Indirect Expropriation in International Law

Indirect Expropriation in International Law

Leuven Global Governance series

Sebastián López Escarcena

Sebastián López Escarcena offers a comprehensive coverage of the history and main concepts of the international law of expropriation. The interaction between human rights conventions and investment treaties are analysed from a global perspective, providing the reader with a unique insight into expropriation at an international level. Within the course of his examination, the author illuminates important concepts of public law, from deprivation of property to payment of compensation, and from margin of appreciation to proportionality.

Chapter 3: Expropriation in human rights law

Sebastián López Escarcena

Subjects: law - academic, public international law

Extract

Property is not only at the centre of the protection of aliens, and of international investment law: it is also a human right under international law. Although property was included in the 1948 Universal Declaration of Human Rights, it was not considered within those rights listed in the 1966 International Covenants of the UN on Civil and Political Rights, and on Economic, Social and Cultural Rights. At the regional level, property has been a part of the European, American and African systems since 1952, 1969 and 1981, respectively. Article 21 of the American Convention on Human Rights, and Article 14 of the African Charter on Human and Peoples' Rights, protect property against eventual deprivations, or encroachments on it. Neither of these provisions, however, have been interpreted and applied extensively. The most complex and influential case-law on the issue is the one derived from Article 1 of the First Optional Protocol of the European Convention on Human Rights, which has been developed by the European Commission and the Court of Human Rights, far from the ideological debate at the UN between capital-importing and capital-exporting states, and the emergence of international investment law. According to Article 1 of the European Convention, as construed by these institutions, the state is not prevented from interfering with the use of property. A measure that produces this result is justified when the correspondent authorities observe a fair balance between individual and community interests. For this purpose, the state is given a wide margin of appreciation.

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