Chile: the balanced view : a recopilation of articles about the Allende years and after

Since the passage of General Assembly Resolution 1314(XIII) of December 12, 1958, it has become clear that in takings of property affecting the rights of aliens "due regard should be paid to the rights and duties of States under international law," This notion also was incorporated in the UN Covenant on Economic, Social,ánd Cultural Rights and, importantly, in Resolution 1803. It can be stated, therefore,that the principies, obligations, and rights articulated in Resolution 1803 are incorporated in and governed by other relevant principies of rnternational law. Properly viewed, the resolution is consistent with and, indeed, declaratory of generally recognized principies of internationallaw.(4) This is the only realistic manner to interpret the fuI! extent and meaning of the, resolution. It should be noted that Chile traditionally has recognized the applicaoiUty of interna– tional law to situations affecting the rights of aliens,(5) As the delegate of Chile slated, Resolution 1803 "proposed no modification of existing principies of law and, in fact, called in two places for the observance of these principies. "(6) The essentially identical nature of the principies enunciated in this resolution and of those well eslablished in inlernational law is particularly significant in that, during the drafting of the resolution, th~ International Law Commission and legal scholars were debating major policy questions concerning the law of slate responsibility.(7) 1 THE RIGHT TO NATIONALIZE AND THE INTERNATIONAL PROTECTION OF ACQUIRED RIGHTS OF ALIENS The right of a state to nationalize the property of aliens is no longer questioned seriously, The governments of both Chile and the United States have admitted and recogni– zed this righ!.(8) However, international law, as expressed in Resolution 1803 and in the decisions of international tribunals, has placed certain limitations upon the exercise of the state's expropriatory powers when the interests and' rights of aliens are affected.(9) It is appropriate, therefore, lo examine the extend to which internationallaw requires a state lo respect the acquired rights of aliens and to guarantee Iheir protection, International courts have long recognized the obligation of a state, as a general rule of internationallaw, to respect rights acquired by aliens,(1 O) Resolution 1803 rests in part on this proposition, as evidenced by the history of its drafting(11) and the opinion of authorita- (4 )See in general O, y, Asamoah, The Legal Signilicance 01 Ihe Declarations 01 The General Assembly 01 the United Nations (1966). (Hereinalter cited Asamoah), (5)See address by the Undersecretary 01 Foreign AIlairs, supra note 2, See a/so statement by Ihe Chilean Minister 01 Foreign Allairs belore Ihe Chamber 01 Deputies on Aug, 2, 1972 in La Nación, Aug, 6, 1972. (6)UN Doc, A C.2 SA.842 al also UN Doc, A C.2 SA.834 at 19, (7)García-Amador, Revised Drafton /nternationa/ Responsibility ofthe Statefor Injuries Caused in íts Territory to the Personlo-r: pr¡)periY. :of Aliens, 2 y,B, Inl. lo Comm., 46 (1961); Sohn and Baxter, Draft Convention oÍ! the Internationalkesponsib7liiy ofStates for Injuries to A/iens, 55 AJIL 548 (1961.) , (8)Statemenl by Mr. Charles A, Meyer belore the Subcomm. on Inler-American Affairs 01 Ihe House Comm. on Foreign Affairs in 60 Dept. Slale Bull, 498 (1971). See a/so, Meyer, Rep/y ofthe Delegation ofthe United States 10 the Statements of the De/egates ofEcuador and Chile in OAS, GA Doc, AG C-143 72 (1972), (9)For an examination 01 Ihe decisions 01 international courts and tribunals on Ihis polnt, see, F. v. García– Amador, Principios de Derecho Internacional que rigen la Responsabilidad 306-10 (1963), (10)Doclrines and decisions in García-Amador, (Fourth) Report on /nternationa/ Responsibi/ity, 2 Y.B. Inl. L. Comm, 4 (1959). (Herelnalter cited as Fourlh Report). See also Arameo Arbitration in 8 Whiteman, Digest 01 Inl. Law 912 (1967). ~ (11 Some newly-independenl countries proposed that only those rights acquired alter independence should be respected, nol those acquired under colonial rule UN Doc, A C,2 SR.846 at 7; A C,2 SR,851 at 6-7, Preambular para 5 was inlroduced to deal with Ihis mattar. It follows Iherelore that rights acquired ih an independent slate are clearly protecled by ,I-¡e resolution, The Delegation 01 Chile' agreed Irom a legal pOint 01 view with Ihe position 01 The Netherlands, which tal/ored the protection otright~ acquíred under any circumstance, but suggested detailed prol/isions should nol be included, UN Doc. A AC. 97 SR.28 al 5, Although President Allende has staled tha! "the American exploitation 01 cooper is a real colonial enclal/e in the Chilean economy", that is hardlylhe situation, Senate Bull., supra, note 1, at 6. 256