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2019 | OriginalPaper | Buchkapitel

War and Peace in International Investment Law

verfasst von : Christoph Schreuer

Erschienen in: International Investment Law and the Law of Armed Conflict

Verlag: Springer International Publishing

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Abstract

In situations involving international investments and armed conflict three areas of international law come together: investment law proper, international humanitarian law and human rights law. The law of treaties offers some rules relevant to situations of armed conflict. These rules address the effects of armed conflicts on treaties, impossibility of performance and fundamental change of circumstances. Generally, these rules do not offer a ready excuse for a departure from obligations arising under investment treaties. The treaty standard of full protection and security is a potentially powerful basis of protection for investors against violent attacks. Some investment treaties contain clauses that specifically refer to armed conflict. One variant of these clauses only provides for non-discrimination in the context of restitution or compensation. A more elaborate version also guarantees compensation for losses suffered through requisitioning or destruction not required by the necessity of war. Some investment treaties contain clauses that allow States to invoke essential security interests to defend action that is otherwise unlawful. Only a small number of these clauses are self-judging. Under the law of State responsibility, necessity and force majeure give limited comfort to States under circumstances of armed conflict. Action by a State in the exercise of self-defense does not exculpate action that violates human rights or humanitarian law. By the same token, States acting in self-defense are not exempted from obligations arising from investment law. Economic sanctions ordered or authorized by the Security Council may require action that is incompatible with certain guarantees under investment treaties.

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Nächstes Kapitel Evaluating Social Benefits and Costs of Investment Treaties: Depoliticization of Investment Disputes

Kabatchnik (2017), p. 478.

A notable exception is a Cambridge doctoral dissertation entitled “The Protection of Foreign Investment in Times of Conflict” by Jure Zrilič.

Antoine Biloune v Ghana, Award on Jurisdiction and Liability, 27 October 1989, 95 International law Reports p. 183; Bernhard von Pezold and Othersv Republic of Zimbabwe, Proc. Order No. 2, 26 June 2012, paras 57–60.

ILC, Report of a study group on Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law (13 April 2006) UN Doc A/CN.4/L.682, paras 410–480.

ILC, Report of a study group on Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law (13 April 2006) UN Doc A/CN.4/L.682, para. 423.

ICCPR: Totov Lebanon, Decision on Jurisdiction, 11 September 2009, paras 157–160. This decision is cited with approval in Frontier Petroleum vCzech Republic, Final Award, 12 November 2010, para. 328; Hesham Talaat M. Al-Warraq vRepublic of Indonesia, Final Award, 15 December 2014, paras 556–621. ECHR: Lauderv Czech Republic, Award, 3 September 2001, para. 200; Mondev International Ltd.v United States of America, Award, October 11, 2002, para. 143; Técnicas Medioambientales Tecmed, S.A.v United Mexican States, Award, 29 May 2003, para. 122; Azurix vArgentina, Award, 14 July 2006, para. 311; International Thunderbird Gaming Corporation vThe United Mexican States, Separate Opinion Thomas Wälde, 26 January 2006, para. 27; ADC v Hungary, Award, 2 October 2006, para. 497; Saipem S.p.A.v People’s Republic of Bangladesh, Decision on Jurisdiction and Recommendation on Provisional Measures, 21 March 2007, paras 130, 132; Société Générale In respect of DR Energy Holdings Limited and Empresa Distribuidorade Electricidad del Este, S.A.v Dominican Republic, Award on Preliminary Objections to Jurisdiction, 19 September 2008, para. 93; Perenco Ecuador Limitedv Republic of Ecuador, Decision on Provisional Measures, 8 May 2009, para. 70; Rompetrolv Romania, Decision of the Tribunal on the Participation of a Counsel, 14 January 2010, para. 20; Total S.A.v Argentine Republic, Decision on Liability, 27 December 2010, para. 129; El Paso v Argentina, Award, 31 October 2011, para. 598; Tulipv Turkey, Decision on Annulment, 30 December 2015, paras 146, 152. In Frontier Petroleumv Czech Republic, Final Award, 12 November 2010, para. 338, the Tribunal indicated that the ECHR was applicable but had not been pleaded properly by the parties. ECtHR’s jurisprudence: Electrabelv Hungary, Award, 25 November 2015, para. 179; Quiboraxv Bolivia, Award, 16 September 2015, para. 378, fn. 437; ConocoPhillips v Venezuela, Dissenting Opinion of Abi-Saab, paras 57,59. UDHR: Miculav Romania, Decision on Jurisdiction and Admissibility, 24 September 2008, paras 87–88.

