Balancing International Investment Law and Climate Change in Africa:

Assessing Vertical and Horizontal Norms

Chidebe M. Nwankwo

 

ABSTRACT: As Suzanne A. Spears notes, ‘the question of how to strike a balance between principles regarding the protection and promotion of foreign investment on one hand and principles regarding the protection of society and the environment on the other’ is ‘[o]ne of the most important challenges facing the international investment law regime today. This dilemma is particularly challenging for the African States that critically need to better the lot of the governed in a region that continues to derail from its perceived potentials. All over the region, the scramble for mega-projects aimed at expanding the fragile economies is evident. In contrast, the wind of human rights that had swept the region since the inception of the African Charter takes new dimensions. However, African Union (AU) Member States are left with no choice but to welcome investments into their respective states to explore its resources to provide critical infrastructure for development. At the heart of this race for development is the extractive industry which activities often impact harmfully on the local communities. Since States have been found wanting in the regulation of multinational corporations that lead these operations, are there any regional instruments, apart from African human rights instruments, that envisage and attempts to balance this clash between international investment and the environment? This paper looks at regional instruments on international investment such as the Pan-African Investment Code (PAIC) and analyses its provisions in relation to climate change. This paper argues that the modernisation of the international investment regime taking place in Africa which has the environment and climate change as central values in the process is a step in the right direction for striking a balance between investment-driven industrialisation and sustainable development in Africa.