Developing states’ regulation at the intersection : the impact of bilateral investment treaties on the ICESCR right to food through two case studies

Abstract

This doctoral thesis engages the question of state regulation at the intersection of the international legal regimes of international investment and international human rights law. It seeks to examine the state regulation problematics in real-life interactions of foreign investments, as protected under bilateral investment treaties (BITs), with the international right to food in developing states. It takes as case studies the states of Egypt and South Africa. The two states have relatively dissimilar reformatory reactions to their existing traditional BITs, born of their unique historical trajectories. They also share comparable human rights commitments to the right to food, not only under their constitutions, but also under the International Covenant on Economic, Social and Cultural Rights (ICESCR). Drawing from the two states’ food and agro-investment contexts, BIT stipulations, ICESCR right to food obligations, and investment arbitration awards, the thesis investigates how BIT provisions on expropriation and fair and equitable treatment (FET) impact the two states’ ICESCR-based duty to regulate for the right to food. To illuminate the requisites of the right to food, it makes a case for a Covenant-based duty to regulate, reconceptualized from the mandates of ICESCR Article 2(1), to serve as its analytical lens. This is particularly in light of some of the right’s substantive and interpretative ambiguities. Distinct from the sovereign and discretionary right to regulate which BITs may address, this duty lens is subsequently employed to discern the bearings of BIT compatibility of state actions on arbitral prospects for state regulation as an obligation in the right to food context. Through analyzing the arbitral interpretative practices and attitudes in a selected collection of food-relevant arbitration awards, the thesis demonstrates states’ restricted regulatory maneuverability to accommodate food-related interests and concerns. It further shows the unfavorable chances for the wide-scoped duty to regulate under the current interpretative perspectives regarding expropriation and FET provisions. Ultimately, the conclusion reached is that a full-ranged tackling of the right to food necessitates that either states or arbitrators introduce changes to the system.