CYIL vol. 10 (2019)

PETR STEJSKAL CYIL 10 ȍ2019Ȏ applies also in non-international armed conflicts (NIAC), 22 despite the fact it is not included in Additional Protocol II (APII). 23 Again, even civilian objects can be a legal military target if used for military purposes. 24 Concerning FI and the level of human rights protection, typically the right to free enjoyment of private property (right to property) could be hampered during hostilities. However, this right is not that widespread as other human rights. The International Covenant on Civil and Political Rights is silent on the protection of private property, but we can find that right in American Convention on Human Rights (Art. 21), African Charter on Human and People’s Rights (Art. 14) and in Additional Protocol to the European Convention on Human Rights (Art. 1). Despite several caveats in protection (lack of direct locus standi in front of judicial body for individuals in case of American Convention or the low number of states accepting jurisdiction of complaint mechanism in case of African Convention), it is not rare that foreign investors pursue human rights claims in front of human rights mechanism in parallel to investment arbitration. 25 3. Problem statement – interactions / contradictions Given the framework applicable to the treatment of foreign investments during armed conflict, how may particular rules interact and how relevant these hypothetical situations might be in practice? One of the contexts where such interaction can arise and should be concerning for states (taking into account the power of investment arbitration) is NIAC where the organized groups uses and exploits infrastructure or other values situated in the territory under its control to fuel its hostile activities. This was indeed the alleged reason for engaging a raid by Sri Lanka‘s Special Task Force against a shrimp farm already in 1987 26 or by Congolese armed forces against a firm of Mr. Mitchell in 1999 27 (leaving now aside the outcome of these particular cases). If these investments were used by rebels in a manner offering an effective contribution to their military activities, its destruction may have been lawful in terms of IHL. 28 Today, this scenario is still relevant namely with regard to countries which are fighting rebels, terrorist groups or other non-state actors and at the same time have situated in their territory assets belonging to foreign investors (for example major oil companies). It is today a well-known fact that terrorist groups such as ISIS or Al-Qaeda both target400 29 or exploit oil facilities of foreign companies as a source of finance (an issue addressed extensively even by the relevant UN institutions). 30 These actions have at least two implications for a host state in terms of international law – on one hand, the host state can be 22 Customary International Humanitarian Law, Volume I: Rules , p. 5-8. 23 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, 8 June 1977. 24 Customary International Humanitarian Law, Volume I: Rules, p. 34-36. 25 KRIEBAUM, U. Is the European Court of Human Rights in Alternative to Investor-State Arbitration? In: DUPUY, P. M. and others (eds). Human Rights in International Investment Law and Arbitration , Oxford University Press, 2009, p. 219. 26 AAPL v. Sri Lanka. 27 Mr. Patrick Mitchell v. Democratic Republic of the Congo , Award, February 9, 2004, ICSID Case No. ARB/99/7. 28 Ryk-Lakhman , p. 184. 29 For example, attacks carried out by ISIL against the National Oil Corporation headquarters in Tripoli and against the Mabruk oil field in 2018. 30 See for example UN SC Resolution 2199 (2015).

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