Chapter 8
Lawful Versus Unlawful Expropriation: Heads I Win, Tails You Lose


Christina L. Beharry

I. INTRODUCTION

There is an intrinsic connection between State sovereignty and territorial control over natural resources.  Regarded as both integral to national patrimony and an opportunity for economic development, it is no wonder that some of the most impassioned debates in international law have been over claims to natural resources.  Tragically, some of these disputes have escalated into violent conflicts. 

For developing States, technical assistance and access to foreign capital is oftentimes essential to exploit these sources of natural wealth.  Over time countries may reassess arrangements with foreign investors regarding the exploitation of natural resources.  The impetus for change may gain momentum during transitions of power or periods of economic hardship.  As Judge Charles De Visscher wrote in his seminal 1968 treatise: 

From the political point of view, which is important in this context, we must not, however, overlook the risks necessarily incident to concessions granted to foreign enterprises when these relate to the exploitation of important national resources or are granted for a very long term.  The awakening of national sentiment is likely to cast them in the light of intolerable mortgages on public life, wrested from a regime which did not represent opinion.