408 The taking of foreign property "The requirement is kept alive inthe practice of states. Thus, the notes of both the United ‘States and the United Kingdom protesting against the Libyan oil nationalisations refer to the belief of these states that the nationalisations were not motivated by reasons of public utility.'® These reasons were also pressed before the arbitral tribunals which later came to deal with the disputes arising from the Libyan nationalisations, There is little doubt that the requirement will be used as necessary for lawful nationalisations in the future, but it is unlikely that it will constitute more than a subsidiary, throwaway argument for illegality. ‘The requirement of public purpose is stated in the American Law Institute's Restatement on Foreign Relations Law.'°° But, in the commentary thereto, the significance of the requirement is played down, The commentary reads:!"” ‘The requirement that a taking be for a public purpose is reiterated in most formulations ofthe rules of| international law on exproprations of foreign property. That limitation, however, has not Ggured prominenly in international claims practice, peshaps because the concept of public purpose is broad and not subject 1 effective re-examination by other states. Presumably, a seizure by a dictator or oligarchy for private use could be challenged under this rule. In the course of the disputes arising from the Libyan nationalisations, the public purpose requirement was given a new lease of life, with the argument that, where a nationalisation is, motivated by way of reprisal, it would lack public purpose and should therefore be considered unlawful. In the BP award, which arose from these nationalisations, Judge Lagergren found the nationalisation to be illegal on the ground that the taking ‘clearly violates principles of international law as it was made for purely extrancous political reasons and was arbitrary and discriminatory in character’ But, in the Liamco award," Arbitrator Mahmassani dismissed the argument based on the requirement of a public purpose in the following terms; As to the contention that the said measures were politically motivated and not in pursuance of a legitimate public purpose, it is the general opinion in international theory that the public utility principle is not a necessary requisite for the legality of nationalisation. This principle was mentioned by Grotius and other publicists, but now there is no international authority, from a judicial or ther source, to support its application to nationalisation. Motives are indifferent to international law, each state being fee to judge for itself wit it considers useful or necessary for the pubic good ... The object pursed by i is of no concern to tind parties, ‘These trends accord with the view taken by the European Court of Human Rights in deciding whether the taking had 2 public purpose. The Court has held that it will not, as a general principle, question the state's view thatthe taking was in the public interest. The Court said:'7” ‘The Cour finding it natural thatthe margin of appreciation available to te legislature in implement social and economic policies shouldbe a wide one, will espoct the legislature's judgment as to wit i “in he public interes unless the judgment be manifest'y without reasonable foundatc "edhe US semen, se (192) 121496001271, tcl 7200). Yo. 2, p20, (SID Shh 96 aE 317 (I) 20, James Us inn (198) 8 BHR 12