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pointed out that at the moment when a foreigner is allowed to enter the host state,
this state has certain rights and responsibilities related to the home state of the
foreigner.
30
The state has no obligation to accept all possible investments and thus
constrain its own sovereignty.
31
Once the state allows the investment, it is subject to
minimum standards of investment protection.
32
Consequently, it is necessary to
limit state sovereignty in order to establish an investor-friendly environment.
33
The treatment of aliens also helped to develop international customary rules for
the protection of alien property.
34
The rules on the treatment of aliens do not forbid
the expropriation of foreigners, as long as the expropriation happens because of
public needs or interests.
35
The treatment of aliens has always been an important
issue of international law and disputed because of different approaches
(e.g. supported by either developed or developing countries).
36
There are two
approaches towards the level of protection, which are the principle of national
treatment and the international minimum standard.
37
The first one is mainly
supported by developing countries and stipulates that all aliens are to be treated
like nationals, whereas the second approach (championed by developed countries)
encompasses a minimum standard for foreigners, even if it is above the national
standard.
38
In 1868, the Argentine jurist Carlos Calvo introduced the idea (Calvo
Doctrine) that
) be understood as allowing the
host state to reduce the protection of alien property when also reducing the
guarantees for property held by nationals.
(
...
) the international rule should (
...
'
39
In 1938, US Secretary of State Cordell
Hull mentioned in a dispute between the US and Mexico that
'
international law
'
allowed expropriation of foreign property, but required (
...
) prompt, adequate and
(Hull Formula).
40
This dispute took place between the
nineteenth and twentieth century and the sum of all approaches created the inter-
national minimum standard.
41
With the fall of the Soviet Union in the 1990s, the
effective compensation (
...
)
'
30
ICJ [1955] Nottebohm Case (second phase)—Dissenting Opinion Judge Read, 34 (46-47).
31
Maier (
2010
), 95 (104); Dolzer and Schreuer (
2008
), 7; Harten (
2007
), 83; cf Zampetti and
Sauv
´
(
2007
), 211 (220).
32
Harten (
2007
), 87; Dolzer and Schreuer (
2008
), 7.
33
Dolzer and Schreuer (
2008
), 9.
34
Herrmann et al. (
2007
),
§
17 para 789; cf Michaelis, Salomon in Hilf and Oeter (
2010
),
§
15 para 7.
35
Schweisfurth (
2006
), 591 para 58.
36
Shaw (
2008
), 823.
37
Shaw (
2008
), 824.
38
Shaw (
2008
), 824.
39
Lowenfeld (
2008
), 473; This doctrine was a reaction towards the so-called gunboat diplomacy
of some states, in: Dolzer and Schreuer (
2008
), 12
40
Dolzer and Schreuer (
2008
), 13; Lowenfeld (
2008
), 475-476.
41
Sch
obener et al. (
2010
), 228, Kap. 4 §15 para 25; Krajewski (
2009
), 172; Dolzer and Schreuer
(
2008
), 13.
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