Groningen Journal of International Law

International Law Under Construction


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The Conflicting Relationship between Bilateral Investment Treaties and Environmental Law in Ghana

Dr Dominic Dagbanjadominic.dagbanja@uwa.edu.au

Introduction

The duty of states to protect the environment is not just a matter of municipal law, it is also reflected in international treaties like the International Covenant on Economic, Social and Cultural Rights and the African Convention on Conservation of Nature and Natural Resources and in international declarations.

The duty to protect the environment is fulfilled through the implementation and enforcement of environmental laws and regulations. As Philippe Sands and other scholars pointed out, one of the challenges facing environmental law is the difficulty of enforcement, particularly where environmental protection objectives come into conflict with economic interests. The Commission for Environmental Cooperation of North America (CECNA), for instance, argued that environmental regulations may run afoul of bilateral investment treaties (BITs). The CECNA also pointed out that conflict with BITs is one of the reasons both national environmental law and international environmental law rules suffer from inadequate domestic implementation. The United States Trade Representative similarly noted that while “securing a stable investment climate and a level playing field for […] investment abroad is an important objective […], arbitral claims brought by investors against governments (through “investor-State” arbitration) could be used inappropriately to challenge […] domestic laws and regulations, including those concerning the environment.” Continue reading