Published 18 December 2019
This article provides a critical comparative overview of sustainability disciplines in selected international investment agreements (IIAs), including bilateral investment treaties (BITs), with a particular focus on model IIAs and actual BITs concluded between Canada and several African countries. Our analysis demonstrates two general tendencies. First, an overwhelming number of BITs between capital-exporting states and African countries contain no express reference to the public and further societal interest of the host state. The same goes for BITs between a developing state and an African country. Second, to date only six BITs between a developed country and an African state (all Sub-Saharan least-developed countries) do refer to the public interest and sustainable development of the host state, and all of them are concluded by Canada. We noticed, however, a major pitfall in all those BITs. Namely, they are signed in accordance with Canada’s model IIA rather than various African investment codes, which clearly shows the power balance in treaty negotiations. More specifically, neither Canada’s model IIA nor its actual investment agreements with African LDCs contain substantive provisions with concrete reference to labour standards—either national or international. Additionally, Canada’s model includes neither societal impact assessment provisions nor those referring to the precautionary principle. Contrast, for example, Canada’s model with the ECOWAS investment code. The latter stipulates a clear investors’ duty to protect human rights, including labour rights in compliance with the ILO Declaration on Fundamental Principles and Rights of Work 1998. An overall character of the ECOWAS code is attributable to the sheer needs in improving standards of living of the region. On its side, the Canadian model strives to sign IIAs with African countries, particularly with LDCs, to protect Canadian foreign investments and define the strictest host state obligations possible, whilst the obligations of foreign investors are quite lax or simply non-existent. Substantively, this means that Canadian ratio of ‘development funding-FDI’ for Africa seems to be providing just enough foreign aid to get a social licence to operate for its investors’ involvement in African mining, while maximally facilitating and protecting such involvement.
This paper will be part of the OGEL Special Issue on "Social Licence to Operate (SLO) in the Extractive and Energy Sectors". More information here www.ogel.org/news.asp?key=571