CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ THE INTERPLAY OF FIELDS OF INTERNATIONAL LAW IN CASE OF FOREIGN … responsible for failing to comply with its due diligence obligation to provide full protection and security to these investments in the sense of a particular BIT and, on the other hand, the host state might be entitled to target these facilities exploited by hostile non-state actor in the sense of IHL norms governing NIAC. 31 Iraq, Syria and Libya are parties to several BITs (and for example Libya has already faced several investment arbitrations in recent years). 32 These states are also bound by the relevant IHL norms (at least through international customary law. 33 Participation in human rights instruments in terms of number of state parties is, however, usually lower (but for example Libya ratified the African Charter already in 1986). Going back to the paradigm of IAC and example of the conduct of Russia over businesses in Crimea, it is easy to imagine that even during belligerent occupation, it is likely that the adversary will use the infrastructure situated in the occupied territory for military purposes (which can be legal, for example, as a requisition of private property as means of transport for persons or things by land, sea or air in the sense of Article 53 par. 2 of the 1907 Hague Regulations). The point is that if these objects are used for military purposes, they can be legal target of military operation of the host state (if other conditions required by the law of armed conflict are met, among others the principle of proportionality and military necessity). 34 Concerning the case of occupied Crimea, hypothetical examples may include companies producing vessels and hovercrafts or parachutes, 35 or also petrol stations (which serve as an example of the property actually confiscated by Russia). But on the other hand, it can happen that the host state is a party to BIT guaranteeing full protection and security concluded with the national state of the investor whose assets the host state intends to target in order to defeat occupying forces. Similarly, the host state can also be a party to one of the above mentioned regional human rights treaties guaranteeing the right to property. 36 The question therefore arises whether the host state is allowed to engage in the attack against such infrastructure used for military purposes in conformity with the above mentioned IHL rules, or whether it is barred from doing so by the FPS clause in the applicable BIT and/or by the human right to property (as guaranteed for example by Art. 1 of the Additional Protocol to European Convention on Human Rights). Finally, one can also think of a conduct of cross-border hostilities (short of belligerent occupation between states in an international armed conflict where for example factories situated in state B would be a military objective of state A. However, such factory would not be a foreign investment situated in the territory of state A and FPS clause of the BIT to which that state is a party would not apply in this scenario, leaving only IHL and IHRL norms 31 For example, the US conducted strikes against the oil infrastructure, tanker trucks and refineries in Iraq to cut- off ISIS from the source of finance (assuming that these strikes were conducted with the consent or upon request of Iraq as the host state). See Ryk-Lakhman , p. 189. 32 PETERSON, L. E. Libya Round-Up: New Investment Treaty Claims, New Rulings, and Updates on Arbitrator Appointments [online]. iareporter.com, May 23, 2019 [accessed on May 29, 2019]. Available at < https://www. iareporter.com/articles/libya-round-up-new-investment-treaty-claims-new-rulings-new-set-aside-petitions-and- updates-on-arbitrator-appointments/ >. 33 Customary International Humanitarian Law, Volume I: Rules , pp. 176-177, 182. 34 API, Art. 52 par. 2. 35 Three years of the annexation of Crimea: the lost Ukrainian military-industrial complex and how to restore [online]. world.24-my.info, March 4, 2017 [accessed on May 29, 2017]. Available at < http://world.24-my.info/three-years- of-the-annexation-of-crimea-the-lost-ukrainian-military-industrial-complex-and-how-to-restore/>. 36 Ukraine is a party to the Additional Protocol to European Convention on Human Rights.

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