Analysis

The Analysis Section of Afronomicslaw.org publishes two types of content on issues of international economic law and public international law, and related subject matter, relating to Africa and the Global South. First, individual blog submissions which readers are encouraged to submit for consideration. Second, feature symposia, on discrete themes and book reviews that fall within the scope of the subject matter focus of Afronomicslaw.org. 

Environmental Protection under Bilateral Investment Treaties

Although developing countries are very eager to attract FDI through BITs, for most parts, they deliberately water down the environmental concerns. However, recently we have witnessed the incorporation of environmental standards and provisions in BITs. This ambitious effort however is usually frustrated by decisions of international arbitration tribunals.

The Africa-Caribbean Investment Treaty Network: The Status Quo and Three Options for Transformation

Though promising, trade and investment relations between African and Caribbean countries remain under-tapped. Indeed, according to UNCTAD’s IIA Navigator, there are only twelve signed bilateral investment treaties (BITs) between Caribbean and African countries, of which only four are in force. Recently, however, there have been budding signals of interest on both sides of the Atlantic in deepening commercial relations. This article examines the current Africa-Caribbean investment treaty network and proposes three possible options for transforming Africa-Caribbean investment relations.

Commentary on the UNIDROIT Legal Guide on Agricultural Land Investment Contracts

Food security is at the very core of human existence. Agriculture is thus a critical part of sustainable development. It is estimated that Agriculture contributes about 33% of the world’s gross-domestic product. A significant number of countries with the most arable land belong to the categorization of low to middle income nations, while a significant number of the high-income nations are dependent on food imports from the former. As a result, domestic and foreign agricultural land investment contracts are common as countries seek to achieve food security. The UNIDROIT/FAO/IFAD Legal Guide to Agricultural Land Investment Contracts (ALIC) is thus a welcome framework for ensuring that these investments contribute to the sustainable development goals. On the overall, the legal guide provides comprehensive instrument that effectively highlights the critical components of such agricultural land contracts and is thus commendable.

International Accountability in the Implementation of the Right to Development

All in all, what should be kept in mind is that, as the wise Canadian thinker and diplomat Ivan Leigh Head once noted, an element of law (and of accountability), some measure of it, will be needed in the effort to realize the right to development. It is for this reason that the African example of establishing meaningful regional-level accountability mechanisms in the development field, undergirded by hard law, ought to be replicated at the UN level.

Officer and Director Liability in Transnational Human Rights Litigation

To the extent that a shift toward personal liability improves compliance with human rights, tort litigation may play a role in furthering the UN Sustainable Development Goals. Specifically, it may help ensure the basic conditions necessary for the inclusiveness of the economic development associated with TNCs.

Can Transnational Private Regulation Facilitate Achievement of the Sustainable Development Goals?

This essay highlights the traditional, hybrid and private regulation-inspired approaches through which the private sector arguably facilitates the achievement of the SDGs. Private regulation is not a silver bullet in the global quest for sustainable development, considering the inherent legal, administrative, institutional and political concerns. However, seeing the private sector as a partner in rule making and enforcement opens a realm of possibility in terms of possible collaborative models among stakeholders towards achieving the SDGs.

Access to Justice for Local Communities in Investor-state Arbitration

Access to justice for victims of business and human rights in the ISA will be an strong index to measure the realization of the sustainable development goal on access to justice. Goal 16 specifically provides that states should promote the rule of law at the national and international levels and ensure equal access to justice for all. Reforming the ISA to ensure equal access between states, investors, and local communities will be an important step in this direction.

Using International Investment Agreements to Address Access to Justice for Victims of Human Rights Violations Associated with Transnational Resource Extraction

Access to justice for victims of business-related human rights violations, including harm caused by transnational resource extraction projects, remains a pressing global concern. A 2018 study by the Office of the United Nations High Commissioner for Human Rights (OHCHR) notes that such victims “continue to struggle to achieve effective remedies for the harm they have suffered”. This is despite the development and widespread endorsement by states and businesses of the Sustainable Development Goals (SDGs) and the United Nations Guiding Principles on Business and Human Rights.

International Business and Human Rights Dispute Settlement Before Domestic Courts: The Draft UN Treaty for Business and Human Rights

Human rights principles and standards are strongly reflected in the 17 Sustainable Development Goals (SDGs) adopted at the UN Sustainable Development Summit in 2015. However, for victims of human rights violations at the hands of transnational corporations the question of redress remains daunting. Access to justice challenges faced by such victims before domestic courts have placed this issue at the forefront of international discourse. Accordingly, one of the ‘pillars’ on which the United Nations Guiding Principles on Business and Human Rights (UNGP) are founded is the “need for rights and obligations to be matched to appropriate and effective remedies when breached”, including state-based judicial, state-based non-judicial, and non-state–based remedies.