CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ WAR: FOREIGN INVESTMENTS IN DANGER … map (for an overview of current armed conflicts) to illustrate the relevance of the question of the effects of armed conflicts on foreign investments. Because armed conflicts are by their nature connected with intensive use of lethal and devastating force, it is very likely that private property including foreign investments will suffer physical damage. That can happen by seizure, pillage or even complete destruction. However, confiscation is another, and very typical, way how armed conflict can directly affect foreign investments when governments consider such a measure to be in the public interest. 7 The aim of this article is to think of particular scenarios and circumstances which can put the foreign investment in jeopardy during an armed conflict, with reference to some examples. In connection with that, the article provides those model scenarios with a prospective legal framework provided by the rules of law of armed conflict and law of international investments with special focus on so-called full protection and security clauses and war clauses. 8 On the basis of that, the article identifies some practical issues and interactions between the fields of law of international investments and law of armed conflict. The aim of this article is not to give definite answers on the level of protection of particular foreign investment. By outlining particular scenarios with a model legal framework, it rather tries to point to some interactions between the law of armed conflict and the law of foreign investments. International law of armed conflict and the law of foreign investments contain multiple kinds of rules which might be applicable in particular scenarios during armed conflict. International law of armed conflict limits the use of force during hostilities by imposing limits on the methods and means of warfare and stipulating the obligations of the parties to the conflict concerning the protection of persons and objects affected by it. 9 In relation to protection of foreign investments, rules concerning the protection of civilian objects, prohibition of pillage and confiscation play a major role. The law of foreign investments addresses specifically foreign investors and foreign investments (definitions of which limit the scope of application of the particular treaty). Investment treaties (usually bilateral) play a major role as a source of the law of international (predominantly with liberalization effects) can indicate relevance of foreign investments for states. See World Investment Report 2016. United Nations Conference on Trade and Development, 2016, available at < http:// unctad.org/en/PublicationsLibrary/wir2016_Overview_en.pdf >. 7 Nevertheless, there are many forms of indirect damage to the investment represented for example by administrative measures (such as cancellation of licenses and concessions or measures having an equivalent effect as expropriation with causal relationship to an armed conflict, where for example foreign banks or telecommunication companies can suffer damage). It can even happen that foreign investors suffer damage from counter-measures conducted against the host state, namely economic sanctions. The restrictive measures (import and export bans) of the European Union and several states against occupied Crimea is one of the recent examples. 8 The author is aware that also norms of international law of human rights related to the protection of property and so-called international minimum standard can be triggered in this topic. However, these are not addressed in this article as its purpose is to identify some overlaps and interactions only between the law of armed conflict and contemporary law of foreign investments. 9 FAIX, M., Law of Armed Conflict and Use of Force: Limiting the Effects of War: International Law of Armed Conflict. Part Two. Palacky University, 2013, p. 5. 2. The range of rules of humanitarian law and the law of foreign investments concerned

531