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

law. In the lirst place, the nationalization was based on an open and legitimate determina– tion 01 public necessity as required by Resolution 1803. Moreover, it was duly authorized through the normal constitutional amendatory process and enjoyed the support 01 both the Executive and Legislative branches. Consequently, the propriety and validity 01 the natio– nalization itsell cannot be challenged under applicable principies 01 international law. However, when alien's rights are involved, internationallaw places certain restraints on the exercise 01 a state's power. A basic tenet is, 01 course, that the taking 01 property not be arbitrary or discriminatory. Although not easily delined in terms 01 legal categories, the concept 01 arbitrariness involves a prolound moral judgement about what is just an¡j unjust -a concern which is manifested in the law relating to the international protection 01 human rights.(21) This moral dimension 01 the concept 01 arbitrariness is deeply rooted in the notion 01 unjust enrichment, a general principie 01 law recognized by civilized nations,(22) which prohibits the community Irom benelitting unduly at the expense 01 the individual(23) and which has been suggested as the fundamental basis underlying the obligation to compensate.(24) Furthermore. closely linked to arbitrariness is the concept 01 abuse of rights.(25) which is concerned with preventing a state from exercising its powers so as·to evade international obligations which have not been delined precisely, or from otherwise acting in a manner contrary to the ultimate meaning and intentions ofthe internationallegal order. International law has developed specific standards to judqe wt')ethE'!r or not thE'! actions 01 states are arbitrary; standards whi€h principally relate to the motives and purpose 01 property takings. denials 01 justice. discrimination, ando above all, questions 01 compensation. . III THE POINT OF. VIEW OFDENIAL OF JUSTICE Another critical issue in nationalization situations is whether the municipal legal remedies available to loreigners allected by property takings are adequate uhder both domestic and international standards. In attempting to minimize abusive and arbitrary practices, internatlonal law requires a state to provide loreign claimañts eflective judicial or administrativ~ machinery torthe settlement of disputes resulting from property takings. II there is unjustified delay in the administration 01 justice, grave procedural irregularities. . manilestly unjust decisions. or lailure to execute judgments in cases involving loreigners, the state can be made answerable lor these denials 01 justice.(26) Another related conside– ration is the composition 01 and access to judicial or apministrative bodies having jurisdic- lion in such disputes. . In this regard, the impartiality and independence 01 the Special Copper Tribunal, established to hear claims arising under the copper nationalization, have been challenged in view 01 its composition. The original proposal 01 the Executive branch was conceived in such a mannerthat its particular pointolview would be shared by a majorityolthe members 01 the Tribunal.Under this proposal, the Tribunal would be comprised 01 three government oflicials and two justices, one Irom the Supreme Court 01 Chile and the other I¡om the Constitutional Tribunal, the latter to be appointed by the President ofthe Republic.(27) This proposal was later modified in Congress and the Tribunal, as constituted. comprised two (21 )Universal Declara1ion 01 Human Rights, adopted bylhe General Assemblyon Dec. 10, 1948, UN Doc. A 810, Art. 17.2 (1948). . (22)W. Friedmann. The Changing Slructure 01 Internationallaw 196 (1964). (23)Fourlh Report, supra nole 10, al 5. (24)/d., alsociting Cheng, General Principies 01 lawas Applied by Inlernalional Courts and Tribunals 48 (1953). See.olso, Friedmann, Social Conflict and the Proteetion 01 Foreign Investment, Proc. Am. Inl. l. 131-32 (1963). (25)Fourth Report; supra nole 10, al 15. . 258 (26)García-Amador, (Second) Report On /nternotional Responsibility, 2 Y.B. Inll. l. Comm. 110-12 (1957). (27)Proposed conslilu!ional amendmenl. supra nole 1, al 435.