vi, liv, xv, §256; cf. t. iii, §1271.

12 For the text of the Drago Note, See House Doc. of 58th Congress, 2d session (1903–04), pp. 1–5.

In a memorandum sent to Sefior Mérou in reply to this communication, Secretary Hay discreetly expressed neither assent to nor dissent from the propositions set forth by Sefior Drago, but he quoted two passages from recent messages by President Roosevelt to indicate the general position of the government of the United States: “The President declared in his message to Congress of December 3, 1901, that by the Monroe Doctrine we do not guarantee any state against punishment if it misconducts itself, provided that punishment does not take the form of the acquisition of territory by any non-American state;” and “in harmony with the foregoing language, the President announced in his message of December 2, 1902: ‘No independent nation in America need have the slightest fear of aggression from the United States. It behooves each one to maintain order within its own borders and to discharge its just obligations to foreigners. When this is done they can rest assured that, be they strong or weak, they have nothing to dread from outside interference.’ ” Secretary Hay closed this communication with a declaration in favor of arbitration in such cases.

13 So, e.g., the claims of Great Britain and Germany against Venezuela in 1902–03 were divided into three categories: 1, Those based upon the false imprisonment and bad treatment of British subjects and the seizure of British vessels; 2, losses of British and German subjects sustained during recent civil wars and revolutions; and 3, the claims of creditors, including not only ordinary bondholders but also a number of Britons and Germans whose investments had been guaranteed by the Venezuelan government. Also see an article by the writer, entitled The Venezuelan Affair in the Light of International Law in the American Law Register (May, 1903), vol. 42, n. s., pp. 250 ff.

14 This responsibility is to states rather than to indviduals. The individual, as such, has neither rights nor duties in international law other than those belonging to him as a citizen or subject to an international entity. On the theory of International Responsibility of States for Injuries Suffered by Foreigners, see two recent articles by M. Anzilotti in the Revue Générale de Droit International Public for 1906, pp. 5–29 and 285–309.

15 This does not apply to the judicial functionaries who are more or less independent of the executive in all modern well-regulated states. “All therefore that can be expected of a government in the case of wrongs inflicted by the courts is that compensation shall be made, and if the wrong has been caused by an imperfection in the law of such kind as to prevent a foreigner from getting equal justice with a native of the country, that a recurrence of the wrong shall be presented by legislation.” (Hall, Treatise (3d ed.) §65, p. 214.)

16 This is the general rule, but it is not, as we shall see, wholly without exception.

17 Bk. II, ch. 8., §103; cf. Bk. II, ch. 6, §§ 72 and 73.

18 Moore, Digest of International Law, vi, §987. Wharton, ii, §241.

19 For examples of such exceptions, see Moore, §§913–914, 986–993, 1021, and Wharton, §§230 and 242.

20 Mr. Evarts, Secretary of State, to Mr. Marsh. Wharton’s Digest, iii, p. 695.

21 The archives of the consulate had also been thrown into the street, the portrait of the queen of Spain defaced, and the Spanish flag torn to pieces.

22 Wharton’s Digest, ii. §226, p. 601; cf. Moore, vi, §1023, pp. 812–813.

23 This was notably so in the cases of the 43 Chinese killed and wounded at Rock Springs, Wyoming in 1885 and of the Italians lynched at New Orleans, in 1891. For these and numerous other cases, see Moore’s Digest, vi, §1026.

24 This rule is usually stated in language ascribed to Secretary Evarts: “A government is liable internationally for damages done to alien residents by a mob which by due diligence it could have repressed.” See Wharton’s Digest, ii, p. 602. But the absence of quotation marks in Wharton and a reference to Evarts’ dispatch in Moore’s Digest (see vol. vi, pp. 817–818) shows that Mr. Evarts did not use the language ascribed to him. It is, however, a good statement of an undoubted principle of international law if we add the words “and which it fails to punish.” The fact that our Federal government has sometimes been unable to secure justice for foreigners by reason of constitutional or statutory limitations does not affect its international responsibility.

