International Humanitarian Law and International Investment Law: Mapping a Developing Relationship

In light of much greater issues at play, the legal protection of foreign investors and their assets might appear almost irrelevant in situations of armed conflict. From the viewpoint of international humanitarian law (IHL), private property is merely incidentally protected for the sake of humanitarian concerns rather than its economic value. Investment treaties, by contrast, specifically entail the promotion and protection of foreign investments for such economic reasons. These agreements continue to apply alongside rules of IHL during armed conflict and many of them specifically cater for situations of armed conflicts. In recent years, arbitral awards have been rendered in relation to armed conflicts and Russia’s war of aggression against Ukraine is likely to lead to further investment claims. This chapter reviews the normative framework applicable in these situations and analyses the potential interaction between norms of IHL and investment treaties. It first shows how IHL protects private property in armed hostilities and belligerent occupation and, subsequently, analyses if and how investment treaties protect foreign investments in these scenarios. The chapter argues that IHL should have significant relevance for the interpretation of investment treaties to avoid normative incoherence as far as possible.