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 4: The approach of the Iran-US Claims Tribunal

Sebastián López Escarcena

Subjects: law - academic, public international law


The Iran-US CT was set up in 1981 as part of a political compromise reached by the Iranian and US governments. In conformity with its constitutive treaty, the tribunal was established to settle disputes between the nationals of both states arising out of interferences with an international minimum standard of treatment, which protected them against expropriations and other measures affecting property rights. No definition was given in this instrument to property. The Iran-US CT chose the traditional wider notion of foreign investment, comprising tangibles and intangibles. It interpreted expropriation as covering both de jure and de facto takings, the latter derived not only from acts but also from omissions. Before the establishment of the Iran-US CT, only a handful of decisions given by claims commissions, the PCIJ, arbitral tribunals and the ICJ, had referred to the expropriation of aliens. The judgments of the Iran-US CT formed the first clear and detailed international case-law on this issue. The link between expropriation, taking and deprivation was thus established in a generally coherent jurisprudence, which illustrates when an act is expropriatory, and when it is not. The tribunal recognised and developed the protection against expropriation included in the minimum standard of customary international law, without losing sight of the jurisdiction given in its constitutive treaty. The Iran-US CT did not hesitate to solve the thorny issue of the state's intent at the moment of taking the property of an alien.

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