25 Moore, op. cit. For the diplomatic activity of the United States in China, see the extremely able communication of the Chinese minister, Cheng Tsao Ju, to Secretary Bayard, on pp. 822–826.

26 On what constitutes a denial of justice, see especially, Moore vi, §986; Wharton, ii, §230; and Anzilotti, op. cit., pp. 21–23.

27 See, e.g., the case of Bain in Moore, op. cit., §1027.

28 See especially on this head, the recent article by Anzilotti in the R. D. I. P., rited above, pp. 18–20.

29 Wharton’s Digest, iii, §223. Secretary Seward to Count Wydenbruck in 1865. See Moore’s Digest, vi, pp. 885–886. cf. Wharton, pp. 577–578.

30 For numerous opinions of American statesmen, see Moore’s Digest, vi, §§1032—1049. cf. Wharton, iii, §§223–226.

31 See especially the notes of Prince Sehwartzenburg (Austrian) and Count Nesselrode (Russian) in reply to certain claims of the British government which were based upon injuries to British subjects during the revolutions in Tuscany and Naples in 1848. Cited by Pradier-Fodéré, i, §205, pp. 343–345 and Moore, op. cit., pp. 886–887.

32 See, e. g., Calvo, iii, §§1280 ff; Pradier-Fodéré, Traité, i, §§202 ff., 402 ff., iii, §§1363 ff.; Fiore, Droit Int. Pub. (Antoine’s trans.), i, §675; Wharton, iii, §223; Hall, Treatise (3d ed.), §65, pp. 218–219; Bluntschli, §380 bis; Funck-Brentano et Sorel, Précis, ch. 12, pp. 227–229; Taylor, §216; Oppenheim, i, p. 213; Bonfils (Fauchille), §§326 ff.; Liszt, §24, pp. 189–190; Pillét, Les Lois de la Gueire, p. 29; Weisse, Le Droit International appliqué aux Guerres Civiles, §14; Bar in R.D.I. for 1899, t. xxix, pp. 464–482. See Brusa in Annuaire for 1898, t. xvii, pp. 96–138 for arguments in favor of responsibility.

33 See especially the rules adopted by the Institute of International Law in 1900. Annuaire, xviii, pp. 254–256. cf. Moore’s Digest, op. cit., Pradier-Fodéré, iii, §1366, p. 237; Bar and Brusa, cited above.

34 Hall, §86, pp. 277–279; Phillimore, ii, pt. v, ch. 3, pp. 26–30; Rivier, i, liv, iv, ch. 2, §20, pp. 272–273; Calvo, i, §205, p. 350; Pradier-Fodéré, i, §405, pp. 620–623; Rolin-Jaequemyns in R. D. I., t. i (1869), pp. 145 ff.; F. de Martens in R. D. I., t. xix, p. 386 and in a recent pamphlet, entitled Par la Justice vers la Paix; Despagnet, Cours, §258; Kebedgy in R. D. I. P., t. i, p. 261, and Nys, ii, p. 225.

On April 17, 1903, the publicist Calvo, then representing the Argentine Republic at Paris, addressed a circular letter to a number of leading authorities on international law, asking for their views on the question raised by the Drago note. Of the ten opinions published in the Revue de Droit International (see R.D. I. for 1903, pp. 597–623), six (those of Passy, Moynier, Campos, Férand-Giraud, Weiss and Olivecrona) were in substantial agreement with the principals of the Drago note. Four (those of Westlake, Holland, Charmes and Fiore) were more reserved. While apparently not in absolute disagreement with the principles of the Drago note, they held either that it needed qualification or that the question was undecided. For a brief analysis, of these opinions, see Percy Bard well in the Green Bag for July, 1906, pp. 378–379.

35 Such is, e. g., the argument of G. W. Scott in the North American Review for October 5, 1906, pp. 603–604.

36 Señor Drago in note, cited above.

37 Except for the British intervention in Mexico, Egypt and Venezuela. But in all these cases those representing the government of Great Britain denied that they intervened primarily for the sake of the bondholders.

