CYIL vol. 10 (2019)

PETR STEJSKAL CYIL 10 ȍ2019Ȏ Regarding the notion of lex specialis (if the norm conflict is not solved by the primacy of peremptory norms), an important fact is that (in contrast to generalization made by several authors) the assessment of which norm is general and which one is specific has to be done in concreto , with regard to particular conflicting norms (including their applicability, scope and content) 81 and not generally on the level of concerned fields of international law. It is often claimed that a particular norm can be general or special in regard to its subject matter or number of actors whose behaviour it regulates. At the same time, a norm can be determined as general or special in a specific situation or context, not on abstract level. 82 Regarding the relationship between a FPS clause and the possibility to destroy property qualified as a military object (Art. 48 and 52 API) or as part of absolute military necessity/necessities of war, one can see that BITs are specific with regard to number of state parties. Looking at the subject matter, the situation is more difficult. What is the subject matter in this case – is it the regulation of hostilities (which is addressed by most of the IHL norms, but only by certain BITs clauses, thus making IHL more specific here), protection of civilian objects and property (here the IIL would probably be more specific as it address assets as defined and only of investors with particular nationality, in contrast to the above mentioned IHL which generally do not distinguish between aliens and citizens) or there is no same subject matter at all? For the sake of completeness, it is also worth to note that it would very difficult to apply lex posterior technique in the specific context of conflict of norms of IHL and IHRL. These norms are evolving gradually and not successively to each other. 83 Especially with regard to customary nature of IHL norms, it is impossible to say which norm exactly is lex posterior in relation to the others. 84 With regard to BITs, of course, each of them has an exact date of entry into force between the two state parties. However, it is questionable that a clause contained in a BIT would have priority over the above mentioned IHL norms of peremptory character just because that BIT had been concluded after the emergence of the conflicting IHL norm. Again, if applied strictly, this rule would cause a precedence of norms from BITs over conflicting IHL norms because most of the norms related to the latter body of law have emerged before the entry into force of the more than 2 700 BITs. 85 It should also be kept in mind that this rule, at least as it is formulated in the VCLT, only deals with successive treaties relating to the same subject-matter, a fact that undermines its usefulness for the solution of problematic cases. 86 These facts only confirm concerns raised by the ILC Study Group that techniques of Art. 30 VCLT are insufficient to resolve conflicts across regimes and straightforward priority of a norm belonging to one regime over a norm related to another cannot be developed only on a chronological basis. 87 It may happen that even after the application of the methods for conflict solution, the norm conflict still persists in a particular situation. 88 That would probably mean that the state has to choose which norm it upholds while breaching the other. Some authors indicate 81 Lex Specialis, In: Max Planck Encyclopedia of Public International Law. par. 9. 84 Art. 30 VCLT probably does not address conflicts with customary international law. See Borgen , p. 454. 85 A topic for another discussion would be the question of customary nature of some investment law standards and the moment of their emergence. 86 Treaties, Conflicts between , par. 25. 87 Borgen, p. 469. 88 See in detail Milanović. 82 Koskenniemi, p. 5 83 Milanović, p. 468.

408