CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ THE INTERPLAY OF FIELDS OF INTERNATIONAL LAW IN CASE OF FOREIGN … API are fitting also into the (broader) category of the necessity of the situation in terms of applicable extended war clause, there is no contradiction in the obligations of the state. Both these concepts address violent situations, including armed conflict. The concept of military necessity is narrower in the sense that it does not embrace all kinds of situations addressed by a typical war clause but demands that the measure is necessary for the attainment of the military purpose. 62 Therefore, it seems to be unlikely that there would be a situation where the military necessity test is met but the very same situation would not meet the criteria of the broader concept of the necessity of the situation as envisaged by the applicable war clause. A similar approach is arguably followed by the ECtHR which have interpreted the requirement of absolute necessity (as required by Art. 2 ECHR) in context of military necessity. 63 What is then the relationship between Art. 52 par. 2 API allowing to target military objects or the exceptions from prohibitions to destroy (referring to military necessity/ necessities of war) and the obligation to accord full protection and security? A typical FPS clause contains no reference to necessity of the situation or public interest. However, it is necessary to look at the other side – also to the norm of IHL in question and interpret its wording, while taking into account its context and object and purpose. 64 The point is that the norm allowing states to direct an attack against private property used for military purposes in the sense of Art. 52 par. 2 API should be read in the context of the prohibition to target civilian objects in general (Art. 52 par. 1 and Art. 48 API) and understood that norm as only an exception to the general prohibition. In other words, this is a situation where a state can follow an IHL norm without breaching the BIT. By not destroying a particular object used for military purposes, the state will honour its obligations under both Art. 52 par. 2 API and the applicable FPS clause. Since the main prohibition to target civilian objects (or similarly, explicit prohibition to destroy enemy/private property) is a prohibition , it can be viewed compatible with the concerned IIL and IHRL norms as it does not require or oblige state to engage in conduct which would lead to the violation of these IIL and IHRL norms. 65 By entering into investment (and arguably human rights) treaties, states significantly limit the freedoms they would normally have during armed conflict. 66 Support for this approach may be arguably found also in case-law, particularly in the two Suez v. Argentina cases where the tribunals held that it would have been possible for Argentina to respect both its obligations equally under investment and human rights treaties without violating the other set of norms. 67 Interestingly, Argentina had suggested that its human rights obligations to assure its population the right to water thwarted its obligations under BITs. It claimed, that the existence of the human right to water gave it the authority to take actions in disregard of its BIT obligations. The tribunal did not agree and stated 62 HAYASHI, N. Requirements of Military Necessity in International Humanitarian Law and International Criminal Law. Boston University International Law Journal , Vol. 28, p. 68. 63 See in detail the analysis in MELZER, N. Targeted Killing in International Law . Oxford University Press, 2008, p. 386, 392-393. 64 Art. 31, par. 1 VCLT. 65 JINKS, D. International Human Rights Law in Time of Armed Conflict. In: CLAPHAM, A. and others (eds). The Oxford Handbook of International Law in Armed Conflict , Oxford University Press, 2014, p. 666. 66 LIUBASHENKO, V. Treatment of Foreign Investments during Armed Conflict: The Regimes. Journal of Conflict and Security Law , Vol. 24, Issue 1, p. 150. 67 Suez, Societad General de Aguas de Barcelona SA and Vivendi Universal SA v Argentine Republic , ICSID Case No. ARB/03/19, Decision on Liability, 30 July 2010, par. 262.

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