The Investment Treaty Regime and Development Policy Space in Ghana

This chapter explores the relationship between Ghana's standards of investment protection by treaty and its development policy-making and implementation obligations under the constitution of the Republic of Ghana 1992 and general international law. It advances four theses. First, the state has the constitutional and general international law duty to make and implement development policies for the realization of the legal right to development in Ghana. Second, the power to make treaties, which derives from the constitution and general international law, requires the conclusion of treaties that promote development. Third, existing standards of investment protection by treaty are incompatible with the constitutional and general international law duty to make and implement development policies to the extent that they impose damages on the state for doing that which is required by the constitution and general international law. The fourth thesis is that Ghana's investment treaties were aimed at establishing standards of investment protection to attract foreign investment for development and not merely to protect foreign investment as an end.