A vast amount has been written, in books and articles, upon the subject of the seizure by Governments of foreign-owned property, whether the process is called Nationalization or Expropriation or by some other name. I propose, however, to confine myself mainly to the relevant law laid down by tribunals, both international and national, in dealing with the matter and to the practice of States— these two sources being the principal sources of international law, and I shall cite very few authors. Law becomes more concrete when applied to the particular facts of an actual incident, and in such circumstances it is easier to distinguish between lex lata and lex ferenda; it is only the former that I am concerned with now.

Après avoir énumeré les mesures législatives indonésiennes relatives à la nationalisation des entreprises néerlandaises en Indonésie, Lord McNair procède à un examen du principe du respect des droits acquis privés d'étrangers. Une étude détaillée de la jurisprudence internationale mène l'auteur à la conclusion que ce respect est un principe bien établi du droit international. L'auteur estime que le fait qu'un Etat succède à un autre Etat ne porte nullement atteinte à l'obligation de respecter les droits acquis privés d'étrangers. «Par conséquent, je ne suis pas d'avis que la République Indonésienne se trouve dans une position plus forte à l'égard des titulaires des droits acquis privés d'étrangers en raison du fait que la totalité ou la majorité de ces droits furent originellement acquis du Royaume des Pays-Bas.»

Professor Rolin discusses the content of the Indonesian Nationalization Act and the Decrees for its implementation, and notes, inter alia, the following:

that the taking is confined to Netherlands enterprises, the implementing Decrees leaving open the possibility that it will not be restricted to property within Indonesia;

that the contemplated compensation does not represent the value of the enterprises, because it will evidently consist of only a part of the revenue from them, and that the payment of this compensation is deferred until some future date as yet unspecified.

It is also clearly indicated that the motive for the taking is “the struggle for the liberation of Western New Guinea”. According to official statements, the payment of compensation will also depend on there being a settlement satisfactory to Indonesia of the dispute over Western New Guinea. The taking is therefore an unfriendly, or even hostile act in reply to the attitude adopted by the Netherlands with regard to Western New Guinea.

Professor Verdross discusses the content of the Indonesian legislation on the Nationalization of the Netherlands Enterprises, and draws attention to pronouncements by the Indonesian Government during the parliamentary debates on the Nationalization Act from which it is evident that the payment of compensation is being used as a means of coercion in the political dispute between the Netherlands and Indonesia over New Guinea.

Since the payment of the compensation—the amount of which is in itself entirely uncertain—is being deferred to an indeterminate date in the future, while the Nationalization Act has retroactive effect from 3rd December, 1957, the measures discussed are, in the writer's opinion, to be regarded as a confiscation of alien property.

Over alien property on its territory a State has only a limited power—limited, that is, by international law. This principle, enunciated as long ago as the 18th century by Vattel, has been elaborated in the subsequent development of international law to mean that confiscation of property of aliens is under all circumstances contrary to international law (except as a penalty for grave crimes), whereas expropriations in the public interest against adequate compensation are permissible.