CYIL vol. 10 (2019)

PETR STEJSKAL CYIL 10 ȍ2019Ȏ applicable to conduct over FI situated outside the host state. 37 From the broader perspective, the IIL could come into play in different types of situations. It is not difficult to imagine a scenario where the host is not able to perform its monetary contractual obligations towards foreign businesses as a consequence of war or that the state even expropriates property representing assets of a foreign investor to fuel its war expenditures. 38 In this situation, IIL would be applicable and most probably the clauses relating to expropriation. Arguably, FPS clause could be triggered in situations where the host state did not protect the foreign investments situated in its territory from damage caused by the hostile army, thus breaching its obligation to provide full protection and security. The failure to protect FI against damage caused both in context of NIAC or IAC, however, raises another type of questions – the relationship between the content of the standard of due diligence of the FPS clause (actions or omissions of the host state leading to harm but not frustrating the standard) and force majeure or the state of necessity on the level of the rules of state responsibility (secondary normativity). 39 4. Norm conflict and the model for its avoidance / solution Given the above mentioned interactions, how to identify whether they constitute a norm conflict and how to solve such a conflict? It is necessary from the beginning to delineate what type of interactions qualify as a norm conflict and thus need to be dealt with in the process of the application. A norm conflict is present when compliance with one particular norm (thus not the whole legal regime) leads to a breach of the other 40 or when the state cannot simultaneously honour its obligations under both. 41 This narrow notion of the norm conflict (that conflict exists in a situation of mutually exclusive obligations, thus excluding the possibility of conflicts between express permissions and duties or a norm conflict caused by the mere existence of a norm frustrating the purpose of another) 42 seems to be prevailing 43 and thus will be applied in the following analysis. However, there are also different views. 44 The literature is also rich on the methods of norm conflict solution. Qualification of the relationship between the IHL and IHRL as of lex specialis (special being the former one) resonates very often in literature. However, such qualification has to be done in a logical manner reflecting the existing norms of general international law. What seems to be a justified and well-grounded approach is to divide the analysis into two steps. 45 At first, conflict avoidance methods should be utilised. Provided that clauses indicating the priority 39 See in detail an interesting analysis made by Zrilič (ibid) . He developed an argument that circumstances of force majeure can inform the duty of due diligence. The question is whether similar approach could be adopted with regard to the state of necessity. 40 Milanović, p. 465. 41 BORGEN, C. J. Treaty Conflicts and Normative Fragmentation. In: HOLLIS, D. B. The Oxford Guide to Treaties , Oxford University Press, 2012 p. 455. 42 Ibid , p. 455. 43 VRANES, E. The Definition of ‘Norm Conflict‘ in International Law and Legal Theory. European Journal of International Law , Vol. 17, Issue 2, p. 395, 398, 400, 402. 44 For detailed analysis and arguments against the narrow notion of norms conflict, see Vranes. 45 MILANOVIĆ, M., A Norm Conflict Perspective on the Relationship between International Humanitarian Law and Human Rights Law. Journal of Conflict & Security Law , Vol. 14, Issue 3, p. 463, 465. 37 International minimum standard is not dealt with in this paper. 38 ZRILIČ, J. Armed Conflict as Force Majeure in International Investment Law. Manchester Journal of International Economic Law , Vol. 16, Issue 1, p. 39-40.

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