Chapter 13 summarizes important findings and offer two recommendations to the Court with regard to how Article 13 could be developed: (1) The Court should engage in more and stricter procedural review by controlling and setting out requirements with regard to how domestic remedial authorities must consider whether the Convention has been violated. To this end, the Court should make more use of Article 13. The counterpart of the increased procedural review should be less substantive review. (2) The Court should engage in more principled and abstract reasoning concerning Article 13, in particular the required form of redress. More principled and abstract reasoning stands in contrast to concreteness. It provides guidance, but allows for flexible implementation in different domestic legal systems.

The Introduction discusses key terms and concepts in the protection of civilians – ‘civilian’ and ‘protection’ in particular – while illustrating their unsettled and complex character. Key moments in history in international law, policy, and practice over the last century and a half are also considered. Key actors in the protection of civilians are identified setting the scene for the more detailed assessment of their roles of responsibilities in the remainder of the book.

With respect to the protection of civilians, the African Union has largely focused on elaborating guidelines for its own peacekeeping operations. ‘Draft’ Guidelines were concluded in 2010 and published in 2012. Protection is organised into four ‘tiers’: protection through political process; physical protection; rights-based protection; and establishing a secure environment. These ‘tiers’ are broadly similar to the structure of the UN’s Operational Concept of the time. Practice in protecting civilians has been mixed.

International investment treaties accord foreign investors and their investments protection from unlawful encroachments by state authorities as well as violence by third parties. From the perspective of investors, this protection becomes especially relevant in times of armed conflict. For states, however, such times make the provision of this protection especially difficult. Arbitral proceedings in the aftermath of the so-called Arab Spring have laid bare unresolved issues and posed new challenges arising from the factual and legal implications of armed conflict. At the same time, international investment law is deeply rooted in issues of war and peace. Not only the first arbitration based on a modern bilateral investment treaty but also the historical precursors of international arbitration have touched upon armed violence and the treatment of aliens. This Introduction presents the themes of the book and provides an initial overview of the relevant legal framework and employed methodology.

Chapter 5 analyzes the relationship between the international admissibility criterion on the exhaustion of domestic remedies and the right to an effective remedy in Article 13. Event though there is close affinity between the rules, the Court has never, in the abstract, explained whether the requirements of effectivenes, arising under both rules, are the same. However, as the chapter explains, several factors speak for a different threshold and evaluation of the required effectiveness.

The European Union (EU) does not have a single or comprehensive policy document on the protection of civilians. Rather, its interest and involvement in PoC are reflected across a number of standards and policy documents. Its Concept on Protection of Civilians in EU-led Military Operations was elaborated in 2015. When IHL does not apply to EU action, the Union primarily looks towards human rights law as the appropriate standard for the conduct of EU military operations.

Many commentators argue that the definition of a refugee in the 1951 Convention is too narrow insofar as it does not encompass all people fleeing acute situations of violence or danger, such as armed conflicts or natural disasters. To overcome this, some States interpret broadly the persecution grounds of the refugee definition under that Convention. Regional instruments adopting a broader refugee definition have also been adopted, such the 1969 Organisation of African Unity (OAU) Convention. This chapter explores how those seeking asylum in another State can be better protected.

Chapter 12 provides normative and contextual depth that may contribute to our understanding of how Article 13 could be further developed (or not) by the Court. The goal is not to provide answers as to how every requirement should be developed, but to illustrate the role Article 13 could have in regulating, more generally, the relationship between international and national protection of human rights. It does so by illustrating how different perceptions of fundamental normative concepts values and structure underlying Covnention law and four contextual factors may influence how judges construe, apply, and develop Article 13.

