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Abstract

Armed hostilities in both inter-state as well as intra-state conflicts are often considered as prototypical examples of a force majeure situation. Nevertheless, there is little recent judicial practice addressing the defence, both in general as well as with regard to armed hostilities. In this regard, investment tribunals have the potential to considerably contribute to the further development of general international law. While inter-state conflicts have become a rare occurrence, the recent decade has seen a number of intra-state conflicts with implications for foreign investors, in particular in the wake of the ‘Arab Spring’. When faced with an exceptional situation, such as the occurrence of armed hostilities on their territory, host states might seek relief by invoking force majeure. This chapter examines to what extent that is possible. It explores under which circumstances armed hostilities might meet the constituent elements of force majeure under general international law. In that regard, it also considers the interaction of the most pertinent treatment standards enshrined in investment treaties – namely full protection and security and so-called war clauses – with force majeure under the law of state responsibility. Moreover, it addresses potential procedural requirements and the legal consequences of a successful invocation.

In: Investments in Conflict Zones
In: General Principles and the Coherence of International Law

Abstract

This contribution argues for a climate-sensitive reading of the mandate of peacekeeping operations. In recent years, the recognition has taken hold that climate change constitutes both one of the greatest current threats to human rights as well as a significant amplifier of conflict. In a number of host countries to peacekeeping operations, the magnitude of the effects of climate change and their impact on the physical well-being of local populations became increasingly clear. Against that background, the contribution argues that ‘protection of civilians’ (‘POC’) mandates may translate into certain positive human rights obligations of international organizations (‘IOs’) and Troop Contributing Countries (‘TCCs’) in the context of climate change effects. The contribution highlights several legal questions arising against the background of a quickly developing policy framework, including on attribution and the extraterritorial applicability of human rights. The argument is developed in regard to the United Nations Mission in South Sudan (‘UNMISS’), which in late 2022 has seen large-scale flooding threatening the largest UNMISS protection of civilians site in Bentiu, hosting over 100,000 internally displaced persons (IDPs). It concludes by setting out what a climate-sensitive reading of UNMISS’ POC mandate might entail from a human rights perspective.

Open Access
In: Max Planck Yearbook of United Nations Law Online