Toward human rights-compatible bilateral investment treaties: the case of Ghana
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The legal structure of the existing bilateral investment treaties (BITs) of Ghana consists of the title, preamble, scope, most-favoured-nation rule, national treatment, fair and equitable treatment, full protection and security, expropriation, compensation, and dispute settlement. Save the title and the preamble, the rest of the elements of the structure constitute the substantive clauses of the BITs. These clauses do not contain substantive human rights dimensions in their text. Meanwhile there is proven evidence of human rights violations associated with foreign businesses, especially in the gold mining sector in the country. The nature and character of the structure of Ghana’s BITs is akin to the structure of BITs generally. There is, however, a wave of new generation BITs which provide for substantive human rights provisions, and this is grounded in both regional and international human rights and related instruments and declarations as well as national legislation. The study makes the strongest recommendation for Ghana to lawfully terminate its existing BITs and to negotiate new treaties which would be human rights compatible. This process should commence with development of a well-crafted Model BIT anchored on a National Action Plan (NAP) on Business and Human Rights (BHR). The preparation and implementation of the NAP on BHR should not only be inclusive but also assume a national character. The inclusive processes would be key to promoting national buy-in and ownership of the new investment aspirations of the country to maintain human rights consistent BITs independent of the political party in power or government of the day. The study concludes that constitutional and legislative amendments are necessary to guarantee success in the pursuit of making Ghana’s BITs human rights compatible; and further developed a prototype Model BIT in furtherance of this objective.