Abstract

KAIROUANI, Ali. The implementation of the right to development in the African Continental Free Trade Agreement Investment Protocol. AHRY [online]. 2023, vol.7, pp.284-302. ISSN 2663-323X.  http://dx.doi.org/10.29053/2523-1367/2023/v7a13.

This article explores the implementation of the right to development from the perspective of the African Continental Free Trade Agreement (AfCFTA) Investment Protocol, African international human rights law and international foreign investment law. The draft Investment Protocol, adopted in February 2023, confirms in its preamble the right of African states to regulate the development of their populations and local communities. However, this pursuit comes up against the conventional protection of foreign investors' right to invest and the thorny issue of interpreting investment treaties in terms of investor and investment protection. This constitutes both an obstacle in the light of existing arbitration case law and an African opportunity to reorient investment law towards greater development and inclusion. It should also be pointed out that the right to sustainable development is crystallised in the AfCFTA Investment Protocol, particularly in its preamble, article 24 and article 28 on sustainable development objectives. From this perspective and using an inductive method, a right to preferential treatment emerges in favour of companies and local populations within the framework of this agreement, which overturns the pre-established principles of international investment law and calls into question the clauses providing substantial protection for investment, such as the national treatment clause.

Keywords : droit au développement; protection de l'investissement; liberté d'investir; protocole d'investissement de la ZLECAf; développement durable; droits de l'homme.

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