Resolving the Normative Complexities in Balancing Investors’ Human Rights Obligations in Investment Agreements: Does Africa’s Emerging Investment Landscape Provide Some Hopes?

Abstract:

The obligations arising from investment protection regime can impede states’ power to pursue legitimate human rights policy objectives. This raises unique obligatory challenges for a host-state in balancing human rights obligation and investment protection. Will the emergence of the new Africa’s Continental Free Trade Area Agreement’s (AfCFTA) investment chapter provide the much-needed regulatory balance between investment protection and human rights obligations of host states and promote investors’ human rights responsibility? This paper raises this question through the analytical lens of the asymmetrical relationship between investment protection and human rights and x-rays Africa’s structural responses to this relational imbalance. The paper recognises the obligatory potentials of the reform models in Africa’s treaty-making practices towards expanding regulatory space of the host-states for human rights and to promote investor’s human rights responsibility. The paper however highlights the limitations inherent in the existing models. The paper identifies normative human rights disparity and human rights deficit in Africa as a major hindrance in measuring realisable investors’ human rights obligation in investment treaties. By introducing the human rights integration model, the paper offers new insights and approach that harmonises Africa’s human rights landscape for determining and measuring investors’ human rights obligation under the emerging AfCFTA’s investment chapter.