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

rights or property 01 individuals. The requirements of compensation are different in the two cases.(49) To a certain extent, this was the position taken by the Special Rapporteur 01 the International Law Commision, particUlarly with regard to the requirements nf compensa– tion, which would be more flexible in the case of nationalizations, as revealed by the practice of "Iump-sum agreements." But, except lor these differences, in his opinion "the two juridical institutions are, at least from the point 01 view 01 international law, substantially the same. "(50) However, for other writers, national ization does not have a legal meani ng of its own in internationallaw,(51) nor does it necessaríly imply the creation or acceptance of new rules.(52) From the point of view 01 Resolution 1$03 (XVII), all measures, however classified, that affecl acquired ríghts musl no! be arbílrary in Iheir application, The original draft introdu– ced by Chile in the Commissíon on Permanent Sovereígnly over Natural Resources ínclu– ded a provision (very similarlo paragraph 4 of Resolu!ion 1803)(53) which \Nas designed lo prevent any form of arbítrariness and to assure that the measures taken were based on principies prescribed by law.(54) Thís proposal was opposed on two grounds. On Ihe one hand, the Uníted Kíngdom moved in favor of restriclíng takings 01 properly to Ihose cases in which Ihey mighl be slrictl.Y required by national ínterest.(55) On the other hand, the Soviet Union opposed the Chílean draft because it did not recognize the inalienable right 01 peoples lo natíonal ize and expropriate,(56) "wíthoul leí or hindrance. "(57) Al! 01 the Soviet Union's proposed amendments in Ihís vein were rejecled and Chile voled against them in each instance.(58) Therefore, Ihe meaníng 01 Resolulion 1803 (XVII) is Ihat the measures undertaken by a state, whether by way 01 expropriation, natíonalízation, or other takíng, must conlorm to the requirements 01 internatíonal law VI THE PROBLEM OF COMPENSATION The oblígation to pay compensation lor the takíng 01 an alien's property ís a well– established prínciple 01 customary international law.(59) This obligation has been codi– fied(60) in the municipallaw ot most nations, and has been recognized in practice even by social ist states.(61) (49)K, Katzarov, Teoría de la Nacionalización 264 el seq. (1963). When explaining the draft constitutional amendment proposed by the governmenl. the representative 01 the Executive indicated that Ihe nationalization affecled the property 01 the copper industry and not Ihe enlerprises or the corporations. Senale Bull, at 204,278. Later ít was mdicated that the measures affected the enlerprises and the jointly-owned corporalions. Id., See also note 42, SUp"'l. and Novoa, supra note 45. al 172·97. (50)Fourth Report, supra note 10, at 13. (51 )Wortley wríles that "Nationalízalion is no! a lerm 01 art", B. A. Wortley, Expropriation in Public Inlernational Law 36 (1959) (52)Kalzarov, supra note 49, al 566·67. (53JUN Doc. A AC.97 L.3 Rev, 1. (54JStatemenls by the DelegateotChile in UN.Doc. AC.2 SR.834at 20-21, and UN Doc. AAC.97 SR.25at 12. The relerence lo internalionallaw made by Resolulion 1803 was introduced tor Ihe specilic purpose 01 lilling the gap left by Resolution 626 (VII) 01 Dec. 12, 1952. On the Ialter point, sel' Hyde, PemWl/ell/ SOI'erei?"I.\' over Nalllral Weallh and Resollrces, 50 AJIL 854-67 (1956). (55)UN Doc. A C,2 L.669. (56)UN Doc. A AC.97 SR.32 al 7-8. (57)UN Doc. A AC97 L.2 Rev. 1. Similar proposals were introduced In the Second Committee of the Genelal Assembly, Gess, supra note 3, al 422·23. (58J/d., at 420-24. (59)Fourlh Reporl, sl/pra note 10, al 18, (60)Katzarow, supra note 49, at 524, (61 )Orucker, Compensaríon Trealies Belween Commanisl Stales, 10 Inl. Comp. L. O. 238 (1961 J. In all cases, the postwar European nationalízations made provisíons lor Ihe payment 01 compensation, Fourrh Reporl. supra note 10. at 21 262