17. During the nineteenth century, most Asian and African states were forced to sign surrender treaties that declared Europeans and their property safe from local authorities and jurisdictions. Over time, these provisions relating to the limited exercise of territorial sovereignty by local authorities have become permanent and irrevocable, ultimately depriving “the territorial sovereign of an important international function, namely the protection of the life and property of nationals of other States within its territory”; Alexandrowicz, C.H., “The Afro-Asian World and the Law of Nations (Historical Aspects)”, 123 Hague Reports (1968) p. 150.Google Scholar 82. Cf., Schwarzenberger, G., “The Norm of Civilization in International Law,” VIII Curr. Leg. Problem. (1955) p. 220.Google Scholar 15.

Schwarzenberger, G., “The standard of civilization in international law,” 8 Curr. Leg. Problem. (1955) p. 220Google Scholar. See also Higgins, R., Conflict of Interest; Völkerrecht in einer geteilten Welt (1965) p. 39Google Scholar. On the general meaning of the term “civilized nations” in traditional international law, see also B.V.A. Röling, op.cit., (1960); Anand, R.P., New States and International Law (1972)Google Scholar; Verwey, W.D., Economic Development, Peace and International Law (1972).

Google Scholar 219 However, given the course of negotiations, the current authors do not believe that such an interpretation can withstand objective analysis. 8. Amerasinghe concludes, for example. B, that the concept of “nationalisation” has been sufficiently different from other types of expropriation in kind, to such an extent that the sources have laid down specific rules in this regard. These are distinguished from the rules applicable to other cases of expropriation. Amerasinghe, C.F., State responsibility for injuries to aliens (1967), p. 129Google Scholar. See, in a similar sense, Foighel, I., Nationalization and compensation (1964), pp. 35-37Google Scholar. This is probably the fear that large-scale expropriations could be removed from the control of international law by being justified under the banner of “nationalization” – understood as a necessary factor in the process of socio-economic transformation; an assertion supported in particular by the socialist countries (cf., Z.A. Kronfol, op.cit. (1972) p. 21 – which should explain the resistance of many Western authors to distinctions such as that between “expropriation” and “nationalization”.

Schwarzenberger writes: “It is difficult to see why the sheer magnitude of expropriation measures in relation to individual acts of expropriation or the emergence of new ideologies should exempt such a policy of nationalization from the application of the applicable rules of customary international law”; G. Schwarzenberger, loc. cit., (1976) p. 8. 307. The word “declaration” suggests (or in most cases claims) that the resolution in question “declaratory” reformulates principles or rules that are recognized as part of existing customary international law. In addition, according to the United Nations Legal Office, a declaration is “a solemn instrument used only in very rare cases dealing with matters of great and lasting importance where maximum compliance is expected”; a point of view that certainly also applies to a “charter” (such as CERDS). See the note by the Legal Department on “the use of the terms `declaration` and `recommendation`”, UN document. E/CN.4/L.610 (2 April 1962).

103. Orrego-Vicuna, F., “Some international law problems posed by the nationalization of the copper industry by Chile,” 67 AJIL (1973), pp. 718-719.Google Scholar 32. This rule excludes diplomatic protection and the jurisdiction of an international judicial power until the complainant has exhausted the domestic judicial system of the State he accuses of having violated illegally; unless there is a prima facie case of procedural or substantial “denial of justice”. Cf., Strupp, K. and Schlochauer, H.J., Wörterbuch des Völkerrechts (1961) pp. 383-384Google Scholar; Doehring, K. in Bernhardt, R. (ed.), Encyclopedia of public international law (1981) pp.

136–140.Google Scholar 92. Calvo, C., “Le droit international théorique et practique” (5th ed., 1896) I Abs. 205 S. 350Google Scholar; III para. 1280 p. 142; VI sec. 256 p. 230. 47. See judgment of the Oberlandesgericht Bremen in Indonesian Tobacco (see 33 loc.

cit.) and see Domke, M., `Indonesian nationalization measures before foreign courts`, 54 AJIL (1960), p. 305 et seq. CrossRefGoogle Scholar. See also the arbitral award in Shufeldt`s Claim (1930); UNRIAA II p. 1095. See also I. Foighel, op.cit., (1964) p. 54; White, G., Verstaatlichung des ausländischen Eigentums (1961) p.

