CYIL vol. 10 (2019)

PETR STEJSKAL CYIL 10 ȍ2019Ȏ that Argentina had to equally respect human rights and BIT‘s obligations when it held that “ Argentina’s human rights obligations and its investment treaty obligations are not inconsistent, contradictory, or mutually exclusive ” and that it “ could have respected both types of obligations. ” 68 Alternatively, in accordance with the approach adopted by the ICJ in the NuclearWeapons and the principle of systematic integration, the test of what measures taken by the host state during situation of armed conflict are compatible with the obligation to refrain from damaging foreign investments as anchored in a typical FPS clause should be determined by taking into account the IHL norms that are primarily tailored to govern the conduct of hostilities. 69 In the AAPL v. Sri Lanka case, the tribunal assessed the legality of the host state‘s raid operation against insurgents which led to the destruction of the foreign investment and concluded that the government might had used other means that would have minimized the risk of death and destruction and had failed to take appropriate precautionary measures. 70 Although the tribunal did not specifically refer to IHL norms, its reasoning in the application of the FPS clause resembles the utilisation of IHL standards. If this approach is correct, there is no norms conflict between the two standards of behaviour. Going back to the BITs containing extended war clause, it can similarly be assumed that if such a clause is present (and thus suspending the applicability of FPS clause) and the necessity of the situation so requires, as well as, conditions of Art. 52 par. 2 API are met, the host state can engage acting in accordance with these norms. To the contrary, if the necessity of the situation in terms of the applicable war clause is not present and the particular object only fulfils conditions of Art. 52 par. 2 API, the State is not obliged to engage in an attack against it. Because the state will honour both its obligations by not attacking the object, there is arguably no conflict of norms. This approach would be in conformity with the view adopted by Jenks who wrote that no conflict of norms exists “ when one instrument eliminates exceptions provided for in another instrument, ” even if one of the interacting norms “ loses much or most of its practical importance. ” 71 It is obvious that this conclusion is valid only in the context of the narrow notion of norm conflict as defined above. If one also accepts as a norms conflict the conflict between a permissive norm and an obligation or prohibition, 72 the outcome of this conflict avoidance effort would be different. Thus, the approach to solve conflict of norms is related to the very definition of such a conflict. 73 An interesting question itself is the relationship between the necessity of situation in terms of typical war clause and absolute military necessity or necessities of war in terms of IHL. We could see that the notion of necessity is referred to in several dimensions: 1) necessities of war in Art. 23 letter g) of the 1907 Hague Regulations as an exemption to the prohibition of destruction or seizure of the enemy’s property; 2) absolute military necessity in Art. 53 of the Geneva Convention IV as an exemption to the prohibition of destruction 68 Suez, Sociedad General de Aguas de Barcelona S.A., and InterAgua Servicios Integrales del Agua S.A. v. Argentina , ICSID Case No. ARB/03/17, Decision on Liability, 30 July 2010, par. 240. See also Suez, Sociedad General de Aguas de Barcelona S.A., and Vivendi Universal S.A. v. Argentina , par. 262. 69 Legality of the Threat or Use of Nuclear Weapons , ICJ, Advisory Opinion (1996), par. 25. 70 AAPL v. Sri Lanka , par. 85B. Despite assessing the deaths and destruction caused during the operation, the tribunal eventually assessed the conduct of the government from the point of view of inaction and omission, without finding whether the government was directly responsible for damaging actions. 71 JENKS, W. The Conflict of Law-Making Treaties. British Yearbook of International Law, Vol. 30 (1953), p. 426-427. 72 As recognized by Vranes at p. 395-396. 73 Treaties, Conflicts between , par. 19.

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