International law, Sixth edition
The expropriation of foreign property
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International Law MALCOLM N. SHAW
The expropriation of foreign property
292 The expansion of the Western economies since the nineteenth century in particular stimulated an outflow of capital and consequent heavy 289 Note also article 1 of Protocol 7 (1984) of the European Convention on Human Rights to the same general effect as article 13. See, as regards refugees, the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol, and G. Goodwin-Gill, The Refugee in International Law, 2nd edn, Oxford, 1996. 290 See Rankin v. The Islamic Republic of Iran 17 Iran–US CTR, pp. 135, 142; 82 ILR, pp. 204, 214. See also Goodwin-Gill, International Law and the Movement of Persons; Brownlie, Principles, pp. 498 ff., and M. Pellonpaa, Expulsion in International Law, Helsinki, 1984. 291 This is a general principle, but cf. Lord Denning in the Thakrar case, [1974] QB 684; 59 ILR, p. 450. Note that the Lord Chancellor, in dealing with the expulsion of British aliens from East Africa, accepted that in international law a state was under a duty as between other states to accept expelled nationals: see 335 HL Deb., col. 497, 14 September 1972. See also Van Duyn v. Home Office [1974] ECR 1337; 60 ILR, p. 247. 292 See e.g. G. White, Nationalisation of Foreign Property, London, 1961; B. Wortley, Expropri- ation of Public International Law, 1959; A. F. Lowenfeld, International Economic Law, 2nd edn, Oxford, 2008, part VI; M. Sornarajah, The International Law on Foreign Investment, 2nd edn, Cambridge, 2004, and Sornarajah, The Settlement of Foreign Investment Disputes, The Hague, 2000; I. Brownlie, ‘Legal Status of Natural Resources’, 162 HR, 1979, p. 245; R. Higgins, ‘The Taking of Property by the State: Recent Developments in International Law’, 176 HR, 1982, p. 267, and The Valuation of Nationalised Property in International Law (ed. R. B. Lillich), Charlottesville, 3 vols., 1972–5. See also Oppenheim’s International Law, pp. 911 ff.; P. Muchlinski, Multinational Enterprises and the Law, 2nd edn, Oxford, 828 i n t e r nat i o na l l aw investment in the developing areas of the world. This resulted in sub- stantial areas of local economies falling within the ownership and control of Western corporations. However, with the granting of independence to the various Third World countries and in view of the nationalisation measures taken by the Soviet Union after the success of the communist revolution, such properties and influence began to come under pressure. In assessing the state of international law with regard to the expropri- ation of the property of aliens, one is immediately confronted with two opposing objectives, although they need not be irreconcilable in all cases. On the one hand, the capital-exporting countries require some measure of protection and security before they will invest abroad and, on the other hand, the capital-importing countries are wary of the power of foreign in- vestments and the drain of currency that occurs, and are often stimulated to take over such enterprises. Nationalisation for one reason or another is now a common feature not only in communist and Afro-Asian states, but also in Western Europe. The need to acquire control of some key privately owned property is felt by many states to be an essential requirement in the interests of economic and social reform. Indeed it is true to say that extensive sectors of the economies of most West European states were at some stages under national control after having been taken into public ownership. Since it can hardly be denied that nationalisation is a perfectly legit- imate measure for a state to adopt and clearly not illegal as such under international law, 293 the problem arises where foreign property is involved. Not to expropriate such property in a general policy of nationalisation might be seen as equivalent to proposing a privileged status within the country for foreign property, as well as limiting the power of the state within its own jurisdiction. There is no doubt that under international law, expropriation of alien property is legitimate. 294 This is not disputed. However, certain conditions must be fulfilled. 295 1999, pp. 491 ff.; A. Mouri, The International Law of Expropriation as Reflected in the Work Download 7,77 Mb. Do'stlaringiz bilan baham: |
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