Bringing Human Rights into Bilateral Investment Treaties: South Africa and a Different Approach to International Investment Disputes

Authors

Erika George, Boston University School of LawFollow
Elizabeth Thomas

Document Type

Article

Publication Date

Winter 2018

ISSN

1058-1006

Publisher

University of Iowa College of Law

Language

en-US

Abstract

This Article therefore begins with a discussion of the Western imperialist history underlying the pasts of China and Africa, discussing the evolution of a Chinese-African economic alliance. Next, this Article discusses the broader roles of BITs in the ISDS system within the context of Chinese and South Africa BITs. It continues with a discussion on the Southern African Development Community's Model BIT, explaining why this particular model is a step in the right direction towards the protection of human rights in all IIAs. This Article highlights the relationship between international investment law, foreign direct investment ("FDI"), BITs, and human rights, illuminating the positive and negative impacts of investment on human rights in the African continent. This Article advocates the modification of ISDS systems to meditate human rights conflicts because of the consequences of a gap for human rights protection in investment decisions. This Article further advocates amending BITs to include a human rights approach to international investment law, consistent with state obligations put forth in the UNGPs. In conclusion, this Article applies these recommendations to the Chinese-South African context, calling upon the two nations to re-negotiate their BITs in accordance with human rights standards and to support human rights concerns within the ISDS system as a way to further their goals against colonial and imperialist tendencies within international investment law generally. Due to the fact that China-African BITs have historically been aimed at the protection of investor rights, now is the time when investor obligations should include the recognition of and for respect human rights.

Recommended Citation

Erika George & Elizabeth Thomas, Bringing Human Rights into Bilateral Investment Treaties: South Africa and a Different Approach to International Investment Disputes , in 27 Transnational Law & Contemporary Problems 403 (2018).
Available at: https://scholarship.law.bu.edu/faculty_scholarship/3829