CYIL vol. 8 (2017)

PETR STEJSKAL CYIL 8 ȍ2017Ȏ international armed conflict. 102 Another view is that such a situation should be considered as non-international armed conflict even if the intervening state is acting without the consent of the territorial state, unless the organs and assets of the territorial state became the target of military operations of the intervening state. 103 If we get the answer to categorization of one of the three abovementioned situations as non-international or international armed conflict, we can finally ask what is different from the perspective of the protection of foreign investments in those scenarios where three different parties can harm foreign investment (host state, insurgents, intervening state) in comparison to ‘basic’ scenarios of international or non-international armed conflicts mentioned in previous subchapters. In other words, distinguishing the intervening state as a new element, we may ask which obligations the intervening state has to undertake towards foreign investments and whether existence of that element may have further significance for the obligations of the territorial state towards foreign investments on its territory. At first sight, the obligations of both states arising from the law of armed conflict do not seem to differ from previous scenarios. When acting military operations in the territorial state, both parties are bound by obligations mentioned in previous subchapters depending on the category of armed conflict (whether international, international associated with belligerent occupation or non-international). The question of applicable standards arising from the law of foreign investment seems to be more distinct. Concerning intervention on the side of the established government, it seems that there are no grounds for finding the intervening state to be bound by its own investment treaties when acting on the territory of another state with its consent. Concerning the territorial-host state, we may ask whether the fact that a foreign state conducts military operations on the territory of the host state may have further significance for obligations of the host state towards foreign investments on its own territory. Namely, the threshold of due diligence obligation arising from full protection and security clauses to accord protection towards foreign investments might be concerned both by the invitation of a foreign army to take part in counter-insurgency operations or by not protecting its own territory against consent-lacking interventions of foreign states (depending on the capacities of the host state to prevent such intervention). Conclusion Armed conflict is an event which can seriously harm foreign investments situated in a war zone. Either the law of armed conflicts or the law of foreign investments contain several rules relevant for the protection of foreign investments. But practically, the status of foreign investments will differ in particular circumstances depending on the facts of the conflict and 102 ICRC, Commentary on the First Geneva Convention, 2016, Common Article 2, par. 260-261; FLECK, D., BOTHE, M., The Handbook of International Humanitarian Law , 2nd Edition, Oxford University Press, 2008, p. 608; EJIL Talk! Book Discussion: Some Considerations on Intervention Against Non-state Actors in Foreign Territory [online]. ejiltalk.org, May 31, 2017 [accessed on May 31, 2017]. Available at < https://www.ejiltalk. org/ejil-talk-book-discussion-some-considerations-on-intervention-against-non-state-actors-in-foreign-territory/ comment-page-1/ >; for several convincing arguments see also Are Extraterritorial Armed Conflicts with None-State Groups International or Non-International? [online]. ejiltalk.org, October 18, 2011 [accessed on May 31, 2017]. Available at < https://www.ejiltalk.org/are-extraterritorial-armed-conflicts-with-non-state-groups-international-or- non-international/ >. 103 Classifying the Conflict in Syria, p. 353. 4.

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