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Some of the material on the Calvo Clause, including the case law, is rather confusing. However, a few conclusions may be drawn and suggested.
An important principle is that the right of the national State of an alien to exercise diplomatic protection, in the appropriate circumstances, where the alien has by agreement promised not to seek the protection of his national State, remains unaffected. On the basis that at international law the right violated when one State injures a national of another State is that of the national State of the alien, the right of the national State to protect the alien remains vested in the national State and cannot be taken away by an act of the alien. Thus, the Calvo Clause does not affect the rights of the national State of the alien. While this result, according to some, is produced by reliance on a legal fiction, the fact of the matter is that this is the manner in which international law regards the situation and the result must be recognized.
It is no answer to argue that the alien has breached a binding promise he has made not to seek the protection of his national State if he has, as is usually the case, approached his national State for protection, and that, therefore, the national State of the alien may not exercise protection. It is recognized that the alien's breach of promise does not affect the right of his national State.
Another way of approaching the problem is to ask whether in breaking a promise the alien has created a situation as a result of which his national State does not come with clean hands (mains propres) to exercise diplomatic protection. Clearly, international law, as it stands now, either does not interpret the breach of promise as infecting the hands of the national State or may not regard the doctrine of ‘clean hands’ as relevant to diplomatic protection, where it is applied to the condition of the alien being protected. 69
(p. 210) To regard the alien's promise not to seek diplomatic protection as effectively taking away the right of his national State to exercise diplomatic protection would require a complete change in the law. In any case there remains the delicate question whether the right of the national State to exercise diplomatic protection may be taken away by a promise made by the alien, where he does not actively seek the protection of his national State and cannot be proved to have done so. The accepted position in international law is that, regardless of whether the alien sought protection, the right of the alien's national State to exercise diplomatic protection remains unaffected. The premise underlying the law of diplomatic protection that it is the State's right that is violated when one of its nationals is injured by another State in his person or in his property holds good for this purpose, although it is not the only premise of the law.
What the Calvo Clause does do is to have an effect at the national level of remedies. It preserves the right of the host State to have the alien exhaust local remedies in its territory. This would seem to be superfluous, because the duty to exhaust remedies exists anyway, unless it is waived. Nevertheless, this is the clause's effect. On the other hand, the presence of a Calvo Clause is an indication that the rule of local remedies has not been waived.
Another effect in respect of local remedies in the host State is that, where a compromis for the settlement of disputes between the national State and the host State excludes only generally the local remedies rule, the interpretation of the compromis may lead in the context to the situation that the requirement in the Calvo Clause is superior to that exclusion and trumps it. Local remedies must in such a case have been exhausted by the alien pursuant to the Calvo Clause before an international forum can take up his case consequent upon the exercise of diplomatic protection, on the basis that the parties intended this, even though the compromis may appear to provide differently. This view taken in the cases could seem to be illogical, because the view may be taken that the host State has knowingly renounced its rights under the local remedies rule in the compromis— this being so whether the compromis was entered into after or before the provisions of a Calvo Clause became effective. Moreover, the compromis is an international instrument and, when the host State's rights are knowingly renounced in it, the provisions of the instrument should prevail over the Calvo Clause in a contract. The international cases have, however, taken a different direction by constructively interpreting the compromis in the context. This leaves room for a different interpretation in an appropriate situation. 70
(p. 211) Further, the alien is precluded by submitting to the insertion of a Calvo Clause in his contract from resorting to remedies in other national internal courts than those of the host State. Thus, while there may be restraints imposed by the operation of the rules of sovereign immunity, even in the absence of these, the alien may not resort to other national courts for satisfaction.
It may also be noted that the Calvo Clause does not generally apply to injuries other than those caused by breach of the contract in which it appears, such as tortious injuries. However, it is possible that the clause may be formulated in such a way that it is intended to have the widest coverage. In whatever way it is framed, for the exercise of diplomatic protection, the requirement would be: (i) a denial of justice after resort to local remedies in contractual claims against the host State's agencies followed by exhaustion of local remedies, and (ii) in the case of non-contractual injuries by the host State the exhaustion of local remedies by the alien in respect of those injuries.
