Resumen de The Environment, Human Rights, and Investment Treaties in Africa: A Constitutional Perspective
It is settled in legal scholarship and arbitral practice that investment treaty law and arbitration constrain environmental and human rights regulation. Measures adopted in furtherance of environmental rights and human rights have been challenged in investor-State arbitration. This chapter is concerned with this issue with particular focus on Africa. It is concerned primarily with whether the constitutionalization of environmental rights and human rights in Africa does place limitations on the competence of African States to agree to certain terms in investment treaties. The chapter establishes that environmental rights and human rights are constitutionally guaranteed. Moreover, national constitutions in Africa require States to uphold and respect international environmental treaties and international human rights treaties they have entered into. Therefore, environmental rights and human rights and corresponding duties of African States derive their legal source and legitimacy from both constitutions and general international law. Based on specific analysis of the constitutions of Cameroon, Egypt, Ghana, Kenya, Nigeria, and South Africa, this chapter argues that the combined legal force of national constitutions, international environmental treaties, and international human rights treaties limit the competence of African States in investment treaty making. As the primary duties of these States are to protect their citizens’ fundamental environmental and human rights, the States have the legal obligation to put these rights and corresponding obligations first when they enter into investment treaties and other international commercial transactions. Agreeing to absolute standards of investment protection in investment treaties is inconsistent with the environmental and human rights obligations of African States. Constitutionally, these States do not have the competence to agree to investment treaty obligations that directly or indirectly shield certain persons, including foreign investors, from being brought to effective justice before local courts and institutions for violations of environmental rights and human rights.
