CHAP. XXIII The Calvo Exceptional instances of enforced responsibility state or residing there at the time of the outbreak share the fate of the local population, and they are not considered entitled to compensation for losses to property or injuries to person arising either from acts of belligerency committed by the insurgents or from the measures of repression taken by the state to subdue the rebellion. Such, for example, was the decision of Secretary Seward in 1862 in correspondence with the French, Austrian, and British ministers respecting claims for damages sustained by subjects of their respective states in consequence of military operations during the American Civil War.1 The general principle of responsibility arising from civil war has become associated with the name of the Argentine publicist Calvo, who argued in his treatise on international law 2 that a state could not accept responsibility for losses suffered by foreigners as the result of civil war or insurrection, on the ground that to admit responsibility in such cases would be to menace the independence of weaker states by subjecting them to the intervention of strong states, and would "establish an unjustifiable inequality between nationals and foreigners." Setting aside the grounds upon which the exemption was claimed and leaving out of account the possibility that the government may have failed to use promptly the means at its disposal to maintain its constitutional authority, it would appear that the Calvo Doctrine is a correct statement of the law, in so far at least as concerns the practice of the larger states among themselves." A special rule prevails in the practice of the larger states toward some smaller or weaker states, particularly certain of the Central and South American republics, and Haiti and Santo Domingo. Owing to the frequency of domestic revolution in these states, the presumption that the state is exercising its utmost efforts to suppress the rebellion is set off against the fact that it is continually unable to do so, and must in consequence accept a responsibility based, if not upon the lack of due diligence on the part of the de jure government, upon the inherent weakness of the or 1 See Moore, Digest, VI, § 1032. The fact that compensation was subsequently granted as a matter of grace did not amount to the recognition of a legal principle. Le Droit International Théorique et Pratique, 5th ed. Tom. I, liv. iii. See the decision of Ralston in the Sambiaggio Case, Italian-Venezuelan 5 For a discussion of the issues involved in the Calvo Doctrine, see Hershey, "The Calvo and Drago Doctrines," Am. Journal, I, 26 ff. Also, ibid., Analytical Index, sub tit. “Calvo.'' XXIII ganization of the state. In 1900 the Great Powers held China CHAP. responsible by way of indemnity for the losses incurred by foreigners in China on account of the Boxer Rebellion, which had got beyond the power of the Government to control. Again in 1923 China was held responsible for the injuries inflicted upon foreigners by bandits who captured and held them for ransom. On several occasions, notably in the case of Venezuela, the United States has distinguished between a mere insurrection and a formal civil war marked by a recognition of the insurgents as de facto belligerents, and has held that in the former case the de jure government was under obligation to make compensation for losses suffered by its citizens. It should be observed that the various treaties concluded between South American states and European states, which stipulate that there shall not be responsibility for losses sustained by their respective citizens from the acts of insurgents and rioters, do not affect the general rule of international law. 3 On the whole the practice of states has not been uniform,* either in assuming responsibility themselves for acts of insurgents or belligerent communities, or in demanding indemnity from other states for losses incurred by their subjects. In consequence of the absence of a satisfactory rule of customary law, a program of constructive legislation, covering cases of civil war, insurrection, and riot, was proposed by the Institute of International Law at its meeting at Neuchâtel in 1900.5 Responsibility, measured by compensation due, was accepted in cases where the act from which the injury resulted was directed against foreigners as such; it was denied where the insurgent government had been recognized as a belligerent power by the state of which the injured party was a citizen, or where the injured person had entered the country knowing the conditions that prevailed there. In the event of a formal war between two states there is no See the annual message of President Roosevelt, December 6, 1904, and the special message of February 15, 1905. There are, in fact, two rules applied to civil war as well as to acts of mob violence. In the case of more stable governments the presumption is on the side of the state that it is doing all in its power to suppress the rebellion; in the case of less stable governments the presumption is to the contrary. For details of the political and legal aspects of the question, see Moore, Digest, V, 808-810. Ibid., VI, § 1046. The United States has been conspicuous in its lack of consistency, at times imposing responsibility upon other states in cases similar to those in which it has refused itself to assume responsibility. See Moore, Digest, VI, Chap. XXI, passim. Resolutions, 159. CHAP. Responsibility arising from international war question of responsibility on the part of either of them for losses suffered by foreigners, whether from acts of the enemy in occupation or from acts of the de jure government in conducting military operations. International law recognizes that in such cases the state is, on the one hand, powerless to prevent the acts of the enemy, and is, on the other hand, too deeply committed to the necessity of self-preservation to be able to take into account the special interests of aliens who happen to be temporarily or permanently resident within its jurisdiction.1 'For example, the United States refused compensation to the Eastern Extension Telegraph Company, British owned, for losses resulting from the cutting of cables connecting Cuba and Porto Rico with the outer world. Benton, International Law of the Spanish-American War, 212. |