38 For the text of this circular, see Hall, note on pp. 278–279 (3d ed.), and Phillimore ii, t. v, ch. 3, pp. 27–28. In 1861, Lord John Russell, in a communication to Sir C. I. Wyke, stated that “it has not been the custom of Her Majesty’s government, although they have always held themselves free to do so, to interfere authoritatively on behalf of those who have chosen to lend their money to foreign governments.”

39 For the opinions of American statesmen on this head, see Moore’s and Wharton’s Digest, §§916, 918, 995–998; and §§231–232, respectively.

40 Moore’s Digest, vi, §995, p. 710. cf. Wharton, ii, §231, p. 656.

41 Wharton’s Digest, ii, pp. 658–659. But exceptions have been made in cases where diplomacy furnished the only means of redress, as in case of non-performance of a government contract, or arbitrary confiscation of vested rights, or of annulment of charters or concessions. For examples, see Moore’s Digest, vi, §§918, 996 and 997 and Wharton, ii, §232. “International commissions have frequently allowed claims based on the infraction of rights derived from contracts where the denial of justice was properly established,” Moore, p. 718.

42 From President Roosevelt’s recent message to Congress of December 4, 1906.

43 Among modern authorities on international law, who either deny the right of intervention or accept the principle of non-intervention with or without exceptions, the following may be cited: Bonfils (Fauchille) §§295–324: Heffter (Geffcken), §§44–46; Woolsey, §43; Wilson and Tucker, §41: Walker, Science, pp. 112, 151; De Floecker, De l’Intervention (1896), ch. 2, §3; F. de Martens, Traité, i, §76, pp. 394 ff.; Liszt, §7, pp. 60 ff., Despagnet, Cours, pp. 188 ff.; Funck-Brentano et Sorel, Précis, pp. 212–216; P. Fodéré, Traité, §355; Rivier, Principes, i, pp. 390 ff.; Nys, Le Droit Int. (1905), ii, pp. 182–193, especially p. 191; Merignac, Traité (1905), i, pp. 284 ff. Calvo is not among the champions of non-intervention. Several of the authorities above cited like P. Fodéré and Funck-Brentano et Sorel deny the legal character or validity of the principle of non-intervention as well as that of intervention. The view of the majority seems to be that the correct rule of international law is nonintervention, but that intervention is either legally or morally permissible in extreme and exceptional cases.

44 It differs from war in that a mere threat to use force is sufficient to constitute an intervention. In case of resistance, it almost inevitably leads to war.

45 Funck-Brentano et Sorel, Précis, pp. 212–216. For a brief exposition of this view, which is believed to be that of the most advanced publicists in Europe, see an article by Professor Georg Jellinek in 35 Am. Law Review, pp. 56–62.

46 Letters of Historicus by Sir W. Harcourt, p. 41.

47 Lawrance, Principles, pp. 121.

48 In a recent pamphlet, entitled Par la Justice vers la Paix, Professor F. de Martens calls special attention to the excessive and fraudulent character of many of these claims.

49 See Moore on Arbitration, i, pp. 692–693.

50 Moore, ii, pp. 1133 ff., 1156 ff.

51 Moore, ii, pp. 1319 ff.

52 These figures are taken from Latané’s excellent article on “The Forcible Collection of International Debts” in the Atlantic Monthly for October, 1906, p. 546.

53 This is based on a statement in the Outlook (1906), vol. 82, p. 104.

54 The wisdom of such a course is greatly strengthened by the decision of the Hague tribunal rendered on February 22, 1904, which granted the contention of the allies that they were entitled to preferential treatment in consequence of their coercion of Venezuela. For a recent thoroughgoing criticism of this decision, see a long article by M. Mallarmé in the Revue Générale D. I. P. for 1906, pp. 423–500.

55 Professor F. de Martens suggests the Hague tribunal as a suitable court for the arbitration of these claims, but in view of its decision in the Venezuela case, it would perhaps be better to retain the present system of mixed commissions.