CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ WAR: FOREIGN INVESTMENTS IN DANGER … bilateral investment treaties provide protection standards to foreign investments with reference to the territory of the host state. When state A is conducting a military operation that leads to the destruction of foreign investment on the territory of state B, state A is not a host state as this investment is not situated in its territory. The typical wording of ‘territory of contracting party’ used in investment treaties is very narrow and it is very difficult to deduce extra-territorial applicability of a bilateral investment treaty (in comparison with the term ‘jurisdiction’ used in the International Covenant on Civil and Political Rights or European Convention on Human Rights which allows discussions on the extent of extraterritorial applicability of its provisions). 42 Moreover, concerning the investments situated in the territory of state B and belonging particularly to investors who have the nationality of state A (the attacking one), those investments seem not to be foreign for state A, and this is another reason why these particular investments should not enjoy the protection provided by the investment treaty concluded between state A and state B. 43 3.2 International armed conflict - belligerent occupation During international armed conflict, part of the territory of one state can be placed under the authority of the hostile party. 44 It is recognised that when the occupier is able to exercise effective control over a territory that does not belong to it and this situation has not been approved by the legitimate sovereign, this part of territory is then under belligerent occupation. 45 Such events occurred several times in recent years 46 and some of them last to this day. 47 The event of belligerent occupation is part of international armed conflict mentioned in the previous subchapter. However, there are specific rules and interesting issues relating particularly to the event of belligerent occupation, so this event is being dealt with separately here. If we want to analyse the fate of foreign investments in an occupied territory, we can compartmentalize the scenario to two points of view to describe the obligations of each party concerned in hostilities: a) the point of view of the occupied state and b) the point of view of the occupying power. As a fitting example, references will be made to the occupation of Crimea by the Russian Federation which took place in spring 2014 and lasts to this day. 3.2.1 Host state and its obligations towards foreign investments situated in the territory occupied by hostile army The protection of foreign investment not situated in the occupied territory of a party to the conflict was dealt with in the previous scenario. With respect to foreign investment 42 DENNIS, M. J., Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation. The American Journal of International Law , Vol. 99, Issue 1, 2005, pp. 119-141. 43 In this case, nationals of the attacking state damaged by its military operations in another country might seek remedies at least under national law. 44 Art. 42 of the 1907 Hague Regulations. 45 VITÉ, S., Typology of armed conflicts in international humanitarian law: legal concepts and actual situations. International Review of the Red Cross , Vol. 91, 2009, p. 74. 46 For example, the occupation of Kuwait by Iraq in 1990 or the occupation of Iraq by the United States until June 2004 (if we agree that formal acts of the Coalition Provisional Authority and Iraqi Interim Government means the end of occupation de iure ). 47 For example, the occupation of Palestinian territory by Israel (Israel was determined to have a status of occupying power by the International Court of Justice in the Wall Case , par. 78, even though Palestine is not a territory of another state), the occupation of Northern Cyprus by Turkey or the occupation of Crimea by the Russian Federation.

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