The Calvo clause
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CARLOS CALVO
(1822-1906)
Carlos Calvo was born in Montevideo on February 26, 1822; however, he grew up in
Buenos Aires where he studies and obtains Argentine nationality.
Diplomat, he began his career in 1852 in Montevideo as vice-
consul, then consul general and chargé d'affaires of Argentina. His talents in
negotiators are noticed very early by Paraguay, which entrusts him with his
representation in the United Kingdom in the famous Canstatt dispute
(1859). The diplomatic triumph of Calvo will lead to the first of his
Question Canstatt: official documents exchanged between the
Legation of the Republic of Paraguay and the government of Her Majesty
British, in 1861.
Founding member of the Institute of International Law of Ghent (1874),
associate member of the Academy of Moral and Political Sciences of
the Institut de France (1892) and decorated by the French government with the
Officer's Cross of the Legion of Honor in 1865, then of that of
Commander in 1886 and Grand Officer in 1888, lawyer and diplomat,
Carlos Calvo served as Argentina's ambassador until 1905. He died.
in Paris on May 3, 1906. His doctrine will outlive him.
Carlos Calvo and International Law
For Carlos Calvo, international law is "one of the most precious fruits
of civilization: for it has become one of the foundations of the organization of
societies, and consequently an essential element of the harmonious functioning of
humanity. It claims Latin America as a civilized society that
contributes to international law, in the face of Europe that still considers it
between primitive state and civilization, between ignorance and despotism.
Thus, in the patriotic spirit of proving the Latin American progress,
Carlos Calvo compiled two historical compilations: the first, a Collection
completion of treaties, conventions, capitulations, armistices and other acts
diplomatic relations of all the states of Latin America since the conquest
(1862); the second, of the Historical Annals of the American Revolution
from 1808 until the recognition of its independence (1867). For
Albert de La Predelle(cited by Antonio Gomez de Robredo), Carlos Calvo
observe the facts and possesses the sense of historical method and
documentary; the documents are indeed at the heart of precision with
which Carlos Calvo addresses international law.
Although the works of Carlos Calvo are numerous, his Law
international theoretical and practical (published for the first time in 1868)
remains his most famous publication. Cited by internationalists of
whole world, this work contains the principles of its doctrine: the law
absolute freedom against the interventions of great powers
claiming their international right to protect their nationals, and
the equality between nationals and foreigners.
The principle of non-intervention
The doctrine of Carlos Calvo is based on the principles of sovereignty.
national, of equality between States and of the exercise of jurisdiction
state territorial. States - free, sovereign and equal - possess the
right to refuse any foreign interference. This first principle of the
Calvo's doctrine condemns both the use of armed force and the use of ...
of diplomatic protection by a country in favor of its nationals.
A state thus has the exclusive authority to judge matters concerning
all persons residing in its territory without any intervention
a foreign power.
This principle is expressed by a clause called the 'Calvo clause' which
involves the renunciation of foreigners to the diplomatic protection of their
country of origin, thus submitting to the courts and national laws.
Although the 'Calvo clause' is often referenced as a clause
contractual, it was incorporated, in Latin America, into many
National constitutions, which guarantees its general applicability and
preferential over all other legal instruments.
However, Carlos Calvo's doctrine does not advocate for an abolition.
absolute diplomatic protection, but limits its scope: the State can
defend its nationals when they are the subject of arbitrary prosecutions
or prejudices, including if the mistreatment or damages do not
are not directly the responsibility of the host country but that the latter has nothing
tries to oppose it. In these cases, intervention is justified: the State
to which the victim belongs has the right to seek compensation for
the injustice, a compensation and, depending on the circumstances, guarantees against the
renewal of similar acts.
The principle of equality between nationals and foreigners
The second principle of the Calvo doctrine establishes that foreigners do not
merit no more consideration, attention, and privileges than those
suitable for the inhabitants of the country where they reside. That a state promotes the
foreigners more than its nationals is 'intrinsically contrary to the law
of equality of nations and very harmful due to its practical consequences;
"first and foremost sovereignly unjust" [Theoretical international law and
practice, T. I, 1880, p. 431]. States are therefore not responsible for
losses or damages suffered by foreigners during times of unrest
interiors or civil wars. A state cannot claim for its
subjects established in another country the advantages and rights of which
the nationals themselves do not enjoy.
Carlos Calvo condemns the abuses committed by powerful nations that
impose on small states obligations different from those that they
memes grant them. Thus, a State should not claim at the
others a privileged situation that he is not willing to grant to his
own foreigners. This principle of the Calvo doctrine therefore involves two
acceptations: on one hand, it is a principle of equality between nationals and
foreigners and, on the other hand, a principle of inter-state reciprocity.
The news of the Calvo doctrine
The doctrine of Carlos Calvo, which seemed to have been buried with the
proliferation of promotion and protection agreements
investments that allow investors to evade the
the jurisdiction of national courts is now revived. In its
new version, it implies that foreigners renounce not only
to diplomatic protection, but to international arbitration, standing as
doctrine opposed to the current regime of investment arbitration.
Amilli GUZMÁN
Doctor of Public Law
University Paris 13, Sorbonne Paris Cite
Sources:C. CalvoTheoretical and practical international law preceded by a
historical exposé of the progress of the science of international law, 5e edition, 6 vol.
Paris, Guillaumin, 1887-88 Jose Yves Limantour, Notice on Life and the
works of Mr. Carlos Calvo, Paris, Firmin-Didot, 1909. Liliana Obregon,
Carlos Calvo and the professionalization of international law, Journal
Latin American Journal of International Law, 2015, no. 3, 23 p. Manuel de
Peralta, "Necrology of Carlos Calvo", Yearbook of the Institute of Law
international, 1906, vol. 21, p. 486-491. Oscar M. Garibaldi, "Carlos Calvo"
redivivus: the rediscovery of the Calvo doctrine in the era of investment
treaties »,Transnational Dispute Management, 2006, vol. 3, nº5, 58 p. Cesar
Sepulveda, Antonio Martínez and Alfonso García, Carlos Calvo: three essays
Mexicans, Mexico: SRE, 1974, 79 p.