The clause does not require the alien to have secured an affirmative award before his State may exercise diplomatic protection. To require an affirmative award after exhaustion of local remedies would make nonsense of the concept of diplomatic protection. It is precisely because the alien has not received due satisfaction that diplomatic protection is exercised. All that is required is that the alien not be granted satisfaction after he has exhausted local remedies, whether there is an affirmative or negative award.
The manner in which the international law surrounding the Calvo Clause has developed emphasizes to a large extent the rights of the national State of the alien as the injured party—but this only in order that the alien may not be deprived of protection. Though the Calvo Clause relates to the exhaustion of local remedies, the rules relating to which pay attention to the alien as the person whose rights have been violated, international law has not developed in such a way as to permit the alien to exclude effectively his national State from exercising its protection based on the premise that it is its rights that have been violated. Nor has international law given precedence to the interests of the host State in avoiding the exercise of diplomatic protection by the national State, while it does emphasize those interests by confirming the exhaustion of local remedies rule. It is by particular recognition of the rights of the national State of the alien that international law has been able to afford the alien an overriding protection. This is so even though, to satisfy the interests of the host State, it has been held that in principle a Calvo Clause in a contract trumps and nullifies a general waiver of the local remedies rule in the compromis for international judicial settlement and, as has been suggested, in any case prevents that alien from seeking redress in any other national forum than that of the host State.
Notes:
(1) Shea, The Calvo Clause: A Problem of Inter-American and International Law and Diplomacy (1955) 12.
(2) Hersley, ‘The Calvo and Drago Doctrines’, 1 AJIL (1907) 26.
(3) 6 Le Droit International: Théorique et Pratique (1896) 231. Translation to be found in Shea (note 1above), 18–19.
(4) See Calvo (note 3 above) 322 ff.
(5) See particularly on the Calvo clause Shea (note 1 above); Lipstein, ‘The Place of the Calvo Clause in International Law’, 22 BYIL (1945) 130; Ténékidès, ‘Considerations sur le Clause Calvo’, 43 RGDIP (1936) 270; O'Connell, 2 International Law (1970) 1059 ff, and other works cited therein 1060 footnote 26; and now Dugard, ‘Third Report to the ILC on Diplomatic Protection, Addendum’ (2002),UN Doc A/CN.4/523/Add.1.
(6) See O'Connell (note 5 above) 1059–60; Eagleton, The Responsibility of States in International Law (1928) 168; Geck, ‘Diplomatic Protection’, 1 EPIL (1992) 1058; Dunn, The Protection of Nationals: A Study in the Application of International Law (1932) 169; Lipstein (note 5 above) 131–4. The clause may be included in the host State's legislation: see O'Connell (note 5 above) 1064.
(7) García-Amador, ‘State Responsibility. Some New Problems’, 94 Hague Receuil (1958-II) 455–6(hereafter referred to as ‘State Responsibility’); García-Amador, ‘International Responsibility, Third Report’, 2 YBILC (1958) 58, Document A/CN.4/111 (hereafter referred to as ‘Third Report’).
(8) García-Amador, ‘State Responsibility’ 456.
(9) See the conflicting views of García Amador, ‘State Responsibility’ 458 and Dugard (note 5 above) 15.
(10) Shea (note 1 above) 269–79.
(11) Ibid 37–45.
(12) 3 Bases of discussion (Doc C.75.M.69.1929.V): ‘Responsibility of States for Damages Caused in their Territory to the Person or Property of Foreigners’, Question XI (d), 133–5.
(13) (1926, USA v. Mexico), 4 UNRIAA 26. Hereafter referred to as the Dredging Co Case.
(14) Note 12 above 134. On State practice see also Dugard (note 5 above) 8.
(15) Gomez Robledo, La Cláusa Calvo ante el derecho international (1939) 176; Sépúlveda Gutiérrez, La responsbilidad internacional del estado y la validez de la Cláusula Calvo (1944) 69–71.
(16) Shea (note 1 above) 217–18; Freeman, The International Responsibility of States for Denial of Justice (1938) 489–90; Brownlie, Principles of Public International Law (1998), 548–9; Jennings and Watts (eds), 1 Oppenheim's International Law (1992) 931.
