Developing a climate-resilient investment protocol: lessons from the final draft protocol on investment to the agreement establishing the African Continental Free Trade Area

Abstract

This article explores the draft Protocol on Investment under the African Continental Free Trade Area (AFCFTA) agreement, with a view to examining the Protocol’s implications for climate change objectives in Africa. It explores how the Phase II Protocol on Investment under the AFCFTA could draw from the Paris Agreement. In particular, it suggests that the Protocol on Investment under the AFCFTA can incorporate arrangements to address state and direct investor rights and obligations in relation to climate change action. However, the article proposes that climate change objectives should be addressed in the Protocol in more detail. The article also proposes a strong mechanism of liability and accountability of states and investors under the Investment Protocol, embracing liability for parent multinational corporations (MNCs) in their home states even when such liability is not the law of the investor’s home state.