Abstract

Does the increase in Chinese foreign direct investment (FDI) inflows into Kenya portend doom for human rights in the country? The prominent narrative has been that FDI undermines human rights in host states, especially those in the developing world. This narrative is countered by claims that there exists a mutually affirming relationship between FDI and human rights. Proponents of this view posit that FDI facilitates the diffusion of human rights norms and correlates with the improved rule of law in host states. They also point to emerging human rights jurisprudence in international investment arbitration as evidence of a reciprocal relationship between FDI and human rights. In light of these arguments, this paper analyses the extent to which such a reciprocal relationship bears out between Chinese FDI and human rights in Kenya. It will be demonstrated that given the lack of a framework for human rights accountability for corporations at the international level, the restrictive treatment of human rights in international investment arbitration tribunals and weak institutional capacity in host states, a positive overlap between FDI and human rights is hardly a panacea for human rights protection in Kenya. Therefore, a synergy of legal measures and non-legal measures provide a pragmatic approach to insulate human rights from violations that may be associated with Chinese FDIs.

Highlights

  • Chinese foreign direct investment (FDI) inflows into Kenya have grown at an exponential rate over the last few years.[1]

  • Proponents of this view posit that FDI facilitates the diffusion of human rights norms and correlates with the improved rule of law in host states.They point to emerging human rights jurisprudence in international investment arbitration as evidence of a reciprocal relationship between FDI and human rights

  • It will be demonstrated that given the lack of a framework for human rights accountability for corporations at the international level, the restrictive treatment of human rights in international investment arbitration tribunals and weak institutional capacity in host states, a positive overlap between FDI and human rights is hardly a panacea for human rights protection in Kenya.a synergy of legal measures and non-legal measures provide a pragmatic approach to insulate human rights from violations that may be associated with Chinese FDIs

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Summary

Introduction

Chinese foreign direct investment (FDI) inflows into Kenya have grown at an exponential rate over the last few years.[1]. The exponential growth of Chinese FDI inflows into Kenya necessitates an assessment of its potential or real effects on human rights. This is due to concerns arising from evidence linking multinational corporations (MNCs), the main agents of FDI, to egregious human rights violations in host states, especially those in the developing world. Reciprocity manifests itself where a host state’s strong human rights performance serves as a positive location determinant for FDI, attracting more foreign investment. In order to set the discussion in context, part 2 analyses the real and potential impacts of Chinese FDI on human rights in Kenya. Part 4 explores legal and non-legal measures that can be used to provide a cushion against human rights violations by Chinese corporate entities operating in Kenya

Impact of Chinese FDI on human rights in Kenya
FDI and diffusion of human rights norms
FDI and rule of law
Human rights jurisprudence in international investment arbitration
Safeguarding human rights
Including human rights provisions in investment agreements
Utilising domestic law
Conclusion
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