The Environment, Human Rights, and the Investment Treaty Regime in Africa

Abstract Chapter 4 focuses on human rights and environmental regulation of foreign investment. The environment and human rights are protected, in part, by the enactment or making and enforcement of environmental and human rights laws and policies. The African constitutions studied and the international human rights treaties and international environmental treaties to which African states are parties guarantee, recognise, and provide for the protection of fundamental human rights and the right to a healthy environment and impose corresponding obligations on African states to fulfil these rights. This chapter also analyses arbitral cases challenging environmental and human rights protection measures in order to assess how investment treaties restrict or might constrain the adoption of measures aimed at protecting the environment and human rights in Africa. It argues that African states’ duties to protect the environment and human rights emanate from national constitutions and international environmental and human rights treaties. Therefore, fundamental human rights and the right to a clean and safe environment and corresponding duties of African states place legal limitations on the standards of investment protection the states can undertake depending on their constraining effects on regulatory autonomy. It suggests that investment treaty terms must be made to be consistent with environmental and human rights obligations of African states.