Interpretation of the Notion of Territory
摘要
This chapter focuses on the first major legal issue identified in previous chapters—the applicability of bilateral investment treaties (BITs) to which the occupying power is a party to its conduct in occupied territory. This chapter particularly analyses what is the meaning of the term territory as used in a typical BIT to define its scope of application (whether this term can be understood as covering also the territory which is occupied by a State party). The chapter first provides a brief overview of the findings of investment arbitration tribunals in the Crimea-related cases and international rules on treaty interpretation. It then provides a thorough analysis of the ordinary meaning, context and object and purpose of the term territory as used in BITs. Findings reached by tribunals in the Crimea-related arbitrations are critically assessed in the process of interpretation. The chapter finally reaches the conclusion that the term territory refers to the territory under the sovereignty of the States parties and cannot as such serve as a ground for the applicability of a typical BIT on the conduct of a State party to the territory of the other State party it occupies. This is in contrast to findings reached by the investment arbitration tribunals adjudicating on the Crimea-related cases.