CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ THE INTERPLAY OF FIELDS OF INTERNATIONAL LAW IN CASE OF FOREIGN … relation to compensation, and extended war clauses. The latter type addresses particularly the conduct of the host state organs, they usually contain a condition that the destruction of investment was not required by the necessity of the situation and, finally, they provide investors with absolute standards of compensation. 12 As a limitation to the protection, investment treaties often contain so called security clauses according to which the duty to protect anchored in a particular treaty does not preclude the right of the host states to take measures necessary for the maintenance of public order, protection of its essential security interests or restoration of peace and security. 13 Quite importantly, essential security interests include also territorial or military interests. 14 Within the realm of IHL, assets of private companies, such as factories, offices, vehicles or real estates, may fit into the category of civilian objects and enjoy corresponding protection. 15 With regard to international armed conflict (IAC), according to Art. 48 and 52 of Additional Protocol I (API), 16 only attacks against combatants and military objectives are legal. However, otherwise the civilian object can become a legal target as military object if being used for military purposes and if its destruction or seizure offers a definite military advantage. 17 Civilian means of transportation and communication or even economic targets that effectively support military operations are cited as examples of military objectives. 18 The principle of necessity (according to which the destruction or seizure of the enemy‘s property is prohibited unless it is demanded by the necessities of war) 19 and principle of proportionality (prohibiting attacks which may cause incidental damage to civilian objects, among others, which would be excessive in relation to concrete and direct military advantage) 20 represent another set of key rules. Several norms address particularly the event of belligerent occupation. According to Art. 53 of the Geneva Convention IV, 21 the destruction of real or personal property belonging to private persons is prohibited, but this prohibition does not apply in the case of absolute military necessity. Art. 46 of the 1907 Hague Regulations then states that private property cannot be confiscated. But, according to Art. 53 of the 1907 Hague Regulations, certain objects belonging to private persons which can be used for military purposes (means of transport, devices for the transmission of news, war material and ammunition) can be requisitioned by the occupying power, but must be returned and compensation must be provided when peace is made. The rule of distinction between civilian and military objects 14 BURKE-WHITE, W. W., STADEN, A. Investment Protection in Extraordinary Times: The Interpretation and Application of Non-Precluded Measures Provisions in Bilateral Investment Treaties. Virginia Journal of International Law , Vol. 48, Issue 2, p. 351. 15 Business and International Humanitarian Law: An Introduction to the Rights and Obligations of Business Enterprises under International Humanitarian Law . ICRC, 2006, p. 17 . 16 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflict, June 8, 1977. 17 API, Art. 52 par. 1 and 2. 18 HENCKAERTS, J., DOSSWALD-BACK, L. Customary International Humanitarian Law. Volume I: Rules . International Committee of the Red Cross, 2009, p. 29-32. 19 Art. 23 letter g) of Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, The Hague, October 18, 1907. 20 API, Art. 51 par. 5 letter b), Art. 57 par. 2 letter a) (iii). 21 Ibid . 12 See Schreurer (5), p. 9-14. 13 Ibid , p. 14-16.

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