Non compensable expropriation analysis

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The United Nations General Assembly Resolution, 1803 of 1962, discusses the concept of expropriation by stating that it shall be based on grounds or reasons of public utility, security or the national interest which are recognized as overriding private interests . The Resolution further goes on to state that in such cases the owner will be paid appropriate compensation, in accordance with the rules in force in the State taking such measures in the exercise of its sovereignty and in accordance with international law .

Expropriation under international investment law could be through direct or indirect means, whereby direct investment would involve formal transfer of title or outright physical seizure , expropriation of property could also occur indirectly through interference by the state in the use of that property or with the enjoyment of its benefits, without seizure or actual possession . Now the law is clear on the seizure of legal title of property to constitute a compensable expropriation ; however there is little guidance on the types of state measures interfering with property rights that do not constitute a compensable expropriation . In this paper, I will analyze the concept of non-compensable expropriation with respect to the measures undertaken by the State for the protection of the environment.

In recent decades, the harmful effect of human activities on the environment and the connection between environmental health and human well-being have become well known and of international concern . Therefore the need for governmental restrictions on environmentally harmful activities has become one of the main measures to tackle this concern .

One of the key tenets of environmental protection is that those responsible fo...

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...itute for Sustainable Development (2012); See also Supra note 9.

Supra note 9.

Supra note 38.

Ibid.

Ibid; See also Marina Azzimonti and Pierre-Daniel G. Sarte, Barriers to Foreign Direct Investment Under Political Instability, Vol. 93, 3 Economic Quarterly 287-315 (2007).

Ibid.

WORKING GROUP I TO THE THIRD ASSESSMENT REPORT OF THE INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE (IPCC), CLIMATE CHANGE 2001: THE SCIENTIFIC BASIS (Cambridge Univ. Press, 2001); See also United Nations Education, Scientific and Cultural Organization (UNESCO), World Water Assessment Programme (WWAP), Facts and Figures: Climate change is intensifying the global hydrological cycle, available at http://www.unesco.org/new/en/natural-sciences/environment/water/wwap/facts-and-figures/all-facts-wwdr3/fact-10-climate-change-hydro-cycle/, last visited on 29th April, 2013.

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