The Right to Sustainable Development Within African Continental Free Trade Agreement Crystallization, Creeping Codification and Localization

Abstract This article aims to elucidate the crystallisation of the right to sustainable development through the emergence of binding environmental and social provisions in African investment treaties concluded by Regional Economic Communities (RECs), which collectively constitute the normative components of this right as reflected in the AfCFTA. On the other hand, the articulation of the right to sustainable development in the AfCFTA investment protocol reflects a broader trend towards the progressive codification of this right throughout the AfCFTA agreement, which is designed as a single undertaking. As a result, the agreement imposes obligations on investors while affirming the rights of local communities. Thus, the AfCFTA framework actively engages investors’ responsibi’ity in protecting and promoting the right to sustainable development of local peoples and communities, thereby contributing to the localisation of the right to sustainable development. Moreover, the right of African States to regulate foreign investment, recognised as a principle of customary international law, has been established to safeguard environmental and social standards, notwithstanding the extensive protections afforded to investors under various investment treaties across the continent. The AfCFTA Agreement affirms the legitimacy of public policy objectives, particularly in guaranteeing the right to sustainable development for peoples and local communities. However, this normative ambition faces a significant challenge in the entrenched conventional protections accorded to foreign investors, and in the interpretative complexities surrounding investment treaties with respect to investor and investment protection.