Chapter 8 accounts for factors explicitly emphasized in the Court's case law which may influence the relative standard of effectiveness arising under Article 13. Indeed, States have a margin of appreciation which provides for different possibilites for assuring effective remedies in practice, for example, in penal, civil, constitutional or administrative proceedings. However, the proceedings must satisfy the minimum requirements, of access to justice and redress. These requirements may be influced by, for example, the character and degree of the violation, the context in which the remedies operate, including whether the remedial problems stems from a systemic problem and the personal situation of the applicant. Such factors may, in practice, lead to the conclusion that only a limited selection of remedies, or even only one remedy, may be effective.

My aim in this chapter is to explore a somewhat loosely related set of referents that are all facets of a larger one that we might best characterize as ‘a way of social life.’ I will use ‘culture’ as a cover term for this larger referent, fully aware of the perennial difficulties of defining culture rigorously and speaking of it univocally.1

To conclude, the protection of civilians has become a well-established concept consisting of international law, policies, and practices. The legal framework, notably the content and form of international humanitarian law (IHL), human rights law, disarmament law, and refugee law, offers protection to civilians, particularly in situations of armed conflict. At the level of jus ad bellum and the primary role of the United Nations (UN) Security Council, the last two decades have witnessed a higher priority being accorded to the protection of civilians. That violations of IHL and especially attacks against civilians or indiscriminate attacks constitute a threat to international peace and security, as that term is understood in Chapter VII of the UN Charter, is a major normative shift.

India, the world’s most populous democracy, has, like Brazil, been sceptical about international efforts to protect civilians. India does not have a formal national strategy or policy on the protection of civilians. The issue is, though, of particular concern to India owing to insurgencies within its own borders and the highly politically sensitive issue of Kashmir. India’s stated position is that the protection of civilians is the primary responsibility of national governments.

Norway has been at the forefront of several major initiatives to protect civilians. It hosted the diplomatic conference in September 1997 that adopted the Anti-Personnel Mine Ban Convention, and led the elaboration of the Convention on Cluster Munitions in 2008. The Safe Schools Declaration is a joint initiative led by Norway and Argentina and endorsed by governments at the Oslo Conference on Safe Schools in 2015.

Chapter 9 examines security exceptions known to many investment treaties. These clauses are designed to expand the host state's room to adopt certain measures in the pursuit of security interests without having to compensate foreign investors. While seeking to enhance legal security, security exceptions remain ambiguous and controversial in many respects. The chapter conducts a comprehensive study of relevant case law, not only of recent investor-state arbitrations but also of the World Trade Organization’s dispute settlement body. On this basis, it offers guidance on the interpretation of elements common to security exceptions as well as on the level of review to be conducted by investment tribunals. The chapter delineates the limits of state discretion and proposes that international humanitarian law should have an impact on the application of security exceptions in the context of military operations. In evaluating drafting options, the chapter further assesses the merits of including a security exception in investment treaties and makes suggestions as to their wording and function.

The United States does not have a federal policy or strategy document on the protection of civilians. Instead, elements of relevant policy can be found across a range of government documents issued over the past decade. In general, the US tends to address the issue at the national level through the prism of ‘civilian harm mitigation’, which suggests a more limited and legalistic approach than the broad concept of protection of civilians.

Chapter 4 explains the relevant rules of armed conflict that provide for the protection against the effects of hostilities. To the extent that humanitarian law protects civilians and civilian objects, it also protects foreign investors and their investments, as far as natural persons and tangible assets are concerned. The chapter shows how the law of armed conflict balances military and humanitarian concerns and illuminates the operation of the principles of distinction, proportionality, and precaution. In analysing the limitations of this protection, the chapter further identifies circumstances in which harm to foreign investors and their investments may be lawful under international humanitarian law. In particular, the chapter shows how foreign investments can easily become military targets and under which circumstances inflicted damage can be an acceptable side effect of military operations. The chapter thus forms the basis for the subsequent examination of international humanitarian law’s impact on individual investment treaty standards.

In its study of customary IHL, the ICRC determined that the elderly are entitled to special respect and protection in armed conflict. Under the 2002 Madrid Declaration, States pledged to protect and assist older persons in situations of armed conflict and foreign occupation. But overall, there remains a remarkable dearth of practical guidance on assistance to the elderly during situations of armed conflict.