Indirect Expropriation in International Law
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Indirect Expropriation in International Law

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.
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Chapter 8: Conclusion

Sebastián López Escarcena


Trying to establish when a state measure is compensable as an indirect expropriation feels like walking towards the horizon: one is apparently closer, but actually never there. At the end, you can only point others in what you think is the right direction, and walk with them towards this elusive destination. This is a common problem in international and comparative public law. Some rules are nothing more than principles, i.e., standards which acquire a specific content in their application to a concrete situation. This is the case with notions like arbitrariness, reasonableness, margin of appreciation or discretion. Several of these concepts can be found in the international law of expropriation. Not only public purpose, non-discrimination, prompt, adequate and effective compensation, and due process, but also deprivation, police-powers, legitimate expectations and proportionality: all of them are open standards which merely orientate interpreters in a direction. The main principle guiding the answer to the threshold question is part of a minimum treatment currently required by investment treaties and regional human rights conventions. This international minimum standard of treatment protects property against takings, by recognising the right of states to expropriate under certain conditions. One of these requirements is the payment of compensation for substantial and permanent deprivations, unless the circumstances allow for the application of a limited police-powers exception.

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