The human rights-based approach to sustainable development: Lessons from recent African investment treaty practice

This paper provides a non-exhaustive analysis of the human rights-based approach to sustainable development (HRBA to SD) contained in the Draft Pan African Investment Code (Draft PAIC), the Southern African Development Community Model BIT (SADC Model BIT), and 37 Bilateral Investment Treaties (BIT) concluded by African countries between 2017 and 2021. The analysis was conducted through an analytical framework that breaks down the investors’ human rights responsibility into five key analytical elements: the duty-bearer, the content of human rights obligation, the legal force of the standards, the enforcement of the human rights obligation and the legitimacy of the HRBA to SD. This paper shows that the HRBA has resulted in the linking of investment protection, the incorporation of mandatory human rights, and the promotion of SD goals in some African investment instruments. The paper also suggests that the HRBA to SD has limited influence on treaty practice, as it is adopted by a limited number of intra-African BITs. It appears that the HRBA as adopted in African investment treaty practice has a moderate influence on achieving SD objectives. This article is a valuable contribution to the literature on sustainable development, on “Africanization of international investment law”, and on the responsibility of corporations in relation to human rights.