CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ WAR: FOREIGN INVESTMENTS IN DANGER … such extended war clauses provide investors with absolute standards of compensation. 19 This is why these clauses are also relevant for scenarios described below. All of these standards are significantly strengthened by the mechanism of dispute settlement established by investment treaties where the investor itself has locus standi against the host state. Additionally, what is also pertinent in relation to the event of armed conflict, investment treaties very often contain general security exceptions in so-called security clauses. According to them (depending on exact wording), duty to protect anchored in the particular treaty does not preclude the right of the host states to take measures necessary for the maintenance of public order, protection of its essential security interests or restoration of peace and security. 20 The conception of essential security interests includes territorial or military interests, among other kinds of interests. 21 Apart from that, the applicability of investment treaties during armed conflict, particularly the suspension or termination of those treaties as a consequence of an armed conflict, is another important issue requiring a deeper analysis. This article is based on the basic principle that existence of an armed conflict does not ipso facto terminate or suspend the operation of an investment treaty unless the particular treaty provides otherwise. 22 However, this issue itself is very broad and the mentioned proposition might not stand the test in certain circumstances. 23 Beside obligations, prohibitions and exceptions arising from the primary norms of humanitarian law and law of foreign investments, circumstances precluding wrongfulness forming a part of secondary norms will also be mentioned as they are very likely to be invoked in extraordinary situations such as war and can undermine the investment protection. Namely force majeure or the state of necessity can be relevant as concepts allowing states to act in a manner which is not in conformity with obligations of international law. 24 However, a related issue worthy of further research is the question of which norms of the law of armed conflict have the character of jus cogens and therefore are inviolable even in the case of force majeure or the state of necessity in the sense of Art. 26 of Draft Articles on the Responsibility of States for Internationally Wrongful Acts adopted by the International Law Commission in 2001 (hereinafter as ‘DARS’). 25 Scenarios and issues When considering the substantial protection of foreign investments during hostilities, it is necessary to delineate particular situations and examples of harmful acts. 26 After that, 19 See SCHREURER, Ch., The Protection of Investments in Armed Conflicts. In: BAETENS, F., Investment Law within International Law. Integrationist Perspectives , Cambridge University Press, 2013, pp. 9-14. 20 The Protection of Investments in Armed Conflicts , pp. 14-16. 21 BURKE-WHITE, W. W., STADEN, A., Investment Protection in Extraordinary Times: The Interpretation and Application of Non-Precluded Measures Provisions in Bilateral Investment Treaties. Virginia Journal of International Law , Vol. 48, Issue 2, p. 351. 22 Draft Articles on the Effects of Armed Conflicts on Treaties adopted by International Law Commission in 2011, Art. 3-4. 23 OSTŘANSKÝ, J., The Termination and Suspension of Bilateral Investment Treaties due to an Armed Conflict. Journal of International Dispute Settlement , Vol. 6, Issue 1, 2015. 24 Principles of International Investment Law , p. 184. 25 For further discussion on that issue, see CHETAIL, V., The Contribution of the International Court of Justice to international humanitarian law. International Review of the Red Cross , Vol. 85, 2003, pp. 235-269. 26 As mentioned in the introduction, this article focuses namely on direct physical damage and some cases of 3.

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