eso9407 — Organisation Release
"Clouds" Above Paranal
21 April 1994
ESO, the European Southern Observatory, in reply to questions raised by the media would like to clarify its position with regard to recent events which concern the land on which the Paranal mountain is situated.
THE DECISION TO BUILD THE VLT AT PARANAL
In December 1987, the Council  of the European Southern Observatory decided to build the largest optical telescope in the world, the 16-metre equivalent Very Large Telescope (VLT) , before the end of the century and at a total cost that was expected to approach 500 million DEM.
Already several years before that, ESO had started a search for the best possible site for this new giant telescope. At the time of Council's decision, intensive investigations at various sites in the Chilean Atacama desert had effectively narrowed down the choice to two possibilities, the Vizcachas mountain near La Silla, and the Paranal mountain, located approx. 130 km south of Antofagasta, the capital of the Chilean Region II. The meteorological data measured by the ESO teams favoured Paranal, especially in terms of number of clear nights and amount of turbulence in the atmosphere.
However, while Vizcachas is situated on land that had earlier been acquired by ESO, this was not the case for the Paranal mountain.
ESO was therefore very pleased to learn in 1988 that the Chilean government had decided to donate an area of 725 sq. km around Paranal to this Organisation, on the condition that it would be decided within the next five years to construct the VLT at this site. The size of this land is dictated by the need to avoid any activities (e.g., mining) which may adversely influence the exceedingly sensitive astronomical observations with the VLT. The offer was gratefully accepted by the ESO Council and in November 1988 ESO became owner of the land.
After further detailed considerations of the scientific and technical implications, the ESO Council during its December 1990 meeting decided to construct the VLT on Paranal , thus fulfilling the condition attached to the donation.
The excavation work began at Paranal in 1992. When it was over in late 1993, a total of 300,000 m^3 of rock had been removed, creating a platform large enough for the extensive VLT installations at the top. In December 1993, ESO signed a contract with the Swedish firm SKANSKA-Belfry Ltd. for the construction of the VLT foundations and buildings. The team from this firm joined the other contractors (geological survey, installation of water tanks, etc.) at Paranal in January 1994.
LEGAL PROBLEMS AROUND PARANAL
However, in March 1993, the descendants of Admiral Juan Jose Latorre claimed that a part of the land which was donated to ESO and, in particular, the site upon which the VLT is to be constructed, had earlier been given to the admiral in return for his services to his fatherland during the Chilean wars of the late 19th century. The Latorre family introduced with the Court of Antofagasta a law suit against the State of Chile and against ESO, demanding that its property in this part of the land be recognized, that the land be returned and that damage be paid.
The law suit and several legal actions of the Latorre family connected therewith have been brought to the attention of the public. Related public statements require that ESO makes the following comments and corrections. This is all the more the case since ESO enjoys in Chile a special legal status, the particulars of which are not well known there, apparently not even among members of the legal profession.
The European Organisation for Astronomical Research in the Southern Hemisphere is an International Organisation which carries out its official activities in Chile on the basis of an international treaty that operates between the Government of Chile and ESO. The relations between the Organisation and the Republic of Chile are thus relations between two subjects of international law and they are as such exclusively governed by international law, in particular by the said treaty, i.e., the Convention concluded between ESO and the Government of Chile in 1963.
As this is usual in the relations between International Organisations and their host states, this treaty has been further developed during the years. And as this typically occurs between subjects of international law, related changes have been confirmed by the exchange of diplomatic notes. In an exchange of notes which took place during 1983/1984, the Government of Chile and ESO agreed in particular that ESO's privileges and immunities which derive from the 1963 Convention shall also apply to all future astronomical observatories which ESO would install in Chile with the agreement of the Government.
The Republic of Chile has donated to ESO the Paranal site for the very purpose to erect on Cerro Paranal the Very Large Telescope. The Government thus granted the site to ESO in order to enable the Organisation to fulfill its official purposes in Chile. Consequently, the grant of the land took place within the framework of the existing treaty relations between the Republic of Chile and ESO. In the event that there would be a dispute between these two subjects of international law on any aspect of the matter, Article X of the Convention would apply which provides for dispute settlement by way of international arbitration.
For these reasons ESO could not be involved in the legal dispute pending between the Government of Chile and the Latorre family before the Chilean courts. ESO feels that this dispute constitutes an internal Chilean matter. For the same reasons, ESO has requested the Supreme Court of Chile to apply and enforce in this dispute the Organisation's jurisdictional immunity and the exemption of its possessions from any public, even judicial, interference, as ESO is entitled under the applicable treaty provisions.
ESO notes with satisfaction that the Supreme Court of Chile has recently issued a decision which recognizes the Organisation's privileges and immunities. However, during a first stage of the other legal actions taken by the Latorre family against ESO and its project to erect the VLT there seemed to be a risk that the lower courts in Chile would not be sufficiently familiar with the Organisation's particular status .
In order to reduce this risk, ESO has again resorted to the usual means of communication with the Government of Chile and has asked the Government in a recent "Nota Verbal" to clarify and explain the issue of its privileges and immunities to all competent Chilean authorities, including the courts.
Since ESO has been founded and is funded by eight European States, it is obvious that the Latorre complaint and the various actions of the Latorre family have caused the concern of the ESO member states. It is also nothing more than the usual practice among states that the ESO member states have notified their concern to the Government of Chile by way of a diplomatic note. Of course, neither ESO nor the ESO member states would be able to or even intend to exercise any influence on internal Chilean affairs.
On 15 April 1994, a delegation of the ambassadors of the ESO member states to Chile met with the Minister Secretary of the Presidency, G. Arriagada, and the Under Secretary of Foreign Affairs, J. Insulza, to discuss the Paranal legal problems.
ESO expects that the Chilean courts will eventually decide on the Latorre complaint and it trusts that any consequence such decision may have for its activities on Paranal will be settled between the Government and ESO according to the principles and rules of international law applicable in such situation.
MOST RECENT DEVELOPMENTS
The judge of Antofagasta has rejected another Latorre request for preliminary injunction against ESO to stop the works at Paranal (and also held that ESO cannot, for the time being, sell the mountain).
Yesterday, 20 April 1994, the Chilean Supreme Court in plenary session rejected by a 10/4 vote the request by the Latorre party to send a "Visiting Judge" to Taltal and Antofagasta. It therefore appears that the Chilean courts have come to accept ESO's status and legal position.
The ESO Council has decided to hold an extraordinary meeting at the ESO Headquarters in Garching on 28 April 1994, to discuss the above mentioned developments and to decide about the future actions by this Organisation.
 The Council of ESO consists of two representatives from each of the eight member states. It is the highest authority of the organisation and normally meets twice a year.
 One specific, recent incident has been widely reported: On 17 March 1994, the Latorre party filed with the civil judge of Taltal (the provincial town nearest Paranal) a request aiming at a court injunction against ESO's contractor SKANSKA-Belfi Ltd., for a prohibition to "effect new works" on its alleged property. On 23 March 1994, the judge appeared on Paranal, ordering to close the operations of the contractor. The court order was revoked by the judge of Taltal on 15 April 1994, and the work at Paranal has now started again. However, this work stoppage has incurred significant losses and a damage claim is now being considered.