The Investment Treaty Regime and Environmental Protection in Ghana:
A Constitutional and General International Law Perspective on How to Retain Environmental Regulatory Autonomy
Dominic N Dagbanja
Investment treaty regime has posed a challenge to environmental regulatory autonomy. Various forms of environmental regulation of foreign investors’ operations have been challenged by foreign investors through investor-state dispute settlement. This has raised academic and policy debates on how states might recapture or retain environmental regulatory autonomy. In this debate, little attention is paid to the role of constitutions and general international law in regulating the competence of states to conclude investment treaties that constrain the enactment and enforcement of environmental laws and regulations. This article contributes to the debate by assessing the implications of constitutions and general international law in the making and interpretation of investment treaties with particular focus on Ghana. The article argues that the Constitution of Ghana guarantees the right to a healthy environment and imposes a corresponding duty on the State to protect and safeguard the environment. These right and corresponding duty are equally recognised or required by the international environmental treaties the State is a party to. The article argues that because international environmental treaties promote the protection of the environment in the same manner as does the Constitution, they are much more inviolable than investment treaties. Therefore, the constitutional and general international law duty with respect to environmental protection must dictate the standards of investment protection the State can undertake and should inform the interpretation of investment treaties.