CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ THE INTERPLAY OF FIELDS OF INTERNATIONAL LAW IN CASE OF FOREIGN … that there are already discussions about the relationship of the law of state responsibility to normative conflicts. 89 Finally, another important factor is the relevant forum where applicable substantive norms may be employed and jurisdiction of such a forum. Investment tribunals seem to assess the conduct of states in context of hostilities in isolation from or paying only a little attention to IHL. 90 The question here is whether particular adjudicator (from the point of view of investor as a claimant, this can be an investment tribunal, human rights court or national court) can refer to IHL when interpreting a BIT clause (depending on the BIT‘s delimitation of the applicable law, it should according to Art. 31 par. 3 letter c) VCLT) or whether it can even assess compliance with IHL (investment tribunals probably cannot). 6. Conclusion There are several scenarios of how foreign businesses may suffer damage as a consequence of hostilities or belligerent occupation. These situations trigger the application of the relevant norms of IIL, IHL and IHRL. This article showed on substantive level how the fields of IIL, IHL and IHRL govern the protection of FI in most scenarios of hostilities and how norms from these fields can interact. It also showed that the approach to solution of norms conflict is significantly determined by the understanding of which situations can be qualified as norms conflict. At the first sight, IHL norms permit states to conduct actions which are restricted by IIL or IHRL, thus leading to norm conflicts. However, the narrow notion of the norm conflict should be adopted. Then, the analysis of a particular interaction should be divided into two steps. At first, conflict avoidance methods should be utilised. As the ILC Working Group called it, there is a strong presumption against normative conflict in international law. It could be argued, then, that a particular norm of IHL is in a particular case compatible with the relevant norms of IIL and IHRL as it does not require state to engage in a strike which would lead to their violation. In any case, though, interacting norms should be interpreted in light of each other, in conformity with the principle of systematic interpretation and the approach which was adopted in the Nuclear Weapons advisory opinion. But, if the contradiction persists, then, as the second step, techniques for solution of norm conflict may be utilised. These concern namely the notion of lex posterior , the notion of ( ius cogens ), both reflected in VCLT, and the notion of lex specialis , accepted as general principle of law. Thus, one can see that VCLT offers both tools for conflict avoidance (the requirement of systematic interpretation) and conflict solution (notion of peremptory norms and lex posterior rule). Without ambition (and even possibility) to comprehensively apply each of these techniques to the outlined interactions, this paper indicated how these techniques might be applied and what sort of theoretical hurdles they raise in the context of the defined scenarios.

89 Borgen, p. 470. 90 Ryk-Lakhman, p. 171-172.

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