Investment treaty security exceptions, necessity and self-defence in the context of armed conflict

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Abstract

Security exceptions are becoming increasingly prevalent in investment treaties, yet uncertainty remains as to their relationship with the defences of necessity and self-defence, both in general and in the context of armed conflict. Inconsistent interpretations of these provisions by investment tribunals and annulment committees and by the International Court of Justice under treaties of friendship, commerce and navigation have only added to this uncertainty. This chapter argues that security exceptions are conceptually distinct from the circumstances precluding wrongfulness, and in particular are not leges speciales vis-à-vis necessity or self-defence. Rather, security exceptions should be understood as either limiting the scope of the treaty obligations, or as treaty-internal affirmative defences. These different interpretations of security exceptions have practical implications for the way that the substantive obligations that may be relevant to investment claims arising from a situation of armed conflict (such as fair and equitable treatment and full protection and security) are interpreted where a security exception is present in the relevant treaty, and for the allocation of the burden of proof. Moreover, because successful invocation of the security exception renders the challenged conduct lawful, no duty of compensation arises. Relatedly, successful invocation of the necessity defence does not give rise to any obligation of compensation as a form of reparation.
Original languageEnglish
Title of host publicationInternational Investment Law and the Law of Armed Conflict
EditorsKatia Fach Gómez, Anastasios Gourgourinis, Catharine Titi
Place of PublicationCham Switzerland
PublisherSpringer
Pages319-340
Number of pages22
Edition1st
ISBN (Electronic)9783030107468
ISBN (Print)9783030107451
DOIs
Publication statusPublished - 2019

Publication series

NameEuropean Yearbook of International Economic Law
ISSN (Print)2364-8392
ISSN (Electronic)2364-8406

Cite this

Henckels, C. (2019). Investment treaty security exceptions, necessity and self-defence in the context of armed conflict. In K. Fach Gómez, A. Gourgourinis, & C. Titi (Eds.), International Investment Law and the Law of Armed Conflict (1st ed., pp. 319-340). (European Yearbook of International Economic Law). Cham Switzerland: Springer. https://doi.org/10.1007/978-3-030-10746-8_15