(17) Lipstein (note 5 above) 145; Freeman (note 16 above) 489–90; Quoc Dinh, Droit International Public (Daillier and Pellet (eds)) (1999) 778 (para 492); Feller, The Mexican Claims Commission 1923–1934. A Study in the Law and Procedure of International Tribunals (1935) 192.
(18) Shea states: This much effectiveness cannot be denied, for the six recent arbitral rulings can be cited in support of it. Perhaps this is the full effectiveness of the Clause … Consequently, if future conventions conform to what would appear to be the recent trend in international arbitration [of waiving the local remedies rule in the compromis ] then the Calvo Clause, even if restricted in effectiveness to overcoming a general waiver of the local remedies rule contained in the compromis, will continue to have a determinative effect on the admissibility of international claims. ((note 1 above) 260)See also ibid 215, 217, 257.
(19) Jimenez de Aréchaga. ‘International Responsibility’; in Sørensen (ed), Manual of public International Law (1968) 591; García Amador, ‘State Responsibility’, 459–60; Jessup, A Modern Law of Nations (1968) 11, 117; Shea (note 1 above) 261–3.
(20) Eagleton (note 6 above) 170; Borchard, The Diplomatic Protection of Citizens Abroad (1915) 809; Quoc Dinh (note 17 above) 778; García Amador, ‘State Responsibility’, 460.
(21) Brownlie (note 16 above) 549.
(22) Jimenez de Aréchaga (note 19 above) 591–2; Freeman (note 16 above) 489–90; O'Connell (note 5above) 1064; Shea (note 1 above) 217–18.
(23) Thus, see García Amador, who, on the one hand, acknowledges
that whatever form it may take, the ‘Calvo Clause’ invariably relates to a contractual relationship, and only operates with regard to disputes concerning the interpretation, application or performance of the contract or concession (‘State Responsibility’ 456)
but states, on the other hand, that:
in principle, the ‘Clause’ is valid as a bar to the exercise of diplomatic protection even in cases of ‘denial of justice’. It is not to be overlooked that it operates only with regard to disputes concerning the interpretation, application of performance of contracts or concessions. In this sense, only a specific case of denial of justice would be involved, not all the cases where some other rights of the alien or interests of another kind could be affected. At first sight, this exception to the principle which governs international responsibility for acts and omission of this nature might appear unjustified. In reality, however, it is not unjustified. Contractual interests and rights are not, so to speak, in the same class as the other rights enjoyed by the alien in international law. Not only are they of an exclusively monetary character, but the alien acquires them by virtue of a contract or concession, the acceptance of which depends solely on his own volition. With this reasoning one does not seek to minimize the importance of this category of rights and interests, but to stress that, by their very nature, they can form the subject of an infinite variety of operations and transactions which can be effected merely by the consent of the contracting parties. In brief, these are rights and interests in respect of which the alien may waive diplomatic protection in whatever terms he considers most conducive to the acquisition of the benefits which he expects to derive from the contract or concession. (ibid458)
On the different meanings of denial of justice see C F Amerasinghe, Local Remedies in International Law (2004) 84 ff. García Amador submits, drawing on the opinion of Shea (note 1 above) 265, that the Calvo clause requires proof of an aggravated form of denial of justice before an international claim may be brought. He finds support for his view, he argues, in the cases: ‘State Responsibility’ 459. This conclusion is, however, suspect. While a denial of justice may be required, there is no reason for it to be aggravated.
(24) O'Connell (note 5 above) 1065.
(25) For these attempts at codification and the US's position see the account of the 1902 (2nd), 1933 (7th) and 1948 (9th) International Conferences of American States in Dugard, loc. cit. (note 5 above) 4–5.
(26) ‘Responsibility of States for Damage done in their Territories to the Person or Property of Foreigners’: see 20 AJIL (1926) 182–5 (Special Supplement).
