eso9502 — Organisation Release
ESO's Situation in Chile
20 February 1995
ESO, the European Southern Observatory, in reply to questions raised by the international media, as well as an ongoing debate about the so-called "Paranal case" in Chilean newspapers, would like to make a number of related observations concerning its status and continued operation in that country .
THE ESO OBSERVATORY SITES IN CHILE
The European Southern Observatory, an international organisation established and supported by eight European countries, has been operating more than 30 years in the Republic of Chile. Here ESO maintains one of the world's prime astronomical observatories on the La Silla mountain in the southern part of the Atacama desert. This location is in the Fourth Chilean Region, some 600 km north of Santiago de Chile.
In order to protect the La Silla site against dust and light pollution from possible future mining industries, roads and settlements, ESO early acquired the territory around this site. It totals about 825 sq. km and has effectively contributed to the preservation of its continued, excellent "astronomical" quality. Each year, more than 500 astronomers from European countries, Chile and elsewhere profit from this when they come to La Silla to observe with one or more of the 15 telescopes now located there.
In 1987, the ESO Council  decided to embark upon one of the most prestigious and technologically advanced projects ever conceived in astronomy, the Very Large Telescope (VLT). It will consist of four interconnected 8.2-metre telescopes and will become the largest optical telescope in the world when it is ready.
It is safe to predict that many exciting discoveries will be made with this instrument, and it will undoubtedly play a very important role in our exploration of the distant universe and its many mysteries during the coming decades.
THE VLT AND PARANAL
In order to find the best site for the VLT, ESO performed a thorough investigation of many possible mountain tops, both near La Silla and in Northern Chile. They showed that the best VLT site would be the Paranal Mountain, 700 km north of La Silla and 130 km south of Antofagasta, the capital of the Second Region in Chile.
In October 1988, the Chilean Government by an official act donated the land surrounding Paranal (in all 725 sq. km) to ESO. As is the case for La Silla, this would serve to protect the planned, incredibly sensitive mega-telescope against all possible future sources of outside interference. The donation was made on the condition that ESO would indeed proceed with the construction of the VLT at Paranal within the next five years.
The corresponding decision was taken by the ESO Council in December 1990. The construction of the VLT observatory site at Paranal started immediately thereafter, thus fulfilling the condition attached to the donation.
The construction of the VLT is now well advanced. In Europe, the main parts of the first VLT unit 8.2-metre telescope will be pre-assembled later this year and the first two of the enormous mirrors are being polished. In Chile, the extensive landscaping of the Paranal peak was finished in 1993, during which around 300,000 cubic metres of rock and soil was removed to provide a 100x100 sq. metres platform for the VLT, and the concrete foundations are now ready. The installation of the first telescope enclosure can now begin and the next will start later this year. The first of the four telescopes is expected to start observations in late 1997.
All in all, ESO has until now committed about 70 percent of the expected total investment for the VLT, estimated to be approximately 570 million DEM.
THE OWNERSHIP OF PARANAL
According to information later received, the Chilean Ministry of National Properties ("Bienes Nacionales") inscribed in 1977 in its name various lands in the commune of Taltal, including the area of the Paranal peak. At that time, i.e. ten years before ESO decided to construct the VLT, nobody in this Organisation could imagine that this telescope would one day be constructed at that site. It was only seven years later, in 1984, that ESO initiated the search for a future VLT site that ultimately led to the recommendation in favour of Paranal, the subsequent donation by the Chilean Government and the beginning of the construction, as described above.
ESO has never had any doubt on the legality of this donation by the Chilean Government. The Organisation started the work at Paranal in full confidence that this generous act was correct and respected its condition, i.e. to start construction of the VLT observatory within a given time frame.
However, in April 1993, when the work at Paranal was already quite advanced, a Chilean family brought a lawsuit against the Chilean State and ESO, claiming that a small part of the land (about 22 sq. km, including the very peak of Paranal) that was inscribed by the state in 1977, had been property of this family. The lawsuit is presently pending with the competent Chilean courts and it is not known when a final judgement will be given.
In keeping with its status as an International Organisation and conforming to the international practice of such organisations, ESO decided not to become a party in this lawsuit. The Organisation, therefore, has restricted its involvement to merely invoking the immunity from lawsuit and jurisdiction to which it is entitled (see below). ESO believes that the issue of past ownership is an internal Chilean matter.
