Marckx
, European Court of Human Rights, Series A, No. 31; 58 ILR, p. 561;
Sporrong
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
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