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

Government entirely consistent with the meaning 01 this resolution. The lact that the resolution relers to both municipal and international law indicates that both legal orders have a relevant lunction in this matter. Throughout the debates, the Delegatíon 01 the United States argued that "appropríate compensatíon" could only mean "prompt, adequate and effective compensation", and it submítted an amendment to thís effect.(71) As previously noted, the oPPosite point 01 view was taken by the Soviet Uníon and AIghanistan, whose amendments either did not mentíon the question 01 compensation or made its determination subject solely to the regulation 01 municipal law. The lollowing comments made by the Delegation 01 Chile on these positions clearly reveal the sense of. balance which inspired Resolution 1803 (XVII): The draft resolution also mentioned appropriate compensation... Three types 01 ideas had been advanced The first tended to insert in the draft resolutíon details which would be out 01 place. The second, by línking the payment 01 compensation to the question 01 adequacy, tended to restríct the possibilities 01 compensation·. Thirdly, the Soviet Union delegation wished to delete therelerence to internationallaw in connection with nationali– zation... In (the) opinion (01 the Delegate 01 Chile) , rarely had a commission 01 the General Assembly succeeded in producing a more carelully thoughtout píece 01 work, in which complete Ilexibility had been displayed in regard to all trends. The resulting text was a balance between dillerent conceptions, and ít was important not to upset that ba– lance.(72) In order to lacilitate a compromise and by taking into consideratíon the statements 01 the Delegate 01 Chile that the draft did not modily existing principies 01 international law, both the United States and AIghanistan withdrew their respective amendments. Those 01 the Soviet Uníon were rejected. It is therelore possible to conclude that the requirements and conditions 01 compensation within the meaning 01 Resolution 1803 are governed posítively by international law within a Iramework of flexibility which, on the one hand, makes application 01 the traditional requirements less rigid and, on the other, prevents all lorms 01 arbitrariness which could result lrom the sole application 01 municipal law.(73) How much flexibility should be introduced in the determination 01 compensation in a particular case is a problematic question lor international scholars. The minimal require– ments is merely that compensation be "just" or "adequate", "equitable," "fair," or "reaso– nable."(74) This characterization does not mean, however, that a universally recognized and lixed standard exists, but perhaps only that both the interests 01 the affected party and those 01 the community should be taken into account in the determination 01 compensation. Principies such as unjust enrichment, abuse 01 rights, good laith, and other relevant lactors should be weighed in the process 01 determining the amount 01 compensation in a particular case. Similarly, it is not surprising that there is no generally recognized standard lor the valuation 01 expropriated property in international law.(75) Indeed, disagreement . overthe choice 01 a particular standard 01 valuation lies at the heart 01 many disputes about compensation. Claims ranging from the optimal value 01 an enterprise as a "going concern" (71)UN Doc. A C.2 L668. Statements in UN Doc. A C.2 SR. 835 at 5, 10. (72)17 UN Gaor al 231-32, UN Doc. A C.2 SR.834. This bafanced point 01 view 01 Resolution 1803 is also the basic efement underlined by some interpretations. Su Friedmann, supra note 22, at 138 and Asamoah, supra note 4, at 97. (73)Forthe opinion 01 writers on this point, see García-Amador, supra note 37, at 241. Also Katzarov admíls Ihat the standards 01 compensalion are governed by international law, supra note 49, al 496. (74)For an examination 01 practice and decisions, see Four/h Repart, supra note 10, at 19-20. For a uselul discussion aboutthe opaque concept 01 "prompt", "adequate", "effective", "Iaír", "juSI", and "appropríale" compen– salíon, and Ihe need lo define Ihe elements and critería 01 valualion, see Baxler,Forwardto Valualion, supra note29. (75)Weigel and Weston, Valuation upon /he Deprivalion o[Foreign Enterprise: A Po/icy-Orienled Approach fo Ihe Problem o[Compensa/ion Under lnlerna/íonal Law, in Valualion, supra nole 29, al 3-39. See also McCosker, Book Values in Nalionalizalion Selllemen/s, ibid, 36-51. 264