Sustainable Development And Investment Treaties: A Comparative Analysis Of Bilateral Investment Treaties In Kenya And South Africa

Abstract

This is a comparative study assessing what is meant by sustainable development and the role of investment treaties. The study ventures to scrutinize Bilateral Investment Treaties and whether they contribute to sustainable development by examining the position of South Africa and Kenya as countries classified under the Medium Human Development (MHD) of incorporating the sustainable development agenda into international investment legal and policy formulation. The study begins by giving an overview of sustainable development, foreign direct investment and bilateral investment treaties. It generates pertinent research questions, objectives and hypotheses on these areas, and provides contract law theory and the thirdworld approach theory to international law as the theoretical framework underpinning the study. Subsequently, the relationship between sustainable development and bilateral investment treaties is examined, and it is noted that the two have a mutually-reinforcing relationship. It is however noted, upon an analysis of the key provisions in most of these treaties that they are by design limiting to the capacity or freedom of developing countries, such as Kenya, in regard of incorporation of sustainable development norms. This study therefore proceeds to compare the position of Kenya with that of South Africa, noting that the review process of that countries bilateral investment treaties and its findings have sought to respond to the some of the challenges of reality for developing countries. Thus, the study seeks to draw lessons espoused and other experiences then accordingly gives recommendations. In addition, the study suggests areas for further research regarding the subject under inquiry