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

The decision 01 the majority 01 the Tribunal was to a great extent based on the theory that the determination 01 excess profíts was a question separate and distinct from the problem 01 compensation.(36) In accordance with paragraph 4 01 Resol ulion 1803 (XVII) which provides that, "where the question 01 compensalion" gives rise lo a conlroversy, the national jurisdiction shall be exhausted, it is clear that national jurisdiction must remain open lor every purpose to loreign claimants.(37) Observance of the principies 01 abuse 01 rights and 01 good laith wou Id also lead to the same conclusion. Furthermore, in the context 01 the nationalization it cou Id be asserted that the question 01 excess prolits is inseparable Irom the problem 01 compensation. IV THE POINT OF VIEW OF DISCRIMINAnON Apart lrom the doctrinal debate concerning whether aliens should be accorded a higher standard 01 treatment than nationals in disputes about taking 01 property, internatio– nal !aw clearly requires that a state nol discriminate between nationals and aliens lo the detriment 01 the latter.(38) In the opinion of the government 01 Chile, this is the only requirement imposed by internationallaw on a state adopting nationalization measures in the national interest.(39) Two basic aspects 01 this problem were well delined in the Memorial 01 the United Kingdom in the AIlR/o-lranilll1 Gil Co. case: The Government 01 the United Kingdom does not deny... that cases may arise in which a measure 01 expropriation solely allecting loreign nationals (ie. solely allecting loreign nationals because there is only one enterprise 01 the kind in question and that is owned by loreigners) is dictated by such overwhelming considerations 01 publ ic utility and general wellare that the measure cannot be said to be directed against or discriminatory against loreigners. In such cases the lact that the expropriation affects loreigners on Iy is, in a sense, accidental. The Sta!e cannot be expected to relrain lrom a measure which is 01 vital importance lor the sole reason tha! the persons affected are loreigners... Similarly the situation is altogether dillerent when there is clear evidence that the measure taken was dictated by sentimentsol resentment, animosity and vindictiveness against the foreign national in question.(40) The lirst situation mentioned in the Memorial is clearly applicable to the case of Chile. The purpose 01 the constitutional measures was to nationalize the copper industry, inde– pendently 01 any consideration 01 the nationality olthe gffected owners. There was therelore no discrimination. With regard to the second aspect, the President 01 the Republic has repeatedly given assurances that there is no vindictiveness involved against American nationals whose interests were affected.(41) However, the conlused and novel legal approach growing out 01 the constitutional amendment presents conceptual difficulties lrom this point 01 view. During the Senate debates, it :!las clearly established that the nationalization measures would alfect the (36)M.. al 1035. 1031. (37)DOClrine and decislons in García-Amador, (FirsI I Reporl OJl ¡nlema/ionalRespollsibílily, 2 Y.B. In!. L. Comm. 204-06 (1956). (38)M. al 220-22. (39)5,,<, Response 'dllte Delega/ion o/Chile /O Ihe Replv o/Ihe RepresenlalÍve oflhe Uniled Slales. OAS. Doc. AG C-145 72. al 1-2 (1972). Se!' ulsu slatement by Chilean Minisler ol Foreign Aflairs. supra note 5, al 13. (40)Anglo-lranian Oil Co. case: Memorial ofthe United Kingdom, in 8 Whiteman, Digesto! Internalional Law 1055 (1967). (41)Presídentiai Motion 01 Oee. 21. 1970, .mpra note 1, al 15. Su olso Address by lhe President on Ihe nalionalization 01 eopper in La Nación, Dee. 22, 1970. ::!óO