CYIL vol. 10 (2019)

PETR STEJSKAL CYIL 10 ȍ2019Ȏ Do the above mentioned interacting norms of IIL, IHL and IHRL really conflict with each other, or is it possible to interpret them in a way to avoid their conflict?

5. Outline of application of the model

i. Interpretation to avoid conflict Regarding the scenario of belligerent occupation, does the destruction of infrastructure used by the occupying power conducted by the occupied state in accordance with Art. 52 par. 2 API lead to the breach of FPS clause or the right to property? Starting with the latter, one can see that the wording used by regional human rights treaties leaves considerable room for restrictions of that right as these treaties allow restrictions in public interest. In conformity with the approach 57 adopted by the ICJ in the Nuclear Weapons , the test of what is public interest in circumstances of armed conflict and belligerent occupation falls to be determined by the IHL. 58 In this sense, it could arguably be assumed that defeating the enemy and pushing it back from the territory it forcibly occupied is in public interest of the population of the defending state, making the destruction of foreign investment legal both in the sense of Art. 52 API and human right to property. If this hypothesis is valid, the norm conflict would be avoided by systematic interpretation of interplaying norms. 59 However, and importantly, also the other requirements of the right to free enjoyment of property have to be fulfilled, depending on the wording of a particular human rights instrument, typically the provision of adequate compensation. This conclusion relating to the right to property could be similarly applied to the other defined scenarios, such as targeting FI when defeating the organized armed group in NIAC or defeating the adversary state in IAC, both with an aim of the host state to the end the hostilities 60 and to ensure respect for the human rights of its citizens. However, the nature of the destroyed property might influence the result of the analysis. Individuals and companies very often own and run critical infrastructure, such as in the energy sector or water management, and their destruction may actually contradict the public interest and thus lead to a breach of the right to property, even in situations when these are used by the adversary. In other words, in certain situations military necessity does not correspond to the public interest in terms of the right to property. And in these situations, there would be a norm conflict. What is then the relationship between the above mentioned IHL norms and extended war clauses used in BITs? As stated above, these clauses guarantee foreign investors compensation for losses caused during hostilities, but only if the destruction of investment was not required by the necessity of the situation. 61 Again, it would arguably be feasible in the context of armed conflict to interpret the necessity of situation by taking into account the content of military necessity in IHL (absolute military necessity or necessities of war, as described earlier). Therefore, as far as military necessity or definite military advantage in terms of Art. 52 par. 2 57 HERNÁNDEZ, G. I., The interaction between investment law and the law of armed conflict in the interpretation of full protection and security clauses. In: BAETENS, F. Investment Law within International Law. Integrationist Perspectives , Cambridge University Press, 2013, p. 28. 58 Legality of the Threat or Use of Nuclear Weapons , ICJ, Advisory Opinion (1996), par. 25. 59 Milanović, p. 468. 60 In accordance with the IHL principle of military necessity. However, one could ask the victory of which party is in public interest. 61 See for example Art. 5 of the BIT concluded between Ukraine and the UK in 1993.

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