Abstract
Contemporary international law increasingly rejects the notion of autonomous legal regimes, favoring a pluralist order grounded in normative interaction. Within this framework, international investment law (IIL) emerges, not as an autonomous, but as a specialized regime embedded in public international law and operating in normative interaction with other regimes, particularly international human rights law (IHRL). The doctrine of expropriation constitutes the central interface between these regimes, where the protection of foreign investors’ property intersects with states’ sovereign regulatory authority in pursuit of public welfare and human rights obligations.
This article examines expropriation through the distinction between a priori rights, grounded in human dignity and justice, and posteriori treaty-based protection emanating from state consent. It argues that prevailing arbitral jurisprudence has predominantly privileged proprietary interests through compensation-centered reasoning, often marginalizing broader public-law values embedded in IHRL. The result is a legitimacy deficit, especially in expropriation cases involving states’ regulatory measures.
This article contends that existing analyses remain incomplete because they focus predominantly on legality rather than legitimacy. In response, it advances a legitimacy-oriented framework grounded in proportionality and systemic integration. This methodology seeks to balance investors’ economic interests with states’ regulatory powers in furtherance of development and public welfare objectives. Recognizing a priori normative status of human rights does not undermine investor protection; rather, it requires recalibrating such protection within a coherent public international law framework. Ultimately, the legitimacy of expropriation adjudication lies not in hierarchical regime prioritization, but in public law methodology capable of reconciling property protection with human-rights-based state regulation.