CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ WAR: FOREIGN INVESTMENTS IN DANGER … civilian objects can be a legal military target if used for military purposes. 79 Finally, pillage is also prohibited in non-international armed conflict. 80 The prohibition of destruction or seizure of the property of an adversary, unless required by military necessity, and the prohibition of pillage are established as norms of customary international law relating also to non-international armed conflict. 81 However, no rule can be identified for non-international armed conflicts which would prohibit the confiscation of private property, nor is there a rule which allows such confiscation. This question is expected to be dealt with in national legislation. 82 When we look into the law of foreign investments, it is only the host state which has obligations arising from particular investment treaties towards foreign investors of a particular nationality (again, if there are any investment treaties). As mentioned similarly in previous scenarios, if full protection and a security clause applies, the host state has the obligation to protect the foreign investments against insurgents and at the same time refrain from acts damaging the investment by its own organs unless the security exception clause or circumstances precluding wrongfulness are triggered. On the other hand, insurgents are not party and therefore bound by investment protection treaties, their personality in international law is only limited. The foreign investors are therefore to a large extent reliant on the host states to ensure the protection of their investments. But the standard of protection provided by the full protection and security clauses is not an absolute one and according to settled jurisprudence, it does not impose strict liability on the host state, as was mentioned. 83 The point is that this fact is all the more noticeable in a war with insurgents. As it is usual (and according to Art. 1 of Additional Protocol II required) that insurgents have effective control over a part of the territory of the state concerned, it is usually likely that the state is objectively unable to protect people and property situated there (similarly as with the occupation in international armed conflict). On the other hand, when suppressing well-armed insurgents, the state may have no choice but to use force as the only effective way of maintaining public order. 84 As many investment treaties contain a security exception clause or that some of general circumstances precluding wrongfulness apply, even the destruction of property by the host state itself during the counter-insurgency operation (to restore peace and order which is the duty of every state) can be in conformity with international law. The more it is true when a relatively wide interpretation of essential security clauses is present, for example in the decisions of the International Court of Justice. 85 Even the extended war clause may not guarantee compensation for a foreign investor if the damage caused by the military operation of the host state was required by the necessity of the situation. Finally, in a non-international applicable to non-international armed conflict, namely Amended Protocol II to the Convention on Certain Conventional Weapons. See Customary International Humanitarian Law, Volume I: Rules , pp. 5-8. 79 Customary International Humanitarian Law, Volume I: Rules, pp. 34-36. 80 Additional Protocol II, Art. 4 par. 2, letter g). 81 Customary International Humanitarian Law, Volume I: Rules , pp. 176-177, 182. 82 Ibid , pp. 181-182. 83 The Protection of Investments in Armed Conflicts , p. 9. 84 As stated in the dissenting opinion of Samuel K. B. Asante to AAPL v. Republic of Sri Lanka award on p. 954: “… in the face of a major insurrection launched by well-armed insurgents engaged in a sophisticated guerrilla warfare against Government forces, it seems unrealistic to expect a major counter-insurgency operation to be preceded by routine police warnings. It does not seem feasible or reasonable to expect the Government to take such a step when launching a sensitive security operation against powerful insurgents … ”. 85 Cases of Nicaragua v. United States or Oil Platforms Case . See Investment Protection in Extraordinary Times … p. 350.

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