Vienna Convention on the Law of Treaties, 23 May 1969, UNTS, vol. 1155, p. 331.

Responsibility of States for Internationally Wrongful Acts, 2001, adopted by the International Law Commission at its fifty-third session, in 2001, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session. The report, which also contains commentaries on the draft articles, appears in Yearbook of the International Law Commission, 2001, vol. II (Part Two). Text reproduced as it appears in the annex to General Assembly resolution 56/83 of 12 December 2001, and corrected by document A/56/49(Vol. I)/Corr.4.

International Committee of the Red Cross (ICRC), Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 12 August 1949, 75 UNTS 287; International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3; International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, 1125 UNTS 609.

Article 31(3)(c) of the Vienna Convention on the Law of Treaties. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

[…] 3. There shall be taken into account, together with the context: […]

(c) Any relevant rules of international law applicable in the relations between the parties.

For detailed treatment see McLachlan (2005); Gardiner (2008), pp. 250–291; Simma and Kill (2009).

At para. 420.

Oil Platforms (Islamic Republic of Iranv United States of America) Judgment, ICJ Rep 2003, p. 161, paras 41, 42; Case concerning Certain Questions of Mutual Assistance in Criminal Matters (Djiboutiv France), Judgment, ICJ Reports 2008, p. 177, para. 112; Southern Bluefin Tuna case (Australia & New Zealand vJapan), 39 ILM (2000) p. 1359, para. 52. For additional pertinent practice of the PCIJ and the ICJ see Simma and Kill (2009), pp. 682–691. See also Douglas (2009), p. 86.

Asian Agricultural Products Ltd. (AAPL)v Sri Lanka, Award, 27 June 1990.

At para. 21. This decision was endorsed by the Tribunal in LG&E Energy Corp., LG&E Capital Corp., and LG&E International, Inc.v Argentina, Decision on Liability, 3 October 2006, para. 97.

Adopted by the International Law Commission at its sixty-third session, in 2011, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session (A/66/10). Yearbook of the International Law Commission, 2011, vol. II, Part Two.

Article 3. General principle:

The existence of an armed conflict does not ipso facto terminate or suspend the operation of treaties:

(a)

as between States parties to the conflict;

(b)

as between a State party to the conflict and a State that is not.

Article 6. Factors indicating whether a treaty is susceptible to termination, withdrawal or suspension

In order to ascertain whether a treaty is susceptible to termination, withdrawal or suspension in the event of an armed conflict, regard shall be had to all relevant factors, including:

(a)

the nature of the treaty, in particular its subject matter, its object and purpose, its content and the number of parties to the treaty; and

(b)

the characteristics of the armed conflict, such as its territorial extent, its scale and intensity, its duration and, in the case of non-international armed conflict, also the degree of outside involvement.

Article 4. Provisions on the operation of treaties:

Where a treaty itself contains provisions on its operation in situations of armed conflict, those provisions shall apply.

Article 7. Continued operation of treaties resulting from their subject matter:

An indicative list of treaties the subject matter of which involves an implication that they continue in operation, in whole or in part, during armed conflict, is to be found in the annex of the present draft articles.

Annex to Article 7, lit (e).

Commentary 48 to Annex to Article 7.

Article 9. Notification of intention to terminate or withdraw from a treaty or to its operation:

A State intending to terminate or withdraw from a treaty to which it is a Party, or to suspend the operation of that treaty as a consequence of an armed conflict, shall notify the other State Party or States Parties to the treaty, or its depositary, of such intention.

The notification takes effect upon receipt by the other State Party or States Parties, unless it provides for a subsequent date.

Nothing in the preceding paragraphs shall affect the right of a Party to object within a reasonable time, in accordance with the terms of the treaty or applicable rules of international law, to termination, withdrawal or suspension of its operation.

If an objection has been raised in accordance with para. 3, the States concerned shall seek a solution through the means indicated in Article 33 of the Charter of the United Nations.

Nothing in the preceding paragraphs shall affect the rights or obligations of States with regard to the settlement of disputes insofar as they have remained applicable.

Article 11. Separability of treaty provisions:

Termination, withdrawal from or suspension of the operation of the treaty as a consequence of an armed conflict shall, unless the treaty otherwise provides or the Parties otherwise agree, take effect with respect to the whole treaty except where:

(a)

the treaty contains clauses that are separable from the remainder of the treaty with regard to their application;

(b)

it appears from the treaty or is otherwise established that acceptance of those clauses was not an essential basis of the consent of the other Party or Parties to be bound by the treaty as a whole; and

(c)

continued performance of the remainder of the treaty would not be unjust.

