Investment Treaty

A fundamental premise of The Investment Treaty Regime and Public Interest Regulation in Africa is that national constitutions “are supreme in the hierarchy of legal norms within the domestic context, and governmental actions in Africa, including the making of investment treaties, are governed by these fundamental legal norms.” In this monograph, I addressed, then, the question of the limits that national constitutions and the right of African states to regulate in international law place on the authority of African states in their conclusion of international economic treaties such as investment treaties. I examined four different and fundamental areas of public interest: national judicial systems, the environment, human rights, and development. Based on a constitutional-general international law imperatives analysis, I developed the imperatives theory as a theoretical framework to explain the conflict of legal norms and interests through a critical analysis of the intersections of public law and policy and international investment treaties. The issue addressed by the imperatives theory is whether the fundamental human rights and corresponding obligations of African states towards citizens under African constitutions, international environmental treaties and international human rights treaties do place or should place, limitations on the competence of African states to conclude investment treaties the terms of which constrain the exercise of the states’ public interest regulatory authority.

Traditional international law (IL) teaching and research has reached an inflection point (TRILA Report, 24).  Content-wise it has long been monopolised by the usual suspects: sources of law, treaties, statehood, territory, jurisdiction and specific values such as universality and equality among states. The most conservative IL scholars will smirk at the thought of alternative ‘transnational’ or ‘Third World’ approaches to IL. To be fair to them, lawyers are fond of compartmentalising. We have those that do private law, public law, human rights, international economic law, law and development, business and human rights law, health law, dispute resolution law, to name a few. Yet as the current pandemic is showing this type of boxed thinking cannot provide the tools for meaningful teaching and research about today’s legal conundrums. We live in an uncertain world in which one issue can raise a myriad of legal problems that straddle multiple fields of law.

May, 2019