EXPROPRIATION AND INTERNATIONAL LAW: PROPERTY PROTECTION STANDARDS IN HISTORICAL PERSPECTIVE

Abstract

This contribution traces the evolution of international legal protection for foreign-owned property from the late nineteenth century to the present. It begins by examining the pre-1900 era, when private property was largely deemed inviolable and disputes were governed by host-state treatment, before turning to the principal justifications states have invoked for takings—chiefly claims of rectifying past injustice (war, colonialism) and the pursuit of legitimate public policy. The main part of the analysis charts four successive protection standards: the Minimum Standard Treatment developed in the aftermath of the Mexican and Russian revolutions; the Hull Doctrine’s demand for “prompt, adequate and effective” compensation; the compromise standard of “appropriate compensation” that emerged during decolonization; and the “fair and equitable treatment” standard that has dominated bilateral investment treaties since the 1990s. Each standard is situated within its historical and political context, alongside the principal criticisms it attracted. The contribution concludes that, while debates over the fundamental legitimacy of investment protection and the quantum of compensation have largely subsided, contestation persists over indeterminate treaty language and the balance between investor protection and states’ regulatory autonomy—a tension the article identifies as structurally irreducible.