Article 73 VCLT. Cases of State succession, State responsibility and outbreak of hostilities:

The provisions of the present Convention shall not prejudge any question that may arise in regard to a treaty from a succession of States or from the international responsibility of a State or from the outbreak of hostilities between States.

Article 18. Other cases of termination, withdrawal or suspension:

The present draft articles are without prejudice to the termination, withdrawal or suspension of treaties as a consequence of, inter alia: (a) a material breach; (b) supervening impossibility of performance; or (c) a fundamental change of circumstances.

Vienna Convention on the Law of Treaties, Article 61. Supervening impossibility of performance:

A party may invoke the impossibility of performing a treaty as a ground for terminating or withdrawing from it if the impossibility results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty. If the impossibility is temporary, it may be invoked only as a ground for suspending the operation of the treaty.

Impossibility of performance may not be invoked by a party as a ground for terminating, withdrawing from or suspending the operation of a treaty if the impossibility is the result of a breach by that party either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty.

Article 62 VCLT. Fundamental change of circumstances:

A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless:

(a)

the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and

(b)

the effect of the change is radically to transform the extent of obligations still to be performed under the treaty.

A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty:

(a)

if the treaty establishes a boundary; or

(b)

if the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty.

If, under the foregoing paragraphs, a party may invoke a fundamental change of circumstances as a ground for terminating or withdrawing from a treaty it may also invoke the change as a ground for suspending the operation of the treaty.

Fisheries Jurisdiction (Federal Republic of Germany v Iceland) Jurisdiction, 1973 ICJ 49, 65, para. 43. See also Gabčíkovo-Nagymaros Project (Hungary v Slovakia), Judgment, ICJ Rep 1997, p. 7, para. 104. But see the CJEU in Racke GmbH and Co v Hauptzollamt Mainz, C-162/96 (Judgment of 16 June 1998), para. 56.

For the historical origin of the concept see Newcombe and Paradell (2009), pp. 307–308; Salacuse (2010), pp. 208–210.

Article 1105(1) of the North American Free Trade Agreement (NAFTA).

Article 1105 NAFTA. Minimum Standard of Treatment:

Each Party shall accord to investments of investors of another Party treatment in accordance with international law, including fair and equitable treatment and full protection and security. […]

Article 10(1) of the Energy Charter Treaty (ECT).

Saluka Investments BV (The Netherlands) v The Czech Republic, Partial Award, 17 March 2006, para. 484; PSEG Global, Inc., The North American Coal Corporation, and Konya Ingin Electrik Üretim ve Ticaret Limited Sirketi v Republic of Turkey, Award, 19 January 2007, paras 258, 259; Eastern Sugar B.V. (Netherlands) v The Czech Republic, Partial Award, 27 March 2007, paras 203–207; Enron Corporation and Ponderosa Assets, L.P. v Argentine Republic, Award, 22 May 2007, paras 286–287; Sempra Energy Intl. v Argentina, Award, 28 September 2007, paras 323–324; BG Group Plc. v The Republic of Argentina, Award, 24 December 2007, paras 326–328; Rumeli Telekom A.S. and Telsim Mobil Telekomunikasyon Hizmetleri A.S. v Republic of Kazakhstan, Award, 29 July 2008, para. 668; Liman Caspian Oil BV and NCL Dutch Investment BV v Republic of Kazakhstan, Award, 22 June 2010, para. 289; Suez, Sociedad General de Aguas de Barcelona S.A., and InterAguas Servicios Integrales del Agua S.A.v The Argentine Republic, Decision on Liability, 30 July 2010, paras 167, 173; EDF International S.A., SAUR International S.A. and León Participaciones Argentinas S.A. v Argentine Republic, Award, 11 June 2012, para. 1109; Gold Reserve Inc. v Bolivarian Republic of Venezuela, Award, 22 September 2014, paras 622–623; Bernhard von Pezold and Others v Republic of Zimbabwe, Award, 28 July 2015, paras 593–599.