145 et seq. Google Scholar; P.J. O`Keefe, 50 infra, p. 281; Delupis, I., Finance and protection of foreign investments in developing countries (1973) pp. 71 ff. Google Scholar 328 Dolzer, R., “New foundations of the law of expropriation of alien property,” 75 AJIL (1981) pp. 566-567.CrossRefGoogle Scholar 309. Kapteyn, P.J.G., “De nieuwe internationale economische orde” [The New International Economic Order], Announcements of the Netherlands Association of International Law, No. 75 (1977) p. 15.Google Scholar 240. See GA Prov. Rec.

2315th meeting, para. 73–75. This statement reflects very well the relative value of Castaneda`s conclusion that a significant majority of G. 77 recognize that there is an obligation to pay compensation (Castaneda, J., “The Charter of Economic Rights and Duties of States. Note sur son processus d`elaboration”, AFDI (1974) p. 51) Google Scholar; Such recognition would be based on the principles of domestic law and not of international law. See, p. 24, loc.

cit. 226. As it happens, for example.B. in resolutions 837 (IX), 1314 (XIII), 1514 (XV) and 1 of the Covenants on Human Rights. In this case, declaration nieo (3201 (S-VI)), which merely repeats the phrase first formulated in GA resolution 3171 (XXVIII), paragraph 3, according to which the SP may be exercised “to protect these resources” (para. 4.e), it is not clear who should benefit: the international community or the host State (although, depending on the context and conduct of the discussions, it must be assumed that it is the latter). 125. In particular, the statement on HCPs; the declaration relating to the establishment of an NIEO; and CERDS (GA Res. 1803 (XVII); 3201 (S-VI); and 3281 (XXIX) respectively). Combaceau considers that the Declaration on the PS does not really recognize the right to the PS, since the confirmation was simply expressed in its preamble; Combaceau, J., La crise de l`energie au regard de droit international, colloque sur la crise de l`energie et le droit international, Société Française de Droit International (1975) p.

22Google Scholar. The current authors cannot share this view: if a given resolution such as 1803 in its enacted part sets out the conditions for the execution of a right (para. 1), which is recognized as such in the preamble, unequivocally describes and adds that the violation of that right violates the principles of the Charter of the United Nations (paragraph 7), It seems a little far-fetched to deny that the right in question is recognized in this resolution. In the specific case of the statement on the PS, Karol Gess concludes from the minutes: “Both with regard to the content of the preamble itself and with regard to its interpretation in the debate, the opinion that the instrument adopted by the General Assembly in the execution of its mandate is the resolution as a whole”; K.N. Gess, op.cit., (1964) p. 406, and see no. 204 below. 172.

Referring to the requirement that international law also ultimately regulate relations between private investors and the host country, one Mexican diplomat stated that the result of adopting such a proposal “would be to place States with foreign companies on the same legal and political basis, which would mean that these companies would receive neither more nor less than treatment, which could be reserved exclusively for States”; GA Prov. Rec, 2315th meeting (1974) para. 75. See, in addition, pp. 42-43 below. 154. In other cases, the State is also mentioned as a legitimate subject, but the principle of PS as the legal basis for the right to take foreign property can only be inferred indirectly from the broader context of the provision in question. This applies in particular to § 4 of GA Resolution 1803 (XVII) and CERDS Paragraph 2.2 (c). 6.

Starke states that “the term expropriation … be the generic term and include “nationalization”, i.e. the expropriation of property by a State for subsequent exploitation by that State instead of exploitation by private enterprises”; Starke, J.G., Introduction to International Law (1977), p. 325Google Scholar, no. 2. Similarly, Domke believes that the distinction between the two concepts has little practical and legal meaning; Domke, M., “Nationalisations étrangères; quelques aspects du droit international contemporain”, 55 AJIL (1961) p. 588Google Scholar. From a legal point of view, Wortley agrees with this opinion; Wortley, B.A., Expropriation in International Law (1959) p.

36.Google Scholar 33. See Dutch Note of 18 December 1959 on the Nationalisation of Dutch Enterprises, 54 AJIL (1960) pp. 485-487, 489. The discriminatory nature of this abolition was stressed by the Indonesian authorities rather than concealing it: the very name of the law in question (No. 86) read as follows: “On the nationalization of Dutch companies”; and it was made clear in the “Declaration of the Regulations” (No. 2 of 1959) that “the essence of these provisions is to distinguish between the position of Dutch nationals and that of other nationals”, in accordance with the policy of “liquidating colonial economic power, in this case the Dutch colonial economy”.