Symposium Posts

In March 2018, African nations embarked on a historic journey to reshape their trade landscape through the African Continental Free Trade Area (AfCFTA). Originally scheduled for implementation in mid-2020, a pandemic-induced delay pushed the launch to January 2021. Aggregating over 1.2 billion people, the AfCFTA promises to create a massive market with a combined GDP of over $3 trillion. With 54 signatories and 47 countries ratifying the agreement, the AfCFTA aims to foster a pan-African free trade zone, enhance regional development prospects, and promote intra-African trade. Key mechanisms are progressively dismantling trade barriers and promoting investment. This blog post delves into the current state of investment dispute settlement (ISDS) mechanisms across Africa, the potential of the AfCFTA and its investment protocol to catalyse change, and the need for a balanced multilateral approach. Through collaboration, innovation, and a commitment to equity, Africa can create a new paradigm for investment dispute resolution that truly reflects the continent's values and aspirations.

The Investor-State Dispute Settlement (ISDS) system in its current form has been viewed as being malignant to the Global South. Africa in particular, has been a strong critic of the system with the most radical action against ISDS coming from South Africa, which has stated that investment arbitration awards are “directly opposed to the legitimate, constitutional and democratic policies of the country”. The United Nations Commission on Trade Law (UNCITRAL) has now mandated its Working Group III (WG3) to lead ISDS reform efforts. One of the key areas of reform under the purview of WG3 is the inconsistency, incoherency, unpredictability and incorrectness of investment arbitration awards.

This contribution has looked at the extent to which the MIC can improve the participation of African local communities in ISDS and ensure a better protection of their rights and interests. It started by discussing the current participation of these communities in ISDS with a view of identifying the challenges these communities are facing before analyzing how the MIC can address some of these challenges. Emphasis should be placed on the selection of MIC members and encourage the appointment of members with broad expertise in (public)international law and public issues and not experts with only commercial background. Indeed, most recent investment agreements contain provisions that protect local communities. The challenge therefore lies in how these agreements are interpreted and applied. In addition, the MIC investment advisory centre should extend its services to local communities and assist them in the drafting and submission of their briefs to investment tribunals.

This post critiques the extent to which the present green finance rush embraces laws and policies that are largely externally motivated prescriptions designed, mandated, or foisted on resource-rich African countries through creative channels of geopolitical norm diffusion. These contradictions need to be questioned to avoid the charge of greenwashing.

Research has linked climate change and reproductive rights, as demonstrated by the increased exposure of women to sexual assault as they collect firewood or search for water. Such sexualized violence is prevalent in women-led rural households and highly vulnerable settings. For example, humanitarian contexts, slums, and arid areas have high rates of sexual violence due to water scarcity and poor lighting as women and adolescent girls travel long distances to access water. From an African socio-cultural context, fetching water and firewood are mainly feminine roles. Thus, energy distribution and water scarcity associated with climate change interact with gender dynamics to provide a setting for enacting sexualized violence. Freedom from sexual violence is an integral aspect of reproductive justice, a state where people have bodily autonomy and live in a safe and healthy environment that protects and upholds their reproductive rights and decisions. The question that arises is - can green projects, including the EU Green Deal, address climate change in a manner that addresses the associated sexual and reproductive justice issues in Sub-Saharan Africa?

While the law is to a large extent responsible for the overlapping social and ecological breakdowns, translating the above-mentioned principles into law means creating legal frameworks (through the interpretation of existing legal rules and principles and the creation of new legal instruments) that move away from the primacy of market logics and extractive profit-oriented economies embedded in colonial legacies, and reproducing gendered and racialized inequalities. It requires designing legal responses that would enable transformative ways of thinking about economies, justice, and our relationship with the non-human worlds, while embedding law and policies in truly democratic frameworks and practices. It means centering within legal thinking and legal practices the multiple forms of exclusions that are pervasive within and outside the EU, and that EU laws and policies often directly enable. Making a fair and inclusive transition happen requires bold choices and unwavering principles. Right now, the EU is quite far from embracing and practicing them.

In this contribution, we demonstrate how the so-called Green Deals initiatives which espouse an increasing drive to “catalyze” private financing by using public resources, including development assistance, may create perverse impacts on sustainable development in developing countries. The move may mean an overarching shift towards reliance on private sector to provide public infrastructure and services in ways that ensure a return for the private sector through buy-back guarantees and favourable contractual conditions. Such moves may create contingent liabilities on developing countries in addition to diverting public resources towards the private sector, including foreign investors, and undermining public oversight.

In this contribution, the author makes three claims. First, just transition interventions around the world are dominantly insular and ‘State-first’. The dominance of nationalist just transition policy making is evident in the America-first emphasis of the US Inflation Reduction Act (IRA) and the EU-first tilt of the European Green Deal (EGD). Second, the insular nature of just transition policies is hallmarking a new epoch of global injustice that, if not cauterized and dealt with early (if not already late), will become a major sphere of global inequality. Third, human and ecological wellbeing as an organizing principle, and differentiation as an implementation framework, will be key to any meaningful attempt to inject the ‘global’ into just transition.

In July 2023, Prof Okafor presented a revised version of a document which has formed a key part of the mandate’s work since its establishment in 2005, namely the Draft Declaration on the Right to International Solidarity. This document defines international solidarity as ‘an expression of unity by which peoples and individuals enjoy the benefits of a peaceful, just and equitable international order, secure their human rights and ensure sustainable development’ (draft art 1(1)). It goes on to specify that both individuals and peoples have a right to international solidarity, meaning ‘a right of individuals and peoples to participate meaningfully in, contribute to and enjoy a social and international order in which all human rights and fundamental freedoms can be realized’ (draft art 4(1)). The Declaration outlines a number of corresponding duties, one of which is the state obligation to ‘to take steps within their respective capacities to facilitate the protection of actual and virtual spaces of communication, including access to the Internet and infrastructure, in order to enable individuals and peoples to share solidarity ideas’ (draft art 8(3)). In this post concluding the Special Symposium ‘You’re Not Alone: Normative Debates on (Digital) Solidarity in International Law and Policy’, we hear Prof Okafor’s reflections on a variety of themes concerning the intersection between the digital sphere, human rights and international solidarity in light of the above work and beyond.