Elettronica Sicula SpA (ELSI) (United States of America v Italy), ICJ Reports 1989, p. 15, para.109; CME Czech Republic B.V. v The Czech Republic, Partial Award, 13 September 2001, para. 613; Ronald S. Lauder v The Czech Republic, Final Award, 3 September 2001, para. 314; Československá Obchodní Banka A.S. v The Slovak Republic, Award, 29 December 2004, para. 170; Azurix Corp. v The Argentine Republic, Award, 14 July 2006, paras 406, 408; Siemens A.G. v The Argentine Republic, Award, 6 February 2007, para. 303; Compañía de Aguas del Aconquija S.A. and Vivendi Universal v Argentina, Award, 20 August 2007, paras 7.4.15, 7.4.17; Plama Consortium Ltd. v Bulgaria, Award, 27 August 2008, para. 180; National National Grid plc v The Argentine Republic, Award, 3 November 2008, paras 187, 189; Biwater Gauff (Tanzania) Ltd. v United Republic of Tanzania, Award, 24 July 2008, para. 729; Waguih Elie George Siag and Clorinda Vecchi v The Arab Republic of Egypt, Award, 1 June 2009, paras 447, 448; Mohammad Ammar Al-Bahloul v The Republic of Tajikistan, Partial Award on Jurisdiction and Liability, 2 September 2009, para. 246; Total S.A. v The Argentine Republic, Decision on Liability, 27 December 2010, para. 343; Parkerings-Compagniet AS v Republic of Lithuania, Award, 11 September 2007, paras 360, 361; Frontier Petroleum Services Ltd. v Czech Republic, Final Award, 12 November 2010, paras 263, 273; Sergei Paushok, CJSC Golden East Company and CJSC Vostokneftegaz Companyv The Government of Mongolia, UNCITRAL, Award on Jurisdiction and Liability, 28 April 2011; para. 326; Marion Unglaube and Reinhard Unglaubev Republic of Costa Rica, Award, 16 May 2012, para. 283; Electrabel S.A.v Republic of Hungary, Decision on Jurisdiction, Applicable Law and Liability, 30 November 2012, para. 7.146; Vannessa Ventures Ltd.v Bolivarian Republic of Venezuela, Award, 16 January 2013, para. 223; Levy v Peru, Award, 26 February, 2014, paras 406–443; Tenarisv Venezuela, Award, 29 January 2016, paras 438–448. See also Saluka Investments BV (The Netherlands)v The Czech Republic, Partial Award, 17 March 2006, paras 483, 484, where the Tribunal after stating that the standard applied essentially to physical integrity, proceeded to apply it to the investment’s legal protection and Grynberg and RSM Production Companyv Grenada, Award, 10 December 2010, paras 7.2.16–7.2.19.

Biwater Gauff (Tanzania) Ltd. v United Republic of Tanzania, Award, 24 July 2008, para. 730.

Elettronica Sicula SpA (ELSI) (United States of Americav Italy), ICJ Reports 1989, p. 15, para.108. See also Wena Hotels Ltd. v Arab Republic of Egypt, Award, 8 December 2000, 6 ICSID Reports 68, para. 84; Tecnicas Medioambientales Tecmed S. A.v The United Mexican States, Award, 29 May 2003, 43 ILM 133 (2004) at para.177; Noble Ventures Inc. v Romania, Award, 12 October 2005, para. 164; Saluka Investments BV (The Netherlands)v The Czech Republic, Partial Award, 17 March 2006, para. 484; M.C.I. Power Group L.C. and New Turbine, Inc.v Republic of Ecuador, Award, 31 July 2007, paras 245–246; Plamav Bulgaria, Award, 27 August 2008, para. 181; Biwater Gauff v Tanzania, Award, 24 July 2008, paras 725, 726; Rumeliv Kazakhstan, Award, 29 July 2008, para. 668; Siagv Egypt, Award, 1 June 2009, para. 447; Sergei Paushok, CJSC Golden East Company and CJSC Vostokneftegaz Companyv Mongolia, Award on Jurisdiction and Liability, 28 April 2011, paras 322–327; El Pasov Argentina, Award, 31 October 2011, para. 523.

Asian Agricultural Products Ltd. (AAPL)v Sri Lanka, Award, 27 June 1990, para. 77; Pantechniki S.A. Contractors & Engineers (Greece)v The Republic of Albania, Award, 30 July 2009, paras 76, 77; Suez, Sociedad General de Aguas de Barcelona, S.A. and Vivendi Universal, S.A. v Argentine Republic, Decision on Liability, 30 July 2010, para. 234; Frontier Petroleum Services Ltd.v Czech Republic, Final Award, 12 November 2010, para. 271; Mr. Franck Charles Arifv Republic of Moldova, Award, 8 April 2013, paras 605, 606. See also Gallus (2005), Kriebaum (2011) and Gritsenko (2013).

