CYIL vol. 8 (2017)

PETR STEJSKAL CYIL 8 ȍ2017Ȏ the case of absolute military necessity. Considering the confiscation of foreign investments on occupied territory, the investor is protected by Art. 46 of the 1907 Hague Regulations according to which private property cannot be confiscated. This rule is also of a customary nature. 57 But, according to Art. 53 of the 1907 Hague Regulations, certain objects belonging to private persons which can be used for military purposes (means of transport, devices for the transmission of news, war material and ammunition) can be requisitioned by the occupying power (which differs from confiscation), but it must be returned and compensation must be provided when peace is made. Moreover, according to Art. 52 of the 1907 Hague Regulations, requisitions in kind and services for the needs of the army of occupation are not prohibited. The applicability of investment protection treaties addressing the conduct of the occupying power is ‘a little bit more tough nut to crack.’ Investment treaties usually contain full protection and security clauses, war clauses, and also clauses dealing with conditions of expropriation. But investment treaties at the same time limit the scope of geographical application of host-state obligations to the territory of that state. 58 Not mentioning the fact that, in a particular case, no investment treaty may exist between the parties to the conflict at all. But the point is that belligerent occupation does not change the status of the occupied territory. 59 Also annexation does not end the status of belligerent occupation as international law does not recognize it as a lawful way to acquire foreign territory. 60 Such territory therefore remains part of the occupied state. 61 Therefore, the application of standards of treatment arising from investment treaties in the annexed territory is difficult (as mentioned before, unlike the term ‘jurisdiction’ in human right treaties, the term ‘territory’ is difficult to interpret in a broader sense). 62 However, the application of investment treaties, particularly those concluded by the occupied state, to the conduct of the occupying state in the territory it occupies might seem not to be excluded absolutely. We need to leave the area of the law of foreign investments and look back into the law of armed conflicts. The point is that Art. 43 of the 1907 Hague Regulations states that the occupying power ‘shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.’ On the basis of this provision, some authors conclude that the collocation ‘the laws in force in the country’ includes international treaties, 63 therefore also legal obligations that the occupied state owed to foreign investors under its investment treaties in force before the occupation. 64 In other words, the occupying power might be 61 In the case of occupied Crimea, the UN General Assembly adopted Resolution 68/262 supporting the territorial integrity of Ukraine, where 100 states voted for adoption of this resolution, 58 abstained and only 11 voted for rejection. 62 The Protection of Investments in Disputed Territories: A Panel Hosted by BIICL’s Investment Treaty Forum [online]. kluwerarbitrationblog.com, May 17, 2017 [accessed on May 24, 2017]. Available at < http://kluwerarbitrationblog. com/2017/05/17/the-protection-of-investments-in-disputed-territories-a-panel-hosted-by-biicls-investment-treaty- forum/ >. 63 Belligerent Occupation. In: Max Planck Encyclopedia of Public International Law [online]. opil.ouplaw.org, May 2009 [accessed on February 2017]. Available at < http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/ law-9780199231690-e359?rskey=RZQdL9&result=1&prd=EPIL >. 64 Ukraine Crisis Raises Questions For Foreign Investors [online]. law360, September 9, 2014 [accessed on May 29, 2017]. Available at < https://www.law360.com/articles/575041/ukraine-crisis-raises-questions-for-foreign-investors >. 57 Customary International Humanitarian Law, Volume I: Rules , p. 179. 58 The Law of Investment Treaties , p. 188. 59 Geneva Convention IV, Art. 47; Additional Protocol I, Art. 4. 60 The Handbook of International Humanitarian Law , p. 280.

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