(27) Draft Convention on Responsibility of States for Damage Done in their Territory to the Person or Property of Foreigners. Article 17 of the Draft provided:
A State is not relieved of responsibility as a consequence of any provision in its own law or in an agreement with an alien which attempts to exclude responsibility by making the decisions of its own courts final; nor is it relieved of responsibility by any waiver by the alien of the protection of the State of which he is a national. (see 23 AJIL (1929) 202–3 (Special Supplement))
(28) See García Amador, ‘First Report on State Responsibility’: (ILC), 2 YBILC (1956) 223–5. The relevant bases for discussion are Nos 26, 27, 5 and 6, which provide:
1. (26.) An undertaking by a party to contract that he will not have recourse to the diplomatic remedy does not bind the State whose national he is and does not release the State with which the contract is made from its international responsibility. If in a contract a foreigner makes a valid agreement that the local courts shall alone have jurisdiction, this provision is binding upon any international tribunal to which a claim under the contract is submitted; the State can then only be responsible for damage suffered by the foreigner in the cases contemplated in bases of discussion Nos. 5 and 6.
2. (27.) Where the foreigner has a legal remedy open to him in the courts of the State (which term includes administrative courts), the State may require that any question of international responsibility shall remain in suspense until its courts have given their final decision. This rule does not exclude application of the provision set out in cases of discussion Nos. 5 and 6.
3. (5.) A State is responsible for damage suffered by a foreigner as the result of the fact that: (1) he is refused access to the courts to defend his rights; (2) a judicial decision which is final and without appeal is incompatible with the treaty obligation or other international obligations of the State; (3) there has been unconscionable delay on the part of the courts; (4) the substance of judicial decision has manifestly been prompted by ill-will towards foreigners as such or as subjects of a particular State.
4. (6.) A State is responsible for damage suffered by a foreigner as the result of the courts following a procedure and rendering a judgment vitiated by faults so gross as to indicate that they did not offer the guarantees indispensable for the proper administration of justice.
(29) The references are to destruction of, damage to, or loss of property; deprivation of use or enjoyment of property; deprivation of means of livelihood; and loss or deprivation of enjoyment of rights under a contract or concession.
(30) See 55 AJIL (1961) 578–9. According to Article 22 (1), the word ‘claimant’ refers to the injured alien.
(31) Basis of discussion No V (2) (b): see García Amador (note 28 above) 220. Emphasis in original.
(32) ‘Responsibility of the State for Injuries Caused in its Territory to the Person or Property of Aliens: Revised Draft’, Article 19: 2 YBILC (1961) 48, UN Doc A/CN.4/134 and Addendum. See further on the history of this subject before the ILC, Graham, ‘The Calvo Clause: Its Current Status as a Contractual Renunciation of Diplomatic Protection’, 6 Texas International Law Forum 297–300.
(33) Dugard (note 5 above) 2.
(34) See the Report of the ILC (2002) 162.
(35) Ibid 162–4.
(36) Ibid 164.
(37) The Day & Garrison Case (1885, USA v Venezuela); Moore, International Arbitrations 3548; the Woodruff Case (1903, USA v Venezuela), 9 UNRIAA 213; the Turnbull Case (1904, USA v Venezuela), 9ibid 305; the Orinoco Steamship Co Case (1903, USA v Venezuela), 9 ibid 193 ff; the Martini Case (1903, Italy v Venezuela), 10 ibid 644.
(38) The Dredging Co Case (1926, USA v Mexico), 4 UNRIAA 25. This case was reargued in 1947 when the validity of the Calvo Clause was rejected in the context. See also Nielsen (dissenting) in the International Fisheries Co Case (1931, USA v Mexico), 4 ibid 703 ff. However, the original ruling of law in the Dredging Co Case (1926) has been subsequently respected and accepted.
(39) Each Calvo Clause is to be treated on its merits in order to determine its validity and effect: the Mexican Union Ltd Railway Case (1930, GB v Mexico), 5 ibid 125.
(40) This is implied in the cases: see, eg, the Martini Case (1903, Italy v Venezuela), 10 ibid 644; the Woodruff Case (1903, USA v Venezuela), 9 ibid 213; the International Fisheries Co Case (1931, USA v Mexico), 4 ibid 691.
