CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ THE INTERPLAY OF FIELDS OF INTERNATIONAL LAW IN CASE OF FOREIGN … 1. Introduction As the flow of foreign investments (hereinafter as ‘FI’) is widespread in today’s world, it is likely that where an armed conflict emerges, foreign businesses suffer damage (as confirmed by recent investment arbitrations against Libya or Syria). Several investment arbitrations have been recently commenced also against Russia for the alleged expropriation of businesses in Crimea. Interestingly, Russia has already been found liable for breaching the bilateral investment treaty concluded with Ukraine. The topic is compelling also from the point of view of legal doctrine because namely the fields of the law of foreign investment (IIL), the law of armed conflict (IHL) and the human rights law (IHRL) are concerned. In the background of the effect of hostilities on FI, there may be situations in the theatre of operations leading to interesting interactions between particular norms of these fields. When assessing the legality of military operations of host states against objects situated in occupied territories, the hypothetical situation can happen that the originally civilian object (such as power plant, airport, telecommunications facility or weapon factory) would become a legal military target from the point of view of IHL, 2 but in the sense of the law of foreign investments, the object would be a foreign investment in the sense of a particular bilateral investment treaty (BIT) and, finally, even a private property in the sense of applicable human rights framework. There has already been a thorough debate on the relationship between IHL and IHRL, including in the judicial practice (most notably the advisory opinion of the International Court of Justice (ICJ) on the Legality of the Threat or Use of Nuclear Weapons ). These debates very often (and in different ways) refer to the notion of lex specialis and conclude that during hostilities, IHL forms a lex specialis in relation to IHRL. This paper therefore asks how IIL, IHL and IHRL interact in the new context of the protection of FI during hostilities, what is a possible approach to address these interactions (including the question of the position and function of the lex specialis principle) and what might be the result of its application to the identified interactions. As part of that process, the paper also asks what techniques for the solution of conflict of norms are offered by the Vienna Convention on the Law of Treaties (VCLT). Therefore, this contribution firstly describes applicable norms of IIL, IHL and IHRL which are relevant for the protection of FI in times of armed conflict. It then identifies and explains possible contradictions between them in particular scenarios. Following this, the paper introduces a possible methodological model for identification (or avoidance) and solution of norms conflict and demonstrates how it could be applicable to the identified scenarios and which theoretical issues follow. It is necessary to note from the beginning that the aim of this article is not to develop definite answers on the relationship between applicable norms of IIL, IHL and IHRL. Instead, its aim is to highlight several scenarios, in which FI suffer damage, while framing these situations into applicable norms of IIL, IHL and IHRL. On the basis of that, the paper draws the reader‘s attention by pointing to interactions and potential conflicts between these norms and (partially on the basis of literature dealing with relationship between IHL and IHRL norms) suggests an approach for identification and solution of these norms conflicts. The application of the model to the defined interactions is only illustrative and would require 2 For detailed analysis on how foreign investments can become military objects, see RYK-LAKHMAN, I. Foreign Investments as Non-Human Targets. In: BAADE, B. and others (eds). International Humanitarian Law in Areas of Limited Statehood – Adaptable and Legitimate or Rigid and Unreasonable? Nomos, 2018, p. 185.

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