The objective of this chapter is to analyze the role played by the African human rights system in the regulation, prevention and accountability of multinational corporations’ acts which are damaging for human rights. The African human rights system is understood in this chapter to mean political bodies of the African Union (AU) that set human rights standards, as well as bodies and institutions that provide for their implementation, including the African Commission on Human and Peoples’ Rights and the African Court of Human and Peoples’ Rights. Does an African normative framework exist regarding the liability of multinational corporations for human rights violations? What could be the main features of the rules and principles entrenched in such a framework? Does this framework strike the proper balance between the pursuit of economic development, through foreign direct investment, and the protection of human rights? This chapter would argue that Africa needs clear guidelines on the protection of human rights in the face of multinational corporations.
This long-awaited volume featuring contributions from top African international lawyers and voices from the continent critically explores the notion of international investment law from an African perspective. It does so by confronting some of the very hard questions with regard to the relationship between international investment and development that have either eluded or not been properly addressed in contemporary scholarships. After many years of popularity, investment treaties have recently caused increasing concern among States, most prominently for the unbalanced nature of their content, the often inadequate safeguard of the regulatory powers of the host State and the shortcomings of international investment arbitration. Some States have upgraded their investment treaties, others have revised their investment treaty model, and others have opted for facilitation agreements. This innovative monograph critically explores all these contentious issues from a multidisciplinary perspective.
The future of the investment regime rests upon a better balancing of the rights and obligations of States and investors. The effectiveness of the investment regime will also depend on enhanced integration between international investment law and other fields of international law, such as human rights law and water law.
This chapter sheds light on the implications of the doctrine of constitutional supremacy on the enforceability of arbitral awards in Ghana in a situation where its constitution regulates the conclusion of international business transactions or international investment agreements (IIAs). After analyzing applicable municipal and international law in relation to the constitutionality of treaties and international economic transactions, the chapter contends that certain conditions have to be fulfilled for an IIA or an international transaction to come into existence in Ghana. Finally, the chapter argues that the doctrine of constitutional supremacy places limitations on the enforcement of constitutionally illegal international business transactions and IIAs in Ghana.
In the light of the growing debate about international investment and developing economies, this chapter begins by establishing that the term ‘investment’ in investment law is a product of the extremist conception of liberalism in economics. On this basis, the chapter examines whether there are justifications in support of the arguments that Africa has been unfairly treated in international investment terms since decolonisation. The chapter also inquires whether the new international economic order of the 1970s brought any investment successes to Africa. Finally, the chapter provides a few remarks on the position of Africa post-1990s and beyond.
The objective of this chapter is to examine the extent to which the human rights system in Nigeria is being repositioned to engage the increasing influx of international economic players and to bring transnational economic entities in compliance with local and international human rights standards. This enquiry is necessary, since the chapter is based on the assumption that the confluence of business with human rights is the platform for sustainable investment and development in Nigeria. Taking the negative consequences of the oil business in Nigeria as an example, the chapter argues that the interface of business and human rights is in desperate need of radical reform.
In an assiduous attempt to entrench the private rights of investors and promote foreign investment, arbitral tribunals have given expansive and very broad interpretations to the meaning and scope of most-favoured-nation and fair and equitable treatment clauses without taking cognisance of the public policy space of host States. It is the basic contention of this chapter that the legal regime of foreign investment only imposes obligation on sovereign host States without imposing corresponding duties on foreign investors. The chapter argues that such an approach makes the relationship between foreign investors and host States unbalanced and, as a result, has undermined the sovereignty of host States. This threatens the legitimacy of the international investment regime.
This chapter sheds light on the extent of the emancipation from the international investment protection regime contemplated by the African Society of International Law (AfSIL) and situates it against the backdrop of some recent contestations of international investment law. After recalling the drafting history of the AfSIL Principles and some recent contestations, the attention turns to the content of, and possible adjustment to, the international investment protection regime vindicated by AfSIL. This short chapter ends with a few concluding remarks on the choice for an emancipatory mode of contestation rather than a reformist one.
The contributions made in this book by prominent international lawyers in the field aim at highlighting the current challenges that African nations face in relation to the investment regime. The various contributions also suggest paths to shape an African voice in the reform of the investment regime and to ensure that international investment agreements contribute better to the sustainable development of African countries.
In an attempt to examine to what extent Africa could take as an example the EU proposal on the reform of investment treaty arbitration, this chapter analyzes the different aspects of the EU Investment Court System (ICS). In this context, the chapter first explores whether the EU ICS is actually innovative and subsequently asks what it would mean if this system were adopted by African States. Finally, it is argued that the EU ICS is likely to provide consistency and coherence, as well as ensuring the independence and impartiality of the Tribunal Members. The chapter ends on a positive note regarding the EU ICS. It is asserted that a regional approach by African States could also integrate broader development concerns in their investment regulations.