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

copper "enterprises",(42) that is, those concerns in which hof/¡ American companíes ({lid the Chilean Government jointly participated under agreements reached with the prevíous Chílean admínístration. The idea 01 nationalizíng only the American owned shares 01 the expressly was rejec1ed because such a measure, it was argued, would have been discríminatory.(43) The constitulional amendment aUlhorizing the nalionalízation declared thal the pro– míssory noles issued lor Chile's purchase 01 51 '~;. 01 the equity 01 the mixed copper companies under the previous "Chileanízation" arrangements were null and voíd and ordered that any payment made thereunder should be deducted Irom Ihe compensalíon. Thereby, Ihe investmenl made by Chile is recovered in tofO and promptly, which is nol Ihe case wilh the investment made by the American companies. It is a lac!. however, Ihat the Chilean inleresls "affected" by the nali9nal ization are in the long run those 01 the state. International law normally is concerned with discrimination taking place between aliens in and nationals 01 the depriving slate, bu!, because ofthe legal approach lollowed in this case, a situation existed in which the national interest "alecled" was that 01 the state ítsel!. Should this be a correct analysis, it would have sufficed to nationalize the American . owned shares, instead 01 natíonal ízi ng the "enterprise" since the outcome wou Id have been Ihe same in either case, that is. Chile's interest would have remained unaffecled. The lalter, needles lo say, is Ihe normal result 01 a nalionalization which does not involve the interests 01 nationals; bul apparently this was nol realized when the constitutional amendment was being debated. v EXPROPRIATION AND NATIONALIZATION The idea that expropriation and nalionalization are viewed dilferently in international law was expressed at every stage 01 the congressional debates on the constítutíonal amendment.(44) In particular, it was pointed out thal nationalization granted broader discretionary powers to the state.(45) The original draft submitted by the government relerred lo "nationalization through expropriation,"(46) which apparently suggests that the distinclíon was not considered 01 greal ímportance al lhe beginning 01 the process. However. the amendment laler was changed lo reler only lo "nalionalization" at the request 01 the representative 01 the Executive, who indicated the need to gran! the state broader discretionary power.(47) 1I was expressly slated Ihat this distinction corresponded to the the modern view 01 internationallaw and partial quotations Irom Katzarov and Schwarzen– berger were introduced in support 01 this position.(48) International legal scholars do no! agree, however, on the legal distinction between "expropriation" and "nationalization". For some. nationalization affects a universal aggre– gate 01 goods on a large scale and in an impersonal manner and reflects changes brought about in the soc io-economic structure 01 the state; expropriation, however, only affects the (42)Affidavil introdueed by lhe President 01 the Council for the Delense 01 the Slale in the ease Braden Copper Company v. Administrative Commission, Corporación del Cobre. Empresa Nacional de Minería, and John Doe (72 Civ. 508), Feb. 1972, al 3. (43)Declaration 01 ¡he representative 01 lhe Exeeutive belore the Senate Committee, Dec. 29, 1970 and Jan. 11, 1971 in Senate Bul!. al 37,203. The danger 01 the applicalion 01 the Hiekenlooper Amendment was menlioned in this conlext. (44)Senale Bul!. al 31-32. 89-91. 267-68. 278-79; also Senate session N.o 25 01 Jan 19, 1971; session N.o 26 01 Dee. 29, 1970 and Jan. 11, 1971 in Senate Bul!. al 37, 203. The danger 01 lhe application 01 Ihe Hickenlooper Amendment was mentioned in this context. 44)Senate Bul!. al 31-32,89-91, 267-68,278-79; also Senate session N.o 25 01 Jan. 19, 1971; session N.o 2601 Jan, 20, 1971; and session N.o 31 01 Feb. 2, 1971. Reeords published in El Mercurio 01 Jan. 23,26 and Feb. 5, 1971. (45)Senate Bull. at 32. 5ee E. Novoa Monreal, La Batalla Por el Cobre 107-72 (1972). Hereinafter cited as Novoa (46)An indentical expression was used by the Cuban Law 01 Nationalizations N,o 851 01 July 6, 1960 in 8 Whiteman, Digesl of International Law 1042 (1967). (47)Senate Bul!., al 282,306. Several Senators understood, however, thalthis was only a problem 01 wording and no! 01 concepts, Debate in Sena!e session N° 31 01 Feb. 2, 1971 in El Mercurio 01 Feb. 5, 1971. (48)Senate Bul!. at 91,267. 261