CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ WAR: FOREIGN INVESTMENTS IN DANGER … the content of particular investment treaties (if any will be applicable between the parties to the conflict at all). Therefore, besides the overall influence of foreign investments on the economic success and social stability of the particular region (and vice versa), also the legal norms of the law of armed conflict and the law of foreign investment show some degree of interaction. Concerning the scenario of international armed conflict, we can see that the law of armed conflict can protect foreign investments against harm through the general obligation at all times to distinguish between military and civilian objects while obeying the principle of military necessity and proportionality and by prohibition of pillage. In the law of foreign investments, a foreign investor may enjoy more specific and generous standards of protection. Moreover, a very significant feature of the law of foreign investments is the mechanism of dispute settlement where the investor himself has locus standi against the host state to seek compensation. However, a foreign investor may enjoy those rights only if a particular investment treaty is applicable in the case and probably only against the acts of a host state due to the narrow scope of application of investment treaties. 104 An interesting question arises when there is a contradiction between the obligations arising from the law of armed conflict and the law of foreign investments if for example the foreign investment is a legitimate military target for the host state according to humanitarian law but it is protected by a bilateral investment treaty, whereas at the same time a security exception clause is not present or its conditions are not met - which obligation on the side of the host state should prevail? More specific is the situation of belligerent occupation. Concerning the conduct of the occupying state, the territorial limitation of obligations enshrined in investment treaties seems to be an obstacle for foreign investors when demanding standards of protection anchored in investment treaties. Besides, certain objects belonging to private persons which can be used for military purposes can be requisitioned by the occupying power. But still, certain contradictions and interactions between the law of armed conflict and the law of foreign investment are apparent in the scenario of belligerent occupation. Namely, the question whether the sole Art. 43 of the 1907 Hague Regulations can cause a shift of obligations arising from investment treaties concluded by the occupied state to the occupying power is very interesting with relevance for real cases concerning the occupation of Crimea. The humanitarian law regime of non-international armed conflicts is not so comprehensive as the one of international armed conflicts. However, as outlined with references to customary law study of the International Committee of the Red Cross, many rules of international armed conflict apply to non-international armed conflict as well, 105 including those related to the protection of private property (except for rules relating to belligerent occupation, which is not acknowledged by norms of non-international armed conflict). Concerning the law of foreign investments, not insurgents but only the host state is bound by full protection and security and other clauses contained in those treaties, which means that conduct of only one party to the conflict is covered by the law of foreign investments. On the other hand, there is a question of the responsibility of the host state in the situation when an 104 However, at least an international minimum standard applies, albeit its content towards property of aliens and, for example, the relationship to fair and equitable treatment standard would deserve a deeper analysis which is not the goal of this article. See for example SORNAJAH, M., The International Law on Foreign Investment .

3rd edition, Cambridge University Press, 2010, pp. 345 and following. 105 What Exactly Internationalizes an Internal Armed Conflict? [online].

547