22
the international practice has acknowledged the principles that the compensation must be
adequate, prompt, and effective.93
2. Determination of the just compensation by this Court
60.
This Tribunal reiterates that in cases of expropriation, the payment of a compensation
constitutes a general principle of international law,94 which derives from the need to find a
balance between the public interest and that of the owner. Said principle has been
acknowledged in the American Convention in its Article 21, which states that in order to
deprive someone of their property a “just compensation” must be granted, thus said payment
constitutes, in itself, a requirement to be able to restrict the right to property.95
61.
The Court points out that, in the present case, the expropriation process through which
the price of the property in question is determined is pending within the domestic jurisdiction
(supra para. 48). However, the case was submitted and solved with regard to the merits in this
international jurisdiction on May 6, 2008, and both the State and the representatives have
insisted that this Tribunal has sufficient evidence to determine the value of the just
compensation (supra para. 19). In this sense, even though the Court acknowledges that it
corresponds to the States to establish the standards to determine payment of a compensation
in domestic law for an expropriation, pursuant with its regulations and practices,96 provided
these are reasonable and pursuant with the rights acknowledged in the Convention. In the
present case, it granted the parties a six-month term, computed as of the notification of the
Judgment on the Merits, to reach an agreement, without achieving it. As such, the victim has
waited more than 19 years for the determination of a final amount as fair payment for the
expropriation of her properties. In this sense, it would be unreasonable to continue waiting for
a final judgment from the domestic jurisdiction when the Judgment on the Merits makes
evident the violation of the reasonable time period by the State to solve the matter.97
Therefore, pursuant with the objective and purpose of the American Convention for the
effective protection of the right to private property, and tending to that stated in paragraph
134 of the Judgment on the Merits, the Court will determine the value of the just
compensation in the international process.
a) Standards for the just compensation in international processes
62.
Pursuant to that stated in paragraph 98 of the Judgment on the Merits, in cases of
expropriation, in order for the compensation to be fair and pursuant to the demands of Article
21 of the American Convention, “the market value of the property object of the expropriation
prior to its declaration of public interest must be used, seeking a just balance between the
public interest and the individual interest.”98 According to paragraph 96 of the Judgment on the
Merits, said compensation must be made in an adequate, prompt, and effective manner.
93
Cf. Iran-US Claims Tribunal, INA Corporation V. The Islamic Republic of Iran, supra note 88, 75 ILR, p. 595;
Texaco V. Libya (1978). 17 ILM, pp. 3, 29; 53 ILR, pp. 389, 489, and Aminoil V. Kuwait (1982). 21 ILM, p. 1032; 66
ILR, p. 601.
94
Cf. Article 1 of Protocol No. 1 of the European Court, the Permanent Court of International Justice (PCIJ),
Matter regarding the Chorzów factory (PCIJ), supra note 87, para. 68.
95
Article 21(2) of the American Convention: No one shall be deprived of his property except upon payment of
just compensation, for reasons of public interest or social interest, and in the cases and according to the forms
established by law.
96
Eur. Court H.R., Case Yiltas YILDIZ Turistik Tesisleri A.S. v. Turkey. Judgment of April 24, 2003, para. 38,
and Eur. Court H.R., Case Dacia S.r.l. v. Moldova, supra note 78, para. 45.
97
Cf. Case of Salvador Chiriboga V. Ecuador, supra note 24, paras. 109 and 110.
98
Case of Salvador Chiriboga V. Ecuador, supra note 24, para. 98.