(41) The Dredging Co Case (1926, USA v Mexico), 4 ibid 29. The reason for this is based on the concept that when an alien is injured by a violation of international law, the injury is a violation of the national State's rights.
(42) 3 Bases of Discussion (note 12 above) 134.
(43) See the Orinoco Steamship Co Case (1903, USA v Venezuela), 9 UNRIAA 200; and, by implication, the Turnbull Case (1904, USA v Venezuela), 9 ibid 261.
(44) The Turnbull Case (1904, USA v Venezuela), 9 ibid 304.
(45) Lipstein takes the view that the Calvo Clause does no more than incorporate the local remedies rule: (note 5 above) 130 ff.
(46) The Martini Case (1903, Italy v Venezuela), 10 UNRIAA 644; the Selwyn Case (1903, GB v Venezuela), 9 ibid 380; the American Electric & Manufacturing Co Case (1904, USA v Venezuela), 9ibid 145.
(47) (1926, USA v Mexico), 4 ibid 30.
(48) The Martini Case (1903, Italy v Venezuela), 10 ibid 644.
(49) (1928, France v Mexico), 5 ibid 327.
(50) The Georges Pinson Case The Rudloff Case (1903, USA v Venezuela), 9 ibid 244.
(51) The McNeill Case (1931, GB v Mexico), 5 ibid 135.
(52) (1926, USA v Mexico), 4 ibid 29.
(53) Shea (note 1 above) 217.
(54) See by implication Lipstein (note 5 above) 134; O'Connell (note 5 above) 1066.
(55) By bodies established under the American Convention on Human Rights and the International Covenant on Civil and Political Rights. This is a footnote in the text cited.
(56) According to Rudolf Dolzer, ‘International practice confirming the Calvo Doctrine is nowhere visible, and the legal opinions of the Western capital-exporting nations definitely refute the argument that all major groups affected have consented to a change in customary law over the Calvo Doctrine’, in ‘New Foundation of the Law of Expropriation of Alien Property’, 75 AJIL (1981) 571. That the Calvo Clause has not been repudiated by legal opinion in the United States is illustrated by Reavis v Exxon Corporation, United States, New York Supreme Court, Special Term, New York County (Gellinoff J), decision of 28 July 1977, reported in 66 ILR (1984) 314, in which the court seriously considered, but did not apply, the Calvo Clause. This is in a footnote in the cited text.
(57) Dugard (note 5 above) 15.
(58) Chap II, Article 2, para 2 (c).
(59) General Assembly Resolution 1803 (XVII), para 4.
(60) Decision No 24 on the Common Regime of Treatment of Foreign Capital and of Trademarks, Patents, Licenses and Royalties, 30 November 1976, Article 51: 16 ILM (1976) 153.
(61) Decision No 220 on the Andean Code on the Treatment of Foreign Capital and on Trademarks, Patents, Licenses and Royalties, 11 May 1987, Article 34: 27 ILM (1987) 986.
(62) Decision No 291 on the Common Code for the Treatment of Foreign Capital and on Trademarks, Patents, Licenses and Royalties, 21 March 1991, Article 10: 30 ILM (1991) 1291.
(63) (1965), 575 UNTS 164.
(64) 25 ILM (1985) 1598.
(65) Eg, Article 26 of the ICSID Convention, (1965), 575 UNTS 164.
(66) 32 ILM (1993) 605.
(67) For this kind of practice and its implications for the local remedies rule see C F Amerasinghe (note23 above) 267 ff.
(68) See Report of the ILC (2006) 73–4.
(69) On the ‘clean hands’ doctrine and its relevance to diplomatic protection see below Chapter 13.
(70) Logic may not always produce a desirable solution. Interpretative justice, on the other hand, may support an acceptable policy value which gives the host State more protection. However, there is no hard and fast rule that a Calvo Clause inherently and incontrovertibly trumps a provision relating to local remedies in the compromis. The conclusion reached on the matter depends on the circumstances of each case. A compromis could contain a provision drafted in such a manner as to render Calvo Clauses ine. ective in regard to the requirement that local remedies should be exhausted.
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