International law, Sixth edition
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International Law MALCOLM N. SHAW
and L¨onnroth, ECHR, Series A, No. 52; 68 ILR, p. 86; Loizidou v. Turkey, Judgment of
18 December 1996; 108 ILR, p. 444. See also e.g. Jacobs and White European Convention on Human Rights (eds. C. Ovey and R. C. A. White), 4th edn, Oxford, 2006, chapter 15. However, it has been held that the reference to international law did not apply to the taking 830 i n t e r nat i o na l l aw The property question Higgins has pointed to ‘the almost total absence of any analysis of concep- tual aspects of property’. 300 Property would clearly include physical objects and certain abstract entities, for example, shares in companies, debts and intellectual property. The 1961 Harvard Draft Convention on the In- ternational Responsibility of States for Injuries to Aliens 301 discusses the concept of property in the light of ‘all movable and immovable property, whether tangible or intangible, including industrial, literary and artistic property as well as rights and interests in property’. In the Liamco case the arbitration specifically mentioned concession rights as forming part of incorporeal property, 302 a crucial matter as many expropriation cases in fact involve a wide variety of contractual rights. 303 The nature of expropriation 304 Expropriation involves a taking of property, 305 but actions short of direct possession of the assets in question may also fall within the category. The 1961 Harvard Draft would include, for example, ‘any such unreasonable interference with the use, enjoyment or disposal of property as to justify an inference that the owner thereof will not be able to use, enjoy or dispose of the property within a reasonable period of time after the inception of such interference’. 306 In 1965, for example, after a series of Indonesian decrees, the UK government stated that: by a state of the property of its own nationals: see Lithgow, European Court of Human Rights, Series A, No. 102; 75 ILR, p. 438; James, ECHR, Series A, No. 98; 75 ILR, p. 397 and Mellacher, ECHR, Series A, No. 169. See also Brock, ‘The Protection of Property Rights Under the European Convention on Human Rights’, Legal Issues of European Integration, 1986, p. 52. 300 Higgins, ‘Taking of Property’, p. 268. 301 55 AJIL, 1961, p. 548 (article 10(7)). 302 20 ILM, 1981, pp. 1, 53; 62 ILR, pp. 141, 189. See also the Shufeldt case, 2 RIAA, pp. 1083, 1097 (1930); 5 AD, p. 179. 303 See also below, p. 839, concerning the definition of ‘investments’ in bilateral investment treaties. See also article 1(6) of the European Energy Charter Treaty, 1994. 304 See e.g. R. Dolzer and C. Schreuer, Principles of International Investment Law, Oxford, 2008, chapter 6. 305 The North American Free Trade Agreement (NAFTA) Arbitration Tribunal noted that the term ‘expropriation’, ‘carries with it the connotation of a “taking” by a government-type authority of a person’s “property” with a view to transferring ownership of that property to another person, usually the authority that exercised its de jure or de facto power to do the “taking”’, S.D. Myers v. Canada 121 ILR, pp. 72, 122. 306 55 AJIL, 1961, pp. 553–4 (article 10(3)a). s tat e r e s p o n s i b i l i t y 831 in view of the complete inability of British enterprises and plantations to exercise and enjoy any of their rights of ownership in relation to their properties in Indonesia, Her Majesty’s Government has concluded that the Indonesian Government has expropriated this property. 307 In Starrett Housing Corporation v. Government of the Islamic Republic Download 7,77 Mb. Do'stlaringiz bilan baham: |
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