CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ WAR: FOREIGN INVESTMENTS IN DANGER … to the law of armed conflict. 108 If this is correct, we can see another overlap between the law of armed conflict and the law of foreign investments. In conclusion, the scope of application of norms of international humanitarian law is quite wide and a foreign investor can enjoy the protection of his investment stemming from certain standards of conduct towards civilian property (namely, those relating to the principle of distinction and protection of civilian objects). However, humanitarian law allows parties to the conflict to act in a damaging way towards civilian objects under certain conditions when pursuing a legitimate military objective. International law of foreign investments, on the other hand, provides the foreign investor with more generous standards of treatment and stronger enforceability (at least theoretically) of his rights through the mechanism of dispute settlement. However, the standards of treatment and investor’s locus standi are dependable on the existence and content of investment treaty in particular situation. If we look at the lists of investment treaties binding particular states, we can see that only foreign investors from certain states enjoy treaty protection (see for example, Libya). 109 Moreover, where there is an investment treaty concluded by parties to the conflict, the protection provided by these treaties seems to be limited in times of armed conflict as it does not substantially cover the conduct of all the parties to the conflict and even in the situation where the state leading a military operation is bound by a particular investment treaty, its standards of protection may be evaded if a qualified exception is triggered. Even more complicated is the level of practical enforceability of obligations from both humanitarian law and law of foreign investments. Therefore, also the jurisdictional issues and enforceability of arbitral awards shall not be left out when assessing how foreign investment is protected during armed conflict (not mentioning the issue of suspension and termination of investment treaties in times of armed conflict, which is another ‘Pandora’s box’ for foreign investors). 110

108 MAYORGA, O., Arbitrating War: Military Necessity as a Defense to the Breach of Investment Treaty Obligations . Humanitarian Policy and Conflict Research Policy Brief, Harvard University, 2013, p. 9. 109 The Protection of Investments in Armed Conflicts , p. 18. 110 Nevertheless, the framework of international minimum standard of treatment of aliens and the body of human rights that cover private property which were not addressed in this article also have relevance for the protection of foreign investments.

549