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

tive sources.(12) However, this principie is neither absolute nor immutable, since the social function of property, as expressed in Resolution 1803, is recognized in international law. The resolution states unequivocally that, in property takings, public utility, security, or national interest override purely individual or private interests, both domestic and fo– reign.( 13) Those who criticize this principle( 14) maintain an antiquated view of internatio– nal law and its need for evolution, based on changed global circumstances. Because this principie is not absolute, a state may undertake measures to affect the acquired rights of al iens so long as the measures are not inconsistent with the requirements of international law of otherwise adopted in violation of a treaty. With regard to the copper nationalization, no such treaty-existed between Chile and the United States.(15) The debate on the constitutional amendment in the Chilean Senate dealt in considera– ble detail with problems concerning rights acquired by the copper companies under the agreements reached with President Frei's administration.(16) Although most of the argu– ments referred to aspects of municipal law, relevant international law principies were mentioned also. In particular, strong objections were raised against one of the proposed amendments which provided that private persons whose rights would be affected could "not claim any benefits, franchises, exemptions or guarantees that emanate from any agreements, conventions, privileges, accords, or contratcs entered into with the state or its authorities, even should these have been granted pursuant and subject to legislation prior to the present measures bi:ling adopted, or if they have been approved by the said laws."(17) It was indicated that such a provision not only would violate acquired rights but also would demonstrate the state's irresponsibility and have adverse repercussions throughout the international community. It was also indicated that this provision would be inconsistent with the meaning of, and good faith required implicitly by, Resolution 1803.(18) At one point, the representative of the Executive justified the proposal on the ground that it only referred to those cases in which the rights of private persons had not been acquired lawfully.(19) _ This debate is significant in that it reveals that members of the Legislature were aware of the eventual responsibil ity which the state might incur should measure adopted affecting acquired rights fail to meet the requirements of internationallaw. The possible application of international sanctions and the embarassing situation which could develop were also mentioned as well as the view that, in any case, such a measure would violate the international moral order.(20). 11 THE MOTIVES AND PURPOSES OF THE NATIONALIZATION Given the right of the state to affect acquired rights, the question arises to what extent the nationalization of the copper industry conformed to the requirements of international (12)Asamoah. supra note 4, at 89; Gess; supra note 3. at 443; García-Amador, supra note 9, at 201; Sehwebel, supra note 3, at 468. (13)This position had been taken by international decisions as early as 1930. Fourth Report, supra note 10, at 5. (14)For an examination 01 this criticism, see Fourth Reeport, id., at 5-7, citing particularly S. Friedman, Expropriation in International Law 126 (1953) and Kaeckenbeeck, La Proteetion /nternationale des Droit Aequis, 59 Rec. des Cours de L'Academie de Droit International 361 (1937). (15)Although both Chile and the United States signed the Economic Agreement 01 Bogotá in 1948, which imposes strict conditions concerning the property 01 aliens, neither country ratilied il. The diflerent approach 01 the Latin American countries and 01 the United States to this problem became quite evident during the discussion 01 the agreement, 8 Whiteman, Digest.ol Inl. Law 1091-92 (1967). (16)Tex1s olthe agreements and other materials in: 6 ILM 424-53, 454-65, 1146-61 (1967),8 ILM 1073-78 (1969) and 9 ILM 921-74 (1970). (17)10IUv1432 (1971). (18)Senate Bull., supra note 1, at 110-12,123-24,132,141. (19)/d., at 124. Is it possible Irom this statement to understand that when the right has been lawfully acquired it must be respected? (20)/d., at 112. 257