CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ THE INTERPLAY OF FIELDS OF INTERNATIONAL LAW IN CASE OF FOREIGN … of real or personal property belonging to private persons during belligerent occupation; 3) the necessity of the situation as an exemption to provide compensation for losses in extended war clauses; 4) security clauses an exemption to the duty to protect FI if measures necessary for the maintenance of public order, protection of its essential security interests or restoration of peace and security have to be taken. For detailed analysis of this novel issue, there is unfortunately not enough space in this contribution. ii. Solution of norm conflict In the case that the avoidance of norm conflict fails in presented scenarios (meaning that above described hypothesis of no conflict of norms is wrong for example because a broader notion of norm conflict is adopted or as a result of a different interpretation of substantive standards) or that there are another IHL norms which would finally be in conflict with FPS clause, 74 the methods for norm conflict solution would have to be applied. How the above-mentioned methods for conflict solution could hypothetically be applied to identified interactions and what practical issues they bring? The notion of peremptory norms ( ius cogens ) as prescribed by Art. 53 VCLT is included among techniques of norm conflict solution by several authors. 75 An issue, however, is the relationship of this rule to the notion of lex specialis or lex posterior . In other words, which of these techniques for conflict solution should have the priority and on what basis? This question is crucial because the consequence of the application of Art. 53 VCLT is absolute invalidity (and not derogation as in case of lex specialis or lex posterior ), not only of the conflicting treaty provision, but of the entire treaty. 76 Nevertheless, according to the ILC Working Group, “ the relationship between (..) norms of interpretation or conflict solution cannot be determined in a general way ” and it should be “ decided contextually ” which consideration should be predominant. 77 Given the context of the topic of this article, the precedence of peremptory IHL 78 norms is a key element of international law and it is hard to imagine that a norm ius cogens would be derogated by contravening BIT provision on the basis of, for example, lex specialis principle. In other words, jus cogens may not be derogated from by special law. 79 However, it is necessary to acknowledge that methods for norm conflict avoidance and resolution only apply if both conflicting norms are in force and operation. 80 This means that if there is a treaty clause conflicting with peremptory norm, the treaty is void and there is no need to apply methods of conflict solution. Arguably, this fact somehow indirectly confirms the validity of the narrow notion of the norm conflict. If Art. 53 VCLT applied strictly together with the broad understanding of norm conflict, one could argue that quite a considerable number of BITs would be void ab initio as a consequence of the conflict between FPS clause and IHL rules of conduct regarding military objects. 74 Such as Art. 57 or 58 API dealing with precautions in or against the effect of attacks. 75 DÖRR, O., SCHMALENBACH, K. (eds). Vienna Convention on the Law of Treaties. A Commentary . Springer, 2012, p. 923; Milanović, p. 466. 76 Vienna Convention on the Law of Treaties. A Commentary , p. 925. 77 International Law Commission (58th Session), Conclusions of the work of the Study Group on the Fragmentation of International Law , as a part of the Commission‘s Report UN Doc. A/61/10, par. 251, 2006, at par. 6. 78 Basic rules of IHL are considered jus cogens . See ibid at par. 33 and corresponding reference. 79 Ibid , at par. 10. 80 Treaties, Conflicts between , par. 18.

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