Asian Agricultural Products Ltd. (AAPL)v Sri Lanka, Award, 21 June 1990, 4 ICSID Reports 246, paras 45–53.

American Manufacturing & Trading, Inc. v Republic of Zaire, Award, 21 February 1997, 5 ICSID Reports 11, paras 6.02–6.11.

Wena Hotels Ltd. v Arab Republic of Egypt, Award, 8 December 2000, 41 ILM 896 (2002), para. 84.

OAO Tatneftv Ukraine, Award on the Merits, 29 July 2014, paras 423–430.

Bernhard von Pezold and Othersv Republic of Zimbabwe, Award, 28 July 2015, paras 593–599.

Ampal-American Israel Corp. v Egypt, Decision on Liability and Heads of Loss, 21 February 2017, paras 235–291.

Article 12 ECT. Compensation for Losses:

(1)

Except where Article 13 [Expropriation] applies, an Investor of any Contracting Party which suffers a loss with respect to any Investment in the Area of another Contracting Party owing to war or other armed conflict, State of national emergency, civil disturbance, or other similar event in that Area, shall be accorded by the latter Contracting Party, as regards restitution, indemnification, compensation or other settlement, treatment which is the most favourable of that which that Contracting Party accords to any other Investor, whether its own Investor, the Investor of any other Contracting Party, or the Investor of any third State. […]

Article 5 Austria-Lybia BIT. Compensation for Losses:

(1)

An investor of a Contracting Party who has suffered a loss relating to its investment in the territory of the other Contracting Party due to war or to other armed conflict, State of emergency, revolution, insurrection, civil disturbance, or any other similar event, or acts of God or force majeure, in the territory of the latter Contracting Party, shall be accorded by the latter Contracting Party, as regards restitution, indemnification, compensation or any other settlement, treatment no less favourable than that which it accords to its own investors or to investors of any third State, whichever is most favourable to the investor. […]. Austria-Lybia BIT, date of signature 18 June 2002, entry into force 01 January 2004.

Article 1105 NAFTA. Minimum Standard of Treatment:

[…] 2. Without prejudice to para. 1 and notwithstanding Article 1108(7)(b), each Party shall accord to investors of another Party, and to investments of investors of another Party, non-discriminatory treatment with respect to measures it adopts or maintains relating to losses suffered by investments in its territory owing to armed conflict or civil strife. […]

See also Asian Agricultural Products Ltd. (AAPL)v Sri Lanka, Award, 21 June 1990, paras 65–67; LG&E Energy Corp., LG&E Capital Corp., and LG&E International, Inc.v Argentina, Decision on Liability, 3 October 2006, paras 243, 244; Enron Corporation and Ponderosa Assets, L.P. v Argentine Republic, Award, 22 May 2007, para. 320.

Article 12 ECT. Compensation for Losses:

[…] (2) An investor of a Contracting Party who in any of the events referred to in para. (1) suffers loss resulting from:

(a)

requisitioning of its investment or part thereof by the forces or authorities of the other Contracting Party, or

(b)

destruction of its investment or part thereof by the forces or authorities of the other Contracting Party, which was not required by the necessity of the situation, shall in any case be accorded by the latter Contracting Party restitution or compensation which in either case shall be prompt, adequate and effective and, with respect to compensation, shall be in accordance with Article 4 (2) and (3).

Article 6 UK-Mexico BIT. Compensation for Losses:

Investors of one Contracting Party whose investments in the territory of the other Contracting Party suffer losses owing to war or other armed conflict, revolution, a State of national emergency, revolt, insurrection or riot in the territory of the latter Contracting Party shall be accorded by the latter Contracting Party treatment, as regards restitution, indemnification, compensation or other settlement, no less favourable than that which the latter Contracting Party accords to its own investors or to investors of any third State. UK-Mexico BIT, date of signature 12 May 2006, entry into force 25 July 2007.

For application of clauses of this type see Asian Agricultural Products Ltd. (AAPL)v Sri Lanka, Award, 21 June 1990, 4 ICSID Reports 246, paras 58–64; American Manufacturing & Trading, Inc.v Republic of Zaire, Award, 21 February 1997, paras 7.02–7.15.

See Article 4 of the UK Model BIT of 2008.

