Chapter 10 The Application of Investment Treaties in Occupied or Annexed Territories and ‘Frozen’ Conflicts: Tabula Rasa or Occupata?
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Abstract
This chapter addresses the question whether and how an occupying or annexing state can be held accountable for its acts and omissions regarding investments and property in claimed territory. While article 43 Hague Regulations argues in favour of continuity of the occupied state’s law for occupation, its relevance for investment law is limited. This chapter sets out two principles, which are each other’s antipode. Inter-state violations, the object and purpose of the treaty, acquired rights and the need to avoid a (quasi-) legal vacuum argue for the extraterritorial application of the occupant’s treaties. Exceptions can be found in temporary occupations (including territorial administration), and when occupied states are willing to guarantee investment protection. For annexation, this extraterritoriality principle is reversed due to the problems created by the jus cogens prohibition of aggression. Yet, if its wording permits it, an effective interpretation of the annexing-annexed state iia parallel to the one in the icj’s Namibia Advisory Opinion could also lead to protection in favour of investors. The Crimea tribunals and subsequently the Swiss Federal Tribunal have reached this conclusion, although on a slightly different basis than what will be set out in this chapter. Its normative framework could then be used as a guide for arbitrators dealing with current and future situations of occupation and annexation.