Chapter

The interaction between investment law and the law of armed conflict in the interpretation of full protection and security clauses

Gleider I. Hernández

Investment law within international law : integrationist perspectives

Cambridge : Cambridge university press, 2013

p. 21-50

English

Photocopies

The present study focuses on the interaction of international investment law with the law governing armed conflict; a phenomenon of increasing importance, given the emergence of situations of violence in states that have, in recent years, actively entered in bilateral investment treaties (BITs). Many of these BITs contain so-called "full protection and security" clauses, which impose a positive obligation on contracting states to take measures to provide a certain measure of protection; the question remains whether this obligation can be said to remain unaffected by the emergence of a situations of armed conflict. This chapter is an attempt to consider the workings of investment law during situations of armed conflict through the prism of public international law. The first section considers the impact of armed conflict in public international law generally, and make the claim that international humanitarian law constitutes a form of lex specialis, which can come to modify, in case of conflict between them, treaty obligations such as those contained in BITs. The second section examines practice in the investment law sphere in relation to "full protection and security" clauses, in order to assess whether investment law has adopted an approach consistent with international law.

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