Article 2102 NAFTA. National Security:

Subject to Articles 607 (Energy–National Security Measures) and 1018 (Government Procurement Exceptions), nothing in this Agreement shall be construed:

(a)

to require any Party to furnish or allow access to any information the disclosure of which it determines to be contrary to its essential security interests;

(b)

to prevent any Party from taking any actions that it considers necessary for the protection of its essential security interests

(i)

relating to the traffic in arms, ammunition and implements of war and to such traffic and transactions in other goods, materials, services and technology undertaken directly or indirectly for the purpose of supplying a military or other security establishment,

(ii)

taken in time of war or other emergency in international relations, or

(iii)

relating to the implementation of national policies or international agreements respecting the non-proliferation of nuclear weapons or other nuclear explosive devices; or

(c)

to prevent any Party from taking action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.

Article 18(2) of the US Model BIT 2012.

Military and Paramilitary Activities in and against Nicaragua (Nicaraguav United States of America), Merits, Judgement, ICJ Rep 1986, p. 14, para. 222; Gabčíkovo-Nagymaros Project (Hungaryv Slovakia), Judgement, ICJ Rep 1997, p. 7, paras 51–52; Oil Platforms (Islamic Republic of Iranv United States of America) Judgment, ICJ Rep 2003, p. 161, para. 43; Enron Corporation and Ponderosa Assets, L.P.v Argentine Republic, Award, 22 May 2007, para. 336; LG&E Energy Corp., LG&E Capital Corp., and LG&E International, Inc.v Argentina, Award, 25 July 2007, para. 213; Sempra Energy Internationalv Argentina, Award, 28 September 2007, para. 383.

Article 24(3) ECT. Exceptions:

(3) The provisions of this Treaty other than those referred to in para. (1) shall not be construed to prevent any Contracting Party from taking any measure which it considers necessary:

(a)

for the protection of its essential security interests including those

(i)

relating to the supply of Energy Materials and Products to a military establishment; or

(ii)

taken in time of war, armed conflict or other emergency in international relations;

(b)

relating to the implementation of national policies respecting the non-proliferation of nuclear weapons or other nuclear explosive devices or needed to fulfil its obligations under the Treaty on the Non-Proliferation of Nuclear Weapons, the Nuclear Suppliers Guidelines, and other international nuclear non-proliferation obligations or understandings; or

(c)

for the maintenance of public order.

Article 25 ILC Articles on State Responsibility. Necessity:

Necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act not in conformity with an international obligation of that State unless the act:

(a)

is the only way for the State to safeguard an essential interest against a grave and imminent peril; and

(b)

does not seriously impair an essential interest of the State or States towards which the obligation exists, or of the international community as a whole.

In any case, necessity may not be invoked by a State as a ground for precluding wrongfulness if:

(a)

the international obligation in question excludes the possibility of invoking necessity; or

(b)

the State has contributed to the situation of necessity.

Article 25, Commentary (2) of the ILC, Responsibility of States for Internationally Wrongful Acts, 2001.

Article 23 ILC Articles on State Responsibility. Force majeure:

The wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the act is due to force majeure, that is the occurrence of an irresistible force or of an unforeseen event, beyond the control of the State, making it materially impossible in the circumstances to perform the obligation.

Para. 1 does not apply if:

(a)

the situation of force majeure is due, either alone or in combination with other factors, to the conduct of the State invoking it; or

(b)

the State has assumed the risk of that situation occurring.

Article 23, Commentary (2) of the ILC, Responsibility of States for Internationally Wrongful Acts, 2001.

Article 27 ILC Articles on State Responsibility. Consequences of invoking a circumstance precluding wrongfulness

The invocation of a circumstance precluding wrongfulness in accordance with this chapter is without prejudice to: […]

(b) the question of compensation for any material loss caused by the act in question.

Article 15 ECHR. Derogation in time of emergency:

In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.

No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (para. 1) and 7 shall be made under this provision.

Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.

Article 21, Commentaries (3) and (5) of the ILC, Responsibility of States for Internationally Wrongful Acts, 2001.

Article 103 UN Charter:

In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.

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Titel: War and Peace in International Investment Law
verfasst von: Christoph Schreuer
Verlag: Springer International Publishing
Buch: International Investment Law and the Law of Armed Conflict
Print ISBN: 978-3-030-10745-1

Electronic ISBN: 978-3-030-10746-8

Copyright-Jahr: 2019
DOI: https://doi.org/10.1007/978-3-030-10746-8_1

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