Chapter 7 takes the analysis beyond the conduct of hostilities and issues related to physical damage to foreign investments. It addresses the rules on expropriation universally included in investment treaties and analyses them against the backdrop of armed conflict. The chapter shows that the protection from expropriation in times of armed conflict principally follows the same general parameters as in times of peace: investment treaties offer protection from abusive property seizures often observed during armed conflict as well as unreasonable or discriminatory restrictions on the use of property and businesses. When it comes to indirect expropriation, the chapter suggests to follow a mitigated version of the so-called police powers doctrine. While the debate on the delineation between expropriatory measures and non-compensable regulations is not new, the context of armed conflict provides new insights based on domestic and international case law on war-time property restrictions. Armed conflict and the interests involved, the chapter argues, broaden the scope of police powers and increase the state’s leeway in restricting the free enjoyment of property.

As I indicated in the Introduction, I will begin my tour of four select security referents at the macro level and work my way down. I will do so for four reasons. The first is to help shake off any lingering anthropocentric biases that might skew the analysis were we to work in the opposite direction. Human security, of course, naturally invites an anthropocentric treatment; culture as I shall be discussing it is also largely a human concern; and the state is a human creation. Were we to get into the habit of putting people at the centre of our analysis, we might do so too readily precisely where it would be least appropriate. The second is that ecospheric security will be the least familiar concept of the four and for that reason might risk coming across as an afterthought if I were to treat it last. Third, and relatedly, given the unfamiliar style of analysis to which I aim to subject these referents, I see advantages in giving it its first rigorous test in a context in which it is least likely to grate, hoping thereby to cultivate a degree of comfort with it once I turn to referents that we are used to analyzing in less unconventional ways. Fourth, and most importantly, I will argue that the ecosphere must take priority as a security referent, and accordingly must condition our understanding of the others. This argument would be more difficult to make were I to put various carts before the horse.

Chapter 8 concludes the analysis of the most important substantive investment treaty clauses by examining the fair and equitable treatment standard. It argues that armed conflict does not put into question certain guarantees of fair decision-making and adjudication, whereas it proposes a balanced relativisation of the protection of investor expectations in the context of armed conflict. The determination of whether treatment is fair and equitable can only be made in the light of the individual circumstances of conflict. When balancing the interests of investors in a stable regulatory framework against the state’s regulatory interests, the urgency and severity of these public interests in armed conflict should be accorded particular weight. Under the proposed reading, the fair and equitable treatment standard is flexible enough to consider the circumstances of an armed conflict in a balanced and nuanced way. Well aware of existing controversies and opposing lines of jurisprudence, the chapter suggests ways to embrace the standard’s flexible nature and counteract tendencies in arbitral practice that arguably overemphasise investor interests.

Switzerland has a long humanitarian tradition and has been strongly supportive of many initiatives to protect civilians, especially in its central role in the development of international humanitarian law (IHL). It was the first State to conclude a dedicated policy document on PoC, in 2009.

Chapter 10 accounts for requirements of access to justice arising from Article 13, most notably the powers and competences the national autority needs to have, the procedural safeguards that must be provided, the prospect of success which the remedy needs to offer and the speed in which the remedial task must be performed. Most importantly, the chapter accounts for the required scope of domestic review, which, possibly, is the most important practical requirement stemming from Article 13. In early case law, the requirement was negatively delimeted in two aspects. First, the Convention must not be incorporated into domestic law. Second, Article 13 grants no right to challenge primary legislation, as such. This latter delimitation is criticized, and it is argued that the Court should positively require that the domstice remedial authority has the power to correct mistakes stemming from, also, primary legislation. The chapter, then, analyzes the domestic review that the national authority must perform and explains how the Court now requires the legal starting points to be more similar to those applied by the Court and how the concrete scrutiny must be more rigorous.

We move now to more familiar terrain. Throughout the history of International Relations as a field, the state has been the primary security referent of concern. In this chapter – as in the previous one and the next two – I will start by clarifying the referent conceptually, then proceed to assess the kind and degree of value it has (if any), identify prominent threats to it, and discuss which of those threats are worthy of what level of investment in security.