Nevertheless, it has been widely reported that on January 30, 1995, in response to an appeal by the claimants, a Chambre of the Chilean Supreme Court issued a preliminary decision that may be interpreted as ordering to stop the construction of the VLT during an undetermined period of time. This would seriously delay the entire project and necessarily entail additional, substantial costs.
ESO's relations with its host state, the Republic of Chile, is governed by an international Convention ("Convenio"), signed in 1963 and ratified by the Chilean Congress (Parliament) in 1964. According to this, the Chilean Government "grants to ESO the same immunities, prerogatives, privileges and facilities as the Government applies to the United Nations Economic Commission for Latin America (CEPAL), as granted in the Convention signed in Santiago on 16 February 1953" (Article 4 of the Chile-ESO Convention).
Through this, the Chilean Government has in particular recognized that "the possessions and properties of (ESO) wherever they may be, and whoever may have them in his possession, shall be exempt of registration, requisition, confiscation, expropriation and of whatever interference, may it be through executive, administrative, judicial or legislative action" (Art. 4, Sec. 8, CEPAL Convention).
Such privileges and immunities are not peculiar to the relations between Chile and ESO. They apply, as already mentioned, to CEPAL as well as to all other United Nations' Agencies and they are today typically recognized by the host states of International Organisations throughout the world.
The Chilean Government and ESO agreed in 1983-84 by an exchange of diplomatic notes that these privileges and immunities apply not only to the La Silla observatory, but equally to any other observatory site that the Organisation may establish in the future in the Republic of Chile.
It is obvious that, in order to exclude a possible breach of international law, the reported preliminary decision requires to be considered and interpreted in the light of these privileges and immunities. ESO trusts that the competent Chilean authorities will take the appropriate action and decisions which are required for ensuring the Organisation's international status and its protection from any public interference into its possessions and properties.
In a Press Conference at the ESO Headquarters in Santiago de Chile on February 13, 1995, Mr. Daniel Hofstadt, ESO's highest-ranking representative in Chile, stated on behalf of the Organisation that "ESO is in Chile with the purpose to do science and not to participate in polemics or litigations. For this reason, ESO has until now been silent in these matters, but we have now become obliged to make our opinion known". The ESO representative also made it clear, that "ESO does not question the rights of the claimants to recur to the Chilean Tribunals which must decide on the matter of ownership, and that ESO cannot be party to this lawsuit". He added that "ESO fully trusts that the Chilean Government will do whatever is necessary to defend the immunity of ESO".
THE CURRENT SITUATION
During the past few days, declarations from high officials at the Chilean Ministry of Foreign Affairs have been made which clearly confirm ESO's immunity of jurisdiction from Chilean Courts. The same opinion has been ventured by Chilean experts in international law, quoted in various Chilean newspapers. On Friday, February 17, the Chilean Minister of Foreign Affairs, Mr. Jose M. Insulza, made a similar, very eloquent statement.
ESO welcomes these articulate expressions that support its official position and trusts that the current situation will be speedily resolved by the competent Chilean authorities, so that the construction work at Paranal will not be stopped.
During the past three decades, ESO's presence in Chile has been characterised by good relations to all sides. The development of astronomy in Chile during the past decades has reached such a level that it will now benefit from a new quality of cooperation.
In addition to its past and numerous services to Chilean astronomy, ESO has recently considered to establish a "guaranteed" observing time for astronomers from this country, both at La Silla and the future VLT observatory on Paranal. With a proposed 10 percent quota for the VLT, Chilean astronomers will in fact have free access to the equivalent of 40 percent of one 8.2-metre telescope; the associated, not insignificant cost is entirely carried by ESO. ESO has also considered to incorporate elements of Chilean labour legislation into its rules and regulations for local staff.
These proposed actions are contained in an Amendment to the Convention which was initialled late last year and is now awaiting signature by the Chilean Government and ratification by the Chilean Congress, as well as by the ESO Council.
In conjunction with the present Press Release ESO has prepared a pre-edited video-news reel with video-clips (approx. 4 minutes) about Paranal and the current work there. It is available for TV channels in the usual formats (Beta-SP and M II). Please fax your request to the ESO Information Service (+4989-3202362).
ESO will continue to keep the media informed about further important developments around the VLT Project, in addition to the usual scientific and technological news, available through Press Releases and the ESO house journal, "The Messenger/El Mensajero".