Sustainable Development

In July 2019, the African International Economic Law Network (AfIELN), held its Fourth Biennial Conference under the theme “Africa and International Economic Law in the 21st Century” at the Strathmore University Law School (Nairobi, Kenya). This symposium contains some of the papers presented at this conference in their abridged forms. Before introducing the authors’ views on this Conference’s broader theme, we provide the important context under which the Conference took place.

Illicit Financial Flows (IFFs) are one of several impediments to achieving sustainable development in developing countries across the world. While there is no globally accepted definition of IFFs, there is global acceptance that IFFs undermine the efforts of developing countries to generate domestic revenues to finance their national development agendas. According to the United Nations (UN), developing countries face an estimated annual funding gap of $2.5 trillion to deliver on Agenda 2030. In Africa, the continent loses approximately $100 billion annually through IFFs that are generated in and moved from the continent to tax havens.

A sustainability objective will foreground sustainability-based assessment in lieu of a traditional impact assessment mode which is founded on the triple bottom line approach. Centering ‘sustainability’ as a key objective, also, makes a no-contract decision a necessary option when it is shown that a prospective project endangers the environment or at-risk-ecosystems. This option appears not to have been considered in the Guide. The Guide on ALIC provides an opportunity to rethink land use agreements from the ground-up.

The lack of participation of African states in the WTO dispute settlement system is indicative to a certain extent of the discomfort that most African states feel vis-à-vis the said system. A future reform of the DSU must necessarily include procedural and substantive aspects to render dispute settlement more flexible for African countries.

Based the observation from Ghana and Kenya, there is the need to improve the efficiency and effectiveness of investment tax incentives to ensure transparency, accountability, reduce associated costs, and check abuse.

The huge investments in the extractive sector should, in principle, be a catalyst for economic growth, job opportunities, and development. Often, these investments have been a source of environmental degradation, socio-economic malaise and despair. Equatorial Guinea, for instance, is a classic example of the ‘resource curse mystery in Africa. To leverage extractive resources for development, African countries are faced with legal, fiscal, implementation, infrastructure, regulatory and institutional challenges. This contribution addresses state and investor responsibility in the sustainable development of Africa’s extractive sector. It highlights four responsibility indices that will guide states and investors in fostering a shared value approach to an inclusive and sustainable development of Africa’s extractive sector.

This symposium includes contributions that analyze state and investor responsibility for wrongful acts, and responsibility for the development of sustainable extractive regimes, in African countries. The contributions are timely interventions at a time when Africa’s regional institutions and states are developing mechanisms for responding to challenges presented by the extractive industries.

With the purpose to bring together scholars and scholarship that highlights original and innovative thinking in IEL as it pertains to the African continent, the idea was to follow up with the existing tradition that consists in engaging with new scholarship and research on the continent’s contributions to, and involvement with IEL. This task proved at the same time challenging and quite rewarding. The call attracted responses of high calibres as reflected by the quality and quantity of abstracts received, as well as the global representation of the submissions.

While international trade has undergone significant structural changes recently, particularly with the proliferation of new generation of free trade agreements (FTAs), the debate on the consequences of IIAs for sustainable development continues to widen and intensify. In effect, while there has been fundamental changes in the international investment landscape in terms of players (now comprising state-owned enterprises and sovereign wealth funds) and FDI direction (with emerging economies now being, not only recipients, but increasingly home states), governments are also now adopting industrial policies and development strategies that contrast with their erstwhile hands-off approach to economic development.

Attracting foreign investment while holding transnational corporations to account for any human rights transgressions is by no means an easy feat. It will require that a careful balance be struck between the interests of the host State and its people, and that of private actors expecting good risk-return ratios in pursuit of the bottom line. Although international mechanisms such as the United Nations Committee on Economic, Social and Cultural Rights have long endorsed accountability for transnational corporations, a zero draft international convention to regulate this issue has only recently been developed.